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Uttarakhand High Court · body

2009 DIGILAW 339 (UTT)

MOHD. TALIB v. UTTARAKHAND WAKF BOARD

2009-07-01

V.K.BIST, V.K.GUPTA

body2009
JUDGMENT [Per : Hon’ble V.K. Gupta, C.J. (Oral)] This special appeal is directed against the judgment and order dated 11.06.2009 whereby learned Single Judge of this Court has dismissed the writ petition no. 667 of 2009 (MS) filed by the petitioner against the respondents on the ground that the petitioner had an alternative remedy of approaching the Tribunal constituted under Section 83 mention whereof has been made in Section 84 of the Wakf Act, 1995. Actually, the learned Single Judge in the course of impugned judgment has referred to Section 85 of the Act. 2. Under Section 83 of the Act, it has been provided that the State Government shall constitute as many Tribunals as it may think fit, for determination of any dispute, question or any other matter relating to a wakf or wakf property under the Wakf Act, 1995 and defined the legal limits and jurisdiction of every such Tribunal. Under Section 84 it has been laid down that whenever an application is made to such a Tribunal for determination of any dispute etc. relating to a wakf or wakf property it shall hold its proceedings as expeditiously as possible and thereafter give its decision in writing etc. etc. Section 85 creates a bar with respect to filing of any suit or other legal proceeding in any civil court relating to any dispute, question or other matter relating to any wakf, wakf property or such matter which is required under the Act to be determined by the Tribunal. For ready reference Sections 84 and 85 are reproduced hereunder, which reads thus : “84. Tribunal to hold proceedings expeditiously and to furnish to the parties copies of its decision. Whenever an application is made to a Tribunal for the determination of any dispute, question or other matter relating to a wakf or wakf property it shall hold its proceedings as expeditiously as possible and shall as soon as practicable, on the conclusion of the hearing of such matter give its decision in writing and furnish a copy of such decision to each of the parties to the dispute. 85. 85. Bar of jurisdiction of civil courts – No suit or other legal proceedings shall lie in the any civil court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal.” 3. Wakf has been defined in Section 3(r) of the Act, which reads as under : “Wakf means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim Law as pious, religious or charitable and includes – (i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser. (ii) “grants” including mashrut-ul-khidmat for any purpose recognized by the Muslim law as pious, religious or charitable; and (iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable, and “wakf” means any person making such dedication.” 4. Learned Single Judge erred on two counts. First and foremost he has dismissed the writ petition by referring to and relying upon Section 85 of the Act and by holding that Section 85 operates as a bar to the petitioner filing writ petition in this Court. 5. A bare look at Section 85 of the Act informs us that the bar, if any, applies to a person filing a suit or legal proceeding in a civil court. Approaching the High Court by invoking its extraordinary writ jurisdiction under Article 226 of the Constitution of India is not akin to a person filing a civil suit or a legal proceeding in a civil court. By now it has been well established that invoking the jurisdiction of a civil court under Section 9 CPC is different and distinct as compared to approaching the High Court by invoking its extraordinary jurisdiction under Articles 226 or 227 of the Constitution of India. The extraordinary writ jurisdiction of this Court is saved and it being plenary in nature actually cannot be curtailed or taken away in any Statute. The ambit and the amplitude of this jurisdiction cannot be curtailed by a statutory provision. 6. The extraordinary writ jurisdiction of this Court is saved and it being plenary in nature actually cannot be curtailed or taken away in any Statute. The ambit and the amplitude of this jurisdiction cannot be curtailed by a statutory provision. 6. The second count on which learned Single Judge erred was perhaps a reference to jurisdiction of the Tribunal emanating from Sections 83 and 84 of the Act. As has been noticed, the Tribunal derives its jurisdiction for adjudication with respect to a matter relating to a wakf or wakf property. In the present case, petitioner had not filed the writ petition with respect to a matter relating to the wakf or a wakf property. No issue or question was raised about any wakf or any wakf property. The petitioner’s grievance before learned Single Judge was that a contract was wrongly or illegally awarded to respondent No. 4 whereas it ought to have been awarded in his favour. Awarding of a contract is not the same thing as an issue relating to or arising out of a wakf or wakf property. 7. Because of the aforesaid reasons, we are convinced that the writ petition was wrongly dismissed on the ground of petitioner having an alternative remedy of approaching Tribunal in terms of Sections 83, 84 or 85 of the Act. We hold that the subject matter of the writ petition was outside the purview, jurisdiction and domain of the Tribunal constituted under Section 83 of the Act read with Section 84 thereof. 8. Mr. Pankaj Miglani appearing for respondent no. 4 has submitted that apart from aforesaid aspect, writ petition is also not maintainable because it raises disputed questions of fact. In this appeal we were concerned only with the sole, limited aspect about the Tribunal’s jurisdiction under Section 83 read with section 84 of the Act. In this appeal we are not concerned with any other aspect of the matter including the question of disputed fact or any other aspect, e.g., as to whether respondents are amendable to the writ jurisdiction of this court on the ground that they are not “State” or “any other authority” under Article 12 of the Constitution of India. All these issues and questions are left open to be decided by the learned Single Judge. 9. The impugned judgment is set aside. Writ petition is revived. All these issues and questions are left open to be decided by the learned Single Judge. 9. The impugned judgment is set aside. Writ petition is revived. Writ petition shall be listed before the learned Single Judge in the week commencing 20th July 2009. By then all the respondents shall ensure that they have filed their counter affidavits. Time for filing counter affidavits shall not be extended.