TaxTMI 
TaxTMI 
2018 (4) TMI 1982
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....(old), Ward No. 28 (new), Sitamarhi in the Bihar State Sunni Waqf Board (for short „Board‟) on 20.12.2016 vide W.E. No. SI/2662 and consequent rejection of Waqf Appeal No. 01 of 2017 by the Bihar Waqf Tribunal (for short „Tribunal‟) vide judgment dated 11.09.2017, the instant writ petition has been filed by the petitioner under Article 226 of the constitution of India. 3. The petitioner no. 1 herein is Mutwali of W.E. No. 1052 whereas petitioner no. 2 is his brother-in-law. They have sought to challenge the impugned registration and judgment of the Tribunal on the ground that mosque, which has been registered in W.E. No. 2662, is actually part of W.E. No. 1052, which was earlier registered in the year 1961 on the basis of the waqfnama created by the great grandfather of petitioner no. 1 Late Sk. Haji Jan Ali in the year 1920. 4. On the other hand, the case of respondent no. 10 is that the plots including the mosque, which have been registered in W.E. No. 2662 on 20.12.2016 are different, mutually distinct, separate and unrelated to the properties described in the waqfnama of 1920 created by the great grand father of petitioner no.1. They are at far distanc....
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....mLC 338]; the High Court of Gujarat in Zubedaben Mohammedmiya and Ors. Vs. Gujarat State Waqf Board and ors. decided on 16.12.2015 in Special Civil Application No. 18852 of 2014, the High Court of Andhra Pradesh in Md. Abdul Kareem and Anr. Vs. Andhra Pradesh State Waqf Board and Ors. [2004(3) ALT 254] and the High Court of Karnataka vide judgment dated 26.08.2017 in Syed Asadulla Hussaini Vs. The Karnataka State Board of Wakfs Darul Awkaf have held that in terms of proviso to sub-section (9) of Section 83 of the Waqf Act, 1995 no writ petition shall lie against any decision or order passed by the Tribunal. In this regard, he has also placed reliance on the judgment of the Supreme Court in Sadhana Lodh Vs. National Insurance Co. Ltd. [(2003) 3 SCC 524]. 7. Mr. Helal Ahmad, learned advocate appearing for the Board submitted that in view of the proviso to sub-Section (9) of Section 83 of the Waqf Act, 1995 undoubtedly a revision petition would be maintainable before this Court. However, he submitted that writ petitions are being entertained by this Court against the judgment of the Tribunal since long and no objection has been raised by any party at any point of time in past. He sub....
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....may institute a suit in Tribunal for the decision of the question and the 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 waqfs. 14. Under Section 7 of the Waqf Act, 1995 the Tribunal is constituted and is interalia empowered to determine questions relating to waqf property arising after commencement of the Act. 15. The term „Tribunal‟ has been defined in Section 3(q) of the Waqf Act, 1995 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". 16. Section 83 of the Waqf Act, 1995 provides for constitution of Tribunals for determination of any dispute, question or other matter relating to a waqf or waqf property. 17. For the purpose of better appreciation Section 83 of the Waqf Act, 1995, which bears direct relevance to the question herein may at this stage be extracted :- "83. Constitution of Tribunals, etc.- (1) The State Government shall, by notification in the Official Gazette, constitut....
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....ourt 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. (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." ....
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.... under the Code of Civil Procedure, 1908. Sub-section (7) of Section 83 of the Waqf Act, 1995 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. 22. However, the proviso to sub-section (9) of Section 83 of the Waqf Act, 1995 not only gives jurisdiction to the High Court on its own motion or on the application of the Board or any person aggrieved, to 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 but also provides for remedy to the Board or any person aggrieved by any determination made by the Tribunal to question the correctness, legality or propriety of such determination and the High Court after satisfying itself may confirm, reverse or modify such determination or pass such other order as it may think fit. The said proviso has been couched in such term that it leaves no room for doubt th....
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....he statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd, v. Nicolletta Rohtagi 2002(7) SCC 456). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected, and a State enactment has barred the r....
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....er Articles 226/227 of the Constitution of India against the decision or order of Tribunal has ever been considered and decided by this Court. If the objection regarding maintainability of such petition has not been raised and the relevant provisions of the Act have not been considered while entertaining the petition, it will always be open for the Court to examine the issue of maintainability of such petition. Moreover, while examining such issue of maintainability, this Court cannot ignore the terms of statute and the binding precedent of the Supreme Court. Thus, I find no merit in the submissions of the learned counsel for the petitioner and the Board that since such petitions are being entertained before this Court and several decisions have been given in past which have attained finality, a petition under Article 226/227 of the Constitution of India would be maintainable against the decision or order of the Tribunal. 28. In Md. Abdul Kareem (Supra), the High Court of Andhra Prakesh held : "...the jurisdiction of the High Court in disputes relating to Waqfs can be invoked only when an aggrieved party files a revision petition under Sub-section (9) of Section 83 of the Act and ....
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....e decision in Mumtaz Ahmed (Supra) in this regard are apposite :- "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. 32. 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 jurisdict....