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Allahabad High Court · body

1985 DIGILAW 579 (ALL)

Magan Nath Misra v. Syed Shakir Ali

1985-05-17

S.D.AGARWAL

body1985
JUDGMENT 1. This is a revision under Section 76 of U.P. Muslim Waqfs Act, I960, hereinafter referred to as, the Act. The facts giving rise to this revision are as follows. 2. The dispute relates to a portion of plot No. 3154; area 0.06 acre, portion of plot No. 3155, area 0.06 acre and a portion of plot No. 3156 area 0.12 acre situate at Mohalla Nai Basti, Ward Nai Basti, Jhansi. 3. On 30th of October, 1972 one Rahmat Ullah filed an application before the Waqfs Board constituted under the Act, for registration of the waqf at the office of the Board. In this application it was stated that the land covered by plots No. 3154, 3155, and 3156 constituted waqf, Karbala, Masjid, Imambara and Qabristan etc. Nai Basti, Jhansi. By an order dated 14111972 the Waqfs Board, after necessary inspection, came to the conclusion that the land covered by the above mentioned plots did constitute a waqf and as such the application moved by Rahmat Ullah was accepted by the Board and the waqf was directed to be registered and Rahmat Ullah was appointed a Mutwalli for a period of three years. On 21111972 Rahmat Ullah moved an application under Section 57A of the Act for recovery of a portion of the waqf property from the unauthorised occupants. On 1921973 the Waqf Board issued notices to Magan Nath Misra, Kishorilal and Babu Lal stating therein that they were unauthorised occupants of the land belonging to the waqf and asked for to show cause why possession be not taken from them. These notices were issued under Rule 9 of the U. P. Muslim Waqfs (Recovery of Waqfs properties) Rules, 1970. 4. Notices under Rule 9 of the Rules mentioned above were served on the three applicants before this court namely, Magannath Misra, Babulal Yadav, and Kishori Lal Misra, They filed replies to the said notices and contested the matter before the Waqf Board. Their case was that they were not in unauthorised possession of the property and the property in dispute, in fact, was their personal property which they acquired in their own rights. Their case was that they were not in unauthorised possession of the property and the property in dispute, in fact, was their personal property which they acquired in their own rights. The Waqfs Board after considering the entire evidence on record by a detailed order dated 281975 held that, In fact, the applicants were in unauthorised occupation of the property of the waqf, rejected their objections and further directed that the requisition may be sent to the Collector, within whose jurisdiction the property is situate, to obtain and deliver possession of the property to the Waqf. 5. Before the requisition was sent to the Collector and before the Collector could pass an order directing the applicants to hand over possession as required under Section 49B(2) of the Act, an application under Section 33(2) of the Act was moved on 30th October,, 1975 before the Tribunal constituted under the Act, namely, the court of District Judge, Jhansi. This application was moved by Magan Nath Misra, Babulal Yadav, Kishorilal Misra and Ayodhya Pd, and the application was filed in a representative capacity for the benefit of several persons having common interest in the disputed property. It was alleged in this application that the property in dispute did not belong to any waqf and that upon the property in dispute there is a Mandir, deity and other structures attributed and connected to Hindus and the people of the locality. In this application the relief was sought that the order dated 281975 passed by the Waqf Board be set aside and that it be declared that the property in dispute did not belong to the waqf and the same belongs to Hindus temple and deity. 6. This application was contested by the opposite party, waqf, on merits. Their case was that the property in dispute was a waqf property and that the applicants were mere trespassers. A specific plea was taken that the application was not legally maintainable under Section 33 of the Act and as such the court of the District Judge which acted as the Tribunal under the Act, did not have jurisdiction to entertain or to hear the application. 7. After filing of the application parties led oral and documentary evidence and ultimately the matter came up for hearing before the Civil Judge, Jhansi who by his judgment dated 7th March, 1963 dismissed the application. 7. After filing of the application parties led oral and documentary evidence and ultimately the matter came up for hearing before the Civil Judge, Jhansi who by his judgment dated 7th March, 1963 dismissed the application. The Civil Judgey Jhansi in hisdetailed judgment held that the property in dispute was a waqf property. On the question of maintainability, however, the Civil Judge was of the opinion, that the application was maintainable. 8. Aggrieved by the decision of the Civil Judge, Jhansi, dated 7th March, 1983 the applicants have filed the present civil revision, under Section 76 of the Act before this Court. 9. I have heard the learned counsel for the parties. Learned counsel for the revisionists has contended that the order of the Tribunal is vitiated in law as it has completely ignored to consider the entire documentary evidence led by the parties. The counsel for the opposite parties has,, however., contended that the application by the revisionists under Section 33 (2) of the Act is not at all maintainable and as such the dismissal of the application by the Tribunal is a valid order and needs, no interference by this Court. 10. After hearing the arguments in detail, I am of the opinion that the application moved by the revisionists under Section 33(2) of the Act is not maintainable and as such I do not think it necessary to consider the contention raised on behalf of the revisionists. 11. Under Section 29 of the Act every waqf, whether created before or after the commencement of this 1960 Act, has to be registered at the office of the Board of the sect to which the waqf belongs. Section 29(2) entitles the application to be made by Mutwalli within three months, of his entering into possession of the waqf property. It further provides that the application for registration can also be made by the waqf or itsdescendants or a beneficiary of the waqf or any Muslim belonging to the sect to which the Waqf belongs. Subsection (3) of Section 29 lays down, the manner in which the application for registration has to be made. Under subsection (7) of Section 29 power has been given to the Board to register the waqf after making necessary inquiries as it thinks fit. Subsection (3) of Section 29 lays down, the manner in which the application for registration has to be made. Under subsection (7) of Section 29 power has been given to the Board to register the waqf after making necessary inquiries as it thinks fit. Subsection (8) of this section gives a right to an aggrieved person to make an application within 90 days from the date of the order passed by the Board registering the waqf for reference of the dispute to the Tribunal, created under the Act. After the order is passed by the Board, the waqf is entered in the register of waqf. In the said register the particulars of all waqf properties are also noted as required by Section 30(1) of the Act. 12. Section 57A which has been inserted by the IX P. Act 28 of 1971, gives power to the Board to take action against a person who is found to be in unauthorised occupation of any immovable property entered as' property of waqf on the register of waqf maintained under Section 30 the Act, Section 57A is quoted below : 57A. Recovery of possession of waqf property from unauthorised occupants, (I) if the Board is satisfied after making an in quiry in such manner as may be prescribed that any person is in unauthorised occupation of any immovable property of a waqf in the register of waqfs maintained under Section 30 of it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it. (2) The provisions of subsections (2), (3), (4), (5), (6) and (7) of Section 49B shall mutatis mutandis apply in relation to a requisition under subsection (1) as they apply in relation to a requisition under subsection (1) of that section. 13. Fn Section 57A the words 4of any immovable property entered as property of a waqf in the register of waqfs maintained under Section 30 are very significant. This section would apply to a case where the property has already been tendered in the register of waqfs at the time of registration of the waqf. If a person is in unautnorised occupation of such a property, the Board has been authorised to send a requisition to the Collector within whose jurisdiction the property is situate to obtain possession from unauthorised occupants. If a person is in unautnorised occupation of such a property, the Board has been authorised to send a requisition to the Collector within whose jurisdiction the property is situate to obtain possession from unauthorised occupants. Subsection (2) of Section 57A makes the provision of Section 49B(2) to (7) applicable to these proceedings. Section 49B (2) empowers the Collector to pass an order directing the person in an unauthorised occupation of the property to deliver the property to the Board. Before passing the order under subsection (2) notices are issued by the Collector to the person who is alleged to be in unauthorised occupation of the prsperty of the waqf. Subsection (4) of Section 49B entitles a person who is aggrieved by the order of the Collector, under subsection (2) to prefer an appeal to the court of District Judge, within a period of 30 days from the date of service of the order. 14. At this stage it may also be painted out that after promulgation of the U.P. Act 28 of 1971 by which Sec. 57A was added, the State of Uttar Pradesh framed Rules under Section 78 of the Act laying down the procedure to be followed before taking possession from unauthorised occupants. These rules are the Uttar Pradesh Muslim Waqfs (Recovery of Waqf property) Rules, 1972. Under Rule 9 notices have to be issued to a person who is alleged to be in unauthorised occupation of any property. After issue of the notice and after giving an opportunity to the person concerned of being heard if he shows cause., the Board has to pass an order that the person concerned is in unauthorised occupation and thereafter a requisition, is sent to the Collector for action under Section 49B of the Act. 15. From the above provisions it is clear that once the property has been mentioned in the register of waqf and if on inquiry it is found that respect of that property, any person is in unauthorised occupation of the property, then the procedure laid down in Section 57A read with Section 49B has to be followed and a person aggrieved by a notice issued to him has a right of appeal under Section 49B (4) of the Act. Besides this procedure, even before finally registering a waqf and taking a property as the property of the waqf a party has been given a right to refer the dispute to the Tribunal created under the Act under subsec. (8) of Section 29 of the Act. Section 53 of the Act reads as follows : 33. Decision if a property is waqf property : 1. The Board may collect or cause to be collected information regarding any property which it has reason to believe to be a waqf property and if any question arises whether a particular property is waqf property or not, it may after making such inquiry as it may deem fit, decide the question. 2. Any person aggrieved by the decision of the Board under subsection (1) may by application within 90 days from the date of such decision refer the dispute to the Tribunal which shall give its decision thereon. 16. Section 33, in my opinion, applies to a case where the property has not been entered in the register of waqf. If in respect of such property, the Board gets information and has reason to believe that it is a waqf property, it has been empowered to decide the said question as to whether the property is waqf property or not, after making such inquiry as it may deem fit. This decision of the Board can be challenged under subsection (2) of Section 33 of the Act, by means of a reference to the Tribunal within 90 days from the date of decision by the Board. 17. On an examination of the entire scheme of the Act, in my opinion, two situations arise. In cass thsre is a dispute in regard to unauthorised occupation of a property of a waqf entered in the register of waqf, then the procedure as prescribed under Section 57A read with Section 49B would apply, and if a party is aggrieved by any decision given under this section, it has right of appeal under these sections. On the other hand, if the property has not been entered in the register of waqf, then in that case the provisions of Section 33 of the Act would apply. 18. In the instant case, on 30th October, 1972, an application was made for registration which is paper No. 66G on record. On the other hand, if the property has not been entered in the register of waqf, then in that case the provisions of Section 33 of the Act would apply. 18. In the instant case, on 30th October, 1972, an application was made for registration which is paper No. 66G on record. In this application the property of the waqf has been stated to be plots No. 3154, 3155, and 3156. This application was allowed by the Board on 14111972. The order of the Board is paper No. 48C. In the circumstances it is clear that the waqf was registered and in the register of waqf plots No. 3154, 3155, and 3156 were entered as the property of the waqf. On 1921973 the Board issued notices to the persons who were found in unauthorised occupation of the property of the waqf under Rule 9 of the Rules mentioned above. This was a notice under Section 57A of the Act. The revisionists contested the matter before the Board and ultimately on 281975 the case was decided by the Board and it was ordered that a requisition be sent to the Collector for taking possession from unauthorised occupants. Before the Collector could issue notice to the unauthorised occupants, the present application has been filed under Section 33(2} of the Act which is clearly not maintainable. The remedy for the applicant was to file an appeal under Section 49B(4) of the Act against the order of the Collector directing them to deliver possession in pursuance of the requisition received by the Collector, after the Board had taken decision under Section 57A of the Act. It is entitled on record that the Collector has not yet issued notices as required by Section 49B (2) of the Act. In view of the above, since the property in dispute was mentioned as the property of the waqf in the register of waqfs the application under Section 33(2) of the Act was not maintainable in law. The view to the contrary taken by the Tribunal that the application was maintainable is not correct but the ultimate decision taken by the Tribunal dismissing the application is, however, correct. 19. In the result, I dismiss the revision. The parties are directed to bear their own costs. (Revision dismissed)