MOHAMMAD HUSSEIN Vs. UNION OF INDIA AND ORS.

JUDGEMENT

(1.) THIS writ petition is filed for declaration that the proviso to sub -section (4) of Section 33 of the Wakf Act is unconstitutional and for a writ or an order or direction quashing the order dated 02.04.2012 passed by the Wakf Tribunal, Belgaum Division, Belgaum and for quashing of the order under Section 12(3) of the Karnataka Lokayukta Act and for other consequential reliefs. The petitioner preferred an application under Section 83(2) of the Wakf Act, 1995 [for short 'the Act'] before the Karnataka Wakf Tribunal, Belgaum Division, Belgaum. As the said application was not filed within the time prescribed under the law, an application was filed under Section 5 of the Limitation Act for condoning the delay. The said application was opposed by the Wakf Board.

(2.) THE learned member of the Tribunal, who heard the application for condonation of delay, was of the view that there is an inordinate delay of more than 9 years 2 months in preferring the application. Further, the proviso to Section 33(4) of the Act provides that no such appeal shall be entertained by the Tribunal, unless the appellant deposits with the Chief Executive Officer, the amount which has been determined under sub -section (3) of Section 33 of the Act in Form No. 58. Admittedly, the petitioner has not deposited the said amount. Therefore, he has no right at all to obtain a gate pass for entering into the Tribunal i.e., for registration of the appeal, without depositing the disputed amount. The registration of the appeal itself is ab initio improper and moreover, he has utterly failed to substantiate his version for condonation of delay in preferring the appeal. Therefore, he held that the delay is not properly explained and dismissed the application.

(3.) AS is clear from the afore -said judgment, a condition imposed while approaching the adjudicating authority of the first instance and not in appeal, is held to be unreasonable. In the instant case, sub -section (3) of Section 33 of the Act provides for issue of a show -cause notice, a reply, then the adjudication of the claim and passing of an order. It is only when the order which is passed under sub -section 3 of Section 33 is challenged by filing an application under Sub -section (4) of Section 33 of the Act, this condition is imposed. Therefore, the said judgment has no application. On the contrary, the said judgment makes it clear, if such a condition is imposed in appeal, it is not arbitrary. Therefore, it cannot be said that the said proviso is arbitrary and it has to be struck down as unreasonable and unconstitutional in the light of the afore -said judgment.