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2004 DIGILAW 185 (UTT)

Amanullah Khan v. State of Uttaranchal

2004-08-23

IRSHAD HUSSAIN, V.S.SIRPURKAR

body2004
Judgment 1. Heard and decided finally with the consent of the parties. 2. Initially, this matter was placed before us to consider an application made by the Uttaranchal Wakf Board for passing appropriate orders pertaining to the election of the Uttaranchal Wakf Board. The present petition is filed by one Amanullah Khan, wherein the prayer has been made that a direction should be issued or a writ in the nature of certiorari should be issued quashing the order dated 10-02-2004, by which third respondent Nazim Ali Tyagi, was nominated as a representative of the Wakf called 'Madarsa Arebiya Rahmaniya, Anjuman Aukhaf, Roorkee', which is admittedly a wakf in the district of Haridwar, bearing no. 113, 115, 385. It seems that the election of the member of Uttaranchal Wakf Board, which is governed by the Wakf Act, 1995, was scheduled to be held u/s 14(1) of the Wakf Act, 1995, which provides for constitution of the Wakf Board. The third respondent belong to Category (b) (iv), which reads as under: "Mutawallis of the Wakf having an annual income of rupees one lakh and above." 3. It seems that it is not in dispute before us that the above named Wakf had an annual income of Rs. 1,00,000/- and was operating in the earstwhile State of Uttar Pradesh. After the formation of Uttaranchal on 9th of November, 2000, Government of India dissolved the Wakf Board by order dated 5-8-2003 2003. For that purpose an Election Officer was appointed on 13-11-2003. This election was to be held as per Rules of 1997 of applicable to the erstwhile State of Uttar Pradesh and by order dated 30-1-2004, even the election programme was Issued. It seems that in so far as this Wakf is concerned, the State of Uttaranchal had probably recommended the name of one Sultan Ahmad of Madarsa Arebiya Rahmaniya, Anjuman Aukhaf, Roorkee, district Haridwar. This obviously was Incorrect. There was no such power to nominate the earlier operating Mutwali's name in the erstwhile State to represent a particular Wakf. Be that as it may the petitioner made an application before the Election Officer and pointed out that Sultan Ahmad had expired in the year 1990 and, therefore, the said Madarsha Arebiya Rahmaniya would remain without representation. He pointed out that there was no election of representative in the aforementioned Wakf and, therefore, his name should be included in the electoral roll. He pointed out that there was no election of representative in the aforementioned Wakf and, therefore, his name should be included in the electoral roll. There are rules meant for holding elections as contemplated under section 14 of the Wakf Act, 1995. It is obvious that Mutawallis have to be nominated either by the election or where there are no Mutawallis and Wakf being administered by the Managing Committee, the President of the Managing Committee, becomes the representative of such Wakf and his name is liable to be included in the electoral rolls. Rules 4(3) (1) and (2) obtain this position. 4. As against this claim of the petitioner, respondent no. 3 - Nazim Ali Tyagi, however, claimed that he was already elected as representative of the aforementioned Wakf, therefore, his name should be included in the electoral roll. This dispute was decided by the Election Officer by passing the impugned order, and this is the order which was challenged by way of this writ petition. We are told that some other writ petitions are also pending. However, we are not concerned at present with those writ petitions. It is claimed by parties that this Court, on earlier occasion, had frozen the election process and had directed the Wakf Board not to operate till further orders are passed. We are not concerned with that also. By the present application made on behalf of the Wakf Board, Mr. A. Rab, Special Counsel appearing on behalf of the State, points out that there is a complete stay of the operation of the Uttaranchal Wakf Board which is managing approximately 2000 Wakfs operating in the State of Uttaranchal. We are, therefore, constrained to take up this matter now. Learned Special Counsel appearing on behalf of the State submitted that merely because inclusion of one name in the electoral roll being disputed, the whole election process should not be held to ransom and the other elections should be allowed to be concluded so that properly constituted Wakf Board will come into existence and will be able to operate and administer over 2000 Wakf Board operating in the State. According to the learned counsel for the State, a Board had already been constituted as the election for other components of the Wakf Board was complete, but it is not in a position to operate because of this writ petition. According to the learned counsel for the State, a Board had already been constituted as the election for other components of the Wakf Board was complete, but it is not in a position to operate because of this writ petition. He further pointed out that the petitioner could not have approached this Court by way of this writ petition in view of the specific remedy available which is statutory in nature. 5. Our attention is invited to section 83 of the Act, under which the State Government by Notification in the official Gazette is empowered to constitute .a Tribunal for determination of any dispute, question or other metter relating to a wakf or wakf property under the Act. Section 83 (2) of this also entitles any Mutawalli or a person interested in the Wakf or any other person aggrieved by the order made under the Act or Rules made thereunder, to make an application within a time specified under this Act and where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the Wakf. Sub section (9) of this Section is as under: 83(9) "No Appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal Provided that a High Court may, on Its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may conform, review or modify such determination or pass such other orders as it may think fit." 6. From these provisions, Mr. Rab, learned Special Counsel for the State, very vehemently urges before us that there was a dispute in existence as to who would be the proper representative of the aforementioned Wakf, to cast vote in the election in the constituency of Mutawallis covered by section 14(1)(b)(iv), to be held for the constitution of Uttaranchal Wakf Board. Learned counsel further argues, in our opinion, rightly, that there was a serious question of fact dependent upon the disputed facts and also dependent upon the evidence to be led. Learned counsel further argues, in our opinion, rightly, that there was a serious question of fact dependent upon the disputed facts and also dependent upon the evidence to be led. Our attention is also invited to sub section (5) of section 83, which declares that the Tribunal would be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure, 1908. In that view, the learned counsel argues that a disputed question of fact as to who rightfully is representative or Mutawali of Madarsa Arebiya Rahmaniya, Roorkee should have been referred to the Tribunal if the petitioner was so interested in establishing his status vis a vis third respondent. He, therefore, urges that this Court should not have entertained this writ petition because any decision of the Tribunal was revisable under the interference of this Court under sub section (9) and more particularly, under proviso thereto. 7. As against this, learned counsel for the petitioner argues that the question as to whether, who should be the proper representative of the Wakf and whether respondent no. 3 was a properly nominated representative of the Wakf, would not be a question covered under sub section (1) of section 83 and, therefore, it would not be necessary for the petitioner to approach the Tribunal Section 83 (1) is as under: "83. Constitution of Tribunal, etc.- (1) The State Government shall, by, notification in 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 of such Tribunal." The learned counsel lays his stress on the word "any dispute, question, or other matter relating to wakf or wakf property". By that learned counsel urged that the question which is raised in this petition shall not be covered under this terminology. In support of his contention, a reported decision of learned Single Judge of the Madras High Court A.M. Ali Akbar and another Vs. Keelakarai South Street Jamath Masjid Paripalana Committee and others, reported in AIR 2001 Madras 431 has been referred before us. In the first place though we are entitled to take notice, it would not be binding on us. Keelakarai South Street Jamath Masjid Paripalana Committee and others, reported in AIR 2001 Madras 431 has been referred before us. In the first place though we are entitled to take notice, it would not be binding on us. Secondly, even if it is argued that (it is) it has persuasive force, we do not agree with this judgment. In this judgment the learned Single Judge has come to the conclusion that a Tribunal has no power to issue injunction. We fail to understand that if the Tribunal has been conferred with the powers of the Civil Court, will the power under Order 39 Rules (1) (2) of the Code of Civil Procedure be divested from the Tribunal. This is apart from the fact that the controversy involved before the Madras High Court was not akin or similar, to the controversy involved here. 8. The question of interpretation of terminology of any dispute, question, or other matter relating to a wakf or wakf property' under the Act, is before us. We are of the opinion that the question involved is squarely covered by this terminology. It is wide enough. We will have to give realistic and broad interpretation to the terminology because any interpretation given, should give fillip to the availability of remedy rather than denial thereof. The clause 'any other matter relating to a wakf or wakf property', is broad enough and wide enough to include a question whether any particular person would be proper representative of the Wakf, to be able to vote for that Wakf as a Mutawalli or representative. We do not see any reason to give a narrow interpretation to this terminology because giving such an interpretation would result in denial of the opportunity to the concerned parties to raise a dispute before the Tribunal. The question as to whether a particular person is Mutawalli or elected representative or not would be a most common question to the Wakf and, therefore, we find all the more reason to give broader interpretation to this terminology. If that is so, the only available remedy to the petitioner is to approach the Tribunal and we are told by Mr. Rab, learned Special Counsel that such a Tribunal is in existence by way of Notification dated 24-07-2002. If that is so, the writ petition has to be rejected on the basis of the availability of the alternative remedy. If that is so, the only available remedy to the petitioner is to approach the Tribunal and we are told by Mr. Rab, learned Special Counsel that such a Tribunal is in existence by way of Notification dated 24-07-2002. If that is so, the writ petition has to be rejected on the basis of the availability of the alternative remedy. The petitioner, if he so chooses, may avail that remedy. 9. No other point has been raised by any of the parties. 10. Petition is disposed of accordingly, but under the circumstances without any orders to the costs. 11. Let a copy of this order be supplied as early as possible on payment of usual charges.