W.P.No. 244 / 2010
(Haneef Khan.. v. State of M.P. & others)
23-09-2010
Shri S.K.Dwivedi, learned counsel for the petitioner.
Shri Sanjay Dwivedi, learned G.A. for the State/respondents.
Shri S.A.Wakeel, learned counsel for the respondents No. 2 and 3.
Shri Mukhtar Ahmed, learned counsel for the respondent No. 8.
Heard the learned counsel for the parties on I.A.No. 4362/2010
filed by the respondent No. 8 for vacating the interim order dated
26-3-2010. Also heard on the preliminary objections raised by the
respondents as to the maintainability of the petition.
As agreed by the learned counsel for the parties the aforesaid
issue is being decided by this order.
The petitioner has filed this petition being aggrieved by the order
dated 6-11-2009 passed by the M.P. Wakf Board, the respondent No.2
whereby the wakf has been registered and the respondent No. 8 has
been appointed as a Mutawalli thereof.
It is submitted by the learned counsel for the petitioner that there
is a serious dispute in respect of the ownership of the land, in question,
which has been dedicated to the wakf by the respondent No. 8 and in
such circumstances while the Wakf Board has refrained from passing
any order on the application filed by the petitioner for registering a wakf
and appointment of Mutawalli, it has proceeded to register a wakf
application filed by the respondent No. 8 in respect of Khasra No. 39/2
of village Koodan, Tahsil Patan, District Jabalpur and to appoint him
Mutawalli thereof in spite of similar dispute pending before the Revenue
authorities . The learned counsel for the petitioner also submits that the
Wakf Board has failed to take into consideration the fact that the
respondent No. 8 has created a wakf in respect of only 3960 sq. ft. of
land out of a total of 0.122 hectares of Khasra No. 39/2 and by
overlooking the said aspect has registered the wakf on the entire area of
Khasra No. 39/2 which indicates total non-application of mind on the
part of the respondent No. 2. It is also submitted that it is in fact the
petitioner who was managing Dargah of Hazrat Zindabali Shah but the
respondent No. 8 by suppressing all the aforesaid facts has got the wakf
registered and got himself appointed as Mutawalli thereof. It is also
alleged by the petitioner that the Wakf Board while passing the
impugned order has not followed the procedure prescribed by law.
The respondents, per contra, have submitted that the petitioner
has an alternative efficacious statutory remedy of approaching the
Tribunal under Section 83 of the Wakf Act, 1995 (hereinafter referred to
as the ‘Act of 1995’) in respect of the disputes raised by him before this
Court and in such circumstances as the petitioner has an alternative
efficacious, statutory, remedy, the petition filed by him deserves to be
dismissed.
From a perusal of the record it is clear that the petitioner does
have an alternative efficacious statutory remedy of approaching the
Tribunal under the Act of 1995 against the impugned order dated
6-11-2009 passed by the respondent No.2, M.P. Wakf Board. Apart from
the above, as the issues raised by the petitioner involve decision on
disputed questions of fact which this Court is not competent to decide in
the proceedings under Articles 226 and 227 of the Constitution of India,
it would be appropriate if the petitioner is directed to avail of the
alternative efficacious statutory remedy available to him under the
provisions of the Act of 1995.
In the circumstances, the petition filed by the petitioner is
disposed of with a direction to the petitioner to approach the competent
Tribunal under the provisions of the Act of 1995 against the impugned
order dated 6-11-2009 passed by the M.P. Wakf Board, the respondent
No. 2 by taking appropriate proceedings before the competent forum.
The petitioner would also be at liberty to obtain interim orders from the
forum prescribed under the Act of 1995 by filing an appropriate
application before it.
As is apparent from a perusal of the record, this Court by order
dated 26-3-2010 has granted an interim order to the petitioner,
therefore, it is directed that in case the petitioner approaches the
competent forum as directed above within a period of one month from
today, the interim arrangement made by this Court shall continue till an
order is passed by the competent forum under the provisions of the Act
of 1995 on the application for stay filed by the petitioner along with the
proceedings taken up by him before the forum. It need not be specified
or specifically mentioned that looking to the dispute involved in the
petition the Wakf Tribunal, before whom the proceedings are taken up,
shall expedite the decision in the proceedings initiated by the petitioner.
With the aforesaid directions the petition filed by the petitioner
stands disposed of.
C.C. as per rules.
( R.S.Jha )
Judge
mct