SCA/16863/2003 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16863 of 2003 With SPECIAL CIVIL APPLICATION No. 16864 of 2003 To SPECIAL CIVIL APPLICATION No. 16865 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= MUSLIM EDUCATION & WELFARE SOCIETY TRUST AND OTHERS Versus ABDULLA @ ABUBHAI VALIMOHMAD BALOCH AND OTHERS ================================================= Appearance : MR AM MEHTA for Petitioner(s) : 1 - 5. MR AM PAREKH for Respondent(s) : 1 - 2. MR RAJESH P MANKAD for Respondent(s) : 1 - 2. MR AA DAVE, ASST GOVERNMENT PLEADER for Respondent(s) : 3, RULE SERVED BY DS for Respondent(s) : 4, ========================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 11/07/2008 COMMON ORAL JUDGMENT Muslim Education & Welfare Society, Trust along with Mohmadkhan Daulatkhan Lohani, Afzal Abdul Vahab Vahevariya, Abdul Vahab Haji Mohmad Vahevaiya and Abdullakhan SCA/16863/2003 2/4 JUDGMENT Mohamadkhan Lohani is before this Court being aggrieved by order dated 30.09.2003 passed by the learned Joint Charity Commissioner, Rajkot in Application No.51/4/2001 to 51/6/2001 under section 51 of the Bombay Public Trust Act. There are other similar matters being Special Civil Applications No.16864 of 2003 and 16865 of 2003, wherein on the same grounds the order passed in Application No.51/4/2003 & 51/6/2003 are under challenge. Learned advocate Mr.Mehta vehemently submitted that the learned Joint Charity Commissioner has committed an error in passing order under challenge. He submitted that besides other grounds the main ground of challenge is that on the day of passing of order, viz. 30.09.2003 the learned Joint Charity Commissioner had no jurisdiction to consider these applications. He submitted that in view of the establishment of the Gujarat Wakf Board, by Wakf Ordinance, 1995, which was made operative in entire India with effect from 01.01.1996, and Gujarat Government also by Notification No.GK-37-96, Wakf 1096- 143-K dated 30.11.1996 constituted Gujarat State Wakf Board, which became functional with effect from 02.12.1996. On establishment of the Gujarat State Wakf Board all the trusts which were registered in category 'B', were considered to be 'Wakf' in view of the provisions of section 43 of the Ordinance, the record was transferred to the Gujarat State Wakf Board. Gujarat State Wakf Board without changing registration number of any of the SCA/16863/2003 3/4 JUDGMENT trusts have treated them to have been registered 'Wakfs' with their original number. The present petitioner-trust was registered by Registration No.B-308- Jamnagar. It is continued with the same number as Wakf. 2. Section 85 of the Wakf Act, 1995 bars jurisdiction of the civil court. Said section reads as under: “No suit or other legal proceeding shall lie 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.” 3. The learned Assistant Government Pleader, Mr.Apurva Dave made available a copy of the Gujarat State Wakf Tribunal (Procedure) Rules, 1998. The fact that under subsection (1) of section 83 of the Wakf Act, 1995, Gujarat Government has already constituted Tribunal and appointed Civil Judge (SD) in each district for determination of any dispute, question or other matter relating to a wakf or wakf property under the Act, the order passed by the learned Joint Charity Commissioner cannot be allowed to be continued. 4. That being so, the order passed by the learned Joint Charity Commissioner is hereby quashed and set aside. SCA/16863/2003 4/4 JUDGMENT 5. However, in the interest of justice, it is clarified that if the respondents herein have any legitimate grievance about the working of the trust, which is now registered with Wakf Board, can take recourse to the remedy available to them under the law and quashing and setting aside of the order passed by the learned Joint Charity Commissioner will not come in his way. 6. Rule is made absolute in all these petitions. No order as to cost. 7. Mr.Mehta, learned advocate at this stage requests that these petitions be allowed with cost. The request is declined. (RAVI R. TRIPATHI, J.) karim