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Akhalak Ahmed Nizamali Bukhari v/s Gujarat State Waqf Tribunal


Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    Special Civil Application No. 2446 of 2019

    Decided On, 07 February 2019

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

    For the Appearing Parties: M.I. Hawa, Moiz K. Rafique, M.I. Merchant, Dipen K. Dave, Siraj R. Gori, Sharif H. Shaikh, Advocates.



Judgment Text

1. The petitioners have filed this petition under Articles 226 and 227 of the Constitution of India challenging inter alia the order dated 24.01.2019 passed in Waqf Appeal No.8/2017 by the respondent No.1-Gujarat State Waqf Tribunal.

2. Heard learned advocate, Mr. M.I. Hawa appearing with learned advocate, Mr. Moiz Rafique for the petitioners, learned advocate, Mr. M.I. Merchant for respondent No.4 and learned advocate, Mr. Siraj Gori for the respondent No.8.

3. Learned advocate for the petitioners submitted that the petitioner No.1 is Sajjada-Nashin and Mutawalli appointed by late Sajjada-Nashin and Waqif Mr. Saiyed Moosamiya and the petitioner No.2 is Mutawalli appointed by late Sajjada-Nashin and Waqif Mr. Saiyed Moosamiya in accordance with the customs and provisions of the Waqf Deed and Hazrat Peer Shah Alam Roza Waqf registered under the Waqf Act, 1995 (hereinafter referred to as "the Act" for short). It is submitted that the said late Mr. Saiyed Moosamiya during his lifetime was the sole Mutawallis and Sajjada-Nashin of the aforesaid Roza and was managing the religious affairs and estate of the said Roza in accordance with the provisions of the Waqf Deed. He further submitted that the said late Mr. Saiyed Moosamiya desired to induct the petitioners along with his daughter, the respondent No.9 as Mutawalli and, therefore, after obtaining consent of the petitioners and the respondent No.9, Resolution was passed on 20.10.2016 and, thereafter on 29.10.2016, change report dated 25.10.2016 in Form-D with relevant Annexures were sent to the respondent No.2-Board and it was requested to take note of the same and make necessary changes in the register in accordance with Section 37 of the Act.

4. Learned advocate for the petitioners, thereafter, submitted that the respondent No.2-Board through its CEO issued notice dated 11.05.2017 and invited objections, which were required to be submitted within a period of 30 days only, however, the respondent No.8 submitted his objection on 18.09.2017. It is submitted that some of the private respondents and other 50 persons raised objections on 12.01.2017 even prior to issuance of the notice by CEO of the respondent No.2-Board. The CEO of the respondent-Board in compliance with the directions issued by the Division Bench of this Court while passing an the order dated 16.06.2017 in Writ Petition (PIL) No.213/2016, accepted the change report and made necessary entries in the register.

5. It is submitted that the aforesaid order dated 05.10.2017 passed by the CEO of the respondent-Board was challenged by the respondent Nos.4 to 7 herein by filing Waqf Appeal No.8/2017 before the respondent No.1 Tribunal. It is submitted that the respondent No.1-Tribunal vide impugned order quashed and set aside the order passed by the respondent No.2-Board on the ground that the objectors were not given opportunity of hearing by the CEO of the respondent No.2-Board and, therefore on the ground of violation of principles of natural justice, the order passed by the respondent No.2-Board has been set aside and thereby the respondent No.1-Tribunal has remanded the matter back to the respondent No.2-Board for deciding the issue afresh.

6. Learned advocate for the petitioners assailed the said order mainly on the ground that the objections raised by some of the private respondents and 50 other persons were prior to issuance of the notice by the respondent No.2-Board and the objections raised by the respondent No.8 is after a period of 30 days and, therefore, CEO of the respondent No.2-Board has rightly not considered such objections. It is further contended that the respondent Nos.4 to 7, who had filed Appeal before the Tribunal, are neither existing Mutawalli nor are descendants of said late Sajjada-Nashin, Mr. Saiyed Moosamiya and, therefore, the respondent No.1 Tribunal ought not to have considered the Appeal filed by such persons.

7. It is further submitted that earlier also, in the year 2004, the objections were filed by some of the private respondents along with 62 other co-applicants before the respondent No.2-Board, however, their objections came to be rejected by the respondent No.2-Board on 23.11.2006, thereafter, the respondent No.4 once again preferred fresh and independent Change Report No.107/2016 dated 22.02.2016, which was rejected by the Board on 10.10.2018.

8. At this stage, learned advocate for the petitioners referred to the provisions contained in Sections 37 and 42 of the Act and referring to the same, it is contended that Section 42 of the Act gives ministerial powers to the respondent No.2-Board to record in the register of Waqf, whereas Section 37 of the Act provides for maintenance of register of Waqf by the Board. Thus the powers conferred under the said provisions are neither judicial nor quasi-judicial and no inquiry is required to be held while exercising such powers.

9. At this stage, learned advocate for the petitioners has also referred to the provision contained in Section 22 of the Bombay Public Trust Act, 1950 and submitted that under the said provision, inquiry is required to be conducted by the Deputy or Assistant Charity Commissioner for verifying the correctness of the entry made in the register and ascertained as to whether any changes have occurred or not and if he is satisfied then, the change is to be notified.

10. It is further submitted that the respondent No.8 has though challenged the order dated 23.11.2006 passed by the Civil Court before this Court by filing writ petition, this Court has not given any direction for appointment of the respondent No.8 herein as Additional Trustee during the pendency of the said petition and, therefore, the respondent No.8 cannot be said to be Trustee or Mutawalli of the Waqf.

11. Learned advocate for the petitioners would contend that in Writ Petition (PIL) No.213/2016 filed before this Court, the Division Bench has directed the CEO of the respondent No.2-Board to take necessary steps to carry out the change reports, where there are no objections and, therefore, the CEO of the respondent No.2-Board has accepted the report and made necessary changes and, therefore, the respondent No.1 Tribunal ought not to have quashed the said order passed by the CEO of the respondent No.2-Board. He, therefore, urged that this petition be allowed and the impugned order be quashed and set aside.

12. On the other hand, learned advocate, Mr. Merchant appearing for the respondent No.4 herein submitted that the respondent No.1-Tribunal has only remanded the matter back to the respondent No.2-Board for deciding the issue afresh after giving an opportunity of hearing to the objectors and, therefore, this Court may not go into further merits of the case of the petition. It is submitted that the change report was submitted by late Mr. Saiyed Moosamiya on 29.10.2016 and the said report was not decided and considered by the respondent-Board upto 05.10.2017, however in the meantime, said late Mr. Saiyed Moosamiya died on 14.09.2017 and, therefore on the date of deciding the change report, the said applicant, Mr. Saiyed Moosamiya was not alive and, therefore, the CEO of the respondent No.2-Board ought not to have considered such report.

13. It is further submitted that the CEO of the respondent No.2-Board has not taken into consideration the objections raised by the private respondents and 50 other persons and without giving opportunity of hearing, the change report was accepted and, therefore, no error is committed by the respondent No.1-Tribunal while setting aside the order of the respondent-Board.

14. It is further submitted that the Division Bench of this Court has given direction by an order dated 16.06.2017 in Writ Petition (PIL) No.213/2016 to the CEO of the respondent No.2-Board to take necessary steps to carry out change report, where there are no objections, however, the Division Bench has further clarified that in the matter, where there are objections with regard to the change reports, same shall be placed before the Board, after it is constituted. Thus the CEO of the respondent-Board has violated the directions issued by the Division Bench of this Court. He, therefore, urged that this petition may not be entertained.

15. Learned advocate, Mr. Siraj Gori appearing for the respondent No.8 has supported the submissions canvassed by learned advocate, Mr. Merchant appearing for the respondent No.4. However, he further pointed out that the respondent No.8 is Mutawalli even as on date. He has pointed out from the record that against the order passed by the Civil Court, Ahmedabad dated 30.09.2009 in Misc. Civil Application, the respondent No.8 has filed Special Civil Application No.11458/2009, wherein this Court, by an order dated 09.11.2010 was pleased to admit the said petition and granted ad-interim relief in terms of para No.6(C) and thereby implementation of the order dated 30.09.2009 has been stayed. He, therefore, submitted that the respondent No.4 is still considered to be a Mutawalli and, therefore, when the respondent No.8 has raised objection before the respondent No.2-Board, such objection was required to be considered by the respondent No.2-Board before accepting the change report. He, therefore, urged that this petition be dismissed.

16. Having heard learned advocates appearing for the parties and having gone through the records produced on record, it emerges that it is the case of the petitioners that the petitioner No.1 is appointed as Sajjada-Nashin and Mutawalli and the petitioner No.2 appointed as Mutawalli by late Sajjada-Nashin, Mr. Saiyed Moosamiya. The said Mr. Saiyed Moosamiya submitted a change report dated 25.10.2016 in Form-D with relevant Annexures to the respondent No.2-Board and the CEO of the respondent No.2 Board has accepted the change report vide order dated 05.10.2017 by considering the same as undisputed and against the said order, the respondent Nos.4 to 7 had filed Appeal before the respondent No.1-Tribunal and the respondent No.1-Tribunal has quashed and set aside the order passed by the respondent No.2-Board and the matter is remanded back to the respondent No.2-Board for deciding the objections of the private respondents and other persons after providing an opportunity of hearing to them. From the record, it is revealed that on 12.01.2017, some of the private respondents and 50 other persons raised objection before the respondent No.2-Board with regard to the change report dated 25.10.2016 submitted by late Mr. Saiyed Moosamiya. It is also reflected from the record that the change report was submitted on 29.10.2016 by late Mr. Saiyed Moosamiya and, thereafter, he died on 14.09.2017 and before that on 11.05.2017, notice was issued by the respondent No.2-Board and thereby objections were invited from the present Mutawalli. It is not in dispute that the respondent No.8 has raised an objection on 18.09.2017 i.e. immediately after the death of Mr. Saiyed Moosamiya, however, such objection was not considered by the respondent No.2-Board. It is required to be observed at this stage that Division Bench of this Court while passing an order dated 16.06.2017 in Writ Petition (PIL) No.213/2016 has observed in para No.4 as under,

"4. Accordingly, we place on record the statement made by the learned Government Pleader for constitution of the Board, as contemplated under the provisions of the Waqf Act, 1995. At the same time, we also further direct that the Chief Executive Officer of the Board shall take necessary steps to carry out the Change Reports where there are no objections. It is made clear that in matters where there are objections with regard to Change Reports, the same shall be placed only before the Board, after it is constituted."

17. Thus from the aforesaid order, it is clear that the direction was given to CEO of the respondent No.2 Board to take necessary steps to c

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arry out the change reports, where there are no objections, however, it was clarified that in the matters, where there are objections with regard to change reports, such objections were required to be placed only before the Board, after it is constituted. From the record, it is further revealed that in the impugned order, the respondent No.1-Tribunal has specifically observed after verifying the record of the Board that the officer of the respondent No.2 Board has passed an order to place the change report in disputed register. Thus before passing the order by the CEO of the respondent No.2-Board, he was aware about the fact that the change report is placed in disputed register and in spite of that, in defiance of the directions issued by the Division Bench of this Court, he has accepted the change report. 18. In view of the above, reliance placed by the learned advocate for the petitioners on the provision contained in Sections 37 and 42 of the Act, is misconceived. This Court is of the view that no error is committed by the respondent No. 1-Tribunal while setting aside the order of the respondent No.2-Board and remanding the matter back to the respondent No.2-Board for deciding the issue afresh. 19. Therefore, the present petition deserves to be dismissed and accordingly stands dismissed in limine.
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