1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 4955 OF 2010. Salimbhai Mukhtar Jafarbhai Chimathanwala and another -: VERSUS :- The Maharashtra State Board of Wakfs and others. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : OCTOBER 28, 2010. Heard Shri S.V. Manohar, learned Counsel for petitioners, learned A.G.P. for respondent Nos.3 and 14, Shri Z.A. Haq, learned Counsel for respondent Nos. 10 to 13 and Shri A.R. Sheikh, learned Counsel for respondent Nos. 4 to 8. Challenge in this petition filed under Articles 226 and 227 of the Constitution of India is to order passed by the Tribunal functioning under Section 83 of the Wakf Act, 1995 on 06.08.2010. The said Tribunal [learned District Judge, Nagpur] has by said order passed below Exh.5 allowed the prayer for interim relief made by the present respondents and 2 stayed the effect, operation and execution of the directions given in the impugned order by the respondent no.3. The said order of respondent no.3 is dated 02.02.2010 and the respondent no.3 has directed respondent no.1 Wakf Board to decide whether there exists any vacancy in post of Mutawali first and thereafter, to consider whether the affairs of Wakf needed to be taken over within three months. The order of respondent no.1 impugned before respondent no.3 is dated 26.07.2009 and it is passed under the provisions of Section 65 of the Wakf Act. The order of Minister [respondent no.3] mentions that it is passed under Section 65[2] of the Act. In said Section 83 proceedings, present petitioners filed an application for intervention which is allowed. The petitioners seek a writ of prohibition and quashing of proceedings of which cognizance is taken by the Wakf Tribunal. Maintainability of this writ petition at their instance is assailed by respondent nos. 4 to 13 by contending that as their intervention only has been allowed, they cannot maintain such Writ Petition before this Court. Support is taken from the judgment of Hon'ble Apex Court reported at AIR 1955 SC 233 (Hari Vishnu Kamath .vrs. Ahmad Ishaque and others) and decision of Division Bench of this Court reported at 2010 [1] ABR (NOC) 13 (Bom) (Vilas Dadarao 3 Chavan .vrs. Kisan Ashok Patil Dongaonkar and others). While replying to this preliminary objection about locus and therefore, maintainability of writ petition, learned Counsel for petitioners has pointed out that in earlier round of litigation between the parties the Hon'ble Division Bench of this Court while deciding Second Appeal has expressly found property to be property of Wakf [then Trust property] and attention has been invited to earlier order of Division Bench by which the respondent nos. 4 to 13 were directed to approach the competent forum i.e. appellate authority and while granting that permission all interested persons were permitted to intervene in the matter. The learned counsel has pointed out that accordingly they were intervenors before respondent no.3. The learned Tribunal has after considering the application for intervention as filed, has allowed it and there is no challenge to that order by the respondent nos. 4 to 13. The said respondents in fact gave no objection for their impleadment as intervenors. In these circumstances and in view of the earlier findings (supra) by this Court, it is apparent that petitioners are persons interested and as they are interested in the cause, a petition of this nature at 4 their instance can be held to be maintainable. On merits, learned Counsel for petitioners has invited attention to the provisions of Section 65[2] read with Section 83 of the Act to urge that an order which is expressly made finally, cannot be assailed in appeal before the Tribunal. Attention is also invited to other sections in the Act like Sections 42, 51[5] etc., to draw attention to the scheme with arguments that when ever legislature wanted an aggrieved person to have remedy of approaching the Tribunal under Section 83, that remedy has been expressly provided for. Contention is, in absence of such a specific stipulation in Section 65, the remedy under Section 83 is not available and the proceedings of which cognizance has been taken by the Tribunal are therefore, not maintainable before said Tribunal. Reliance is being placed upon the judgments of Hon'ble Apex Court reported at AIR 1989 SC 922 (Commissioner of Sales Tax, U.P. Lucknow .vrs. M/s. Super Cotton) and AIR 1988 SC 812 (M/s. Jetha Bai & Sons .vrs. M/s. Sunderdas Rathemal). Learned Counsel further states that as the objection raised goes to the root of the jurisdiction, the said objection needs to be decided first. Learned Counsel for respondents has pointed out 5 that the intervenors did not raise these contentions before the Tribunal and expressly requested the Tribunal to pass appropriate orders. Contention is, in view of this conduct they are estopped from asking for a writ of prohibition. The observations made by the learned Tribunal in paragraph no.5 are pressed into service to urge that only prima facie finding about the availability of forum are recoded and the issue is still open before the Tribunal. It is contended that the impugned order is passed on 06.08.2010 and till that date, no specific reply in this respect was filed by the intervenors. That reply has been filed for the first time on 07.09.2010. Reliance is being placed upon the express language of Section 83[2] of the Act to demonstrate to this Court that any order passed under Wakf Act or Rules framed thereunder, is amenable to the jurisdiction under Section 83 of the Act. Perusal of the impugned order passed below Exh.5, particularly paragraph no.4 shows that intervenors did not oppose passing of any/appropriate orders by the Tribunal at that stage. On the contrary they have not raised any specific objection to the jurisdiction. Learned Counsel for respondent nos. 4 to 13 has pointed out that the observations about finality to the orders passed under Section 65[2] have come only because of the objections 6 raised by the Wakf Board before the Tribunal. The contention has not been stated to be either erroneous or perverse. The observations made by the Tribunal clearly show that the proceedings initiated before the Wakf Act were under Section 65 and impugned orders before it was under Section 65[2], it has therefore, prima facie found that the challenge before it was in accordance with law. However, it has not concluded this position and it is apparent from the words “at this stage” used by it in paragraph no.5. The provisions of Wakf Act in totality may be required to be seen to find out the scope of jurisdiction available to the Tribunal under Section 83[2] and understand nature or extent of finality envisaged in Section 65[2]. In Commissioner of Sales Tax, U.P. Lucknow .vrs. M/s. Super Cotton (supra), Section 35[5] of the U.P. Sales Tax Act making the order of Sales Tax Commissioner final subject to decision of appeal with Tribunal is construed. Hon'ble Apex Court has found that a further revision to High Court under Section 11 was not competent. In this background, question was of maintainability of the revision to High Court. In M/s. Jetha Bai & Sons .vrs. M/s. Sunderdas Rathemal (supra), the provisions of Section 20 of Kerala 7 Building , Lease and Rent Control Act are looked into. The said provision enabled the revision to be filed either before the District Court or in High Court. Scheme of Act provided finality to orders of rent controller subject to appeal and also, finality to appellate orders subject to revision under Section 20. The language of Section 20 did not expressly use words implying finality to revisional orders. In this scheme, the Hon'ble Apex Court found orders of revisional Court also final. In that background, the finding about maintainability of Revision under Section 115 of Code of Civil Procedure are recorded. The learned Counsel for respondents has relied upon the meaning of word “an” as explained in Stroud's Judicial Dictionary to urge that it encompasses also “any”. According to him therefore, Section 73[2] permits challenge to any order passed under the Act or Rules. As I find that these objections are raised for the first time before this Court, that too at the instance of persons who submitted to the jurisdiction of the Tribunal by filing intervention and thereafter by expressly it to pass further appropriate orders, I am not inclined to examine these arguments in present matter. The arguments can be raised before the Tribunal and the Tribunal is free to consider the same in accordance with the law. 8 Writ Petition is therefore, dismissed. However, in the facts and circumstances of the case there shall be no order as to costs. JUDGE Rgd.