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2008 DIGILAW 322 (CAL)

Nurul Amin v. Executive Officer

2008-03-24

JYOTIRMAY BHATTACHARYA

body2008
Judgment :- (1). MUTWALLI and Enrolment Committee adopted a resolution for appointment of a committee of Mutwallis consisting of eleven named members as per Section 63 of the Wakf Act, 1995 on 30th March, 2007. The said resolution of Mutwalli and Enrolment Committee was confirmed by the Board of Wakf, West Bengal, in its meeting held on 18th April, 2007 vide E. C. No. 12003. (2). THE legality of such confirmation is under challenge in this application under Article 227 of the Constitution of India before this Court at the instance of the instance of the petitioners herein. (3). IT is rightly pointed out by Mr. Sahoo, learned Advocate, appearing for some of the opposite parties that such a dispute can be raised by filing an application by the aggrieved party before the Tribunal constituted under Section 83 of the Wakf Act, 1995. (4). MR. Arefin, learned Advocate, appearing for the petitioners submits that since no rule has yet been framed in terms of the provision of sub-section 6 of Section 83 of the said Act, such a dispute cannot be resolved before the tribunal. (5). THIS Court does not find any substance in such submission of Mr. Arefin as subsection 5 of Section 83 of the said Act makes it clear that the tribunal shall be deemed to be a Civil Court and shall have the same power that may be exercised by Civil Court under the Code of Civil Procedure, 1908 while trying a suit or executing a decree or order. (6). THE said provision makes it clear that the entire provision of the civil Procedure Code which is applicable to a civil suit is also applicable in the proceeding before the Tribunal under Section 83 (2) of the said Act. Sub-section 6 of Section 83 simply says that notwithstanding anything contained in the code of Civil Procedure, 1908 the Tribunal shall follow such procedure as may be prescribed. (7). THIS Court is informed by Mr. Arefin that no such rule has yet been framed. (8). Sub-section 6 of Section 83 simply says that notwithstanding anything contained in the code of Civil Procedure, 1908 the Tribunal shall follow such procedure as may be prescribed. (7). THIS Court is informed by Mr. Arefin that no such rule has yet been framed. (8). PLAIN reading of the provision contained in Section 83 (5) and Section 83 (6) of the said Act conjointly leads this Court to hold that the entire provision of the Civil Procedure Code relating to suit and/or execution of the decree or order will be applicable to the Tribunal while dealing with an application filed under Section 83 (2) of the said Act. It, however, any rule is prescribed contrary to any provision of the Civil Procedure Code, in that event such rule will supersede the provisions contained in the Civil Procedure Code. (9). AS such, this Court holds that so long as no rule is framed under sub-section 6 of Section 83 of the said Act, the provision contained in the Civil procedure Code relating to suit or decree or order will be applicable to a proceeding under Section 83 (2) of the said Act. (10). SINCE an alternative remedy is available before the Tribunal under the Special Act, this Court declines to entertain this revisional application under article 227 of the Constitution of India. (11). THE revisional application, thus, stands rejected only on the ground of entertainability. (12). THIS Court, however, makes it clear that this order will not prevent the petitioner from seeking appropriate relief before the appropriate forum in accordance with law.