Bombay High Court
Samir Gulam Shaikh vs State Of Maharashtra And Ors on 10 June, 2024
Author: Gauri Godse
Bench: Gauri Godse
2024:BHC-AS:22810-DB
VARSHA VIJAY Digitally signed by VARSHA
VIJAY RAJGURU
RAJGURU Date: 2024.06.10 20:29:25
+0530
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varsha IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3640 OF 2021
Samir Gulam Shaikh
Room No.1, Khawaja Nagri Bandar Road,
Panvel, Raigad - 410 206. ... Petitioner
Versus
1. State of Maharashtra,
Department of Minority
Through the o/o Government Pleader of
Bombay High Court.
2. Maharashtra State Board of Waqf
Panchakki, Aurangabad - 431 002.
3. Chief Executive Officer,
Maharashtra State Board of Waqf
Panchakki, Aurangabad - 431 002.
4. Magdum Bibi Waqf,
Through its sole Mutawalli,
Haseeb Mohammed Yusuf Mulla,
Add: Patel Mohalla, Panvel, District-Raigad.
5. Okay Estate Developers Private Limited,
Address: Shop No. 40, Ground Floor,
Harbour Crest Building, Shivdas
Champsi Road, Mazgaon, Mumbai-10. ... Respondents
WITH
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INTERIM APPLICATION NO. 16757 OF 2023
IN
WRIT PETITION NO. 3640 OF 2021
M/s. Okay Estate Developers Pvt Ltd
A private limited company, having its
registered office at shop No. 40, Harbour
Crest building, Shivdas Champsi Road,
Mazgaon, Mumbai-400 010. ... Applicant
IN THE MATTER BETWEEN
Samir Gulam Shaikh,
Room No.1, Khawaja Nagri Bandar Road,
Panvel, Raigad - 410 206. ... Petitioner
Versus
1. State of Maharashtra,
Department of Minority
Through the o/o Government Pleader of
Bombay High Court.
2. Maharashtra State Board of Waqf,
Panchakki, Aurangabad - 431 002.
3. Chief Executive Officer,
Maharashtra State Board of Waqf
Panchakki, Aurangabad - 431 002.
4. Magdum Bibi WAQF,
Through its sole Mutawalli,
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Haseeb Mohammed Yusuf Mulla,
Add: Patel Mohalla, Panvel, District-Raigad.
5. Okay Estate Developers Private Limited,
Address: Shop No. 40, Ground Floor,
Harbour Crest Building, Shivdas
Champsi Road, Mazgaon, Mumbai-10 ... Respondents
Mr. S.B. Talekar on VC i/b. Talekar and Associates, for Petitioner.
Mr. A.V. Anturkar, Senior Advocate a/w. Mr. Sagheer A. Khan, G.D.
Shaikh, A.H. Ansari i/b. Judicare Law Associates for Respondent
Nos. 4 and 5 in WP/3640/21.
Mr. Javed Shaikh a/w. Abdul Hafeez Yakub Kotwala for Respondent
Nos. 2 and 3 - Wakf Board on VC.
Mrs. Madhubala Kajle, 'B' Panel Counsel for Respondent No.1-
State.
CORAM : GAURI GODSE, J.
RESERVED ON: 21st FEBRUARY 2024
PRONOUNCED ON: 10th JUNE 2024
JUDGMENT:
BASIC FACTS:
1. This petition is filed to challenge the judgment and order
dated 11th April 2019, passed by the Maharashtra State Waqf
Tribunal allowing the Waqf Application No. 01/2010 filed by
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respondent no.5 under section 83 (2) of the Waqf Act, 1995 ('said
Act'). By the impugned judgment and order, the resolution passed
by the State Government on 25th May 2018 and letter dated 19th
December 2018, issued by the Chief Executive Officer of the Waqf
Board, are quashed and set aside.
2. By the resolution dated 25th May 2018, the State Government,
in the exercise of the powers under Section 97 of the said Act,
directed the Maharashtra State Board of Waqf to cancel the No
Objection Certificate ('NOC') dated 25th July 2011, issued for the
development of the property belonging to respondent no.4-Waqf. By
the letter dated 19th December 2018, the Chief Executive Officer of
the Waqf Board authorized the Regional Waqf Officer to file a
criminal complaint against the trustee of respondent no.4-Waqf and
respondent no.5, who was appointed as the developer to develop
the Waqf's property.
3. The petitioner claims to be an interested party in respondent
no.4-Waqf and, feeling aggrieved by the impugned judgment and
order, has filed this petition. Learned counsel for respondent nos. 4
and 5 raised a preliminary objection on the locus of the petitioner to
challenge the judgment and order passed by the Waqf tribunal.
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PRELIMINARY OBJECTION:
4. The learned counsel for respondents no. 4 and 5 raised the
preliminary objection on two counts. The first objection is that the
petitioner has no locus to file the writ petition as he is neither an
interested party nor an aggrieved party. The second objection is that
the petition may not be entertained as there is an alternate remedy
of filing a revision under Section 83(9) of the said Act.
SUBMISSIONS ON BEHALF OF THE PETITIONER :
5. In response to the preliminary objections raised on behalf of
respondents nos. 4 and 5, learned counsel for the petitioner
submitted that the NOC dated 25th July 2011, is a forged document
and that such NOC was never issued by the Chief Executive Officer.
Learned counsel further submitted that the petitioner, being a
devotee of the said Waqf, is an interested party. The petitioner,
being a devotee, has a right to offer his prayers at the Waqf property
and thus is an aggrieved party as he will not be able to offer his
prayers if the Waqf property is developed, in view of the NOC.
6. Learned counsel for the petitioner, thus, submitted that the
petitioner, being an interested party as well as an aggrieved party,
has the locus to challenge the judgment and order passed by the
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Waqf Tribunal. With reference to the preliminary objection that there
is an alternate remedy of filing a revision application under Section
83(9) of the Waqf Act, learned counsel for the petitioner submitted
that the remedy under Section 83(9) enables a party to file a
revision application in this court. Thus, according to him, there is no
substance in the objection raised that the petition may not be
entertained on the ground of the availability of an alternate remedy.
Even if a revision application is filed to challenge the impugned
order, the same would lie before this court. Hence, the learned
counsel for the petitioner submitted that only the nomenclature of
the litigation would change; however, the scope of the challenge
would remain the same.
7. In support of the submission that the petitioner is an
interested party as well as an aggrieved party, the learned counsel
for the petitioner relied upon the pleadings in the memo of the
petition and the petitioner's short affidavit, additional affidavit and
affidavit-in-rejoinder. By relying upon the pleadings, he submitted
that respondents nos. 4 and 5 have practised fraud to grab the
Waqf's property. He submitted that the Waqf Board had filed a
written statement and an affidavit dated 20th September 2021 before
the Waqf Tribunal and contended that the resolution dated 10th June
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2011, NOC dated 25th July 2011 and Development agreement dated
26th September 2011 are null and void and have no legal status.
Thus, he submitted that even the Waqf Board has filed an affidavit-
in-reply, stating that the Waqf Board has never issued an NOC as
claimed by respondent no.5.
8. The learned counsel for the petitioner submitted that
respondent no.5 has acted in collusion with the person claiming to
be the lessee of the Waqf property. The consent terms filed by the
lessee and respondent no.4-Waqf would reveal that respondent
nos. 4 and 5 have committed fraud on this Court. The resolution
alleged to have been passed by the Waqf Board in its meeting held
on 10th June 2011 and the NOC alleged to have been issued by the
Chief Executive Officer of the Waqf Board on 25 th July 2011, were
doubtful, and the same were challenged in various proceedings filed
in this court.
9. The learned counsel for the petitioner submitted that the
lessee i.e. Gulam Husain Rassiwala had filed Writ Petition No. 9682
of 2016, challenging the NOC issued by the Waqf board. However,
respondent nos. 4 and 5 entered into the Consent Terms with the
lessee and the said Writ Petition was disposed of. Thus, according
to the learned counsel for the petitioner, respondent nos. 4 and 5,
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by acting in collusion with the original lessee, have abused the
process of law to grab the Waqf property. He submitted that the
original lessee had filed Writ Petition No. 4388 of 2018 for
challenging the judgment and order dated 8th March 2018, passed
by the Waqf Tribunal. The said lessee had filed a separate Writ
Petition No. 9682 of 2016, seeking direction to renew the lease in
his favour. He submitted that respondent nos. 2, 4 and 5 and the
said lessee filed consent terms in Writ Petition No. 9682 of 2016.
However, they deliberately did not disclose the correct and relevant
facts before this court. Pursuant to the consent terms, the said
original lessee withdrew other Petitions, i.e. Writ Petition No. 6258
of 2012, Writ Petition No. 9682 of 2016, Writ Petition No. 4388 of
2018 and Contempt Petition No. 307 of 2018 as respondent no.5
had agreed to pay Rs. 9.5 Crores to the said lessee. Learned
counsel thus submitted that the original lessee filed Writ Petition No.
6058 of 2012 to protect the Waqf property; however, the same was
withdrawn at the cost of the interest of the Waqf property. Thus, in
such circumstances, the petitioner was left with no other remedy but
to challenge the impugned order passed by the Waqf Tribunal to
protect the interest of the Waqf property.
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10. Learned counsel for the petitioner further relied upon the
affidavit-in-rejoinder dated 30th November 2023, filed by the
petitioner to support his submissions that there was a conflict of
interest between respondent no.4, i.e. the Waqf and respondent no.
5-Developer. Though there is a conflict of interest between
respondents nos. 4 and 5, they have engaged the same advocate to
represent them before this Court. The Director of respondent no.5
has committed a criminal offence and intends to grab the Waqf
property, which is donated for imparting religious education to the
Muslim community. Hence, the petitioner is a beneficiary as defined
under the Waqf Act and, thus, interested in the Waqf property. Thus,
the petitioner, being an interested person, is aggrieved as the Waqf
property is being alienated illegally. Hence, the petitioner has filed
the present petition to protect the Waqf property. If the Waqf
property is developed pursuant to the NOC issued by the Waqf
Board, the petitioner will be deprived of getting the benefit of the
waqf property and hence is an aggrieved person.
11. By relying upon paragraphs 16 and 17 of the affidavit-in-
rejoinder dated 30th November 2023, the learned counsel for the
petitioner submitted that there are various decisions of various High
Courts and the Hon'ble Supreme Court taking the view that any
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Muslim would be interested in the properties of Waqf and thus
would be aggrieved if such properties are alienated and transferred
or disposed of illegally. Though respondents nos. 1 and 2 are under
obligation to protect the waqf property, they have overlooked the
serious illegalities committed by respondents nos. 4 and 5, and
hence, the judgment and order passed by the Waqf Tribunal is not
challenged by the said respondents. Learned counsel, thus,
submitted that various allegations of fraud, collusion and forgery are
demonstrated by the petitioner in the present writ petition.
12. According to the learned counsel for the petitioner, the entire
record and proceedings with respect to respondent no. 4-Waqf in
Waqf Suit No. 27 of 2021 also demonstrates the illegalities by
respondents nos. 4 and 5. The learned counsel for the petitioner
further submitted that the original NOC and the resolution allegedly
passed by the Waqf Board are not available in the record and
proceedings; hence, Waqf Suit No. 27 of 2021 is filed by the
petitioner. Thus, the allegations made against respondents nos. 4
and 5, who have committed fraud by obtaining a fraudulent NOC
dated 25th July 2011 for obtaining a favourable order from the Waqf
Board, are required to be examined by this Court.
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13. In support of his submissions, the learned counsel for the
petitioner relied upon the following decisions Sk. Safik and Ors Vs
Board of Wakfs and Ors1, Board of Muslim Wakfs, Rajasthan Vs
Radha Kishan and Others2. By relying upon the aforesaid decisions,
he submitted that when the High Court has power on its own motion
under Section 83(9) of the Waqf Act, the definition of the word 'the
aggrieved person' or 'interested person' is required to be given
wider meaning. Hence, the petitioner would fall under the definition
of 'interested person' as well as 'aggrieved person' and is thus
entitled to challenge the impugned order passed by the Waqf
Tribunal. He further submitted that this Court had passed an ad-
interim relief in favour of the petitioner. Respondent no. 5 had filed
an application for modification of the said interim relief, and this
court had entertained and granted a modification of the interim relief
as prayed by respondent no.5. He, thus, submitted that now, at this
stage, respondent nos. 4 and 5 are not entitled to raise a preliminary
objection on the locus of the petitioner for challenging the impugned
judgment and order. Learned counsel thus submitted that even if an
alternate remedy under Section 83 is available, the powers under
Articles 226 and 227 can be invoked.
1 2021 SCC Online Cal 250.
2 (1979) 2SCC 468
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14. Learned counsel for the petitioner pointed out the order dated
29th January 2014, passed by this Court in Writ Petition No. 6058 of
2012. He submitted that the said petition was filed by the original
lessee. He submitted that this Court, by recording a prima-facie
finding that the NOC dated 25th July 2011, issued by the State Waqf
Board in purported exercise of power under Section 32(4) of the
Waqf Act, was without jurisdiction and had thus admitted the Writ
Petition. By the said order, ad-interim relief was also granted by
which there was an order of status quo in operation. However, by
order dated 12th January 2021, the said original lessee withdrew the
said petition. Hence, the order of status quo granted by this court
came to an end in view of the withdrawal of the petition. Thereafter,
respondent no. 5 challenged the Government Resolution by which
the NOC granted for the development of the property was cancelled.
The suit filed by respondent no.5 is allowed by the impugned order.
He, thus, submitted that once there was an order of status quo
passed by this court, which was in operation till 12 th January 2021,
the Waqf Tribunal should have restrained from passing the
impugned order dated 11th April 2019. He submitted that since the
impugned order was passed during the order of status quo passed
by this Court, it amounts to committing contempt of this Court.
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15. Learned counsel for the petitioner thus submitted that
respondent nos. 4 and 5 intend to grab the Waqf property. Hence, in
view of the aforesaid peculiar facts and circumstances of the case,
the technical objection on the locus of the petitioner cannot be
examined without looking into the merits of the matter. In view of
the illegality committed by respondent nos. 4 and 5, the petitioner
has the locus to file the present petition to protect the Waqf
property. Learned counsel for the petitioner further submitted that
there were four petitions pending in this court raising objections to
the action of respondent nos. 4 and 5 in the attempt to grab the
Waqf property. He submitted that by filing consent terms in three
writ petitions all the four petitions stood withdrawn. He, thus,
submitted that the action of respondent nos. 4 and 5 amounts to
committing fraud on this Court.
16. Learned counsel for the petitioner further submitted that the
State Government had directed an inquiry by passing the order on
23rd March 2018. Pursuant to the said inquiry, a resolution was
passed by the State Government for cancelling the NOC issued by
the Waqf Board. He further submitted that the register maintained
by the Waqf Board shows that NOC contains an outward number
with regard to some properties situated in Pune. However, by using
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the said outward number, forged NOC was prepared for the present
property, which is situated at Panvel. There was an inquiry initiated
pursuant to the order passed by the State Government, and in the
inquiry, it was found that the NOC relied upon by respondents nos.
4 and 5 was forged; hence, the State Government passed a
resolution in the exercise of powers conferred under Section 97 of
the Waqf Act. The Waqf Tribunal has set aside the resolution
passed by the State Government cancelling the NOC for the
development of the Waqf property. He submitted that neither the
Waqf Board nor the State Government had challenged the setting
aside of the orders passed by the State Government. Hence, the
petitioner was constrained to approach this Court when he learnt
about the aforesaid facts when the actual construction started in the
month of June 2021. He, therefore, submitted that to protect the
waqf property, the petitioner has the locus to file the present
petition.
SUBMISSIONS ON BEHALF OF RESPONDENTS NOS. 4 AND 5:
17. Learned senior counsel for respondents nos. 4 and 5
submitted that the preliminary objection is based on the provision of
Section 83(9) of the Waqf Act and not only on the ground that since
the impugned order is revisable, the petition under Article 227 of the
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Constitution of India should not be entertained, in as much as even
the revisional jurisdiction vest in this Court. He thus submitted that
even when the jurisdiction of this Court under Article 227 is invoked,
the parameters of the revisional jurisdiction under Section 83(9) of
the Waqf Act are required to be taken into consideration.
18. According to the learned senior counsel for respondent nos. 4
and 5, unlike the expression "person interested" defined in Section
3(k) of the Waqf Act, the expression "person aggrieved" is not
defined. The requirement of Section 83(9) is that the party
aggrieved can invoke the revisional jurisdiction. The petition does
not contain any pleading as to how the petitioner is aggrieved by the
impugned order. According to the learned senior counsel for
respondents nos. 4 and 5, the reliance placed by the learned
counsel for the petitioner on Section 83(2) is misconceived, as the
same deals with the locus of a party to approach the Waqf Tribunal.
The term "aggrieved person" used in Section 83(9) is much
narrower compared to the term "interested person" used in Section
83(2). Hence, only by claiming to be an interested party the
petitioner is not entitled to invoke the revisional jurisdiction under
Section 83(9) in the absence of any pleading about how he is
aggrieved by the impugned order.
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19. Learned senior counsel for respondent nos. 4 and 5
submitted that after the impugned order was passed on 11th April
2019, the petitioner filed a Suit before the Waqf Tribunal on 1 st
February 2021, praying for an order of injunction. The petitioner has
not challenged the NOC in the said suit. Hence, in view of Order II
Rule 2 of the Civil Procedure Code ('CPC'), there is a bar to
challenge the said NOC in the present petition filed on 17 th February
2021. In the Waqf Suit filed before the Tribunal, the petitioner could
have challenged the NOC as well as the resolution. However, he
has chosen not to challenge the same before the Tribunal. The
resolution passed by the Waqf Board is never challenged by any
party, and the said resolution is still subsisting, as seen on the
official website of the Waqf Board.
20. Learned senior counsel submitted that respondents nos. 4
and 5 filed an application for rejection of the suit filed by the
petitioner before the Waqf Tribunal by filing an application under
Order VII of Rule 11 of CPC. However, the said application was
rejected by the Waqf Tribunal. Hence, respondent nos. 4 and 5
have filed Civil Revision Application No.209 of 2023 in this Court.
He submitted that the said Civil Revision Application is admitted by
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order dated 31st August 2023, and the further proceedings before
the Waqf Tribunal are stayed.
21. Learned senior counsel for respondents nos. 4 and 5 referred
to the findings recorded by the Waqf Tribunal in the impugned
judgment from paragraph 39 onwards. He submitted that the Waqf
Tribunal has examined all the records of the Waqf Board and held
that the resolution passed by the State Government is illegal. He
relied upon the resolution of the Waqf Board dated 8th June 2011
and the NOC dated 25th July 2011 issued pursuant to the said
resolution. He submitted that there was never any challenge to the
resolution passed by the Waqf Board. Hence, the petitioner, after a
period of more than 10 years, is not entitled to raise any doubt on
the resolution passed by the Waqf Board. Learned counsel
submitted that under Section 83(9) of the Waqf Act, only the
aggrieved person is entitled to challenge the order passed by the
Waqf Tribunal. The petitioner has not pleaded a single ground in
support of his submission that he is an aggrieved person. In the
entire arguments made on behalf of the petitioner, nothing is shown
as to how the petitioner is aggrieved by the impugned order passed
by the Tribunal. Thus, the petitioner, not being an aggrieved person,
is not entitled to challenge the judgment passed by the tribunal.
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22. Learned senior counsel for respondents nos. 4 and 5 relied
upon the decision of this Court in the case of Ranjit Merchant and
others Vs Kishor Ved and others3 to support his submissions that an
interested party necessarily need not be an aggrieved party who
can be said to have suffered a legal grievance.
23. Learned senior counsel for respondents nos. 4 and 5
submitted that the remedy to challenge the resolution of the waqf
board and the NOC is time-barred. The Board's Resolution and the
NOC were never under challenge. However, the State Government,
by the resolution dated 25th May 2018, had cancelled the NOC. The
State Government's resolution is quashed and set aside by the
Tribunal's order impugned in this petition. Hence, this petition, in
effect, raises a challenge to the Board's resolution and the NOC
after more than ten years by invoking writ jurisdiction, which
amounts to abuse of the process of the law. He relied upon the legal
principles laid down by the Hon'ble Supreme Court in the decisions
of State of Punjab Vs Gurdev Singh4 and State of Punjab and another
Vs Balkaran Singh5 . He, thus, submitted that it is a well-established
principle of law that if a party finds an order to be void, the same has
to be challenged within a reasonable time, i.e. three years. In the
3 Second Appeal No. 469 of 2009, dated 25th January 2010.
4 (1991) 4 SCC 1
5 (2006) 12 SCC 709
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present case, the petitioner has not even pleaded as to how he is
aggrieved by the impugned order and has invoked extraordinary
powers under Article 227 to challenge the NOC after ten years, only
on the ground that he is an interested party. Hence, this is not a fit
case to exercise powers under Article 227 of the Constitution of
India.
SUBMISSIONS IN REJOINDER ON BEHALF OF THE
PETITIONER:
24. In response to the submissions made on behalf of
respondents nos. 4 and 5, learned counsel for the petitioner
submitted that the expressions 'interested and aggrieved person'
are interdependent and hence, both expressions are not
interchangeable. He submitted that Section 72 of the Maharashtra
Public Trust Act is deleted; therefore, the decision in the case of
Ranjit Merchant relied upon by the learned counsel for respondents
nos. 4 and 5 is not applicable to the present case. He submitted that
even otherwise, Section 72 of the Maharashtra Public Trust Act did
not give any suo moto power as given under Section 83(9) of the
Waqf Act. Hence, powers under the Maharashtra Public Trust Act
and powers under the Waqf Act cannot be equated. He thus
submitted that the decision relied upon by the learned counsel for
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respondents nos. 4 and 5 would not preclude the petitioner from
exercising his right and locus to challenge the impugned order
passed by the Waqf Tribunal.
SUBMISSIONS ON BEHALF OF RESPONDENT NOS. 2 AND 3
25. The learned counsel for respondents nos. 2 and 3, i.e. the
Waqf Board and the Chief Executive Officer of the Board ("waqf
board"), submitted that the resolution passed by the Waqf Board is
not denied. However, the NOC relied upon by respondents nos. 4
and 5 was never issued by the Board. He submitted that respondent
no.5, being the developer, was neither an aggrieved person nor an
interested person; however, he had approached the Waqf Tribunal.
Hence, even the petitioner has the right to challenge the order
passed by the Waqf Tribunal. Learned counsel further submitted
that sub-section (2) of Section 83 of the Waqf Act provides a list of
people who can sue. The directions issued by the Waqf Tribunal are
an order, and therefore, the action taken by the State Government
directing to lodge FIR could not have been interfered with by the
Waqf Tribunal. Hence, the petitioner is entitled to invoke writ
jurisdiction. He pointed out that an Additional Affidavit dated 28 th
November 2023 is filed by the Board's CEO to explain that earlier
affidavit was filed on the basis of the available record believing the
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same to be original. However, it has been reported based on the
record produced before the Tribunal in Waqf Suit No. 27 of 2021
that the original NOC is not traceable. Hence, he requested to
discard the earlier affidavit filed on behalf of the Board supporting
the NOC. He, therefore, submitted that the power under Article 227
of the Constitution of India is a power of superintendence and thus,
if the Waqf Tribunal is wrong in law and facts, the present Writ
Petition is required to be entertained by the exercise of power under
Article 227 of the Constitution of India. He submitted that this Court
can even suo moto invoke the jurisdiction under sub-section (9) of
Section 83 of the Act and also exercise powers under Article 227 of
the Constitution of India.
ANALYSIS:
26. I have considered the rival submissions of the parties. This
petition is filed under Article 227 of the Constitution of India to
challenge the judgment and order passed by the Waqf Tribunal
allowing an application filed by respondent no. 5 under Section
83(2) of the Waqf Act. The petition also prays for the issuance of a
writ of mandamus directing the State Waqf Board and its Chief
Executive Officer to restore the Government Resolution dated 25th
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May 2018 issued by the State Government and file a criminal
complaint against the developer and the Waqf.
27. By the impugned order, the Tribunal allowed the application
filed by the developer, quashing and setting aside the Government
Resolution dated 25th May 2018 directing the Maharashtra State
Board of Waqf to cancel the NOC issued for the development of the
property belonging to the Waqf. The Tribunal also set aside the
letter dated 19th December 2018, issued by the Chief Executive
Officer of the Waqf Board, authorising the Regional Waqf Officer to
file a criminal complaint against the trustee of the Waqf and the
developer. Thus, the petitioner in this petition challenges the
Tribunal's order and supports the Government Resolution directing
the setting aside of the NOC for the development of the Waqf
property.
28. The impugned judgment and order is passed under Section
83(2) of the Waqf Act. Sub-section (7) of Section 83 gives finality to
the decision of the Tribunal and binding effect on the parties to the
application. An appeal against any decision or order of the Tribunal
is barred by sub-section (9) of Section 83. The proviso to sub-
section (9) of Section 83 provides revisional jurisdiction to the High
Court to be exercised suo moto or on an application of the Board or
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any person aggrieved. The petitioner was not a party to the
proceedings before the Tribunal. The preliminary objection is that in
view of the available remedy of revision, this petition under Article
227 of the Constitution of India may not be entertained. However, it
is also submitted by the learned senior counsel for respondents nos.
4 and 5 that since even the revision application lies to the High
Court, the preliminary objection is not only on the nomenclature.
However, it is submitted that even while entertaining a petition under
Article 227, the parameters contemplated under sub-section (9) of
Section 83 are required to be considered. Thus, the argument
raising the preliminary objection emphasises the term "aggrieved
person" referred to in the proviso to the sub-section (9) of Section
83. It is, thus, argued that the revisional jurisdiction of this Court can
be invoked only by an aggrieved person, and therefore, even the
writ jurisdiction can be invoked only by an aggrieved person. Thus,
the second argument on the preliminary objection is that the
petitioner, not being an aggrieved person, has no locus to challenge
the Tribunal's order.
29. Thus, given this backdrop, it is necessary to refer to the legal
principles settled by the Hon'ble Supreme Court in the case of Kiran
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Devi Vs Bihar State Sunni Wakf Board and others6 relied upon the
learned counsel for the petitioner. The Hon'ble Supreme Court,
while dealing with the argument that the Waqf Tribunal's Order
could not be challenged by way of a writ petition in the High Court
under Article 226 of the Constitution of India as only a revision in
terms of proviso to sub-section (9) of Section 83 could be preferred,
held as under in paragraphs 22 and 25;
"22. Therefore, when a petition is filed against an order of the
Wakf Tribunal before the High Court, the High Court
exercises the jurisdiction under Article 227 of the Constitution
of India. Therefore, it is wholly immaterial that the petition was
titled as a writ petition. It may be noticed that in certain High
Courts, petition under Article 227 is titled as writ petition, in
certain other High Courts as revision petition and in certain
others as a miscellaneous petition. However, keeping in view
the nature of the order passed, more particularly in the light of
proviso to sub-section (9) of Section 83 of the Act, the High
Court exercised jurisdiction only under the Act. The
jurisdiction of the High Court is restricted to only examine the
correctness, legality or propriety of the findings recorded by
the Wakf Tribunal. The High Court in exercise of the
jurisdiction conferred under proviso to sub-section (9) of
Section 83 of the Act does not act as the appellate court.
25. Therefore, the petition styled as one under Article 226
would not bar the High Court to exercise jurisdiction under the
Act and/or under Article 227 of the Constitution. The
jurisdiction of the High Court to examine the correctness,
legality and propriety of determination of any dispute by the
Tribunal is reserved with the High Court. The nomenclature of
6 (2021) 15 SCC 15
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the proceedings as a petition under Article 226 or a petition
under Article 227 is wholly inconsequential and immaterial."
emphasis applied
30. Thus, even if the jurisdiction of this Court under Article 227 is
invoked, the High Court exercises jurisdiction under the Waqf Act.
Hence, the nomenclature would not make any difference. However,
the parameters contemplated under Section 83 of the Waqf Act are
required to be taken into consideration. Thus, to examine whether
the petitioner can be termed as an 'aggrieved person' as
contemplated under the proviso to sub-section (9) of Section 83 of
the Act or not, it is necessary to understand the provision of Section
83 as a whole. A complete and harmonious reading of Section 83 of
the Waqf Act shows that the Waqf Tribunal's jurisdiction can be
invoked by any mutawalli or person interested in a waqf or any other
person aggrieved by an order made under the Act or rules framed
thereunder by filing an application as contemplated under sub-
section (2) of Section 83 of the Act. The power of revision under
sub-section (9) of Section 83 of the Act is vested with the High Court
on its own motion or on an application of the Board or any person
aggrieved as contemplated in the Proviso to the said sub-section
(9). Thus, it is clear that when a person has an interest in the waqf
and, therefore, claims to be an "interested person", he can invoke
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revisional powers if he is an aggrieved person as contemplated
under the Proviso to the sub-section (9) of Section 83 of the Act.
31. Thus, if a person is an interested person having a right to
invoke the Tribunal's jurisdiction under sub-section (2) of Section
83, the revisional jurisdiction under sub-section (9) of Section 83
can be invoked if the interested person is aggrieved by the
Tribunal's decision. The different terms used in sub-sections (2) and
(9) of Section 83 of the Act show that only being an interested
person may not be a ground to invoke revisional jurisdiction unless
the person is aggrieved by the decision of the Tribunal. The Proviso
to sub-section (9) of Section 83 of the Act also gives suo-moto
powers to the High Court to call for and examine the records relating
to any dispute, question or other matter which has been determined
by the Tribunal.
32. In the present case, the preliminary objection raised is on the
locus of the petitioner to invoke the revisional jurisdiction. It is
argued that the petitioner is neither an 'interested person' nor an
'aggrieved person'. For the purpose of deciding the preliminary
objection on the locus of the petitioner to challenge the impugned
order passed by the Tribunal, it is necessary to first examine
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whether the petitioner is an "interested person". To examine
whether the petitioner is an interested person, it is necessary to
understand the objects and the scheme of the Waqf. If the petitioner
is found to be an interested person, it is further necessary to
examine whether the petitioner being an interested person is
aggrieved by the Tribunal's decision. Thus, for the purpose of
examining whether the petitioner is an aggrieved person, it will be
necessary to understand the nature of the development of the Waqf
property permitted by the Board.
33. It is the petitioner's case that he, being a devotee of the Waqf,
has a right to offer his prayers at the Waqf property and thus is an
aggrieved person as he will not be able to offer his prayers if the
Waqf property is developed, in view of the NOC; hence, he is
entitled to challenge the NOC. Development of a waqf property ipso
facto may not mean that a devotee's right to offer prayers at the
waqf property is adversely affected. Thus, it will be necessary to
understand the objects and scheme of the Waqf and the nature of
development permitted by the Board. A perusal of the petitioner's
pleadings indicates that the petitioner is claiming to be an interested
person in the Waqf and wants to protect the Waqf property, as
according to the Waqfnama dated 2nd November 1925, the Waqf
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properties were dedicated to the Almighty and were to be used only
for charitable purpose and imparting religious education to the
children belonging to the Muslim community. It is, thus, the
petitioner's case that any alienation and development of the Waqf
properties for commercial purposes is not permissible. It is further
the petitioner's case that the Board and the Board's CEO are not
acting in the interest of the Waqf, and they failed to challenge the
impugned order. Hence, after he noticed construction activities on
the Waqf properties, he approached this Court.
34. The petitioner's further pleadings emphasise the facts about
the litigation between the original lessee of the waqf property and
the waqf. The learned counsel for the petitioner relied upon the
interim order of status quo passed in one of the petitions filed by the
lessee. He further submitted that the Waqf properties were
protected during the pendency of the said petition. However,
respondent nos. 4 and 5 entered into consent terms in one of the
petitions and the petition in which the interim order was operating,
and the other pending petitions were withdrawn. Thus, it is argued
on behalf of the petitioner that every attempt is made to grab the
Waqf property and deprive the beneficiaries of the Waqf from
utilising the Waqf property for the objects of the Waqf. Thus, it is the
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petitioner's case that he, being interested in the Waqf, intends to
protect the Waqf property and is therefore aggrieved by the
impugned order. Hence, it is submitted that the terms 'interested
person' and 'aggrieved person' cannot be read independently.
35. Here, it is necessary to note a contrary stand taken by the
Board by filing two affidavits in reply. A perusal of an additional
Affidavit dated 28th November 2023 filed by the Board's CEO states
that the record produced before the Tribunal in Waqf Suit No. 27 of
2021 shows that the original NOC is not traceable. Hence, it is
requested to discard the earlier affidavit filed on behalf of the Board
supporting the NOC. The learned counsel for the Board argued that
if the Waqf Tribunal is wrong in law and facts, the present Writ
Petition is required to be entertained by exercising power under
Article 227 of the Constitution of India and even invoke suo moto
jurisdiction under sub-section (9) of Section 83 of the Act. Thus,
prima facie it appears that there is some substance in the argument
of the petitioner that no attempts are made by respondent nos. 1
and 2 to protect the Waqf property. However, I do not see any
substance in the petitioner's argument that there is any conflict of
interest between respondents nos. 4 and 5, and therefore, they
cannot be represented by the same advocate. Even otherwise, the
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same is irrelevant to the controversy regarding the petitioner being
an interested and aggrieved person.
36. Thus, the sum and substance of the petitioner's arguments is
that the petitioner is an interested person in the Waqf and, therefore,
aggrieved by the Tribunal's Order, as it revives the fabricated NOC
permitting the development of the Waqf properties for commercial
purposes, that was directed to be cancelled by the State
Government.
37. The learned counsel for the petitioner has placed on record
two compilations of judgments. However, he has relied upon a
selected few judgments of the Apex Court, this Court and other High
Courts to support his arguments that the petitioner, being an
interested person and an aggrieved person, has the locus to
challenge the Tribunal's order impugned in this petition. I have gone
through those relied-upon judgments in the case of Jasbhai Desai
Vs Roshan Kumar and others7 , Union of India Vs Nareshkumar and
others8, In Re Sidebothem9, M S Jayaraj Vs Commissioner of
Excise10, and Rajendra Agrawal Vs State of Maharashtra and
others11 .
7 (1976) 1 SCC 671
8 (2019) 18 SCC 586
9 (1880) 14 CH D 458
10 (2000) 7 SCC 552
11 2013(1) Mh LJ 163
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38. The Hon'ble Supreme Court, in the decision of Jasbhai Desai
has referred to the decision of the Chancery Division in the case of
Re Sidebothem. The point for consideration before the Chancery
Division arose out of a bankruptcy proceedings dealing with a
contention that an undischarged bankrupt had no locus standi as he
cannot be termed as an 'aggrieved person'. In this context, it was
held that a person aggrieved has to be a person who suffered a
legal grievance. The Hon'ble Supreme Court, in the decision of
Jasbhai Desai, was dealing with an issue of whether the proprietor
of a cinema theatre holding a licence for exhibiting cinematograph
films was entitled to invoke the certiorari jurisdiction to challenge a
No Objection Certificate granted under the Bombay Cinema Rules
1954, to a rival party. Thus, the Hon'ble Supreme Court, in the
decision of Jasbhai Desai also discussed various other Indian,
English and American judgments on the expression 'aggrieved
person' and 'locus standi' in the context of locus standi to apply for a
writ of certiorari and pointed out categories of persons in reference
to the expression 'aggrieved person'. The Hon'ble Supreme Court,
in the case of M S Jayaraj discussed the legal principles laid down
in Jasbhai Desai and other subsequent decisions and held that the
earlier strict interpretation regarding locus standi is changed and a
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much wider canvass has been adopted in later years regarding a
person's entitlement to move the High Court involving writ
jurisdiction. Thus, the Hon'ble Supreme Court, in the case of M S
Jayaraj considered the expanded concept of the locus standi and,
considering the facts of that case, refused to reject the plea solely
on the point of locus standi and proceeded to consider the case on
merits. The decision of this Court in the case of Rajendra Agrawal
dealt with the point of locus standi of a party who was the original
complainant and sought to challenge the Government's Order
reviving the keroscene licence by setting aside the order cancelling
the licence under the Maharashtra Schedule Commodities, Retail
Dealers Licensing Order 1979. This Court discussed the various
decisions on the point of locus standi and aggrieved person,
including the decisions in the case of Jasbhai Desai and M.S.
Jayaraj and by taking into consideration the legal principles held that
the expression 'person who is likely to be aggrieved thereby' in
Clause 15(1) of the said 1996 Order necessitates liberal
interpretation and thus took a view that the controversy could be
decided by hearing the matter on merits.
39. The learned counsel for the petitioner relied upon the decision
of Calcutta High Court in the case of Sk. Safik and others Vs Board
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of Wakfs and others12 which deals with the proposition on the
maintainability of a suit before the Waqf Tribunal by a person
interested in the Waqf. Thus, the scope of interference under Article
227 of the Constitution of India and the powers under Section 83(9)
of the Waqf Act are discussed in the context of the challenge raised
by the original plaintiffs concerning the correctness, legality and
propriety of the Tribunal's findings in the suit filed before the
Tribunal by the petitioner before the High Court. He also relied upon
the decision of the Apex Court in the case of Board of Muslim Waqfs
Rajasthan Vs Radha Kishan and others 13 which dealt with a
challenge to the decision of the High Court holding inclusion of the
property as waqf property to be not binding on the mortgagee
purchasers who were strangers to the waqf. Thus, the said decision
dealt with the question of interested persons in context with the
challenge raised by the strangers to the Waqf before the
Commissioner of Wakfs under the Wakf Act 1954.
40. Though none of these decisions relied upon by the learned
counsel for the petitioner deals with the expression 'aggrieved
person' in the proviso to sub-section (9) of Section 83 of the Waqf
Act, the legal principles as settled in these decisions give a wider
12 2021 SCC Online Cal 2507
13 (1979) 2 SCC 468
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interpretation to the expression 'locus standi' in the context of the
grievance made with reference to the facts of those cases.
41. In the decision of Ranjit Merchant relied upon by the learned
senior counsel for respondents nos. 4 and 5, this Court has
discussed the legal principles laid down in the decisions of Re
Sidebotham and Jasbhai Desai and held that the expression 'person
aggrieved' is much narrower than the expression 'person having
interest'. This Court, thus, held that though the applicants in the
case of Ranjit Merchant were persons having an interest in the trust,
they cannot be said to be persons who have suffered a legal
grievance and therefore cannot be said to be 'persons aggrieved" to
be able to resort to Section 72 of the Bombay Public Trust Act. The
learned counsel for the petitioner argued that Section 72 of the
Bombay Public Trust Act has been now deleted. Hence, the legal
principles laid down based on the deleted provision of law cannot be
applied to the present case. In my view only because Section 72 of
the Bombay Public Trust Act is later on deleted from the statute
book, it cannot be said that the legal principles laid down in the said
decision are to be ignored. However, the observations made by this
court on the expression 'aggrieved person' in the case of Ranjit
Merchant are after considering the case on merits. In the present
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case, the preliminary objection on the locus of the petitioner to raise
a challenge to the Tribunal's order is on the ground that he is not an
aggrieved person as contemplated in the proviso to sub-section (9)
of Section 83 of the Waqf Act. Hence, the observations of this Court
in the case of Ranjit Merchant on the expression 'aggrieved person'
cannot be of any assistance to the arguments of the learned senior
counsel for respondents nos. 4 and 5 at this preliminary stage
without examining the merits of the case.
42. Another argument raised by the learned senior counsel for
respondents nos. 4 and 5 is on how the facts of the present petition
have unfolded which shows that the petitioner is not an aggrieved
person. Admittedly, the petitioner filed a Waqf Suit in the Tribunal
praying for an injunction order against respondent no. 5 after the
impugned order was passed; however, the Board's resolution to
issue an NOC for the development of the Waqf property or the NOC
issued pursuant to the said resolution is not under challenge in the
said suit. Since the Government's resolution directing the
cancellation of the NOC is set aside by the Tribunal's order, the
Petitioner has filed this petition challenging the Tribunal's order.
43. The Hon'ble Supreme Court, in the case of State of Punjab
Vs Gurdev Singh, relied upon by learned senior counsel for
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respondents nos. 4 and 5, dealt with the validity of an order passed
against the party challenging the same after a lapse of reasonable
time. This decision is followed in the similarly situated facts of the
case of State of Punjab and another Vs Balkaran Singh. In the
present case, the petitioner has immediately invoked the writ
jurisdiction of this court under Article 227 of the Constitution of India
to challenge the Tribunal's Order, which deals with the challenge to
the NOC issued by the Waqf Board on 25 th July 2011 for the
development of the waqf property pursuant to the resolution passed
by the Waqf Board on 10 th June 2011. In view of the aforesaid facts
of the case, the legal principles settled by the Hon'ble Supreme
Court in the decisions relied upon by the learned senior counsel for
respondents nos. 4 and 5 are not applicable to the present case.
44. The petitioner has filed a suit before the waqf tribunal, and the
issue of whether the petitioner is an interested person and has a
cause of action to file the suit is pending adjudication in the Civil
Revision Application No. 209 of 2023 filed by respondent no. 5,
which is admitted by order dated 31st August 2023.
45. To examine the issue of whether the petitioner is an
interested person and an aggrieved person, it would be necessary
to examine the scheme and objects of the Waqf and the effect of the
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development of the Waqf properties on the Waqf's objects. Thus,
the preliminary objection raised on behalf of respondents nos. 4 and
5 on the locus of the petitioner to file the present petition needs to
be examined on the basis of whether the petitioner is an interested
person as contemplated under sub-section (2) of Section 83 and if
he is an interested person, whether he is an aggrieved person as
contemplated under the proviso to sub-section (9) of Section 83 of
the Waqf Act. Hence, the decision in the Civil Revision Application
will have a bearing on the issue of whether the petitioner is an
aggrieved person on the ground of being an interested person in the
Waqf.
46. Thus, I am of the view that the objection raised by the learned
counsel for respondents nos. 4 and 5 on the locus of the petitioner
on the ground that he is neither an interested person nor an
aggrieved person cannot be decided as a preliminary issue without
examining the merits of the case. In my opinion, the expression
'person aggrieved' in the proviso to sub-section (9) of Section 83 of
the Waqf Act cannot be read dehors the expression 'interested
person' used in sub-section (2) of Section 83 of the Waqf Act.
47. Hence, it would be appropriate to tag this petition with Civil
Revision Application No. 209 of 2023 so that it can be heard finally.
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By order dated 6th June 2022 passed in Interim Application No. 2916
of 2022, the interim order dated 19th April 2022 is vacated. The said
order dated 6th June 2022 recorded the undertaking filed by
respondents nos. 4 and 5, and directions were issued to the Waqf
Tribunal to decide the application below Exhibit 5 in Suit No. 27 of
2021. Hence, no further orders on interim relief at this stage.
However, parties are at liberty to apply.
48. Hence, for the reasons recorded above following order is
passed:
(i) Rule. To be heard with Civil Revision Application No. 209
of 2023.
(ii) Office is directed to take steps to place the matter before
the Hon'ble the Chief Justice for necessary directions for
listing this petition and Civil Revision Application No. 209
of 2023 before the same court.
(iii) Interim Application No. 16757 of 2023 to be heard after
both the matters are listed before the same Court.
(GAURI GODSE, J.)
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