Gujarat High Court
Akhalak Ahmed Nizamali Bukhari vs Gujarat State Waqf Tribunal on 7 September, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1899
Author: Vikram Nath
Bench: Vikram Nath, Ashutosh J. Shastri
C/LPA/1206/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1206 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 2446 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1206 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
AKHALAK AHMED NIZAMALI BUKHARI
Versus
GUJARAT STATE WAQF TRIBUNAL
==========================================================
Appearance:
MR MI HAVA FOR MR MOIZ K RAFIQUE for the Appellant(s) No. 1
MR MANISH SHAH for the Respondent No.2
MR MI MERCHANT for the Respondent No.4
MR PJ YAGNIK for the Respondent No. 5
MR DIPEN K DAVE for the Respondent No.6, 7
MR SIRAJ R GORI for the Respondent No.8
================================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 07/09/2020
CAV JUDGMENT
Page 1 of 17
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C/LPA/1206/2019 CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH)
1. This Letters Patent Appeal under Clause 15 of the Letters Patent Act has been preferred by the original writ petitioner assailing the correctness of the judgment and order dated 07.02.2019 passed by the learned Single Judge dismissing the Special Civil Application No.2446 of 2019 between Akhalak Ahmed Nizamali Bukhari vs. Gujarat State Waqf Tribunal, affirming the order of the Tribunal remanding the matter to the Wakf Board for a fresh decision.
2. We have heard Mr. M.I.Hava, learned counsel for Mr.Moiz Rafique, learned counsel for the appellant and Mr. Manish Shah, learned counsel for respondent No.2 - Wakf Board, Mr. M.I.Merchant, learned counsel for respondent No.4, Mr. P.J.Ygnik, learned counsel for respondent No.5, Mr. Dipen Dave, learned counsel for respondent Nos.6 and 7 and Mr. Siraj Gori, learned counsel for respondent No.8 and perused the material on record.
3. The issue in the present appeal for determination is Page 2 of 17 Downloaded on : Thu Sep 10 20:42:23 IST 2020 C/LPA/1206/2019 CAV JUDGMENT more legal rather than factual as such does not require detailed reference to facts. Even otherwise, the facts as narrated in the judgment and order of the learned Single Judge are not disputed and as such, the same are not being reiterated in detail in this order and they would be referred to at appropriate places wherever necessary.
4. The writ petition registered as Special Civil Application No.2446 of 2019 was filed by the appellants assailing the correctness of the order dated 24.01.2019 passed by the Gujarat State Wakf Tribunal in Wakf Appeal No.8 of 2017 whereby the Tribunal set aside the order dated 05.10.2017 passed by the Gujarat State Wakf Board accepting the Change Report No.556 of 2016 and had remanded the matter to the Wakf Board to decide the same afresh after taking into consideration all the objections raised by the respective parties against the Change Report No.556 of 2016 and after affording opportunity of hearing to all the parties concerned.
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5. It is well-settled that normally against an order of remand, the scope of interference under Article 226 / 227 of the Constitution is limited. It is only in very exceptional cases that an interference is made with an order of remand. As per the learned Single Judge, the learned counsel for the writ petitioner had raised various issues and grounds to show that the order passed by the Wakf Tribunal setting aside the order of the Wakf Board and remanding the matter to the Wakf Board was erroneous. However, the learned Single Judge dealt with all the submissions and came to the conclusion that the Wakf Board had not afforded due opportunity to all the parties concerned on the Change Reports inasmuch as the objections already filed had also not been taken into consideration by the Wakf Board resulting into patent illegality. The learned Single Judge recorded its findings in paragraphs 16 and 17 of the judgment to arrive at a conclusion that the Wakf Tribunal had not committed any error in setting aside the order of the Wakf Board and remanding the matter for a fresh Page 4 of 17 Downloaded on : Thu Sep 10 20:42:23 IST 2020 C/LPA/1206/2019 CAV JUDGMENT decision. The said findings are reproduced below :
"16. Having heard learned advocates appearing for the parties and having gone through the records produced on record, it emerges that it is the case of the petitioners that the petitioner No.1 is appointed as Sajjada-Nashin and Mutawalli and the petitioner No.2 appointed as Mutawalli by late Sajjada-Nashin, Mr. Saiyed Moosamiya. The said Mr. Saiyed Moosamiya submitted a change report dated 25.10.2016 in Form-D with relevant Annexures to the respondent No.2-Board and the CEO of the respondent No.2 Board has accepted the change report vide order dated 05.10.2017 by considering the same as undisputed and against the said order, the respondent Nos.4 to 7 had filed Appeal before the respondent No.1-Tribunal and the respondent No.1-Tribunal has quashed and set aside the order passed by the respondent No.2-Board and the matter is remanded back to the respondent No.2-Board for deciding the objections of the private respondents and other persons after providing an opportunity of hearing to them. From the record, it is revealed that on 12.01.2017, some of the private respondents and 50 other persons raised objection before the respondent No.2-Board with regard to the change report dated 25.10.2016 submitted by late Mr. Saiyed Moosamiya. It is also reflected from the record that the change report was submitted on 29.10.2016 by late Mr. Saiyed Moosamiya and, thereafter, he died on 14.09.2017 and before that on 11.05.2017, notice was issued by the respondent No.2-Board and thereby objections were invited from the present Mutawalli. It is not in dispute that the respondent No.8 has raised an objection on 18.09.2017 i.e. immediately after the death of Mr. Saiyed Moosamiya, however, such objection was not considered by the respondent No.2-Board. It is required to be observed at this stage that Division Bench of this Court while passing an order dated 16.06.2017 in Writ Petition (PIL) No.213/2016 has Page 5 of 17 Downloaded on : Thu Sep 10 20:42:23 IST 2020 C/LPA/1206/2019 CAV JUDGMENT observed in para No.4 as under, "4. Accordingly, we place on record the statement made by the learned Government Pleader for constitution of the Board, as contemplated under the provisions of the Waqf Act, 1995. At the same time, we also further direct that the Chief Executive Officer of the Board shall take necessary steps to carry out the Change Reports where there are no objections. It is made clear that in matters where there are objections with regard to Change Reports, the same shall be placed only before the Board, after it is constituted."
17. Thus from the aforesaid order, it is clear that the direction was given to CEO of the respondent No.2 Board to take necessary steps to carry out the change reports, where there are no objections, however, it was clarified that in the matters, where there are objections with regard to change reports, such objections were required to be placed only before the Board, after it is constituted. From the record, it is further revealed that in the impugned order, the respondent No.1-Tribunal has specifically observed after verifying the record of the Board that the officer of the respondent No.2 Board has passed an order to place the change report in disputed register. Thus before passing the order by the CEO of the respondent No.2-Board, he was aware about the fact that the change report is placed in disputed register and in spite of that, in defiance of the directions issued by the Division Bench of this Court, he has accepted the change report."
6. Based on the above findings, the learned Single Judge proceeded to dismiss the writ petition.
7. Before us, learned counsel for the appellant has Page 6 of 17 Downloaded on : Thu Sep 10 20:42:23 IST 2020 C/LPA/1206/2019 CAV JUDGMENT sought to argue that the objections raised before the Wakf Board were beyond the purview of Section 42 of the Wakf Act, 1995 (hereinafter referred to as "the 1995 Act"). Further submission is that the powers of the Wakf Board under the 1995 Act are only administrative and supervisory in nature and not adjudicative. It is further submitted that any change incorporated under Section 37 of the 1995 Act with regard to the Mutawalli in the Register of the Wakf was also administrative and clerical in nature. For all the above reasons and statutory provisions, the Tribunal would not have any jurisdiction to entertain the appeal and as such the Tribunal committed an error in not only entertaining the appeal but also allowing the same by setting aside the Change Report approved by the Wakf Board and remanding the matter to the Wakf Board.
8. Learned counsel for the appellant has also placed reliance on the following judgments in support of his submissions :
1. M.P. Waqf Board vs. Subhan Shah (Dead) Page 7 of 17 Downloaded on : Thu Sep 10 20:42:23 IST 2020 C/LPA/1206/2019 CAV JUDGMENT By Lrs. reported in (2006) 10 SCC 696 (Para 27 to 29).
2. S.V.P. Pookoya and others vs. Lakshadweep State Wakf Board and others, reported in ILR (2018) 4 KER 932 (Para 19, 23 to 30).
3. Chiranjilal Shrilal Goenka vs. Jasjit Singh and others, reported in (1993) 2 SCC 507 (Para 17).
4. Kanwar Singh Saini vs. High Court of Delhi, reported in (2012) 4 SCC 307 (para 22 and
23).
5. Bhanwar Lal and another vs. Rajasthan Board of Muslim Waqf and others, reported in (2014) 16 SCC 51 (Para 12, 13, 14 and
26).
6. Syeda Nazira Khatoon vs. Syed Zahiruddin Ahmed Baghdadi and others, reported in (2019) 9 SCC 522 (Para 15 to 25).
7. Aliyathammuda Beethathebiyyapputa Pookoya and another vs. V. Pattakal Cheriyakoya and others - Civil Appeal No.9587-88 of 2019, judgment dated 01.08.2019 (Para 89 to 91).
8. Noor Mohammed vs. U.P. Sunni Central Waqf Board, reported in 2003 (11) SCC 782 (para 3 and 5).
9. On the other hand, learned counsels for the respondents vehemently submitted that the arguments advanced by the learned counsel for the appellant is totally untenable. The Wakf Tribunal would have jurisdiction to entertain the applications relating to Change Report of the Mutawalli and its acceptance or rejection by the Board under Section Page 8 of 17 Downloaded on : Thu Sep 10 20:42:23 IST 2020 C/LPA/1206/2019 CAV JUDGMENT 83(2) of the 1995 Act. The Tribunal rightly entertained the appeal and decided the same.
10. It is also submitted that all the arguments advanced by the learned counsel for the appellant have been dealt with by the learned Single Judge. The judgment of the learned Single Judge is just, valid and proper and does not suffer from any infirmity warranting interference in appeal.
11. Having heard learned counsel for the parties and having perused the material on record, we first refer to the statutory provisions. Chapter IV of the 1995 Act provides for the establishment of the Wakf Board and the functions assigned to it. Certain powers are vested in the Chief Executive Officer and other powers are in the Board and the Board has also the power to delegate. Section 32 of the 1995 Act provides for the powers and functions of the Board which includes the power to appoint and remove Mutawallis in accordance with the provisions of the said Act under Clause (g) of sub-section (2) of Section Page 9 of 17 Downloaded on : Thu Sep 10 20:42:23 IST 2020 C/LPA/1206/2019 CAV JUDGMENT
32. The Change Report as it is called is for incorporating removal or addition of Mutawallis and such report is to be either accepted or rejected by the Board and therefore an order rejecting or accepting a Change Report would be an order passed under Section 32(2)(g) of the 1995 Act.
12. Further, Section 37 of the 1995 Act provides for maintenance of a Register of Wakf or at times referred to as Register of Auqaf. This Register is to be maintained by the Board i.e. the Wakf Board and under Clause (b) of sub-section (1) of Section 37 of the 1995 Act, the name of Mutawalli is to be recorded in the said Register of Wakf. It also records under Clause (c), the rule of succession to the office of Mutawalli under the Wakf Deed or by custom or by usage. Thus, the Change Report when approved under Section 32(2)(g) of the 1995 Act, its entry would be made in the Register maintained under Section 37 of the 1995 Act. Further, Section 42 of the 1995 Act provides that the change in the Page 10 of 17 Downloaded on : Thu Sep 10 20:42:23 IST 2020 C/LPA/1206/2019 CAV JUDGMENT management of the Wakf needs to be notified. In other words, where the management of a registered Wakf undergoes any change on account of the death or retirement or removal of Mutawalli, the incoming Mutawalli would forthwith notify such change to the Board. Sub-section (2) of Section 42 of the 1995 Act provides that in case of any other change in any of the particulars provided in Section 36 thereof requires to be notified at the time of registration, the Mutawalli would do so within 3 months from the time of occurrence of such change.
13. Section 64 of the 1995 Act provides for the removal of Mutawalli. The situation under which Mutawalli can be removed and the procedure and the rights of the Mutawalli are further provided therein. The Board has the power to remove the Mutawalli under the given circumstances and after following the procedure prescribed. The same section also provides that in case of removal, an appeal would lie to the Tribunal. Page 11 of 17 Downloaded on : Thu Sep 10 20:42:23 IST 2020 C/LPA/1206/2019 CAV JUDGMENT
14. In the present case, the dispute is basically relating to addition and removal of Mutawallis. We are not going into the detailed chronology of the addition and removal of Mutawallis, but once an issue relating to a Change Report being placed before the Board relating to addition or removal of Mutawallis and the same being accepted or rejected by the Board, the right to invoke the powers of the Tribunal under Section 83 of the Act to an aggrieved party to correct the decision of the Board would be a statutory right.
1. A bare reading of the provisions referred to above make it abundantly clear that the acceptance or rejection of a Change Report incorporating any new Mutavallli or removing any existing Mutawalli, has to be done by the Wakf Board and any argument to the contrary cannot be accepted. It is further clear that against an order of the Board, an appeal would lie to the Tribunal. Thus, the submission that no appeal would be maintainable before the Tribunal against the order of the Wakf Board acknowledging the Page 12 of 17 Downloaded on : Thu Sep 10 20:42:23 IST 2020 C/LPA/1206/2019 CAV JUDGMENT Change Report cannot be accepted rather it has to be rejected.
15. The judgment in the case of Subhan Shah (Dead) (supra) relied upon by the learned counsel for the appellant would have no relevance to the present case as in the said case the Tribunal had proceeded to exercise the powers of the Board and in such circumstances it was said by the Supreme Court that the Tribunal cannot usurp the powers of the Board and the statutory powers vested in the Board needs to be exercised by the Board itself. Challenge to the decision of the Board before the Tribunal is a different aspect than usurping the powers of the Board by the Tribunal.
16. None of the other judgments relied upon by the learned counsel for the appellant have any application to the facts of the present case. In none of the judgments, the issue as to whether an appeal would lie or not before the Tribunal against an order of the Board accepting or rejecting the Change Page 13 of 17 Downloaded on : Thu Sep 10 20:42:23 IST 2020 C/LPA/1206/2019 CAV JUDGMENT Report whereby any Mutawalli is added or removed, has been dealt with. All the judgments are on completely different set of facts and have no application at all to the issues involved in the present case.
17. However, we are referring to the judgments relied upon by the learned counsel for the appellant in brief. The first set of judgments viz. M.P.Waqf Board (supra), S.V.P.Pookoya (supra), Chiranjilal Shrilal Goenka (supra), Kanwar Singh Saini (supra) and Bhanwar Lal and another (supra) relate to the proposition that the powers of the Wakf Board are administrative and supervisory, whereas, the powers of the Tribunal, under the Act are adjudicatory. Based on the above submissions, the appellant's counsel has referred to the above judgments. In our considered opinion, the proposition laid down in the above referred judgment, there cannot be any quarrel, but the administrative action or the supervisory decision taken by the Wakf Board can always be tested in an Page 14 of 17 Downloaded on : Thu Sep 10 20:42:23 IST 2020 C/LPA/1206/2019 CAV JUDGMENT appeal / application before the Wakf Tribunal under Section 83(2) of the 1995 Act. None of the above judgments lay down that an appeal would not lie before the Tribunal against an order of the Wakf Board.
18. Learned counsel for the appellant in support of the proposition for drawing the distinction between the powers of a Wakif and a Mutavalli appointed by Wakif has placed reliance upon the judgments viz. Syeda Nazira Khatoon (supra), Aliyathammuda Beethathebiyyapputa Pookoya and another (supra) and Noor Mohammed (supra). The question here is not the consideration of the matter on merits. That would be examined by the Wakf Board pursuant to the order of remand passed by the Wakf Tribunal. All these judgments would be relevant to be placed before the Wakf Board and Tribunal as and when the occasion arises and not before us, at this stage.
19. Learned counsel for the appellant also placed reliance upon the judgment in the case of Punjab Page 15 of 17 Downloaded on : Thu Sep 10 20:42:23 IST 2020 C/LPA/1206/2019 CAV JUDGMENT Wakf Board vs. Sham Singh Harike reported in (2019)4 SCC 698 and in particular paras 48 to 53. Having perused the said judgment and in particular the paragraphs referred to, we do not find how the said judgment would help the appellant. The crux of the issue before us is as to whether the appeal before the Wakf Tribunal was maintainable or not against the order of the Wakf Board. The aforesaid judgment deals with the interpretation regarding amendment in Section 83 being retrospective or not.
20. The issue involved is very straight and simple, as to whether an appeal would lie or not before the Tribunal against an order of the Board. The opening sentence of Section 83 of the 1995 Act clearly states that against an order made under this Act or Rules would be assailable before the Tribunal. As already discussed above, the order passed by the Wakf Board would be treated to be one under Section 32, 37, 63 or 64 and therefore we do not find any force in the submissions advanced by the learned counsel for the appellant.
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21. The appeal lacks merit and is accordingly dismissed.
Consequently, the connected Civil Application also stands disposed of.
(VIKRAM NATH, CJ) (ASHUTOSH J. SHASTRI, J) DRASHTI K. SHUKLA Page 17 of 17 Downloaded on : Thu Sep 10 20:42:23 IST 2020