IBRAHIMSAB Vs. KASHIMSHA

JUDGEMENT

(1.) THE petitioners in these two petitions are assailing the correctness of the order dated 26.3.2004 bearing No.KWT:BAG:SR;9A/02 passed by the Presiding Officer, Karnataka Wakf Tribunal, Belgaum, dismissing the revision petition and confirming the order dated 21.6.1997 passed in LCC No.2/88, on the file of the Law Committee of Karnataka Board of Wakfs, Bangalore.

(2.) LEARNED counsel appearing for first respondent in C.R.P.No.730/2004 had filed an application under section 151 of CPC on 29.10.2003 before the Karnataka Wakf Tribunal, Belgaum Division, Belgaum-4th respondent herein to reject the appeal as not tenable in law. The said application has been filed by first respondent at the stage when the matter is posted before the 4th respondent for hearing IAs I and II i.e. an application filed u/o 41 Rule 10 read with section 83 of the Wakf Act 1995 for staying the operation of the order dated 21.6.1997 bearing No.LCC 2/1988 by the Law Committee of the Karnataka Wakf Board (i.e. IA No.I) and another application filed under section 5 of the Indian Limitation Act read with section 95 of the Wakf Act to condone the delay in filing the said appeal (i.e. IA No.II).

(3.) AFTER careful perusal of the impugned orders passed by the 4th respondent-Tribunal, I do not find any error of law, much less material irregularity as such committed by the Tribunal in dismissing the appeal and the revision filed by petitioners as not maintainable against the order dated 21.1.1997 passed by the Law Committee of the Karnataka Board of Wakfs, Bangalore. Further, it emerges that, against the order passed by the Law Committee of the Karnataka Board of Wakfs Bangalore, dated 26.1.1997, an appeal under section 83 will have to be filed within three years from the date of the order if the proceeding is filed in the nature of the application. The nomenclature used is appeal under section 83 of the Wakf Act, whereas, the said order is appelable under section 83 of the Wakf Act, 1995. The right of appeal is a statutory right, unless an appeal is provided under the Act, it cannot be entertained as an appeal. The 4th respondent-Tribunal has observed that, since the order passed by the Law Committee on 21.6.1997 in No. LCC 2/1988 has only recognized the first respondent"s right to continue as Mutawalli as per the order passed by the Board dated 31.1.1976 and the order is not with regard to appointment of Mutawalli or removal of Mutalli under section 63 and 64 of the Wakf Act, 1995 which sections deal with the power of the Board to appoint Mutawalli in certain cases and with regard to removal of Mutawalli and the challenge made against the order of the Law Committee does not fall under any of the two sections as referred above. Further, it is specifically opined by the 4th respondent-Tribunal that the order of the Law Committee refers to hereditary Mutawalliship of first respondent which comes under sections 63 and 69 of the Act, which states that, as and when there is vacancy in the office of the Mutawalli of the Wakf and there is no one to be appointed under the terms of the deed of the Wakf etc., the Board may appoint any person to act as Mutawalli for such period and on such conditions as it may think fit and while the Board frames a scheme for administration of wakf, the scheme framed under section 69(1) may provide for removal of the Mutawalli of the Wakf holding office as such etc., provided that where any such scheme provides for the removal of any hereditary Mutawalli, the scheme shall also provide for the appointment of the person next in hereditary succession to the Mutawalli so removed as one of the members of the Committee appointed for the proper administration of the wakf and the order under section 69 above referred can be challenged by the aggrieved person by filing an appeal before the Tribunal within 60 days from the date of the order and there is no appeal prescribed under section 63 of the Wakf Act, 1995. The Tribunal after critical evaluation of the relevant materials available on file and with reference to the statutory provisions of the Karnataka Wakf Act and by assigning valid reasons has rejected the appeal and revision filed by petitioners. Therefore, I do not find any justification or good grounds as such made out by petitioners to entertain the instant Civil Revision petitions.