DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR **** :JUDGMENT: Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. **** D.B. CIVIL SPECIAL APPEAL NO.64/2008 AGAINST ORDER DATED 6.2.2008 PASSED BY LEARNED SINGLE JUDGE IN S.B. CIVIL MISC. STAY PETTION NO.404/2008 IN S.B. CIVIL WRIT PETITION NO.243/2008. <><><> Date of Order : 21st May, 2008 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA HON'BLE MR. JUSTICE BHANWAROO KHAN REPORTABLE Mr.M. Mridul, Sr. Advocate with Mr. PS Chundawat Mr.MC Tailor, for the appellants. Mr.Sunil Mehta, for the respondents. BY THE COURT: (Per Hon'ble Mr. Justice Tatia) The present D.B. Special Appeal has been preferred to challenge the order passed by the learned Single Judge dated 6.2.2008 by which the appellants' application filed under Article 226(3) of the Constitution of India for vacating the interim order dated 10.1.2008 was dismissed and the interim order dated 6.2.2008 was confirmed in SBCWP No.243/2008. Facts of the case in brief are that there is a Durgah DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [2] Diwaneshah Sabab, at Kapsan (hereinafter referred to as Durgah) and it is stated that said Durgah is visited by thousands of Jaireen and for managing the said Durgah, a committee is constituted. The said committee is Tauliyat Wakf Committee (hereinafter referred to as the Committee). According to the petitioners, the said committee is registered under the provisions of Wakf Act, 1954. Wakf Act, 1954 was repealed by the Section 112 of the Wakf Act, 1995. The petitioners were appointed as Tauliyat of Wakf Committee by the Rajasthan Board of Muslim Wakf, Jaipur vide order dated 17.1.2004. According to the petitioners, the term of the committee was not limited and as per Section 67 of the Act of 1995 term of the committee is until the expiry of its term if specified by the Wakf or until it is superseded by the Board under Section 67 for the reasons mentioned under Section 67 of the Act of 1995. The Mutwalies can be removed under Section 64 of the Act of 1995. Therefore, under the Wakf Act, 1995 the petitioners' committee whose term is not limited by the Wakf or by order of any competent authority has right to work till it is superseded by lawful order. Earlier under Wakf Act, 1954, Rajasthan Muslim Wakf Regulation, 1964 were framed. As per Regulation no.25, DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [3] the term of the committee could have been for a period of one year and its period could have been extended for further six months only. Since old Wakf Act of 1954 and Regulations framed thereunder have been repealed by the Wakf Act, 1995, therefore, under the Act of 1995, it is not necessary that committee should be for limited period and it can continue till it is superseded because of the accrual of reasons as mentioned in Section 67 of the Wakf Act, 1995. According to the petitioners, the petitioners are independently called as Mutawalli and the entire committee is known as Tauliyat Committee. The petitioner being Mutwalies also could have been removed only if they are removed by following procedure as provided by Section 64 of the Act of 1995. According to the petitioners they are managing the affairs of the Durgah with full devotion and Durgah is well managed. No reason accrued for superseding the petitioners' committee under Section 67 of the Wakf Act, 1995 or removal of petitioners under Section 64 of the Act of 1995. The respondent no.3 who is the member of the ruling party in the State wanted to oust the present petitioners from the management of the Durgah and he made false complaints with the connivance of the Board of DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [4] Muslim Wakf, Jaipur and he obtained certain illegal orders from the Board. One of the said illegal order was order dated 18.12.2004 by which petitioners' committee was superseded. The petitioners challenged the said order dated 18.12.2004. The said order dated 18.12.2004 was set aside by the Wakf Tribunal, Jaipur in appeal no.04/2005 by order dated 13.4.2005. The said order was set aside on the ground of non-compliance of the provisions of Section 67 of the Wakf Act, 1995. Copy of the order of the Wakf Tribunal, Jaipur dated 13.4.2005 has been placed on record as Annex.3 in the writ petition. The respondent no.3 annoyed with the order of the Wakf Tribunal (Annex.3) got his persons nominated as members of Wakf Board and started harassing the petitioners. It is alleged that to achieve removal of petitioners, the Wakf Board's meeting was called for which a notice was issued by one Usman Saddiqui as Chief Executive Officer of the Board, though he was not Chief Executive Officer of the Wakf Board and only Chief Executive Officer of the Wakf Board could have convened the meeting of the Board. Four elected members of the Board raised objection in respect of notice of the meeting and requested the Chief Executive officer for adjourning the meeting, but meeting was convened and DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [5] without there being corum, resolution dated 18.12.2007 was passed. In consequence thereof, an order dated 6.11.2007 (Annex.7) was issued by the Wakf Board directing the petitioners' committee to hand over charge of the committee to the newly constituted committee. It is stated by the petitioners that neither there is any cause for removal of the petitioners' committee nor any order has been passed for removal of the petitioners' committee nor any proceedings was initiated under Section 64 for removal of Mutawalies, or under Section 67 for suspension of committee of Management was initiated by the Board and yet, it has been ordered that petitioners' committee should hand over the charge to the newly constituted committee. The petitioners being aggrieved from the order dated 6.11.2007 preferred appeal before the Rajasthan Wakf Tribunal under Section 64, 67 read with Section 83 of the Wakf Act. The petitioners' said appeal was rejected by the Wakf Tribunal vide order dated 8.1.2008 after holding that the appeal against the order dated 6.11.2007 is not maintainable. The appeal of the petitioners' was rejected on above ground because objection was raised against the maintainability of the appeal by non-petitioners in the writ petition. DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [6] The petitioners being aggrieved against the order of dismissal of their appeal dated 6.11.2007 by the Wakf Tribunal preferred the writ petition and in the above writ petition the learned Single Judge granted ad-interim order in favour of the contesting respondents-petitioners of the writ petition no.243/2008. The interim order passed on 10.1.2008 in writ petition no.243/2008 is “In the meanwhile, effect and operation of the impugned order dated 8.1.2008 (Annex.9) and order dated 6.11.2007 (Annex.7) shall remain stayed till the next date of hearing.” The case was ordered to be listed on 17.1.2008, but before that on 15.1.2008, an application under Article 226(3) of the Constitution of India was filed by the respondents. As per the facts mentioned in the impugned order itself, thereafter, on 17.1.2008 in the presence of both the learned counsel for the parties, the writ petition was fixed for hearing on 27.1.2008 and interim order was extended till then. The writ petition was listed in court thereafter on number of occasions, but was adjourned and interim order was extended. Even the notice was issued to the learned Addl. Advocate General of the State so as to find out why the regulations and rules are not framed under the Wakf Act, 1995 and a quarry was raised that how the State DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [7] Government has allowed Wakf Board to follow the regulations (framed under Old Wakf Act) after coming into force the Act of 1995. In the application filed under Article 226(3) of the Constitution of India, submitted for vacating the interim order, the applicants-respondents submitted that the Principal seat of the High Court had no territorial jurisdiction and the writ petition of the petitioners is not maintainable in view of Section 83(9) of the Act of 1995 as sub-section (9) of Section 83 provided that no appeal shall lie against any decision or order whether interim or otherwise, given or made by the tribunal. And the term of the petitioners' committee had expired and the contesting respondents had taken over the charge of the committee on 7.11.2007. It is also submitted that newly constituted committee in last two months' period has deposited more than Rs.4,08,000/- with the bank, obviously, the amount which was offered by the Jaireen in the Durgah. It is also submitted that the interim order passed in writ petition gave the ultimate relief to the petitioners which could have been granted only as final relief in the writ petition. The writ petitioners contested all the issues raised by the applicants-respondents in reply to application under DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [8] Article 226(3) of the Constitution of India. It is pertinent to mention here that writ petitioners relied upon the Wakf Board's own reply filed in SBCWP No.449/2007 wherein Wakf Board took specific stand that as per Section 17, the meeting of the Board can be held as per regulations to be made under the Act of 1995 and that regulations have not been framed so far. In the said reply, it was specific stand of the Wakf Board that the regulations framed under the Wakf Act, 1964 stands repealed by the Wakf Act, 1995, yet the Wakf Board in the present case, wants to say that term of the committee cannot be beyond the period given in the repealed regulations. According to writ petitioners when the term of the committee has not been fixed in the original order and power vest in the Wakf Board to take action against the erring committee under the Act of 1995 and a procedure has been given in the Wakf Act, 1995 then with the aid of repealed regulations and without following the procedure as prescribed under the Wakf Act, 1995, the petitioners' committee could not have been dissolved by the Wakf Board. In fact, in the present case, the Wakf Committee of the petitioners had not been dissolved and yet the Board has ordered to petitioners' committee to hand over the charge to newly constituted committee. DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [9] The learned Single Judge by impugned order dated 6.2.2008 rejected all objections raised by the contesting non-petitioners of the writ petition and rejected application of the non-petitioners filed under Article 226(3) of the Constitution of India and confirmed the interim order dated 10.1.2008. Hence, this special appeal by the aggrieved parties. Learned Sr. Advocate, Shri M. Mridul and learned counsel Shri MC Tailor, vehemently submitted that the order passed by the learned Single Judge is contrary to the recent judgment of this Hon'ble Court delivered in the case of Chief Executive Officer, Rajasthan Board of Muslim Wakf, Jaleb Chowk, Jaipur & Ors Vs. Islamuddin & Anr. reported in 2007(3) WLC (Raj.) 278. The learned Single Judge of this Court held that expiry of term of committee not tantamount to supersession or removal of the committee. When committee is not constituted under Section 67 of the Act of 1995 then there cannot arise any question of applying remaining provisions of Section 67 and for same reason Section 64 would not also apply and order could well be passed without following procedure under Section 67(2) (4) and (5). In the said judgment, it also has been held that where by impugned order Mutawalli has not been removed DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [10] and Section 64(1)(c)(i) has not been applied nor invoked then no inquiry is required to be held. In the said judgment, this Court directed to appoint new committee within four weeks. In the case in hand, the term of the petitioners' committee came to an end because of the reason that as per regulation 25 of the Rajasthan Muslim Wakf Regulations, 1964, term of a committee can be only one year and even the Board has power to extend the term of the committee for a further specified period not exceeding six months. In the case of Islamuddin (supra) in original order there was no mention of period of the committee, but yet this Court directed Wakf Board to appoint new committee. It is submitted by learned counsel Shri MC Tailor that by Section 112 of the Wakf Act, 1995 though the Wakf Act, 1954 and Wakf (amended) Act, 1984 have been repealed but as per sub-section (2) of Section 112, the action taken under the repealed Act have been saved and as per sub-section (3) where in any State any law was in force, which corresponds to the Act of 1995, that State law alone has been repealed and that repealed law also cannot effect anything done or any action taken in exercise of any power conferred by or under the corresponding law, which DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [11] was taken under repealed State Act. With the help of Section 112 of the Wakf Act, learned counsel Shri MC Tailor tried to submit that the term of the petitioners' committee still is governed by the regulation 25 of the Regulations of 1964. Learned counsel Shri MC Tailor raised objection about the maintainability of the writ petition on the ground of lack territorial jurisdiction of Principal seat of Rajasthan High Court Jodhpur in entertaining the writ petition and according to him since the order was passed by the Board of Muslim Wakf at Jaipur and petitioners tried to approach the court at Jaipur on earlier occasion at the Bench of the Rajasthan High Court at Jaipur, therefore, the writ petition of the petitioners is not maintainable. It is also submitted that the petitioners could have preferred revision petition to challenge the impugned order and when effective remedy under the Act is provided then in that case, the writ petition cannot be entertained. Learned counsel Shri MC Tailor relied upon few judgments of the Hon'ble Supreme Court in support of his contention in addition to the judgment of this court delivered in the case Islamuddin (supra), which have been considered by the learned Single Judge in detail in the impugned order. DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [12] Learned counsel for the writ petitioners-respondents supported the interim order and submitted that if a statutory authority has right to appoint then he may have right to remove also, but when statue itself provides how one appointee can be removed then without following the procedure, the appointee cannot be removed by the appointing authority. Admittedly, the petitioners' committee was not constituted for any limited period. The appellants-non-petitioners relied upon the regulations of 1964 in support of their contention that period of committee can be on year or at the most for 1 ½ years but said limit has no application after repeal of Wakf Act, 1954 and regulation framed thereunder. The petitioners' committee was constituted and appointed after coming into force of the Act of 1995 when the regulations of 1964 were not in force and, therefore, no period was fixed by the appointing authority knowing it well that committee could have been removed for the reasons mentioned in the Section 67 of the Act of 1995 and only by following the procedure as provided under the Wakf Act, 1995. The respondents tried to dislodge the petitioners' committee on earlier occasion and in that proceedings, the Wakf Tribunal clearly held that there was violation of the statutory DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [13] provision in passing the order against the petitioners' committed and that order attained finality. Therefore, apart from the fact that repeal of the regulation of 1964 is by statutory provisions of law there is binding order of the Wakf Tribunal against the Wakf Board that the petitioners' committee could have been removed only by following the procedure as provided under the Act of 1995. It is also submitted that admittedly, the property in question is situated within the territorial jurisdiction of the Principal seat of the Rajasthan High Court and merely because of passing an order by the Board or Tribunal within territorial jurisdiction of Jaipur Bench of Rajasthan High Court at Jaipur Bench, which can have effect without the territorial jurisdiction of the Principal Seat of the High Court, Jodhpur only then the cause of action arises only within the territorial jurisdiction of Principal seat of High Court at Jodhpur. The jurisdiction cannot be merely on the basis of fact that the order was passed by an authority at Jaipur, within territorial jurisdiction of Jaipur Bench of the High Court. If the Wakf Board wants to keep this order at Jaipur and does not want to give effect to it at the place where the property is managed by the petitioners then that order is no order in the eye of law as it would be an in- DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [14] executable order. It is also submitted that appellants and the contesting respondents themselves raised objection about the maintainability of the appeal preferred before the tribunal then only remedy available to the petitioners is under Article 226 of the Constitution of India for challenging the impugned order passed by the Wakf Board. Section 83(9) restricts further appeal against the order of the Tribunal then only remedy available to the petitioners is to approach this Court under Article 226 of the Constitution of India. It is also submitted that even if it is assumed that revision petition is maintainable against the order passed by the Wakf Board even then it is not absolute bar against exercising of jurisdiction by the High Court under Article 226 of the Constitution of India. It is also submitted that the action of the respondents is malafide in nature, which has been demonstrated by the petitioners. It is also submitted that the interim order was passed by the learned Single Bench after considering the claim of the petitioners and if interim relief in the form in which it has been granted would not have been granted then more harm and irreparable injury could have been caused to the petitioners and to Wakf as even after having the merit in DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [15] the case of petitioners, the petitioners would have been deprived from managing the affairs. In addition to the other grounds it is also submitted that, the order passed by the learned Single Judge, that too of interim nature, may not be interfered by the Division Bench in appellate jurisdiction because of the reason that it is an order passed in discretionary power of the High Court under Article 226 of the Constitution of India and is, in accordance with law, equity and justice and is not perverse. It is also submitted that the writ petition itself was fixed for hearing and the parties and the contesting respondents favouring the appellants want to over reach the process of the court so that the issue raised by the petitioners may not be decided and the petitioners may be dislodged before judicial verdict. It is also submitted that complete procedure has been given how the possession can be taken from the committee in case it is required to be handed over by the committee and committee fails to hand over charge of the committee. If the appellants and other respondents flouted the provisions of law to show that they took over charge of the committee then that cannot be recognized. It is also submitted that subsequent to that in the contempt petition DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [16] more directions have been issued so that writ petitioners may continue to manage the affairs of the Durgah. We considered the submissions of learned counsel for the parties and perused the facts of the case. At the outset we may observe that the alternate remedy is never considered as a bar against exercise of jurisdiction by the High Court under Article 226 of the Constitution of India. In appropriate cases, the High Court may refuse the entertain the writ petition on the ground of availability of alternate remedy. The High Court is required to consider the question of adequacy and effectiveness of alternate remedy before denying the petitioners from their right to invoke jurisdiction under Article 226/227 of the Constitution of India. Once, it has been held by the Court that it is not a fit case for rejection of the writ petition on the ground of availability of alternate remedy and that too, while deciding the interim prayer of the petitioners, normally in the appellate jurisdiction, unless there are compelling reasons, such order should not be interfered. In the present case, the writ petitioners tried to avail the remedy under the Act of 1995 by preferring appeal against the order of Wakf Board dated 18.12.2004 and they in fact, succeeded on earlier occasion and they obtained an order in their favour DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [17] on 13th April, 2005 wherein the order passed by the Wakf Board was set aside on the ground of non-compliance of the Section 67 of the Act of 1995 then the petitioners approached the Wakf Tribunal again when impugned order impugned in the said appeal dated 6th Nov., 2007 was passed by the Wakf Board. There, objection was raised by the present appellants and the contesting respondents favouring the appellants about the jurisdiction of the Wakf Tribunal and the Wakf Tribunal held that appeal of the present writ petitioners is not maintainable. In that situation, it cannot be said that approaching of the petitioners to this Court under Article 226 and 227 of the Constitution of India was with intention to bye pass the remedy under the Act of 1995. Be that as it may be, apart from the above reason in view of the findings given by the learned Single Judge on this issue we are not inclined to accept the appellants' objection about the maintainability of the writ petition on the ground of availability of alternate remedy. Challenge to jurisdiction of the Principal seat of the Rajasthan High Court at Jodhpur is on the ground that order was passed by the Wakf Board at Jaipur and, therefore, could have been challenged only at Bench of the DBSAW No.64/2008 Mohd. Harun & Anr. Vs. Nissar Ahmed & Ors. [18] Rajasthan High Court at Jaipur. It appears that the argument has been advanced without noticing where the cause of action arose and without examining that what is cause of action. An order passed by the authority cannot be read or given effect to without noticing where the order will have its effect. This principle applies more when order is in relation to any immovable property or any benefit attached to it or where it is in relation to management of immovable property. The order passed at Jaipur by the Wakf Board or tribunal at Jaipur neither can be given effect to nor could have been enforced within the territorial jurisdiction of the bench of the Rajasthan High Court at Jaipur. The real cause and substantial cause accrues where order can be given effect to effecting the property or management of the property. The property in question is situated within the territorial jurisdiction of the Principal seat of Rajasthan High Court and order has been sought to be enforced only within the territorial