Alok Sahkari Grih Nirman Samiti ... vs The Shia Central Waqf Board And Ors
2017 Latest Caselaw 17 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 9.3.2017
 
Delivered on 04.05.2017
 
Court No. - 26
 
Case :- WRIT - C No. - 6548 of 1998
 
Petitioner :- Alok Sahkari Grih Nirman Samiti Ltd
 
Respondent :- The Shia Central Waqf Board And Ors
 
Counsel for Petitioner :- Anupam Kulshrestha
 
Counsel for Respondent :- C.S.C,D.K.Tripathi,Haider Husain,M.A. Qadeer,Puneet Kumar Gupta
 
Hon'ble Mrs. Sangeeta Chandra,J.

1. Heard Sri Anupam Kulshrestha, learned counsel for the petitioner, Sri M.A. Qadeer, learned Senior counsel assisted by Sri Puneet Kumar Gupta appearing on behalf of Waqf Board and Sri D.K. Tripathi appearing on behalf of the respondent no.5.

2. This writ petition has been filed praying for a writ in the nature of certiorari for quashing the order dated 28.4.1997 passed by the Controller, Shia Central Waqf Board, Uttar Pradesh (respondent no.2) and also praying for quashing of notice issued by the Collector, Agra (respondent no.3) on 20th January 1998.

3. The case set up by the counsel for the petitioner is that the petitioner is a Cooperative Housing Society which has purchased certain Plots of land, namely Plot No. 807 (area 1 Bigha 11 Biswa) and Plot No. 924 (area 2 Bigha 18) in village Bhogipura, Tahsil Sadar, District Agra which was earlier property of Waqf Mir Niaz Ali record in the Revenue Records. In 1973 one Syed Athar Ali Jafri was Mutawalli and he had applied to the Shia Waqf Board for grant of permission to sell the suit property and the Board had granted permission on 22.5.1973. Before such transfer could be actually made, the Mutawalli Syed Athar Ali Jafri died and one Syed Ali Qaisar was appointed as Mutawalli and a fresh permission was obtained from the Board on 27.12.1973 for transfer of Plot No. 807 and Plot No. 924 situated at village Bhogipura, Tahsil Sadar, District Agra district.

4. After such grant of permission, the Mutawalli executed the sale deed in favour of the petitioner society on 24.10.1977 and the name of the petitioner society was recorded in the Revenue Records.

5. However, the petitioner society received a notice on 14.8.1990/27.9.1990 under Section 49-B of the U.P. Muslim Waqf Act, 1960 (herein after referred to as the old Act), wherein it was mentioned that the aforesaid plots were transferred without prior permission of the Board and the petitioner was required to show cause notice as to why proceedings under Section 49-B of the old Act be not initiated. The petitioner filed a reply submitting, prior permission given by the Board and also the proof of deposit of requisite amount of sale consideration. Even then the Board bargained with the petitioner and eventually settled the controversy by compelling the society to made further payments of Rs. 50,000/- to the Board. By an order dated 10.7.1991, the proceedings initiated by notice dated 14.8.1990 / 27.9.1990 were dropped.

6. However, another notice was sent to the petitioner society on 23.6.1995 to show cause notice as to why proceedings under Section 49-B of the Act be not initiated. The petitioner submitted a written reply and its Secretary also appeared before the Board on the date fixed, on which date no hearing took place and it was conveyed to him that as and when hearing would take place, the petitioner shall be intimated. Suddenly, without giving any notice or opportunity of being heard, an order was passed on 28.4.1997 declaring the sale deed dated 24.10.1977 to be illegal. This order was passed by the Controller, Shia Waqf Board, Uttar Pradesh, Lucknow. Later a notice was issued by the Collector, Agra on 20th January 1998 under Rule 51 and Section 52 of the Old Act, referring to a requisition being sent by the Shia Waqf Board under sub-section 1 of Section 52 for delivery of possession of the land under notice in the alleged occupation of the petitioner, the transfer being in contravention of Section 49-A of the Old Act and Section 51 of the New Act. In the said notice, the Collector had asked the petitioner society to deliver possession of the property to the Shia Waqf Board, Uttar Pradesh, Lucknow within a period of thirty days, failing which ejectment proceedings would be initiated, as provided in Rule 7 of the U.P. Muslim Waqf Board (Regulation of Waqf Property) Rules 1972 under Section 52 of the Waqf Act.

7. At the time of argument, learned counsel for the petitioner Shri Anupam Kulshreshtha relied upon Annexures 1, 2, 3 & 4 to the writ petition which relate to the grant of permission to Syed Athar Ali Jafri and after his death to Syed Ali Qaisar, Mutawalli for transfer of land and also to the fact that once proceedings were initiated by the notice of the Board on 14.8.1990/27.9.1990 which proceedings were concluded and notice was withdrawn by the Waqf Board, then the proceedings could not have been re-initiated under Section 49-B of the old Act (Section 52 of the new Act) as the proceedings are quasi judicial in nature and neither the Board nor the Controller have been given power of review under the Act. It was also argued that neither the old Act nor the new Act provided for issuing second notice, initiating proceedings under Section 49-B of the old Act or Section 52 of the new Act and such proceedings being without jurisdiction, were liable to be quashed. Moreso, because the fresh proceedings were initiated after a lapse of more than 19 years from the date of transfer in favour of the petitioner society and were concluded without giving a proper opportunity of hearing to the petitioner society.

8. It has also been argued that the findings recorded in the orders impugned that Syed Ali Qaisar was not the Mutawalli on 24.10.1977 when the sale deed was executed in favour of the petitioner society as he had already been removed on 13.5.1977 could not be taken seriously and could only be said to be an afterthought because in the earlier notice, this issue of Syed Ali Qaisar not being Mutawalli on the date of transfer of property had not at all been raised.

9. Moreover, without actually challenging the sale deed and getting a declaration from competent Civil Court, the order passed by the Controller, Shia Waqf Board, Uttar Pradesh, Lucknow nullifying the registered sale deed was wholly illegal. It has also been argued that the petitioner after purchase of land in question has developed it in accordance with law and transferred the plots to its members and some of the members, have also raised constructions and made huge investments, which would be jeopardised by the action of the Waqf Board. It has also been argued that the reasons given in the order impugned, seem to be manipulated and an afterthought because the order impugned says that no permission was given by the Imtiyaz Hasan, the then Controller and the consideration of for sale is also doubtful.

10. On the other hand, counsel for the respondents, Sri M.A. Qadeer assisted by Sri Puneet Kumar Gupta for the Board pointed out that this writ petition is barred in view of the law settled by the Hon'ble Supreme Court and by this Hon'ble Court also, as a statutory remedy existed under the Act itself.

11. It has been argued that no writ petition would lie against the order passed by the Board dated 28.4.1997 or the order passed by the Collector, Agra for delivery of possession. Against the first order, a Reference lies before the Tribunal under Section 83(2) of the Act of 1995, and against the second order/notice for delivery of possession issued by the Collector, Agra, an appeal lies and the petitioner has already availed this opportunity and filed his appeal before the Tribunal on 21.1.1998.

12. This Court cannot allow the petitioner to avail two remedies simultaneously and the writ petition was liable to be dismissed on the ground of concealment of this fact by the petitioner while filing the writ petition as the writ petition was filed on 8.2.1998 whereas appeal was filed on 21.1.1998. Since, the petitioner had not come with clean hands, he could not pray for equity jurisdiction of this Court under Article 226 of the Constitution of India.

13. It has also been argued that at the time when the order was passed, the Shia Waqf Board, Uttar Pradesh, Lucknow stood superseded and the Controller of the Board was exercising all the powers of the Board under Section 14(2) of the old Act and under Section 19-2(n). The Board had been given power to give sanction on an application by the Mutawalli for the transfer of the property of a registered Waqf or for its conversion into another property, provided that such transfer or conversion shall not be sanctioned unless the proposal is approved by 2/3rds of the total members of the Board.

14. Also no permission was granted under Section 19(n) of the old Act and under Section 32(j) of new Act by 2/3rd members of the Board. Hence, any permission given in individual capacity by the Controller of the Board without approval of the 2/3rd members of the Board, would be void ab-initio and any transfer made on the basis of such permission was illegal and therefore any right created in favour of any such person as beneficiary of such transfer would also be illegal and void ab-initio. The name of the petitioner society being recorded in the Revenue Records was liable to be struck off when the transfer was void ab-initio. If any permission was granted by Imtiaz Hussain, the then Controller at a time when the Board remained superseded, it would be absolutely illegal and without any basis as no approval of 2/3rd majority of the members of the Board, when it was reconstituted, was taken for ratification of the alleged decision taken by the Imtiaz Hussain, Controller of the Board.

15. It was also argued that Section 49-A of the Act lays down restrictions on the rights of Mutwalli to transfer immovable property belonging to the waqf and no transfer of immovable waqf property by way of sale, gift mortage or exchange would be valid without the previous sanction of the Waft Board and it has been argued that Section 49-B of the old Act provides thus:-

16. 49-B Recovery of Waqf property transferred in contravention of Section 49-A-(1) If the Board is satisfied after making an inquiry in such manner as may be prescribed that any immovable property entered as property of a waqf in the register of waqf maintained under Section 30, has been transferred without the previous sanction of the Board in contravention of the provisions of Section 49-A, it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it.

17. The property in question was measuring a total of 14,463 square yards, for which the petitioner society had deposited only Rs. 13,333/- as sale consideration as mentioned in the registered sale deed. The additional deposit of Rs. 50,000/- alleged to have been made by the petitioner society to settle a bargain with the Board for withdrawal of the earlier notice also seems to be doubtful, as no record is available in the Board regarding such deposit being made.

18. The order dated 10.7.1991 allegedly dropping the earlier proceedings was also without jurisdiction and thus liable to be ignored.

19. In answer to the argument on behalf of counsel for the petitioner that appeal is provided under the Act only for an order passed under Section 49-B(4), no appeal could have been filed against the order impugned by the petitioner under the Statute. Counsel for the Board has relied upon the judgment rendered by this Court in Writ Petition No. 3400 of 2002 (Najma Khatoon Vs U.P. Sunni Central Board of Waqf) on 18.11.2002 wherein this Court has held that even if, it is argued on behalf of the petitioner that no order has been passed under the Waqf Act, 1995 and therefore, the remedy of appeal is not available, the scope of Section 83 is very wide. Under Section 83(1) of the new Act, the Tribunal can adjudicate "any dispute, question or any other matter" related to Waqf or Waqf property and the Tribunal will not only get jurisdiction when an order is passed under the Waqf Act, but also when a dispute arises relating to Waqf property as covered by Section 3(1) of the Act and in view of Section 83(5) of the Waqf Act, 1995 Waqf Tribunal has all powers of the Civil Court including power or passing of an interlocutory order and taking of evidence either through affidavits or through deposition on oath. Even the contention of the petitioner that the order has been passed in violation of principles of natural justice or lack of jurisdiction of the Controller to pass the order impugned can also be looked into by the Tribunal.

20. It has also been held by this Court that under the provisions of Section 112 of the Waqf Act, 1995 any order passed or any action taken under the U.P. Muslim Waqf Act, 1960 can be challenged before the Waqf Tribunal constituted under Section 83 of the 1995 Act.

21. It has been argued by learned counsel for the respondents that Since the appeal under Section 49-B of the U.P. Muslim Waqf Act, 1960 read with Section 52 of the Waqf Act, 1995 against the order passed by the Collector, Agra is pending disposal before the Tribunal in Waqf Misc. Appeal No. 48 of 1998, this writ petition is liable to be dismissed on this ground alone.

22. Learned counsel for the petitioner, Sri Anupam Kulshrestha has relied upon judgment rendered by the Hon'ble Supreme Court in the case of Patel Narshi Thakershi & others Vs. Pradyumansinghji Arjunsinghji AIR 1970 SC 1273 wherein it was held that "It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegatee could not have reviewed its order."

23. Several other judgments have also been cited for example (a) Smt. Shivraji & others Vs. Deputy Director of Consolidation, Allahabad & others 1997 (88) RD 562.

(b) Syed Madadgar Husain Rizvi & another Vs. State of U.P. & others 2008 (1) AWC 446

(c) Ali Makin Naqvi Vs. U.P. Shiya Central Board of Waqf & others 2008 (4) AWC 3602

(d) Rajeev Hitendra Pathak & others Vs. Achyut Kashinath Karerkar & another 2011 (5) AWC 5302 SC

(e) Waqf Mirza Abid Ali Beg & another Vs. U.P. Sunni Central Board of Waqfs & others 2011 (6) AWC 6376

(f) Haryana State Industrial Development Corporation Ltd. Vs. Mawasi & others 2012 (4) AWC 3843 SC

(g) Harbansh Lal Sahnia Vs. Indian Oil Corporation 2003 (Vol-2) S.C.C. Page-107 (Para-7) (SC)

24. The judgment and order of the Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks & others 1998 8 SCC has also been cited for the proposition that even if there is an alternative remedy available the Writ-Court has ample powers to entertain the writ petition as alternative remedy would not operate as a bar in at-least three contingencies:

(i) when the writ petition seeks enforcement of any of the fundamental rights;

(ii) there is in violation of principles of natural justice;

(iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged;

25. It has also been argued by learned counsel for the petitioner that the question of maintainability of the writ petition on the ground of availability of alternative remedy, as claimed by the respondents, is liable to be ignored as the proceedings initiated against the petitioner on the basis of the notice dated 26.3.1996 as well as the impugned order dated 28.4.1997, passed by the respondent no.2 are wholly without jurisdiction. The respondent no.2 had no jurisdiction to initiate proceedings under Section 49-B of the U.P. Muslim Waqf Act 1964 or under Section 52 of the Waqf Act 1995 when the earlier proceedings initiated against the petitioner under Section 49-B of the U.P. Muslim Waqf Act 1960 were dropped vide order dated 10.07.1991 of the respondent no.2.

26. Having considered the rival submissions, this Court takes notice of the fact that Apex Court in the case of Board of Wakf, West Bengal Vs. Anis Fatma Begum & Anr., (Civil Appeal No.5297 of 2004) decided by the Supreme Court on 23.11.2010 reported in 2010 (12) Scale 323 considered the question of the remedy available under the Waqf Act, 1995, for deciding the disputes and held in para 10 to 22 as follows:-

"10. In our opinion, all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India.

11. It may be mentioned that the Wakf Act, 1995 is a recent parliamentary statute which has constituted a special Tribunal for deciding disputes relating to Wakfs. The obvious purpose of constituting such a Tribunal was that a lot of cases relating to Wakfs were being filed in the courts in India and they were occupying a lot of time of all the Courts in the country, which resulted in increase in pendency of cases in the Courts. Hence, a special Tribunal has been constituted for deciding such matters.

12. Section 83 (1) of the Wakf Act, 1995 states,

"83. Constitution of Tribunals, etc. - (1) The State Government shall, by notification if the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a Wakf or Wakf property under this Act and define the local limits and jurisdiction under this Act of each or such Tribunals."

13. Section 84 of the Act states,

"84. Tribunal to hold proceedings expeditiously and to furnish to the parties copies of its decision - Whenever an application is made to a Tribunal for the determination of any dispute, question or other matter relating to a Wakf or Wakf property it shall hold its proceedings as expeditiously as possible and shall as soon as practicable on the conclusion of the hearing of such matter give its decision in writing and furnish a copy of such decision to each of the parties to the dispute".

14. Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words "any dispute, question or other matters relating to a Wakf or Wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word `Wakf' has been defined in Section 3 (r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3 (r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.

15. Under Section 83 (5) of the Wakf Act, 1995 the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules 1, 2 and 2A of the Code of Civil Procedure to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a Wakf or Wakf property.

16. We may further clarify that the party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Sections 83 (1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt Section 83 (2) refers to the orders passed under the Act, but, in our opinion, Sections 83 (1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a Wakf or Wakf property, as the plain language of Sections 83 (1) and 84 indicates.

17. We may clarify that under the proviso to Section 83 (9) of the Wakf Act, 1995 a party aggrieved by the decision of the Tribunal can approach the High Court which can call for the records for satisfying itself as to the correctness, legality or propriety of the decision of the Tribunal. This provision make it clear that the intention of Parliament is that the party who wishes to raise any dispute or matter relating to a Wakf or Wakf property should first approach the Tribunal before approaching the High Court.

18. It is well-settled that when there is a special law providing for a special forum, then recourse cannot be taken to the general law vide Justice G.P. Singh's Principles of Statutory Interpretation (9th Edn. 2004, pp 133-134).

19. In Chief Engineer, Hydel Project & Ors vs. Ravinder Nath & Ors., (2008) 2 SCC 350, this Court held that when the matter fell in the area covered by the Industrial Disputes Act, the Civil Court would have no jurisdiction. In the above decision the Court has referred to several earlier decisions on this point.

20. In view of the above, we are of the opinion that since the matter fell under the purview of the Wakf Act, only the Wakf Tribunal has jurisdiction in the matter, and not the Civil Court.

21. However, in view of the decision of this Court in Sardar Khan vs. Syed Najmul Hasan (Seth) & Ors., AIR 2007 SC 1447, the Wakf Act will not be applicable to suits/appeals/revisions/proceedings commenced prior to 1.1.1996 when the Wakf Act came into force.

22. Learned counsel for the respondent, however, relied on the decision of this Court in Ramesh Gobindram vs. Sugra Humayun Mirza Wakf (2010) 8 SCALE 698. In the aforesaid decision it was held that eviction proceedings can only be decided by the Civil Court and not by the Wakf Tribunal."

27. The Said judgement has been followed by a Division Bench of this Court in the case of Dost Mohammad Vs. Chairman, U.P. Sunni Central Waqf Board and others (Civil Misc. Writ Petition No. 27566 of 2011) decided on 19.05.2011, wherein also placing reliance on the judgment of Apex Court, quoted above, this Court took the view that order passed on 01.01.1996 by Waqf Board, challenged before this Court are amenable to jurisdiction of the Waqf Tribunal.

28. It has been argued that in the case of Ali Makin Naqvi Vs. U.P. Shia Central Board of Waqf & others 2008 (4) AWC 3602, a Division Bench of this Court has held that the Board acting as a quasi judicial authority cannot review its order in the absence of power of review conferred under the Statute and had also observed that Section 83 of the Waqf Act, 1995 only provided an alternative remedy, but such remedy cannot bar the writ jurisdiction of the Court and it is the matter of discretion of the Court to look into the facts and circumstances of the each case, and in this case considering the fact that the Board had no power to review or recall its order, the plea of, alternative remedy ought to be rejected.

29. The power of review is not an inherent power but it is conferred under the Statute either specifically or by necessary implication. Neither the Act 1960 nor the Act 1995 conferred such power to the respondent no.1 and / or respondent no. 2.

30. It has also been argued by learned counsel for the petitioner that in view of long pendency of the writ petition since 1998 and the fact that this Court had stayed the order dated 28.9.1997 and affidavits have been exchanged between the parties and more than 17 years have passed. With regard to said argument of the learned counsel for the petitioner, reference can be made to the judgment of the Hon'ble Surpeme Court in the case of State of U.P. & another Vs. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti & others JT 2008 SC 489 wherein the Hon'ble Supreme Court has held that even if the writ petition has been pending for long or it has been admitted and interim order granted, this Court must address itself to the preliminary objection raised regarding availability of statutory remedy by the respondent in the counter affidavit in this case. Counter affidavit was filed on 27.7.2008 wherein the question of maintainability of writ petition and availability of statutory remedy was raised.

31. Having regard to the argument made regarding statutory remedy being available under the Waqf Act to the petitioner herein and the petitioner already having filed an appeal before the Tribunal against the order passed by the Collector, Agra under Section 52 impugned in this writ petition also, it would be appropriate that the petitioner is relegated to the statutory remedy available to him under the Waqf Act, as the issue raised in this writ petition involves disputed question of fact, which cannot be decided at the first instance by this Court sitting in writ jurisdiction. The Tribunal being the statutory forum available for deciding both questions or fact as well as law.

32. The writ petition is dismissed.

33. However, looking into the pendency of the writ petition in this Court and interim order granted in favour of the petitioner by this Court on 21.2.1998, it is directed that in case the petitioner files an appeal before the Tribunal within two weeks from the date of certified copy of this order is available to him, alongwith an application for stay, the Tribunal shall consider the application for stay in accordance with law and pass appropriate orders thereon, after giving proper opportunity of hearing to all concerned.

Order Date :- 04.05.2017/Arif