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2013 DIGILAW 789 (MP)

Zafar Ali Khan v. Arif Aquil

2013-07-11

ALOK ARADHE

body2013
JUDGMENT : Shri P. N. Dubey, learned counsel for the applicants. Shri Imtiyaz Hussain, learned counsel for non-applicant No. 1. Shri S. K. Dwivedi, learned counsel for non-applicant No. 2. With consent of the parties, the matter is heard finally. In this revision preferred under section 83(9) of the Wakf Act, 1995, the applicant has assailed the validity of the order dated 16-5-2012 passed by the M.P. State Wakf Tribunal by which the application for injunction filed by the non-applicant No. 1 has been allowed. 2. Facts leading to filing of the revision briefly stated are that Mutallika Islamiya School, Korwai, District Vidisha is a Wakf registered under the provisions of the Wakf Act, 1995 (hereinafter referred to as 'the Act')- The Wakf is the owner of lands comprised in various Khasra Nos. admeasuring 16.235 hectares. The applicant No. 1, who is the Mutwalli submitted an application on 10-10-2009 under section 32 of the Act to M. P. Wakf Board, Bhopal for grant of permission to exchange 4.633 hectares of un-irrigated agricultural lands with irrigated lands admeasuring 6.28 hectares situated near Betwa river. It was stated in the application that son-in-law of Mutwalli namely applicant No. 2 has offered to pay Rs. 15 lakhs for further construction and restoration of Dargah as a result which, strength of the students would increase from 250 to 500. The applicant No. 1 also offered to contribute a sum of Rs. 1.05 lakhs to Wakf Board by way of donation. 3. Thereupon, the valuation report in respect of lands in question from a private valuer was obtained and it was found that market value of the land of the Wakf is less than the market value of the lands sought to be received in exchange. It is the case of the applicants that the issue with regard to exchange of the land was considered in the meeting of the Board dated 26-2-2011 in which, out of 13 members, 10 members voted in favour of the resolution. Thereafter, non-applicant No. 1 on 5-5-2011 issued a notice under section 89 of the Act to the Board by which the Board was required to annul the proceeding with regard to exchange of the land. Thereafter, non-applicant No. 1 on 5-5-2011 issued a notice under section 89 of the Act to the Board by which the Board was required to annul the proceeding with regard to exchange of the land. The Chief Executive Officer of the Board by communication dated 22-6-2011 informed the Mutwalli that permission has been granted by the Board and the Tahsildar was requested to make necessary entries in the revenue records. Before expiry of the notice period, the non-applicant No. 1 filed a suit under section 83 of the Act along with an application for injunction by which the applicants were sought to be restrained from alienating the property in question and to change the nature of the property. The applicants filed the written statement as well as the reply in which inter-alia it was pleaded that permission to exchange the land has been duly granted by the Board in accordance with law. 4. The Tribunal vide order dated 16-5-2011 inter-alia held that market value of the land sought to be received in exchange is less than the lands which belongs to the Wakf. It was further held that in case injunction is not granted, the purpose of filing the suit would be frustrated. Accordingly, the applicants were restrained either from alienating the property in question or from altering the nature of the same. 5. Learned counsel for the applicants submitted that the suit filed by the non-applicant No. 1 before the Tribunal is not maintainable, as the same was filed before the expiry of the notice period prescribed under section 89 of the Act and the non-applicant No. 1 has no locus to file the suit. It was further submitted that in any case the non-applicant No. 1 has alternative remedy under section 51(5), section 52 as well as section 26 of the Act. It was also urged that the Tribunal grossly erred while passing the order dated 8-7-2011 and in granting liberty to file the suit to the non-applicant No. 1 without there being any application in this regard by the non-applicant No. 1. It was also urged that the Tribunal grossly erred while passing the order dated 8-7-2011 and in granting liberty to file the suit to the non-applicant No. 1 without there being any application in this regard by the non-applicant No. 1. In support of his submissions, learned counsel for the applicants has placed reliance on Cawashah Bomanji Parakh vs. Prafulla Nath Rudra, AIR 1941 Nagpur 364, Gopal Prasad Chourasiya vs. Prasanna Kumar Shrivastava and others, 1989 JLJ 478 , Rahmath Bi and another vs. State Wakf Board, AIR 1982 Madras 202, A. S. Abdul Khader Wakf for Deeni Talim vs. Saber Miah and etc., AIR 2003 AP 528 , Ramesh Gobindram (dead) through LRs. vs. Sugra Humayun Mirza Wakf, 2010(8) SCC 726 and Maharama and another vs. Ram Bux, AIR 1978 Rajasthan 206. Learned counsel for respondents No. 2 and 3 have supported the submissions made by learned counsel for the applicants. 6. Learned counsel for non-applicant No. 1 while inviting the attention of this Court to provisions of section 32(j) as well as section 51(2) of the Act, has submitted that there are twin mandatory requirements for transfer of immovable property of a Wakf namely that sanction has to be granted by the Board by two-third's majority and that there has to be publication in the official Gazette regarding the particulars of the transaction inviting objections and suggestions. In the instant case, neither the resolution has been passed by the two-third majority of the members of the Board nor any publication in the official Gazette has been made. It is also urged that there was no order by the Board for valuation of the property and there is no registered document evidencing the exchange of the property in question. Lastly, it is also submitted that the non-applicant No. 1 has the locus to institute the suit and no alternative remedy is available to him for ventilation of his grievance and the suit filed by the non-applicant No. 1 before the Tribunal is maintainable. In support of his submissions, learned counsel for non-applicant No. 1 has placed reliance on a decision of Supreme Court in the case of Mohammadia Co-operative Building Society Limited vs. Lakshmi Srinivasa Co-operative Building Society Limited and others, (2008) 7 SCC 310 . 7. I have considered the respective submissions made by learned counsel for the parties and have perused the record. 7. I have considered the respective submissions made by learned counsel for the parties and have perused the record. Admittedly, the objections with regard to maintainability of the proceeding before the Tribunal have been raised by the applicants for the first time before this Court. In Kiran Singh vs. Chaman Paswan, AIR 1954 SC 340 , it has been held that defects of jurisdiction may be either pecuniary or territorial and it may also be in respect of subject-matter of action. By jurisdiction is meant the authority on which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. Halsbury, 4th Edn., Vol. 10, para 715 p.323. The jurisdiction of the Tribunal is circumscribed by the provisions of the Act. Whenever any question is raised before the Tribunal with regard to its jurisdiction, the Tribunal will have to decide such a question whether it depends on the construction of the provision of the Act or investigation of the facts. [See : Rao Bhupendra Singh vs. Smt. Gopal Kunwar Umath and another, 1970 MPLJ 16 . Thus, in view of aforesaid enunciation of law, it is apparent that the Wakf Tribunal has the authority to decide the question of jurisdiction. 8. In the instant case, the objections with regard to jurisdiction of the Tribunal on various grounds have been raised for the first time before this Court. In the facts of the case, without entering into the merits of the case, I deem it appropriate to dispose of the instant revision with a direction that in case the applicants move an application before the Tribunal raising an objection with regard to its jurisdiction to entertain the suit filed by the non-applicant No. 1, the Tribunal on receipt of such an application shall decide such an objection within a period of three weeks from the date of receipt of such an application. Needless to state that in case suit filed by the non-applicant No. 1 is found to be not maintainable the tribunal would be at liberty to pass appropriate orders with regard to loss if any caused to applicants in view of injunction granted by it. 9. Let the record of the Tribunal be sent back forthwith. With the aforesaid directions, the revision is disposed of. C.C. as per rules. Order accordingly.