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2011 DIGILAW 998 (PAT)

Nasim Ahmad Khan v. State of Bihar

2011-05-06

body2011
ORDER Heard the parties. 2. The petitioner has filed the present writ petition questioning the validity and legality of the notice dated 26.9.2003 (Annexure-1), issued in terms of Rule 47 (1) of The Bihar Wakf Rules, 2002 (in short 'Rule') as also the consequential order dated 19.7.2004 (Annexure-2), issued by the respondent S.D.M., Gaya Sadar and communication dated 8.11.2003 (Annexure3), issued by the Secretary of respondent Bihar State Sunni Wakf Board, Patna. 3. Mr. Chittaranjan Sinha, learned Sr. Counsel appearing on behalf of petitioner, submits that in absence of any proof that property in question is a wakf property, entire impugned actions of the respondent Board as also the respondent S.D.O. are wholly without jurisdiction and cannot be sustained in the eye of law. He further submits that as a matter of fact, the petitioner has purchased the property in question through a registered deed of sale dated 21.5.1973 from one Bibi Khalique Khatoon, and therefore, according to him, entire claims of the respondent-Board that petitioner is a tenant with respect to the property in question are baseless. It is also contended that though, the property in question has been included in the wakf deed dated 28.4.1937 and nature of the Wakf deed was Wakf-alal-aulad, but that was registered in the year 1976. According to the learned counsel for the petitioner, even if, the property in question was included in the wakf deed of 1937, but this would not be a "wakf" under the meaning of Section 3 (r) of The Wakf Act 1995 (in short 'Act'). Lastly, it is contended on behalf of the petitioner that property in question has not been included in the list of wakf property of the respondent Board. Therefore, it is submitted that on these grounds impugned notice dated 26.09.2003 (Annexure I), impugned communication dated 8.11.2003 (Annexure 3), and impugned order dated 19.07.2004 (Annexure 2) are wholly without jurisdiction and are fit to be set aside by this Court. 4. Learned counsel appearing on behalf of Respondent State of Bihar and its functionaries, learned counsel appearing on behalf of respondents no. 2 and 3 as also learned counsel appearing for the intervenors, have strongly opposed the prayers made in the present writ application. They are unanimous in challenging the very maintainability of the present writ petition before this Court. 4. Learned counsel appearing on behalf of Respondent State of Bihar and its functionaries, learned counsel appearing on behalf of respondents no. 2 and 3 as also learned counsel appearing for the intervenors, have strongly opposed the prayers made in the present writ application. They are unanimous in challenging the very maintainability of the present writ petition before this Court. According to them, notice/order issued in terms of rule 47(1) of the Rules is appealable before the Tribunal under rule 47 (2) of the Rules. It is contended on behalf of respondents that the issues raised on behalf of the petitioner are basically issues of fact and that require some sort of evidence to be led by the parties in support of their respective claim. According to them, entire matter may be examined by the learned Tribunal constituted in terms of Section 83 of the Act, which is admittedly functional for the present. It is also contended that petitioner has himself mentioned in paragraph 12 of his writ petition that he is approaching this Court directly without approaching the Tribunal, since it was not functioning at the relevant time. 5. After having heard the parties, this Court finds that issues as to whether the property in question is a wakf property or not, whether the petitioner has acquired any legal right and title with respect to the property in question on the basis of deed of sale of the year 1973, whether the property was included in the wakf created on 28.4.1937 and whether the vendor of the petitioner had any legal right to transfer the property in question in favour of the petitioner through a registered deed of sale dated 21.05.1973, are basically question of facts and these require some sort of evidence to be led by the parties for coming to a particular conclusion. This Court further finds whether the property has been included in. the list of property of the Respondent Board in terms of Section 5 of the Act is also a question of fact and requires deeper examination. 6. This Court is of the considered opinion that issues of facts must be conclusively decided by the statutory authorities created under a particular statute. In the present case, all the issues, which have been raised either on behalf of petitioner or on behalf of respondents/intervenors, can be gone into by the learned Tribunal. 6. This Court is of the considered opinion that issues of facts must be conclusively decided by the statutory authorities created under a particular statute. In the present case, all the issues, which have been raised either on behalf of petitioner or on behalf of respondents/intervenors, can be gone into by the learned Tribunal. Admittedly, against the impugned notice/ under dated 26.9.2003 issued in terms of rule 47 (1) of the Rules, an appeal is maintainable before the Tribunal. 7. For the reasons recorded above, the petitioner is herby directed to me an appeal before the learned Tribunal within a period of four weeks from today with certified copy of the present order. If such an appeal is filed within the time prescribed by this Court and a petition for condonation of delay is filed on behalf of the petitioner, then the learned Tribunal shall take into consideration the fact that the present writ petition was filed on 17.8.2004, when admittedly Tribunal was not functional and matter remained pending before this Court till the date. Therefore, Tribunal shall be obliged to condone the delay in filing the appeal and shall consider the same on its own merit. The parties shall be at liberty to raise all the issues, which have been raised in the- present proceeding and the learned Tribunal shall be obliged to decide all those issues by a speaking order, after giving reasonable opportunity of hearing to all concerned. Learned counsel for the respondent Board and the intervenors have assured to this Court that they shall appear before the Tribunal within the same period of four weeks. Since the matter is pending for a quite long time, therefore, it is expected that the Tribunal shall make all endeavour to conclude its proceeding within a period of six months from the date of filing of such an appeal. Till the matter is finally concluded and decided by the learned tribunal, status quo as obtaining today, shall be maintained by the parties with respect to the properties in question. 8. With the aforesaid observations and directions, the writ petition stands disposed of.