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2004 DIGILAW 486 (CAL)

SYED HAZI WASI AHMED v. BOARD OF WAKF

2004-07-22

ALOK KUMAR BASU

body2004
A. K. BASU, J. ( 1 ) BOTH the C. O. Nos. 1984 of 2003 and 2416 of 2003 are taken up together upon the submissions of the participating parties as common question of fact and law is involved in both the applications and hence, both the applications shall be disposed of by a common order. ( 2 ) ONE Syed Wasi Ahmed is the petitioner in C. O. No. 1984 of 2003 and the Union of India represented by the G. O. C. , Eastern Command, Kolkata is the petitioner of C. O. No. 2416 of 2003 and both the applications filed under Article 227 of the Constitution of India are directed against an order dated 30th June, 2003 passed by the Wakf Tribunal in connection with Appeal No. 25 of 2002 impleading the Board of Wakf, West Bengal and the persons appointed as Mutawalli in respect of the property in dispute. ( 3 ) THE undisputed fact as revealed from the averments of the petitioner of both the applications and also from the affidavit-in-opposition filed by the contesting opposite parties of both the applications and finally approved by the Tribunal in its order challenged through the present applications is that one Syed Ali Shah born in or about 1615 A. D. and in course of time he rose into eminence by his religious action and personal sanctity and he became famous as Pir Syed Ali Shah. He settled in the Hestings area of Kolkata and rested in peace approximately 305 years ago and cover his grave yard a tomb was erected which is now known as Pir Syed Ali Shah Baba Darga and subsequently a Mosque was also constructed and the entire area comprises 10 kathas of land approximately and is situated at Hestings opposite to Kolkata Race Course and within the area under the Military Authority. ( 4 ) IT is undisputed fact that since the death of Pir Syed Ali Shah Baba his descendants used to manage the Darga and the Mosque and look after the different religious functions held on the property and only recently in the year 2000 dispute arose among the descendants making rival claim of management over the Darga which prompted one of the descendants to file a petition before the Board of Wakf for treating the said property as public Wakf and for registration of the same under section 36 of the Wakf Act, 1995 and also for appointment of Mutawalli as provided in the Act for proper and peaceful management of the property. ( 5 ) THE Board of Wakfs after holding enquiry regarding the nature of the property from available records and testimonies of the connected persons took resolution and passed order treating the disputed property as public Wakfs and registered the same and thereafter appointed the private respondents of both the applications as mutawalli of the said wakf property. ( 6 ) THE petitioner of C. O. No. 1984 of 2003 challenged the resolution and order of the Board through an appeal registered as Appeal No. 25 of 2002 before the Wakf Tribunal contending inter alia that the property in dispute was never a Wakf property as there was no dedication in respect of the property and also on the ground that the question of dedication could not arise as the land in question undisputedly belongs to the Military Authority of Government of India. The petitioner, therefore, submitted before the Tribunal that the order of the Board to hold the property as public wakf and also appointment of the private respondent Mutawalli of the said Wakf is totally wrong, illegal, inoperative and not binding against the petitioner. ( 7 ) THE Union of India did not prefer any separate appeal challenging the resolution and order of the Board, but, it participated in the appeal preferred by the petitioner of other C. O. by filing affidavit-in-opposition. The Union of India in its application filed under Article 227 has challenged the order of the Tribunal taking almost identical ground as taken by the petitioner of other C. O. and the Union of India is mainly aggrieved for declaration of the property in dispute as public wakf when admittedly the land in question belongs to Military Authority. The Union of India in its application filed under Article 227 has challenged the order of the Tribunal taking almost identical ground as taken by the petitioner of other C. O. and the Union of India is mainly aggrieved for declaration of the property in dispute as public wakf when admittedly the land in question belongs to Military Authority. Submissions made on behalf of petitioner of C. O. No. 1984 of 2003: ( 8 ) THE learned advocate appearing for the petitioner is very much critical on the finding of the learned Tribunal whereby the Tribunal upheld the resolution of the Board treating the property in dispute as public wakf. Thelearned advocate submits that it is the case of the Board that the property in dispute attained all the attributes of public wakf only by user as admittedly there was no formal dedication of the same. The learned advocate submits that the Tribunal endorsed the order of the Board holding inter alia that there are materials to hold that the property must be considered as public wakf since time immemorial the property has been attended by religious people to pay respect to the Darga of the Pir Sahib and also to perform Namaj at the nearby Mosque. The learned advocate contends that both under Mohammedan law and also under section 3 (r) (i) of the Wakf Act, 1995 a property can be held to be Wakf even without formal dedication if it is proved that by long and continuous user the property must be held to be wakf when such use was made for religious purposes as contemplated in section 178 of the Mohammedan law complied by Mulla. The learned advocate contends that both the Board as well as the Tribunal misconstrued the provision of section 3 (r) (i) of the Wakf Act, 1995, because while there is no dispute that a property can be declared as Wakf even without formal dedication From user as wakf, but, the basic requirement would be that there must be an owner of the said property and he with clear intention allowed the use of the property for the religious purpose and thereby contributed to the growth of nation of wakf regarding that property. The learned advocate submits that in the present case the Tribunal itself recorded that since 1909 the property in dispute was transferred in favour of the Military Authority and since that period, the annual festival was held on the land with permission from the Military Authority and naturally, the Military Authority was owner of the property and there was nothing either before the Board or before the Tribunal to show that Military Authority gave any express or implied consent for using the property exclusively so that the property can acquire all the attributes of a valid wakf under the Act. The learned advocate in this respect has relied on the commentary of Syed Amir Ali and also of Mulla on Mohammedan law and also these decisions reported in AIR 1966 Allhabad page 201, AIR 1975 Supreme Court page 1891, AIR 1991 Punjab and Haryana page 89, AIR 1937 Lahore page 552. Submissions made on behalf of the petitioner of C. O. No. 2416 of 2003: ( 9 ) THE learned advocate appearing for the petitioner Union of India of C. O. No. 2416 of 2003 while reiterating the points submitted by the learned advocate of the petitioner of C. O. No. 1984 of 2003 adds further that under section 36 of the Wakf Act, 1995 before treating a property as public wakf and before its registration, the Board was under legal compulsion to hear the person or authority interested in the matter and it would appear from the report submitted before the Board that no such hearing was afforded to the Union of India before holding the property as public wakf and its subsequent registration. 9. 1. The learned advocate submits that finding of the Tribunal that a letter was addressed to the representative of the Military Authority intimating the action proposed to be taken on behalf of the Board and expecting that no objection would come from the Military Authority was a valid notice within the meaning of section 3 of Transfer of Property Act is wholly untenable in law, because, by such a letter a presumption was already made that Military Authority cannot have any objection when in fact, being legal owner of the land in dispute, the Military Authority was totally against the order of treating the property as public wakf to the determine of Military interest and national security. The learned advocate, therefore, contends that as there was no opportunity given to the Military Authority to place its objection against the Act of the Board treating the property as public wakf, the said order was vitiated for violation of the principle of natural justice and Tribunal was totally wrong in disregarding this important legal aspect and thereby lending support to the order of the Board. Submissions made on behalf of the Board of Wakf and its executives: ( 10 ) THE learned advocate appearing for the Board of Wakf and its executive is of the opinion that there was nothing wrong in the resolution and order of the Board and the Tribunal rightly upheld that order by rejecting the appeal of the petitioner of C. O. No. 1984 of 2003. The learned advocate contends that it would appear from section 178 of the Mohammedan law that there are certain religious purposes for which a property can be termed as wakf and in the present case undisputedly those purposes have been served by using the property from time immemorial and neither the petitioner of C. O. No. 1984 nor the Union of India has disputed this admitted fact. The learned advocate submits that both in section 188 of the Mohammedan law as well as in section 3 (r) (i) of the Act, 1995 it has been held that without making any formal dedication a property can be treated as public wakf from long user of the same for the purposes mentioned in section 178 of the Mohammedan law and hence, Tribunal did not commit any mistake either in fact or in law by holding that the property became public wakf by user. The learned advocate in this respect has relied on the decisions reported in AIR 1967 Orissa page 55, AIR 1962 Orissa page 95, AIR 2004 Jammu and Kashmir page 52, AIR 1999 Supreme Court page 3067 and AIR 1956 Supreme Court page 513. The learned advocate in this respect has relied on the decisions reported in AIR 1967 Orissa page 55, AIR 1962 Orissa page 95, AIR 2004 Jammu and Kashmir page 52, AIR 1999 Supreme Court page 3067 and AIR 1956 Supreme Court page 513. Submissions made on behalf of the private respondents of both the applications being C. O. No. 1984 of 2003 and C. O. No. 2416 of 2003: ( 11 ) THE learned advocate appearing for the private respondents has challenged both the applications filed by the private petitioner as well as by the Union of India on various points and submits that there is no merit in any of the application and accordingly, the order of the Tribunal must be upheld and both the applications must be dismissed with costs. In order to appreciate the various points raised by the learned advocate for the private respondents, those points can be recorded in the following manner:- (A)none of the parties in the proceedings disputed the erection of Darga and Mosque on the disputed land since 1668 A. D. and it is needless to mention that the Federal Government acquired ownership only after 1935 and hence, there is no ground to hold that the land in question belongs to the Military Authority. It is the further submission of the learned advocate that the documents relied on by the Union of India cannot conclusively decide that the land in question actually belongs to the Union of India; (b)there cannot be any dispute over the legal proposition that a property can be held to be a wakf property even without formal dedication simply on the ground of long user of the said property for the religious purposes as provided in section 178 of the Mohammedan law and in this regard the following judicial decisions are of much relevance as reported in AIR 1913 Madras page 169 and AIR 1956 Supreme Court page 713. (c)there is no provisions either mandatory or directory in section 36 of the Wakf Act, 1995 requiring the Board for issuance of any notice and hence, there is no merit in the contention of the Union of India that the order of the Board is vitiated as no notice prior to taking the resolution and making the order was served upon the Union of India. (d)the private petitioner of C. O. No. 1984 has made reckless and contradictory statement to deny the character of the suit property for his own narrow personal interest and those reckless statements cannot be a part of the record under the provisions of the Appellate Side Rules as those allegations were not proved by any cogent and convincing document. (e)both the applications appear to be not maintainable having regard to the prayers made thereunder when admittedly in the prayer of both the applications the resolution of the Board and the order of the Chief Executive Officer was not challenged and hence, even if the order of the Tribunal is set aside, the resolution of the Board and order of the Chief Executive Officer shall remain unaffected rendering both the applications infructuous and meaningless. ( 12 ) FINALLY, it has been argued by the learned advocate that the scope of Article 227 is very much limited as held by the Apex Court through its decision reported in AIR 1958 Supreme Court page 398 and also AIR 1975 Supreme Court page 1297. The learned advocate contends that this Court exercising its jurisdiction under Article 227 of the Constitution of India cannot act as a Court of Appeal and cannot reappreciate the fact and evidence scanned by the inferior Tribunal and this Court cannot rectify even an erroneous order of the inferior Tribunal if it is not shown that there was jurisdictional error committed by the said Tribunal or there was any apparent mistake on the face of the record of the Tribunal. ( 13 ) THE learned advocate appearing for the private respondents has also distinguished the decisions referred to by the learned advocate for the petitioner of C. O. No. 1984 of 2003 and submits that those decisions are not applicable in the fact and circumstances of the present case. ( 14 ) HAVING regard to the above submissions made by the contesting parties of both the applications, I think it would be better, first of all, to clarify the legal position regarding scope and ambit of Article 227 of the Constitution of India so as to determine whether there is any scope of interference from this Court regarding the order recorded by the Tribunal and impugned in both the applications. ( 15 ) IT is true that as early in 1958, the Apex Court outlined the necessary guidelines for exercise of the jurisdiction of the High Court in the case of Nagendra Nath Bhora and Anr. v. Commissioner of Hills Division, Assam under Article 227 vis-?-vis Article 226 of the Constitution of India and to quote the learned advocate for the private respondent that judgment of the Apex Court may be considered as ?sheet anchor? in the field. In the judgment reported in AIR 1975 Supreme Court page 1297, the Apex Court reiterated the view taken in its earlier judgment reported in AIR 1958. ( 16 ) BUT, admittedly the issue did not stop there and with the change of time so as to meet its requirement and with the continuous development of law, the Apex Court had the opportunity to examine the scope of Article 227 time and again and it would not be without any basis to state that the opinion of the Apex Court regarding scope and ambit of Article 227 of the Constitution of India crystalised in some manner in the ratio of decision reported in AIR 2003 Supreme Court page 3004 where the Apex Court took the opportunity to reconsider all its earlier important judgments operating in the field including the decision delivered in the case of Nagendra Nath Bhora (supra ). ( 17 ) FROM examination of the ratio of the decision reported in Article 2003 Supreme Court, it is found that while discouraging the High Court not to take the role of Appellate Forum while exercising its supervisory jurisdiction under Article 227, the Apex Court made it very much clear that in appropriate case, the High Court may be called upon to reexamine the findings of the subordinate Court and Tribunal and if required to place its own findings in dispassionate reappraisal of fact and evidence provided, it is satisfied that the subordinate Court or the Tribunal failed to exercise jurisdiction vested on it under the law, passed the order in flagrant violation of the existing statutory provision or recorded such an order which would prima facie show miscarriage of Justice and thereby causing irreparable loss and injury to the aggrieved parties. Thus, having regard to the decisions referred to by rival parties on this question, I am of the view that if it is found from dispassionate examination of the findings of the Tribunal that it failed to take into account the existing statutory provision or it misconstrued a statutory provision in arriving at its decision or it failed to take into account the violation of the principle of natural justice and thereby caused irreparable loss and injury to either of the petitioner, this Court cannot and should not hesitate to come forward and to intervene. ( 18 ) NOW, the pertinent question would arise when ?user? can confer on a property the necessary character of wakf property and under what circumstances. After given my anxious consideration to all the connected decisions cited by the rival parties, I am convinced to hold that the property in dispute must be the property of an individual who instead of making formal dedication would allow public at large to use that property for religious purposes as contemplated in Mohammedan law and in such a situation 'user' of the property would make the property public wakf. ( 19 ) FROM the undisputed fact of the present case, it is found that since 1688 the Darga and the Mosque was in very much existence on the land which subsequently at the early part of 20th century was transferred in favour of the Military Authority of the then Government of India and found its mention and inclusion in subsequent Government gazette notified and this fact has not been disputed by the Tribunal and even by the Board who by its conduct accepted the Military Authority to be the owner of the land and this clearly indicates that the concept of ?user? as coined both in Mohammedan law and in the Wakf Act, 1995 cannot be applied so far the present property in dispute is concerned. There is nothing before this Court nor there was anything before the Board or Tribunal to show that there was any tacit or active permission from the Military Authority for treating the land as wakf property not there is anything before the Board or the Tribunal to show that prior to 1909 there was any approval or permission from the owner of the land in dispute to use the land as wakf property. ( 20 ) THUS, from the different decisions cited by the parties on the question of ? user?, I am of the view that the concept of, ?user? must be used not as a 'sword' but as a 'shield' and such ?user? can be claimed only against a person who by his act or conduct allowed the public at large to use the property for religious purposes and for that matter for treating the same as wakf property. ( 21 ) THUS, in my considered view, the Board as well as the Tribunal was totally wrong in disregarding the ownership right of the Military Authority and thereby acting against the statute and Mohammedan law by holding the property as public wakf. ( 22 ) HAVING regard to the submissions of the parties, I am of further opinion that the resolution and order of the Board and also the order of the Tribunal upholding the resolution of the Board cannot be supported on the ground of violation of the principle of natural justice. It is true that there is no statutory mandate regarding service of notice under section 36, but, we cannot shut eyes to the provisions of section 40 of the Wakf Act, 1995 and it is admitted fact that the Board exercised its power under section 40 of the Act when it made the inquiry before treating the property in dispute as wakf property. Making a logical interference of section 40 of the Wakf Act, 1995, I am of the view that a notice upon the Military Authority was very much required before making a resolution treating the property as wakf property and in this regard the observation of the Tribunal that the Military Authority had prior notice cannot be supported at all. No formal notice was ever served upon the Military Authority, but, a presumption was made that Military Authority would not oppose to any resolution treating the land of the Military Authority as public wakf. This is indeed a very strange legal proposition unknown in the field of law and against all cannons of natural justice. No formal notice was ever served upon the Military Authority, but, a presumption was made that Military Authority would not oppose to any resolution treating the land of the Military Authority as public wakf. This is indeed a very strange legal proposition unknown in the field of law and against all cannons of natural justice. ( 23 ) I have already discussed following the ratio of decisions of the Apex Court where and under what circumstances High Court can and should interfere with the order of subordinate Court and the Tribunal and in my considered view, having regard to the order of the Tribunal, it is a fit case where this Court should interfere and set aside the order of the Tribunal which was against statutory provision, against proper legal interpretation of the statute and which was passed violating the basic principle of natural justice. ( 24 ) ACCORDINGLY, I find merit in both the applications and I am of further opinion that it would be sufficient for both petitioner to ask for quashing of the order of the Tribunal because, under section 40 of the Wakf Act, 1995, the resolution and order of the Board shall be subject to the approval of the Tribunal, if the Tribunal is approached by any aggrieved party and when the order of the Tribunal is going to be quashed, there will be no existence of either of the resolution or of the order of the Board treating the property in dispute as wakf property and appointment of any person as Mutawalli in respect of that property. ( 25 ) IN view of what has been stated abvove, both C. O. No. 1984 of 2003 and C. O. No. 2416 of 2003 are allowed on contest, but, having regard to the fact and circumstances without any order as to costs. The order of the Tribunal dated 30th June, 2003 passed in Appeal No. 25 of 2002 is hereby set aside. Urgent Xerox certified copy of this judgment, if applied for, may be supplied expeditiously after complying with all necessary legal formalities. Application allowed