Bombay High Court
Mr. Iliyas Hanif Qureshi : vs Tembi Muslim Jamat Masjid Trust : on 2 November, 2012
Bench: R. M. Savant
cra-639.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.639 OF 2011
Mr. Iliyas Hanif Qureshi : Applicants
and others (Org.Respondent Nos. 3 to 11)
Versus
Tembi Muslim Jamat Masjid Trust : Respondents
Through Chairman (Org.Applicant Nos. 1 to 8)
Ishaque Gulab Nabi Narvel & ors. (Respondent Nos.9 & 10 Org.
Respondent Nos. 1 and 2.)
Mr. Uday P Warunjikar for the Applicants.
Mr. Javed Shaikh for the Respondent Nos. 1 to 8
Mr. R M Momin for the Respondent Nos.9 and 10.
CORAM : R. M. SAVANT, J.
DATE : 2nd November 2012
ORAL ORDER
1 Admit, with the consent of the learned counsel appearing for the
parties taken up for hearing forthwith and heard.
2 The revisionary jurisdiction of this Court under Section 114 of the
Code of Civil Procedure is invoked against the order dated 16/7/2011 passed
by the Presiding Officer, Maharashtra State Wakf Tribunal, Aurangabad by
which order the order dated 22/5/2009 and the consequent elections dated
31/5/2009 were quashed and set aside, and the appointment of the Applicants
herein who were the Respondent Nos.3 to 11 as Mutawalli of Tembhi Naka
Muslim Jamat Masjid, Thane was also set aside and the said Respondents were
directed to pay Rs.1000/- each to each of the Applicants by way of costs.
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3 The issue as regards the election of the Applicants herein as
Mutawallis has had a chequered history. The Respondent Nos.1 to 8 herein
filed Application No.29 of 2009 before the Maharashtra Wakf Tribunal,
Aurangabad questioning the order dated 22/5/2009 by which order the Wakf
Board had directed the elections to be held to the Wakf in question. The said
Application filed by the Respondent Nos.1 to 8 herein was rejected by the Wakf
Tribunal by the judgment and order dated 5/9/2009. This resulted in Civil
Revision Application No.168 of 2009 being filed by the Respondent Nos.1 to 8
herein in this Court. By order dated 20/4/2010 this Court set aside the order
passed by the Wakf Tribunal dated 5/9/2009 and the matter was remanded
back to the Wakf Tribunal for a de-novo consideration of the Application No.29
of 2009. On such remand, the Wakf Tribunal by its judgment and order dated
26/7/2010 allowed the said Application and thereby set aside the order dated
22/5/2009 as also set aside the elections of the Applicants herein which were
held consequent thereto. The said order dated 26/7/2010 was challenged by
the Applicants herein by filing Civil Revision Application No.499 of 2010. This
Court by order dated 5/4/2011 set aside the order dated 26/7/2010 on the
ground that the issue of election of the Applicants herein was not a issue
before the Wakf Tribunal, and the only issue before the Tribunal was the
legality and validity of the order dated 22/5/2009, and therefore, the Tribunal
without there being any challenge to the elections could not have set aside the
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said elections. This Court therefore remanded the matter back to the Tribunal
for de-novo consideration, and whilst so remanding, this Court also permitted
the Respondent Nos.1 to 8 herein to amend the said Application No.29 of 2009
so as to incorporate a challenge to the election of the Applicants herein, and
consequently the order dated 3/7/2009 by which order approval to the said
elections was given by the Chief Executive Officer. It seems that pursuant to
the said order dated 5/4/2011 passed by this Court in Civil Revision
Application No.499 of 2010 that the Applicants amended the Application
No.29 of 2009 so as to incorporate the averments in respect of the challenge to
the order dated 3/7/2009 and thereby challenged the elections of the
Applicants herein.
4 After the remand the Tribunal directed that the notices be issued
to the Respondents to the said Application i.e. the Applicants herein. The
notices were accordingly issued. The Tribunal proceeded to hear the said
Application by observing that since the addresses mentioned in the notices are
the same as mentioned in the Application and since no change of address has
been communicated, the absence of the Respondents seems to be deliberate
and perhaps with some sinister design to abuse the process of law again and
again and probably they might have lost the interest. The Tribunal further
observed that the notices are returned unserved on false ground. The Tribunal
after so observing in respect of the service on the Respondents proceeded to
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consider the matter on merits, and on the basis of the material on record
reached a conclusion that the appointment of the Respondent Nos.3 to 11 in
the said Application seems to be result of an unfair and mock election and
cannot be held to be fair and by following due process of law. The Tribunal
further went on to observe as follows :-
" I can not restrain myself from expressing the acute
anguish that the Regional Wakf Officer and the Ld. CEO
both have made mockery of the most respected
democratic process which is working successfully since
last 60 years in the whole nation."
The Tribunal therefore reached a conclusion that the Respondents have been
elected by a process which has been manipulated and sacrificed at the altar of
self pride and interest of the Respondent Nos. 3 to 11. The Tribunal further
observed that the Respondents who got elected through such a suspicious
mode cannot be said to be validly elected members and cannot constitute panel
of management of a most pious and religious institution. The Tribunal
therefore set aside the order dated 22/5/2009, the order dated 3/7/2009 as
also the elections of the Applicants herein who wee the Respondent Nos.3 to
11. It would be relevant to reproduce the operative part of the order of the
Tribunal :-
"1] Application No.29/2009 is hereby allowed.
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2] The order dated 22.5.09 and the consequent
elections dated 31-5-2009 held pursuant thereto both
are quashed and set aside.
3] The impugned order dted 3-7-09 being illegal is
also set aside.
4] The appointment of respondents Nos.3 to 11 as
Mutwalli of Tembhi Naka Muslim Jamat Masjid, Thane
is also set aside.
5] However for the reasons stated above the Wakf
Board is directed to immediately frame the scheme and
then hold fresh elections if provided by scheme and
appoint the mutwalli according to law. It is at liberty to
make interim arrangement according to law. The Board
shall complete this exercise within 6 months hereof.
6] The Respondents Nos.3 to 11 shall pay Rs.1000/-
each to each of the applicants by way of costs and bear
their own. The Respondent No.1 & 2 shall bear their
own costs."
As indicated above, it is the said order dated 16/7/2011 which is impugned in
the above Civil Revision Application.
5 Heard the learned counsel for the parties. The principal
contention of the learned counsel appearing for the Applicants Shri Warunjikar
is that the impugned order has been passed without hearing the Applicants
herein. The learned counsel would contend that the order ex-facie discloses
that the service on the Applicants herein i.e. the Respondents in the
Application was not complete and the Tribunal on a premise that the
Respondents are avoiding service has proceeded to consider the matter on
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merits. The learned counsel would contend that the Tribunal has mis-directed
itself by making caustic comments which appear in para 5 of the impugned
order. If the Tribunal was of the view that the Respondents were avoiding
service of notice, the Tribunal ought to have directed the Applicants therein to
serve the Respondents by having a recourse of other modes of service and only
thereafter the Tribunal could have proceeded with the hearing of the
Application. The impugned order in so far as it holds that the elections of the
Applicants herein are illegal and imposes costs on the Applicants herein as a
serious consequence for the Applicants herein and has the effect of having an
impact on the legality of the tenure of the Applicants herein as Mutawallis
pursuant to the elections held. The learned counsel therefore submitted that
the impugned order is required to be set aside on the said ground.
6 Per contra, the learned counsel appearing for the Respondent Nos.
1 to 8 Shri Shaikh would contend that the conduct of the Applicants herein
shows that they were deliberately avoiding service of the notices as the
addresses mentioned in the Application and the addresses mentioned 0n the
notices were same and if the notices were served on the earlier occasions there
was no reason why the notices could not be served after the remand and the
same can be attributed only to the fact that the Respondents therein were
avoiding service. The learned counsel would contend that it was for the
Applicants herein in fact to produce the order passed by this Court before the
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Wakf Tribunal so that the proceedings could have been recommenced. The
Applicants herein having not done so are now seeking setting aside of the
order on the ground that they were not served in the Application after its
remand.
7 The learned counsel appearing for the Respondent Nos.9 and 10
Shri Momin would submit that the addresses in the Application and the
addressed on the notices were same, and therefore, the observations made by
the Tribunal in the impugned were justified. However he ultimately leaves it to
this Court.
8 Before adverting to the contentions which have been urged on
behalf of the parties, it would be apposite to consider one aspect which has
relevance in so far as the present proceedings are concerned, as per the scheme
at present which is applicable to the Wakf in question and the tenure of the
managing committee of the Wakf is for a period of one year. The said fact is
also evidenced by the order dated 3/7/2009 by which the approval was again
given to the elections of the Applicants herein and in which it has been stated
that the tenure of the Applicants herein i.e. the managing committee would be
for a period of one year. The said fact is also not disputed by the Applicants
herein inasmuch as there is an averment in Para 8 on page 9 accepting further
that the tenure of the managing committee is for a period of one year.
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Therefore the tenure of the Applicants as Mutawallis has come to an end long
back in the year 2010
9 Now coming to the submissions of the learned counsel for the
parties. In so far as the service of the notices on the Respondent Nos.3 to 11 in
the Application i.e. the Applicants herein is concerned, though there can be no
dispute about the fact that the addresses mentioned on the fresh notices on
remand and the addresses mentioned in the Application were one and the
same, the fact that the said notices were not served and there is no report to
the said effect cannot be disputed. As indicated above, the Tribunal in spite of
the said situation has proceeded to consider the said Application No.29 of 2009
on merits by observing that the Respondent Nos.3 to 11 have deliberately and
perhaps with some sinister design to abuse the process of law are avoiding the
service and therefore the notices have been returned unserved on false ground.
In the absence of any report to the said effect the Tribunal has proceeded on
the said assumption. If the Tribunal was of the view that the Respondent Nos.
3 to 11 in the Application are avoiding the service, the Tribunal would have
directed the Applicants to resort to other modes of service and after receiving
the report could have thereafter proceeded to hear the matter on merits.
Having not done so, in my view, the order stands vitiated on the ground that
the principles of natural justice have been violated as the order impugned has
been passed without hearing the Respondent Nos. 3 to 11 in the Application.
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This has also to be considered in the context of the fact that the Tribunal has
recorded findings as regards the legality of the elections of the Respondent
Nos. 3 to 11 and also imposed costs on them, which is obviously prejudicial to
the said Respondents. There is therefore merit in the submissions of the
learned counsel appearing for the Applicants Shri Warunjikar that since the
finding is as regards the legality of the elections of the said Respondent Nos. 3
to 11, the effect of the order is that the said elections being held illegal, the
same would have civil consequences for the said Respondents as well as the
Wakf in question. Hence in so far as the said aspect is concerned, the clauses
(2) (3), (4) and (6) of the operative part of the impugned order would have to
be quashed and set aside and the matter is required to be remanded back to
the Tribunal for a de-novo consideration as regards the aspect of the legality of
the elections of the Respondent Nos. 3 to 11 to the Application.
10 In view of the fact that the tenure of the Respondent Nos. 3 to 11
as the members of the managing committee pursuant to the elections which
were held and which were approved by the order dated 3/7/2009 has already
come to an end long back, obviously they cannot be permitted to continue in
office. Since the direction as contained in clause (5) of the operative part of the
impugned order is to the effect that the new scheme is to be propounded and
elections to be held on the basis of the new scheme, till such time as direction
in clause (5) are complied with, it would be just and proper to appoint an
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administrator on the Wakf in question. The learned counsel appearing for the
Respondent Nos. 9 and 10 herein Shri Momin was on the last occasion directed
to suggest the names of the persons who could be appointed as the
administrator in the interregnum. The learned counsel Shri Momin has
suggested three names out of which one is that of the Regional Wakf Officer,
Konkan Division, Mumbai. The said Regional Wakf Officer, Konkan Division,
Mumbai is hereby appointed as an administrator of the Wakf in question. He
would be entitled to take assistance of such officials of the Wakf Board as he
deems necessary. The above Civil Revision Application is accordingly partly
allowed and the following directions are issued :-
1] The operative part of the impugned order dated 16/7/2011, in so
far as clauses (2), (3), (4) and (6) are concerned, is set aside and
the matter is remanded back to the Wakf Tribunal for a de-novo
consideration of the Application No.29 of 2009. In so far as clause
(1) of the operative part of the impugned order dted 16/7/2011 is
concerned, instead of clause reading as "Application No.29/2009 is
hereby allowed" would read as "Application No.29/2009 is partly
allowed".
2] The Regional Wakf Officer, Konkan Division, Mumbai is hereby
appointed as the Administrator of the Wakf in question till such
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time as there is compliance of clause (5) of the directions as
contained in the operative part of the impugned order dated
16/7/2011.
3] The directions in clause (5) of the operative part of the impugned
order may be complied with expeditiously. The scheme in question
which, according to the learned counsel for the Applicants Shri
Warunjikar as also the learned counsel appearing for the
Respondent Nos. 1 to 8 herein Shri Shaikh, has been submitted,
may be considered and the decision may be taken in respect of the
same within six months from date, thereafter the elections to the
managing committee be held in terms of the said scheme that
would be accepted.
4] The Applicants herein will hand over the charge of the Wakf in
question to the Regional Wakf Officer, Konkan Division, Mumbai
within a period of four weeks from date. At the end of the four
weeks period, if the charge is not handed over, the Administrator
would be entitled to take charge unilaterally, if necessary.
5] Till handing over the charge, the Applicants would not deal with
the property of the Wakf in question and would also not take any
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policy decision or disburse any amount out of the Wakf funds.
6] The administrator also not to deal with the property of the Wakf in
question and would be entitled to take such policy decisions as
would be in the interest of the Wakf in question and would also
spend the funds of the Wakf only for the day to day expenses.
7] The above Civil Revision Application is accordingly partly allowed.
8] In respect of the issue that is remanded, the parties to appear
before the Tribunal on 17th December 2012. The learned counsel
for the parties make a statement that no further notice would be
required and that their clients would appear before the Tribunal
without any notice. The Tribunal on remand may decide the issue
within a period of three months from the appearance of the parties
before it on 17th December 2012.
9] The above Civil Revision Application is accordingly disposed of.
[R.M.SAVANT, J]
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