Gujarat High Court
The Gujarat State Waqf Board ... vs Shaikh Aunali Ismailji Ezzy on 19 March, 2021
Bench: Biren Vaishnav
C/CRA/162/2020 CAVJUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/CIVILREVISIONAPPLICATIONNO. 162 of 2020
With
R/CIVILREVISIONAPPLICATIONNO. 186 of 2020
FORAPPROVALANDSIGNATURE:
HONOURABLEMR. JUSTICEBIRENVAISHNAV
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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THEGUJARATSTATEWAQFBOARDTHROUGHITS CHIEFEXECUTIVEOFFICER
Versus
SHAIKHAUNALIISMAILJIEZZY
==============================================================================
Appearance:
MR SHALINMEHTA,SR. COUNSELwith MRMANISHS SHAH(5859)for the Applicant(s) No.
MRMEHULS. SHAH,SR. COUNSELwith MRR.K.MANSURI(3205)for the Opponent(s)No. 1
MRMTMHAKIM,ADVOCATEfor SAQUIBS ANSARI(7152)for the Opponent(s)No. 2
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CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date: 19/03/2021
COMMONCAVJUDGMENT
1. Both Civil Revision Applications were heard together and
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hence are being disposed of by this common CAV
Judgment.
2. Both these Civil Revision Applications have been filed
under the provisions of Section 83(9) of the Waqf Act,
1995 read with Section 115 of the Code of Civil Procedure.
These Revision Applications have been filed to challenge
the order dated 22.9.2020 passed by the Gujarat State
Waqf Tribunal, Gandhinagar in Appeal No.30 of 2019.
3. Civil Revision Application No.162 of 2020 has been filed
by the Gujarat State Waqf Board challenging the order of
the Tribunal which quashed and set aside the order dated
23.9.2019 passed by the Board. Civil Revision Application
No.186 of 2020 has been filed by one Muniruddin
Fakruddin Farooqi - Respondent No.1 in the Appeal
before the Tribunal.
4. The facts in brief are as under:
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* Shaikh Aunali Ismailji Ejji preferred an application No.73
of 2018 in the prescribed form under Section 36 of the Waqf Act
in April, 2018 to register one Trust by the name of Molayee
Yakub Saheb Dargah, Daudi Bohra Samaj Qubrastan Waqf,
Patan. The application was to register the Trust as a Waqf.
Alongwith the application, the Applicant gave a declaration of
Waqf in which he made a statement on oath regarding the
properties owned by the Waqf. As prescribed under the Act, a
paper publication was made inviting objections, if any, against
the registration of the Waqf as made by the Applicant Shaikh
Aunali Ismailji Ejji. Since no objections were received, the
registration was made of the Waqf by the Board under Section
36 of the Waqf Act by an order dated 20.6.2018. The Trust was
registered as Maulana Yakub Sahed Dargah, Daudi Bohra
Samaj Qubrastan Waqf and a certificate was issued under
Section 36 of the Act.
* On 24.6.2018, the Applicant of Civil Revision Application
No.186 of 2020 Muniruddin Fakruddin Farooqi raised an
objection which was received by the Board on 12.3.2019. He
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claimed to be the Administrator of a Trust registered under the
Bombay Public Trust Act. As per the objection so received, it
was the case of the objector / Civil Revision Applicant
No.186/2020 that the Trust that was registered by the order
dated 20.6.2018 had a similar name as that of one of the Trusts
and the objection further was that inquiry ought to be made as
to the claim of the Trust regarding the properties of Waqf
including Dargah and Qubrastan. On the objection being
received, the Board made inquiries. An inquiry report was
submitted by the members of the petitioner Board on 6.7.2019.
The inquiry report prima facie recorded a finding that as per
the claim of the Applicant whose Waqf was registered on
20.6.2018, there was no Dargah or Qubrastan found as claimed
in the application and what was in fact found was one in the
Shopping Center. The inquiry report was so filed opining that
the Waqf Board had been misled into registering the Trust and,
therefore, the registration ought to be cancelled. A show cause
notice was issued by the Waqf Board on 25.7.2019 to the
Respondent No.1 of Civil Revision Application No.162 of 2020
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namely Shaikh Aunali Ismailji Ejji asking him to show cause as
to why the registration should not be cancelled. In response to
the show cause notice, the Respondent No.1 responded by
saying that the object of the Trust was to provide facility of food
and stay to the devotees to the Dargah of Molayee Yakubsaheb
Dargah and there was therefore no false or a misleading
statement made. The Board, however, by an order dated
23.9.2019 cancelled the registration of the Trust of the Waqf of
the Respondent No.1. After the order was so made, the
Respondent No.1 filed an appeal namely; Waqf Appeal
No.30/2019 before the Gujarat Waqf Tribunal. The Tribunal by
the order impugned in these revision applications dated
22.9.2020 set aside the order of the Board dated 23.9.2019 by
which the Board cancelled the registration of the appellant
Trust. The Tribunal further held that the order of cancellation
of registration was made without giving a notice to the sole
Trustee. It also held that it was not open for the Waqf Board to
review its own order of registration and if the registration was
so made and if the Board or any party was aggrieved by the
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registration, such a party could have filed an appeal under
Section 83(2) of the Waqf Act.
* It is against these orders reversing the order cancelling
registration and, therefore, restoring the registration of the
Respondent No.1 of Civil Revision Application No.163 of 2020,
that the Board and the original objector are before this Court in
Revision.
5. In Civil Revision Application No.162/2020, Mr. Shalin
Mehta, learned Senior Counsel with Mr. Manish R. Shah,
learned advocate for the Applicant has appeared for the
Applicants whereas Mr. Mehul S. Shah, learned Senior
Counsel with Mr. R.K. Mansuri, learned advocate has
appeared for Respondent No.1. Mr. MTM Hakim, learned
counsel has appeared with Mr. Saquib S. Ansari for the
objector Respondent No.2.
6. In Civil Revision Application No.186 of 2020 filed by the
objector Muniruddin Fakruddin Farooqi, Mr. MTM
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Hakim, learned Counsel who appears for the original
Respondent No.2 in Civil Revision Application No.162 of
2020, has appeared for the Applicant while Mr. Shalin
Mehta, learned Senior Counsel with Mr. Manish R. Shah,
learned advocate appeared for Respondent No.1 whereas
Mr. Mehul S. Shah, learned Senior Counsel with Mr. R.K.
Mansuri, learned advocate has appeared for Respondent
No.2 Shaikh Aunali Ismailji Ejji in whose favour the
appeal is allowed by the Tribunal.
7. While arguing for the Gujarat State Waqf Board (For
short, hereinafter referred to as `Board'), Mr. Shalin
Mehta, learned Senior Counsel with Mr. Manish R. Shah,
learned advocate would take the Court through the
various provisions of the Waqf Act, namely, Section 3(c)
which defines "Board," Sec. 13 which provides for
"Incorporation" of the Board", Section 13(3) which
provides that the Board is a Body Corporate. Sections 17
and 18 which provide for the "Meetings of the Board" and
"Committees of the Board". Section 30 which provides for
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"Inspection of Records" and Section 32 which provides for
"Powers and functions of the Board". He has also taken
the Court to the Provisions of Sections 72, 75, 79 and 80.
By reading these Provisions, Mr. Shalin Mehta, learned
Senior Counsel would contend that the Board is a Body
Corporate constituted under the Provisions of the Waqf
Act. Inviting the Court to the Provision of Section 92, Shri
Mehta would submit that a Board can be a party to any
suit or proceeding in respect of a Waqf and may appear
and plead as a party to such suit or proceedings. He would
therefore submit that from a conjoint reading of all the
provisions what is apparent is that the Waqf Board is
neither a judicial body nor a quasi judicial body. According
to him, it is an administrative body exercising mainly
administrative functions and rarely some quasi judicial
functions. Assailing the order of the Tribunal by which the
order of the Board canceling the registration was set
aside, Mr. Mehta, learned Senior Counsel would submit
that as an administrative body, the Board had the power
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to cancel the Registration of a Waqf even if there was no
express power to do so. For this, he would rely on the
provisions of Section 21 of the General Clauses Act.
* Mr. Shalin Mehta, learned Senior Counsel would submit
that the power to grant registration to a Waqf is an
Administrative Function. It is neither a Judicial nor a Quasi
Judicial function as granting such registration is akin to
granting registration either to a Company or a Cooperative
Society or a Public Trust. There are no trappings of a Judicial
or a Quasi Judicial power. He would therefore submit that if
the Board in discharge of its administrative power had recalled
the earlier order and cancelled the registration of the
Respondent No.1, the decision taken while exercising
administrative function can be reviewed even in absence of an
express power in the Waqf Act. Even otherwise, according to
Mr. Mehta, if the decision was taken in exercise of a judicial or
a quasi judicial function, it can be reviewed if there is a fraud or
concealment or misrepresentation of fact. Despite express
power to review, conferred by a statute when there is a fraud or
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concealment, it is always possible to review the order passed by
the Board. In support of his submissions, he relied on the
decision in the case of Sarabjit Singh vs Ms. Gurpal Kaur
reported in AIR 1996 SC 2592 (Paragraph No.20 thereof) to
submit that it is always open for an authority to recall his order
if the same is obtained by fraud. Reliance was also placed on
paras 17 and 36 of the decision in the case of Chintpurni
Medical College And ... vs The State Of Punjab reported in
2018 (15) SCC 1. Reliance was also placed on the Division
Bench decision of Allahabad High Court in Writ Petition
No.67820 of 2013 in the case of Mohammad Khalil v. U P
Sunni Central Waqf Board. Mr. Mehta has also relied on the
decision in the case of Syed Zahiruddin Ahmed Baghadadi
v. Board of Waqfs and others reported in 2008 (Law Suit)
Calcutta, 811 (Paragraph Nos.46 and 51 to 59 thereof).
* Mr. Shalin Mehta, learned Senior Counsel would submit
that the Board has a locus / power to cancel the registration of
the Waqf if it is obtained by fraud and misrepresentation. He
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would rely on the inquiry report and show cause notice to
submit that what is evident from the report is that on inquiry it
was found that there is no Dargah or Qubrastan and, therefore,
the application made by Shaikh Aunali Ismailji Ejji for
registration of the Trust had been made so by a fraud.
8. Since Mr. MTM Hakim, learned counsel appearing with
Mr. Saquib S. Ansari, learned advocate also appeared
assailing the order of the Tribunal, the Court thought it
fit to take a consolidated view and, therefore, before
inviting Mr. Mehul Shah the common Respondent, Mr.
Hakim was also invited to make his submissions in Civil
Revision Application No.186 of 2020 where the objector
Muniruddin Fakruddin Farooqi for whom Shri Hakim
appears is aggrieved by the order inasmuch as, the
registration which was cancelled by the Board on recalling
the order of registration has been set aside by the
impugned order of the Tribunal. He has made the
following submission:
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* He would submit that he would agree with Mr. Shalin
Mehta, inasmuch the impugned order passed by the Waqf
Tribunal is illegal and without jurisdiction and the findings of
the Tribunal that the Waqf Board does not have power to
review its own order and, therefore, could not have cancelled
the registration is clearly an erroneous finding of the Tribunal.
* Mr. MTM Hakim would submit that considering the
Scheme or the Provisions of the Waqf Act, the Waqf Board is a
quasi judicial authority. In accordance with the settled
principles, therefore, if an order passed by the quasi judicial
authority is obtained by fraud, misrepresentation and / or
deceit, the quasi judicial authority or an administrative
authority has an inherent jurisdiction to exercise powers of
review and recall the order even if there are no specific
Provisions in the Statute. He also would in support of his
contention that the Waqf Board is a quasi judicial authority
invite the Court's attention to the provisions of following
Sections of the Waqf Act.
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(i) Section 32 Powers and Functions of the Waqf
Board,
(ii) Section 36 Registration, Section 37 Register
of Auqaf,
(iii) Section 39 Powers of the Board in relation to
Auqaf which have cease to exists,
(iv) Section 40 Decision if a property is a Waqf
property,
(v) Section 52 Recovery of Waqf property
transferred in contravention of Section 51,
(vi) Section 64 Removal of Mutawalli,
(vii) Section 67 Supervision and Supersession of
Committee of Management,
(viii) Section 69 Power of Board to Frame Scheme
for Administration of Waqf,
(ix) Section 70 Inquiry Relating to Administration
of Waqf,
(x) Section 71 Manner of Holding Inquiry and
more particularly, Section 71 subSection 2.
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* In support of his submissions, that the Waqf Board is a
quasi judicial authority, Mr. Hakim relied on the following
decisions:
[a] AIR 1982 KAL 288 - Sk Abdul Latif Vs.
Commissioner of Wakf and Another;
[b] (2019) 3 KLT 1064 (Ezhome Sunni Valiya
Juma Masjid and Darul Uloom Madrasa
Committee Vs. Chief Executive Officer, Kerala
State Waqf Board) &
[c] 2008 Lawsuit (Kal) 811 - Syed Zahiruddin
Ahmed Baghdadi Vs. Board of Waqfs and Ors
* Mr. Hakim would submit that if the judgment of the
Calcutta High Court in Abdul Latif (Supra) is perused, the
same is in the context of Section 27 of the Bengal Waqf Act
which is akin to Section 32 of the Waqf Act, 1995 and it is
evident therefore that the Court held that the Board exercises
quasi judicial powers. Relying on the Kerala High Court
Judgment in the case of Ezhome Sunni Valiya Juma Masjid
(Supra) where the provisions of Sections 14 and 32 have been
considered, Mr. Hakim would submit that it is evident that the
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Board exercises quasi judicial powers. In the case of Syed
Zahiruddin Ahmed Baghdadi (Supra), it was evident on
reading that the Court had held that the Board sometimes
exercises administrative as well as quasi judicial powers and
when it exercises such powers of registration under Sec.36,
such powers are exercised as quasi judicial authority.
9. On the question whether a quasi judicial authority has an
inherent jurisdiction to exercise powers of review and
recall, even in absence of a specific provision in the
Statute, Shri Hakim relied on the following decisions:
(I)(2000) 3 SCC 581 - United India Insurance Co.
Ltd. Vs. Rajendra Singh and Ors.,
(II) (2005) 13 SCC 777 - Kapra Mazdoor Ekta
Union Vs. Birla Cotton Spinning and Weaving
Mills Ltd and Anr.,
(III) (2007) 4 SCC 221 - A.V. Papayya Sastry
and Others Vs. Govt. of A.P. and others &
(IV) (2019) 14 SCC 449 Jal Vidyut Nigam
Versus Raj Kumar Rajinder Singh (Dead)
through legal representatives and others.
. He would submit that when an order has been obtained
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through fraud or misrepresentation, any Court or
authority has a power to review, recall or reconsider the
order. Reading the aforesaid line of decisions, Mr. Hakim
would submit that even where there is no inherent power
of review provided in a Statute, when there is fraud writ
large based on which the order has been passed, fraud
would vitiate the act and, therefore, any authority, in the
present case the Waqf Board, had the power to recall the
order. He would therefore submit that the order of the
Waqf Board dated 23.9.2019 by which the registration of
the Respondent was cancelled ought not to be set aside by
the Tribunal on the ground that the Board had no power
to review the same. He would further submit that even
Sec. 21 of the General Clauses Act when read with Section
41 of the Waqf Act provided that a power to quash or
amend also provides the power to rescind or take away.
10. Mr. Hakim would submit that from the chronology of
events it was clearly evident that the Respondent No.2 of
Civil Revision Application No.186/2020, had made serious
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fraud and misrepresentation by obtaining registration in
the name of "Molayee Yakubsaheb Dargah Daudi Bohra
Qubrastan Waqf (Patan)" though there was neither any
Qubrastan and / or Dargah and when it was the case of
the Applicant i.e. Mr. Hakim's client by way of an
objection that it was receptively similar to the registration
of their Trust namely; Moualana Mehboob Dargah and
Masjid and Qubrastan, Patan. He submitted that
therefore there was a fraud and deception played by
Respondent No.2 and, therefore, the Board had rightly
cancelled the registration and the Waqf Tribunal ought
not to have upset the order.
11. Mr. Mehul Shah, learned Senior Counsel appearing for
the Beneficiary in whose favour the order of the Tribunal
has been passed and the objector's application of
cancelling the registration has been reversed and the
registration of Shaikh Aunali Ismailji for whom he
appears has been restored, would submit as under:
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* Mr. Mehul Shah, learned Senior Counsel would take the
Court through the application and the declaration filed
therewith for registration of the Trust under Sec. 36 of the
Waqf Act. Reading the application from the paper book, he
would submit that it was categorically stated that the
Waqf property was situated at Panchmukhi Darshan
Shopping Center, S 17, second floor, City Survey No.2406
/ 5 / 17, village Bhungadi, District Patan. It was given to
the Waqf and the registration was sought so that the
property was given for the benefit of the pilgrims who
came to the Dargah. He would invite the Court's attention
to the declaration made and submitted alongwith the
application dated 23.3.2018. The registration was granted
after publication of a Public Notice and after due inquiry.
Reading of the application would indicate when read in
context of the provisions of Section 36 of the Act that the
application is in the nature of a plaint which has to be
verified as a plaint in accordance with the provisions of
the Code of Civil Procedure, 1908. Findings were recorded
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in the order granting registration. The order, therefore,
becomes an order in exercise of powers under a quasi
judicial role. The same cannot be recalled or reviewed in
absence of any fraud being played by the Applicant who
sought registration and was granted so.
* Mr. Mehul Shah, learned Senior Counsel would submit
that if Section 36 is read it is no manner of doubt that every
application made under Section 36 has to be signed and verified
by the Applicant in the manner provided in the Code of Civil
Procedure for signing and verification of pleadings. Before
registration, the Board makes inquiries as it thinks fit in
respect of the genuineness and validity of the application and
the correctness of any particulars therein and when the
application is made, such an application is granted after giving
an opportunity of hearing, if so desired. In other words, it is not
a manner of doubt with the powers of registration so exercised
is a quasi judicial power.
* Mr. Mehul Shah, learned Senior Counsel would submit
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that the Waqf Board has no locus to file Civil Revision
Application because it cannot be said to be a person aggrieved.
In support of this, Mr. Mehul Shah, learned Senior Counsel
would rely on the decision in the case of Aayukhan Nurkhan
Pathan v. State of Maharashtra reported in 2013(4) SCC
465. He would submit that the tribunal committed no error in
holding that if any party including the Board is aggrieved by
the registration of the Trust it could so challenge it by filing an
appeal under Section 83 of the Waqf Act. He would then take
the Court to the provisions of Section 83 of the Waqf Act.
* In support of his submission that the order passed of
registration under Section 36 is a power in exercise of quasi
judicial functions. Mr. Mehul Shah, learned Senior Counsel
would rely on the following decisions:
Sr. Party Name Citation
No.
1 Naresh Kumar Vs. Govt. of 2019 (9) SCC
2 KalaBharti Advertising Vs. 2010(9) SCC
3 Ali Makin Naqvi Vs. UP Shia 2008 SCC
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Central Board Online ALL 617
4 Alok Sarkari Grih Nirman Vs.
Shia Central Waqf Board
5 Kapra Mazdoor Ekta Union Vs. 2005(13) SCC
Mgmt. of Birla Cotton Spinning 777
and weaving.
6 C.A Aboobacker Vs. The State 2020(2) KLT
7 A.K. Jamal Vs. Union Of India WP(C) NO.
2623 of 2020
* Mr. Mehul Shah, learned Senior Counsel would further
submit that if the provisions of the Waqf Act are read, there is
no express provision of review provided in the Act. Therefore,
admittedly the Waqf Board has no power of review vested in it
to recall its own orders as a quasi judicial authority.
12. Assuming without admitting that a quasi judicial
authority would have power to recall its own order in
absence of any statutory provision on account of fraud or
misrepresentation, he would invite the attention of the
court to the contents of the show cause notice and would
submit that the only ground on which the Board issued a
show cause notice was that according to the Board the
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application and the order had been passed on the ground
that the Applicant had misled the Board. There was no
allegation of fraud.
13. Inviting the attention to the provisions of Sections 17 and
18 of the Indian Contract Act, 1872 where fraud and
misrepresentation are defined, Mr. Shah, learned Senior
Counsel would submit that an element of fraud would
require intentional, willful and an overt act. The
Applicant had filed the application for registration in the
prescribed format alongwith the necessary documents and
the Waqf Board passed an order under Section 36 of the
Act. Nothing was suppressed. It was the specific case in
the application that the property i.e. the shop in the
shopping center was to be given for food and shelter of the
pilgrims who visit the Dargah. It was a clear statement of
fact from the beginning that the Waqf of the said property
is done to provide and manage certain facility to pilgrims
who visit Dargah. A quasi judicial authority like the
Board cannot review the order and cancel the registration
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in absence of any fraud. For the same, he would rely on
the following decisions:
Sr. Party Name Citation
No
1 Chief Engineer MSEB Vs. 2005(10) SCC 465
Suresh Raghunath Bhokare
2 A.C. Ananthaswamy Vs. 2004(8) SCC 588
Borariah (dead) By LRS
3 Harjas Rani Makhija Vs. 2017(2) SCC 797
Pushpa Rani Jain
14. Mr. Mehul Shah, learned Senior Counsel would submit
that the Board on the same date passed two orders i.e. on
23rd September, 2019 recalling the registration and also
passed an order under Section 64 of the Act by which the
Respondent who made the application was removed as
Mutavalli. Essentially the findings of both the orders in
Appeal No.30 of 2019 and Appeal No.28 of 2020 are the
same and both the Applicants have not challenged these
orders. The revision applications therefore are barred by
res judicata. He would rely on the following decisions for
the said submission:
Sr. Party Name Citation
No.
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1 Premiere Tyre Ltd. Vs. Kerala AIR 1993 SC
State Road Transport 1202
Corporation.
2 Shri Gangai vinayagar Temple 2015 (3) SCC
3 Darayas Bamansha Medhora 2002 (1) GLR
Vs. Nariman Bamansha 474
Medhora
15. In rejoinder, Mr. Hakim on the question of res judicata in
context of the findings in Appeal No.28 of 2020 would
submit that the submission of Shri Shah on the aspect of
res judicata is wholly misconceived both in law and facts.
The Civil Revision Applications are essentially preferred
challenging the order passed in Waqf Appeal 30 of 2019.
In the order passed in Waqf Appeal No.28 of 2020 wherein
the order under Section 64 of the Act was passed
removing the Respondent No.2 of the Trust as Mutawalli,
the Applicants of the Civil Revision Application are not
aggrieved as such because that was in context of another
Trust and, therefore, the same is not challenged.
16. Having considered the submissions of the learned
Counsels for the respective parties, the moot question that
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needs to be decided is whether the powers that the Board
exercised under Section 36 of the Waqf Act are
administrative or judicial or quasi judicial and even if
either way they are administrative or quasi judicial, was
it proper for the Board to recall its own orders once having
granted registration to the Trust, on an objection being
lodged by the Applicant of Civil Revision Application
No.186 of 2020. All the learned counsels have taken this
Court through the provisions of the relevant sections of
the Waqf Act.
17. Reading the provisions, before going to decide on the
power of the Board whether the Board had the power to
recall its own order without any specific provisions in the
Act, reading provisions of Section 13 of the Act would
indicate that the Board is a Body Incorporated under the
Act by the State Government. It is an administrative
body, incorporated to supervise and manage the Waqfs
within the State of Gujarat. In discharge of its duties, in
order to carry out the intentions under the Act at some
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stages or reading provisions of various sections, such as
Sections 36 and 41 of the Waqf Act, what is evident is that
though it mostly acts in the form of administrative action,
it does take into its fold actions in the form of donning the
role of a quasi judicial authority. When Sections 36, 40
and 41 are read which fall within the same Chapter and
Heading namely; Chapter 5 - Dealing with Registration of
Auqaf what can be seen is that as in the case of
registration whether a property is a Waqf property, the
Board undertakes an inquiry into such questions and
when such inquiry is undertaken, that inquiry is subject
matter of a challenge when read in context of Section 40
with regard to the decision of the Board whether a
property belongs to a Waqf or not. The orders of the Board
taken under Section 40 of the Act are subject to it being
modified for reward by the Tribunal. It will be in the
fitness of things to reproduce Sections 36 and 40 of the
Act, which read as under:
"36. REGISTRATION:
(1) Every 2[waqf], whether created before or after the commencement
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of this Act, shall be registered at the office of the Board.
(2) Application for registration shall be made by the mutawalli:
Provided that such applications may be 3[made by the waqf]
or his descendants or a beneficiary of the [waqf] or any
Muslim belonging to the sect to which the 2[waqf]
belongs.
(3) An application for registration shall be made in such form
and manner and at such place as the Board may by
regulation provide and shall contain the following
particulars:--
(a) a description of the 2[waqf] properties sufficient for the
identification thereof;
(b) the gross annual income from such properties;
(c) the amount of land revenue, cesses, rates and taxes
annually payable in respect of the 2[waqf] properties;
(d) an estimate of the expenses annually incurred in the
realisation of the income of the 2[waqf] properties;
(e) the amount set apart under the 2[waqf] for--
(i) the salary of the mutawalli and allowances to the
individuals;
(ii) purely religious purposes;
(iii) charitable purposes; and
(iv) any other purposes;
(f) any other particulars provided by the Board by
regulations.
(4) Every such application shall be accompanied by a copy of the
2[waqf] deed or if no such deed has been executed or a copy
thereof cannot be obtained, shall contain full particulars, as
far as they are known to the Applicant, of the origin, nature
and objects of the 2[waqf].
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(5) Every application made under subsection (2) shall be signed
and verified by the Applicant in the manner provided in the
Code of Civil Procedure, 1908 (5 of 1908) for the signing and
verification of pleadings.
(6) The Board may require the Applicant to supply any further
particulars or information that it may consider necessary.
(7) On receipt of an application for registration, the Board may,
before the registration of the 1[waqf] make such inquiries as it
thinks fit in respect of the genuineness and validity of the
application and correctness of any particulars therein and
when the application is made by any person other than the
person administering the 1[waqf] property, the Board shall,
before registering the 1[waqf], give notice of the application to
the person administering the 1[waqf] property and shall hear
him if he desires to be heard.
(8) In the case of 2[auqaf] created before the commencement of this
Act, every application for registration shall be made, within
three months from such commencement and in the case of
2[auqaf] created after such commencement, within three
months from the date of the creation of the 1[waqf]:
Provided that where there is no Board at the time of creation
of a 1[waqf], such application will be made within
three months from the date of establishment of the
Board.
40. Decision if a property is 1[waqf] property.--
(1) The Board may itself collect information regarding any property
which it has reason to believe to be 1[waqf] property and if
any question arises whether a particular property is 1[waqf]
property or not or whether a 1[waqf] is a Sunni 1[waqf] or a
Shia 1[waqf], it may, after making such inquiry as it may
deem fit, decide the question.
(2) The decision of the Board on a question under subsection (1)
shall, unless revoked or modified by the Tribunal, be final.
(3) Where the Board has any reason to believe that any property of
any trust or society registered in pursuance of the Indian
Trusts Act, 1882 (2 of 1882) or under the Societies
Registration Act, 1860 (21 of 1860) or under any other Act, is
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1[waqf] property, the Board may notwithstanding anything
contained in such Act, hold an inquiry in regard to such
property and if after such inquiry the Board is satisfied that
such property is 1[waqf] property, call upon the trust or
society, as the case may be, either to register such property
under this Act as 1[waqf] property or show cause why such
property should not be so registered:
Provided that in all such cases, notice of the action proposed to be
taken under this subsection shall be given to the authority by
whom the trust or society had been registered.
(4) The Board shall, after duly considering such cause as may be
shown in pursuance of notice issued under subsection (3),
pass such orders as it may think fit and the order so made by
the Board, shall be final, unless it is revoked or modified by a
Tribunal. "
18. Therefore, though Mr. Shalin Mehta would contend that
the powers of the Board are purely administrative in
nature, and Mr. Hakim would submit that it exercises
powers as a judicial authority what is evident on reading
the decision in the case of Syed Zahiruddin Ahmed
Baghadadi (Supra) is that the Board can exercises both
the administrative as well as quasi judicial powers.
Relevant paragraph Nos.27, 28, 40 and 44 to 54 are
reproduced hereunder:
"27. In consideration of the respective party's submission in
the present matter, it is revealed that the moot question of
dispute here lies in, firstly in respect of appointment of
Respondent No.3 as Mutwali by the Board of Wakfs and
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secondly in the cancellation of such appointment of
Respondent No.3 on the application by the present petitioner,
by a subsequent order.The grievance from the side of the
Respondents, specifically Respondent No.3 remained in
asking the authority of the Board of Wakfs to review its own
order and to pass an subsequent order adverse to the first one
by way of canceling of appointment of Mutwali. It is fact that,
though 'canceling of appointment' of a Mutwali has not been
prescribed in the Wakf Act, 1995 in such wording, there is
provision for removal of Mutwali under statutory provision of
Section 64 of the Act.
28. Before going to any further detail to analyse the
authority of the Board of Wakf to reverse its previous order
without taking the course of review (which the present act
does not provide) or an enquiry as per provision of Section 64
of the Act, the reference of the powers and function of the
Board as provided in the Wakf Act, 1995 is to be looked into
in respect of the appointment and removal of the Mutwali.
Section 32(1) of the Act reads as follows : "Subject to any
rules that may be made under this Act, the general
superintendence of all Wakfs in a State shall vest in the
Board established for the State; and it shall be the duty of the
Board so to exercise its powers under this Act as to ensure
that the Wakfs under its superintendence are properly
maintained, controlled and administered and the income
thereof is duly applied to the objects and for the purposes for
which such Wakfs were created or intended: Provided that in
exercising its powers under this Act in respect of any Wakf,
the Board shall act in conformity with the directions of the
Wakif, the purposes of the Wakf and any usage or custom of
the Wakf sanctioned by the School of Muslim law to which the
Wakf belongs. Explanation: For the removal of doubts, it is
hereby declared that in this subsection, 'Wakf includes a
Wakf in relation to which any scheme has been made by any
Court of law, whether before or after the commencement of
this Act."
40. I agree with the submission of Mr. S. P. Ray
Chowdhury, the learned Senior Counsel for the Respondent
No.3 that the Act does not provide any specific provision for
review of it's own order by the Board and that the Board can
only remove a Mutwali only as per provision of Section 64 of
the Act. I also agree with Mr. Ray Chowdhury that the
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specific conduct as provided in Clauses A(a) (k) was not the
cause of removal of the Respondent No.3 from Mutwali, by the
resolution of the Board dated 14.10.1999.
44. But the moot question still remains to be decided whether
order by way of cancellation without having the provision of
review in the act or without holding any enquiry as per
provision of Section 64 of the Act, can be sustained.
45. Before going to decide on the point of power of the Board
to recall its own order without any specific provision inthe
Act, the status of the Board is to be scanned. The provision of
Section 13 of the Wakf Act, 1995 is in respect of incorporation
of the Board which is appointed by the State Government by
the notification in the official gazette and is a body corporate
having perpetual succession. The Wakf of Board is not
conglomeration of individuals and not even akin to company
but is a statutory body, pure and simple. It is an
administrative body incorporated to supervise Wakf in the
Estate and its management and administration.
46. So it is found that the Board of Wakf is an Administrative
body created by the statute and its acts are mostly in the form
of administrative action and such administrative action
sometimes takes the form of quasi judicial action when the
Board is to go through some enquiry procedure for arriving on
some decisions in relation to the Wakf. The process of
appointment and the removal of a Mutwali comes within such
quasi judicial process of the Borad of Wakf.
47. In this context, Mr. Banerjee, learned Senior Advocate for
the petitioner submitted that even though there is no provision
of review in the Act itself, the Board has every power to recall
its previous order which has been obtained by concealment or
misrepresentation of fact which amounts to fraud. In this
regard, Mr. Banerjee earlier relied upon the decision reported
in 1992 (1) Supreme Court Cases 534 to argue that fraud is
product of deliberate active role of representator in respect of
some fact which he knows to be untrue and still by making
such misrepresentation, he succeeds in obtaining an order in
his favour by misleading the representee making him to
believe his representation to be true.
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48. In this context reference may be made to the order dated
30.1.1995 of the Board by which the Respondent No.3 has
been appointed as Mutwali and also to the resolution dated
14.10.1995, to ascertain that the Respondent No.3 procured
her appointment only producing the Deed of Trust left by her
husband Badruddin Ahmed. It is nobodys' denial that the
Deed of Wakf which never recited that the future Mutwali
would be able to create any Deed of Trust or other document
for selecting a person of his choice to be future Mutwali on his
demise. In this context, reference may be made to 1969 (2)
ACC 471 (Ahmed G. H. Hariff and Ors. v. Commissioner of
Wealth Tax, Kolkata). It has been observed by the Hon'ble
Apex Court that "the moment of Wakf is created' all rights of
property pass out of Wakif and vest in the Almighty.
Therefore, the Mutwali has no right in the property belonging
to the Wakf. He is not a Trustee in the technical sense, his
position been merely that of a Superintendent or a Manager.
A Mutwali has no power; without the permission of the Court,
to mortgage, sale or exchange of Wakf Property or any part
thereof unless he is expressly empowered by the Deed of Wakf
to do so".
49. From such observation of the Hon'ble Court as well as
from the description of Mutwali in Wakf Act, it is revealed
that the Mutwali has got no independent authority to transfer
his right in the Wakf to some person of his/her choice by
creating any instrument to that effect. However, such an act is
not totally restricted on the Mutwali since a Mutwali can do
so if so authorised by the original Deed of Wakf containing the
desire of the Wakif or in the event he has taken the permission
of a Court in that respect.
50. If such an act on an existing Mutwali is restricted, the last
Mutwali Badruddin Ahmed had no authority to create any
Deed of Trust in favour of a person of his choice, his wife Mst.
Nazira Khatoon in the present case. As already discussed, the
original Deed of Wakf contained the version of succession of
Mutwali by way of lineal male descendent of original Mutwali
and in that case, the Respondent No.S's eligibility to become a
Mutwali was not clean since she is not indirectly authorised
to apply for such in the original Deed of Wakf. Absence of
eligibility of the Respondent No.3 was in the mind of the
Respondent No.3 herself and as her husband Badruddin
Ahmed was the last Mutwali, the privilege of such office could
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not be ignored by the Respondent No.3 and for that reason
there was a creation of unauthorised Deed of Trust by
Badruddin Ahmed. Order of the Board dated 30.1.1995
shows that the Respondent No.3 referred the original Deed of
Wakf before the Board at the time of hearing an enquiry for
selection to the office of Mutwali since there was no mention
or reference of such Deed of Wakf in the said order. Since the
original Deed of Wakf was not referred to or placed before the
Board by the Respondent No.3 at the time hearing of her
application for appointment as Mutwali to establish the
authority for creation of such Deed of Trust by Badruddin
Ahmed, it may be treated as concealment of fact and that
concealment might have been done by the Respondent No.3 for
the purpose of her success with an order of her appointment to
the office of Mutwali. This act of Respondent No.3 was for the
purpose of creation of an impression in mind of the members
of the Board of Wakf that she was properly authorised by the
last Mutwali to ascend to the chair of Mutwali.
51. In this context, the practice of fraud by way of mis
representation and concealment of fact, a reference can be
made to the view of the Hon'ble Apex Court in a decision
reported in 2004 (3) Supreme Court Cases 1 (Ashok Leyland
Limited v. State of T.N. and Anr.) wherein the Hon'ble Court
held "Suppression of a material document would also amount
to a fraud on the Court" and in this context the Hon'ble Apex
Court made reference to Shrisht Dhawan of the said Court
wherein it was held: "Fraud and collusion vitiate even the
most solemn proceedings in any civilised system of
jurisprudence. It is a concept descriptive of human conduct.
Michael Levi likens a fraudster to Milton's sorcerer, Comus,
who exulted in his ability to, 'wing me into the easyhearted
man and trap him into snares'. It has been defined as an act
of trickery or deceit. In Webster's Third New International
Dictionary fraud in equity has been defined as an act or
omission to act or concealment by which one person obtains
an advantage against conscience over another or which equity
or public policy forbids as being prejudicial to another. In
Black's Legal Dictionary, fraud is defined as an intentional
perversion of truth for the purpose of inducing another in
reliance upon it to part with some valuable thing belonging to
him or surrender a legal right; a false representation of a
matter of fact whether by words or by conduct, by false or
misleading allegations, or by concealment of that which
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should have been disclosed, which deceives and is intended to
deceive another so that he shall act upon it to his legal injury.
In Concise Oxford Dictionary, it has been defined as criminal
deception, use of false representation to gain unjust
advantage; dishonest artifice or trick. According to Halsbury's
Laws of England, a representation is deemed to have been
false, and therefore a misrepresentation, if it was at the
material date false in substance and in fact. Section 17 of the
Contract Act defines fraud as act committed by a party to a
contract with intent to deceive another. From dictionary
meaning or even otherwise fraud arises out of deliberate
active role of representator about a fact which he knows to be
untrue yet he succeeds in misleading the representee by
making him believe it to be true. The representation to become
fraudulent must be of the fact with knowledge that it was
false. In a leading English case (Derry v. Peek) what
constitutes fraud was described thus:(All ER p. 22 BC)
'Fraud is proved when it is shown that a false representation
has been made (i) knowingly, or (ii) without belief in its truth,
or (iii) recklessly, careless whether it be true or false."
52. If the Board is deceived by the act of the Applicant for
appointment as Mutwali by way of misrepresentation and
concealment of fact, having no eligibility to be considered to
the office of Mutwali and if any order passed to that effect for
such appointment it may be treated that such order is not
properly authorised order since it is result of practicing of
fraud upon the Board.
53. It has been discussed earlier that the Board shall act in
conformity with the direction of the Wakif and so it is a
mandatory direction upon the Board that it cannot go out side
such direction, if so given, in the Deed of Wakf for the
appointment of future Mutwali. Since the original Deed of
Wakf was not consulted at the time of appointment of
Respondent No.3 as Mutwali, as it appears from the text of
the order dated 30.1.1995 it is revealed that the Board did not
act in conformity with the direction of the Wakif as the Deed
of Wakf created by the Wakif clearly stated that the Mutwali
will continue through the male descendent of the.Original
Mutwali through his sons, grandsons etc. In that case it may
be presumed that the order dated 30.1.1995 has an inherent
and patent error in respect of appointment of Respondent
No.3 as it was not done by obeying the mandatory direction
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upon the Board in respect of its superintendence, control on
the administration of the Wakf. If such an order is passed by
the Board which is embedded with patent error whether the
Board can rectify the same by a subsequent order by following
the mandatory direction as provided in Section 32(1) of the
Wakf Act. In this context, reliance may be made to a decision
reported in AIR 1994 Supreme Court 853 wherein it has been
held: "A litigant, who approaches the Court, is bound to
produce all the documents executed by him which are relevant
to the litigation. If he withholds a vital document in order to
gain advantage on the other side than he would be guilty of
playing fraud on the Court as well as on the opposite party."
54. It is fact that in the four corners of Wakf Act there is no
provision for making review of its own order by the Board of
Wakf nor there is any whisper in any of the sections that the
Board may rectify an error created by a previous order of the
Board passed on the same subject. It is fact that
Administrative Authority has got no inherent power to review
unless such power is conferred upon it by the concerned law
specifically or bye necessary implication and in this respect I
should abide to the decision relied upon by Mr. Ray
Chowdhury as reported in AIR 1970 Supreme Court 1273
(supra). But at the same time it is also to be looked into
whether such an Administrative Authority can recall or
revoke its earlier order which has been obtained by practicing
fraud or concealment of fact and mis representation, without
any application of power of review. In this context, this Court
rely upon a decision reported in AIR 1989 Supreme Court 997
wherein it has been held: "Indeed, the submissions of Sri
Thakur on the point contemplate the exercise of the power to
cancel or revoke the permission in three distinct situations.
The first is where the grant is itself vitiated by fraud or mis
representation on the part of the grantee at the time of
obtaining the grant. To the second situation belong the class
of cases where the grantee, after the grant violates the
essential terms and conditions subject to which the grant is
made. In these two areas, the power to grant must be held to
include the power to revoke or cancel the permit, even in the
absence of any other express statutory provisions in that
behalf. There must, of course be the compliance with the
requirements of natural justice and the grounds must be such
as would justify such drastic action. This cancellation is a
preventive step. The one aspect of the remedial measures is set
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out in Section 27 of the Act. There may be cases of third kind
where the grant may be voidable at the instance of
Development Authority or otherwise entitling the Development
Authority to initiate appropriate declaratory or other action to
get rid of the effect of the permission. It is true that in exercise
of powers of revoking or cancelling the permission is akin to
and partakes of a quasijudicial complexion and that in
exercising of the former power the authority must bring to
bear an unbiased mind, consider impartially the objections
raised by the aggrieved party and decide the matter consistent
with the principles of natural justice. The authority cannot
permit its decision to be influenced by the direction of others
as this would amount to abdication and surrender of its
discretion. It would then not be the authority's discretion that
is exercised, but someone else's. If an authority "hands over its
discretion to another body it acts ultra vires." Such an
interference by a person or body extraneous to the power
would plainly be contrary to the nature of the power conferred
upon the authority. De Smsith sums up the position thus:
"The relevant principles formulated by the Courts may be
broadly summarised as follows. The authority in which a
discretion is vested can be compelled to exercise that
discretion, but not to exercise it in any particular manner. In
general, a discretion must be exercised only by the authority to
which it is committed. The authority must genuinely address
itself to the matter before it: it must not act under the
dictation of another body or disable itself from exercising a
discretion in each individual case. In the purported exercise of
its discretion it must not do what it has been forbidden to do,
nor must it do what it has not been authorised to do, nor must
it do what it has not been authorised to do. It must act in
good faith, must have regard to all relevant considerations
and must not be swayed by irrelevant considerations, must
not seek to promote purposes alien to the letter or to the spirit
of the legislation that gives it power to act, and must not act
arbitrarily or capriciously. Nor where a judgment must be
made that certain facts exist can a discretion be validly
exercised on the basis of an erroneous assumption about those
facts. These several principles can conveniently be grouped in
two main categories; failure to exercise a discretion, and
excess or abuse of discretionary power. The two classes are
not, however, mutually exclusive."
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19. Reading the aforesaid decision would also indicate that
when they are read in context of the provisions of Waqf
Act, there is no provision for making a review of its own
order by the Board. Neither of the Sections provide for
such power of review. The question whether an
administrative authority has got an inherent power to
review is well settled by the decision of the Calcutta High
Court cited and relied upon Syed Zahiruddin Ahmed
Baghadadi (Supra) which says that even if there is no
power to review or recall an order, if such an order has
been obtained by practicing fraud or concealment of fact
and misrepresentation, there would be a power of review.
What is evident from reading the decisions of the
Supreme Court cited by Mr. Mehul Shah, learned Sr.
Counsel is that in absence of any power of review so
provided in a Statute, when the power exercised is
judicial, in absence of any power to recall, it cannot be so
reviewed. The case of Naresh Kumar and Others
(Supra), paragraph 13 thereof which reads as under
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indicates that it is a settled law that a power of review can
be exercised only when the Statute provides for the same.
Reading the provisions of the Waqf Act, the Court is of the
opinion that the Board has no powers of exercising recall
or review. It will also be in the fitness of things to
reproduce paragraph Nos.12 to 14 in the case of Kala
Bharti Advertising Vs. Hemat Vimalnath (Supra):
Naresh Kumar and Others (Supra):
"13. It is settled law that the power of Review can be
exercised only when the statute provides for the same. In
the absence of any such provision in the concerned
statute, such power of Review cannot be exercised by the
authority concerned. This Court in the case of
Kalabharati Advertising vs. Hemant Vimalnath
Narichania (2010) 9 SCC 437, has held as under:
"...............
12. It is settled legal proposition that unless the
statute/rules so permit, the review application is not
maintainable in case of judicial/quasijudicial orders. In
the absence of any provision in the Act granting an
express power of review, it is manifest that a review
could not be made and the order in review, if passed, is
ultra vires, illegal and without jurisdiction.
(Vide Patel Chunibhai Dajibha v. Narayanrao
Khanderao Jambekar [AIR 1965 SC 1457] and
Harbhajan Singh v. Karam Singh [AIR 1966 SC
641] .)
13. In Patel Narshi Thakershi v. Pradyuman Singhji
Arjunsinghji [(1971) 3 SCC 844 :
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AIR 1970 SC 1273] , Major Chandra Bhan Singh
v. Latafat Ullah Khan [(1979) 1 SCC 321] ,
Kuntesh Gupta (Dr.) v. Hindu Kanya
Mahavidyalaya [(1987) 4 SCC 525 : 1987 SCC
(L&S) 491 :
AIR 1987 SC 2186] , State of Orissa v. Commr. of Land
Records and Settlement [(1998) 7 SCC 162] and Sunita
Jain v. Pawan Kumar Jain [(2008) 2 SCC 705 : (2008) 1
SCC (Cri) 537] this Court held that the power to review is
not an inherent power. It must be conferred by law either
expressly/specifically or by necessary implication and in
the absence of any provision in the Act/Rules, review of an
earlier order is impermissible as review is a creation of
statute. Jurisdiction of review can be derived only from
the statute and thus, any order of review in the absence of
any statutory provision for the same is a nullity, being
without jurisdiction.
Kala Bharti Advertising Vs. Hemat Vimalnath (Supra)
(Para 12 - 14 thereof):
"LEGAL ISSUES:
Review in absence of statutory provisions:
12. It is settled legal proposition that unless the
statute/rules so permit, the review application is not
maintainable in case of judicial/quasijudicial orders. In
absence of any provision in the Act granting an express power
of review, it is manifest that a review could not be made and
the order in review, if passed is ultravires, illegal and
without jurisdiction. (vide: Patel Chunibhai Dajibha v.
Narayanrao Khanderao Jambekar & Anr., AIR 1965 SC
1457; and Harbhajan Singh v. Karam Singh & Ors., AIR
1966 SC 641).
13. In Patel Narshi Thakershi & Ors. v. Shri Pradyuman
Singhji Arjunsinghji, AIR 1970 SC 1273; Maj. Chandra
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Bhan Singh v. Latafat Ullah Khan & Ors., AIR 1978 SC
1814; Dr. Smt. Kuntesh Gupta v. Management of Hindu
Kanya Mahavidhyalaya, Sitapur (U.P.) & Ors., AIR 1987 SC
2186; State of Orissa & Ors. v. Commissioner of Land
Records and Settlement, Cuttack & Ors., (1998) 7 SCC 162;
and Sunita Jain v. Pawan Kumar Jain & Ors., (2008) 2 SCC
705, this Court held that the power to review is not an
inherent power. It must be conferred by law either
expressly/specifically or by necessary implication and in
absence of any provision in the Act/Rules, review of an earlier
order is impermissible as review is a creation of statute.
Jurisdiction of review can be derived only from the statute
and thus, any order of review in absence of any statutory
provision for the same is nullity being without jurisdiction.
14. Therefore, in view of the above, the law on the point can
be summarized to the effect that in absence of any statutory
provision providing for review, entertaining an application for
review or under the garb of clarification/
modification/correction is not permissible. Case
dismissed/withdrawn effect on interim relief:"
20. In the context of the Waqf Act itself, in the case of Alok
Sahakari Gruh Nirman Samiti v. The Shia Central
Waqf Board and other, The Allahabad High Court vide
decision dated 4.5.2017 in Writ Civil No.6548 of 1998
considering the provisions of the Waqf Act, in context of
Section 83, observed as under: (Relevant paragraph Nos.
19, 26 and 29).
"19. In answer to the argument on behalf of counsel for the
petitioner that appeal is provided under the Act only for an
order passed under Section 49B(4), no appeal could have
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been filed against the order impugned by the petitioner under
the Statute. Counsel for the Board has relied upon the
judgment rendered by this Court in Writ Petition No. 3400 of
2002 (Najma Khatoon Vs U.P. Sunni Central Board of
Waqf) on 18.11.2002 wherein this Court has held that even if,
it is argued on behalf of the petitioner that no order has been
passed under the Waqf Act, 1995 and therefore, the remedy of
appeal is not available, the scope of Section 83 is very wide.
Under Section 83(1) of the new Act, the Tribunal can
adjudicate "any dispute, question or any other matter" related
to Waqf or Waqf property and the Tribunal will not only get
jurisdiction when an order is passed under the Waqf Act, but
also when a dispute arises relating to Waqf property as
covered by Section 3(1) of the Act and in view of Section 83(5)
of the Waqf Act, 1995 Waqf Tribunal has all powers of the
Civil Court including power or passing of an interlocutory
order and taking of evidence either through affidavits or
through deposition on oath. Even the contention of the
petitioner that the order has been passed in violation of
principles of natural justice or lack of jurisdiction of the
Controller to pass the order impugned can also be looked into
by the Tribunal.
26. Having considered the rival submissions, this Court
takes notice of the fact that Apex Court in the case of Board
of Wakf, West Bengal Vs. Anis Fatma Begum & Anr.,
(Civil Appeal No.5297 of 2004) decided by the Supreme Court
on 23.11.2010 reported in 2010 (12) Scale 323 considered the
question of the remedy available under the Waqf Act, 1995,
for deciding the disputes and held in paragraph Nos.10 to 22
as follows:
"10. In our opinion, all matters pertaining to Wakfs
should be filed in the first instance before the Wakf
Tribunal constituted under Section 83 of the Wakf Act,
1995 and should not be entertained by the Civil Court
or by the High Court straightaway under Article 226 of
the Constitution of India.
11. It may be mentioned that the Wakf Act, 1995 is a
recent parliamentary statute which has constituted a
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special Tribunal for deciding disputes relating to
Wakfs. The obvious purpose of constituting such a
Tribunal was that a lot of cases relating to Wakfs were
being filed in the courts in India and they were
occupying a lot of time of all the Courts in the country,
which resulted in increase in pendency of cases in the
Courts. Hence, a special Tribunal has been constituted
for deciding such matters.
12. Section 83 (1) of the Wakf Act, 1995 states, "83.
Constitution of Tribunals, etc. (1) The State
Government shall, by notification if the Official
Gazette, constitute as many Tribunals as it may think
fit, for the determination of any dispute, question or
other matter relating to a Wakf or Wakf property under
this Act and define the local limits and jurisdiction
under this Act of each or such Tribunals."
13. Section 84 of the Act states, "84. Tribunal to hold
proceedings expeditiously and to furnish to the parties
copies of its decision Whenever an application is made
to a Tribunal for the determination of any dispute,
question or other matter relating to a Wakf or Wakf
property it shall hold its proceedings as expeditiously
as possible and shall as soon as practicable on the
conclusion of the hearing of such matter give its
decision in writing and furnish a copy of such decision
to each of the parties to the dispute".
14. Thus, the Wakf Tribunal can decide all disputes,
questions or other matters relating to a Wakf or Wakf
property. The words "any dispute, question or other
matters relating to a Wakf or Wakf property" are, in
our opinion, words of very wide connotation. Any
dispute, question or other matters whatsoever and in
whatever manner which arises relating to a Wakf or
Wakf property can be decided by the Wakf Tribunal.
The word `Wakf' has been defined in Section 3 (r) of the
Wakf Act, 1995 and hence once the property is found to
be a Wakf property as defined in Section 3 (r), then any
dispute, question or other matter relating to it should
C/CRA/162/2020 CAVJUDGMENT
be agitated before the Wakf Tribunal.
15. Under Section 83 (5) of the Wakf Act, 1995 the
Tribunal has all powers of the Civil Court under the
Code of Civil Procedure, and hence it has also powers
under Order 39 Rules 1, 2 and 2A of the Code of Civil
Procedure to grant temporary injunctions and enforce
such injunctions. Hence, a fullfledged remedy is
available to any party if there is any dispute, question
or other matter relating to a Wakf or Wakf property.
16. We may further clarify that the party can
approach the Wakf Tribunal, even if no order has
been passed under the Act, against which he/she
is aggrieved. It may be mentioned that Sections 83 (1)
and 84 of the Act do not confine the jurisdiction of the
Wakf Tribunal to the determination of the correctness
or otherwise of an order passed under the Act. No doubt
Section 83 (2) refers to the orders passed under the Act,
but, in our opinion, Sections 83 (1) and 84 of the Act
are independent provisions, and they do not require an
order to be passed under the Act before invoking the
jurisdiction of the Wakf Tribunal. Hence, it cannot be
said that a party can approach the Wakf Tribunal only
against an order passed under the Act. In our opinion,
even if no order has been passed under the Act, the
party can approach the Wakf Tribunal for the
determination of any dispute, question or other matters
relating to a Wakf or Wakf property, as the plain
language of Sections 83 (1) and 84 indicates.
17. We may clarify that under the proviso to Section
83 (9) of the Wakf Act, 1995 a party aggrieved by the
decision of the Tribunal can approach the High Court
which can call for the records for satisfying itself as to
the correctness, legality or propriety of the decision of
the Tribunal. This provision make it clear that the
intention of Parliament is that the party who wishes to
raise any dispute or matter relating to a Wakf or Wakf
property should first approach the Tribunal before
approaching the High Court.
C/CRA/162/2020 CAVJUDGMENT
18. It is wellsettled that when there is a special law
providing for a special forum, then recourse cannot be
taken to the general law vide Justice G.P. Singh's
Principles of Statutory Interpretation (9th Edn. 2004,
pp 133134).
19. In Chief Engineer, Hydel Project & Ors vs.
Ravinder Nath & Ors., (2008) 2 SCC 350, this Court
held that when the matter fell in the area covered by
the Industrial Disputes Act, the Civil Court would have
no jurisdiction. In the above decision the Court has
referred to several earlier decisions on this point.
20. In view of the above, we are of the opinion that
since the matter fell under the purview of the Wakf Act,
only the Wakf Tribunal has jurisdiction in the matter,
and not the Civil Court.
21. However, in view of the decision of this Court in
Sardar Khan vs. Syed Najmul Hasan (Seth) & Ors.,
AIR 2007 SC 1447, the Wakf Act will not be applicable
to suits/appeals/revisions/proceedings commenced
prior to 1.1.1996 when the Wakf Act came into force.
22. Learned counsel for the Respondent, however,
relied on the decision of this Court in Ramesh
Gobindram vs. Sugra Humayun Mirza Wakf (2010) 8
Scale 698. In the aforesaid decision it was held that
eviction proceedings can only be decided by the Civil
Court and not by the Wakf Tribunal."
29. The power of review is not an inherent power but it is
conferred under the Statute either specifically or by necessary
implication. Neither the Act 1960 nor the Act 1995 conferred
such power to the Respondent no.1 and / or Respondent
No.2."
C/CRA/162/2020 CAVJUDGMENT
21. What is therefore evident from the rival contentions at
hand is whether the Board could have exercised power of
review or recall in exercise of its administrative or quasi
judicial power, be that as it may, reading of the provisions
of the Waqf Act would indicate that the Board has no such
power to review or recall its order once the same is
passed, especially, in the facts of the case when it is
passed in exercise of its quasi judicial power under
Section 36 of the Act.
22. The second question therefore would need to be answered
is that even if there is no power to review or recall an
administrative and / or quasi judicial order, as from the
catena of decisions cited by the learned counsels for the
respective parties, what is evident is that such an order
can be recalled or reviewed if it is seen that the same is
obtained by fraud, concealment or by misrepresentation.
The next question therefore then would be whether in the
facts of the case, can it be said that the registration
C/CRA/162/2020 CAVJUDGMENT
obtained by the Respondent No.1 of Civil Revision
Application No.162 of 2020 could be said to have been
obtained by fraud.
23. Perusal of the application for registration would indicate
that a forthright application for registration was made by
the Applicant - Respondent No.1 of Civil Revision
Application No.162 of 2020. In the application, it was very
clearly said from the very beginning that Waqf Property is
being given to manage and facilitate food and rest for the
pilgrims who visit the Dargah. A declaration to that effect
was made. Even the show cause notice given by the Board
was to an extent based on recall of registration having
found that the Board had been misled in granting
registration. There was no allegation of fraud or
misrepresentation. In context of this, it will be fruitful to
refer to the decision in the case of Chief Engineer MSEB
Vs. Suresh Raghunath Bhokare (Supra) and
reproduce paragraph No.5 thereof which reads as under:
C/CRA/162/2020 CAVJUDGMENT
"5. The entire basis of the dismissal of the appellant
depends upon the factum of the alleged
misrepresentation attributed to the Respondent. The
Industrial Court in its impugned order has noticed the
fact that the Respondent was appointed in April, 1994
pursuant to the selection procedure followed by the
competent authority and that he was selected by the
panel of Selection Committee consisting of 6 members
which included the very same Social Welfare Officer who
had sent the proposal including the name of the
Respondent for appointment. It also noticed the fact that
the selection in question was made after an oral
interview and the required test as also the medical
examination. The Industrial Court also noticed the fact
that the appointment of the Respondent was confirmed
after 1 year period and thereafter the Respondent has
been working without any complaint. Said Industrial
Court also noticed the fact that the termination of the
Respondent was based on a showcause notice issued on
5.7.1999 which was replied to by the Respondent on
17.7.1999 and the termination was made in a summary
procedure permissible under Rule 90(b) of the Service
Regulations. The Industrial Court after perusing the
pleadings and the notice issued to the Respondent came
to the conclusion that the alleged misrepresentation
which is now said to be a fraud was not specifically
pleaded or proved. In the show cause notice no basis was
laid to show what is the nature of fraud that was being
attributed to the appellant. No particulars of the alleged
fraud were given and the said pleadings did not even
contain any allegation as to how the appellant was
responsible for sending the so called fraudulent proposal
or what role he had to play in such proposal being sent.
It also noticed from the evidence of Mr. Waghmare,
Social Welfare Officer who sent the proposal before the
Labour Court that he did not utter a single word as to
whether the said supplementary list was ever called for
by the Department concerned or not. Thus applying the
basic principle of rule of evidence which requires a party
alleging fraud to give particulars of the fraud and
C/CRA/162/2020 CAVJUDGMENT
having found no such particulars the Industrial Court
came to the conclusion that the Respondent could not be
held guilty of fraud. Said finding of the Industrial Court
has been accepted by the High Court. Mr. Bhasme
though contended that the fraud in question was played
in collusion with the Social Welfare Officer and 2 other
employees of the Board and action against said 2
employees of the Board has been taken, but by that itself
we are unable to accept the argument of Mr. Bhasme that
there is material to support the contention of the Board
that the appellant had also contributed to making the
misrepresentation at the time of applying for the job with
the Board. In the absence of any such particulars being
mentioned in the show cause notice or at the trial,
attributing some overt act to the Respondent, we do not
think the Board can infer that the Respondent had a role
to play in sending a fraudulent list solely on the basis of
the presumption that since Respondent got a job by the
said proposal, said list is a fraudulent one. It was the
duty of the Board to have specifically produced the
material to prove that the Respondent himself had the
knowledge of such a fraud and he knowingly or in
collusion with other officials indulged in this fraud.
Since there is no such material on record, on the facts of
the instant case, the Industrial Court and the High Court
have come to the right conclusion that the alleged fraud
has not been established by the appellants, hence, this is
not a fit case in which interference is called for. This
appeal, therefore, fails and the same is dismissed."
24. Nothing in the show cause notice would indicate that
fraud was alleged or was proved nor was the case of the
Board that they had been tricked into passing an order. In
the case of A.C. Ananthaswamy Vs. Borariah (dead)
By LRs (Supra), the Hon'ble Supreme Court in
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paragraph No.5 which reads as under has held that fraud
is to be pleaded and proved.
"5. We do not find any merit in this appeal. Firstly, in the
present case, Patel Chikkahanumaiah had moved an
application under Order 9 Rule 13 CPC for setting aside
the exparte decree on the ground of non service of
summons in which fraud was not alleged. As stated
above, Patel Chikkahanumaiah had moved R.A. No.54 of
1977 in which there was no such allegation. Secondly,
the present suit has been instituted to set aside the ex
parte decree on the ground that the decree was obtained
by fraud and misrepresentation. Fraud is to be pleaded
and proved. To prove fraud, it must be proved that
representation made was false to the knowledge of the
party making such representation or that the party could
have no reasonable belief that it was true. The level of
proof required in such cases is extremely higher. An
ambiguous statement cannot per se make the representor
guilty of fraud. To prove a case of fraud, it must be
proved that the representation made was false to the
knowledge of the party making such representation. [See:
Pollock & Mulla on Indian Contract & Specific Relief
Acts (2001) 12th Edition page 489]."
25. The level of proof in respect of fraud is very high. The
show cause notice on hand does not indicate that there
was an allegation of fraud. Even otherwise when the fraud
in context of definition as relied upon by Mr. Shah,
reading the provisions of Sections 17 and 18 of the
contract act, in light of the decision in the case of Harjas
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Rani Makhija Vs. Pushpa Rani Jain (Supra),
paragraph Nos.20 and 21 read as under would indicate
that even at best it was mere concealment or non
disclosure. There was no intent to deceive and, therefore,
it cannot be said that the registration that the Respondent
No.1 of Civil Revision Application No.162 of 2020 wanted
for its Trust was based on an application tainted by fraud.
Therefore, even the contention of the learned Counsels for
the Board as well as by Mr. Hakim that it was open for
the Board to recall and review the order as the
registration was obtained by fraud would not, in the facts
of the case be applicable because in the case on hand, it is
not the case where the initial application for registration
which was granted by the Board and which was
subsequently set aside by the Board in power of review or
recall was in any manner tainted by fraud. So even
otherwise, irrespective of the Board was exercising
administrative and / or quasi judicial powers, the Board
had no power to review or recall the order. The Tribunal
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in the opinion of this Court is therefore right in saying
that the Board could not have recalled its Order and
cancelled the registration when it was so granted by the
earlier order. The Board could not have recalled the order
and, the Tribunal therefore rightly set aside the order of
recall.
Harjas Rani Makhija Vs. Pushpa Rani Jain
(Supra), paragraph Nos.20 and 21:
"20. We agree that when there is an allegation of fraud by
nondisclosure of necessary and relevant facts or
concealment of material facts, it must be inquired into. It
is only after evidence is led coupled with intent to deceive
that a conclusion of fraud could be arrived at. A mere
concealment or nondisclosure without intent to deceive
or a bald allegation of fraud without proof and intent to
deceive would not render a decree obtained by a party as
fraudulent. To conclude in a blanket manner that in
every case where relevant facts are not disclosed, the
decree obtained would be fraudulent, is stretching the
principle to a vanishing point.
21. What is fraud has been adequately discussed in
Meghmala & Ors. v. G. Narasimha Reddy & Ors.[4]
Unfortunately, this decision does not refer to earlier
decisions where also there is an equally elaborate
discussion on fraud. These two decisions are Bhaurao
Dagdu Paralkar v. State of Maharashtra & Ors.[5] and
State of Orissa & Ors. v. Harapriya Bisoi.[6] In view of
the elaborate discussion in these and several other cases
which have been referred to in these decisions, it is clear
that fraud has a definite meaning in law and it must be
proved and not merely alleged and inferred."
C/CRA/162/2020 CAVJUDGMENT
26. Reading the provisions of Section 83 of the Act would indicate
that if the Applicants of Civil Revision Application Nos.186 or
162 of 2020 were aggrieved by the order of registration of the
Trust, the only resort they could have had was to filing of an
Appeal under Section 83 of the Waqf Act.
27. As far as the locus of the Board to challenge its own order or
the order of the Tribunal, is a question that is left open and is
not decided in the facts of the present case.
28. Both the Civil Revision Applications therefore stand
dismissed. Interim Relief stands vacated forthwith.
[ BIREN VAISHNAV, J. ]
*** VATSAL
FURTHER ORDER
. Mr. Manish Shah, learned Counsel for the Waqf Board in Civil
Revision Application No.162/2020 requests for stay of the order.
Such request is rejected.
[ BIREN VAISHNAV, J. ]
*** VATSAL
