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Judgment
Impleadment application allowed.
Raees-ur-Rahman is impleaded as respondent No. 6.
Heard Shri W.H. Khan, learned Senior Advocate assisted by Shri J.H. Khan, for the petitioners Shri M.A. Qadeer assisted by Shri Shamim Ahmad has been heard on behalf of respondent No. 6 and Shri M.A. Siddiqui has been heard for respondent Nos. 1 to 3.
By this writ petition petitioners have prayed for quashing the Office Memorandum dated 27/6/2009, Annexures 1 and 2 to the writ petition by which order one member of the Board Shri Z.A. Farooqui has stayed the earlier order dated 20/5/2009 passed by the Board and issued notices to both the parties to appear on 18/7/2009.
Brief facts necessary for deciding the writ petition are:
Waqf Dargah Hazrat Qutub Sher is a public waqf being waqf No. 271 situate at District Saharanpur. A seven member Committee with respondent No. 5 as President and one Zahoor Ahmad as Secretary was appointed in July, 2007. The term of the said committee came to an end on 17/7/2008. Before expiry of the term, Zahoor Ahmad, Secretary had already died. Complaints were filed against the Committee of the respondent No. 5 by one Tanzeem Qureshi, the petitioners and some other members. Notice was issued by the Board asking the respondent and other persons to appear before the Chairman of the Board. Chairman of the Board heard the respondent No. 5 and other persons and decided not to extend the term of the earlier Committee and appointed a ten member committee with petitioner no 2 as its president vide order dated 20/5/2009. An application dated 24/6/2009 was filed by the respondent No. 5 and certain other members of the earlier committee praying for recall of the order dated 20/5/2009. The said application was addressed to the Chairman/CEO of the Board. The application dated 24/6/2009 was taken cognizance of and an order dated 27/6/2009 was passed by one member of the Board, Z.A. Farooki staying the earlier order of the Board dated 20/5/2009 and issuing notice to the concerned parties to appear on 18/7/2009. It was observed in the order that Chairman has sent the file to the Member Shri Z.A. Farooki for hearing and judgment. The writ petition has been filed by the petitioners which was the committee appointed on 20/5/2009 challenging the order dated 27/5/2009.
Shri W.H. Khan, learned Senior Counsel, appearing for the petitioners contended that the order dated 20/5/2009 was passed by the Chairman of the Board after hearing the respondent No. 5 and other concerned parties. The application dated 27/6/2009, is virtually a review application which was not maintainable. He submits that the Board has no power to review its judgment. Reliance has been placed on the judgment of the Division Bench reported in 2008 (6) ADJ 765, Ali Makin Naqvi, Etc. v. U.P. Shiya Central Board of Wakf and Ors. It is further submitted by Shri W.H. Khan, learned Counsel for the petitioners that the Chairman had full jurisdiction to decide the matter. There being no material on record that in fact the waqf was having an income of more than Rs. 1 lakh per anum and further no such objection was raised before the Chairman. He lastly submitted that the member who has passed the order dated 27/6/2009 had no jurisdiction since the matter if could have been heard on the application submitted by the respondents, the same could have been heard only by the Chairman of the Board who had passed the earlier order dated 20/5/2009, and the matter could not have been assigned to the respondent No. 4.
Shri M.A. Qadeer, learned Senior Counsel appearing for the respondent No. 5 submitted that the order passed by the respondent No. 4 on 27/6/2009 is perfectly justified. He submits that the Chairman of the Board had no jurisdiction to pass the order dated 20/5/2009, since the income of the waqf was more than one lakh and by resolution of the Board dated 18/8/2007, the power to decide the dispute regarding mutwalli of a waqf whose income is more than 1 lakh has been delegated by the Board to three members including the respondent No. 4. He submits that the Chairman had no jurisdiction to pass the order dated 20/5/2009, since he is not authorised to decide the case of waqf having an income of more than Rs. One lakh. He submits that the order dated 20/5/2009, was passed without jurisdiction and could have very well be recalled by the respondent No. 4. He has also placed reliance on a judgment of the Supreme Court reported in 1987 EFR, Pandurang and Ors v. State of Maharashtra, 89 for the proposition that the order passed by a forum which lacks competence to decide the subject matter is non-existent in the eyes of law. Learned Counsel for the respondent No. 6 has referred to the reports dated 26/5/2009 and 24/6/2009 filed by the petitioners along with their impleadment application. Shri M.A. Siddiqui, Advocate appearing for the Board has adopted the submission made by Shri Qadeer and supported the order impugned.
We have heard learned Counsel for the parties and have perused the record.
The first submission of the learned Counsel for the petitioners is that the application dated 24/6/2009 is an application for review and was not maintainable in view of the Division Bench judgment in Ali Makin Naqvi''s case (supra). The Division Bench judgment in Ali Makin Naqvi''s case (supra) has laid down that there is no power of review conferred on the Board. Following was laid down in paragraphs 32 and 33 of the said judgment:
It cannot be disputed that the impugned order has been passed by a quasi judicial authority and such authority cannot review its order in absence of power of Review conferred under the Statute.
The power of review of quasi judicial authority in absence of specific provision under the statute has been dealt with in several cases of this Court as well as by the Apex Court. The Apex Court in the case of Dr (Smt.) Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Others, , has held that unless power of Review is expressly conferred on the authority by any statute under which it derives its'' jurisdiction, the authority concerned has no power to Review its'' earlier order. In Para-11 of the aforesaid judgment following observations has been made:
A quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi-judicial authority. The provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice-Chancellor. In the circumstances, it must be held that the Vice-Chancellor acted wholly without jurisdiction in reviewing, his her earlier order. The review order of the Vice-Chancellor was, therefore, a nullity.
There cannot be any dispute to the proposition as laid down by the Division Bench in Ali Makin Naqvi''s case (supra). No review application can be entertained for review of the judgment on merits. However, the above proposition has certain exceptions. One of the exception to the above proposition is that the recall of an order passed without jurisdiction i.e. inherent lack of jurisdiction makes the order passed by an authority nullity. The power exercised by Chairman while passing the order dated 29/5/2009 was a power of the Board which has been delegated to the Chairman and Members u/s 27 of the Wakf Act, 1995. According the resolution dated 18/08/2007, brought on record, members have been allocated different jurisdictions division wise. According to the decision taken by the resolution under Item 10, jurisdiction to take decision on a wakf whose income is more than one lakh per annum was given to three members namely; Hamza Hasni, Zafar Farooki and Mahboob Ahmad. Thus, for a wakf whose income is more than one lakh, the dispute pertaining to mutwalli is to be decided by the above three members who have been allocated the file by the Chairman. It is fundamental principle that inherent lack of jurisdiction cannot be cured in anyway neither by consent nor by acquiescence of the parties. If a party appears before a Tribunal and does not raise objection to its jurisdiction, still the Tribunal shall not be possessed with the jurisdiction which it does not have. Thus, the application filed by the respondents to the effect that the order dated 29/5/2009 was passed without jurisdiction could have been entertained because the statutory authority i.e. Tribunal is vested with power to cure jurisdictional error. It is true that the Tribunal cannot review its judgment on merit but the jurisdictional error can always be cured. The submission of the learned Counsel for the petitioners that no grounds regarding lack of jurisdiction has been taken in the application is not correct. The application, specifically in paragraphs 4 and 5 mentions about lack of jurisdiction. Thus, the application dated 24/6/2009 is maintainable only in so far as it challenges the order on the ground of lack of jurisdiction. The submission which needs to be considered is as to whether the respondent who is one of the member who has been delegated the power to decide the cases of wakf of having more than income of 1 lakh per annum had jurisdiction to pass the order staying the order dated 20/5/2009. The question that whether the income of wakf is more than 1 lakh per annum or not is a question which goes to the very root of the matter and is a determining factor for jurisdiction. Normally, the cases are to be decided by the members who have been allocated different divisions. It is not denied that the Chairman of the Board was authorised to decide the cases of Saharanpur at the relevant time.
From the reports which have been now brought on record by the petitioners indicates that the said reports were called and submitted after passing of the order dated 20/5/2009. In the subsequent report dated 24/6/2009, it has been noticed that in the file there is no such report that the income of the wakf is more than one lakh per annum. Thus, the first issue to be gone into is regarding the income of the wakf. The order dated 20/5/2009, was passed by the Chairman and it is clear that in case the income of the wakf was not more than Rs. one lakh per annum, the jurisdiction is vested in the Chairman.
Normally, the said issue should be raised at the time when the matter is taken up for consideration. The application has been filed on 24/6/2009, before the Chairman and the Chairman whose earlier jurisdiction dated 20/5/2009 has been challenged was the authority who would have examined the issue. The question of jurisdiction is to be decided by the authority before whom the jurisdictional issue is raised. When the Chairman had passed the earlier order dated 20/5/2009, the Chairman alone could have decided as to whether his earlier order dated 20/5/2009 lacked jurisdiction or not. Without determining the said issue sending the file to respondent No. 4 is nothing but virtually accepting the application of the respondent No. 5 without adjudication or determination of the issue of jurisdiction. The application which was addressed to the Chairman was required to be considered by the Chairman himself and he could have assigned the file to one of the Members who was delegated the powers to decide the cases of Waqf having an income of more than 1 lakh per annum only when he had found that the earlier order passed on 20/5/2009 was without jurisdiction.
In view of the aforesaid, we are of the view that the order passed by the respondent No. 4 on 27/6/2009 staying the earlier order dated 29/5/2009 deserves to be set-aside.
In the result, writ petition is allowed. Orders dated 27/6/2009, Annexures- 1 and 2 are hereby set-aside. The Chairman may proceed to decide the application submitted by the respondent No. 5 on 24/6/2009, Annexure-5, and pass appropriate orders in accordance with law.
Parties shall bear their own costs.