ASRAFI Vs. BOARD OF MUSLIM WAKF & ORS.

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) By these two writ petitions, namely, S.S. Civil Writ petition No. 4197/2004 and S.B. Civil Writ Petition No. 335/2005, the order dated 18.12.2004 passed by the Rajasthan Board of Muslim Wakf has been challenged by the petitioners. In S.B. Civil writ petition No. 4197/2004, the petitioner is Mohd. Yasin Khan Asrafi, who claimed himself the Secretary of Wakf Committee Dargah Sarif, Kapasan District Chittoragrh and is also party in S.B. Civil writ petition No. 335/2005 as petitioner No. 3. Both the writ petitions have been filed with common interest of the petitioners. The S.B. Civil writ petition No. 4197/2004 was filed on 23rd Sept., 2004 before the order dated 18.12.2004 was passed, but since the impugned order dated 18.12.2004 was passed during the pendency of the writ petition No. 4197/2004, therefore, the petitioner submitted second stay petition seeking stay of operation of the order dated 18.12.2004. This court by order dated 21.12.2004 stayed the operation of the order dated 18.12.2004.

(3.) It appears that petitioner along with other persons having common interest in the subject matter during the pendency of the writ petition No. 4197/2004, preferred appeal before the Rajasthan Wakf Tribunal, Jaipur. In the appeal before the Rajasthan Wakf Tribunal Jaipur an objection about the maintainability of the appeal was filed on the ground that the writ petition preferred by the petitioner No. 3 Mohd. Yasin Khan (Mautana Mohd. Yasin) is pending before the High Court and the High Court stayed the operation of the order dated 18.12.2004, therefore, the petitioner's appeal before the Wakf Tribunal is not maintainable. The Wakf Tribunal vide order dated 13.1.2005 (Annex.14) in the S.B. Civil Writ petition No. 335/2005) dismissed the appeal of the appellant- petitioner only on the ground that the matter is sub-judiced before the High Court in the writ petition and since the High Court has already stayed the operation of the order dated 18.12.2004, therefore, it should be just and proper to dismiss the appeal preferred by the petitioner-appellant. However, the Wakf Tribunal in its order dated 13.1.2005 itself observed that in case even after decision by the High Court, grievance of the appellant-petitioner survives then they will be free to approach the appellate authority.