Naqshe Ali v. U. P. Sunni Central Waqf Board — 1969 DIGILAW 390 (ALL)

JUDGMENT Asthana, J. - The applicant before me along with opposite parties numbers 4 and 5 filed an application before the Sunni Central Waqf Board constituted under the U. P. Muslim Waqfs Act (U. P. Act 16 of 1960), (hereinafter called the Act) , for cancellation of an entry in the Waqf Register maintained by the Board on the main ground that the waqf was registered without notice to them and the properties which are entered as Waqfs properties were their private properties, the deed of Waqf relating to them having been declared as void in a previous suit. This application was opposed by Mustafa Ali, the Mutwalli, at whose instance the Waqf was registered by the Board. The Secretary of the Board, to whom the powers of the Board were delegated, treated the application as one for amendment of the Waqf Register and after holding an enquiry directed the deletion of the entry at serial number 406 in the register. Mustafa Ali, the. Mutwalli, feeling aggrieved took the matter in reference before the Civil judge of Bareilly who was constituted as the Tribunal under Section 70 of the Act. It appears that on the application of Mustafa All the names of the applicant and the opposite parties 4 and 5, who were impleaded as opposite parties to the reference, were deleted by the learned Civil Judge and no notice of the reference was ever served upon them. The learned Civil judge accepted the reference and held that the Waqf was correctly registered. The applicant and opposite parties 4 and 5 having come to know of the adverse orders against them approached the High Court in revision. This revision was allowed. The order of the learned Civil judge was set aside and the case was remanded to him with the direction that the applicants be afforded proper opportunity to defend the case. When the matter went back to the Civil judge a joint written statement was filed by the applicant and opposite parties 4 and 5. One of the pleas raised by them was that the reference was incompetent and was not maintainable. The learned Civil judge on this plea raised an issue and tried it as a preliminary issue. Ile held the reference competent having taken the view that the order of the Secretary deleting the entry in the Waqf Register being one under sub- sec. The learned Civil judge on this plea raised an issue and tried it as a preliminary issue. Ile held the reference competent having taken the view that the order of the Secretary deleting the entry in the Waqf Register being one under sub- sec. (7) of Section 29 of the Act, it was open to Mustafa Ali, the aggrieved party, to come in reference under sub-sec. (8) of Section 29 of the Act. It is against This finding of the learned Civil Judge that this revision has been filed. 2. Sri Iqbal Ahmad, learned counsel appearing for Mustafa Ali, opposite party No. 3, raised a preliminary objection to the effect that the revision application before this Court was incompetent and did not lie. The learned counsel submitted that no revision will lie under Section 115 of the C. P. Code as the learned Civil judge, sitting as the Tribunal, was not a court subordinate to the High Court within the meaning of that section, as also no revision will lie under Section 76 of the Act as there was no final award given by the learned Civil judge sitting as Tribunal. Reliance was placed by the learned counsel on certain observations in the case of the Sunni Central Board of Waqf, U. P. v. Sirajul Haq Khan, A.I.R. 1963 Allahabad 537 in which a Division Bench of this Court observed that an order passed by the Tribunal during the pendency of the reference before it, would not be an award and would not attract the revisional jurisdiction of the High Court. 3. I think the objection raised by Sri Iqbal Ahmad on both the counts that is of Section 115 of the C. P. Code and Section 76 of the Act has force and a revision would be incompetent. I am clear in my mind that the Civil judge constituted as a Tribunal under Section 10 of the Act would not be a Civil Court subordinate to the High Court within the meaning of Section 115 of the C. P. Code. No revision, therefore, can be entertained against any order of the said Tribunal under Section 115 of the Code. 4. No revision, therefore, can be entertained against any order of the said Tribunal under Section 115 of the Code. 4. Coming to Section 76 of the Act it will be found that under the proviso to that section the High Court may in its discretion suo moto or on the allegation of any person aggrieved call for and examine the record of any case pending before the Tribunal but that power is to be exercised after satisfying itself as to the correctness, legality or propriety of any award made under the Act. It follows that the power under Section 76 of the Act cannot be exercised by the High Court for calling of the record till an award has come into existence as a result of the decision of the Tribunal. Here, yet there is no award given by the Tribunal. The suggestion of the learned counsel for the applicant that even the decision of the Tribunal on the issue of jurisdiction would be an award appears to be without any substance and is only to be mentioned to be rejected. 5. The learned counsel for the applicant then submitted that this Court has ample power and jurisdiction under Article 227 of the Constitution as the learned Civil judge sitting as Tribunal under the Act is situate within the territory in relation to which this Court exercises jurisdiction. There is no doubt that the Tribunal under the Act sits within the territorial jurisdiction of this Court and this Court would be competent to supervise its proceedings and no objection has been raised on that score by the learned counsel for the opposite party, but what was contended on behalf of the opposite-party was that in any case the award of the Tribunal being revisable by this Court under Section 76 of the Act itself and there being an alternative remedy this Court ought not interfere with the proceedings which are at an interlocutory stage. Under Section 76 of the Act the award of Tribunal is only revisable. A discretion is vested in High Court to call for the record sub motu or at the instance of an aggrieved party for the purpose of satisfying itself as to the correctness, legality or propriety of the award. Under Section 76 of the Act the award of Tribunal is only revisable. A discretion is vested in High Court to call for the record sub motu or at the instance of an aggrieved party for the purpose of satisfying itself as to the correctness, legality or propriety of the award. Thus it cannot be said that under the Act as of right the applicant before me would have a remedy if the award goes against them. This time of argument, therefore, as put forward on behalf of the opposite-party has no foundation in law as the award of the Tribunal achieves finality and no rights are conferred on any of the parties to destroy that finality. The discretionary power of this Court to interfere in any case, cannot be said to be a remedy as of right available for destroying the finality of the award, to a party to the award. 6. It was then suggested on behalf of the opposite-party that power under Article 227 of the Constitution is not to be used to correct mere errors of law even if such errors of law are on the question of jurisdiction. Emphasis was raid on the proposition that under Article 227 of the Constitution this Court is conferred a power to supervise the proceedings and not to correct the error of the tribunal or subordinate court who was' seized of the proceedings, even though without proper power or authority, and when those proceedings are quashed for want of jurisdiction that would amount to the exercise of its jurisdiction by the High Court and not to supervision of the power exercised by the Tribunal. It is in that sense that I understood the argument of the learned counsel for the opposite-party when he submitted that even if an error of law might be on a question of jurisdiction, this Court ought not to interfere under article 227 of the Constitution. Learned counsel relies upon a Division Bench decision of this Court in the case of Ram Roop v. Vishwanath, A.I.R. 1948 Alld. 456. A Division Bench of this Court in the case cited have tried to formulate certain propositions in laying down the principles relating to the scope and applicability of Article 227 of the Constitution. Learned counsel relies upon a Division Bench decision of this Court in the case of Ram Roop v. Vishwanath, A.I.R. 1948 Alld. 456. A Division Bench of this Court in the case cited have tried to formulate certain propositions in laying down the principles relating to the scope and applicability of Article 227 of the Constitution. A reading of the judgment as reported only demonstrates that ultimately the learned judges constituting the Bench had to observe that the exercise of the power under Article 227 of the Constitution would depend on the special circumstances of each case, and no formula or rule can be laid down. 1 ire guiding principles underlying the exercise of the powers under Article 227 of the Constitution emerge out from a large number of decisions of various High Courts. They do not, to my mind, lay down any rule of law that the High Court cannot interfere under Article 227 of the Constitution even if it finds that the tribunal or a court in seizing of a matter exceeded its jurisdiction. I think it becomes the duty of this Court to give the directions even to the extent of quashing of the jurisdiction itself, if it is satisfied that a subordinate court or a tribunal is seized of a matter without any jurisdiction, particularly in the case of tribunals who are creatures of a statute and whose powers are circumscribed within the frame work of that statute. The High Court has a greater duty to scrutinise whether the tribunal is acting within the frame work of the statute in the exercise of its jurisdiction and power. I think that is the very object behind Article 227 of the Constitution and I cannot agree with the learned counsel for the opposite-party that the superintendence or supervision excludes from its purview the quashing of the jurisdiction itself relating to a proceeding. If such a narrow meaning were given to the word 'superintendence' in Article 227 then the very purpose of it would be frustrated. The learned counsel for the opposite- party hardly would have had any case if a revision lay under Section 115 of the C. P. Code or Section 76 of the Act. The revisional power is also nothing but a power of superintendence and it is in the exercise of that power that the superior court tests jurisdiction. The learned counsel for the opposite- party hardly would have had any case if a revision lay under Section 115 of the C. P. Code or Section 76 of the Act. The revisional power is also nothing but a power of superintendence and it is in the exercise of that power that the superior court tests jurisdiction. So in those cases where the statute creating a tribunal itself does not provide for a remedy against a tribunal acting without jurisdiction. Article 227 of the Constitution can very properly be resorted to by an aggrieved party. Therefore, I am inclined to the view that this Court, under Article 227 of the Constitution in an appropriate case can even quash the jurisdiction of the tribunal constituted under any statute if it is satisfied that the said tribunal has acted or purported to have acted outside the scope of the statute constituting it. 7. The question then that falls for determination in this case is whether the learned Civil Judge of Bareilly who constituted the Tribunal under the Act should remain seized of the matter though it has no jurisdiction to do so under the Act under which it is constituted. The answer to this question would depend upon the nature of the order of the Secretary of the waqf Board dated 11-3-1965 and the power in the exercise of which it was passed under this Act. The Tribunal held that this order of the Secretary of the Board would be deemed to have been passed under Section 29 (7) of the Act and the Mutwalli being aggrieved would competently come in reference to the Tribunal under Section 29 (8) of the Act. I think in taking that view the Tribunal was wholly in error. 8. It would be seen that in fact the waqf in dispute was registered by the Secretary acting as a delegate of the Board under Section 29 of the Act. On the 16th of November, 1964 Mustafa Ali claiming himself to be the Mutwalli of the waqf made an application under Section 29 of the Act to the Board for registration mentioning the necessary particulars in the prescribed form. On the 17th of November, 1964 the waqf was registered and the necessary entry was made in the register of waqf at serial No. 406. When the applicant and the proforma- opposite-parties Nos. On the 17th of November, 1964 the waqf was registered and the necessary entry was made in the register of waqf at serial No. 406. When the applicant and the proforma- opposite-parties Nos. 4 and 5 came to know that the Waqf has been registered trey moved an application before the Board that the registration be cancelled as there was no Wagf created by Mohabbat Ali and that Mustafa Ali was not a mutwalli. Notice of this application was served on Mustafa Ali. The matter was then considered by the Secretary of the Board who after hearing the parties passed the order dated 11-3-1965 deleting the entry at serial No. 406 in the register of the Wagf. The operative portion of the order is as follows : "The result is that the entry of waqf and Tauliat in favour of Mr. Mustafa Ali No. 406 Bareilly must be deleted and the parties are directed to get their rights declared by some court of law." Mustafa Ali then filed an application for reference under Section 33 (2) and Section 29 (8) of the Act in the court of the Civil Judge, Bareilly which was constituted as the Tribunal under Section 70 of the Act. It was prayed that the Tribunal be pleased to entertain the reference against the decision of the Secretary of the Board dated 11-3-1965, set it aside as being without jurisdiction and erroneous in law and to affirm the validity of the deed of waqf of 1923 and the two supplementary deeds executed by Shri Mohabbat Ali. The applicant and the proforma opposite-parties Nos. 4 and 5 then filed a written statement and inter alia pleaded that the reference was incompetent and the Tribunal had no jurisdiction to be seized of the matter. The Tribunal framed the necessary issues and issue No. I was is the present reference maintainable ? The Tribunal then decided the said issue as a preliminary issue by its order dated 15-3-1969. The Tribunal held that the reference was competent and maintainable, the order of the Secretary being under Section 29 of the Act refusing to register the waqf. It is against this order of the Tribunal that the revision has been preferred in this Court. As already observed above the revision before this Court can neither be entertained under Section 115 of the Code nor under Section 76 of the Act. It is against this order of the Tribunal that the revision has been preferred in this Court. As already observed above the revision before this Court can neither be entertained under Section 115 of the Code nor under Section 76 of the Act. I am examining the matter with a view to find out whether the said order can be set aside or interfered with in exercise of powers vesting in this Court under Article 227 of the Constitution. The applicant made good the necessary deficiency in the court fee. He has paid the court fee of Rs. 501- as required under the Rules of the Court for a petition under Article 227 of the Constitution. 9. Here I may dispose of an argument raised on behalf of the opposite- party that I ought not to exercise my powers under Article 227 of the Constitution as according to the Rules of the Court, the application under Article 227 will not be in order, the procedure for its admission by a Bench of the judges having not been complied with. I do not think there is any substance in this ultra technical objection. The question that I am considering is of the exercise of power of this Court under Article 227 of the Constitution. The Rules of the Court permit a Single judge of this Court to give the necessary final directions under Article 227 of the Constitution. The learned counsel for the opposite-party was not able to point out any prejudice being caused to the opposite- party. The whole record is here and all the material on which the decision will turn is before the Court. In these circumstances the filing of affidavits by the parties can be dispensed with without causing any hardship or prejudice to any of the parties. 10. Reverting to the merits of the matter the contention put forward on behalf of the applicant that the order of the Secretary of the Board dated 11-3-1965 was neither an order under Section 28 (7) nor under Section 33 of the Act impresses me. Indeed the learned counsel for the opposite-party during the course of the argument all the time prevaricated in his submission and was never clear on his stand whether the order would be deemed under Section 29 or under Section 33 of the Act. 11. Indeed the learned counsel for the opposite-party during the course of the argument all the time prevaricated in his submission and was never clear on his stand whether the order would be deemed under Section 29 or under Section 33 of the Act. 11. Under the scheme of the Act, when an application is made for registration under Section 29 by the Mutwalli who manages the wagf it is not necessary for the Board to send the notices to any other party interested. The Board may make such enquiry as it thinks fit to satisfy itself about the genuineness of the application for registration. This is what the Secretary as the delegate of the Board actually did. Thus he acted within his powers under Section 29 of the Act in registering the Waqf. Once a waqf is ordered to be registered, on the satis- faction of the Board that it subsists, the requisite entry has to be made in the register maintained by it as required by Section 30 of the Act. It cannot be then said that once a waqf is registered on the basis of a duly passed order under Section 29 of the Act and it after a further enquiry the entries are deleted then it would amount to refusal to register. The fact that it was registered has to be recognised and taken due notice. When at a subsequent stage an order is passed for deletion of the name of the trust from the register of the wagf then it must be traced to some other power under the Act vesting in the Board. A reference was made to Section 31 of the Act in this connection. It was submitted on behalf of the applicant that the order of the Secretary amounted to an amendment of the register of the waqf and would fall under that section which confers a power on the Board at any time to amend the register of waqfs. This submission has once. I do not agree with the learned counsel for the opposite-party that the order would not fall under Section 31 as the power to amend under Section 31 is confined the modification or alteration in the entries in the register of waqf and not to the deletion of the waqf itself from the list. This submission has once. I do not agree with the learned counsel for the opposite-party that the order would not fall under Section 31 as the power to amend under Section 31 is confined the modification or alteration in the entries in the register of waqf and not to the deletion of the waqf itself from the list. Section 31 deals with the power of the Board to cause registration of waqf and to amend the register as the marginal notes shows. It envisages a case where no application is made for the registration of a waqf under Section 29 of the Act and the Board on its own information is satisfied with the existence of a waqf then it can call the Mutwalli to apply for the registration or to supply information regarding the waqf or by collecting the information itself cause the waqf to be registered. Thus so far as the registration of the waqf at the instance of the Board itself is concerned it is a power vested in it by Section 31 which power is distinct and different from the power vesting in it under Section 29 of the Act. The same section further gives powers to the Board at any time to amend the register. The register of the wakfs is to be maintained by the Board as required by Section 30 of the Act which snail contain in respect of each waqf, copies of the waqf deeds if available and other particulars of the waqf mentioned in that section. The entry that it is a wagf of a certain classification is as much an entry in the register of waqf as any particular thereof. The deletion of a waqf itself, therefore, would be nothing Lut an amendment made in the register of waqf. The order of the Secretary itself shows that he proceeded in exercise of his powers under Section 31 of the Act. I he Board itself has treated the power under Section 31 as a distinct and separate bower. I find from a resolution of the Board delegating the powers to the Secretary describing the duties and powers of the Board which had been delegated to tile Secretary subject to the power of revision by the Board. I he Board itself has treated the power under Section 31 as a distinct and separate bower. I find from a resolution of the Board delegating the powers to the Secretary describing the duties and powers of the Board which had been delegated to tile Secretary subject to the power of revision by the Board. The Secretary is authorised to pass orders on registration applications under Section 29 and to cause registration of waqf and is also authorised to amend the register under Section 31 of the Act. Thus the power to pass orders on registration application under Section 29 and the power to cause registration and to amend the registration under Section 31 of the Act both are conferred on the Secretary subject to the revision by the Board. That the two powers under the two sections mentioned above are distinct and separate is also borne out by the scheme under the Act. Sub-sec. (7) of Section 29 envisages a stage when the application for registration of a wagf is rejected and no affirmative order as passed thereon for registering the same. Once an affirmative order is passed on the application and it is accepted an entry will have to be made in the register of waqf. That power thus exhausts itself after an order is passed accepting the application or rejecting it. If it is rejected no question of any entry arises in the register of waqf. If the application is accepted then the consequence of it is the registration of a waqf. It Cannot be said that when the entry is deleted from the register of waqfs then it would be deemed that the Secretary exercised his power under sub-sec. (7) of Section 29 in not accepting the application for registration, which in fact he had. The fact is that the application for registration was accepted and a waqf was registered. Therefore. it could not be said as a matter of law and fact that the power was never exercised for ordering the registration of the waqf under sub- sec. (7) of Section 29 of the Act. The obvious fallacy in the view taken by the Tribunal was that it slid not recognise the fact that the power had been exercised by the Board or the Secretary as the delegate under sub-sec. (7) of Section 29 of the Act when the application for registration was accepted. (7) of Section 29 of the Act. The obvious fallacy in the view taken by the Tribunal was that it slid not recognise the fact that the power had been exercised by the Board or the Secretary as the delegate under sub-sec. (7) of Section 29 of the Act when the application for registration was accepted. If view of the Tribunal prevails then it would amount to that in the instant case both kinds of orders were passed under Section 29(7), namely, that the application for registration is as accepted and at the same time not accepted. Such a view is untenable being illogical. I am, therefore, inclined to agree with the submission of the learned counsel for the applicant that the foundation for the power exercised by the Secretary in passing the order dated 11-3-1965 can only rest on the provisions of Section 31 of the Act, namely, for amending the register of waqfs. I am not concerned whether the order deleting the entry was a correct order on law and facts. 12. Assuming for a moment that the consequence of the order of the Secretary was that the waqf sought to be registered by the Mutwalli by his application under Section 29 of the Act having been deleted from the register of waqfs amounted to non-registration thereof still that consequence would be the result of exercise of power under Section 31 of the Act by the Secretary. In that view of the matter as well sub-sec. (8) of Section 29 would not he attracted, as it envisages that any person aggrieved by an order of the Board under sub-sec. (7) may make an application within ninety clays of the date of that order for reference of the dispute to the Tribunal. Thus under sub-sec. (8) a reference to the Tribunal can :;e taken only when the order is under sub-sec. (7) of Section 29 of the Act. I have already held above that the order of the Secretary was not passed under sub-sec. (7) of Section 29 of the Act. Learned counsel for the opposite-party wanted me to read sub-sec. (8) of Section 29 of the Act as envisaging a reference from all orders refusing to register a waqf, passed in exercise of powers under any provision of the Act. Sub-sec. (8) by its phraseology confines a reference from an order passed under sub-sec. Learned counsel for the opposite-party wanted me to read sub-sec. (8) of Section 29 of the Act as envisaging a reference from all orders refusing to register a waqf, passed in exercise of powers under any provision of the Act. Sub-sec. (8) by its phraseology confines a reference from an order passed under sub-sec. (7) of Section 29 of the Act and not under any other provisions of the Act. 13. Alternatively it was argued by the learned counsel for the opposite- party that the order of the Secretary would be under Section 33 of the Act and the Mutwalli being aggrieved is justified in taking a reference to the Tribunal under sub-sec. (2) of that section. I do not find any force in this contention either. Section 33 presupposes a subsisting valid waqf and is confined to any dispute regarding any property which by one party is alleged to be included in the wagf and by the other not to be so included. It has no concern with the validity of a wagf as such, whether in the eye of law it subsists or not. If that meaning were. not given to the provisions of Section 33 of the Act then the framer of the Act would be accused of the vice of tautology as the matter whether there was a valid subsisting waqf requiring registration tinder the Act would either be decided under Section 29 of the Act or under Section 31 of the Act. If such it matter is also to be included in Section 33 of the Act then there could be a repetition of the idea in 'more than one provisions of the Act. One of the cardinal principles of interpretation of the statute is that an intention cannot to be easily attributed to the framers of the Act that they wanted the same matter to be subject of different provisions of the Act. The vice of tautology, therefore, must be avoided unless the court is compelled to admit the same under the scheme of the Act and does not find any rational distinction between the subject-matter dealt with by different provisions of the Act. Therefore, it follows that the subject-matter of the dispute which arose before the Secretary, rightly or wrongly, it matter on which I think no comments be made, was not covered by the provisions of Section 33 of the Act. 14. Therefore, it follows that the subject-matter of the dispute which arose before the Secretary, rightly or wrongly, it matter on which I think no comments be made, was not covered by the provisions of Section 33 of the Act. 14. The learned counsel for the opposite-parties has not brought to my notice any other provision of the Act or any Rules framed therein which would cover the order passed by the Secretary. He even conceded that the matter would be covered under Section 31 of the Act. For the purpose of this case I have to find out whether a reference could lie to the Tribunal. In the matter of the registration of the wagf or of the property which are the subject-matter of the wagf the provisions of Chapter III only envisage references to the Tribunal either under sub-sec. (8) of Section 29 of the Act or sub-sec. (2) of Section 33 of the Act. I in again not concerned as to what is the remedy of an aggrieved party against the order passed by the Board in exercise of its powers under Section 31 of the Act. It is sufficient for my purpose to demonstrate that the reference to the Tribunal was neither against any order passed under sub-sec. (7) of Section 29 nor any order passed under sub-sec. (2) of Section 33 of the Act. 15. I may further deal with an argument advanced on behalf of the applicant that the order of the Secretary dated 11-3-1965 was not a final order, it being subject to the revision by the Board, therefore, for that reason also no reference directly could go from that order and the reined) of the aggrieved party was by way of revision to the Board. It is not clear from the record whether the Board itself scrutinised the order of the Secretary. But from the written statement filed on behalf of the Board before the Tribunal it appears that the board adopted the said order and treated the same as its own. Thus the question becomes academic and I need not dilate upon it further. I am inclined to accept the main argument advanced on behalf of the applicant that the order of the Secretary was neither under sub-sec. (7) of Section 29 of the Act nor under sub- sec. (2) of Section 33 of the Act. 16. Thus the question becomes academic and I need not dilate upon it further. I am inclined to accept the main argument advanced on behalf of the applicant that the order of the Secretary was neither under sub-sec. (7) of Section 29 of the Act nor under sub- sec. (2) of Section 33 of the Act. 16. in view of the discussion above it clearly appears that the learned Civil Judge who was the presiding Officer of the Tribunal constituted under the Act assumed jurisdiction and held the reference to be maintainable on a wrong interpretation of the provision of the Act and by keeping it blind eye to the fact that actually the waqf was registered on the basis of an order passed by the Board or its delegate under sub-sec. (7) of Section 29 of the Act. The impugned order thus being based on a foundation which does not exist on the record, is liable to be quashed. 17. Even if there appears to be some doubt, though I have none, the Article 227 is not attracted the applicant having paid the court-fees of Rs. 50/- which is also payable for a writ petition under Article 226 of the Constitution of India and under the Rules of the Court a Single judge has the jurisdiction to pass final orders and give directions under Article 226 of the Constitution of India quashing of the impugned order of the Tribunal as well will be covered by Article 226 of the Constitution. 18. For the reasons given above, I allow this application and quash the impugned order. In the circumstances of the case I make no order for costs.