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2016 DIGILAW 289 (GUJ)

Alihusain R. Momin v. Chairman - Gujarat State Waqf Board

2016-02-08

JAYANT PATEL, VIPUL M.PANCHOLI

body2016
ORDER : Jayant Patel, J. The present appeal is directed against the order dated 21.12.2015 passed by the learned Single Judge of this Court in Special Civil Application No. 11691 of 2015, whereby the learned Single Judge has observed that the revision would be maintainable before the High Court under Sub-Section 9 of Section 83 of the Waqf Act, 1995 (hereinafter referred to as ‘the Act’). 2. We have heard Mr. Gandhi, learned counsel appearing with Mr. Kapadia for the appellant. The contention raised on behalf of the appellant is that though by proviso to Section 83(9) of the Act, the revisional powers are vested with the High Court but by virtue of Section 115 of the Civil Procedure Code and more particularly the amendment to Civil Procedure Code, revision would not lie against the interim order and, therefore, the petition under Article 227 of the Constitution against the order of the WAQF Tribunal could be maintained. The learned Single Judge has gone by his earlier view taken in case of Zubedaben Mohammedmiya v. Gujarat State WAQF Board in Special civil Application 18852 of 2014 decided on 16.12.2015 and the learned Single Judge made a mere reference of other two decisions of two High Courts-one of the Rajasthan High Court in the case of Ruda Ram v. Ibrahim in Civil Revision Application No. 98 of 2007 and another decision of Karnataka High Court dated 17.3.2005 in Civil Revision Petition No. 3525 of 2003. It was submitted that the learned Single Judge did not record the reasons for not accepting the view of above referred two decisions of other two High Courts and therefore the order of the learned Single Judge can be said to be erroneous and hence this Court may consider in the present appeal. It was submitted that the learned Single Judge did not record the reasons for not accepting the view of above referred two decisions of other two High Courts and therefore the order of the learned Single Judge can be said to be erroneous and hence this Court may consider in the present appeal. Section 83(9) of the Act reads as under: “(9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal.” Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit.” The aforesaid shows that as per the Act, though appeal does not lie against any decision or order, whether interim or otherwise made by the Tribunal, but by proviso, it has been provided that the High Court can call for the record and examine any dispute or question or other matter which has been determined by the Tribunal for satisfying itself as to the correctness, legality or propriety of such determination. The language used by the aforesaid provision and more particularly the proviso to Section 83(9) is at par with any other revisional power of the High Court. The attempt made to contend that by virtue of amendment made in Section 115 of Civil Procedure Code, the revisional jurisdiction of the High Court is barred cannot be countenanced for the simple reason that the applicability of Section 115 of Civil Procedure Code of revisional jurisdiction would arise if it is a matter pertaining to the decision by any Court subordinate to the High Court but such is not the fact situation because WAQF Tribunal is not the Court subordinate to the High Court. Therefore, the amendment of Civil Procedure Code under Section 115 can hardly be read as controlling or restricting the jurisdiction under the Act of 1995. In any case, there is no amendment under the Act and statute stands as available including Section 83(9) of the Act. 3. Therefore, the amendment of Civil Procedure Code under Section 115 can hardly be read as controlling or restricting the jurisdiction under the Act of 1995. In any case, there is no amendment under the Act and statute stands as available including Section 83(9) of the Act. 3. If the decision of the learned Single Judge in the case of Zubedaben Mohammedmiya is considered in light of the aforesaid discussion, we do not find that the learned Single Judge has committed any error as sought to be canvassed. 4. Consenting to the other decisions of the other High Courts namely Rajasthan and Karnataka High Courts, in the decision of the Rajasthan High Court, there is no reference to the question as to whether the Tribunal can be said to be a Court subordinate to the High Court for the purpose of applying the bar of amendment in Civil Procedure Code. In the decision of Karnataka High Court, it is true that there is a reference but the relevant aspect is that in the said decision also, the larger Bench decision reported at ILR 2003 KAR 4155 taking the view of non-applicability of Section 115 to the proceedings of the Tribunal is pressed in service. But there after, the revision is dismissed. [Such shows that the Karnataka High Court considered the matter before it as if the revision preferred under Section 115 of Civil Procedure Code and not a separate revision as conceived and provided by Section 83(9) of the Act. 5. Mr. Gandhi, learned counsel appearing for the appellant did contend that the learned Single Judge has not permitted the amendment challenging the vires of the concerned statutory provision of the Act and therefore the order could be said to be erroneous which may call for interference in the present appeal. 6. We are not impressed by the submission for the simple reason that the learned Single Judge has expressly permitted the petitioner to file a separate petition and, therefore, no order can be said to have been passed which is prejudicial to the interest of the petitioner in pursuing the matter. Hence, the said contention cannot be considered. 7. In view of the above, we do not find that any case is made out for interference to the decision taken by the learned Single Judge. Resultantly, the appeal is meritless and therefore dismissed. 8. Hence, the said contention cannot be considered. 7. In view of the above, we do not find that any case is made out for interference to the decision taken by the learned Single Judge. Resultantly, the appeal is meritless and therefore dismissed. 8. In view of the order passed in the main Letters Patent Appeal, Civil Application would not survive and shall stand disposed off.