Ashfaq Ahmad @ Mohd. Ashfaq vs U.P. Sunni Central Board Of Waqf, ...
2018 Latest Caselaw 3803 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Reserved 
 
Court No. - 9
 
Case :- CIVIL REVISION No. - 111 of 2001
 
Revisionist :- Ashfaq Ahmad @ Mohd. Ashfaq
 
Opposite Party :- U.P. Sunni Central Board Of Waqf, Lko.
 
Counsel for Revisionist :- J.J.Munir,Tanisha Jahangir Monir
 
Counsel for Opposite Party :- Mahboob Ahmed,A.K.Goyal,A.P. Paul,B.B. Paul,Punit Kumar Gupta
 

 
Hon'ble Anjani Kumar Mishra,J.

Heard Ms. Tanisha Jahangir for the revisionist. None has appeared for the opposite party even in the revised call.

The instant revision is directed against the order dated 12.02.2001 passed in Misc. No. 31 of 1996, under Section 52 (2) read with Section 71 of the U.P. Muslim Waqfs Act, 1960.

By means of this application, an order dated 01.08.1995 passed by the Controller/President of the U.P. Sunni Waqf Board was challenged, which removed the applicant-revisionist from the post of Mutwalli of Waqf No. 122, Waqf Mohd. Noor Khan, Aligarh.

The application was filed on the ground that the order of the revisionists' removal from the post of Mutwalli had been passed without affording him adequate opportunity of hearing.

The case of the revisionist was that on the receipt of the show cause notice, he had filed his objection on 07.10.1995 and 21.10.1995 along with documents but he had no intimation of the date of hearing namely 25.05.1995 and without hearing him, the order of his removal was passed.

Before this Court, the submission of counsel for the revisionist is that the application has been rejected, despite a finding having been recorded that sufficient opportunity was not given to the applicant-revisionist by the Board, prior to passing the order of his removal.

The second contention is that the Civil Judge (Senior Division), Aligarh in the impugned order has held that it had no jurisdiction in the matter inasmuch as it was not a Waqf Tribunal as it had not been constituted in accordance with the provision of the Waqf Act, 1996. Along with the revision, the revisionist has annexed a copy of notification dated 11.03.1998, whereby the State Government in exercise of powers conferred by Section 21 of the U.P. General Clauses Act, 1904 read with Section 83 of the Waqf Act, 1995, constituted the Civil Judge (Senior Division), Aligarh as a Waqf Tribunal. It is therefore contended that the impugned order is vitiated on this ground as well.

I have considered the submissions made by counsel for the revisionist and perused the record.

The proceedings by the Board against the revisionist were under Section 55 of the U.P. Muslim Waqfs Act, 1960 and therein order was passed on 01.08.1995. The Misc. Case No. 31 was filed against this order before the Civil Judge (Senior Division), Aligarh, a duly constituted Waqf Tribunal under the provisions of the U.P. Muslim Waqfs Act, 1960. The U.P. Muslim Waqf Act, 1960 stood repeal on the enforcement of the Waqf Act, 1995 with effect from 01.01.1996, by Section 112, of the said Act. Sub-section (3) of Section 112 of the Waqf Act, 1995 reads as follows:-

"(3) If, immediately before the commencement of this Act, in any State, there is in force in that State, any law which corresponds to this Act that corresponding law shall stand repealed:

Provided that such repeal shall not affect the previous operation of that corresponding law, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under the corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act was in force on the day on which such things were done or action was taken."

The Misc. No. 31 of 1996 had been instituted on 16.01.1996, invoking Section 55(2) read with Section 71 of the U.P. Muslim Waqfs Act, 1960, which on that date, stood repealed.

In the context of the repeal of the Act of 1960, by Section 112 (3) of the Act of 1995, and taking it into account, the order dated 01.08.1995 direction removal of a Mutwalli would be deemed to be one under Section 64 of the Act of 1995.

Under the new Act of 1995, an order of removal of a Mutwalli is appealable to the Tribunal under Section 64 (4) of the Act. Therefore, on the date, the Misc. Case No. 31 of 1996 was registered, the order of the revisionists' removal from the post of Mutwalli was appealable under the Act of 1995. This appeal lay to the Tribunal, which on that point of time, consisted of a single member only.

Although, the constitution of the authority, which has passed the impugned order, namely the Civil Judge (Senior Division), Aligarh as a Waqf Tribunal under the Act of 1960, would come to an end with the repeal of the Act itself, however the case of the revisionist is that on the date, the impugned order was passed, the said authority had been constituted as a Waqf Tribunal under the Act of 1995, vide notification issued on 11.03.1998.

Under the circumstances, this Court is of the considered opinion that this case may be treated as a case, wherein a wrong provision has been mentioned. The revisionist had invoked Section 55(2) and Section 71 of the repealed Act of 1960 when in fact he should have invoked Section 64(4) of the Waqf Act, 1995 for challenging the order of his removal. Even if the Civil Judge (Senior Division), Aligarh, was not a duly constituted Waqf Tribunal under the Act of 1995 on the date, its jurisdiction was invoked, it was a duly constituted Waqf Tribunal under the Act of 1995, with effect from March, 1998, as is the case of the revisionist. It was therefore, empowered to decide the issue raised before it. The finding, recording lack of jurisdiction, therefore, is not liable to be sustained because the Civil Judge (Senior Division), Aligarh, on the date it passed the impugned order, was a duly constituted Waqf Tribunal empowered to decide an appeal under Section 64(4) of the Waqf Act, 1995.

This is so also because if the correct provision of law had been invoked by the revisionist, the resultant appeal, as provided by Section 64(4) of the Act of 1995, would lie to the same Tribunal which has passed the impugned order on 12.02.2001. Moreover, it is settled law that mere mention of a wrong provision of law does not preclude a court from passing an order which is otherwise within its jurisdiction to pass.

Coming to the first submissions of counsel for the revisionist that the order of his removal had been passed without an opportunity of hearing having been provided and that such a finding has also been returned in the impugned order, this Court is of the considered opinion that no such finding has actually been returned in the impugned order.

The sentence in the impugned order relied upon by the revisionist is being read in isolation. This sentence reads as follows:-

"Patrawali ke awlokan se yeh spasth hota hai ki awedak ko sunwayi ka samuchit awsar nahi diya gaya hai, mool patrawali ki karyawahi se samarthith nahi hota hai."

Again in the last paragraph of the impugned order, just above the operative portion, the Court below has observed as follows:-

"Uprokt vivechana se spasth hai ki pratham prarthi ko sunwayi ka sumuchit awsar diya gaya hai,........"

This Court is therefore, of the considered opinion, that a categorical finding has been returned that the order, removing the revisionist from the post of Mutwalli, had been passed after affording him due opportunity of hearing and this finding has been returned after perusing the record of the proceedings before the Board. At best, this finding may not be very happily worded but the intent of the order clearly emerges from a perusal of the order as a whole. The first submission of counsel for the revisionist is therefore repealed.

Although, the impugned order holds that the Civil Judge (Senior Division), Aligarh, had no jurisdiction to decide the matter, yet the matter has been decided by it and the question as to whether the order of removal was passed with or without adequate opportunity of hearing to the revisionist, has been decided against him.

Moreover, this Court has above, come to the conclusion that the authority which has passed the impugned order was a duly constituted Waqf Tribunal under the Waqf Act, 1995 and, therefore, was competent to determine the issue before it, which in the proper course should have been before it in an appeal as provided under the 1995 Act. Therefore, even if the finding on the question of jurisdiction returned by the Civil Judge (Senior Division), Aligarh, is set aside, the same would still not detract from the finding returned on the question of opportunity of hearing.

Under the circumstances, this Court is now examining the challenge to the finding that adequate opportunity of hearing had been provided to the revisionist before the order of his removal was passed. This finding no doubt has been challenged in the revision but there is no material in support of such challenge. The only material is the alleged objection to the show cause notice, which is stated to have been sent to the Board by the revisionist through registered post. However, the receipt of its dispatch is not available on record as the revisionist has failed to file the same.

Under the circumstances, this Court is constrained to hold that the revisionist has not been able to establish his challenge to the finding that adequate opportunity of hearing had been granted to him by the Board.

Under the circumstances, the finding in the impugned order that the Civil Judge (Senior Division), Aligarh had no jurisdiction to decide the matter is set aside. However, the other finding returned by it, is liable to be and is hereby sustained.

As a consequence, this revision fails and is dismissed.

The original record tagged with this revision be returned back.

Order Date :- 19.11.2018

Mayank