Research › Search › Judgment

Calcutta High Court · body

2024 DAILYLAW 2317 (CAL)

U. Nasar Khan v. S. Shahul Hameed

2024-07-12

Gaurang Kanth

body2024
JUDGMENT : GAURANG KANTH, J. 1. Respondent Nos. 1 to 3 appears on CAVEAT. The CAVEAT is discharged. 2. The petitioner in the present petition is assailing the impugned order dated 27.06.2024 passed by the District Judge, Port Blair in Misc. Civil Appeal No. 14 of 2024. Vide the impugned order, the learned District Judge stayed the operation of the order dated 10.06.2024 passed by the Waqf Tribunal (Civil Judge, Senior Division), South Andaman District, Port Blair in W.T. Suit No. 02 of 2024. 3. The facts leading to the present case is as follows : 4. The petitioner (original plaintiff) filed a suit for permanent injunction being W.T. Suit No. 02 of 2024 before the Waqf Tribunal (Civil Judge, Senior Division), South Andaman, Port Blair for restraining the defendants from using the unregistered name of the Masjid “Masjid-e-Noor”. 5. It is the case of the petitioner that the registered name of the said Masjid is “Masjidun Noor” whereas the Respondents (original defendants) who are the current office bearers of the said Masjid and using the unregistered name “Masjid-e-Noor”. The petitioner also filed an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908. While issuing notice in the said suit, the learned Waqf Tribunal vide order dated 10.06.2024 restrained the respondents from using the unofficial name of the said Masjid till 12.7.2024. 6. Being aggrieved by the said order of the Waqf Tribunal, the respondents herein preferred an appeal under Order XLIII of Code of Civil Procedure, being Misc. Appeal No. 14 of 2024 before the District Judge, Andaman and Nicobar Islands. Vide the impugned order dated 27.06.2024, the District Judge was pleased to stay the operation of the order dated 10.06.2024 passed by the Waqf Tribunal. 7. Being aggrieved by the said decision, the petitioner has preferred the present petition. Learned counsel for the petitioner submits that the appeal before the learned District Judge was not maintainable against the order of the Waqf Tribunal, as no appeal is maintainable against the order of the Waqf Tribunal as per Section 83 (9) of the Waqf Act, 1995. 8. Learned counsel for the respondent nos. 1 - 3 appearing on CAVEAT and submits that the Waqf Tribunal is acting like a Civil Court and hence the appeal is maintainable before the learned District Judge. Learned counsel for the respondent nos. 8. Learned counsel for the respondent nos. 1 - 3 appearing on CAVEAT and submits that the Waqf Tribunal is acting like a Civil Court and hence the appeal is maintainable before the learned District Judge. Learned counsel for the respondent nos. 1-3 further draws the attention of this Court to Section 83 (4) of the Waqf Act, 1995 and raises question on the very composition of the Waqf Tribunal that the same is not in accordance with the mandate of law. 9. Learned counsel for the respondent nos. 1-3 has further relied on the judgment of the Hon’ble Supreme Court in Civil Appeal No. 14565 of 2015 arising out of SLP(C) No.29234/2015, titled as Lal Shah Baba Dargah Trust –versus- Magnum Developers and Others, wherein the Court has held that every State shall constitute a Tribunal by observing the mandate of Section 83 (4) of the Waqf Act, 1995. Learned counsel for the respondent nos. 1-3 further states that the Tribunal has not been legally constituted in accordance with the above provisions of law. Though learned counsel for the respondent nos. 1-3 states that this argument was never taken at the time of filing of the appeal or was advanced before the learned District Judge. The learned counsel for the respondent nos. 1-3 had himself filed an appeal against the Waqf Tribunal’s order. Therefore, raising argument about the illegality of the existence and composition of the Tribunal, is itself contrary to his earlier actions. 10. This Court has heard the arguments advanced by both the parties and has perused the records. 11. Before examining the rival contentions of the parties, its worth mentioning Section 83 (9) of the Waqf Act, 1995. “(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 itself as to the correctness, legality or propriety of such determination and may confirm, reserve or modify such determination or pass such other order as it may think fit.” 12. Hence, the bare perusal of Section 83 (9) of the Waqf Act, 1995, it is evident that no appeal lies against the order of the Waqf Tribunal. The aggrieved party can approach the High Court challenging the order of the Waqf Tribunal if, they so desire. 13. The Division Bench of the Hon’ble High Court of Himachal Pradesh had an occasion to examine an identical issue in the matter of Mumtaz Ahmed – versus – State of H.P. and Others reported as 2016 SCC Online HP 2603. There were various petitions, Writ Petition, Revision Petition, Regular First Appeal, etc. were filed against the orders passed by the Waqf Tribunal. Hence, the Hon’ble Division Bench examined the question “What remedy is available to the aggrieved party against the order passed by the Waqf Tribunal”. After examining Section 83 (9) of the Waqf Board Act, 1995, the Hon’ble Division Bench held as follows :- “31. 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. 32. 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. 33. In terms of proviso to Sub Section (9) of Section 83 of the Act, any person aggrieved by the orders of the Tribunals can invoke the revisional jurisdiction of the High Court. Thus, remedy is provided to the aggrieved person by way of filing revision petition and not by the medium of appeal. 34. 33. In terms of proviso to Sub Section (9) of Section 83 of the Act, any person aggrieved by the orders of the Tribunals can invoke the revisional jurisdiction of the High Court. Thus, remedy is provided to the aggrieved person by way of filing revision petition and not by the medium of appeal. 34. The Act contains the mechanism for filing revision petition, thus, providing efficacious alternative remedy to the aggrieved party, rendering the writ petition not maintainable against the orders passed by the Tribunal. This view has been taken by this Court in case titled as Indian Technomac Company Ltd. v. State of H.P., being CWP No. 4779 of 2014, decided on 4th August, 2014, and restated in plethora of judgments. 35. In a similar case, the High Court of Andhra Pradesh in case titled as Mohd. Abdul Kareem v. Andhra Pradesh State Waqf Board, 2004 (2) ALD 345 , held that the jurisdiction of the High Court in disputes pertaining to Wakfs can be invoked by way of filing revision petition and not by the medium of a writ petition. It is apt to reproduce paragraph 13 of the said decision hereunder : “13. As seen from the above, the jurisdiction of the High Court in disputes relating to Wakfs can be invoked only when an aggrieved party files a revision petition under Sub-section (9) of Section 83 of the Act and a writ. petition would not be maintainable. In view of the binding precedents, this Court is not inclined to go into the merits of the contentions on other two questions raised by the learned Counsel for respective parties. These are left open to be decided at an appropriate stage in appropriate proceedings.” 36. In view of the above discussion, the question supra is answered accordingly.” 14. This being the legal position, this Court has no hesitation in holding that the appeal before the District Judge, Andaman and Nicobar Islands was not maintainable. The respondent nos. 1-3 raised objections qua the constitution of the Waqf Tribunal, However, this objection was not raised in the appeal and hence this court is not inclined to examine the said issue at this stage. 15. In view thereof, the present petition is allowed and the impugned order dated 27.06.2024 passed by the District Judge, Port Blair in Misc. Appeal No. 14 of 2024 is hereby set aside. 16. 15. In view thereof, the present petition is allowed and the impugned order dated 27.06.2024 passed by the District Judge, Port Blair in Misc. Appeal No. 14 of 2024 is hereby set aside. 16. Needless to state that the party aggrieved by the order of the Waqf Tribunal is at liberty to challenge the same in accordance with law. 17. With the above direction, the present petition is disposed of. 18. Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.