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2007 DIGILAW 678 (CAL)

Mujibar Rahman v. Kabiruddin

2007-09-05

JYOTIRMAY BHATTACHARYA

body2007
Judgment :- (1.) IN this application, the opposite party No. 3/applicant has prayed for review of the judgment and/or order dated 12th July, 2007 passed by this bench in C. O. No. 79 of 2007 on the ground that there are some error apparent on the face of the order regarding interpretation of the provision of Section 83 (2) of the Wakf Act, 1995 resulting erroneous conclusion in the order passed by this Court while disposing of the said revisional application on 12th July, 2007. (2.) RELEVANT facts leading to filing of this review application are given below for proper appreciation of this application for review. (3.) PENDING disposal of a civil suit being Title Suit No. 54 of 2001 before the learned Civil Judge (Junior Division), Ghatal, Paschim Medinipur regarding a dispute relating to title and possession between the petitioner and the opposite party No. 3 (applicant) concerning the property being L. R. Plot No. 103 under Khatian No. 103 measuring about 57 decimals at Mouza chakiochhipur, the said suit property was enrolled as a part of the Lai Masjid wakf Estate under E. G. No. 15335 by a resolution adopted by the Board of wakfs, West Bengal vide Order dated 15th February, 2005 at the instance of the opposite party No. 3 (applicant). (4.) SINCE the said property was enrolled as a part of Lai Masjid Wakf estate during the pendency of the aforesaid suit and without notice to the petitioner, the petitioner, immediately after coming to know about the said order, submitted an application before the Board of Wakfs, West Bengal for recall of the said order of enrolment. (5.) THE Board of Wakfs, instead of considering the petitioners said application on merit, kept the same pending by holding that since a civil suit is pending between the parties concerning a dispute relating to right, title, interest and possession between the opposite party No. 3 (applicant)and the petitioner, before a civil Court of competent jurisdiction, the petitioners prayer for recall of the order of enrolment, cannot be considered at this stage. (6.) BEING aggrieved by both the aforesaid orders passed by the Board of Wakfs, West Bengal, dated 15th February, 2005 and 14th September, 2006 respectively, the petitioner preferred an appeal before the appellate forum challenging the propriety of those two orders. (6.) BEING aggrieved by both the aforesaid orders passed by the Board of Wakfs, West Bengal, dated 15th February, 2005 and 14th September, 2006 respectively, the petitioner preferred an appeal before the appellate forum challenging the propriety of those two orders. The said appeal was registered as Appeal No. 23 of 2006 by the Wakf Tribunal, West Bengal, kolkata. (7.) THE said appeal was ultimately dismissed by the learned Tribunal by holding, inter alia, that the impugned resolution dated 14th September, 2006 which was confirmed on 13th October, 2006 is not appealable, as no final decision on the petitioners application for recall of the order of enrolment, has yet been taken by the Board of Wakfs, West Bengal. Thus, the said appeal was dismissed on the ground of maintainability issue alone. (8.) SUCH an order passed in the said appeal was challenged by the petitioner before this Court in its civil revisional jurisdiction. The said application which was registered as C. O. No. 79 of 2007, was ultimately disposed of by this Court on 12th July, 2007. (9.) THE applicant has sought for review of the said order in this review application. (10.) MR. Bibek Jyoti Basu, learned Advocate, appearing for the applicant, submitted that Chapter VIII of the said Act deals with constitution of Tribunal and the conduct of various judicial proceedings before the tribunal. By drawing my attention to Section 83 (2) of the said Act, Mr. Basu pointed out that the said provision does not deal with the right of appeal of any Mutawalli or person interested in the Wakf or any other person aggrieved by an order made under the said Act. (11.) MR. Basu further submitted that the said provision makes it clear that any Mutawalli, person interested in the Wakf or any other person aggrieved by an order made under the said Act, or Rules made thereunder, may make an application within the time specified in the said Act or 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 Wakf. (12.) MR. Basu thus contended that the learned Tribunal was justified by holding that the order which was sought to be challenged by the petitioner before the Tribunal in the said appeal is not appealable. (13.) MR. (12.) MR. Basu thus contended that the learned Tribunal was justified by holding that the order which was sought to be challenged by the petitioner before the Tribunal in the said appeal is not appealable. (13.) MR. Basu further submitted that even the right to challenge any order by filing an application by the Mutawalli or the person interested in the Wakf or any other person under Section 83 (2) of the said ; Act, is not-unrestricted, as a period of limitation is prescribed under Rule 26 of the west Bengal Wakf Rules, 2001 framed under the said Act which provides that such an application may be made within 30 days from the date of the order which is sought to be challenged before the Tribunal. (14.) MR. Basu thus submitted that when the time for filing such an application against the orders which were sought to be challenged by the petitioner before the Tribunal, had long expired, the petitioners right to challenge the said orders by way of application under Section 83 (2) of the said Act became barred by limitation even long before the date of filing the said appeal being Appeal No. 23 of 2006. As such, the petitioner cannot maintain the said challenge before the Tribunal. (15.) MR. Chatterjee, learned Senior Advocate, appearing for the petitioner does not dispute the contention of Mr. Basu with regard to interpretation of the provision contained in Section 83 (2) of the said Act. Mr. Chatterjee contended that his client submitted an application under section 41 of the said Act before the Board seeking amendment of the register of Wakfs by complaining against the illegal enrolment of his clients property as the property of Lal Masjid Wakf Estate, without notice to his client and that too during the pendency of the civil suit wherein the dispute relating to title of the parties to the said property is under consideration. (16.) MR. Chatterjee further submitted that since the relief which was sought for by his client before the Board was not granted, his client had the right to submit an application for challenging those orders passed by the board under Section 83 (2) of the said Act before the Tribunal. (17.) MR. Chatterjee further submitted that in fact his client did so ; but through inadvertently the said application was drawn in the form of a memorandum. Mr. (17.) MR. Chatterjee further submitted that in fact his client did so ; but through inadvertently the said application was drawn in the form of a memorandum. Mr. Chatterjee further contended that the Tribunal cannot reject any application due to defect in its form ; rather the Tribunal is required to consider the text and/or substance of the challenge on its own merit, by ignoring the technical defect in it. (18.) MR. Chatterjee further submitted that the application which was filed by his client before the Tribunal is not barred by limitation. Mr. Chatterjee further submitted that even if it is barred by limitation, still then the Tribunal is not powerless to condone the delay in filing such application in appropriate cases by virtue of the provision contained in Section 95 of the said Act. (19.) MR. Chatterjee thus submitted that the order passed by this Court on 12th July, 2007 may be varied only to this extent that the tribunal instead of hearing the said appeal, will treat the petitioners said memorandum of appeal, as an application under Section 83 (2) of the said Act and will dispose of the same on its own merit in accordance with law as per the direction passed by this Honble Court in the order dated 12th July, 2007. (20.) HEARD the learned Advocates of the parties. Considered the materials on record. (21.) AS a matter of fact, a memorandum of appeal was presented by the petitioner for challenging the orders passed by the Board on 15th february, 2005 and 14th September, 2006 before the Tribunal. The Tribunal also registered the said memorandum of appeal as an appeal being Appeal no. 23 of 2006. Registration of the said memorandum of appeal as an appeal by the Tribunal, was not questioned before this Court earlier. (22.) REGISTRATION of the petitioners said memorandum of appeal by the Tribunal, as an appeal and no protest having been made by any of the parties against such registration, led this Court to proceed with the impression that appeal lies against the impugned orders and ultimately the said revisional application was disposed of with a direction upon the Tribunal to dispose of the said appeal on its own merit. (23.) BE that as it may, it is rightly pointed out by Mr. (23.) BE that as it may, it is rightly pointed out by Mr. Basu that Section 83 (2) of the said Act does not recognise a right of appeal of any aggrieved person against any order passed by the Board under the said Act. Mr. Basu rightly pointed out that an aggrieved party may file an application against an order passed by the Board under the said Act before the Tribunal. (24.) I fully agree with such contention of Mr. Basu. (25.) BUT, when the right to file an application by an aggrieved party for challenging an order passed under the said Act by the Board before the tribunal, is recognised under Section 83 (2) of the said Act, this Court has no hesitation to hold that the memorandum of appeal which was filed by the petitioner in Appeal No. 23 of 2006 may be treated as an application under section 83 (2) of the said Act and such application may be considered and disposed of by the Tribunal on its own merit, subject to the objection regarding the bar of limitation as raised by the applicant herein. (26.) SINCE the point of limitation was not raised earlier by any of the parties before the Tribunal, this Court does not think it fit to consider the claims and counter-claims of the parties regarding the maintainability of the said application on account of bar of lirnitation at this stage. (27.) ACCORDINGLY, the order dated 12th July, 2007 passed by this court in C. O. No. 79 of 2007 is modified to this extent that the Tribunal, instead of considering the said appeal being Appeal No. 23 of 2006 on its merit, will consider the Memorandum of Appeal filed by the petitioner in connection with the said appeal by treating the same as an application under Section 83 (2) of the said Act and by classifying the said proceeding accordingly and will dispose of the same on its own merit in accordance with law, subject to the objection, that may be taken by the applicant regarding the maintainability of such application on account of bar of limitation. Such consideration should be made within three months from the date of communication of this order. (28.) THE application for review, thus, stands allowed without any order as to costs.