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2009 DIGILAW 358 (UTT)

SALMA PARVEEN v. UTTARAKHAND WAQF BOARD

2009-07-08

SUDHANSHU DHULIA

body2009
JUDGMENT The aforesaid two petitions are of similar nature as they pertain to the orders of the Uttarakhand Waqf Board/respondent no. 1, which are on similar issue and are being disposed of by a common order. 2. In the Writ Petition No. 210 of 2009, the petitioner has challenged the validity of the order dated 14-1-2009 and 20-1-2009 passed by the respondent no. 1 (contained as Annexure No. 1 and 2 to the writ petition respectively) under Section 52 of the Waqf Act, 1995 (from hereinafter referred to as the Act). 3. The case of the petitioner is that her (sic, she) had purchased a property at Haldwani from one Mr. Adnan Samad, who has been impleaded as respondent no. 13 in the writ petition. However, the petitioner has received a notice from Waqf Board on 7th July, 2008 under Section 52 of the Act stating that the property, which has been purchased by the petitioner is a Waqf Board i.e. 22-7-2009 whereby the petitioner was asked to explain his conduct. However, the petitioner received an order on 30th January, 2009, which was dated 14th January, 2009 passed by the respondent no. 1, which is annexed as Annexure No. 1 to the writ petition, whereby the property purchased by the petitioner has been declared as a waqf property and a copy of the order has also been sent to the District Magistrate under Section 52 of the Act to take subsequent action thereon. The said order has been passed under Section 52 (1) of the Act and a request has been made to the Collector within whose jurisdiction the property lies to obtain and deliver the possession of the said property to the Waqf Board. The petitioner has challenged this order before this Court by means of the writ petition. 4. Similarly in the second writ petition (bearing Writ Petition No. 232 of 2009 (MS), the petitioners have challenged the validity of the order dated 14.1.2009 and 20.1.2009 passed by the respondent no. 1 (contained as Annexure No. 1 and 2 to the writ petition respectively). 5. The case of the petitioners is herein that the petitioners had purchased two shops at Haldwani from Mohd. Sulamen and Mr. Dilshad Husain, who have been impleaded as respondent no. 13 and 14 in the writ petition. 1 (contained as Annexure No. 1 and 2 to the writ petition respectively). 5. The case of the petitioners is herein that the petitioners had purchased two shops at Haldwani from Mohd. Sulamen and Mr. Dilshad Husain, who have been impleaded as respondent no. 13 and 14 in the writ petition. However, the petitioners have received a notice from Waqf Board on 7th July, 2008 under Section 52 of the Act stating that the property, which has been purchased by the petitioners is a Waqf property under Section 37 of the Act and therefore, the said property has been purchased by the petitioners in violation of the law. Therefore, the date was fixed by the Waqf Board i.e. 22.7.2008 whereby the petitioners in violation of the law. Therefore, the date was fixed by the Waqf Board i.e. 22.7.2008 whereby the petitioners were asked to explain their conduct. However, the petitioners received an order on 30th January, 2009, which was dated 14th January, 2009 passed by the respondent no. 1, which is annexed as Annexure No. 1 to the writ petition, whereby the property purchased by the petitioner has been declared as a waqf property and a copy of the order has also been sent to the District Magistrate under Section 52 of the Act to take subsequent action thereon. The said order has been passed under Section 52(1) of the Act and a request has been made to the Collector within whose jurisdiction the property lies to obtain and deliver the possession of the said property to the Waqf Board. The petitioners have challenged this order before this Court by means of the writ petition. 6. Common objections have been raised by the Waqf Board under Section 52 of the Act stating that the petitioners may first raise their grievance under Section 52(2) of the Act before the Collector and if the Collector passes the same order or any order of delivery of possession under Section 52(2) of the Act, then again there is a remedy by way of an appeal before the Waqf Tribunal, which they can prefer within thirty days from the date of service of order of the Collector. Relevant Section 52 of the Act reads as under: “52. Recovery of waqf property transferred in contravention of Sec. 51. Relevant Section 52 of the Act reads as under: “52. Recovery of waqf property transferred in contravention of Sec. 51. – (1) If the Board is satisfied, after making any inquiry in such manner as may be prescribed, that any immovable property of a waqf entered as such in the register of the waqf maintained under Sec. 36, has been transferred without the previous sanction of the Board in contravention of the provisions of Sec. 51, it may send a requisition to the Collector within whose jurisdiction the property is situated to obtain and deliver possession of the property to it. (2) On receipt of a requisition under sub-section (1), the Collector shall pass an order directing the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order. (3) Every order passed under sub-section (2) shall be served – (a) by giving or tendering the order, or by sending it by post to the person for whom it is intended; or (b) if such person cannot be found, by affixing the order on some conspicuous part of his last known place of abode or business, or by giving or tendering the order to some adult male member or servant of his family or by causing it to be affixed on some conspicuous part of the property to which it relates : Provided that where the person on whom the order is to be served is a minor, service upon his guardian or upon any adult male member or servant of his family shall be deemed to be the service upon the minor. (4) Any person aggrieved by the order of the Collector under sub-section (2) may, within a period of thirty days from the date of the service of the order, prefer an appeal to the Tribunal within whose jurisdiction the property is situate and the decision of the Tribunal on such appeal shall be final. (4) Any person aggrieved by the order of the Collector under sub-section (2) may, within a period of thirty days from the date of the service of the order, prefer an appeal to the Tribunal within whose jurisdiction the property is situate and the decision of the Tribunal on such appeal shall be final. (5) Where an order passed under sub-section (2) has not been complied with and the time for appealing against such order has expired without any appeal having been preferred or the appeal, if any, preferred within that time has been dismissed, the Collector shall obtain possession of the property in respect of which the order has been made using such force, if any, as may be necessary for the purpose and deliver it to the Board. (6) In exercising his functions under this section the Collector shall be guided by such rules as may be provided by regulations.” 7. A perusal of the aforesaid Section makes it clear that the petitioners have an alternative remedy first to raise objections before the Collector under Section 52(2) of the Act and thereafter, against the order of the Collector, they may file an appeal before the Waqf Tribunal under Section 52(3) of the Act. 8. Since the petitioners have an alternative remedy available under the Act, these writ petitions are liable to be dismissed and are hereby dismissed on the ground of alternative remedy. No order as to costs.