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2017 DIGILAW 470 (ALL)

Kauser Saleem v. Nadeem @ Raju

2017-02-08

ASHWANI KUMAR MISHRA

body2017
JUDGMENT Ashwani Kumar Mishra,J. 1. This revision has been filed under Section 83(9) of 'The Waqf Act, 1995 challenging an order passed by the Tribunal upon the interim injunction application filed by the respondent in Waqf Case No. 380 of 2016. The proceedings have been initiated by the respondent with the allegation that the revisionist has not been validly appointed as Mutwalli by the Waqf Board and has no jurisdiction or authority to act as such. Further allegation was made that the property, belonging to the Waqf, is being squandered. The proceedings were contested by the revisionist, stating that he has been appointed as Mutwalli in the year 2012 for a period of 3 years, which was not challenged. It is contended that the Chairman of the Waqf Board has been delegated the power/authority to appoint a Mutwalli, by the Board itself, exercising powers under Section 37 of the Act and, therefore, his appointment is valid. Allegation of transfer of property belonging to Waqf has been denied. 2. In view of the rival contentions of the parties, noticed above, the Tribunal has proceeded to hold that appointment of revisionist as Mutwalli was illegal and, therefore, he has been restrained from holding such post, and during the pendency of the Suit, Sub Divisional Magistrate has been appointed as receiver. Thus aggrieved, the defendant/ revisionist has filed the present revision. 3. Sri M.A. Qadeer, learned Senior Advocate, assisted by Sri Shamim Ahmad, for the revisionist contends that appointment of revisionist is valid as there existed valid delegation of power by the Board in favour of the Chairman, which aspect has not been taken into consideration. It has further been contended that there was no objection with regard to continuance of the revisionist for a period of nearly 4 years and, therefore, it was permissible for the Tribunal to have restrained the revisionist from working as an interim measure, which amounted to grant of final relief at interim stage itself. Learned Senior counsel further contends that a receiver under Section 86 of the Act could be appointed, only upon an application filed by or on behalf of the Board or by a Mutwalli and none else. Contention is that upon application filed by the respondent, who has neither been authorised by the Board nor is the Mutwalli, a receiver could not be appointed. 4. Contention is that upon application filed by the respondent, who has neither been authorised by the Board nor is the Mutwalli, a receiver could not be appointed. 4. Sri W.H. Khan, learned Senior Advocate, assisted by Sri T.A. Khan, learned counsel for the respondent, on the other hand, submits that the power to appoint a Mutwalli flows from Section 32(2) (g) of the Act and in view of the express provision incorporated under Section 27 of the Act, exercise of jurisdiction there under, is not open to be delegated in favour of any person, by the Board and, therefore, the claim that the Chairman was exercising delegated jurisdiction on behalf of the Board, is inconsistent with the provisions of law. Learned counsel submits that in such circumstances, the appointment made by the Tribunal cannot be said to be bad in law. 5. I have heard learned counsel for the parties and have perused the materials available on record. 6. Pleadings have been exchanged between the parties and the matter is taken up for hearing. 7. From the materials brought on record, it is admitted to the revisionist that he has been appointed as Mutwalli under the orders issued by the Chairman of the Waqf Board, in his individual capacity. The claim of the revisionist is that such powers could be exercised, pursuant to delegation of powers granted by the Board in favour of the Chairman. The legality and propriety of revisionist's appointment, vide order dated 10.12.2015, thus needs to be examined first. 8. Section 32 of the Waqf Act, 1995 provides for powers and functions of the Board. Clause(g) of sub section(2) of Section 32 is relevant for the present purposes and is reproduced: - "(g) to appoint and remove mutawallis in accordance with the provisions of this Act;" The power to appoint and remove the Mutwalli, therefore, vests in the Board. 9. Section 27 of the Act provides for delegation of power by the Board which reads as Under: - "27. 9. Section 27 of the Act provides for delegation of power by the Board which reads as Under: - "27. Delegation of powers by the Board.--The Board may, by a general or special order in writing, delegate to the Chairperson, any other member, the secretary or any other officer or servant of the Board or any area committee, subject to such conditions and limitations as may be specified in the said order, such of its powers and duties under this Act, as it may deem necessary, except the powers and functions of the Board mentioned under clauses (c), (d), (g) and (j) of sub-section (2) of Section 32 and Section 110 ." 10. From the aforesaid provisions, it is clear that the Legislature while permitting delegation of power by the Board, has clearly carved out an exception inasmuch as appointment and removal of Mutwalli can be made by the Board and such power cannot be delegated. The functions to be performed by the Board under Section 32(2)(g) of the Act falls in excepted category and is not open for delegation. Once the law itself prohibits delegation of power relating to appointment and removal of Mutwalli, such power will have to be exercised only by the Board. The Board has also been defined under the Act and its composition is dealt with under Section 14 thereof. The Board consists of a Chairman and various Members, specified under Section 14 of the Act. The argument advanced by Sri Qadeer that the Board, since its very constitution, has never exercised its power collectively, as is vested in it, is of no consequence and is otherwise disputed by Sri Puneet Gupta, learned counsel appearing for the Board. It is settled that once the law requires a thing to be done in a particular manner, it has to be done in that manner alone. This Court finds that the finding of Tribunal that appointment of revisionist is not in accordance with law, is not shown to be erroneous or perverse, and no error of jurisdiction could be attributed to the order of the Tribunal restraining the revisionist from working as Mutwalli. This part of the direction is thus upheld. 11. This Court finds that the finding of Tribunal that appointment of revisionist is not in accordance with law, is not shown to be erroneous or perverse, and no error of jurisdiction could be attributed to the order of the Tribunal restraining the revisionist from working as Mutwalli. This part of the direction is thus upheld. 11. Sri Qadeer next submits that Legislature has entrusted the task of managing Waqf property upon the Board and there is no provision under the Act where a Sub Divisional Magistrate could be appointed as a receiver. It is also contended that under Section 86 of the Act, power to appoint receiver could not otherwise be exercised upon an application filed by the respondent. 12. Sri W.H. Khan, learned counsel appearing for the respondent, on the other hand, submits that since the provisions of the Code of Civil Procedure are attracted, as such, the power conferred by virtue of Order 40 CPC would be available and, therefore, the appointment of receiver cannot be objected. 13. Waqf Act 1995 is a special law enacted with the object of providing efficient administration of Waqf or the matters connected therewith and incidental thereto. Section 86 of the Act begins with a non abstante clause, and reads as under: - "86. 13. Waqf Act 1995 is a special law enacted with the object of providing efficient administration of Waqf or the matters connected therewith and incidental thereto. Section 86 of the Act begins with a non abstante clause, and reads as under: - "86. Appointment of a receiver in certain cases.--Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or in any other law for the time being in force, where any suit or other legal proceeding is instituted or commenced-- (a) by or on behalf of a Board-- (i) to set aside the sale of any immovable property, which is wakf property, in execution of a decree or order of a civil court; (ii) to set aside the transfer of any immovable property, which is wakf property, made by the mutawalli thereof, whether for valuable consideration or not, without or otherwise than in accordance with, the sanction of the Board; (iii) to recover possession of the property referred to in clause (a) or clause (b) or to restore possession of such property to the mutawalli of the concerned wakf; or (b) by a mutawalli to recover possession of immovable property, which is wakf property, which has been transferred by a previous mutawalli, whether for valuable consideration or not, without otherwise than in accordance with the sanction of the Board, and which is in the possession of the defendant, the court may, on the application of the plaintiff, appoint a receiver of such property and direct such receiver to pay from time to time to the plaintiff, out of the income of the property, such amount as the court may consider to be necessary for further prosecution of the suit." 14. Section 86 of the Act clearly contemplates that a receiver could be appointed in proceedings which are instituted or commenced by or on behalf of the Board or by a Mutwalli to recover possession of property which has been transferred by previous Mutwalli. Although the provisions of the Civil Procedure Code are attracted to the proceedings before the Tribunal, but once the Special Act i.e. Waqf Act, 1995 categorically makes the provisions of the Code subservient to the provisions of the Act of 1995, the field occupied by the Special Law shall prevail over the general provisions of the Civil Procedure Code. Although the provisions of the Civil Procedure Code are attracted to the proceedings before the Tribunal, but once the Special Act i.e. Waqf Act, 1995 categorically makes the provisions of the Code subservient to the provisions of the Act of 1995, the field occupied by the Special Law shall prevail over the general provisions of the Civil Procedure Code. This Court, therefore, finds substance in the contention advanced by the learned counsel for the revisionist that even if the revisionist had to be restrained from functioning as Mutwalli, such tasks could not have been assigned to the receiver, as has been done here. It is not in dispute that the proceedings by the respondent have not been initiated by or on behalf of the Board, nor the respondent is Mutwalli and, therefore, necessary ingredients to attract Section 86 of the Act are not found to be in existence, and the Directions issued by the Tribunal to appoint a receiver, is found to be in excess of jurisdiction. 15. Sri M.A. Qadeer, learned counsel for the revisionist has also submitted that the Tribunal, as a matter of practice, is functioning with the presiding officer, who is the judicial member, alone sitting in Court, and two other members are only making signatures upon the orders, later. This contention is disputed by Sri Puneet Gupta, who appears for the respondent Board. In the opinion of the Court, once the Tribunal has been constituted as consisting of 3 members, it goes without saying that all proceedings of the Tribunal shall have to be conducted only by the 3 members, sitting together, and not by the presiding officer alone. 16. In view of the discussions aforesaid, order passed by the Tribunal, is upheld to the extent it restrains the revisionist from functioning as Mutwalli, but is set aside to the extent it appoints the Sub Divisional Magistrate as receiver over the Waqf property. In the facts and circumstances of the case, particularly in view of the fact that the power to appoint Mutwalli otherwise vests with the Board, it would be appropriate to direct the respondent no. 2 i.e. U.P. Sunni Central Board of Waqfs, Lucknow to forthwith make appropriate arrangement for management of the Waqf property in question, by passing an appropriate order in 2 weeks, in accordance with law. A regular Mutwalli shall also be appointed by the Board. 2 i.e. U.P. Sunni Central Board of Waqfs, Lucknow to forthwith make appropriate arrangement for management of the Waqf property in question, by passing an appropriate order in 2 weeks, in accordance with law. A regular Mutwalli shall also be appointed by the Board. The required exercise in that regard shall be undertaken within a period of 2 months from the date of presentation of certified copy of this order under Section 32(2)(g) of the Act. 17. With the aforesaid observation, revision stands disposed of.