Gujarat High Court
Gujarat State Wakf Board vs Saiyed Mohamadraza Nasiruddin on 13 January, 2022
Bench: A.J.Desai
C/LPA/870/2021 JUDGMENT DATED: 13/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 870 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 22761 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 870 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUJARAT STATE WAKF BOARD
Versus
SAIYED MOHAMADRAZA NASIRUDDIN
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Appearance:
MR MTM HAKIM, LD.ADVOCATE WITH MR MANISH S SHAH(5859) for the
Appellant(s) No. 1
PARITOSH R GUPTA(7583) for GUPTA LAW ASSOCIATES(9818) for the
Respondent(s) No. 1
MR BHARGAV PANDYA, LD.ASSTT. GOVERNMENT PLEADER/PP(99) for
the Respondent(s) No. 2 & 3.
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 13/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
C/LPA/870/2021 JUDGMENT DATED: 13/01/2022
1. By way of the present appeal under clause 15 of the Letters
Patent, the appellant - Gujarat State Wakf Board has challenged an
judgement and order dated 24/06/2021 passed by learned Single Judge in
Civil Application (for joining party) No.1 of 2020 in Special Civil
Application No.22761 of 2019.
2. We have heard Mr.MTM Hakim, learned advocate with
Mr.Manish Shah, learned advocate appearing for the appellant;
Mr.Paritosh Gupta, learned advocate for Gupta Law Associates appearing
respondent No.1, who has filed caveat in this matter as well as
Mr.Bhargav Pandya, learned Assistant Government Pleader appearing for
respondent Nos.2 & 3.
3. Short facts, emerge from the record, are as under:
A writ petition under Article 226 of the Constitution of
India, came to be filed by the present respondent being Special Civil
Application No.22761 of 2019, by which, an order dated 13/11/2019
passed by the District Collector, Ahmedabad refusing to convert the land
for non-agricultural purposes, as provided under Section 65 of the
Bombay Land Revenue Code, came to be rejected.
During the pendency of the said petition, an application was
filed by the present appellant to join "Gujarat State Wakf Board" as party
respondent, claiming that the property belongs to the Wakf. Learned
Single Judge, after hearing the parties, rejected the said application.
Hence, this appeal.
4. Mr.MTM Hakim, learned advocate appearing for the
appellant would submit that the property belongs to the Waqf and
therefore, if the board is not joined as a party in any proceedings, in any
application made to the court/ authority, it is expected to join the party
C/LPA/870/2021 JUDGMENT DATED: 13/01/2022
being a necessary party in the proceedings with regard to Waqf property.
In support of his submissions, he has taken us through the provisions of
Section 90 and Section 92 of The Waqf Act, 1995 (hereinafter referred to
as "the Act"). After taking us through the order impugned in the present
appeal; order passed by this Court on 15/07/2019 in other proceedings
with regard to property in question in Special Civil Application No.17693
of 2018; the order of the District Collector challenged by the petitioner,
he would submit that it is an undisputed fact that the property in question
is shown as property belongs to Waqf in the PTR maintained by the board
itself. He would submit that an application dated 07/02/2018 was made
by the trustee and requested the Wakf board to comply with the
judgement and decree dated 18/04/1998 passed by learned 3 rd Extra
Assistant Judge, Ahmedabad Rural in Civil Misc. Application No.140 of
1981 and other allied matters, under the provisions of the Bombay Public
Trust Act and only at that time, Board came to know about such decree.
He would submit that The Waqf Act came to be implemented from
01/01/1996 and therefore, board was required to be made party in the
proceedings of those civil proceedings, which came to be decided by the
competent civil court in the year 1998. He would submit that respondent-
original petitioner is seeking conversion of the property, which belongs to
the Wakf and therefore, learned Single Judge ought to have accepted the
application. He, therefor, would submit that the impugned order may be
quashed and set aside and further order accordingly may be passed.
5. On the other hand, Mr.Paritosh Gupta, learned advocate
appearing for respondent No.1 has vehemently opposed this appeal and
would submit that by deciding the proceedings, learned 3rd Extra
Assistance Judge by judgement and decree dated 18/04/1998 has clearly
held that the property in question is not of a Wakf or Dargah or Public
Trust property and therefore, the orders passed by the learned Deputy
Commissioner and Joint Charity Commissioner were quashed and set
C/LPA/870/2021 JUDGMENT DATED: 13/01/2022
aside. This Judgement has become final and therefore, there is no
question of accepting the plea put forward by the appellant that the
property is a Waqf property and therefore Board is required to be joined.
He would submit that PTR is maintained by the board itself and name is
deliberately not deleted from the PTR though there is a declaration by the
court about title of the property. He would submit that as per sub-section
(3) of Section 90 of the Act, the board could have requested the
competent civil court for appropriate relief including declaration with
regard to the title of the property in question. However, till date, no such
application has been filed by the board before any court. He would
further submit that even in the year 2018, when one of the trustees
requested the board to implement the judgement and decree passed by the
competent civil court, till date, no application under section 90(3) of the
Act has been filed though the limitation as amended in the year 2013, is
of six months. Therefore, he would submit that the appeal may be
dismissed.
6. We have heard learned advocates appearing for the
respective parties. Property in question is with regard to Survey No.776
situated at Village: Vatva of city of Ahmedabad. The proceedings with
regard to title of several properties, proceedings in the nature of Civil
Misc. Application No.140 of 1981 and allied matters, came to be decided
by learned 3rd Extra Assistant Judge, Ahmedabad Rural and ultimately it
was held that several properties including survey no.776 i.e. property in
question does not belongs to Wakf. It has been specifically held in para-
18 of the judgement and decree dated 18/04/1998 as under:
"Moreover, it is held that the S.Nos.748, 750, 776,
855, 856, 857, 917, 1553 and 1554 are not public
trust properties but they are private properties, and
they are not of Wakf or Dargah or public trust, and
C/LPA/870/2021 JUDGMENT DATED: 13/01/2022
so the orders of the Deputy Commissioner and Joint
Charity Commissioner are hereby set aside in that
respect."
7. It is pertinent to note that this judgement has become final
since none of the parties to that proceedings nor the Board has challenged
the findings. Sections 90 and 92 of the Act read as under:
90. Notice of suits, etc., by courts.--
(1) In every suit or proceeding relating to a title to
or possession of a 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) Whenever any waqf property is notified for sale
in execution of a decree of a civil court or for the
recovery of any revenue, cess, rates or taxes due to
the Government or any local authority, notice shall
be given to the Board by the court, Collector or
other person under whose order the sale is notified.
(3) In the 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 one month of its coming to
know of such suit or proceeding, applies to
the court in this behalf.
(4) In the absence of a notice under sub-section (2),
the sale shall be declared void, if the Board, within
one month of its coming to know of the sale, applies
in this behalf to the court or other authority under
whose order the sale was held.
C/LPA/870/2021 JUDGMENT DATED: 13/01/2022
92. Board to be party to suit or proceeding.--
In any suit or proceeding in respect of a waqf or any
waqf property the Board may appear and plead as a
party to the suit or proceeding.
8. If we accept the case that Waqf Act came into existence
from 01/01/1996 and proceedings have been decided in the year 1998, the
board is required to be issued Notice. However, as per sub-section (3) of
section 90, board itself is suppose to file an application for appropriate
declaration within a period of six months, which was earlier one month. It
is pertinent to note that the board has not filed such application and has
rightly been observed by the learned Single Judge about this aspect in the
impugned order. Even after 2018, when the board came to know about
the proceedings of 1998, till date, no application has been filed by the
board for appropriate declaration. It is also pertinent to note that PTR is
maintained by the board itself and under the board's control, to treat the
property as Wakf property or not, and when the original petitioner
requested to do the needful, the board has not acted till date as provided
u/s. 90(3) of the Act.
9. Considering the above aspects, We do not find any reason to
interfere with the order passed by learned Single Judge. Hence, the
present appeal is hereby rejected.
In view of dismissal of the main appeal, no order in Civil
Application No.1 of 2021 and the same is also accordingly disposed of.
(A.J.DESAI, J)
(ANIRUDDHA P. MAYEE, J.)
DIPTI PATEL
