Allahabad High Court
C/M Waqf Masjid Thru. Secy. Mohd. ... vs Waqf Tribunal, U.P., Lucknow And ... on 14 March, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 22 A.F.R.
Case :- CIVIL REVISION No. - 7 of 2023
Revisionist :- C/M Waqf Masjid Thru. Secy. Mohd. Ismail And Another
Opposite Party :- Waqf Tribunal, U.P., Lucknow And Others
Counsel for Revisionist :- Mohd Shadab Khan
Counsel for Opposite Party :- Syed Aftab Ahmad
Hon'ble Manish Mathur,J.
1. Heard Mr. Mohd Shadab Khan learned counsel for revisionist and Mr. Syed Aftab Aftab Ahmad learned counsel for opposite parties 4 and 5. The opposite parties 1,2 and 3 being merely proforma in nature, notices are dispensed with.
2. Revision under Section 83(9) of the Waqf Act 1995 has been filed against order dated 26th December, 2022 passed in Case No. 37 of 2022 whereby the suit proceedings have been dismissed on the ground that it has become infructuous.
3. Learned counsel for revisionist submits that the aforesaid case had been filed before the Waqf Tribunal under Section 83(2) of the Act of 1995 against order dated 16th February, 2022 whereby the opposite party No.4 was inducted as a Member of the Committee of Management. It is submitted that the aforesaid suit was filed by the revisionist in his capacity as Mutawalli/Secretary of the Managing Committee of the Waqf as well as in his individual capacity. It is submitted that by means of impugned order, it has been noticed that subsequent to filing of the suit, the revisionist has been removed from the post of Mutawalli/Secretary by means of order dated 20th September, 2022 in terms of Section 67(6) of the Act, 1995 and therefore the cause of action having come to an end, the case itself was dismissed as infructuous.
4. Learned counsel for revisionist submits that the Waqf Tribunal has clearly erred in passing the impugned order while ignoring the fact that suit proceedings were maintainable in the individual capacity of revisionist apart from his status as Mutawalli/Secretary of the Committee of Management. He has adverted to Section 83(2), Section 32(2)g) and Section 3(i)(k) of the Waqf Act 1995 to submit that the revisionist would come within definition of not only a person interested but also a person aggrieved by the initial order and these are the aspects which have not been considered by the Tribunal by passing the impugned order.
5. Learned counsel appearing on behalf of opposite party No. 4 and 5 has submitted that it was on the application made by opposite party No.5 that the impugned order has been passed dismissing the case as having become infructuous. It is submitted that there is no error in the impugned order since the case was filed by the revisionist in his capacity as Mutawalli/Secretary of the Managing Committee of the waqf and since during pendency of proceedings, he was removed from the said post, the cause of action at the instance of revisionist came to an end since he lost his locus standi to maintain the suit. It is further submitted that the revisionist does not come within the definition of either any person interested in a waqf or any other person aggrieved by the order made under the Act and therefore the impugned order rejecting the suit as infructuous has been rightly passed.
6. Considering submissions advanced by learned counsel for parties, it is evident that a suit or proceeding can be instituted before a waqf tribunal in terms of Section 83(2) of the Act of 1995 which authorizes any mutawali or person interested in a waqf or any other person aggrieved by an order made under the Act or Rules made thereunder to make an application before the Tribunal within the specified time frame for determination of any dispute, question or other matter relating to waqf.
7. In the present case, admittedly the plaint was filed by revisionist not only in his capacity as Mutawalli/Secretary of the Managing Committee of waqf but also in his individual capacity. The order against which the suit proceedings were instituted is dated 16th February, 2022 pertaining to inclusion of opposite party No.4 as a member of the managing committee of the waqf. It is also admitted that during pendency of proceedings, revisionist was removed from his post of Mutawalli/Secretary of the managing committee of waqf vide order dated 20th September, 2022.
8. For the purposes of maintaining any proceeding before the waqf tribunal in terms of Section 83(2) of the Waqf Act of 1995, a person should either be a mutawalli, a person interested in a waqf or any other person aggrieved by an order made under the Act. Admittedly at the time of filing of proceedings, revisionist was a mutawalli. Question as such requiring adjudication is whether the revisionist would also come within definition of a person interested in a waqf as well as any other person aggrieved by order made under the Act ?
9. For the purposes of determination of aforesaid question, it is necessary to advert to definition of 'a person interested in a waqf' as defined under Section 3(k) of the Act, 1995 which is as follows:-
"3(k) "person interested in a [wakf]" means any person who is entitled to receive any pecuniary or other benefits from the [wakf]and includes--
(i) any person who has a right to [offer prayer] or to perform any religious rite in a mosque, idgah, imambara, dargah,[khanqah, peerkhana and Karbala], maqbara, graveyard or any other religious institution connected with the [wakf] or to participate in any religious or charitable institution under the [wakf];
(ii) the [wakif] and any descendant of the [wakif] and the mutawalli;"
10. Evidently a person interested in a waqf is any person who is entitled to receive any pecuniary or other benefits from the waqf. The provision is inclusive of any person who has a right to offer prayer or perform any religious rite in a religious place as defined thereunder.
11. It is not denied by learned counsel for opposite party that the revisionist has a right to offer prayers or to perform religious rite in the religious institution for which the waqf has been created but submits that the aforesaid right would be restricted to only those persons who receive any pecuniary or other benefits of the waqf only and as such would exclude the revisionist who after removal from the post of Mutawalli/Secretary of the managing committee of the waqf does not derive any pecuniary or other benefits of the waqf. The aforesaid submission of learned counsel for opposite party No.4 and 5, though attractive at first glance, does not hold any good ground in view of definition clause itself which is an inclusion clause and not an exclusion clause and is therefore required to be seen ejusdem generis with the primary clause whereby a person interested in a waqf has been defined to be any person entitled to receive any pecuniary or other benefits from the waqf. Such other benefits have been explained as an inclusionary clause to include a person who has a right to offer prayer or to perform any religious rite in the religious institution concerned. Once it is admitted that petitioner even without holding the post of Mutawalli or Secretary of the managing committee of the waqf has a right to offer prayers or to perform any religious rite in the religious institution of the waqf, the revisionist would come within definition of a person interested in the waqf as defined under Section 3(k) of the Act, 1995.
12. With regard to an inclusionary clause in a statutory provision, Hon'ble Supreme Court in the cases of P. Kasilingam and others versus P.S.G. College of Technology and others reported in 1995 Supp (2) Supreme Court Cases 348 and N.D.P. Namboodripad versus Union of India and others reported in (2007) 4 SCC 502 has held as follows:-
P. Kasilingam and others versus P.S.G. College of Technology and others
"A particular expression is often defined by the Legislature by using the word 'means' or the word 'includes'. Sometimes the words 'means and includes' are used. The use of the word ' means' indicate that "definition is a hard- and-fast definition and no other meaning can be assigned to the expression that is put down in definition." [See Gough v. Gough, (1891) 2 QB 665; Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court,(1990 (3) SCC 682,717]. The word 'includes' when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include. The words 'means and includes', on the other hand, indicate "an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions."
N.D.P. Namboodripad versus Union of India and others
"19. Justice G.P. Singh in his treatise Principles of Statutory Interpretation (10th Edn., 2006), has noticed that where a word defined is declared to "include" such and such, the definition is prima facie extensive, but the word "include" when used while defining a word or expression, may also be construed as equivalent to "mean and include" in which event, it will afford an exhaustive explanation of the meaning which for the purposes of the Act must invariably be attached to the word or expression [vide pp. 173 and 175 referring to and relying on the decisions of this Court in Municipal Council, Raipur v. State of M.P. [(1969) 2 SCC 582 : AIR 1970 SC 1923] , South Gujarat Roofing Tiles Manufacturers Assn. v. State of Gujarat [(1976) 4 SCC 601 : 1977 SCC (L&S) 15 : AIR 1977 SC 90] , Hindustan Aluminium Corpn. v. State of U.P. [(1981) 3 SCC 578 : 1981 SCC (Tax) 280 : AIR 1981 SC 1649] and Reserve Bank of India v. Peerless General Finance & Investment Co. Ltd. [(1987) 1 SCC 424] It is, therefore, evident that the word "includes" can be used in interpretation clauses either generally in order to enlarge the meaning of any word or phrase occurring in the body of a statute, or in the normal standard sense, to mean "comprises" or "consists of" or "means and includes" depending on the context."
13. Upon applicability of aforesaid judgment, it is evident that the inclusionary clause would directly relate to other benefits being derived from the waqf by any person who is entitled to such benefit and would therefore come within definition of a person interested in a waqf.
14. Furthermore under Section 83(2) of the Act 1995, an application for the purposes of determination of any dispute, question or other matter relating to waqf is also maintainable at the behest of 'any other person aggrieved by and order made under this Act or Rules'.
15. Although the definition of person aggrieved has not been provided in the Act of 1995 but the same has been explained in a number of judgments not only of this Court but also of the Hon'ble Supreme Court as laid down in the case of Ayaaubkhan Noorkhan Pathan versus State of Maharashtra and others reported in (2013) 4 SCC 465 in the following manner:-
10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one whose right or interest has been adversely affected or jeopardised. (Vide Shanti Kumar R. Canji v. Home Insurance Co. of New York [(1974) 2 SCC 387 : AIR 1974 SC 1719] and State of Rajasthan v. Union of India [(1977) 3 SCC 592 : AIR 1977 SC 1361] .
xxx xxxx xxxxx
12. In A. Subash Babu v. State of A.P. [(2011) 7 SCC 616 : (2011) 3 SCC (Civ) 851 : (2011) 3 SCC (Cri) 267 : AIR 2011 SC 3031] , this Court held : (SCC pp. 628-29, para 25)
"25. ... The expression ''aggrieved person' denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which the contravention is alleged, the specific circumstances of the case, the nature and extent of the complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant."
16. The provision of Section 83(2) of the Act 1995 as such clearly includes any other person aggrieved by an order made under this Act or Rules. It is not disputed that the order dated 16th Febraury, 2022 pertaining to inclusion of opposite party No.4 as a member of the committee of management has been passed in terms of Section 32(2)(g) pertaining to powers of the Board to appoint and remove Mutawalli in accordance with provisions of the Act. The aforesaid power is clearly referable to Section 3(i) of the Act of 1995 which defines Mutawalli in the following manner:-
"3(i) "mutawalli" means any person appointed, either verbally or under any deed or instrument by which a 1[waqf] has been created, or by a competent authority, to be the mutawalli of a 1[waqf] and includes any person who is a mutawalli of a 1[waqf] by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any 1[waqf] or 1[waqf] property:
Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office-bearer of such committee or corporation:
2[Provided further that the mutawalli shall be a citizen of India and shall fulfil such other qualifications as may be prescribed:
Provided also that in case a waqf has specified any qualifications, such qualifications may be provided in the rules as may be made by the State Government;]"
17. Upon consideration of the said provisions of the Act, it is clear that the order dated 16th February, 2022 which was under challenge at the behest of revisionist was passed by the board exercising its power under Section 32(2)(g) of the Act of 1995 read with Section 3(i) of the Act pertaining to any person, committee or corporation for the time being managing or administering any waqf or waqf property.
18. It is therefore evident that despite the fact that revisionist was removed from his post as Mutawalli/Secretary of the managing committee of waqf, the application filed by him under Section 83(2) of the Act, 1995 in his individual capacity was clearly maintainable not only as a person interested in a waqf but also as a person aggrieved by order dated 16th February, 2022 passed in terms of Section 32 of the Act.
19. A perusal of the impugned order reveals the fact that revisionist's application under Section 83(2) of the Act of 1995 has been dismissed as infructuous only on the ground that he has been removed from the post of Mutawalli/Secretary of the managing committee of waqf. The Tribunal has clearly not adverted to other provisions of Section 83(2) of the Act of 1995 pertaining to whether the suit was maintainable in individual capacity of revisionist either as a person aggrieved or as a person interested in the waqf.
20. The aspect of a person aggrieved by the order dated 16th February, 2022 was also required to be seen in the context of pleading made in the plaint particularly with regard to paragraph 16 thereof in which the revisionist has clearly stated that the person inducted in the management of the waqf have no concern with the management and that their inclusion is also barred under provisions of Section 32(2)(g) of the Waqf Act, 1995. The aforesaid pleadings made by revisionist in his plaint have clearly been ignored by the Tribunal while passing the impugned order.
21. Considering the aforesaid factors, the impugned order dated 26th December, 2022 passed by the Waqf Tribunal in case No. 37 of 2022 being against provisions of Act,1995 is hereby set aside.
22. Consequently the revision succeeds and is allowed. Parties to bear their own cost.
Order Date :- 14.3.2023
prabhat
