Civil Revision Application No.104 of 2008

29th April, 2010

Petitioner Counsel: Mr. S. S. KAZI
Respondent Counsel: Mr. J. R. SHAIKH,Mr. M. G. MUSTAFA

Cases Cited:
Indian Bank Vs. M/s. Satyam Fibers (India) Pvt. Ltd., AIR 1996 SC 2592 [Para 16]
United India Insurance Co. Ltd. Vs. Rajendra Singh, AIR 2000 SC 1165 [Para 17]
Indian National Congress (I) Vs. Institute of Social Welfare, AIR 2002 SC 2158 [Para 18]

JUDGMENT

JUDGMENT :- By this Civil Revision Application, the applicant has challenged the judgment and order dated 11.06.2008 passed in Application No.27/2007 by the learned Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad. By the said order, the Wakf Tribunal has confirmed the order dated 01.12.2007 passed by Respondent No.2, in Case No.42/54/2007.

2. It appears that Rule was issued in the Civil Revision Application on 8th September, 2008.

3. Heard learned counsel for respective parties.

4. Such of the facts, as are necessary for the just decision of the present Civil Revision Application, can be summarized as follows :

i) The applicant claims to be the founder member and trustee of the Trust namely "Jumma Masjid Trust" situated at Gadhinglaj, Dist.-Kolhapur. The applicant contends that since the inception of the said Trust, the applicant is working as a President of the same. The said Trust was earlier registered under the provisions of the Bombay Public Trust Act, in the year 1989. However, subsequently, after coming into existence of the Wakf Act and establishment of the Wakf Board in the year 2002, the Trust is again registered as per the provisions of the Wakf Act, 1995. Registration number of the said trust is 08/2007 dated 27.06.2007. At the time submission of the application for registration of the wakf, names of 10 persons were submitted along with the requisite format, as the persons, who are Mutawallis/trustees of the said wakf. It appears that while registering the said wakf, aims and objects as well as scheme of the said wakf was also submitted with the Wakf Board.

ii) It is alleged by the applicant that after the said wakf was registered on 27th June, 2007 with the Wakf Board, election of the members of the managing committee was held on 6th July, 2008. During the said election, according to the applicant, from the earlier body of the managing committee, only the applicant came to be elected while the remaining members could not succeed in the said election. Present respondent No.1 was the member of the earlier body, however, could not get elected in the alleged elections held on 06.07.2007. After the said elections were over, change report was submitted with the Wakf Board u/s.42(1) of the Wakf Act along with the affidavit of the applicant and no objection certificate signed by the consenting members. On 30.08.2007, the respondent No.2, CEO accepted the change report.

iii) It is alleged that thereafter, present respondent No.1 filed suit No.94/2007 on 23.08.2007 before the Wakf Tribunal, Aurangabad for injunction, against the present applicant as well as respondent No.2. Respondent No.1 has prayed for perpetual injunction against the applicant from interfering/obstructing the peaceful management and affairs of the wakf of Sunni Jumma Masjid, Gadhinglaj. In the said suit, an application for temporary injunction was also filed by respondent No.1. The present applicant appeared in the said suit and filed written statement on 30.11.2007. The application for temporary injunction in suit No.94/2007 appears to be decided on 20.09.2007. It appears that during the pendency of the said temporary injunction, an application was moved by present respondent No.1 before the respondent No.2, CEO, Wakf Board, Aurangabad, raising objection to the acceptance of the change report submitted by the present applicant on 30.08.2007. Notice of the said objection was served on the present applicant, who filed his objections to the same vide say dated 30.11.2007. It appears that after hearing both the sides, respondent No.2, CEO, Wakf Board, Aurangabad set aside the order dated 30.08.2007 of acceptance of the change report, vide order dated 01.12.2007. It also appears that the said order dated 01.12.2007 passed by respondent No.2 was challenged by the present applicant before the Wakf Tribunal, Aurangabad u/s.83(2) of the Wakf Act, 1995 by filing application No.27/2007. However, vide order dated 11.06.2008, application No.27/2007, filed by the applicant came to be rejected by the Maharashtra Wakf Tribunal Aurangabad. The said order is impugned in the present civil revision application.

5. During the course of submissions, it is urged by the learned counsel for the applicant that once the change report is accepted by the Chief Executive Officer, Maharashtra Wakf Board, u/s.42(1) of the Wakf Act, then the Chief Executive Officer has no jurisdiction to again review its own order. According to learned counsel for the applicant, if respondent No.1 is aggrieved by the said order of acceptance of change report then the proper remedy available under the provisions of the Wakf Act is to prefer an appeal/application u/s.83(2) of the Wakf Act, 1995 before the Wakf Tribunal. According to learned counsel for the applicant, the Mutawallis are the trustees of the Wakf registered with the Wakf Board and under the provisions of the Wakf Act, the CEO is not empowered to remove the elected Mutawalli/trustee of the wakf. In the premise, according to learned counsel for the applicant, respondent No.2 CEO has exceeded his jurisdiction while passing the order dated 01.12.2007. Learned counsel for the applicant has also contended that the learned Presiding Officer, Wakf Tribunal while deciding application No.27/2007 has wrongly interpreted the provisions of section 42 of the Wakf Act and erroneously came to be conclusion that the order impugned before the Tribunal is rightly passed while exercising the jurisdiction vested in the Chief Executive Officer. Thus, according to learned counsel for the applicant, the order passed by respondent No.2 CEO dated 01.12.2007 was passed without jurisdiction and the said order is erroneously confirmed by the Wakf Tribunal by holding that the CEO has jurisdiction to review his own order. According to learned counsel for the applicant, in the impugned order the learned Presiding Officer, Wakf Tribunal has given reference of condition No.8, however the said condition is incorporated in the order dated 30.08.2007 in hand writing and hence according to him if the forum has no jurisdiction to decide the point in issue, then by consent, the parties cannot choose the forum to decide that issue.

6. It is the settled principle of law that generally the authority is not empowered to exercise jurisdiction, which is not vested in the same. So also it is settled legal position that the parties cannot choose forum which has no jurisdiction to adjudicate the dispute.

7. While opposing the submissions advanced on behalf of the applicant, it is urged by the learned counsel for respective respondents that the order dated 30.08.2007, passed by the Chief Executive Officer, is a quasi judicial order, as the rights of the parties are decided and recorded in the register of Wakf. It is also urged that while deciding this right of the applicant, if the applicant had played any fraud then the authority who has decided the right, is empowered to recall its own order, which is passed on the basis of fraud played by the party in whose favour the order is passed. In this background, according to learned counsel for the respective respondents, the order passed by respondent No.2 CEO, dated 01.12.2007, is passed with the powers and jurisdiction vested in him and he has not exceeded any powers beyond his jurisdiction and hence prayed for dismissal of the Civil Revision Application.

8. In section 3 of the Wakf Act, 1995, certain definitions are given. As per section 3 (c) of the said Act, 'Board' means a Board of Wakf established under sub section (1) or as the case may be, under sub-section (2) of section 13 and shall include a common Wakf Board established under section 106; as per section 3(d) 'Chief Executive Officer' means the Chief Executive Officer appointed under sub-section (1) of section 23; and as per section 3(i) 'Mutawalli' means any person appointed, either verbally or under any deed of instrument by which a wakf has been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any wakf or wakf property.

9. Section 25 of the Wakf Act deals with the duties and powers of the Chief Executive Officer. Section 25 of the said Act reads thus -

"25. Duties and Powers of Chief Executive Officer - (1) Subject to the provisions of this Act and of the rules made thereunder and the directions of the Board, functions of the Chief Executive Officer shall include-

(a) investigating the nature and extent of Wakf and wakf properties and calling whenever necessary, an inventory of wakf properties and calling from time to time, for accounts, returns and information from mutawallis;

(b) inspecting or causing inspection of wakf properties and account, records, deeds or documents relating thereto;

(c) doing generally of such acts as may be necessary for the control, maintenance and superintendence of wakfs.

(2) In exercising the powers of giving directions under sub-section (1) in respect of any wakf, the Board shall act in conformity with the directions by the wakf in the deed of the wakf, the purpose of wakf and such usage and customs of the wakf as are sanctioned by the school of Muslim law to which the wakf belongs.

(3) Save as otherwise expressly provided in this Act, the Chief Executive Officer shall exercise such powers and perform such duties as may be assigned to him or delegated to him under this Act."

10. Section 27 of the said Act speaks for delegation of powers by the Courts. Section 27 reads thus -

"27. Delegation of Powers by the Board - The Board may, by a general or special order in writing, delegate to the Chairperson, any other member, the secretary or any other officer or servant of the Board or any area committee, subject to such conditions and limitations as may be specified in the said order, such of its powers and duties under this Act, as it may deem necessary."

11. Section 42 of the said Act mandates about change in the management of the wakf to be notified. Section 42 of reads as follows :

"42. Change in the management of wakfs to be notified- (1) In the case of any change in the management of a registered wakf due to the death or retirement or removal of the mutawalli, the incoming mutawalli shall forthwith, and any other person may notify the change to the Board.

(2) In case of any other change in any of the particulars mentioned in section 36, the mutawali shall, within three months from the occurrence of the change, notify such change to the Board."

12. Section 83 (2) of the Wakf Act reads thus -

"(2) Any mutawalli, person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf."

13. The order dated 30.08.2007 requires to be considered in the light of the above referred sections. On bare perusal of the order dated 30.08.2007, it is clear that the said order was passed by respondent No.2, CEO, u/s.42(1) of the Wakf Act and as per the powers delegated to him by the Wakf Board. The said order was passed on the basis of an affidavit filed by the present applicant. On bare reading of this affidavit, it appears that the place kept for date of the affidavit is blank. The said affidavit was submitted along with the letter of consent cum no objection. The letter is signed by the applicant. It is to be noted that the part of this document under the head names and addresses of the persons, who have given no objection, the names and addresses are mentioned, however, column for signature of the said persons, is found kept blank. As against this, under the head names and addresses of the persons who have given consent, are mentioned and found that they have put their signatures in the last column. Thus, this document is not signed by the persons, who have allegedly given no objection for the change report. The application which is filed along with this affidavit and no objection cum consent letter also does not bear the date.

14. Now, the core question which requires consideration is that whether the order dated 30.08.2007 was obtained by the applicant by playing fraud on respondent No.2, as the CEO of the Maharashtra Wakf Board passed the order dated 30.08.2007 on the basis of documents furnished by the applicant. Clause 8 of the said order reads thus - "If the information regarding the said institution, submitted by the applicants found incorrect, this office will be entitled to reject the order passed by this office". This order dated 30.08.2007, was accepted by the applicant as it is, without any protest or objection.

15. In this light, the application filed on 04.09.2009, by respondent No.1, raising objection in respect of this change report requires to be considered. There are allegations that this change report was submitted without calling the meeting on 06.07.2007 and without obtaining no objection of the earlier members of the managing committee. It can be seen from the order dated 01.12.2007 that a meeting was called in the office of SDO, in respect of these allegations and inquiry was conducted, in which grievance was raised before the competent authority by the members, who alleged that meeting was not called and conducted as alleged by the present applicant. The order further reflects that this amounts that incorrect information was provided to the CEO and on the basis of that incorrect information the change report was submitted and approved, which amounts to fraud.

16. The Apex Court, in the matter of "Indian Bank Vs. M/s. Satyam Fibers (India) Pvt. Ltd.", reported in AIR 1996 SC 2592, has observed thus -

"20. By filing letter No.2775 of 26.08.1991 along with the Review Petition and contending that the other letter, namely, letter No.2776 of the even date, was never written or issued by the respondent, the appellant, in fact, raises the plea before the Commission that its judgment dated 16.11.1993, which was based on letter No.2776, was obtained by the respondent by practicing fraud not only on the appellant but on the Commission too as letter No.2776 dated 26.8.91 was forged by the respondent of this case. This plea could not have been legally ignored by the Commission which needs to be reminded that the Authorities, be they Constitutional, Statutory or Administrative (and particularly those who have to decide a lis) posses the power to recall their judgments or orders if they are obtained by fraud as Fraud and Justice never dwell together (Fraus et jus nunquam cohabitant). It has been repeatedly said that Fraud and deceit defend of excuse no man (Fraus et dolus nemini patrocinari debent).

21. In Smith Vs. East Elloe Rural District Council, 1956 AC 736, the House of Lords held that the effect of fraud would normally be to vitiate any act or other. In another case, Lazarus Estate Ltd Vs. Beasley, (1956)1 QB 702 at 722, Denning LJ said :

'No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.'

22. The judiciary in India also possesses inherent power, specially under section 151 of the CPC to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent power are powers which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the construction of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business.

23. Since fraud affects the solemnity, regularly and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order (See : Benow Krishna Mukherjee Vs. Motilal Goenka, AIR 1950 Cl 287; Gajanand Sha Vs. Dayanand Thakur, AIR 1942 Patna 127; Krishna Kumar Vs. Jawand Singh, AIR 1947 Nagpur 236; Devendra Nath Sarkar Vs. Ram Rachpal Singh, ILR (1926) Oudh 385 (FB); Bankey Behari Lal Vs. Abdul Rahman, ILR (1932)7 Lucknow 350 : AIR 1932 Aundh 63; Lekshmi Amma Chacki Amma Vs. Mammen Mammen, 1955 Kerala Law Times 459). The Court has also the inherent power to set aside a sale brought about by fraud practiced upon the Court (Ishwar Mahton Vs. Sitaram Kumar, AIR 1954 Patna 450) or to set aside the order recording compromise obtained by fraud. (Bindeshwari Pd. Chaudhari Vs. Debendra Pd. Singh, AIR 1958 Patna 618; Smt. Tara Bai Vs. S. Krishnaswamy Rao, AIR 1985 Karnataka 270)."

17. Reference of the above observations finds place in the judgment reported in AIR 2000 SC 1165 in the matter of "United India Insurance Co. Ltd. Vs. Rajendra Singh". In para 15 of the said judgment it is observed that - "Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake while prejudices a party, the Court has the inherent power to recall its order".

18. The Apex Court in the matter of "Indian National Congress (I) Vs. Institute of Social Welfare" reported in AIR 2002 SC 2158, has observed thus -

"31. This matter may be examined from another angle. If the directions of the High Court for considering the complaint of the respondent that some of the appellants political parties are not functioning in conformity with the provisions of Section 29-A is to be implemented the result will be that a detailed enquiry has to be conducted where evidence may have to be adduced to substantiate or deny the allegations against the parties. Thus, a lis would arise. Then there would be two contending parties opposed to each other and the Commission has to decide the matter of de-registration of a political party. In such a situation, the proceedings before the Commission would partake the character of quasi-judicial proceeding. De-registration of a political party is a serious matter as it involves divesting of the party of a statutory status of a registered political party. We are therefore, of the view that unless there is express power of review conferred upon the Election Commission, the Commission has no power to entertain or enquire into the complaint for de-registering a political party for having violated the Constitutional provisions.

32. However, there are three exceptions where the Commission can review its order registering a political party. One is where a political party obtained its registration by playing fraud on the Commission, secondly it arises out of sub-section (9) of Section 29-A of the Act and thirdly, any like ground where no enquiry is called for on the part of the Election Commission. For example, where the political party concerned is declared unlawful by the Central Government under the provisions of the Unlawful Activities (Prevention) Act, 1967 or any other similar law.

33. Coming to the first exception, it is almost settled law that fraud vitiates any act or order passed by any quasi-judicial authority even if no power or review is conferred upon it. In fact, fraud vitiates all actions. In Smit Vs. East Ellos Rural Distt, Council, (1956)I ALL ER 855, it was stated that the effect of fraud would normally be to vitiate all acts and order. In Indian Bank Vs. Satyam Fibers (India) Pvt. Ltd., (1996)5 SCC 550, it was held that a power to cancel/recall an order which has been obtained by forgery or fraud applies not only to Courts of law, but also statutory tribunals which do not have power of review. Thus, fraud or forgery practiced by a political party while obtaining a registration, if comes to the notice of the Election Commission, it is open to the Commission to de-register such a political party."

19. If the order dated 01.12.2007 passed by respondent No.2 - CEO is read in the light of the observations of the Apex Court in the above referred judgments, it is clear that the order dated 30.08.2007 was obtained by the applicant by submitting incorrect/false information. In the premise, in other words, the order dated 30.08.2007 was obtained by the applicant by playing fraud on the competent authority, i.e. respondent No.2 CEO. In view of the observations of the Apex Court in the judgments referred supra, as the CEO is a quasi-judicial authority and passed the order which has decided rights of the parties and it is concluded that this order was obtained by playing fraud, then though there is no express provision under the Wakf Act that the CEO is empowered to review/recall his own order, yet considering the view taken by the Apex Court, it cannot be said that the order dated 01.12.2007 is passed without jurisdiction. If it is so, for the reasoning given by the Wakf Tribunal, in its judgment rendered in application No.27/2007 u/s.83 (2) of the Wakf Act that in view of condition No.8 in the order dated 30.08.2007, the CEO, Wakf Board is empowered to review/recall his earlier order dated 30.08.2007, cannot be faulted with.

20. For the above discussion, the order impugned in the present CRA passed by the learned Presiding Officer, Wakf Tribunal that the Chief Executive Officer, Wakf Board has passed the order dated 01.12.2007 is within the power vested in him requires no interference. In view of this, the Civil Revision application ought to fail.

21. In the result, the civil revision application, which is sans merits, stands rejected. Rule stands discharged with no order as to costs.

22. As the Civil Revision Application is dismissed, the present civil application does not survive and hence disposed of accordingly.

Civil Revision Application dismissed.