Hakimuddin & Ors vs Madhya Pradesh Waqf Board Through The Chief Executive Officer. & Ors

Heard on the question of admission.

By this writ petition under Article 226 of the Constitution of India, the petitioners are challenging the Notification No.37 dated 13/09/1985, passed in

M.P. Gazette Part-3(1) wherein Entry no.444 shows Dargah, Nathanshah Baba, r in 0.052 Hectares out of Khasra No.1402 at Mohalla Shajilalpura,

Kasba Badmnagar, District â€" Ujjain wherein the property in question is shown as Waqf Property(Annexure-P/1).

A challenge has also been made to the order dated 27/06/2016 passed by M.P. Waqf Tribunal in Case No.59/2012 thereby dismissing the suit for

declaration of property in question as personal property of the petitioners and permanent injunction. The petitioners have also challenged the

appointment of respondent no.6 as Mutawalli of another property made by respondent No.1 by order dated 12/07/2011.

A preliminary objection has been raised on the ground that alternative statutory remedy to challenge the impugned order(Annexure-P/2) dated

27/06/2016Â in revision under Section 83(9) of Waqf Act. According to respondent No.6, the petitioners have challenged the Gazette Notification

(AnnexureP/1) dated 13/09/1985 after a period of more than 30 years and the appointment of respondent no.6 as Mutawalli on 12/11/2007 after an

inordinate delay of 5 years and, therefore, the same cannot be challenged after an inordinate delay of 5 years.

In respect of order dated 27/06/2016, passed by M.P. Waqf Tribunal, learned senior counsel for the petitioners has submitted that the single

member and as per the law laid doen by the Apex Court in the case of Karnal Improvement Trust Karnal v. Parkash Wanti(Smt. (Dead) & Anr.Â

reported in [(1995) 5 SCC 159] the Tribunal consists of three members including Chairman and one member cannot pass the order. An order passed

by one member is of no order in the eye of law nor it can be said that the same is passed by the Tribunal and submitted that the writ petition is very

much maintainable.

To counter the aforesaid, learned Senior Counsel for the respondent No.6/Caveator has drawn our attention to Para â€" 27,39 and 40 of decision of

the Apex Court in the case of Lal Shah Baba Dargah Trust v. Magnum Developers & Ors. reported in AIR 2016 SC 381 and submitted that as per

the amendment, the three members Tribunal is to be constituted by the State Government by notification in the Official Gazette. However, the State

has not done its mandatory duty as provided under Section 83 of the M.P. Waqf Act, 1995. No party should suffer due to the inaction of the State. It

is common practice that the old institution/member continues to exercise duty till the time any new institution/member takes charge of that duty. In the

case in hand, the one member tribunal will continue to exercise jurisdiction till the time the State constitutes three members tribunal by notification in

the Official Gazette. Paras 27, 39 and 40 of the case of Lal Shah Baba Dargah Trust(supra) are relevant which reads as under :-

As per the amendment, the three members Tribunal is to be constituted by the State Government by notification in the Official Gazette. However,

the State has not done its mandatory duty as provided under Section 83 of the Act (as the Section 83 uses the word “shallâ€). Then the question is

should any party suffer due to the inaction of the State. We should keep in mind that it is common practice that the old institution/member continues to

exercise duty till the time any new institution/member takes charge of that duty. In the present case also, the one member tribunal will continue to

exercise jurisdiction till the time the State constitutes three members tribunal by notification in the Official Gazette. The High Court erred in holding

that the civil court will exercise jurisdiction in such situation as it is manifest by the intention of the legislature that they do not want any other

authorities to exercise over the Waqf property matter under the Act.

Mr. L. Nageswara Rao, learned seniorcounsel appearing for the Wakf Board, has rightly contended that the intention of the Parliament while

substituting Section 83(4) is not that one member tribunal vanishes or ceases to exist till a three member tribunal is constituted.

Intention to bring new sub-section (4) in Section 83 is nothing but improvement in the constitution of the Tribunal and both the earlier and the

substituted sub- sections are not inconsistent with each other.

Having regard to the law discussedhereinbefore and giving our anxious consideration in the matter, we are of the definite opinion that the High

Court has committed serious error of law in holding that after the Amendment Act, 2013 came into force, the one member Tribunal exercising

jurisdiction ceased to exist even though a fresh notification constituting three member Tribunal has not been notified. The High Court further erred in

law in directing the Civil Court to decide the disputes in respect of waqf property.

The law on the subject is well settled. On perusal of the aforesaid Paras 27, 39 and 40 of the case of Lal Shah Baba Dargah Trust(supra), we

cannot accept the contention of the learned Senior Counsel for the petitioners that the order dated 27/06/2016 was not passed by the Tribunal or single

member of tribunal has no jurisdiction.

In view of the aforesaid, the contention of the learned senior counsel for the petitioners has no force. The order is revisable under Section 83 of the

Act and, therefore, we accept the preliminary objection and dismiss the writ petition with liberty to challenge the order by filing a revision under the

Act.

The stay granted earlier is hereby vacated.

With the aforesaid, the writ petition stands disposed of.