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Judgment
The present challenge has been directed against an order passed by the Waqf Tribunal, whereby the application filed by the present petitioners under
Order XXII Rule 3 of the Code of Civil Procedure for being substituted as heirs and legal representatives of the mutwalli in the proceeding pending
before the tribunal, on the death of the erstwhile mutwalli, was rejected.
Learned counsel appearing for the petitioners submits that it was well within the jurisdiction of the tribunal to invoke powers, both under Order XXII
Rule 3 as well as Order XXII Rule 10 of the Code of Civil Procedure, for the purpose of allowing such application, thereby permitting the petitioners
to continue the proceedings in place of the deceased mutwalli.
Learned counsel appearing for the petitioners places specific reliance on sub-sections (5) and (6) of Section 83 of the Waqf Act, 1995 (for short
“the 1995 Actâ€) as well as Rule 27 of the Waqf Rules, 2001 to highlight such contention. It is further argued that, as per the Tailtnama itself, it
was the will of the waqif for the mutwalliship to devolve, on the demise of the mutwalli, on the waqif’s male descendants. As such, despite having
ample power in law, the tribunal refused to exercise jurisdiction vested in it by law in rejecting the petitioners’ application, thereby causing abuse
of the process of law.
Learned counsel appearing for the Board of Auqaf indicates that permitting the revisionist-petitioners to be substituted would tantamount to reversal of
a resolution passed by the Board of Waqf, which is under challenge in the main proceeding before the tribunal itself.
That apart, it is contended that it was beyond the scope of the tribunal’s powers to permit all heirs of the erstwhile mutwalli to continue the
prosecution of the proceeding, after the demise of such mutwalli .
Learned counsel appearing for the opposite party nos. 4 to 7 contends, also by placing reliance on sub-sections (5) and (6), along with sub-section (2)
of Section 83 of the 1995 Act, that the tribunal has the powers as conferred under the Code of Civil Procedure, only while trying a suit, or executing a
decree or order and not while adjudicating a proceeding under Section 83 of the 1995 Act.
That apart, the specific power of appointment of mutwalli is vested in the Board of Waqf as per the 1995 Act itself and it was beyond the jurisdiction
of the tribunal to do so.
By placing reliance on the judgment of Ramesh Gobindram (Dead) Through LRs. Vs. Sugra Humayun Mirza Wakf, reported at (2010) 8 SCC 726, it
is contended that disputes covered by special statutes, as for example, eviction suits under local Rent Control Laws, were excluded from the purview
of cases where the tribunal could exercise jurisdiction under the aegis of the 1995 Act.
It is further contended that the Supreme Court specifically held in the said report that the tribunal cannot function as a civil court, although certain
powers under the Code of Civil Procedure have been vested in the tribunal.
By placing reliance on Kalabharati Advertising vs. Hemant Vimalnath Narichania and others, reported at (2010) 9 SCC 437, learned counsel lays
stress on the proposition that, in the absence of any specific provision for review, the tribunal rightly decided that it does not have such power, since
there is no provision in the 1995 Act conferring such power of review on the tribunal.
By placing reliance on a co-ordinate Bench judgment of this court, reported at (2019) 5 CHN 439 [Rajdeep Laha and others vs. State of West Bengal
and others], learned counsel further contends that the authority of the tribunals is restricted to the parameters of the specific provisions conferring
authority upon them in the 1995 Act and cannot exceed the scope of such provisions.
By handing over a copy of the Tailtnama, learned counsel appearing for the opposite party nos. 4 to 7 argues that the said Tailtnama specifically
reflected the waqif’s intention that the restriction regarding transfer was only confined to the generation immediately succeeding the waqif and
bound only the first mutwalli. However, in view of a subsequent Board resolution, the present petitioners did not have any right of mutwalliship in the
property-in-dispute.
Learned counsel next places reliance on the judgment of Aliyathammuda Beethathebiyyappura Pookoya and another vs. Pattakal Cheriyakoya and
others, reported at (2019) 16 SCC 1, wherein it was laid down that a person claiming customary right of hereditary succession to the office of
mutawalli would have to show that the waqif intended for the office to devolve through a practice of hereditary succession. In the absence of any
express directions in the waqfnama to this effect, the claimant would have to show that such practice has been in existence throughout the history of
the trust, and not merely for a few generations, such that the waqif’s intention that the office should be hereditary can be presumed. It was further
held in the said report that, while no person can claim office of the mutawalli merely by virtue of being an heir of the waqif or the original mutawalli, if
they can show through a long-established usage or custom that the founder intended that the said office should devolve through hereditary succession,
such usage or custom should be followed. Additionally, the Supreme Court held, the practice would have to comply with the requirements which are
generally applicable while approving a custom, that is, it must be specifically pleaded and should be ancient, certain, invariable, not opposed to public
policy and must be proved through clear and unambiguous evidence. In the absence of such elements being present in the instance case, learned
counsel argues that the conclusion of the tribunal was legally valid.
Learned counsel for opposite party nos. 4 to 7 next places reliance on Syeda Nazira Khatoon (Dead) by Legal Representative vs. Syed Zahiruddin
Ahmed Baghdadi and others, reported at (2019) 9 SCC 522, where the Supreme Court held that the role of a mutwalli is to act in a managerial
capacity for the waqf and that, as regards his power to transfer his office to another person, he cannot undertake such a transfer, unless such a power
is expressly given to him by the wakif in the wakf deed.
Next citing Syed Zahiruddin Ahmed Bagdabi vs. Board of Wakfs and others, reported at (2009) 1 Cal CLJ 265, learned counsel for the opposite party
nos.4 to 7 stresses that the Board of Auqaf has the exclusive power to decide in respect of appointment of mutwallis. As such, in view of the
existence of a previous resolution of the Board, the substitution application, if allowed, would amount to allowing the main matter itself, which is not
permissible in law.
Next citing Faqruddin (Dead) through LRs vs. Tajuddin (Dead) through LRs,, reported at (2008) 8 SCC 12, learned counsel submits that the
expression “Wakf†would mean taking out something out of one’s ownership and passing it on to God’s ownership, dedicating its usufruct,
without regard to indigence or affluence, perpetually and with the intention of obtaining Divine pleasure, for persons and individuals, or for institutions
or mosques and graveyards, or for other charitable purposes. It was further clarified that it was beyond any doubt or dispute that a mutwalli is a
temporal head and the manager of the property.
In view of such proposition having been categorically laid down by the Apex Court of the country, learned counsel submits that the impugned order
was perfectly justified in law.
At this juncture, learned counsel for the Board places reliance on the judgment reported at AIR 1978 Calcutta 133 [Mst. Zohra Khatoon vs. Janab
Mohammad Jane Alam & Ors.] to impress upon this court that the right to sue, in respect of a mutwalli, is confined to the office of the mutwalliship
and cannot extend to the property belonging to the Waqf Estate.
Learned counsel further cites State of Punjab and others vs. Gurdev Singh, reported at (1991) 4 SCC 1, in support of the proposition that the words
“right to sue†ordinarily mean the right to seek relief by means of legal proceedings. Generally, it was held, the right to sue accrues only when the
cause of action arises, that is, the right to prosecute to obtain relief by legal means accrues.
It is further sought to be pointed out that the right to sue in the instant case terminated with the demise of the erstwhile mutwalli . For such purpose,
learned counsel for the Board places reliance on the contents of paragraph nos.19 and 21 of O.A. No.31 of 2018, which is the original challenge
before the tribunal preferred by the revisionist-petitioners, to submit that it was specifically contended therein that the resolution dated March 13, 2018,
taken in the Board meeting held on April 26, 2018 and impugned in the O.A., was without considering that the applicant was the sole surviving
mutwalli of the Waqf Estate as per the condition of the Tailtnama. No one has any right to appoint respondent no.4 to 7 as mutwalli of the Waqf
Estate and the same had been done on some extraneous grounds. It was further pleaded in paragraph no.21 of the said original application that the
enquiry was done ex-parte, illegally and without informing and/or giving notice to the other legal heirs of the mutwalli and surviving mutwalli. The
entire process, it was alleged, was manipulated by respondent nos.4 to 7 and it has been done without disposing of the representation of the mutwallis.
It is relevant to mention that the respondent nos. 4 to 7 referred to in the said paragraphs are the present mutwallis appointed by the Board, being
opposite party nos.4 to 7 in the present revisional application.
It is also argued, in tune with the averments made in the substitution application before the tribunal, that the revisionist-petitioners stake a claim for
substitution in the proceeding on the premise that a Mohammedan has died and his heirs and legal representatives are to be substituted.
Such premise, it is contended, is de hors the law, particularly in view of the cited reports, since the survival of right to sue is restricted to the office of
the mutwalli and not to the property of a Mohammedan, as sought to be projected by the petitioners before the tribunal.
Learned counsel appearing for the petitioners, in his final reply, reiterates his submissions as made originally and points out that no written objection
was filed to the substitution application by the Board of Waqf, although the opposite party nos.4 to 7 did file such a written objection.
Upon considering the submissions of the parties, what acquires utmost relevance is the scope of the function of the Waqf Tribunal, as delineated in
Section 83 of the 1995 Act.
Sub-sections (5) and (6) thereof clearly stipulate that the tribunal shall be deemed to be a civil court and shall have the same powers as may be
exercised by a civil court under the Code of Civil Procedure while trying a suit, or executing a decree or order. Sub-section (5), read in conjunction
with sub-section (6), which stipulates that notwithstanding anything contained in the Code of Civil Procedure, the tribunal shall follow such procedure
as may be prescribed, the tribunal, in the present case, acted patently without jurisdiction in coming to the finding that it did not have the power of
review or substitution.
Meaningfully read, sub-section (5) permits only one interpretation, which is that the phrase “while trying a suit, or executing a decree or orderâ€
qualifies the powers to be exercised by a civil court while taking up such matters under the Code of Civil Procedure.
In other words, the tribunal, while adjudicating any proceeding before it, shall be deemed to be vested with the powers of a civil court. To further
elucidate the scope of functioning of the tribunal, sub-section (5) further provides that the Tribunal shall have the same powers as may be exercised by
a civil court under the Code of Civil Procedure while trying a suit, or executing a decree or order.
As such, the expression “suit or executing a decree or order†in sub-section (5) does not qualify the restrictions upon the tribunal while
adjudicating such matters alone but merely elaborate the functions exercised by a civil court while taking up suits or executing proceedings, to define
the parameters of the tribunal’s jurisdiction in any adjudication under Section 83 of the 1995 Act.
That apart, sub-section (2) of Section 83 clearly enumerates that not only any mutwalli but “any person interested in a waqf or any other person
aggrieved by an order made under this Act or Rules†may make an application under the said provision subject to the further restrictions in the said
sub-section.
The conjunction “or†between “person interested in a waqf†and “any other person aggrieved by an order†is disjunctive and segregates
as different entities, persons who are aggrieved by the order and persons, even if not so aggrieved, are interested in a waqf.
That apart, in the instant case, since the revisionist-petitioners claim a direct interest in the office of mutwalliship, not the property of the waqf estate,
as such, even going by their substitution application, they are not only persons interested in a waqf but are also aggrieved by the order of appointment
of opposite party nos. 4 to 7 by the Board, thus, conferring locus standi on the revisionist-petitioners to join in the proceedings before the tribunal under
Section 83 of the 1995 Act.
The copy of the Tailtnama, handed over to the court by learned counsel for the opposite party nos.4 to 7 in his usual fairness, categorically indicates
that if a mutwalli was to be appointed, the three principal mutwallis could only do so. Such power, however, is restricted to the appointment being
confined to the sons and grand-sons of the waqif.
The categoric expressions “sons and grand-sons†clearly restricts the devolution of the office of the mutwalli only to the male lineal descendents
of the original waqif and cannot be given a different or broader interpretation either by the Board or the tribunal or any other authority in law.
As such, even in the absence of any pleading of some other right, at least, the male lineal descendants of the waqif among the revisionist-petitioners
were entitled to mutwalliship as per the provisions of the Waqf Deed itself.
In view of the observations made above, the petitioner nos.2 to 5, at least prima facie, have a right to sue and, on the demise of the erstwhile mutwalli ,
the right to sue must be deemed to have survived on them, at least for the purpose of their impleadment in place of the deceased mutwalli in O.A.
No.31 of 2018.
In such view of the matter, CO No.3197 of 2019 is partially allowed, thereby setting aside the impugned order of the tribunal and directing substitution
of the present revisionist-petitioner nos.2, 3, 4 and 5 (all male lineal descendants of the waqif) as substituted petitioners in O.A. No.31 of 2018 in place
and stead of the deceased erstwhile mutwalli.
Necessary consequential corrections shall be effected by the Waqf Tribunal or its concerned department to that effect at the earliest upon
communication of this order to the Tribunal. The Tribunal shall then proceed at the behest of the substituted petitioner nos.2 to 5 to decide the said
original application on its own merits in accordance with law.
It is, however, made clear that the observations made herein are tentative, only arrived at for the limited purpose of deciding the present revisional
application and the veracity of the impugned order rejecting the petitioners’ application for substitution.
The tribunal shall not be influenced in any manner whatsoever while deciding the O.A. No.31 of 2018 or other interlocutory appellation(s) therein, by
any of such observations on merits.
There will be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.