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2017 DIGILAW 815 (HP)

Mumtaz Ahmed v. State of H. P.

2017-07-19

SANDEEP SHARMA, SANJAY KAROL

body2017
JUDGMENT : Sandeep Sharma, J. By way of instant Review Petition filed under Order 47, Rule-1 of the Code of Civil Procedure, a prayer has been made to review the judgment dated 16.11.2016, passed by this Court in Letters Patent Appeal No.210 of 2015 (for short ‘LPA No.210 of 2015’), whereby Letters Patent Appeal having been preferred by review petitioner against judgment passed by learned Single Judge in CWP No.3635 of 2015 came to be dismissed. 2. In nutshell, case of the petitioner, as emerged from the pleadings, is that the petitioner, who was Imam of the Boileaugant Mosque, submitted his resignation on 22.7.2003 reserving his right to continue as voluntarily Imam and to keep residential accommodation allotted to him. It is also borne out from record that aforesaid resignation having been tendered by the petitioner was accepted on 31.07.2003 and simultaneously it was resolved by the respondent-Board vide Resolution dated 5.2.2007 to discontinue the voluntary Immamt of the writ petitioner as well as all facilities. 3. Since petitioner failed to comply with the aforesaid Resolution dated 5.2.2007, respondent-Board instituted a Civil Suit before the Wakf Tribunal, Shimla for possession of accommodation provided to him as well as for occupation and recovery of use and occupation charges levied against the petitioner, which was decreed. Petitioner, being aggrieved with aforesaid decree, having been passed by Civil Court, preferred Regular First Appeal bearing RFA No.484 of 2011 before this Court, which was dismissed on 10.09.2014. Subsequently, in the year 2015, petitioner by way of writ petition bearing CWP No. 3635 of 2015, approached this Court praying therein for quashment of Resolution dated 5.2.2007 passed by the respondents, wherein decision was taken to discontinue voluntarily Immamt of the petitioner as well as all facilities accorded to him. 4. By way of aforesaid Writ Petition, petitioner also prayed that he be allowed to continue with honorary Immamt with all facilities provided to him. However, fact remains that aforesaid writ petition, having been filed by the petitioner, was dismissed. 4. By way of aforesaid Writ Petition, petitioner also prayed that he be allowed to continue with honorary Immamt with all facilities provided to him. However, fact remains that aforesaid writ petition, having been filed by the petitioner, was dismissed. Perusal of judgment passed by learned Single Judge in writ petition referred above though suggests that findings returned by this Court in RFA No.484 of 2011, wherein termination of services of petitioner as honorary Immamt was also an issue, weighed heavily with the learned Single Judge, while rejecting writ petition filed by the petitioner, but, if judgment passed by learned Single Judge is read in its entirety, the petition, having been filed by the petitioner, was held to be barred by principles of res judicata as well as limitation. Learned Single Judge specifically held, in the judgment referred above, that petitioner has slept over the matter for quite a considerable long time and has knocked the door of the Court after a gap of 8 years and above all, there is clear unexplained delay and laches in filing the writ petition. Learned Single Judge held that the petitioner cannot be permitted to have a belated resort to the extraordinary remedy that too, once the issue has already been finally adjudicated upon by a co-ordinate Bench of this Court in RFA No.484 of 2011 decided on 10.9.2014. 5. Petitioner, being aggrieved and dis-satisfied with the aforesaid judgment passed by learned Single Judge, filed LPA No.210 of 2015, which came to be decided by this Court vide a common judgment dated 16.11.2016. Before adverting to the findings returned by Division Bench of this Court qua the aforesaid LPA, preferred by present petitioner, it may be noticed that question before Division Bench in all connected petitions, including LPA preferred by the petitioner, was “whether Regular First Appeal or Civil Revision or Petition under Article 227 of the Constitution of India would lie against the order passed by Wakf Tribunal”. 6. Needless to say, before establishment of Wakf Tribunal, District Judge was hearing the cases and determining the disputes under the Wakf Act, 1995 (for short ‘the Act’). 6. Needless to say, before establishment of Wakf Tribunal, District Judge was hearing the cases and determining the disputes under the Wakf Act, 1995 (for short ‘the Act’). After amendment in the Act, under Section 83 of the Act, Tribunals are constituted having three members i.e. District Judge as Chairman, one person from the State Civil Services of the rank of Additional District Magistrate and one person having knowledge of Muslim Law and jurisprudence, as members. It is also not in dispute that sub-section (9) of Section 83 of the Act specifically provides that “no appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal.” 7. Taking note of aforesaid provisions of law, Division Bench of this Court, while deciding aforesaid LPA, having been preferred by the petitioner alongwith other connected cases, observed as under:- “30. Sub Section 9 of Section 83 of the Act provides that no appeal shall lie against any decision or order whether interim or otherwise, passed by the Tribunal established under the Act. Still, it is astonishing that Writ Petitions and Regular First Appeals are being preferred by the aggrieved parties before this Court challenging the decisions rendered by the Tribunals constituted under the Act. It is also not understandable how such appeals or writ petitions are being entertained once there is specific bar in terms of Section 83(9) of the Act that no appeal will lie against the order of the Tribunal. We were told that it is a practice in this Court and the decisions have been made and such decisions have attained finality. 31. We may make it clear that we are not giving findings viz-a-viz those judgments which have attained finality, it is also made clear that this judgment is prospective in nature and will not, in any way, have retrospective effect.” 8. Division Bench of this Court dismissed the Letters Patent Appeal filed by the petitioner, taking note of the fact that the issue raised in the petition stands already determined by the Wakf Tribunal and upheld by this Court in RFA No.484 of 2011. Division Bench of this Court dismissed the Letters Patent Appeal filed by the petitioner, taking note of the fact that the issue raised in the petition stands already determined by the Wakf Tribunal and upheld by this Court in RFA No.484 of 2011. Findings returned in para-40 of the judgment passed in LPA clearly suggests that Division Bench was conscious and alive to the fact that RFA against order of Tribunal was not maintainable, however, since judgment, rendered by this Court in RFA, had attained finality, therefore, Court deemed it fit not to go into the said question. At this stage, it may be noticed that in para-31 of the judgment passed in LPA it was made clear that no findings are being returned viz-à-viz judgments which have attained finality and judgment passed in LPA is prospective in nature and shall not in any way have retrospective effect. 9. Mr. Imran Khan, learned counsel representing the petitioner, while referring to the specific findings returned by Division Bench in paras 30 to 33, contended that once it was held by Division Bench in the aforesaid judgment passed in LPA that no writ and RFA would lie against order passed by Wakf Tribunal constituted under the Act, findings, if any, rendered in RFA No.484 of 2011, which weighed heavily with the learned Single Judge while deciding the writ petition No.3635 of 2015, had no bearing on the case of the petitioner and it was not required to be looked into by Division Bench of this Court while deciding LPA preferred by present petitioner. Mr. Khan further contended that once it was specifically held in the LPA referred above that order of Wakf Tribunal is only challengeable by way of revisions, finding, if any, returned in first appeal having been preferred by the petitioner, is of no consequence and same is nullity in the eye of law and as such judgment passed by Division Bench in LPA, which is based upon the findings returned by this Court in RFA, needs to be reviewed. While referring to the judgment passed by Division Bench of this Court in LPA, Mr. While referring to the judgment passed by Division Bench of this Court in LPA, Mr. Khan further contended that once it was held that no appeal against the order of Wakf Tribunal will lie and aggrieved parties may seek appropriate remedy, if any, available to them under Wakf Act, there was no occasion for Division Bench to hear LPA and to dismiss the same in the light of decision rendered by this Court in RFA No.484 of 2011. 10. We have heard learned counsel for the parties and gone through the record of the case. 11. In our considered view, there is no mistake or error apparent on the face of the record, which could persuade this Court to review its judgment. Bare perusal of judgment, sought to be reviewed, clearly suggests that this Court, while holding that no writ petition as well as RFA would lie against order, if any, passed by Wakf Tribunal constituted under the Act and order, if any, of Tribunal can be laid challenge by way of revision, specifically observed that findings in the instant judgment are not viz-a-viz those judgments, which have attained finality and the judgment is prospective in nature and will not, in any way, have retrospective effect. True, it is that vide aforesaid judgment, the Division Bench of this Court taking note of sub-section (9) of Section 83 of the Act held that no appeal would lie against any decision or order, whether interim or otherwise, given or made by the Wakf Tribunal, but, as has been observed in para-31 of the judgment, findings returned in the instant appeal shall not apply to judgments which have already attained finality. 12. In the case at hand, it is not in dispute that RFA No.484 of 2011 filed by the present petitioner came to be decided on 10.9.2014 and similarly CWP No.3635/2015 was decided on 27.10.2015. Proceedings in both the aforesaid cases, as mentioned above, ultimately came to be culminated into decision much before passing of judgment dated 16.11.2016 in LPA No.210 of 2015, wherein it was held that no writ petition as well as appeal would lie against the order of the Tribunal. Proceedings in both the aforesaid cases, as mentioned above, ultimately came to be culminated into decision much before passing of judgment dated 16.11.2016 in LPA No.210 of 2015, wherein it was held that no writ petition as well as appeal would lie against the order of the Tribunal. Judgment, if any, passed in writ petition as well as in RFA, prior to passing of judgment dated 16.11.2016 in LPA No.210 of 2015, stands protected in terms of findings returned by Division Bench in para-31 of its judgment dated 16.11.2016, as has been taken note above. Otherwise also, it may be taken note of that, no order of Wakf Tribunal was under challenge in CWP No.3635 of 2015. 13. Hence, this Court sees no material irregularity manifest in the order, undermining its correctness or resulting into miscarriage of justice. Needless to say that the review is not an appeal in disguise, entitling a party to be heard, simply because the party wants decision to be otherwise. 14. Consequently, in view of above, as well as principles laid down in the judgment rendered by Hon’ble Apex Court in Kamlesh Verma vs. Mayawati & Ors, (2013)8 SCC 320 and Akhilesh Yadav Etc. vs. Vishwanath Chaturvedi, (2013)2 SCC 1 , present petition is dismissed. Pending applications, if any, are also disposed of.