FAO No.1642 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.1642 of 2008 (O&M) DATE OF DECISION: 25.03.2010 **** Surinder Kumar . . . . Appellant VS. Punjab Wakf Board Ambala Cantt, now at Chandigarh, through its Estate Officer, for the District of Faridkot. . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.S.C. Arora, Advocate for the appellant. Mr.Sunil Garg, Advocate for the respondent. **** RAKESH KUMAR JAIN J. (ORAL) This appeal has been preferred against the order dated 10.3.2008 passed by Addl. District Judge, Faridkot, exercising the powers of Tribunal under the Wakf Act, 1995 (for short ‘the Tribunal’). At the time of filing of appeal, an objection was raised by the Registry of this Court “Please clarify how FAO is competent”. In response to the objection, learned counsel for the appellant has mentioned that “as per Section 83(9) the provisions refer to order or decision and not decree which is always passed by a Civil Court and not any Executive authority. Section 95 of the same Wakf Act, 1995 FAO No.1642 of 2008 (O&M) -2- makes reference to appellate authority in view of which the FAO is maintainable. No other case in my knowledge. Refiled”. At the very outset, learned counsel for the respondent has pointed out that the present appeal is not maintainable against the order of the Tribunal. Learned counsel for the appellant has reiterated his stand referring to Section 95 of the Wakf Act, 1995 (for short ‘the Act’) to contend that appeal is maintainable under the said provision. Learned counsel for the respondent has submitted that under Section 83(9) of the Act no appeal shall lie against any decision or order whether interim or otherwise given or made by the Tribunal which includes the order passed in the present case. I have heard both the learned counsel for the parties and have thoughtfully considered their respective contentions. Learned counsel for the appellant has miserably failed to point out from the Act as to under which provision of law the appeal is maintainable. Insofar as Section 95 of the Act is concerned it is only an enabling provision, which read as under: - “95. Power to appellate authority to entertain appeal after expiry of specified period – Where under this Act any period has been specified for the filing of an appeal, the appellate authority may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the period so specified, entertain the appeal after the expiry of the said period.” FAO No.1642 of 2008 (O&M) -3- The interpretation of the aforesaid provision is that, in case, an appeal, which is to be filed within a stipulated period, the Court to entertain the appeal has got the jurisdiction to condone the delay if sufficient cause is shown to it for the purpose of its condonation. This provision does not mean that an appeal can also be filed de hors the provisions of Section 83 of the Act, which specifically debars the filing of such an appeal. It is also pointed out by the counsel for the appellant that High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit. In my opinion, proviso to Section 83 of the Act relates to a revision and not to an appeal. Needless to say that right to an appeal is a creation of statute and is not presumed. Since, there is no provision of appeal in the Act, therefore, appellant has no jurisdiction to present the appeal against impugned order of the Tribunal. Hence, the present appeal is dismissed as not maintainable. However, the appellant is at liberty to take up his other remedy, if any, in accordance with law. (RAKESH KUMAR JAIN) 25.03.2010 JUDGE vivek