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2018 DIGILAW 1049 (PAT)

Mahrukh Khan v. State of Bihar

2018-07-12

ASHWANI KUMAR SINGH

body2018
JUDGMENT : ASHWANI KUMAR SINGH, J. 1. Heard Mr. Mahesh Narayan Parbat, learned senior advocate for the petitioners and Mr. Helal Ahmad, learned advocate for respondent Bihar State Sunni Waqf Board. 2. In the instant writ petition, the petitioners have challenged the order dated 27.03.2018 as contained in Annexure-14 issued by the Chief Executive Officer of the Bihar State Sunni Waqf Board, Patna (for short 'the Board') by which the application filed by the petitioners in terms of direction of this Court given in CWJC No. 5368 of 2014 has been rejected with further direction to the petitioners to open locks of two rooms said to be the waqf property. The petitioners have further prayed for quashing the office order dated 20.12.2013 as contained in Annexure-10 issued by the Chief Executive Officer of the Board by which they have been asked to open locks of two rooms. A further prayer has been made by the petitioners for quashing Resolution No. 2 dated 04.06.2013 by which a decision has been taken to appoint respondent no. 9 Md. Tarique Anis Khan as mutawalli of Raja Yakub Khan Waqf Estate No. 726. 3. The brief facts giving rise to this writ petition are that one Raja Yakub Khan was landlord of then Parsauni Estate covered under Tauzi No. 5077 and other Tauzies. The said Raja Yakub Khan had three wives, namely, Bibi Kulsum Nesa, who gave birth to a son, namely, Babu Salahuddin Haider Khan, Bibi Rahman Bandi, who gave birth to a son, namely, Babu Nasariddin Haider Khan and Bibi Safarun Nesa, who was issueless. On 27.10.1993, said Raja Yakub Khan created a waqf-alal-aulad of portion of his properties as detailed in the waqf deed, which were situated in different villages of Parsauni Estate in the district of Sitamarhi and he got it registered on 27.01.1934 vide Waqf Deed No. 246. The waqf was registered with Board vide Waqf Estate No. 726. At the time of execution of the deed of waqf, the wakif became the first mutawalli of the waqf estate and after his death, his eldest son Babu Salahuddin Haider was appointed as mutawalli of the waqf estate, who continued as mutawalli till his death. At the time of his death, his son, namely, Najmuddin Haider Khan was in the womb of his mother. After six months of death, his birth took place. At the time of his death, his son, namely, Najmuddin Haider Khan was in the womb of his mother. After six months of death, his birth took place. In the said circumstances, second son of wakif, late Raja Yakub Khan started looking after the affairs of the waqf estate as caretaker and in his absence Anisuddin Haider Khan used to look after the affairs of the waqf estate as caretaker till Najmuddin Haider Khan attained the age of majority. In the year 1960, a case was registered by the Board against said Raja Nasruddin Haider Khan for non-deposit of return of income and expenditure of the waqf properties and then, a return was filed by him along with his application with request to withdraw the case, which was accepted by the then Chairman of the Board on 20.02.1960 with directions to deposit due amounts, which was deposited on 01.03.1960. In the year 1960 itself, revisional survey was conducted in the area and names of heirs of late Raja Yakub Khan were recorded in the records of right, which was finally published in the year 1967. In terms of waqf deed, said Dr. Najmuddin Haider Khan being the eldest son of Babu Salahudqin Haider Khan was only the competent person to be appointed mutawalli of the waqf estate and, thus, after attaining majority, he filed an application before the Chairman of the Board for granting permission to act as full-fledged mutawalli of the waqf estate. Subsequently, vide order dated 24.06. 1982, the Chairman of the Board directed to mutate the name of Dr. Najmuddin Haider Khan as full-fledged mutawalli of Waqf Estate No. 726 and also requested Mr. Nasiruddin Haider Khan to make over charge of all the papers/documents and waqf properties to Dr. Najmuddin Haider Khan. Dr. Najmuddin Haider Khan died on 27th October, 2011 leaving behind his wife Dr. Mrs. Mahrukh Khan (petitioner no. 1) and a daughter, namely, Miss. Dr. Farheen Khan (petitioner no. 2). 4. The contention of the petitioners is that Dr. Najmuddin Haider Khan had executed a will before his death and had nominated his only daughter Miss Farheen Khan as his successor mutawalli of the waqf estate and, thus, after the death of Dr. Najmuddin Haider Khan, the will was enforced and operated and the said Dr. 2). 4. The contention of the petitioners is that Dr. Najmuddin Haider Khan had executed a will before his death and had nominated his only daughter Miss Farheen Khan as his successor mutawalli of the waqf estate and, thus, after the death of Dr. Najmuddin Haider Khan, the will was enforced and operated and the said Dr. Farheen Khan acted as mutawalli of the waqf estate and for approval and confirmation, she filed an application on 29.11.2011 followed by other applications also before the Chairman of the Board and she also annexed genealogical table of the heirs of late Raja Yakub Khan along with said applications. Thereafter, respondent no. 9 Mr. Tarique Anis Khan, eldest son of late Anisuddin Haider Khan, filed an objection petition before the Chairman of the Board stating therein that the petition filed by Dr. Farheen Khan was not maintainable in the eyes of law and was liable to be dismissed. He further contended that he was the only person eligible to be appointed as mutawalli of the waqf estate and, thereafter, the dispute started. After filing the said application and objection, a report was called for by the Chief Executive Officer of the Board on 13.01.2012 from the Circle Officer of the concerned Block on the basis of which the Circle Officer got enquired the properties of waqf from Halka Karamchari, who submitted his report and the same was forwarded by the Circle Officer to the Board vide letter dated 11.10.2012. Later on, the matter was placed in the meeting of the Board on 26.03.2012 and vide Resolution No. 9, a decision was taken by the Board to first get verified properties of the Waqf Estate No. 726 physically and thereafter, to take any action for appointment of any mutawalli in the light of the inquiry report. Subsequently, Tarique Anis Khan was appointed as mutawalli of waqf estate on 15.06.2012 by the Chairman of the Board, which was objected by the petitioners. On the objection raised by the petitioners, the appointment of Tarique Anis Khan as mutawalli was not confirmed by the Board and a committee was constituted for inspection of the waqf properties who after service of the notices to the parties visited the spot and verified the documents etc. and complaints of the parties and after hearing the parties submitted his report on 08.05.2013. and complaints of the parties and after hearing the parties submitted his report on 08.05.2013. After submission of the report dated 08.05.2013, the Board again appointed said Tarique Anis Khan as mutawalli of Waqf Estate No.726 vide its Resolution No. 2 dated 04.06.2013. In compliance of the said resolution, the Chief Executive Officer of the Board issued letter dated 20.06.2013 regarding appointment of Tarique Anis Khan as mutawalli. Thereafter, the petitioners were asked to open the locks of two rooms by the Chief Executive Officer of the Board as Tarique Anis Khan had filed an application with allegation that the petitioners had locked two rooms of the waqf estate, which was being used as guest house. 5. Being aggrieved by the order dated 20.12.2013 issued by the Chief Executive Officer of the Board by which the petitioners were asked to open the locks of their two rooms as also being aggrieved by the Resolution No. 2 dated 04.06.2013 of the Board through which a decision had been taken by the Board for appointment of Md. Tarique Anis Khan as mutawalli and office order dated 20.06.2013 based on said resolution of the Chief Executive Officer through which Tarique Anis Khan had been appointed as mutawalli of Waqf Estate No.726, the petitioners filed a writ petition before this Court vide CWJC NO. 5368 of 2014. The said writ petition was disposed of with consent of the parties. The operative part of the judgment dated 25.08.2017 passed in the said writ petition reads as under: "In view of the aforesaid, the writ petition, with consent, stands disposed of with liberty to the petitioners to move before the Board with regard to their grievance relating to Letter No. 3139 dated 20.12.2013. If such an application is filed within one month from today, the same shall be disposed of on merits, in accordance with the law, after giving liberty to hearing to all concerned within period of three months from the date of its filing." 6. In compliance of the order dated 25.08.2017 passed by this Court, the petitioners filed their application before the Board annexing the documents in support of their claim. After hearing the parties, the Chairman of the Board, vide order dated 21.03.2018, rejected the petition of the petitioner no. In compliance of the order dated 25.08.2017 passed by this Court, the petitioners filed their application before the Board annexing the documents in support of their claim. After hearing the parties, the Chairman of the Board, vide order dated 21.03.2018, rejected the petition of the petitioner no. 1 and directed her to open lock of the two rooms and hand over the possession of the same to the duly appointed mutawalli Md. Tarique Anis Khan within 15 days of the communication of the order. The said order was communicated to the petitioners by the Chief Executive Officer of the Board vide his letter dated 27.03.2018 with a direction to comply with the order passed by the Chairman of the Board. 7. The petitioners have assailed the order passed by the Board on 21.03.2018 which was communicated to them by the Chief Executive Officer vide letter dated 27.03.2018. 8. Mr. Mahesh Narayan Parbat, learned senior advocate for the petitioners submitted that the order by which the petitioners have been directed to open locks of their two rooms is bad for the reason that those two rooms are not the property of the waqf estate rather they are situated on the private land of the petitioners. He submitted that the order passed by the Board is also without jurisdiction in view of the fact that the Board has got no such power under the Act. The provisions prescribed under Section 54 of the Waqf Act, 1995 (for short 'the Act') would make it evident that the Chief Executive Officer has not been vested with the power of removal of encroachment from waqf property. The said provision prescribes that if the Chief Executive Officer considers that there has been any encroachment on any waqf property registered under the Act, he shall issue a notice upon the encroacher specifying particulars of the encroachment and calling upon him to show-cause and, on receipt of the reply, if he considers that there is encroachment of waqf property, the Chief Executive Officer would be required to file an application before the Tribunal for grant of order of eviction for removing such encroachment and deliver possession of the land. He submitted that in absence of any power vested in the Board or in the Chief Executive Officer, the impugned order by which the petitioners have been asked to open the locks of the two rooms cannot be sustained. He submitted that in absence of any power vested in the Board or in the Chief Executive Officer, the impugned order by which the petitioners have been asked to open the locks of the two rooms cannot be sustained. 9. Per contra, Mr. Helal Ahamd, learned counsel appearing for respondent Board submitted that the writ petition is not maintainable. He submitted that the petitioners have an alternative remedy of filing a suit before the Tribunal under Section 83 of the Act for redressal of their grievance and there being an alternative statutory remedy available to them, the writ petition cannot be maintained. Apart from objection regarding maintainability on the ground of alternative remedy, he submitted that the issue of want of jurisdiction in the Board cannot be raised by the petitioners in view of the fact the Board had passed order on the application of the petitioners filed before it in tune with consent order passed by this Court in CWJC No.5368 of 2014. He further submitted that the writ petitioners are female heirs of Dr. Najmuddin Haider Khan, former mutawalli and they cannot claim to be mutawalli as per conditions laid down in clause 10 of waqfnama, so orders dated 04.06.2013 and 26.03.2013 passed by the Board are as per waqfnama and as per provisions of sub-section (1) of Section 32 of the Act. He also submitted that the Board is vested with the power of general superintendence of all auqafs under Section 32 of the Act and to do all such acts as may be necessary for the control, maintenance and administration of auqafs under Section 40 of the Act. It has power to decide whether property is waqf or not under sub-Section 2 of section 40 of the Act and the order passed by the Board, if found to be not in consonance with law can be revoked or modified by the Tribunal in exercise of its power under Section 83 of the Act. 10. I have heard learned advocate for the parties and carefully perused the record. 11. In view of the submissions made on behalf of the parties, firstly, I would briefly discuss about the relevant provisions of the Act. 12. 10. I have heard learned advocate for the parties and carefully perused the record. 11. In view of the submissions made on behalf of the parties, firstly, I would briefly discuss about the relevant provisions of the Act. 12. Section 6 of the Act stipulates that if any dispute arises in respect of waqf property, the Board or mutawalli or any person aggrieved may institute a suit in Tribunal for the decision of the question and decision of the Tribunal in respect of such matter would be final provided that no such suit can be entertained by the Tribunal after expiry of one year from the date of publication of the list of auqafs. 13. Under Section 7 of the Act, the Tribunal is constituted and is only empowered to determine the questions relating to waqf property arising after commencement of the Act. 14. The term 'Tribunal' has been defined in Section 3(q) of the Act it reads as under :- "3(q) "Tribunal" in relation to any area, means the Tribunal constituted under sub-section (1) of section 83 having jurisdiction in relation to that area." 15. Under Section 32 of the Act, the Board is vested with the power of general superintendence of all auqafs. A duty has been cast upon the Board under the said provision to exercise its powers under the Act to ensure that auqafs under its superintendence are properly maintained, controlled and administered and the income is duly applied to the objects and for the purposes for which such auqafs were created and intended. Clause (c) of sub-section (2) of Section 32 of the Act stipulates that the Board shall have power to give directions for the administration of auqafs. Further clause (o) of sub-section (2) of Section 32 of the Act gives power to the Board to do all such acts as may be necessary for control, maintenance and administration of auqafs. 16. Section 40 of the Act stipulates that if any question arises whether a particular property is waqf property or not, the Board after making inquiry would decide the question after making such inquiry as it may deem fit. 17. Sub-section (2) of Section 40 stipulates that a decision as to whether a property is waqf property or not taken by the Board after such inquiry shall unless revoked or modified by the Tribunal be final. 18. Mr. 17. Sub-section (2) of Section 40 stipulates that a decision as to whether a property is waqf property or not taken by the Board after such inquiry shall unless revoked or modified by the Tribunal be final. 18. Mr. Parbat, learned senior advocate appearing for the petitioners has drawn my attention towards Section 54 of the Act to support his submission that the order passed by the Board for opening locks of two rooms are without jurisdiction. 19. From a reading of Section 54 of the Act, it would be manifest that in case of any encroachment of a waqf property, the Board has been conferred with a right to make an application to the Tribunal for grant of order of eviction for removing such encroachment and delivery of possession of land, building, space or other property encroached upon to the mutawalli of the wakf and the Tribunal upon receipt of such application from the Chief Executive Officer may make an order of eviction directing the waqf property to be vacated by the encroacher. 20. For the purpose of appreciation of the issue as to whether or not the objection raised by the writ petitioner is sustainable, Section 83 of the Act, which provides for constitution of Tribunals for determination of any dispute, question or other matter relating to a waqf or waqf property is extracted hereunder:- "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. (2) Any mutawalli person interested in a Wakf or any other person aggrieved by an order made under this Act, or rules made there under, 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 Wakf. (3) Where any application made under sub-section (1) relates to any Wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction of the mutawalli or any one of the mutawallis of the Wakf actually and voluntarily resides, carries on business or personally works for gain, and where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter; Provided that the State Government may, if it is of opinion that it is expedient in the interest of the Wakf or any other person interested in the Wakf or the Wakf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such Wakf or Wakf property, transfer such application to any other Tribunal having jurisdiction , and, on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh. (4) Every Tribunal shall consist of one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, and the appointment of every such person may be made either by name or by designation. (5) The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure,1908(5 of 1908), while trying a suit, or executing a decree or order. (6) Notwithstanding any thing contained in the code of Civil Procedure, 1908(5 of 1908), the Tribunal shall follow such procedure as may be prescribed. (7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court. (6) Notwithstanding any thing contained in the code of Civil Procedure, 1908(5 of 1908), the Tribunal shall follow such procedure as may be prescribed. (7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court. (8) The execution of any decision of the Tribunal shall be made by the civil court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908). (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 it self as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such order as it may think fit." 21. By Wakf (Amendment) Act, 2013, which was brought into force on 01.11.2013, in Section 83 of the Act for sub-section (1), following sub-section has been substituted :- "(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." 22. Similarly for sub-section (4), following sub-sections have been substituted :- "(4) Every Tribunal shall consist of- (a) one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, who shall be the Chairman; (b) one person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, Member; (c) one person having knowledge of Muslim law and jurisprudence, Member; and the appointment of every such person shall be made either by name or by designation. (4A) The terms and conditions of appointment including the salaries and allowances payable to the Chairman and other members other than persons appointed as ex officio members shall be such as may be prescribed." 23. Sub-section (2) of Section 83 of the Act permits any mutwalli or other person interested in a waqf or any person aggrieved of an order made under the Act or Rules framed there under to approach the Tribunal for determination of any dispute, question or other matter relating to waqf. Sub-section (5) of the said Section stipulates that the Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908. Sub-section (7) of Section 83 of the Act accords finality to the decision of the Tribunal and makes it binding upon the parties and has been given the force of a decree made by a civil court. Sub-Section (9) of Section 83 provides that no appeal shall lie against any decision or order made by the Tribunal. 24. Section 84 of the Act stipulates that whenever an application is made to a Tribunal for the determination of any dispute, question or other matters relating to a waqf or waqf property it shall hold its proceedings as expeditiously as possible and shall as soon as practicable on the conclusion of the hearing of such matters give its decision in writing and furnish a copy of such decision to each of the parties to the dispute. 25. Thus, from a conjoint reading of Sections 83 and 84 of the Act it would be manifest that the Waqf Tribunal has been vested with the power to decide all disputes, questions or other matters relating to a waqf or waqf property. Under Section 83(5) of the Act, the Tribunal has all the powers of civil court under the Code of Civil Procedure. Thus, the Tribunal can exercise powers under Order 39, Rules 1, 2 and 2A of the Code of Civil Procedure to grant temporary injunctions and enforce such injunctions. Hence, a complete remedy is available to any party if there is any dispute, question or other matter relating to a waqf or waqf property. 26. Admittedly, in the present case, the dispute relates to a waqf property. Hence, a complete remedy is available to any party if there is any dispute, question or other matter relating to a waqf or waqf property. 26. Admittedly, in the present case, the dispute relates to a waqf property. The Board has been vested with certain powers under Sections 32 and 40 of the Act. It has exercised those powers of general superintendence and control over the waqf property and has issued directions to the petitioners to open locks of two rooms. The question as to whether or not such direction was proper, legal and valid can also be decided by the Waqf Tribunal. Hence, I am of the view that if the petitioners are aggrieved by the order passed by the Board, in the first instance they should raise the dispute before the Waqf Tribunal constituted under Section 83 of the Act, as the Tribunal is the statutory body to adjudicate such dispute relating to waqf or waqf property. 27. In Board of Wakf, West Bengal & Anr. v. Anis Fatma Begum & Anr. [ 2010 (14) SCC 588 ], after taking note of the provisions prescribed under the Act, the Supreme Court has held that the matters relating to waqf should be filed in the first instance before the Tribunal and should not be entertained by the civil court or by the High Court straightway under Article 226 of the Constitution of India. 28. In view of the discussions made hereinabove and in view of the ratio laid down by the Supreme Court in Board of Wakf, West Bengal & Anr. (Supra), I am of the considered opinion that since the dispute in the present case is under the purview of the Act, the petitioners should first approach the Waqf Tribunal. 29. For the reasons aforementioned, the writ petition is dismissed with liberty to the petitioners to approach the Waqf Tribunal, if so advised, for redressal of their grievances. 30. There shall be no order as to costs.