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2020 DIGILAW 296 (ALL)

Anwar Saeed v. Mohd. Arbi

2020-01-27

RAJAN ROY

body2020
JUDGMENT : 1. Heard Shri Avadhesh Kumar Shukla, learned counsel for the revisionist and Shri Q.H. Rizvi, learned counsel for the opposite party no. 2. 2. Service is sufficient upon the opposite party no. 1 but nobody has put in appearance on his behalf. 3. This is a revision under Section 83(9) of the Waqf Act, 1995 challenging an order dated 03.04.2019 passed by the U.P. Waqf Tribunal disposing of the Waqf Petition of the revisionist under Section 83(2) of the Act, 1995 with the observation that the same is returned to him for presentation after compliance of Section 89 of the Waqf Act, 1995. In the body of the impugned decision it has been observed that although the petition has been filed under Section 83(2) of the Act, 1995 the relief sought by the petitioner is for deletion of Waqf claiming the property to be the property of the petitioner, therefore, suit is covered under Section 6 and 7 of the Waqf Act, 1995. It has further been observed in the impugned decision that Section 89 of the Act contains a mandatory provision of issuing notice to the Waqf Board two months prior to filing of the suit. The mandatory provision has not been complied with by the plaintiff. Hence the aforesaid order has been passed. 4. Learned counsel for the revisionist submitted that compliance of Section 89 was not necessary in this case firstly for the reason that it was a waqf petition under Section 83(2) and not a suit under Section 6. Secondly, for the reason that the dispute as to whether the Waqf in question is a Waqf or not, was the subject matter of earlier proceedings between the father of the revisionist and the father of opposite party no. 1 which went up to the Supreme Court and was decided in favour of the revisionist's father vide judgment dated 26.03.1962 rendered in Civil Appeal No. 256 of 1959. 5. As regards the decision of the Tribunal asking the petitioner to file a suit under Sections 6 and 7 of the Act, 1995 the contention was that the matter having already been adjudicated by the Supreme Court no fresh suit is required to be filed and the petition under Section 83(2) was maintainable in view of Supreme Court decision reported in (2010) 14 SCC 588 ; Board of Wakf, West Bengal and Anr. Vs. Vs. Anis Fatma Begum and Anr. 6. In response Shri Q.H. Rizvi, learned counsel for the Sunni Central Board of Waqf submitted that as far as notice is concerned, the same is mandatory and as regards the application of Section 6 it appears that in view of the last line of the relief claimed by the revisionist in his petition under Section 83(2) for deletion of the Waqf from the register of Waqf maintained by the Board the Tribunal arrived at the conclusion that there was a dispute referable to Section 6 of the Act, 1995. It was also his contention that in essence the dispute in fact was referable to Section 6 of the Act, 1995. 7. On the question of prior notice to the Waqf Board under Section 89 this Court finds that Section 89 applies to suits. The word 'suit' has been specifically used in Section 6 and 7 of the Act, 1995. It has not been so used in Section 83(2) under which the revisionist had filed the petition. 8. As per Section 92 in any suit or proceeding in respect of a waqf property the Board may appear and plead as a party to the suit or proceedings. In this case undisputedly the Board was impleaded as a party in the petition under Section 83(2) of the Act, 1995. 9. On a bare reading of the provision contained in Section 89 it applies to suits and not to proceedings under Section 83(2) and there is no reason as to why this Court should read the word something into Section 89 which the legislature has not provided. The Board being a party to the proceeding would no doubt be heard in the proceedings under Section 83(2) after issuance of notice to it. To this extent the decision of the Tribunal is not in accordance with law. 10. The Board being a party to the proceeding would no doubt be heard in the proceedings under Section 83(2) after issuance of notice to it. To this extent the decision of the Tribunal is not in accordance with law. 10. As regards observation of the Tribunal that the subject matter of the petition is amenable to a suit proceedings under Section 6 and 7 of the Act, 1995 is concerned, Section 83(2) reads as under:- (2) Any mutawalli person interested in a wakf or any other person aggrieved by an 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 wakf." 11. The provision, on a bare reading, is of wide application, as, it permits not only a mutawalli interested in a waqf but even any other person aggrieved by an order made under the Act, 1995 to file the petition. Secondly, the power and jurisdiction vested in the Tribunal under sub-section (2) of Section 83 is against an order made under the Act, 1995. In such matters the Tribunal has jurisdiction to determine any dispute, question or other matter relating to the waqf as is evident from the use of the words 'to the Tribunal for the determination of any dispute, question or other matter relating to the waqf'. 12. On a bare perusal of the petition of the revisionist under Section 83(2), the Court finds that he primarily challenged an order Waqf Board dated 01.03.2019 and two other orders dated 26.12.2013 and 03.01.2014 by which Waqf in question was registered as waqf by the Board. Although, the revisionist also challenged the orders dated 26.12.2013 and 03.01.2014 essentially and primarily it is the order of the Waqf Board dated 01.03.2019 rejecting the application of the revisionist for deregistering the waqf which was the subject matter in issue and based on its validity everything else would follow according to law. 13. It seems that the Tribunal was persuaded by the last line of the petition by which the revisionist had sought amendment by deleting the entry relating to Waqf No. 2195, Bahraich which in fact was merely a consequential relief. 13. It seems that the Tribunal was persuaded by the last line of the petition by which the revisionist had sought amendment by deleting the entry relating to Waqf No. 2195, Bahraich which in fact was merely a consequential relief. Most importantly the basis of revisionist's claim before the Tribunal was an earlier adjudication by the Supreme Court vide its judgment dated 26.03.1962 rendered in Civil Appeal No. 256 of 1959 wherein it is said that the predecessors in interest of the parties before the Tribunal had contested the matter, meaning thereby, their successors in interest who are parties before this Court and were parties before the Tribunal would be bound by the said judgment, therefore, the scope of consideration was very limited one, if it was established that the said judgment was applicable to the case. 14. In this view of the matter, the Court is of the view that the Tribunal has erred in observing that the matter is referable to Section 6 and 7 of the Act, 1995 without undertaking a thorough inquiry under Section 83(2) after going through the decision of the Supreme Court referred hereinabove and considering its application to the Waqf in question and its binding effect, if any, between the parties. The Tribunal has prejudged this aspect of the matter without undertaking the aforesaid exercise. This was not the stage at which such a finding could or should have been recorded. With these observations, the order of the Tribunal is hereby set-aside. The petition of the revisionist under Section 83(2) of the Act, 1995 shall stand restored before the Tribunal and shall now be proceeded with in the light of the observations made hereinabove. 15. It is further made clear that in the event it is found by the Tribunal that the decision of the Supreme Court being relied upon by the revisionist herein does not apply in the case, then, of course it will be open for it to arrive at the conclusion as to whether the dispute is referable to Sections 6 and 7 but not without looking into this aspect. By the same logic if it is found that the decision applies, then, the consequences would be apparent as per law. 16. The revision is allowed in the aforesaid terms.