Gujarat High Court
Iqbalbhai Ismailbhai Kureshi vs Gujarat State Wakf Board on 13 October, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/14079/2022 IA ORDER DATED: 13/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 14079 of 2022
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KASIM YASIN NOOR Versus IQBALBHAI ISMAILBHAI KURESHI ============================================================================== Appearance:
SAQUIB S ANSARI(7152) for the PETITIONER(s) No. MR ASIFKHAN I PATHAN(2459) for the RESPONDENT(s) No. MR MANISH S SHAH(5859) for the RESPONDENT(s) No. ================================================================ CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI Date : 13/10/2022 IA ORDER
1. By way of this petition under Article 226 and 227 of the Constitution of India, the petitioner has prayed for following reliefs:-
"16(A) THIS HON'BLE COURT MAY BE PLEASED TO allow the present Interlocutory application and thereby be pleased to vacate the interim relief granted by order dated 29/07/2022 passed by this Hon'ble Court in Special Civil Application No.14079 of 2022.
(B) THIS HON'BLE COURT MAY BE PLEASED TO pass further orders and directions and be pleased to direct the Respondent No.13 - Gujarat State Waqf Board to immediately and forthwith appoint Executive Officer as provided under Section 38 of the Waqf Act, 1995 for administration of the properties of Jamiatul Quresh (Choti Jamat), Registration No.B-316/Ahmedabad.
(C) Pending admission, hearing, and final disposal of the present Petition, this HON'BLE COURT MAY BE PLEASED TO vacate the interim relief granted by order dated 29/07/2022 passed by this Hon'ble Court in Special Civil Application No.14079 of 2022.
(D) Pending admission, hearing, and final disposal of the present petition, this HON'BLE COURT MAY BE PLEASED TO direct the Respondent No.13 - Gujarat State Waqf Board to immediately and forthwith appoint Executive Officer as provided under Section 38 of the Waqf Act, 1995 for administration of the properties of Jamiatul Quresh (Choti Jamat), Registration No.B-
316/Ahmedabad.
Page 1 of 12 Downloaded on : Wed Oct 19 20:06:57 IST 2022 C/SCA/14079/2022 IA ORDER DATED: 13/10/2022 (E) THIS HON'BLE COURT MAY BE PLEASED TO grant such other and further relief to the petitioner as may deem just and proper in the facts and circumstances of the case."
2. It is the case of the petitioner that the petitioner who are the trustees of Jamiatul Quresh (Choti Jamat) which is a registered Charitable Trust under the Gujarat Public Charitable Trust and having its registration No.B/316/Ahmedabad before the Charity Commissioner, Gujarat would not fall within the definition of Wakf, and therefore, the provisions of Wakf Act, 1995 would not be applicable to the petitioner-Trust. The application preferred by the petitioner dated 30.05.2017 seeking a declaration that the petitioner-Trust would be outside the perview of Wakf Act is pending before Wakf Board since 2017 and though the co-ordinate bench of this Court has vide order dated 11.04.2022 passed order in Special Civil Application No.4065 of 2022 directing the Wakf Board to decide the application preferred by the petitioner within a period of six months from the date of receipt of the order. till date, Page 2 of 12 Downloaded on : Wed Oct 19 20:06:57 IST 2022 C/SCA/14079/2022 IA ORDER DATED: 13/10/2022 that application preferred by the petitioner is not decided.
3. In the meantime, the respondents by treating the petitioner-Trust to be a trust governed by the Wakf Act, 1995 preferred an application under Section 17 of the Wakf Act and prayed for certain directions and pursuant to that vide order dated 26.05.2022 passed upon an application preferred by the respondent No.2 and 3, the Chief Executive Officer of Gujarat State Wakf Board passed an order whereby one Mr. M.M. Anarwala, retired IPS Officer was appointed as Inquiry Officer and Mr. Altaf Saiyed was appointed as the Assisting Officer to the Inquiry Officer.
4. Being aggrieved by and feeling dissatisfied with the aforesaid order, petitioner has preferred this petition.
5. The main contention raised by learned advocate Mr. Pathan is that when the application preferred by the Page 3 of 12 Downloaded on : Wed Oct 19 20:06:57 IST 2022 C/SCA/14079/2022 IA ORDER DATED: 13/10/2022 petitioner seeking a declaration that the petitioner trust would not be governed by the provisions of Wakf Act, 1995 is pending before the Wakf Board and though the aforesaid issue has not been adjudicated by the Wakf Board. If any order is passed treating the petitioner-Trust to be Wakf property and if any inquiry is ordered by appointing the Inquiry Officer the said order will have baring on the application preferred by the petitioner which is also pending before the Wakf Board and once any inquiry is conducted and report is submitted, the interest of the petitioner-Trust would be directly and adversely affected, and therefore, on the short point this petition is preferred. Learned advocate Mr. Pathan submitted that the petitioner is a trust, the same would not be governed by provisions of Wakf Act, 1995 and the election of trustee scheduled to be held next months i.e. in the months of November, 2022.
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C/SCA/14079/2022 IA ORDER DATED: 13/10/2022
6. After the petition was preferred on the ground that as per the provisions of the Act, and more particularly, as per Section 83 of the Wakf Act, 1995 any challenge to the order passed by the Gujarat State Wakf Board can be challenged, and more particularly, an application under Section 17 can be challenged before the Wakf Tribunal by preferring an application under Section 83 of the Act. However, since the tribunal is not functioning at present, the petition was not entertained and 29.07.2022, following order was passed:-
"1. The present writ petition has been filed seeking the following prayer:-
"16(B) Your Lordship be pleased to issue writ of certiorari or writ mandamus or any appropriate writ for quash and set aside the order passed by the Ld. Chief Executive Officer of Gujarat State Wakf Board Gandhinagar in vide Wakf/B-316/Ahmedabad/Javak/No.10659 dated 26/05/2022 at Annexure-A to the petition."
2. At this stage, learned advocate Mr.Asifkhan Pathan appearing for the petitioner has submitted that since the Waqf Tribunal is not functioning as one of its member is yet to be appointed, the present petition has been filed by the petitioner. He has submitted that if the interim order is passed till the Waqf Tribunal is constituted, the petitioner's interest would be prejudiced.
3. Learned AGP Mr.Sahil Trivedi, on instructions, has submitted that for completion of coram of Waqf Tribunal, the State has Page 5 of 12 Downloaded on : Wed Oct 19 20:06:57 IST 2022 C/SCA/14079/2022 IA ORDER DATED: 13/10/2022 already initiated the process for appointing 3rd member and the same shall be completed on or before 01.10.2022.
4. It will be open for the petitioner to file appropriate application for getting the matter listed after full Coram of Tribunal is constituted. Till the next date of hearing, the impugned order at Annexure-A is stayed. This Court has passed the order only in view of non availability of Waqf Tribunal, and the matter shall stand transferred on the functioning of the Waqf Tribunal.
5. The matter is kept on 03.10.2022. Direct service is permitted."
7. Since by way of order dated 29.07.2022, the order appointing the Inquiry Officer which is subject matter of challenge by way of this petition was stayed by way of Civil Application No.1/2022 which is for vacating interim relief, the respondent No.2 and 3 prayed for vacating the aforesaid interim relief.
8. Learned advocate Mr. Hakim appearing with learned advocate Mr. Ansari submitted that till today the Tribunal has not been made functional as the appointment of one of the member of Tribunal is still awaited. He further submitted that the order dated 26.05.2022 which is subject matter of challenge is an innocuous order whereby only an Inquiry Officer and Officer for assisting the Inquiry Officer Page 6 of 12 Downloaded on : Wed Oct 19 20:06:57 IST 2022 C/SCA/14079/2022 IA ORDER DATED: 13/10/2022 are appointed. If the inquiry is permitted to go on and a direction is issued that no action pursuant to the inquiry report is given, in that case, it will not cause any prejudice to the petitioner-Trust. He further submitted that though the dispute about whether the petitioner-Trust would fall within the purview of Wakf Act, 1995 or not, is a question, is pending despite the direction of this Court the same has not been adjudicated till date by the Wakf Board, and therefore, this Court may permit the Inquiry Officer to carry out the inquiry, simultaneously, along-with the proceedings already pending before the Wakf Board till the issue about applicability of the Wakf Board in respect of the petitioner-Trust is decided.
9. Learned advocate Mr. Asifkhan Pathan appearing for the original petitioner opposed the aforesaid submissions and stated that unless it is decided by the authority that the petitioner-Trust would fall within the purview of Wakf Page 7 of 12 Downloaded on : Wed Oct 19 20:06:57 IST 2022 C/SCA/14079/2022 IA ORDER DATED: 13/10/2022 Act, 1995. No such inquiry can be permitted by this Court as if any inquiry permitted that would indicate that prima facie this Court is of the view that the petitioner-Trust is governed by the provisions of Wakf Act, 1995. However, learned advocate Mr. Pathan submitted that if any directions in the interest of justice is issued by this Court, this Court may make it clear that if any of the inquiry pursuant to the order dated 26.05.2022 is permitted to go on, in that case, the ongoing proceedings at the instance of present applicant to declare that the present petitioner- Trust is outside the purview of Wakf Act, 1995 are not affected adversely.
10. In view of aforesaid submissions, this Court is of the view that by issuing suitable directions to the Wakf Board, present petition can be disposed off.
As far as the application of the present petitioner before the Wakf Board praying for a declaration that the Page 8 of 12 Downloaded on : Wed Oct 19 20:06:57 IST 2022 C/SCA/14079/2022 IA ORDER DATED: 13/10/2022 present petitioner-Trust would not fall within the purview of Wakf Act, 1995 is concerned, as the co-ordinate bench has vide order dated 11.04.2022 passed in Special Civil Application No.4065 of 2022 has already directed the Wakf Board to decide the said application within a period of six months from the date of receipt of the order, is already in operation, and according to learned advocate Mr. Pathan, that period has already been over now and yet the aforesaid application is not decided considering the fact that the aforesaid order has not been challenged by either side. This Court is of the view that the Wakf Board will decide the application preferred by the present petitioner by complying the order dated 11.04.2022 as early as possible.
11. As far as the impugned order dated 26.05.2022 is concerned, by way of aforesaid impugned order only an Inquiry Officer and officer of assisting Inquiry Officer are Page 9 of 12 Downloaded on : Wed Oct 19 20:06:57 IST 2022 C/SCA/14079/2022 IA ORDER DATED: 13/10/2022 appointed. If the Inquiry Officer and Assisting Officer are permitted to go on with the inquiry, in opinion of this Court that will not cause any prejudice to any of the parties, if the Inquiry Report is submitted by the Inquiry Officer in a sealed cover to the Wakf Board and the Inquiry Report is opened by the Wakf Board only after the application preferred by the present petitioner for determining its status as to whether the petitioner-Trust will be governed by the provisions of Wakf Act, 1995 or not is decided by the Wakf Board. The said exercise is required to be carried out independently without being influenced by present order by this Court.
12. In view of that respondent - Wakf Board is directed to ensure that the Inquiry Officer appointed by the Chief Executive Officer of the Wakf Board vide order dated 26.05.2022 is permitted to go on with the inquiry with the held of Assisting Officer and the report of the inquiry may Page 10 of 12 Downloaded on : Wed Oct 19 20:06:57 IST 2022 C/SCA/14079/2022 IA ORDER DATED: 13/10/2022 be submitted to the Wakf Board only in a sealed cover and the Wakf Board is directed not to open the sealed cover unless the application preferred by the petitioner questioning the applicability of the Wakf Act, 1995 to the petitioner-Trust is decided.
13. After the aforesaid application of the petitioner is decided by the Wakf Board, the Wakf Board is directed to open the sealed cover only after a period of one month that is appeal period and once he appeal period against the order passed by the Wakf Board is over thereafter it is open for the Wakf Board to open the sealed cover of the Inquiry Report that the Inquiry Officer may submit and thereafter only the Wakf Board is directed to issue any further direction in respect of Inquiry Report.
14. It is clarified that this Court has not gone into the merits of the matter and both the Inquiry Officer as well as Wakf Board are directed to carry out the inquiry as Page 11 of 12 Downloaded on : Wed Oct 19 20:06:57 IST 2022 C/SCA/14079/2022 IA ORDER DATED: 13/10/2022 well as the adjudication of application preferred by the petitioner independently without being influenced by the order passed by this Court.
15. In view of aforesaid directions, the stay granted by this Court vide order dated 29.07.2022 is vacated. However, the aforesaid stay is vacated only in light of aforesaid directions issued by the Court and not by considering the merits of the matter.
16. With the aforesaid directions, the present petition is disposed of.
17. In view of the disposal of the main matter, Civil Application for vacating relief would also not survive and hence the same is disposed off accordingly.
(NIRZAR S. DESAI,J) Manoj Kumar Rai Page 12 of 12 Downloaded on : Wed Oct 19 20:06:57 IST 2022