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2017 DIGILAW 2231 (RAJ)

Deva Ram v. Fakir Mohd. Qureshi

2017-10-24

DINESH MEHTA

body2017
ORDER : Dinesh Mehta, J. 1. The present writ petition has been preferred against the order dated 08.08.2016 passed by the Rajasthan Waqf Tribunal, Jaipur in Civil Suit No. 13/2008. 2. On 04.05.2017, this Court had questioned the maintainability of the writ petition, as the impugned order had been passed by the Waqf Tribunal. 3. The petitioners, realizing the non-maintainability of the writ petition, have preferred an application (IA No. 4256/2017) to treat the writ petition as a Miscellaneous Application under Section 83 of the Waqf Act, 1995. 4. Learned counsel for the respondents Mr. Usman Ghani accepting the proposition that a writ petition against the order passed by Waqf Tribunal is not maintainable, fairly conceded that he has no objection; if the present writ petition is ordered to be registered as a Civil Miscellaneous Application. He was however uncertain about the remedy to be availed in wake of following two orders of this Court, expressing divergent opinion about the course to be adopted or remedies to be availed for laying challenge to an order passed by the Waqf Tribunal:- (i) Judgment dated 31.05.2007 passed in S.B. Civil Misc. Appeal No. 1486/2007, Union of India and Others vs. The Waqf Committee and Others, in which a Co-ordinate Bench of this Court has held that against an order of Waqf Tribunal, Miscellaneous Appeal is not maintainable and a Revision is required to be filed, while directing the Registry to treat the said Appeal as a Revision Petition. The operative portion of the said order is reproduced hereunder:- "The appellants have challenged the impugned order on several grounds in appeal. Without expressing any opinion on the merit of the case, it is expedient in the interest of justice that the application may be allowed and appeal be ordered to be treated as civil revision. In the result, the application filed by the appellants is accepted and the present appeal is directed to be treated as Civil Revision as provided under proviso to Sub-section (9) of Section 83 of the Act. In the result, the application filed by the appellants is accepted and the present appeal is directed to be treated as Civil Revision as provided under proviso to Sub-section (9) of Section 83 of the Act. Office is directed to treat the instant appeal as revision and registration of the appeal be struck off from the array of appeal." (ii) Another order has been passed by another Co-ordinate Bench of this Court on 14.02.2017 in S.B. Civil Miscellaneous Application No. 79/2016, Gram Panchayat Mandal Another vs. Waqf Committee, Mandal holding that the Civil Miscellaneous Application is not maintainable, against the order of the Waqf Tribunal and a writ petition under Article 227 of the Constitution of India is required to be filed. While passing the said order, this Court had directed the Registry to register the case as a writ petition. It would be apt to reproduce the relevant part of the said order. "On examining the provisions of Section 83(9) of the Act this Court finds that the power is akin to the power available to the High Court under the Article 227 of the Constitution of India. Thus, if any person is aggrieved of any decision passed by the Waqf Board, the only remedy available to him is to challenge the same under Article 227 of the Constitution of India. In view of the above, the present S.B. Civil Misc. Application is not maintainable. The counsel for the petitioner submits that in view of the observation of this Court, the S.B. Civil Misc. Application filed on behalf of the Gram Panchayat against the order/judgment passed by the Waqf Board Tribunal be treated as a writ petition under Article 227 of the Constitution of India. Prayer is allowed. The applicant may now file an amended cause title in the appropriate format of the writ petition. Registry is directed to register this case as a writ petition and list it as per roster." 5. Keeping in view the conflicting views/opinions expressed by Co-ordinate Benches, this Court deems it expedient to refer the following question regarding maintainability of the writ petition, eliciting answer by a Larger Bench:- "What is the remedy available to an aggrieved party against an order passed by the Waqf Tribunal under the provisions of Waqf Act, 1995?" 6. Keeping in view the conflicting views/opinions expressed by Co-ordinate Benches, this Court deems it expedient to refer the following question regarding maintainability of the writ petition, eliciting answer by a Larger Bench:- "What is the remedy available to an aggrieved party against an order passed by the Waqf Tribunal under the provisions of Waqf Act, 1995?" 6. Registry is directed to place this matter before Hon'ble the Chief Justice for constitution of a Larger Bench to answer the above reference. 7. The interim order dated 18.01.2017 passed in the present case shall continue till further orders. 8. Needless to observe that the respondents shall be free to apply for vacation of interim order, after adjudication of the reference by the Larger Bench.