Kabeeriyya Masjid Committee and Others vs The Lieutenant Governor and Others

Aniruddha Bose, J.—The petitioners before me are Kabeeriyya Masjid Committee, an unregistered body and two individuals representing themselves as the Secretary and the President of the said Committee. In this proceeding, the petitioners question the legality of the decision of the Wakf Board, Andaman & Nicobar Islands holding that the Masjid known as Kabeeriyya Masjid, which is Wakf, belongs to the management of Akbariya Masjid. Such decision was taken by the Board on 19th March, 2011 in response to a communication of the Superintendent of Police, South Andaman district in connection with a subsisting dispute over management of the affairs of the said Masjid. This communication of the Superintendent of Police(SP) dated 8th March, 2011 was produced before me by the learned counsel for the Wakf Board. From this communication, I find that the SP has referred to a dispute between two groups, terming them as "EK" and "AP" for control of the functioning of the mosque. The Board was requested to look into the matter on priority basis and initiate necessary action to maintain peace in the community. The Board took the decision after issuing notices to the Secretary, Akbariya Masjid and the Secretary, Markaz Saka Fathiya (Sunniya), Wimberlygunj, as representatives of the "EK" and the "AP" groups respectively.

The case of the petitioners is that one Shri C. Mohammed had dedicated the property on which the Masjid has been built to the Kabeeriyya Masjid Committee, i.e. the petitioner No. 1 for construction of a mosque building for performing prayer and other worship and it is the said committee who are in management and control of the affairs of the said mosque before being dispossessed in consequence of the order of the Tribunal.

The grievance of the petitioners is that consequent to the decision of the Wakf Board, their members are being illegally prevented from entering the mosque to offer prayers, and possession of the Masjid has been handed over to Akbariya Masjid with the help of the police authorities.

Kabeeriyya Masjid however has not been registered under the provisions of Section 36 of the Wakf Act, 1995. An application for registration has been filed on 11th July, 2011 by the petitioners subsequent to filing of the writ petition and a copy of this application has been made annexure to the Affidavit-in-reply of the petitioners to the Affidavit-in-opposition of the respondent No. 2.

Ms. Anjili Nag, learned counsel for the petitioners has assailed the decision of the Wakf Board as illegal on the ground that such decision was taken without giving opportunity to the petitioners of being heard. She argued that such decision has been taken in violation of the principles of natural justice. In support of her submission that the Writ Court can interfere in such cases, she has relied on the judgement of the Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, . In the writ petition and the affidavits filed in response thereto, the respective parties have sought to rely on various documents in support of their respective claims over management of the said mosque, and the statutory authorities have sought to justify their action. But on behalf of the petitioners, submissions have been confined on the point of violation of the principles of natural justice only. I am accordingly not addressing any other issue on which the writ petition is founded. I shall, however, first deal in this judgement the question of maintainability of this writ petition, which question has been raised as preliminary objection on behalf of the respondents. The ground on which such objection has been raised will be elaborated in the later part of this judgement.

Mr. Mandal, learned Government Pleader appearing for the Administration and the Board has raised the point of maintainability of this writ petition on the ground that the Wakf Tribunal has the exclusive jurisdiction to decide a dispute of this nature. Two judgements have been relied on in this regard being a judgement of the Supreme Court in the case of Board of Wakf, West Bengal v. Anis Fatma Begum and Anr. delivered in Civil Appeal No. 5297 of 2004 on 23rd November, 2010 as well as an unreported judgement of a Division Bench of this Court in W.P. No. 14013 (W) of 2010 (PIL) (V.V. Khalid v. Union of India & Ors.) delivered on 20th June, 2011. Relying on these two authorities, Mr. Mandal has prayed for dismissal of this writ petition.

Ms. Shyamali Ganguly, learned counsel for the respondent nos.3 and 4, being the Akbariya Masjid Committee has submitted that in view of the provisions of Section 87 of the Wakf Act, the petitioners do not have the locus to bring this action, as the Wakf has not been registered under the provisions of Section 36 of the Act. On merit, her submission is that the Kabeeriyya Masjid is in fact under the control of Akbariya Masjid Committee and it is her clients who are managing and looking after the entire affairs of Kabeeriyya Masjid. It is argued by Ms. Ganguly that the petitioner No. 1 has no independent legal status or entity and it is part and parcel of Akbariya Masjid only.

I shall deal first with the question of maintainability of this writ petition on the ground that the petitioners cannot initiate this proceeding as the Wakf is not registered under the provisions of the Act. Section 87 of the Act stipulates:

Bar to the enforcement of right on behalf of unregistered wakfs.__(1) Notwithstanding anything contained in any other law for the time being in force, no suit, appeal or other legal proceeding for the enforcement of any right on behalf of any wakf which has not been registered in accordance with the provisions of this Act, shall be instituted or commenced or heard, tried or decided by any court after the commencement of this Act, or where any such suit, appeal or other legal proceeding had been instituted or commenced before such commencement, no such suit, appeal or other legal proceeding shall be continued, heard, tried or decided by any court after such commencement unless such wakf has been registered, in accordance with the provisions of this Act.

(2) The provisions of sub-section (1) shall apply as far as may be, to the claim for set-off or any other claim made on behalf of any wakf which has not been registered in accordance with the provisions of this Act.

The prohibition contemplated under the aforesaid provision is on institution of a legal proceeding for enforcement of any right on behalf of a Wakf, which has not been registered in accordance with the provisions of the Act. This prohibition however operates when an individual or an association brings or intends to bring an action on behalf of an unregistered Wakf. The expression "on behalf of" as used in the said provision conveys the idea of representing the Wakf in any action brought to protect the interest of the Wakf. In this case, the petitioners have not instituted any action on behalf of the Wakf, but the present action is on their own behalf, for the purpose of recognition of their right to manage the affairs of the Kabeeriyya Masjid. The dispute in this proceeding originates from a conflict over management of Kabeeriyya Masjid and the petitioners have not filed this petition on behalf of the Wakf. From a plain reading of the aforesaid provision, it does not appear that the intention of the legislature is to altogether exclude any dispute over an unregistered Wakf from the legal arena. The prohibition under the said section prevents any person from representing an unregistered Wakf to protect the latter''s interest in any legal action. The fact that disputes concerning a Wakf which may be unregistered can be litigated would be apparent from the provisions of Section 83(2) of the Act, which classifies the persons who might approach the Wakf Tribunal. Subsections (1) and (2) of Section 83 of the Act stipulates:-

Constitution of Tribunals, etc.__(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.

(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.

The Tribunal has been conferred with wide jurisdiction under the Act to determine any dispute, question or other matter relating to a wakf, and apart from the mutwalli, locus of any person aggrieved by any order made under the act to apply before the Tribunal has been recognized by the Act.If the provisions of Section 87(1) of the Act is construed to mean that no legal proceeding can be raised in respect of an unregistered Wakf, then the provisions of Section 83(2) would become otiose, as the range of legal proceedings, institution of which has been prohibited in respect of an unregistered Wakf specified in Section 87(1) would cover a proceeding before the Tribunal as well. Provisions of section 83(1) of the Act does not make a distinction between a registered and an unregistered Wakf, and under sub-clause (2) of the said provision any person aggrieved by an order passed under the Act can approach the Tribunal. In this case, the grievance of the petitioners is against an order passed by the Board. Thus, the right of the petitioners to approach the Tribunal is preserved in the light of aforesaid provision of the Act, as the Board has been constituted under the statute and their impugned decision also qualifies for being an order under the Act.

In the event the petitioners can approach the Wakf Tribunal, in my opinion they cannot be prevented from approaching the Writ Court also, and the disqualification contemplated u/s 87 of the Act does not prevent them from approaching the Writ Court. Every citizen, and in exceptional cases non-citizens also, can approach the Writ Court with grievance against any action of statutory bodies. The petitioners, thus, cannot be straightaway nonsuited for attracting the disqualification contained in Section 87(1) of the Act. Whether the Writ Court should exercise its discretionary jurisdiction in entertaining this petition is the issue which I shall address now.

Certain in-built restrictions have been evolved in Indian jurisprudence for screening cases before a Court exercising its jurisdiction under Article 226 of the Constitution of India entertains a Writ petition. One of the grounds for rejecting a Writ petition directly is availability of a statutory forum before which the same dispute can be litigated. Such bar on admitting a Writ petition on that ground is not absolute, but the jurisdiction of the Writ Court is invoked in such a situation sparingly, under special circumstances. I shall examine, in this perspective, whether I shall entertain this Writ petition or not for not availing the statutory forum by the petitioners, being the Tribunal for redressal of their grievances. As a matter of practice, the Writ Court, which deals with most matters on affidavits and not by trial on evidence has refrained from adjudicating on pure factual disputes. In the present case, the dispute primarily relates to the question as to whether the petitioners had control over the affairs of the Masjid and whether they are authorized to have control over the management of the affairs of the Masjid. Resolution of this question would involve adjudication on pure factual issues.

On this point, argument of the petitioners is that there being breach of principles of natural justice, the Writ Court can entertain this petition and Ms Nag has argued that all her clients seek now is a fresh hearing before the Wakf Board to establish their right. But to determine the question as to whether at all the petitioners ought to have been given opportunity of hearing, examination of certain factual issues are necessary. Apart from the Deed by which the property has been dedicated, the only other material the petitioners have produced to establish their right is a letter addressed to the Chairperson, Wakf Board written by the Secretary, Markaza Ssaquafathi Ssunniyya Andaman dated 18th March, 2011. In this letter, he has indicated that Kabeeriyya Masjid is managed, maintained, controlled and administered by Kabeeriyya Masjid Committee. No other material has been produced from which the petitioners'' claim of having control of management of the Masjid can be established. Learned Counsel for the petitioners has contended that all the documents are lying in custody of Akbariya Masjid committee as they have been handed over the possession of the mosque. On the basis of these materials alone, it is not possible for this Court to form an opinion that the petitioners had made out a case for being heard before any decision is taken in respect of the Masjid.

This being the position, in my opinion the Wakf Tribunal would be the appropriate forum for deciding on the dispute in its entirety. On the question of jurisdiction of the Tribunal to determine the issues involved in this petition, the ratio of the judgement of the Supreme Court in the case of Anis Fatma Begum (supra) and the Bench decision of this Court in the case of V.V.Khalid ( supra ) clearly establishes such jurisdiction.I accept submission of Ms Nag that in case of breach of principles of natural justice, in spite of Tribunal''s jurisdiction over the matter the Writ Court can interfere. But so far as the present case is concerned, certain factual queries are necessary to decide as to whether the petitioners were at all entitled to be heard before the Board.

I accordingly dispose of this petition giving liberty to the petitioners to approach the Wakf Tribunal with their grievances.

The Writ petition stands disposed of in the above terms, without any order as to costs.

Let the records be returned to the learned counsel for the Wakf Board.