Smt. Kaneez Fatima & 5 Ors. vs Shia Central Board Of Waqf U.P. ...
2017 Latest Caselaw 5849 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 04.10.2017
 
Delivered on 27.10.2017
 
Court No. - 2
 
Case :- MISC. BENCH No. - 7298 of 2015
 
Petitioner :- Smt. Kaneez Fatima & 5 Ors.
 
Respondent :- Shia Central Board Of Waqf U.P. Thru. & 3 Ors.
 
Counsel for Petitioner :- M.A. Siddiqui
 
Counsel for Respondent :- S.A.A. Rizvi,Shafiq Mirza
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Rajnish Kumar,J.

Delivered by Hon'ble Rajnish Kumar,J.

1. Heard Shri M.A. Siddiqui, learned counsel for the petitioners, Shri S.A.A. Rizvi, learned counsel for opposite party Nos. 1 to 3 and Shri Shafiq Mirza, learned counsel for opposite party no. 4.

2. The petitioners have approached to this Court with the prayer for a direction to opposite party Nos.1 to 3 to produce the alleged order of Board dated 18.3.2015 which finds place in the letter of opposite party no.3 dated 13.7.2015 and also copy of register of wakf, Wakf No.I-743, District Saharanpur and the proposal submitted by opposite party no. 4 for raising the building and reports etc. A further prayer has been made for quashing of order of Board and proposal of opposite party no. 4 for raising the shops etc. It has also been prayed that a direction be issued to the opposite parties not to damage, dismantle or demolish the graves and cause no obstruction in the user of graveyard as a graveyard.

3. The writ petition has been filed stating that the land in question i.e. Plot No.388 and 389 is a graveyard since time immemorial. It appears that in 1294 F, its number was 713, which later on was numbered as Plot Nos. 388 and 389. According to petitioners as much as they know, the graveyard in question on the aforesaid plots was controlled and managed by the petitioner's ancestors and their ancestor's graves very much exist and in the Wakf Board also name of petitioner's ancestors as Mutawalli was recorded. Wakf Board used to issue notices to the ancestors of petitioners as Mutwalli of the wakf in question. The opposite party no. 4 in some way got his name recorded in the Wakf property No.I-743, District Saharanpur. On 30.3.1995, the Wakf Board issued a sanad indicating the opposite party no. 4 and husband of petitioner no. 1 as co-mutawalli however, now the opposite party no. 4 states himself to be the sole Mutwalli. The opposite party no. 4 got recorded his name as well as name of three brothers in the revenue records and in that connection, criminal proceedings were launched against him. The said entry was again corrected. The petitioners categorically stated that they do not wish to raise the question of mutwalliship. The petitioners stated that they are affected and aggrieved by permission which was granted by the Board to the opposite party no. 4 to raise constructions in the graveyard in the shape of shops vide order dated 18.3.2015 which finds place in the letter of opposite party no.3 dated 13.07.2015 and the letter of Commissioner, Saharanpur Division, dated 01.07.2015. But the copy of the said order dated 18.3.2015 has not been provided to them.

4. After coming to know about the aforesaid order, petitioner no. 1 made an application before the authorities concerned and it appears that on her application, a letter dated 01.07.2015 was issued by the Commissioner, Saharanpur Division, and the Wakf Board vide letter/order dated 19.5.2015, on the application of petitioner no. 6 made in the month of May 2015, had ordered to stop the construction as enquiry has been ordered in the matter. As a result thereof, though digging was done in the month of May but construction was not carried on. However, now vide letter dated 13.7.2015, opposite party no. 3, without hearing the petitioners has allowed for raising of construction with the rider that no grave be damaged. Subsequently, opposite party no.3 recalled the order dated 19.5.2015 by which construction was stopped and has permitted the opposite party no. 4 to raise construction. Further vide letter dated 19.5.2015, it has been stated that on the application of the petitioner nos. 1 and 6 some inquiry was going on but in the letter dated 13.7.2015, there is no mention, whereas the Commissioner had written to the Additional District Magistrate (Finance and Revenue) with a copy to the Superintendent of Police calling for the reports, the construction work being stopped vide order dated 19.5.2015, how the construction is going on, and obviously, reports etc have come but the opposite party no. 3 has ignored all and passed the order, and as such now full scale digging is to be started.

5. It has further been stated in the writ petition that the graveyard in question has been recorded since 1294 F and no prior record is available. It has further been stated that as a matter of fact, not a single feet vacant land is available and when for burial of a dead body, grave is to be dug out, normally, bones of the dead body are found. Some times place is changed and the bones are again buried and as such the letter dated 13.07.2015 giving a colour that the shops would be raised only on vacant land and graves would not be demolished or disturbed is mere a pretext. Once the construction is raised, there would remain nothing to be inquired and decided and as such it is in the interest of wakf to stop the digging and raising of the construction. It has further been stated that petitioner no. 1 applied for inspection of the papers and copies of the documents but she was not even permitted for inspection. The copy of the order dated 18.03.2015 and the resolution have not been provided. Thereafter, when the petitioners came to know that election of the Board has taken place much after 18.03.2015 and on 18.3.2015, there was no Board and that is why deliberately neither copies are being allowed nor the inspection was being permitted, whereas as per provision of Wakf Act, 1995 the record of the Wakf Board can be inspected and copies on payment of requisite fee be issued. There was some dispute regarding existence and continuation of Shia Wakf Board and an official was appointed to manage the same. However, it was discontinued and now the elected Board is there. It is also stated that the opposite party no. 4 has also damaged half portion of a pucca grave, commonly known as the grave of grandfather of the husband of the petitioner no. 1 and on the effort of the petitioners now only half of the same remains and the broken portion can be seen on the spot by the naked eyes. The land in question is still recorded in the revenue records as graveyard. It has been alleged that the opposite party no. 4 openly says that no burial would at all be permitted and he is interested in earning the money. The graveyard in question being situated by the side of the Chilkana Saharanpur road as such opposite party no. 4 is determined to convert it into a commercial complex and the opposite party Nos.1 to 3 appears to be hands in glove with the opposite party no. 4.

6. The opposite party Nos.1, 2 and 3 have filed their counter affidavit raising preliminary objection that the writ petition is not maintainable and is liable to be dismissed for the reasons that the allegation of petitioners that the place/land over which the construction is raised is a graveyard is wrong. Had there being a graveyard, the persons residing nearby should have filed a public interest litigation and the petitioners would not have filed the present writ petition in their personal capacity because a graveyard is neither a personal nor a private property of any one. Therefore, the intention of the petitioners appears to be malafide or for some personal gain.

7. It has also been pointed out in the counter affidavit that the place in dispute is not a graveyard as has been alleged by the petitioners. If there was a graveyard, the public at large would have come before the Shia Wakf Board or the local administrative authorities against the construction which was said to have been raised by the Mutawalli but strangely, no one from the local area has come forward except the six petitioners who are closely related to one another. Learned counsel for the opposite parties No. 1 to 3 has further submitted that the property in question is a Wakf property and under the Wakfs Act, 1995 the Board is fully empowered to develop a Wakf land as educational institution, market etc. to improve the income of the Wakf which is to be spent in religious or charitable purposes and in the above circumstances, in order to protect the Wakf property which is being encroached by the unauthorized persons, the Board has granted permission to the Mutawalli for raising the shops.

8. It has further been contended that the contention of the petitioners that the property is graveyard, is incorrect, false and petitioners are liable to put to strict proof of the allegations to the effect that it is a graveyard. It is also submitted that comprehensive researches made by different scientists have laid down that it can take decades for a body to decay say about 15 to 20 years in its decomposition but which type of graveyard is the place in dispute, that inspite of digging being carried out by the Mutawalli, not even a single part of decomposed body has come out, meaning thereby, the place which is alleged to be a graveyard by the petitioners was never a graveyard.

9. A rejoinder affidavit has been filed by the petitioners to the counter affidavit filed by the opposite parties no. 1 to 3 reiterating the submissions made in the writ petition.

10. Subsequently, an application for dismissal of the writ petition has been filed on behalf of the opposite party Nos. 1 and 2 raising an objection to the maintainability of the writ petition on the ground that the petitioners have got statutory/alternative remedy to make a reference under sub section 2 of section 83 of Wakf Act, 1995 before the Wakf Tribunal. In this regard, reliance has also been placed on the judgment passed by the Hon'ble Apex court in the case of Board of Wakf, West Bengal Vs. Anis Fatma Begum and another; 2010 AIOL 805 (SC).

11. A rejoinder affidavit to the affidavit filed in support of application for dismissal was filed by the petitioners alleging therein that existence of statutory alternative remedy is not a bar for exercise of power by this Court in writ jurisdiction under Article 226 of the Constitution of India.

12. Similar objection regarding the maintainability of the writ petition has been raised by the opposite party no. 4 that the petitioners have alternative and statutory remedy under sub section 2 of Section 83 of Wakf Act, 1995 before the Wakf Tribunal.

13. The provisions of Section 83 of the Wakf Act on reproduction, reads as under:-

"83. Constitution of Tribunals, etc.-(1) The State Government shall, by notification in 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 Act of each of such Tribunals.

(2) Any mutawalli or person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the Wakf.

(3). Where anyapplication made under sub-section (1) relates to any wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawallu or any one of the mutawallis of the wakf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter:

Provided that the State Government may, if it is of opinion that it is expedient in the interest of the wakf or any other person interested in the wakf or the wakf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such wakf or wakf property transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh.

(4) Every Tribunal shall consist of one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District Sessions or Civil Judge, Class I, and the appointment of every such person may be made either by name or by designation.

(5) The Tribunal shall be deemed to be a civil Court and shall have the same powers as may be exercised by a civil Court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, or executing a decree or order :

(6) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), the Tribunal shall follow such procedure as may be prescribed.

(7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil Court.

(8) The Execution of any decision of the Tribunal shall be made by the Civil Court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908).

(9) No appeal shall be against any decision or order whether interim or otherwise, given or made by the Tribunal :"

Provided provided that a High Court, may on its own motion or one the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination any may confirm, reverse or modify such determination or pass such other order as it may thinks fit."

14. Thus, Section 83(1) of Wakf Act, 1995 provides that the State Government shall by notification in the Official Gazette constitute as many Tribunals as it may think fit, for the determination of any dispute or question or other matter relating to a Wakf or Wakf property under this Act and define the local limits and jurisdiction under Act of each of such Tribunals. Meaning thereby, the Tribunal is empowered to determine any dispute or question relating to Wakf property.

15. As per Sub-section 2 of Section 83 any Mutwalli or person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application to the Tribunal for determination of any dispute, question or other matter relating to the Wakf.

16. It has been provided in Section 83 (5) that the Tribunal shall be deemed to be a civil Court and shall have the same powers as may be exercised by a civil Court under the Code of civil Procedure, 1908 (5 of 1908) while trying a suit or executing a decree or order.

17. Sub section (6) of 83 states that notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), the Tribunal shall follow such procedure as may be prescribed.

18. As per Sub-section (7) of Section 83, the decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil Court.

19. According to Sub-section (9) of Section 83, no appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal.

20. However, it has been provided that a High Court, may on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may thinks fit.

21. Considering the submission of the parties and provisions of Section 83 of Wakf Act, we are of the considered opinion that at the first instance, in regard to the dispute an application should be filed before the Wakf Tribunal constituted under Section 83 itself which has ample power to examine and decide the dispute. The proviso added to section 83 clarifies that the High Court has revisable power regarding orders passed by the Tribunal.

22. The opposite party Nos. 1 to 3 in regard to the preliminary objection invited attention of the Court towards para 10 of the judgment of the Hon'ble Apex Court in Board of Wakf, West Bengal Vs. Anis Fatma Begum and another (Supra) that all matters pertaining to Wakfs should be filed at the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 for deciding disputes relating to Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightway under Article 226 of the Constitution of India.

23. It has also been held in para 11 of the said judgment that the Wakf Act, 1995 is a parliamentary statute which has provided for constitution of a special Tribunal for deciding disputes relating to Wakfs. The Hon'ble Apex Court has also held in para 17 of the aforesaid judgment that under the proviso to Section 83 of the Wakf Act, 1995 a party aggrieved by the decision of the Tribunal can approach to 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. As such the proviso makes 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 to the Tribunal constituted under the Wakf Act, 1995 before approaching the High Court.

24. In view of the above, our view is also fortified by the judgment of the Hon'ble Supreme Court. We therefore, decline to entertain this writ petition on the ground of availability of alternative and statutory remedy before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995.

25. However, it is clarified that we have not expressed any opinion on the merits of the case.

26. The writ petition is, accordingly, dismissed.

27. There shall be no order as to costs.

Dt./-27.10.2017

Pks.