Sunni Awami Forum Through Its ... vs State Of Gujarat
2023 Latest Caselaw 6400 Guj

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    C/WPPIL/49/2022                                JUDGMENT DATED: 02/09/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/WRIT PETITION (PIL) NO. 49 of 2022

                                    With

           CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2022
                                In
                R/WRIT PETITION (PIL) NO. 49 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL                                        Sd/-

and

HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE                              Sd/-

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1     Whether Reporters of Local Papers may be allowed to               No
      see the judgment ?

2     To be referred to the Reporter or not ?                           No

3     Whether their Lordships wish to see the fair copy of the          No
      judgment ?

4     Whether this case involves a substantial question of law          No
      as to the interpretation of the Constitution of India or
      any order made thereunder ?

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SUNNI AWAMI FORUM THROUGH ITS TRUSTEE USMAN HAJI AHMED
                       QURESHI
                        Versus
                   STATE OF GUJARAT
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Appearance:
MR M.T.M. HAKIM, COUNSEL WITH
MR RIZVAN SHAIKH(7146) for the Applicant(s) No. 1
MR UTKARSH SHARMA, ASSISTANT GOVERNMENT PLEADER for the
Opponent(s) No. 1,2,3,4,5,6
MR MIHIR THAKORE, SENIOR COUNSEL WITH


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     C/WPPIL/49/2022                              JUDGMENT DATED: 02/09/2023

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MR PRAKASH JANI, SENIOR COUNSEL WITH
MR SK PATEL(654) for the Opponent(s) No. 7
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 CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
       SUNITA AGARWAL
       and
       HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                             Date : 02/09/2023
                             ORAL JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. This Public Interest Litigation has been instituted by one

Sunni Awami Forum through its trustee Usman Haji Ahmed

Qureshi with the following reliefs:

"(12)(A) THIS HON'BLE COURT MAY BE PLEASED TO hold and declare that the actions of the Respondents particularly Respondent No.7 of Converting the Imamshah Bawa Dargah, Roja and its Surroundings which is a Muslim Religious Place of Worship to Hindu Religious Place of Worship is unconstitutional and illegal particularly enrich of provisions of the Places of Worship Act, 1991.

(B) THIS HON'BLE COURT MAY BE PLEASED TO declare that the installation of idols in the premises of Dargah is completely illegal, unconstitutional, contrary to the scheme of the Trust and violative of the provisions of the Places of Worship Act and thereby be pleased to direct remove idols from the premises of Dargah immediately and forthwith.

(C) THIS HON'BLE COURT MAY BE PLEASED TO restore the position prior to 30/01/2022 with

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respect to premises of Pir Imamshah Bawa Roza Trust.

(D) THIS HON'BLE COURT MAY BE PLEASED TO quash and set aside order dated 28/01/2022 passed by the Respondent No.2 - Collector, Ahmedabad.

(E) THIS HON'BLE COURT MAY BE PLEASED TO direct the Respondent Nos.5 and 6 to register complaint in view of the complaints filed by the Saiyed Trustees and others.

(F) THIS HON'BLE COURT MAY BE PLEASED TO direct the Respondents not to restrain to perform Urs, Sandal etc. as per the scheme of the Trust.

(G) THIS HON'BLE COURT MAY BE PLEASED TO restrained the Respondent No.7 to make any further changes and conversion immediately and forthwith.

(H) THIS HON'BLE COURT MAY BE PLEASED TO direct the Respondent No.7 to act in accordance with scheme of the Trust and thereby be pleased to restrain Respondent No.7 to act contrary to the scheme of the Trust.

(I) Pending admission, hearing and till final disposal of present petition THIS HON'BLE COURT MAY BE PLEASED TO direct the Respondents to remove illegal wall, idol and other structure erected in the compound of wall.

(J) Pending admission, hearing and till final disposal of present petition THIS HON'BLE COURT MAY BE PLEASED TO direct the Respondents not to put up any constructions in the compound of Dargah.

(K) Pending admission, hearing and till final disposal of present petition THIS HON'BLE COURT MAY BE PLEASED TO direct the Respondetns not to restrain any person to visit the Pir Imamshah Bawa

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Roza and to perform religious rites and rituals.

        (L)      THIS HON'BLE COURT MAY BE PLEASED TO
                award the costs of present petition.

        (M)      THIS HON'BLE COURT MAY BE PLEASED TO

grant such other and further relief/s as may be deemed fit, just and proper in the facts and circumstances of the case, in the interest of justice."

2. Heard Mr. M.T.M. Hakim, learned counsel assisted by Mr.

Rizvan Shaikh, learned counsel appearing for the petitioner, Mr.

Utkarsh Sharma, learned AGP for respondent Nos.1 to 6 and

Mr. Mihir Thakore, learned Senior Counsel, Mr. P.K. Jani,

learned Senior Counsel and Mr. S.K. Patel, learned counsel

appearing for respondent No.7.

3. At the inception of the arguments, a pointed query was

raised to the learned counsel appearing for the writ petitioner

to establish the credentials of the writ petitioner. In response, it

was submitted that the petitioner is a registered Waqf with the

Gujarat State Waqf Board having Registration No.63, it being

entered in the register of Gujarat State Waqf Board. The copy of

the waqf deed dated 3.10.2002 appended along with the

affidavit-in-rejoinder has been placed before us by to assert that

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the petitioner herein is the Secretary of the Waqf known as

Sunni Awami Forum, which has been created with the objects,

amongst others for the interest of the Muslim community.

4. A perusal of the waqf deed indicates that the managing

committee comprising of eight members as the first members of

the said committee was constituted, which has been entrusted

with the task of upholding the objects of the waqf. Having gone

through the waqf deed, another query was raised as to whether

there is a resolution of the managing committee of the waqf viz.

Sunni Awami Forum authorising the petitioner, the Secretary of

the Managing Committee to institute the instant Public Interest

Litigation in the name of the waqf. The answer of the learned

counsel for the petitioner is 'No'. We are, therefore, of the

prima facie view that the instant Public Interest Litigation

cannot be maintained in the name of the waqf since there is no

resolution of the managing committee of the waqf to initiate

such proceeding. The Secretary of the Managing Committee of

the waqf has no authority to institute the proceeding in the

name of the waqf.

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5. However, proceeding further, we may record that the

above noted prayers have been made in the writ petition with

respect to a property known as 'Pir Imamshah Bawa Dargah'

and the assertions in the writ petition are that the said Dargah

is being mismanaged by the trust, viz. Imamshah Bawa Roza

Trust, which is impleaded as respondent No.7. We have further

pointed out to the learned counsel for the petitioner from the

description of respondent No.7 that in the array of parties, the

trust has not been impleaded in a proper manner, inasmuch as,

it is impleaded through its Chairman whose name has not been

indicated therein. We may further record that none of the

trustees of the trust viz. respondent No.2 have been mentioned

in the array of parties nor they have been impleaded in the

Public Interest Litigation.

6. The fact remains that respondent No.7 viz. Imamshah

Bawa Roza Trust is a registered trust under the Bombay Public

Trusts Act, 1950 (now the Gujarat Public Trusts Act, 1950).

From the averments made in the Public Interest Litigation itself,

it is admitted that on an application dated 21.4.1952, upon

inquiry under Section 19 of the Trust Act, it was registered as

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public religious institution within the meaning of Section 2(19)

of the Trust Act vide order dated 28.12.1952 and having

Registration No. E-738/Ahmedabad. The dispute in the instant

Public Interest Litigation as raised before us is about the

alleged mismanagement of the property of the trust and further

mismanagement of the trust by its trustees, as against the

objects of the trust. In various paragraphs of the Public Interest

Litigation, it is stated that the disputes were raised before the

competent court and the Charity Commissioner, Ahmedabad

pointing out various illegalities and irregularities perpetrated

including illegal construction carried out by the managing

committee of the trust and changing the religious nature of

dargah. The allegations are that the trustees are bent upon to

convert it into a Hindu temple and their act is in violation of the

provisions of the Places of Worship (Special Provision) Act,

1991, which has been enforced with the aim to freeze the status

of any place of worship as it existed on 15.8.1947.

7. We may note, at this juncture, that one of the reliefs

claimed in the Public Interest Litigation is to set aside the order

dated 28.1.2022 passed by the Collector, Ahmedabad permitting

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the managing committee to raise certain construction over the

property of the trust. The submission of the learned counsel for

the petitioner is that the permission granted by the Collector

vide order dated 28.1.2021 runs contrary to the previous

decision dated 4.6.2021, wherein the managing committee was

restrained from making further construction or changing the

nature of the property, while permission was granted for

renovation. It was argued that even the constructions raised on

the spot are against the order passed by the Collector. In the

name of replacement of metal fence by construction of partition

wall, there were various other constructions, which have been

raised by the managing committee of the trust, as against the

object of the trust. The dispute, thus, is with regard to the

mismanagement of the property of the trust and the

construction raised in contravention of the orders passed at an

earlier point of time.

8. Noticing the above, we may further record that it is

pointed out by Mr. Mihir Thakore, learned Senior Counsel, Mr.

P.K. Jani, learned Senior Counsel and Mr. S.K. Patel, learned

counsel for respondent No.7 that in the proceeding before the

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Charity Commissioner, under Section 41A read with Section 60

of the Trust Act, initiated by three persons registered as

Miscellaneous Application No.41 of 2017, and order dated

31.7.2019 had been passed whereby the said application has

been rejected considering the dispute raised with regard to the

mal-administration of the trust and its property. The order

passed by the Charity Commissioner is subject matter of

challenge in Special Civil Application No.3723 of 2021. The copy

of the said writ petition is appended along with the affidavit in

the counter reply of respondent No.7. A perusal of the order

passed by the Charity Commissioner and the relief prayed

therein, it may be noted that the prayer is to appoint

administrator for management and administration of the trust,

in the interest of justice and equity.

9. It has further been brought before us that the inquiry

under Section 40 of the Waqf Act, 1995 was initiated by the

Gujarat State Waqf Board on an application filed by certain

persons claiming to be members of Imamshah Sadat Committee,

the beneficiaries and the descendants of Imamshah Bava. On

the said application, the original record of the trust was

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summoned by the Gujarat State Waqf Board from the Charity

Commissioner and by order dated 14.3.2019, the Gujarat State

Waqf Board has returned the entire record to the Charity

Commissioner, Ahmedabad. A petition viz. Special Civil

Application No.18767 of 2019 has been filed before this Court

by those persons, with the relief to quash the impugned action

of the Gujarat State Waqf Board in the communication dated

14.3.2019 for returning back all the records of the trust to the

Charity Commissioner. The further prayer is to issue direction

to the Gujarat State Waqf Board to consider the application

dated 13.12.2018 filed under Section 40 of the Waqf Act so as to

pass necessary orders under the Waqf Act, 1995.

10. Noticing the above, we may further record that the

question as to whether a property is a waqf property, lies within

the jurisdiction of the Waqf Board under Section 40 of the Waqf

Act and the Waqf Board, after making such inquiry as it may

deem fit, can decide the question. The decision of the Waqf

Board attains finality under sub-section (2) of Section 40, unless

revoked or modified by the Tribunal created under Section 83 of

the Waqf Act, 1995. The issue raised in the present writ petition

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filed in the nature of Public Interest Litigation, about

respondent No.7 trust being a waqf, can only be examined by

the Waqf Board. However, the fact remains that on the

application of some persons, the Waqf Board had already

conducted the said inquiry and the matter is now pending

before this Court.

11. As regards the issue pertaining to mismanagement or mal-

administration of the property of the trust or the allegation of

the conduct of the trustees as against the object of the trust, we

may go through the provisions of the Gujarat Public Trusts Act,

1950, which confers jurisdiction upon the Charity Commissioner

to make such inquiry. Section 37 as contained in Chapter VI of

the Trust Act empowers the Charity Commissioner, Deputy or

Assistant Charity Commissioner or any officer authorised by the

State Government, by a general or a special order, to enter on

and inspect or cause to be entered on and inspect any property

belonging to a public trust; to call for or inspect any proceeding

of the trustees including books of account, or documents in the

possession or under the control of the trustees or any person on

behalf of the trustees; to call for any written statement, account

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or report which he may think fit from the trustees or any person

connected with the trust. Section 39 further provides that after

holding an inquiry in the prescribed manner, on considering the

report of the auditor in Section 39, Deputy or Assistant Charity

Commissioner shall record his finding as to whether the trustees

or any person having being guilty of gross negligence, breach of

trust, misapplication or misconduct which resulted in loss to the

public trust and make a report hereof to the Charity

Commissioner. Under Section 40, the Charity Commissioner is

empowered to take a decision on the said report after giving

opportunity to the person concerned and holding such inquiry

as he thinks fit to determine the negligence / loss caused to the

trust. Section 41A further empowers the Charity Commissioner

to issue directions to any trustee of a public trust or any person

connected therewith to ensure that such trust property is

properly administered and income thereof is properly accounted

for or duly appropriated and applied to the object and for the

purposes of the trust. Under sub-section (2) of Section 41A,

every trustee or such person is obliged to comply with the

directions issued by the Charity Commissioner. Section 50

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provides for the suits relating to public trust by the Charity

Commissioner or two or more persons having interest in the

trust and having obtained consent in writing of the Charity

Commissioner as provided in Section 51, in the Court within the

local limits of whose jurisdiction of the subject matter of the

trust property is situate, in a case of breach of public trust or

where the direction is required to cover the possession of the

property belonging to a public trust, and seek relief, as

mentioned in clauses (a) to (h) of Section 50. Section 69

enumerates the duty and power of the Charity Commissioner.

12. Having gone through the provisions of the Trust Act, we

find that the mechanism to ensure that a trust property is

managed in accordance with the aims and objects of the public

trust has been provided therein. The dispute, if any, can be

raised before the Charity Commissioner or the competent court

as per the provisions of the Trust Act.

13. In the instant case, the dispute with regard to the

mismanagement of the properties of the trust or against the

object of the trust had been raised by certain persons before the

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Charity Commissioner who had lost in their endeavour. The

dispute is pending before this Court in a writ petition against

the order dated 31.7.2019 passed by the Charity Commissioner.

The petitioner herein, claiming to be the Secretary of Waqf,

without any authorisation by the management of the said Waqf,

seeks to raise a dispute, challenging the order passed by the

Collector giving permission to raise certain constructions over a

trust property, which is otherwise within the jurisdiction of the

authority constituted under the Trust Act.

14. The dispute is essentially is in relation to the

mismanagement or mal-administration of the properties of a

public trust by its managing trustees, which cannot fall within

the purview of Public Interest Litigation. The allegations made

in the Public Interest Litigation about communal disharmony

are framed in order to invoke the jurisdiction of this Court in a

dispute covered by the Gujarat Public Trusts Act, 1950, in the

garb of public interest.

15. For the above, we reach at an irresistible conclusion that

the instant Public Interest Litigation is sheer misuse of the

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process of the court and is liable to be dismissed as such. The

writ petition is accordingly, dismissed. Notice is discharged. In

view of the dismissal of the main writ petition, civil application

would not survive and the same stands disposed of, accordingly.

No order as to costs.

Sd/-

(SUNITA AGARWAL, CJ )

Sd/-

(ANIRUDDHA P. MAYEE, J.) Bharat