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1996 DIGILAW 1236 (ALL)

SAYED AHMAD v. U P SUNNI CENTRAL BOARD OF WAQFS LUCKNOW

1996-11-01

S.K.PHAUJDAR

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S. K. PHAUJDAR, J. This application under Section 76 of the U. P. Muslim Waqfs Act (in short, the Act) is directed against the judgment and order dated 7-9-1996 passed under Section 71 of the Act by the Civil Judge (Senior Division), Bulandshahr, in his capacity as the Tribunal constituted under Section 70 of the Act in Reference No. 45 of 1988. 2. The mutwalli of a particular waqf property had allegedly tendered resignation and the Board, constituted under the Act, accepted the resignation and took over the administration of the waqf property. The Mutwalli, being aggrieved by this action of. the Board, made a reference to the Tribunal constituted under the Act challenging, inter alia, that he had never tendered resignation and the papers purporting to be resignation letters were forged ones. The Tribunal heard the matter and gave a decision in favour of the mutwalli. The members of the committee of management appointed under the Act have come up in this revision and the very jurisdiction of the Tribunal to entertain the reference has been challenged. 3. It was urged that there was no removal of the mutwalli under Section 55 (1) of the Act and, accordingly, the mutwalli had no right of reference under Section 55 (2 ). The Tribunal, according to the learned counsel for the revisionists, gets a jurisdiction under Section 71 of the Act over any dispute in question when the question is one which may, under the Act, be referable to the Tribunal. In the absence of a removal, according to the petitioner, a reference to the Tribunal was bad in law and the decision given by the Tribunal is also bad for inherent lack of jurisdiction. 4. The mutwalli had appeared as a caveator and it was contended on his behalf that removal of any kind would be open to reference to the Tribunal. It was a case of de facto removal in the guise of acceptance of a so-called resignation and the Tribunal, accordingly, had every jurisdiction to entertain the reference. Learned counsel for the parties elaborated their arguments with reference to the relevant sections of the Act and to case-laws on these points. 5. It was a case of de facto removal in the guise of acceptance of a so-called resignation and the Tribunal, accordingly, had every jurisdiction to entertain the reference. Learned counsel for the parties elaborated their arguments with reference to the relevant sections of the Act and to case-laws on these points. 5. The U. P. Muslim Waqfs Act, 1960 (Act No. XVI of 1960, already indicated to be referred to as the Act) was enacted for better governance, administration and supervision of certain classes of waqfs in Uttar Pradesh. Under the Scheme of the Act, it applies to all waqfs in respect of any property situated in Uttar Pradesh and which was under the superintendence of the Sunni Central Board constituted under the U. P. Act No. 13 of 1936. There is no dispute that the Sunni Central Board of Waqf had a control over the property concerned in the present dispute. Section 19 of the Act covers functions of the Board which under the Act, for the purposes of this case, is the Sunni Central Board of Waqf. The Board has the general power to do all things reasonable or necessary to ensure that the waqfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly appropriated to the purposes for which the waqfs were founded and for which they exist. Without prejudice to this general power of superintendence, the Board is also empowered, rather a duty has been imposed on it, to administer the waqf fund and to remove the mutwalli or to appoint a mutwalli, to put the persons who is appointed in possession of the waqf property under the provisions of the Act provided that appointment of mutwalli or making any other management of the waqf property, the board is to-be guided as far as possible by the directions of the waqf, if any, that is, to further the purposes for which the waqf was created. These powers also include the right and duty to issue directions under the provisions of the Act to a mutwalli or a committee of management regarding a waqf property. 6. Section 20 speaks of delegation of powers. It is open to the Board under this Section to delegate its powers either to the President or to the secretary or even to any other servant of the Board or to a member. 6. Section 20 speaks of delegation of powers. It is open to the Board under this Section to delegate its powers either to the President or to the secretary or even to any other servant of the Board or to a member. In exercise of this power, the President of the Board has been delegated certain powers including that of appointment of a mutwalli and of assumption of direct management of a waqf under Section 48. 7. Section 48 speaks of emergency powers of the Board when the office of mutwalli of a waqf falls vacant. This power is to be exercised without prejudice to the generality of the powers confirmed under Section 19 (ii) (a) regarding appointment of mutwalli under Section 48, in exercise of emergency powers the Board has a right to appoint any person to act as mutwalli for such period and on such condition as the Board may think fit. 8. Under the powers of delegation, the Board has also delegated certain powers to the Secretary of the Board including the powers under Sections 49-B and 57-A as also Section 63 (5 ). Section 49-B deals with recovery of a waqf property transferred in contravention of Section 40-A. Section 57 speaks of recovery of possession from unauthorised occupants and Section 63 (5) speaks of a situation where the Board has assumed direct management of a waqf property or has appointed a committee of management and the committee or the Board is preveated from taking possession of the waqf property, the Board may by order direct the mutwalli to deliver possession of the waqf property to any person or committee appointed to act as mutwalli of the waqf property. In case this powers is exercised the order of Board is to be forwarded to the Civil Judge and the court may execute the order as if it were a decree of the court. 9. Section 55 of the Act states as to how and when a mutwalli may be removed. Under Section 55 (2), if any person is aggrieved by an order or removal of a mutwalli, then he may make reference to the Tribunal within 90 days of the date of application of order of removal. Section 71 needs to be quoted in full: "71. References of disputes, etc. Under Section 55 (2), if any person is aggrieved by an order or removal of a mutwalli, then he may make reference to the Tribunal within 90 days of the date of application of order of removal. Section 71 needs to be quoted in full: "71. References of disputes, etc. to Tribunals.- Any dispute, question or matter, which may under this Act be referred to a Tribunal, shall be referred to a Tribunal having jurisdiction over the area in which the property to which such dispute, question or matter relates is situate or if such property is situate in was under the jurisdiction of more than one Tribunal, then to any of them and the Tribunal of competent jurisdiction shall adjudicate upon such dispute, question or matter in accordance with the provisions of this Act: Provided that no proceedings under this Act in respect of any waqf shall be stayed or suspended merely by reason of the pendency of any such dispute, questioner matter before a Tribunal," A plain reading of this Section indicates that only such dispute or question or matter are open to be referred to the Tribunal which may under the Act be referred to it. Section 76 of the Act makes the award of the Tribunal a final one, not open to any appeal but the High Court has been empowered to call for and examine the records of any case for the purpose of satisfying itself as to the correctness, legality or propriety of any order made under this Act and pass such orders as it may deem fit. 10. The present revision has been preferred only under Section 76 on the ground that the order of Tribunal is not legal because no reference could have been made as the dispute was not one which might under this Act be referred to a Tribunal. 11. In fact, the real dispute between the parties at this level is about the true interpretation of Section 55 of the Act. It has been indicated in the earlier pages of this judgment that under this section the right of the Board to remove a mutwalli has been accepted. 11. In fact, the real dispute between the parties at this level is about the true interpretation of Section 55 of the Act. It has been indicated in the earlier pages of this judgment that under this section the right of the Board to remove a mutwalli has been accepted. The Board may, after affording him an opportunity of being heard, remove a mutwalli other than a managing committee from his office, if the mutwalli is fined on more than one occasions under Section 54 or if he fails to pay without reasonable excuse, for two consecutive years, the contribution payable by him under Section 34 or if he is convicted of an offence relating to the waqf property or money which in the opinion of the Board renders him unfit to continue as the mutwalli or is convicted of an offence involving moral turpitude etc. or if he wrongfully destroys waqf property or is adjudged insolvent or if he is, in the opinion of the Board, unfit to discharge the duties of a mutwalli owing to any physical or mental disability or moral delinquency or is guilty of misappropriation etc. of waqf property. If any person is removed from the post of mutwalli in terms of the above clauses of Section 55 (1), he gets a right under Section 55 (2) to make a reference to the Tribunal and the text of sub-section (2) says that any person aggrieved by an order of removal under sub-section (1) may, by an application, refer the matter to the Tribunal within 90 days of the date of communication of the order of removal. It appears that the right to agitate the matter before the Tribunal occurs only when the order of removal is made under Sub-section (1) of Section 55 speaks of different natures of failures on the part of the mutwalli sought to be removed or his different inactions or misdeeds. The clauses do not include voluntary action of the mutwalli to relinquish his post. A situation may arise when a mutwalli for reasons best felt by him may tender resignation as no law could demand that he would work as a mutwalli even against his wishes. Section 55 (1) does not cover a contingency when the mutwalli tenders his resignation. The clauses do not include voluntary action of the mutwalli to relinquish his post. A situation may arise when a mutwalli for reasons best felt by him may tender resignation as no law could demand that he would work as a mutwalli even against his wishes. Section 55 (1) does not cover a contingency when the mutwalli tenders his resignation. It was contended on the part of the respondents that in fact he did not tender resignation and in the name of tendering resignation he was actually removed. This removal, even if the contention of the learned counsel be accepted, must come in one of the clauses of Section 55 (1) touching his work as a mutwalli, whether he submitted a resignation or not. Whether the papers were forged or obtained forcibly from him were not matters to be dealt with by the Tribunal under Section 71. If he had any grievance the mutwalli could go to a civil court for an appropriate declaration and for appropriate consequential reliefs. The Board had before it, in the present case, two resignation letters submitted by the mutwalli and it was not only within the powers of the Board, rather it was its duty to take over management of the administration of the waqf property in terms of Section 19of the Act. 12. Coming to Section 71 of the Act, the Tribunal gets a jurisdiction only upon a reference made to it under the provisions of the Act and a reference may be made, as already indicated, of only such matters which are referable to the Tribunal. What matters are referable and what not, are given in the Act itself. Section 33, for example, makes a decision of the Board referable when it has declared certain property to be waqf property. Under this Section any person aggrieved by the decision of the Board has a right of reference to the Tribunal. Similarly, Section 55 is another section which allows a reference when a removal is made under Section 55 (1 ). If it is not removal at all, or if it is not even a removal under the provisions of Section 55 (1), Section 55 (2) does not give any right to the mutwalli to make a reference. The Tribunal was, therefore, incompetent to exercise jurisdiction over such a reference. If it is not removal at all, or if it is not even a removal under the provisions of Section 55 (1), Section 55 (2) does not give any right to the mutwalli to make a reference. The Tribunal was, therefore, incompetent to exercise jurisdiction over such a reference. The decision of the Tribunal under Section 71, therefore, was without Jurisdiction and the same must be and is set aside. 13. This revision accordingly stands allowed. The judgment and order dated 7-9-1996 passed under Section 71 of the U. P. Muslim Waqfs Act by the Civil Judge, Sr. Division, Bulandshahr, in his capacity as a Tribunal under Section 70 of the Act, in Reference No. 45 of 1988 is set aside. The present judgment has not touched the merits of the cases of the parties. If any other forum is available to respondent No. 2 to seek redress, he would be free to approach the same subject to limitations of law. Revision allowed. .