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2016 DIGILAW 80 (UTT)

Vikram Singh @ Baldev Singh v. District Minority Welfare/Assistant WAQF Survey Commissioner

2016-02-26

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. By means of writ petitions, the petitioners sought following relief:- “Issue a writ, order or direction in the nature of certiorari calling for the record and set aside the impugned recovery citation dated 02.03.2015, passed by the respondent no.4.” 2. All the petitions were decided on 18.11.2015/ 03.12.2015. 3. Aggrieved against the aforesaid judgments rendered by the Court in writ petition no.2827 of 2015, “Vikram@ Baldev Singh vs. District Minority Welfare/Assistant WAQF Survey Commissioner & another,” special appeal no.01 of 2016 was preferred. While deciding the aforesaid special appeal, the Hon’ble Division Bench of this Court, observed on 06.01.2016, thus: “We notice for the judgment that the learned Single Judge has proceeded on the basis that it is admitted that no notices were issued. Learned counsel for the appellant would submit that actually, the writ petition was disposed of on the day when the matter was taken up without issuing notice and he could not bring this fact to the notice of the learned Single Judge. We would think that it will be more appropriate, if the appellant is permitted to move a review/recall application before the learned Single Judge. Accordingly, while we permit the appellant to withdraw the appeal with liberty to file review/recall application, as aforesaid, before the learned Single Judge, we also leave it open to the appellant to challenge the impugned judgment also.” 4. Accordingly, the respondent/Board has filed the aforesaid review applications. 5. There is delay of 45/47 days in filing the review applications, which has not been seriously objected by learned counsel for the petitioner and therefore, aforementioned delay in filing the review applications is, condoned. 6. All the aforesaid delay condonation applications stand disposed of. 7. Thus, this Court proceeds to hear the aforesaid review applications on merit. 8. Learned counsel for the review applicant has brought the provision of Section 83 of Wakf Act, 1995 to the notice of this Court, which is as follows:- “[(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals]. [2] Any, mutawalli, person interested in a [waqf] or any other person aggrieved by any order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the [waqf]. 9. It is, therefore, the submission of learned counsel for review applicant that the petitioners ought to have approached Wakf Tribunal for redressal of their grievances. 10. In the case of “Board of Wakf, West Bengal & another vs. Anis Fatma Begum & another (2010),” the following was observed by the Hon’ble Apex Court:- i. The dispute in the present case relates to a wakf. In our opinion, all matters pertaining to wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the civil court or by the High Court straightaway under Art. 226 of the Constitution of India. It may be mentioned that the Wakf Act, 1995 is a recent parliamentary statute which has constituted a Special Tribunal for deciding disputes relating to wakfs. The obvious purpose of constituting such a Tribunal was that a lot of cases relating to wakfs were being filed in the courts in India and they were occupying a lot of time of all the courts in the country which resulted in increase in pendency of cases in the courts. Hence, a Special Tribunal has been constituted for deciding such matters. ii. Section 83(1) of the Wakf Act, 1995 states: “83. Constitution of tribunals, etc.- (1) The State Government shall, by notification in the Official Gazette, constitute as many tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.” iii. Section 84 of the Act states: “84. Section 84 of the Act states: “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.” iv. Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a wakf or wakf property. The words “any dispute, question or other matters relating to a wakf or wakf property” are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a wakf or wakf property can be decided by the Wakf Tribunal. The word “wakf” has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal. v. Under Section 83(5) of the Wakf Act, 1995 the Tribunal has all powers of the civil court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules 1, 2 and 2-A of the Code of Civil Procedure, 1908 to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a wakf or wakf property. vi. We may further clarify that the party can approach the Wakf Tribunal even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Sections 83(1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt Section 83(2) referes to the orders passed under the Act, but, in our opinion, Section 83(1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. No doubt Section 83(2) referes to the orders passed under the Act, but, in our opinion, Section 83(1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a wakf or wakf property, as the plain language of Sections 83(1) and 84 indicates. vii. We may clarify that under the proviso to Section 83(9) of the Wakf Act, 1995 a party aggrieved by the decision of the Tribunal can approach the High Court which can call for the records for satisfying itself as to the correctness, legality or propriety of the decision of the Tribunal. This provision makes it clear that the intention of Parliament is that the party who wishes to raise any dispute or matter relating to a wakf or wakf property should first approach the Tribunal before approaching the High Court. 11. Learned counsel for the petitioners admits the above propositions of law and submits that the petitioners are amenable to the jurisdiction of Wakf Tribunal but the impugned recovery citation should remain in suspension till the matter is finally decided by the Wakf Tribunal. The innocuous prayer of learned counsel for the petitioners is worth accepting. 12. All the aforementioned review applications are accordingly allowed. 13. The orders sought to be reviewed are modified to the extent that the petitioners shall get their dispute adjudicated by the Wakf Tribunal concerned and in the meanwhile, Show Cause Notices given to the petitioners under Section 33 of the Wakf Act, 1995 shall be kept in abeyance. 14. It is hoped and expected that the Wakf Tribunal shall make an endeavor to decide the dispute between the parties at an earliest without granting unnecessary adjournments to either side.