Gujarat State Wakf Board vs Saiyed Mohamadraza Nasiruddin

A.J.Desai, J

By way of the present appeal under clause 15 of the Letters Patent, the appellant â€" Gujarat State Wakf Board has challenged an judgement and

order dated 24/06/2021 passed by learned Single Judge in Civil Application (for joining party) No.1 of 2020 in Special Civil Application No.22761 of

2019.

We have heard Mr.MTM Hakim, learned advocate with Mr.Manish Shah, learned advocate appearing for the appellant; Mr.Paritosh Gupta,

learned advocate for Gupta Law Associates appearing respondent No.1, who has filed caveat in this matter as well as Mr.Bhargav Pandya, learned

Assistant Government Pleader appearing for respondent Nos.2 & 3.

Short facts, emerge from the record, are as under:

A writ petition under Article 226 of the Constitution of India, came to be filed by the present respondent being Special Civil Application No.22761 of

2019, by which, an order dated 13/11/2019 passed by the District Collector, Ahmedabad refusing to convert the land for non-agricultural purposes, as

provided under Section 65 of the Bombay Land Revenue Code, came to be rejected.

During the pendency of the said petition, an application was filed by the present appellant to join “Gujarat State Wakf Board†as party respondent,

claiming that the property belongs to the Wakf. Learned Single Judge, after hearing the parties, rejected the said application. Hence, this appeal.

Mr.MTM Hakim, learned advocate appearing for the appellant would submit that the property belongs to the Waqf and therefore, if the board is not

joined as a party in any proceedings, in any application made to the court/ authority, it is expected to join the party being a necessary party in the

proceedings with regard to Waqf property. In support of his submissions, he has taken us through the provisions of Section 90 and Section 92 of The

Waqf Act, 1995 (hereinafter referred to as “the Actâ€). After taking us through the order impugned in the present appeal; order passed by this

Court on 15/07/2019 in other proceedings with regard to property in question in Special Civil Application No.17693 of 2018; the order of the District

Collector challenged by the petitioner, he would submit that it is an undisputed fact that the property in question is shown as property belongs to Waqf

in the PTR maintained by the board itself. He would submit that an application dated 07/02/2018 was made by the trustee and requested the Wakf

board to comply with the judgement and decree dated 18/04/1998 passed by learned 3rd Extra Assistant Judge, Ahmedabad Rural in Civil Misc.

Application No.140 of 1981 and other allied matters, under the provisions of the Bombay Public Trust Act and only at that time, Board came to know

about such decree. He would submit that The Waqf Act came to be implemented from 01/01/1996 and therefore, board was required to be made

party in the proceedings of those civil proceedings, which came to be decided by the competent civil court in the year 1998. He would submit that

respondent-original petitioner is seeking conversion of the property, which belongs to the Wakf and therefore, learned Single Judge ought to have

accepted the application. He, therefor, would submit that the impugned order may be quashed and set aside and further order accordingly may be

passed.

On the other hand, Mr.Paritosh Gupta, learned advocate appearing for respondent No.1 has vehemently opposed this appeal and would submit that

by deciding the proceedings, learned 3rd Extra Assistance Judge by judgement and decree dated 18/04/1998 has clearly held that the property in

question is not of a Wakf or Dargah or Public Trust property and therefore, the orders passed by the learned Deputy Commissioner and Joint Charity

Commissioner were quashed and set aside. This Judgement has become final and therefore, there is no question of accepting the plea put forward by

the appellant that the property is a Waqf property and therefore Board is required to be joined. He would submit that PTR is maintained by the board

itself and name is deliberately not deleted from the PTR though there is a declaration by the court about title of the property. He would submit that as

per sub-section

(3) of Section 90 of the Act, the board could have requested the competent civil court for appropriate relief including declaration with regard to the

title of the property in question. However, till date, no such application has been filed by the board before any court. He would further submit that even

in the year 2018, when one of the trustees requested the board to implement the judgement and decree passed by the competent civil court, till date, no

application under section 90(3) of the Act has been filed though the limitation as amended in the year 2013, is of six months. Therefore, he would

submit that the appeal may be dismissed.

We have heard learned advocates appearing for the respective parties. Property in question is with regard to Survey No.776 situated at Village:

Vatva of city of Ahmedabad. The proceedings with regard to title of several properties, proceedings in the nature of Civil Misc. Application No.140 of

1981 and allied matters, came to be decided by learned 3rd Extra Assistant Judge, Ahmedabad Rural and ultimately it was held that several properties

including survey no.776 i.e. property in question does not belongs to Wakf. It has been specifically held in para- 18 of the judgement and decree dated

18/04/1998 as under:

“Moreover, it is held that the S.Nos.748, 750, 776, 855, 856, 857, 917, 1553 and 1554 are not public trust properties but they are

private properties, and they are not of Wakf or Dargah or public trust, and so the orders of the Deputy Commissioner and Joint Charity

Commissioner are hereby set aside in that respect.â€​

It is pertinent to note that this judgement has become final since none of the parties to that proceedings nor the Board has challenged the findings.

Sections 90 and 92 of the Act read as under:

Notice of suits, etc., by courts.â€

(1) In every suit or proceeding relating to a title to or possession of a waqf property or the right of a mutawalli or beneficiary, the court or

Tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding.

(2) Whenever any waqf property is notified for sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates

or taxes due to the Government or any local authority, notice shall be given to the Board by the court, Collector or other person under

whose order the sale is notified.

(3) In the absence of a notice under sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the

Board, within one month of its coming to know of such suit or proceeding, applies to the court in this behalf.

(4) In the absence of a notice under sub-section (2), the sale shall be declared void, if the Board, within one month of its coming to know of

the sale, applies in this behalf to the court or other authority under whose order the sale was held.

Board to be party to suit or proceeding.â€" In any suit or proceeding in respect of a waqf or any waqf property the Board may appear

and plead as a party to the suit or proceeding.

If we accept the case that Waqf Act came into existence from 01/01/1996 and proceedings have been decided in the year 1998, the board is

required to be issued Notice. However, as per sub-section (3) of section 90, board itself is suppose to file an application for appropriate declaration

within a period of six months, which was earlier one month. It is pertinent to note that the board has not filed such application and has rightly been

observed by the learned Single Judge about this aspect in the impugned order. Even after 2018, when the board came to know about the proceedings

of 1998, till date, no application has been filed by the board for appropriate declaration. It is also pertinent to note that PTR is maintained by the board

itself and under the board’s control, to treat the property as Wakf property or not, and when the original petitioner requested to do the needful, the

board has not acted till date as provided u/s. 90(3) of the Act.

Considering the above aspects, We do not find any reason to interfere with the order passed by learned Single Judge. Hence, the present appeal is

hereby rejected.

In view of dismissal of the main appeal, no order in Civil Application No.1 of 2021 and the same is also accordingly disposed of.