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2014 DIGILAW 441 (CAL)

Kazi Mohammed Ariff v. Board of Wakfs

2014-05-14

SUBRATA TALUKDAR

body2014
JUDGMENT : Subrata Talukdar, J. 1. This petition under Article 227 of the Constitution of India read with Section 83(9) of the Wakf Act, 1995 challenges Order dated 30th June, 2010 passed by the Learned Presiding Officer, Wakf Tribunal in OA No.14 of 2009. 2. The brief facts of the case are as follows:- 3. That the predecessor-in-interest of the petitioner, one Syed Sahadat Ali and his wife Sokarannessa Bibi were the joint Wakif and Wakifa in respect of a Wakf property created by a registered deed executed by them on the 1st of September, 1943. In terms of the said Wakf deed or Wakfnama the Wakif, Syed Sahadat Ali appointed himself as the Mutawalli of the said Wakf estate during his lifetime. After his death the Wakifa, his wife was to continue as the Mutawalli. In terms of the said Wakfnama upon the death of both the Wakif and the Wakifa, their eldest daughter, Jainabunnessa Bibi was to continue as the Mutawalli. It was further specified in the Wakfnama that thereafter on the death of the third Mutawalli, Jainabunnessa Bibi, the eldest son of Jainabunnessa Bibi, Mohammed Jaffar shall be appointed as the Mutawalli of the Wakf property. 4. The Wakfnama further provides the line of succession as Mutawalli to the said Wakf property in the following manner:- "If anyone of the aforesaid person dies, the person next to him shall become the Mutawalli. After the said persons as mentioned above, the person amongst the other sons of the said eldest daughter or the sons of Mohammed Jaffar, the person who is considered to be learned, intelligent and capable of maintaining the property and trustworthy and honest and fit, shall be appointed as Mutawalli of this property. In this manner, the male descendants of their lineages shall be appointed as Mutawalli in succession amongst them. Amongst the aforesaid persons, the eligible person who is closer to us by relation shall be entitled to hold the post of Mutawalli. It is the distinctly related appropriate person who will be preferred as Mutawalli to the person who is closer by relation and fit. Amongst the aforesaid persons, the eligible person who is closer to us by relation shall be entitled to hold the post of Mutawalli. It is the distinctly related appropriate person who will be preferred as Mutawalli to the person who is closer by relation and fit. If in future there is dearth of male persons for becoming the Mutawalli amongst the male descendants of my aforesaid elder daughter, then male persons of my younger daughter's male descendants shall be entitled to be appointed as Mutawalli on the basis of the eligibility criteria as stated above. If there is dearth of male persons being appointed as Mutawalli from amongst the descendants of both my daughters, then at first from amongst the daughters of my elder daughter and thereafter the daughter of my younger daughter, shall be appointed as the Mutawalli in succession on the basis of the criteria regarding the eligibility and kinship as stipulated above. At the time of appointment of Mutawalli in such manner, it is a decision of important persons of the village which shall be deemed to be fulfilled in all cases. None shall be entitled to make any plea or objection thereto." 5. The present dispute centres on the appointment of the opposite party no.3, Kazi Mohammed Salim, the youngest son of the opposite party no.2, Kazi Mohammed Jaffar as the Mutawalli of the said Wakf property. The appointment of the opposite party no.3 is sought to be challenged by the present petitioner who is the youngest son of the third Mutawalli, Jaibunnessa Bibi and the brother of the fourth Mutawalli, Mohammed Jaffar. The petitioner alleges that the nomination of the opposite party no.3 by the father during his lifetime to the Mutawalliship is against the law and spirit of the registered Wakfnama and seeks cancellation of the appointment of the opposite party no.3 as Mutawalli. 6. It is relevant to mention that the fourth Mutawalli, Mohammed Jaffar filed an application before the Board of Wakfs, West Bengal, the opposite party no.1 on the 29th of June, 1992 expressing his desire to transfer the Mutawalliship in favour of his son the opposite party no.3. 6. It is relevant to mention that the fourth Mutawalli, Mohammed Jaffar filed an application before the Board of Wakfs, West Bengal, the opposite party no.1 on the 29th of June, 1992 expressing his desire to transfer the Mutawalliship in favour of his son the opposite party no.3. To such request the Commissioner of Wakf, West Bengal by communication dated 22nd February,1995 vide memo no.1558 recorded the name of the opposite party no.3 in place and stead of his father, the opposite party no.2 as Mutawalli of the said Wakf estate. 7. By representation dated 14th February, 2006 the petitioner sought cancellation of the nomination of the opposite party no.3 as the Mutawalli on the ground that such nomination is not contemplated by the Wakfnama. He prayed for proper selection of the Mutawalli as per terms and conditions of the Wakfnama. 8. Responding to the representation of the petitioner dated 14th February, 2006 the opposite party no.1 replied vide memo no. 5882 dated 21st January, 2008 directing him to approach the appropriate forum for relief "as the Board of Wakfs, West Bengal has nothing to do now on the matter." 9. Aggrieved by the communication dated 21st January, 2008 the petitioner approached this Hon'ble Court in its Writ Jurisdiction by filing WP 25137 (W of 2008) praying, inter-alia, for a mandamus on the opposite party no.1 to recall its Order dated 21st January, 2008 and thereafter to decide the petitioner's application dated 16th February, 2006, further mandamus directing the respondent-State of West Bengal to take immediate steps to fill up the vacancy in the Wakf Tribunal, West Bengal and interim Order in support of the main relief. 10. By Order dated 18th February, 2009 an Hon'ble Single Bench of this Court was pleased to dispose of WP 25137(W) of 2008 by directing the opposite party no.1 to consider the grievances of the petitioner on the basis of the materials before it and by affording both the Writ Petitioner and the respondents no. 3 & 4 (the opposite parties nos. 2&3 herein) an opportunity of hearing. The Hon'ble Single Bench was pleased to make it clear that nothing in this Order should be construed to have blessed the petitioner's case. 3 & 4 (the opposite parties nos. 2&3 herein) an opportunity of hearing. The Hon'ble Single Bench was pleased to make it clear that nothing in this Order should be construed to have blessed the petitioner's case. The Hon'ble Single Bench further observed as follows:- "It will also be upon to the Board to reject the petitioner's application for reconsideration of the matter merely on the ground of delay in applying after a period of 11 years." 11. Pursuant to the aforesaid Order of this Court dated 18th February, 2009 the opposite party no.1 considered the petitioner's case at its meeting held on 11th May, 2009 and communicated the resolution of the Board of the same date duly confirmed by the Board of Wakfs, West Bengal on 28th May, 2009. Such communication as made by the Board was communicated to the petitioner and the opposite party no.3 by its Chief Executive Officer vide memo no. 1507(1) dated 25th August, 2009. 12. The decision of the Board as resolved on 11th May, 2009 and confirmed by it on 28th May, 2009 upheld the appointment of the opposite party no.3 as the Mutawalli of the said Wakf property. In arriving at it decision the Board was pleased to notice as follows:- (a) As per the Wakf deed dated 1st September, 1943, Kazi Mohammed Jaffar (the opposite party no.3 herein) was the last recorded Mutawalli as per the terms of the Wakf deed. (b) During the period of his Mutawalliship, Kazi Mohammed Jaffar nominated his son Kazi Mohammed Salim (opposite party no.3 herein) as Mutawalli. The name of Kazi Mohammed Salim was incorporated as Mutawalli in place of his father as per Order dated 6th February, 1995 of the Wakf Commissioner. (c) After a long gap of 11 to 12 years the petitioner filed a complaint against the opposite party no.3 and claimed himself as the original Mutawalli on account of the voluntary retirement of his elder brother, the fourth Mutawalli, Kazi Mohammed Jaffar. (d) While laying down the rule of succession the joint Wakif and Wakifa had stated that after the four Mutawallis including the last Mutawalli, Kazi Mohammed Jaffar "an educated, intelligent, faithful and well behaved person with ability to maintain Wakf properties would be the Mutawalli from amongst the sons of Mst. Jaibunnessa Bibi or amongst the sons of Kazi Mohammed Jaffar. 13. Jaibunnessa Bibi or amongst the sons of Kazi Mohammed Jaffar. 13. In the last part of the said Wakf deed, the Wakif has inserted a clause that in case of necessity a Mutawalli can transfer the office to the next in line or any other persons whether temporarily or permanently. 14. After having noted the aforementioned provisions of the Wakfnama the opposite party no.1 arrived at the finding that the petitioner cannot be appointed as Mutawalli unless the opposite party no.3 is removed from the post of Mutawalli. However, since the Wakf Act, 1995 contains provisions for removal of Mutawalli, certain grounds as laid down under Section 64 thereof and none of the said grounds has been established against the opposite party no.3. Rather, from the enquiry report of the Inspector of Wakfs dated 18th July, 2007, it transpires that the opposite party no.3 is regular in his duties and the plea of the petitioner is without merit. 15. Aggrieved by such decision of the opposite party no.1 the petitioner preferred OA no.14 of 2009 under Section 83(2) of the Wakf Act, 1995 before the Wakf Tribunal and assailing the judgment of the Tribunal dated 30th June, 2010 the petitioner is before this Court. By its judgment and order dated 30th June, 2010 the Tribunal came to the following findings:- (a) That although for an application to be filed under Section 83(2) of the Wakf Act, 1995 a period of 30 days is prescribed under Rule 26 of the West Bengal Wakf Rules, 2001, the petitioner acquired knowledge of the decision of the Wakf Board only on 25th October, 2009. Accordingly the petitioner was well within the period of limitation of filing the application numbered OA 14 of 2009 within 30 days from the date of acquiring such knowledge. Accordingly limitation will not be a bar on the petitioner to agitate his grievances before the Wakf Tribunal. (b) Admittedly both parties claim their rights, i.e., petitioner and the opposite party no.3, to Mutawalliship by relying on the terms and conditions of the Wakfnama. The Wakfnama provides, inter-alia, "in case of necessity" a Mutawalli can transfer his office in terms of the rules/guidelines prescribed in the Wakfnama. Up to the appointment of the fourth Mutawalli, Mohammed Jaffar the Wakfnama is unambiguous. However, after Mohammed Jaffar there are guidelines on the appointment of the next Mutawalli. The Wakfnama provides, inter-alia, "in case of necessity" a Mutawalli can transfer his office in terms of the rules/guidelines prescribed in the Wakfnama. Up to the appointment of the fourth Mutawalli, Mohammed Jaffar the Wakfnama is unambiguous. However, after Mohammed Jaffar there are guidelines on the appointment of the next Mutawalli. (c) Such guidelines as aforesaid prescribe that "the next Mutawalli would be amongst other sons of Jaibunnessa Bibi and Mohammed Jaffar who would be more competent and he must be the resident of the Wakif Viti and have also close relation with them and he must follow the guidelines prescribed therein. Applicant is the son of Jaibunnessa Bibi and the brother of respondent no.2 (Mohammed Jaffar) while the respondent no.3 (Mohammed Salim) is the son of Mohammed Jaffar. As per the Wakf deed both stand on the same footing provided other conditions are fulfilled." 16. The Tribunal thereafter proceeded to conclude as follows:- It is not a case of the applicant that the respondent no.3 (Mohammed Salim) is not the competent person to be appointed as Mutawalli and/or that he is not the resident of the Wakf Viti. There is also nothing before this Tribunal to hold against the competence of respondent no.3 (Mohammed Salim) in holding the office of Mutawalli of the Wakf estate in question. On the other hand from the impugned resolution (dated 11th May, 2009) and the enquiry report (dated 27th July, 2007) it reveals that since after appointment in the year 1995 respondent no.3 is managing the office of the Mutawalli satisfactorily. Applicant (the present petitioner) chose to remain silent so long and he made application before the Board only on 14th February, 2006 under the heading "Removal of Mutawalli appointed violating the terms and conditions of Wakf deed in connection with Syed Sahadat Ali and others Wakf estate." 17. The Tribunal thereafter found no reason to interfere with the resolution of the Board dated 11th May, 2009 as confirmed on 20th May, 2009. The application being OA no. 14 of 2009 was accordingly dismissed. 18. Sri Dey, Learned Counsel on behalf of the petitioner has argued primarily on the point of interpretation of the Wakfnama dated 1st September, 1943. The Tribunal thereafter found no reason to interfere with the resolution of the Board dated 11th May, 2009 as confirmed on 20th May, 2009. The application being OA no. 14 of 2009 was accordingly dismissed. 18. Sri Dey, Learned Counsel on behalf of the petitioner has argued primarily on the point of interpretation of the Wakfnama dated 1st September, 1943. Sri Dey submits that the Learned Tribunal did not consider the true effect and intent of the Wakfnama while deciding the line of succession of Mutawallis of the said Wakf estate after the 4th Mutawalliship of Mohammed Jaffar. He further submits that the issue before the Learned Tribunal and before the Board of Wakfs was not pertaining to the removal under the Wakf Act, 1995 of the opposite party no.3 as Mutawalli. He submits that the issue centered around cancellation of the Mutawalliship of the opposite party no.3 on the ground that it is void ab initio inasmuch as the opposite party no.3 could not have been appointed in violation of the strict guideline provided by the Wakfnama. He submits that both the Board and the Learned Tribunal fell into patent error while considering such question. 19. According to Sri Dey the line of succession after the 4th Mutawalli, Mohammed Jaffar is unambiguous. Relying on the Wakfnama he points out that the said registered deed makes it abundantly clear that after the 4th Mutawalli, Mohammed Jaffar "the person next to him shall become the Mutawalli. After the said persons as mentioned above, the person amongst the other sons of the said elder daughter or the sons of Mohammed Jaffar, person who is considered to be learned, intelligent and capable of maintaining the property and trustworthy and honest and fit shall be appointed as Mutawalli of this property." 20. Sri Dey has emphatically argued that the expression " the person next to him" means that the brothers of Mohammed Jaffar who are also the sons of Jaibunnessa Bibi, the 3rd Mutawalli and are part of the same generation as the 4th Mutawalli, viz. Mohammed Jaffar shall be entitled to qualify as the next Mutawalli after the 4th Mutawalli, Mohammed Jaffar ceases to hold office. 21. Mohammed Jaffar shall be entitled to qualify as the next Mutawalli after the 4th Mutawalli, Mohammed Jaffar ceases to hold office. 21. According to Sri Dey the Wakfnama is unambiguous in prescribing the line of succession of Mutawalliship thereafter by using the expression "after the said persons as mentioned above, the person amongst the other sons of the said elder daughter or the sons of Mohammed Jaffar, the person who is considered to be learned, intelligent and capable of maintaining the property and trustworthy and honest and fit, shall be appointed as Mutawalli in this property." 22. Sri Dey submits that in view of the language used in the Wakfnama, the Mutawalliship after Mohammed Jaffar should first devolve upon the petitioner being brother of Mohammed Jaffar and the son of Jaibunnessa Bibi. The consideration of the opposite party no.3, the son of Mohammed Jaffar as Mutawalli would arise thereafter. In such circumstances he argues that the initial nomination of the opposite party no.3 by Mohammed Jaffar was void ab initio and hence liable to cancellation at all times. He further submits that the intention of the joint Wakif and Wakifa as reflected in the Wakfnama is sacrosanct and must be executed without a flaw. 23. He states that both the Board and the Learned Tribunal fell into a patent error by not appreciating the Wakfnama in its true essence. 24. In support of his contention Sri Dey relies upon the following decisions:- (a) (2010) 14 SCC 588 (Board of Wakf, West Bengal and Anr. v. Anis Fatma Begam and Anr.; Paras 10 & 12); (b) (1986) 4 SCC 512 (Commissioner of Income Tax, Madhya Pradesh v. Maharaj Bahadur Singh and Ors.; Para 7). 25. The decision reported in 2010 14 SCC 588 is an authority on the point that the Wakf Tribunal can decide disputes, questions or other matters relating to a Wakf or a Wakf property. The Hon'ble Apex Court held that once a property is found to be a Wakf property then the Tribunal has unfettered jurisdiction to decide any question or dispute pertaining to such property. The Hon'ble Apex Court further held that the jurisdiction of the Wakf Tribunal can extend to a party aggrieved even if no Order has been passed under the Wakf Act, 1995. 26. The Hon'ble Apex Court further held that the jurisdiction of the Wakf Tribunal can extend to a party aggrieved even if no Order has been passed under the Wakf Act, 1995. 26. The second decision relied upon by Sri Dey reported in (1986) 4 SCC 512 establishes the point that where a document "contains no clear words describing the kind of interest which the donee is to take, the question is one of construction and the Court must collect the intention of the donor from in of the document taken along with the surrounding circumstances. There is no presumption one way or the other." 27. Sri Dey argues that having regard to Wakfnama, nomination of the opposite party no.3 without considering the claim of the petitioner is void ab initio and hence liable to be cancelled. 28. Sri Hassan vehemently supports the Order of the Learned Tribunal impugned in the present petition. He argues that the Wakfnama can be dissected into three parts, viz. (a) The description of the property; (b) The role of succession of Mutawalliship; (c) Utilisation of the Wakf property. 29. Sri Hassan points out that the role of succession as prescribed in the Wakfnama makes the intention of the joint Wakif and Wakifa clear which is to appoint only competent persons as the Mutawalli. He submits that the Wakf property is not heritable but dedicated to the Almighty. In such circumstances, having regard to the definition of Wakf property as contained in the Wakf Act, 1995 the nomination of the opposite party no.3 as the Mutawalli by the outgoing Mutawalli considering him to be the most competent person is proper and legal. According to him, the Wakfnama clearly prescribes the attributes of a Mutawalli who must be "learned, intelligent, capable, trustworthy, honest and fit." 30. According to Sri Hassan the OP no.3 fulfils all such attributes and was therefore considered to be eligible for being appointed as Mutawalli by the outgoing Mutawalli his father, Mohammed Jaffar. Relying upon the enquiry report dated 27th July, 2007, and the resolution of the Board dated 11th May, 2009 he submits that it has been all along found that the opposite party no.3 has been discharging his duties satisfactorily. Relying upon the enquiry report dated 27th July, 2007, and the resolution of the Board dated 11th May, 2009 he submits that it has been all along found that the opposite party no.3 has been discharging his duties satisfactorily. In such circumstances none of the grounds for removal of Mutawalliship as provided under Section 64 of the Wakf Act, 1995 can be pressed into service seeking disqualification of the opposite party no.3 from the present position of Mutawalliship in the said Wakf property. 31. Sri Hassan also argues that there is a long delay by the petitioner in assailing the appointment of the opposite party no.3 as Mutawalli. Admittedly, the opposite party no.3 was appointed as Mutawalli in 1995 and the petitioner filed his challenge to the same in 2006 that is, after a gap of nearly 11 years. Sri Hassan argues that the petitioner having all along known of the appointment of the opposite party no.3 as Mutawalli must be considered to have acquiesced to such appointment. He submits that since the opposite party no.3 has taken steps to maintain the purity of the Wakf property, petitioner for reasons of vested interest has launched a frivolous challenge to remove the opposite party no.3 from the Mutawalliship. 32. Heard the parties. Considered the materials on record. 33. This Court is of the opinion that both the Board and the Learned Tribunal misapplied their minds on the issue of the line of succession prescribed by the Wakfnama. In the opinion of this Court the Wakfnama is clear with regard to the appointment of Mutawalli after Mohammed Jaffar. The use of the expression "the person next to him" in the line of succession immediately following Mohammed Jaffar cannot exclude at the first instance the petitioner. 34. In the further opinion of this Court use of the expression "the person next to him" did not confer any outright discretion on the outgoing 4th Mutawalli to nominate a person of his choice excluding others specified in the Wakfnama to be in the zone of consideration. 35. This Court is also not unmindful of the fact that after Mohammed Jaffar, the Wakfnama provides for succession from individuals "being amongst the other sons of the said elder daughter (Jaibunnessa Bibi) or the sons of Mohammed Jaffar" are entitled to be considered provided they fulfil the rest of the qualities as prescribed in the Wakfnama. 35. This Court is also not unmindful of the fact that after Mohammed Jaffar, the Wakfnama provides for succession from individuals "being amongst the other sons of the said elder daughter (Jaibunnessa Bibi) or the sons of Mohammed Jaffar" are entitled to be considered provided they fulfil the rest of the qualities as prescribed in the Wakfnama. To the mind of this Court the original Bengali script of the Wakfnama does not use a punctuation mark by way of a 'comma' prior to the 'or' separating the two classes of individuals "amongst the other sons of the said elder daughter or the sons of Mohammad Jaffar." Consequently neither such punctuation can be read into the translated English version supplied by the parties. The necessary construction therefore follows that after the fourth Mutawalli both the above two classes of individuals have the right to be equally considered for the Mutawalliship provided any of them fulfils all or most of the specified fitness criteria. 36. This Court draws inspiration from the discussion on the use of the word or by the Hon'ble Apex Court in the case of J. Jayalalitha v. Union of India reported in 1999 (5) SCC pg.138. At para 9 the Hon'ble Apex Court held as follows:- "It was submitted by the learned counsel that Section 3 empowers the Government to appoint as many Special Judges as may be necessary for such area or areas or for such case or group of cases, as may be specified in the notification. He emphasised the use of the word "or" after such area or areas and before such case or group of cases and further submitted that the power conferred upon the Government is in the alternative, that is to say, that the State Government may appoint a Special Judge wither for an area or areas or for a case or group of cases. But it cannot appoint a Special Judge for a case or group of cases within that area. The learned counsel first drew our attention to the meaning of the word "or" contained in New Webster's Dictionary of the English language and the decision of the Allahabad High Court in State of U.P. v. Sat Narain. But it cannot appoint a Special Judge for a case or group of cases within that area. The learned counsel first drew our attention to the meaning of the word "or" contained in New Webster's Dictionary of the English language and the decision of the Allahabad High Court in State of U.P. v. Sat Narain. So far as the decision of the Allahabad High Court is concerned, we are not able to appreciate how it can be of any use to the appellants as it does not throw any light on the meaning of the word "or". The dictionary meaning of the word "or" is "a particle used to connect words, phrases, or classes representing alternatives". The word "or" which is a conjunction, is normally used for the purpose of joining alternatives and also to join rephrasing of the same thing but at times to mean "and" also. Alternatives need not always be mutually exclusive. Moreover, the word "or" does not stand in isolation and, therefore, it will not be proper to ascribe to it the meaning which is not consistent with the context of Section 3. It is a matter of common knowledge that the word "or" is at times used to join terms when either one or the other or both are indicated. Section 3 is an empowering section and depending upon the necessity the Government has to appoint Special Judges for an area or areas or case or group of cases. Even in the same area where a Special Judge has already been appointed, a necessity may arise for appointing one more Special Judge for dealing with a particular case or cases or for some other special reasons. We see no good reason to restrict the power of the Government in this behalf by giving a restricted meaning to the word "or". In our opinion, the word "or" as used in Section 3 would mean that the Government has the power to do either or both the things. Therefore, the first contention raised on behalf of the appellants has to be rejected. 37. The Learned Tribunal fell into patent error by relying heavily on the competence of the opposite party no.3 to continue as Mutawalli. Therefore, the first contention raised on behalf of the appellants has to be rejected. 37. The Learned Tribunal fell into patent error by relying heavily on the competence of the opposite party no.3 to continue as Mutawalli. It is clear to the mind of this Court that the Wakfnama did not contemplate the appointment of the opposite party no.3 first to the exclusion of the petitioner and taking precedence over consideration of the appointment of the petitioner. It is clear that the standing of the opposite party no.3 to be considered as Mutawalli cannot precede the standing of the petitioner to be so considered in terms of the Wakfnama. Such was abundantly overlooked both by the Board and the Learned Tribunal. 38. In such view of the matter this Court is of the opinion that the nomination of the opposite party no.3 without considering the claim of the petitioner was in violation of the terms of the Wakfnama. Needless to reiterate the other criteria of being capable, learned, intelligent, trustworthy, honest and fit shall apply with full force on each of the competing candidates under the stipulation of the Wakfnama. This Court therefore sets aside the Order of the Learned Tribunal dated 30th June, 2010 and the resolution of the Board dated 11th May, 2009 as confirmed on 28th May, 2009 alongwith its communication dated 25th August, 2009. The matter is accordingly remanded back to the Tribunal for consideration afresh in the light of the above observations. Needless to reiterate the other criteria of being capable, learned, intelligent, trustworthy, honest and fit shall apply with full force on each of the competing candidates under the stipulation of the Wakfnama. It is made clear that the Learned Tribunal will be free to decide on the merits of the rival contentions and till such decision is taken the opposite party no.3 shall continue to hold the office of Mutawalli. 39. On the point of limitation this Court is of the opinion that the Order dated 11th February, 2009 passed in WP 25137(W of 2008) made it incumbent upon the Board to consider all aspects of the prayer of the petitioner including the period of limitation. Upon such consideration the Board passed its Order on the merits of the issue which was thereafter challenged before the Learned Tribunal within the period prescribed, as held by the Learned Tribunal. Upon such consideration the Board passed its Order on the merits of the issue which was thereafter challenged before the Learned Tribunal within the period prescribed, as held by the Learned Tribunal. In such circumstances, although there is a gap of nearly 11 years pertaining to the challenge of the petitioner to the Mutawalliship of the opposite party no.3 such delay cannot now stand in the way of considering the case of the petitioner on merits once the Board has passed its decision on merits pursuant to the direction of the Hon'ble Court dated 11th February, 2009. 40. CO 1782 of 2012 is accordingly disposed of. There will be, however, no order as to costs. Urgent certified photocopies of this judgment, if applied for, be given to the learned advocates for the parties upon compliance of all formalities. Petition disposed of.