TATIA, J. - (1.) 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.
(2.) FACTS of the case in brief are that there is a Durgah 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 Wakf Act, 1954 was repealed by the Section 112 of the Wakf Act, 1995.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67 of the Act of 1995 term of the committee is until the expiry of its term if specified by the Wakf or until it is superseded by the Board under Section 67 for the reasons mentioned under Section 67 of the Act of 1995.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committee whose term is not limited by the Wakf or by order of any competent authority has right to work till it is superseded by lawful order.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, 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 Since old Wakf Act of 1954 and Regulations framed thereunder have been repealed by the Wakf Act, 1995, therefore, under the Act of 1995, it is not necessary that committee should be for limited period and it can continue till it is superseded because of the accrual of reasons as mentioned in Section 67 of the Wakf Act, 1995.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 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 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. 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 Government has allowed Wakf Board to follow the regulations (framed under Old Wakf Act) after coming into force the Act of 1995.
(3.) 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 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. 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. ;