ASADUR RAHMAN Vs. LUTFA ISLAM

JUDGEMENT

(1.) THIS revision under Article 227 of the Constitution is directed against the judgment and order dated 3.12.2008 passed by the Wakf Tribunal in Wakf Appeal No. 2 of 2008 setting aside the appointment of the petitioner as the joint mutawalli.

(2.) THE facts giving rise to this revision, as pleaded by the petitioner, may briefly be noted at the outset. THE late Haji Kasimuddin Mollah had executed a deed of Wakf on 5.2.1930 making his landed property named Rockwood Cottage complex at Mahatma Gandhi Road, Shillong and his other properties located at Janai, Hooghly District, West Bengal as wakf estates on certain terms and conditions. In accordance with the terms and condition of the deed, the father of the petitioner, namely, late Md. Rownaq Ali had become the joint mutawalli jointly with the late Jb. Aulad Hussain in the year 1977 after the death of his mother the late Rafatan Nessa. His father died on 19.3.1997 thereby rendering one of the joint mutawalliship vacant. THE petitioner then filed the application dated 30.5.2001 to the Meghalaya Wakf Board, Shillong ("the Board") for appointing him as one of the joint mutawallis by virtue of his being his only son in accordance with the stipulation in the deed of wakf. THE Meghalaya Wakf Board rejected his application which prompted him to file appeal being Wakf Appeal No. 1 of 2001 before the Wakf Tribunal, which ultimately disposed of the appeal by the order dated 23.2.2005 by directing the Board to consider his case for the appointment as joint mutawalli in accordance with the wakf deed. THE Board, however, vide their petition dated 12.9.2.....(sic) disclosed before the Tribunal that they could not dispose of the application of the petitioner as the matter was sub-judice before the Calcutta High Court. In the meantime, on receipt of the judgment and order dated 23.2.2005, the Board constituted a Sub-Committee under the Chairmanship of Janab Sayeedullah Nongrum, which after hearing the parties recommended the petitioner for his appointment as joint mutawalli in place of his father, the late Md. Rownaq Ali in accordance with the terms and conditions of the wakf deed. It would appear that the respondent No. 2 had made some allegations against the petitioner with a view to malign him, but these allegations were not entertained by the Sub-Committee as being unsubstantiated. However, the Board for further evaluation of the enquiry report of the said Sub-Committee constituted another Sub-Committee under the Chairmanship of Jb. C.Z. Ghafoor, Chairman of the Board and this second Sub-Committee also accepted the report/recommendation of the first Sub-Committee.

(3.) EVEN a cursory look at the various provisions of Section 83 extracted above will indicate that there is, with the possible exception of Section 64(4), no remedy of appeal against the determination by the Board of Wakf of any dispute, question or other matter relating to a wakf or wakf property under the Act. There can be no dispute that appointment or removal of a joint mutawalli is one of the functions and powers of the Board of Wakf as evident from sub-clause (g) of Section 32(2) of the Act. Therefore, the appointment or removal of a joint mutawalli will constitute an order made under the Act. Consequently, any person aggrieved by such an order can certainly file an application under Section 83 (2) of the Act before the Tribunal, which has the power to decide such a dispute. In approaching the Tribunal, the respondent No. 1 was filing an application/appeal under Section 83(2) of the Act. In my opinion, the learned counsel for the petitioner was apparently swayed by the use of the nomenclatures "application/appeal", which, according to him, should be construed as an appeal, which did not lie before the Tribunal. However, the respondent No. 1 was in substance aggrieved by the order passed by the Board of Wakf appointing the petitioner as the joint mutawalli, for which she has indisputably the remedy under Section 83(2) of the Act. It is by now a settled principle of law that wrong use of nomenclature cannot non-suit a litigant if the source of the jurisdiction to entertain an application or suit is traceable within the four corners of a particular provision of law. In the instant case, the grievance of the respondent No. 1 is one which can be entertained under Section 83 (2) of the Act. Under the circumstances, there is no difficulty in holding that the Tribunal is correct in entertaining the application of the respondent No. 1 even though one of the nomenclatures used in the cause title is "appeal". Once it is found that the respondent No. 1 was not actually filing an appeal before the Tribunal but was, in fact, filing an application under Section 83 (2) of the Act, the same is maintainable. On the contention of the learned counsel for the petitioner that even an application under Section 83 (2) of the Act amounts to a suit, and as the application was filed by the respondent No. 1 without issuing two months' notice to the Board of Wakf, the same is barred by Section 89 of the Act, the contention, in my judgment, does not deserve serious consideration in view of the fact that what the provision contemplates is a suit thereby meaning a civil suit, which is triable only by a Civil Court and not an application to be entertained by a tribunal constituted under Section 83 of the Act. A suit is normally tried only by a Civil Court under Section 9 of the Code of Civil Procedure. A tribunal with many a trapping of a Court, nevertheless, are not Courts in the strict sense of exercising judicial powers. Some such features as the power to summons witnesses, as giving of a final decision, competence to hear contentious matters, power to render decisions affecting the rights of subjects, existence of a provision for appeal against its decision and it being a body to which a matter can be referred by another, do not necessarily make a quasi-judicial body a Court. This is amply borne out by Section 85 of the Act, which bars a civil suit or other legal proceeding in any Civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal. For any suit or other legal proceeding not covered by Section 85, the remedy of a civil suit is open to a party, and it is in respect of such a suit, two months' notice upon the Board of Wakf appears to be mandatory under Section 89. Therefore, the Tribunal constituted under Section 83(1) of the Act is not, and cannot be, a Civil Court and as the application filed under Section 83 (2) cannot be construed to be a suit, there is no requirement under Section 89 to issue notice of a suit upon the Meghalaya Board of Wakf for filing such an application.