Mohammad Hussein vs Union of India and Others

N. Kumar J.

This writ petition is filed for declaration that the proviso to sub-section (4) of Section 33 of the Wakf Act is unconstitutional and for a writ or an order or direction quashing the order dated 02.04.2012 passed by the Wakf Tribunal, Belgaum Division, Belgaum and for quashing of the order u/s 12(3) of the Karnataka Lokayukta Act and for other consequential reliefs. The petitioner preferred an application u/s 83(2) of the Wakf Act, 1995 [for short ''the Act''] before the Karnataka Wakf Tribunal, Belgaum Division, Belgaum. As the said application was not filed within the time prescribed under the law, an application was filed u/s 5 of the Limitation Act for condoning the delay. The said application was opposed by the Wakf Board.

The learned member of the Tribunal, who heard the application for condonation of delay, was of the view that there is an inordinate delay of more than 9 years 2 months in preferring the application. Further, the proviso to Section 33(4) of the Act provides that no such appeal shall be entertained by the Tribunal, unless the appellant deposits with the Chief Executive Officer, the amount which has been determined under sub-section (3) of Section 33 of the Act in Form No. 58. Admittedly, the petitioner has not deposited the said amount. Therefore, he has no right at all to obtain a gate pass for entering into the Tribunal i.e., for registration of the appeal, without depositing the disputed amount. The registration of the appeal itself is ab initio improper and moreover, he has utterly failed to substantiate his version for condonation of delay in preferring the appeal. Therefore, he held that the delay is not properly explained and dismissed the application.

Aggrieved by the said order, the present writ petition is filed.

Insofar as the contention that the proviso to sub-section (4) of Section 33 is arbitrary and ultra vires of Constitution, reliance is placed on the judgment of the Apex Court in the case of Mardia Chemicals Ltd. Vs. Union of India (UOI) and Others Etc. Etc., where at para 64, the Apex Court has held with reference to sub-section (2) of Section 17 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (54 of 2002) as under:-

...on the grounds that (i) it is imposed while approaching the adjudicating authority of the first instance, not an appeal (ii) there is no determination of the amount due as yet (iii) the secured assets or its management with transferable interest is already taken over and under control of the secured creditor (iv) no special reasons for double security in respect of an amount yet to be determined and settled (v) 75% of the amount claimed by no means would be a meagre amount (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand. Such conditions are not alone onerous and oppressive but also reasonable and arbitrary....

As is clear from the afore-said judgment, a condition imposed while approaching the adjudicating authority of the first instance and not in appeal, is held to be unreasonable. In the instant case, sub-section (3) of Section 33 of the Act provides for issue of a show-cause notice, a reply, then the adjudication of the claim and passing of an order. It is only when the order which is passed under sub-section 3 of Section 33 is challenged by filing an application under Sub-section (4) of Section 33 of the Act, this condition is imposed. Therefore, the said judgment has no application. On the contrary, the said judgment makes it clear, if such a condition is imposed in appeal, it is not arbitrary. Therefore, it cannot be said that the said proviso is arbitrary and it has to be struck down as unreasonable and unconstitutional in the light of the afore-said judgment.

What is challenged is a demand of a sum of Rs. 6.9 lakhs. It is done after a period of 9 years and 2 months. The Tribunal on consideration of the reasons given in the affidavit in support of the application was not satisfied and in its view, it does not constitute sufficient cause. As the Tribunal has come to the conclusion on the basis of the material on record and as there is no perversity in the said order, we do not see any good ground to interfere with the said discretionary order, especially keeping in view that the application is filed after a period of 9 years 2 months. Therefore, we do not see any merit in this writ petition. Accordingly, it is dismissed.