Saiyed Mohamadraza Nasiruddin vs State Of Gujarat
2021 Latest Caselaw 6845 Guj

   C/SCA/22761/2019                          IA ORDER DATED: 24/06/2021




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
       CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2020
          In R/SPECIAL CIVIL APPLICATION NO. 22761 of 2019
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GUJARAT STATE WAKF BOARD THROUGH CHIEF EXECUTIVE OFFICER Versus SAIYED MOHAMADRAZA NASIRUDDIN ========================================================== Appearance:

MR MANISH S SHAH for the PETITIONER(s) No. GUPTA LAW ASSOCIATES for the RESPONDENT(s) No. ==========================================================

CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

Date : 24/06/2021

IA ORDER

1. This application is filed on behalf of the applicant-Board for joining as party respondent in the main matter in its capacity as Wakf Board on the ground that the property in question in the main matter is a Wakf property.

2. Learned advocate for the petitioner, during the course of argument, has drawn attention of this Court to the history of the litigation at the root of which is as to whether the property in question which is a Wakf property for which the main petition has been filed, the applicant-board is necessary party in view of coming in force of the Wakf Act, 1995 (herein after referred to as the "Act").

3. Learned advocate for the applicant submitted that pursuant to the Act coming into by the operation of law itself, the property, which is recognized as wakf property, the wakf board will have direct interest in such property and hence, the board is required to be heard as necessary party.

C/SCA/22761/2019 IA ORDER DATED: 24/06/2021

4. Learned advocate for the applicant drew attention of this Court to Section 51 and 51(1A) of the Act which provides that any sale, gift, exchange, mortgage or transfer of waqf property shall be void ab initio. It is submitted that the original petitioner has filed the main petition, however, there are several facts, which are required to be brought on record of the Court and that the original petitioner has not disclosed the facts accurately. Therefore, to bring to the notice of the Court the entire record, the applicant is required to be joined as party respondent.

5. Learned advocate appearing for the opponent-original petitioner has opposed the application with the fundamental argument that the issue whether the property in question is a waqf property or not was a subject matter of adjudication in Civil Suit filed before the Civil Court viz. Criminal Misc.Application No.140 of 1981 before the Civil Judge, Ahmedabad (Rural) against the decision of Joint Charity Commissioner, Ahmedabad pertaining to the status of the property in question and by order dated 18.04.1998, allowed the application holding that the subject land is not a property of the trust (now recognized as "Wakf").

6. Learned advocate appearing for the opponent-original petitioner drawn attention of this Court to the various provisions of the Act and submitted that the applicant-board has not resorted to remedy available to question the decision of the Civil Court holding the property in question as a private property with no challenge to such finding of the Civil Court, the property cannot be treated to be a property of Waqf Board, and therefore, no interest of waqf board can be recognized. He drew attention of this Court to Section 90(3) under which the remedy was

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available, but was not availed by the applicant board.

7. Learned advocate appearing for the opponent-original petitioner also drew attention of this Court to Sections 6(5) and 7(5) of the Act and submitted that the proceedings which were pending prior to coming into force of the Act, the said Act cannot be made applicable. It is submitted that the original petition is pertaining to the revenue proceedings under Section 65 of the Bombay Land Revenue Code, which does not decide any title, but is only pertaining to revenue entries and does not decide any civil right, and therefore, also, the applicant is not necessary party to the main proceedings. He relies upon the decision of this Court in the case of Dhansukhbhai Somabhai Ahir Vs. State of Gujarat passed in Special Civil Application No.5924 of 2019 dated 20.01.2020 and decision of Apex Court in the case of Sardar Khan & Ors. Vs. Syed Najmul Hasan reported in AIR 2007 SC 1447, more particularly Paragraph No.12 of the said judgment.

8. In rejoinder, the learned advocate for the applicant has submitted that the the said property is declared as private property of the year 1998 by the Civil Court, however, the Act has come into operation in the year 1995, and therefore, after creation of Waqf board, the applicant-board was a necessary party in those proceedings as well. It is submitted that the original petitioner is aware about the interest of the Waqf Board in the property, as the original petitioners have themselves filed an application before the board for removal of their names from the list of property i.e. to say post amendment in the PTR. It is also submitted that over the period of time, original petitioners have conducted themselves in a manner without showing scant

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regards for law, and therefore, to put all the factors in correct perspective, the applicant is required to be joined as party respondent.

9. Having considered the rival submissions of the parties and having perused the documents on record, the original petition is filed for the grant of N.A.Permission by the respondent no.2- Collector, Ahmedabad in connection with property bearing Survey No.776, having final plot No.16 of Town Planning Scheme No.89 admeasuring 5281 Sqr.Mtrs at Mouje Vatva, Ta:Ahmedabad (City).

10. Undoubtedly, the litigation has a long history, however, qua the purpose of present application the relevant fact is whether waqf board is vested with any right, title or interest in the property by vitue of operation of the Act. For this purpose, it will be necessary to observe that applications being Civil Misc.Application No.140 of 1981, Civil Misc.Application No.87 of 1981 and Civil Misc.Application No.270 of 1982 were filed before the 3rd Extra Assistant Judge, Ahmedabad (Rural), wherein the the very issue whether the property in question is belonging to Hajrat Kutbealam (Rehmatulla Ale) Trust or is of the private ownership of the original petitioners and/or his family members was for consideration, wherein the judgment was pronounced on 18.04.1998 by the 3rd Extra Assistant Judge, Ahmedabad (Rural) holding such property to be private properties, and thereby, setting aside the orders of the Joint Charity Commissioner, which held such properties to be trust property. The decision of Civil Court of appropriate jurisdiction was never challenged before any other forum and apparently attained the finality.

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11. Section 90(3) reads as under:-

"90.Notice of suits, etc. by courts:- (1) In every suit or proceeding relating to a title to or possession of a 1 waqf property or the right of a mutawalli or beneficiary, the court or Tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding.

(2) ........

(3) In absence of a notice under sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within (six months) of its coming to know of such suit or proceeding, applies to the Court in this behalf."

12. In the facts of this case, nothing is on record to indicate that the board has in any manner invoke provisions of Section 90(3) of the Act.

13. The Apex Court in the case of Sadar Khan (supra) has held in Paragraph No.12 as under:-

"12.In exercise of power under Section 83 of the Act, the wakf Tribunal was constituted on 23.2.1997. By virtue of sub-section (5) of Section 7, it clearly transpires that the Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a Civil Court under sub-section (1) of Section 6, before the commencement of this Act, i.e., if any suit has been instituted in any Civil Court prior to coming into force of The Wakf Act, 1995, then the Tribunal will have no jurisdiction to decide such matter and it will be continued and concluded as if Act has not come into force."

14. In view of the aforesaid, when there is judicial pronouncement with regards to the land being of private ownership, the Court is of the considered view that the Waqf Board will not have any authority to treat the property in question to be that of property of the Waqf only, and therefore, it

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cannot be said that the board is having any interest by virtue of Section 51 and 51(A) of the Act. The board, therefore, is not a necessary or appropriate party for the purpose of the dispute which the Court is to deal in the main petition. The application is therefore, required to be dismissed and accordingly, dismissed.

(A.Y. KOGJE, J) GIRISH