SAYED NAJAM-UL-HASSAN KAZMI, J.- In consequence of an application, filed by respondent No.1, the award dated 27-8-1980, purported to have been made and announced by Arbitration Council, was made a rule of Court by the learned trial Court on 14-5-1981 and the appeal thereagainst was dismissed by the learned Addl. District Judge on 29-4-1982. The propriety and validity of the two orders passed by the learned Courts below have been assailed in this revision petition.
2. Learned counsel for the petitioner submitted that there was no valid reference to the Arbitration Council, the question sought to be referred to the Arbitration Council could not in law be referred for decision of Arbitrators, the Arbitrator Council committed misconduct as it did not allow an opportunity of producing evidence to the petitioner, did not record any reason for the award and also as the award is suffering from legal error. Conversely learned counsel for the respondents supported the view taken by the two learned Courts below and adopted the reasoning recorded therein.
3. The facts as emerged from the file, are that property No.S-VIII-625- 34 known as Imambara Inayat Ali Shah, was owned by late Syed Inayat Ali Shah who created a Waqf, as declared and acknowledged in Wasiyatnama, dated 22-4- 1950, by virtue whereof, he dedicated his house to Imambara and instructed that his heirs would have a right of occupation as Matwalli. As per command of the wakif, Zittats etc. Were to be kept in veranada at ground floor while the articles of Imambara were to be stored in a room behind veranda. Another room was meant for Zakarines living during Moharram. A portion of the property was allowed to be occupied by Mst. Zuhra Begum and Mst. Sughra Begum daughters of the dedicator while the room in the centre of the upper storey and the room at the top storey was allowed to be occupied by Syed Shabhir Hussain Shah, petitioner. The remaining portion comprising of two rooms and one Daian was instructed to be occupied by Syed Wazir Ali Shah son of the dedicator. The top of the roof and Barsati was instructed to be utilized jointly. It was instructed in the Wasiyatnama that the expenses of Muharram and Chaliswa n etc. Would be shared by sons and daughters in the ratio of two and one share respectively, and if anyone would not co-operate in the performance of religious ceremonies, he would be evicted from the Imambara.
4. It is claimed, that an Arbitration Council was constituted through an arbitration agreement, dated 26-8-1980 by the heirs of the dedicator for appointment of one Matwalli from the heirs who made and announced their award on 27-8-1989. Through this award, the Arbitration Council, appointed Syed Safdar Ali Rizvi, as Matwalli and authorized him to act as such for all intents and purposes while the other legal heirs were directed to vacate the premises of Imambargah who would have no right to continue their residences. The respondents applied for making this award a rule of Court which application was allowed by the learned trial Court and the same was also affirmed in appeal.
5. The review of the facts, reveals, that the arbitration agreement is claimed to be of dated 26-8- 1980 while the award is stated to have been made on 27-8-1980 without formally issuing any notice to the parties, affording them opportunity of hearing, collecting any material or recording any reasons for the conclusion drawn in the award.
6. The whole proceedings are claimed, to hava been finalized, in one sitting, without inviting any evidence from the parties. The Arbitrators cannot ignore that the matter referred to them has to be determined judicially. They are required to go into the evidence when the nature of dispute requires it. If disputed questions regarding evidence are decided without evidence and material before the Arbitrator, it cannot be said that no misconduct has been committed. Decision of disputed questions of fact without material evidence is not a mere irregularity but amounted to illegality which would vitiate the award. To decide a case without giving parties opportunity of being heard or producing evidence is manifestly a violation of rule of natural justice which would vitiate the award. In the instant case, there were disputed questions of fact which required some evidence for adjudication. In terms of the command of the wakil as expressed in Wasiyatnama, the heirs had possessory right and could only be ejected if they fail to cooperate in sharing the expenses of Muharram and Chaliswan etc. This of course was a question of fact for determination whereof, some material or evidence was required. Neither any evidence was adduced or invited nor any material existed before the Arbitrator. So much so there was no allegation that any of the heir had failed to cooperate in sharing expenses or acted in violation of the command of Wakif. No reason, whatsoever, has been given for issuing a direction for the eviction of the heirs of the wakif nor any basis for issuing-such direction find mention in. The award. Obviously this happened, as the Arbitration Council, proceeded in haste, disregard of canon of natural justice and gave their decision in total violation of the mandate given by the dedicator in the Wasiyatnama.
7. Not only that the rule of natural justice was violated but also, the award stands vitiated as it does not disclose any reason therefore, in terms of the provision of Section 26-A of the Arbitration Act which makes it mandatory for the Arbitrator to record reason in the award to enable the Court to consider the question of law arising therein.
8. The Arbitrators further committed misconduct, in as much as they . Ignored the dictates and the command of the Wakif, though in law, the wishes of the wakif could not ignored. In terms of Waqf Nama all the heirs were to act as Matwalli. Appointment of one heir to the exclusion of other was contrary to the spirit of the waqf and wishes of the Wakif which is not permissible. Even for removal of the Matwalli, disabling factors and factors requiring removal of Matwalli have to be established by proper material which recourse was never adopted in this case.
9. There is no findings that the heirs acted in variation of command of Wakif or committed acts, making it necessary for the Court to remove them. On the contrary from the recital in para 2 of award it appears tha; Sayed Shabhir Hussain, Sayed Wazir Ali and Sayed Sadiq Shah and other heirs had been arranging religious Rasoomats etc, in accordance with the wishes of Wakif. This being so, the whole award, declaring ouster of petitioned from Mutwaliship was without any basis; apart from being without jurisdiction. Even otherwise, the subject matter of reference was not referable to arbitrator as it pertained to the public waqf. The property had been dedicated to the Imambargah for the benefits of the followers of a particular Sect (Fiqah) and for all intents^and purposes, a public Waqf was created. The determination of any question in regard thereto or determination of the question of appointment of Matwali or trustee is not a dispute of a nature which could be referred to arbitration. Reference can be made to Nawab Muhammad Ibrahim Khan Vs Ahmad Said Khan and another (6 Indian Cases 219) where it was observed as follows:- " The above extracts, in our opinion, conclusively establish that the office of a Trustee to a Public Charity is not a right, disputes about which can be settled by arbitration. A party can refer a matter of a private individual right of a civil nature to arbitration but he has no power to refer a matter which is not purely of a private civil character and it is on this ground that a Bench of this Court, in Mahadeo Preshad v. Bindeswa ri Prasad (4), held that the appointment of a guardian to a minor not being matter of private right as between parties was not a question which could be settled with reference to arbitration. Aikman, J., towards the end of his judgement, says: "If rival claimants to a certificate of guardianship are allowed to refer their disputes to arbitration, a door would be opened to collusion and the interests of the minors would suffer." These remarks in our opinion, apply with greater force to an attempt to have the right of succession to the trusteeship of a public charity settled by arbitration. If that were allowed a very wide door for collusion, misfeasance and malfeasance in respect of trust property would be opened.
For the above reasons, we hold that the right to succeed to the Tawliet (trusteeship) of waqf cannot be settled by reference to arbitration; and that the Court below had no jurisdiction to entertain an application for filing the award in Court under Section 20, Schedule (2) of the present Code of Civil Procedure.
10. In view of the rule noted above, the basic reference to the Arbitration Council, in this case, was invalid and the subsequent proceedings on the basis thereof cannot sustain. Even otherwise, as observed herein above, the Arbitration Council committed a legal misconduct, the award rendered by them suffers from legal infirmity and the same being violative of rule of natural justice and being without basis, could not have been upheld. The two Courts below, committed material illegality and jurisdictional error, in proceedings to uphold the award, without examining or attending to the facts and legal position, as noted supra, therefore, the orders challenged herein, cannot sustain.
11. Resultantly, this revision petition is accepted, the orders of the learned Courts below are set aside and the application requiring the award to make rule of Court, is dismissed. No order as to cost.