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2010 Supreme(Gau) 409
GAUHATI HIGH COURT
T.Vaiphei, J.
Asadur Rahman (Md.) -Appellant
Versus
Lutfa Islam & Ors. -Resopndent
CR(P) No.40(SH) of 2008
Decided On : 08-06-2010
Advocates appeared for the Petitioner:Mr.R.Choudhury, Mr.M.F.Qureshi & Mr.K.Chisa, Advocates appeared for the Respondents: Ms.P.D.B.Baruah, Mr.H.S.Thangkhiew & Mr.K..S.Kynjing
Headnote:
WAKF Act, 1995 - Section 83(2) - Code of Civil Procedure, 1908 - Section 9 – Constitution of India, 1950 - Article 227 – Jurisdiction – Appeal against Conviction - Facts giving rise to this revision as pleaded by petitioner may briefly be noted at outset - Executed a deed of WAKF on making his landed property named Rockwood Cottage complex at Mahatma Gandhi Road and his other properties located at Hooghly District West Bengal as WAKF estates on certain terms and conditions - In accordance with terms and condition of deed father of petitioner had become joint mutually jointly with in year after death of his mother - His father died thereby rendering one of joint mutually ship vacant - Petitioner then filed application to Meghalaya Board for appointing him as one of joint by virtue of his being his only son in accordance with stipulation in deed - However Board for further evaluation of enquiry report of said Sub-Committee constituted another Sub-Committee under Chairmanship of Chairman of Board and this second Sub-Committee also accepted report/recommendation of first Sub-Committee – Held, As already noticed it was petitioner herein who filed WP which was dismissed by this Court - However no appeal was apparently preferred by him from that judgment and order - In court opinion findings against him therein have now attained finality - In that case this Court had already found that in pursuance of resolution Board West Bengal name of respondent No. 1 was already recorded as joint mutually in place of her father and that an affidavit was also sworn by petitioner himself that he had no objection as regards appointment of respondent No. 1 to manage properties with her cousin brother respondent No. 2 herein as joint mutually and that any appointment made by with him or with his sister was against terms and conditions of deed and was not tenable in law - As these findings have not been challenged they will operate as res judicator against petitioner - Be it certiorari or exercise of supervisory jurisdiction none is available to correct mere errors of fact or of law unless following requirements are satisfied error is manifest and apparent on face of proceedings such as when it is based on clear ignorance or utter disregard of provisions of law and a grave injustice or gross failure of justice has occasioned thereby - In court judgment petitioner has miserably failed to make out afore-stated requirements to warrant interference of this Court under Article 227 of Constitution in impugned judgment and order – Petition dismissed
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. It is the further case of the petitioner that even after the favourable recommendation of the second Sub-Committee in his favour, the Board wanted to explore other means for avoiding further litigations between the parties and took interim steps in the interest of the wakf estates, which were, however, withdrawn by them where after it passed the order dated 4.8.2008 appointing the petitioner as the joint mutawalli in place of his deceased father, Md. Rownaq Ali, on the basis of the recommendation of the two Sub-Committees. Aggrieved by this, the respondent No. 1 filed Wakf Appeal No. 2 of 2008 under Section 83(2) of the Wakf Act, 1995 ("the Act") before the Wakf Tribunal challenging the appointment of the petitioner as the joint mutawalli. The petitioner, in contesting the appeal, had raised objection against the maintainability of the appeal contending that Section 83(2) does not contemplate the filing of an appeal but is confined only to a suit, and if such a suit is to be filed, Section 89 of the Act requires the petitioner to issue two months' notice in writing upon the Board. It was his contention that if no such notice was issued by the respondent No. 1, the suit was not maintainable. The objection was rejected by the Tribunal, which, according to the petitioner, was unjustified and illegal. It is also the contenti
