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2010 DIGILAW 2969 (ALL)

RAHAT JAN v. U. P. SUNNI CENTRAL BOARD OF WAQF

2010-09-24

ARUN TANDON

body2010
JUDGMENT Hon’ble Arun Tandon, J.—Heard Shri W.H. Khan, Senior Advocate assisted by Shri Gulrez Khan, Advocate on behalf of the petitioners and Shri M.A. Qadeer, Advocate on behalf of the respondent No. 2. 2. Petitioners before this Court seek quashing of the order of Waqf Tribunal, Moradabad dated 6.8.2010 where under the appeal filed by the predecessor in interest of the petitioners under Section 49-B (4) of the U.P. Muslim Waqf Act 1960 (hereinafter referred to as ‘Act’ 1960) has been dismissed. 3. Facts giving rise to the present writ petition are as follows: U.P. Sunni Central Board of Waqf forwarded a letter referable to Section 49-B (4) of the Act 1960 to the Collector for the petitioner being evicted from the waqf property more appropriately described in the letter itself on the allegation that he was an unauthorised occupant over the property of the Waqf. The Collector in turn forwarded a notice to the petitioners referable to Section 49-B (2) of the Act 1960. 4. The predecessor in interest of the petitioner filed an appeal against the said notice of the Collector as provided for under Section 49-B(4) of Act, 1960. In the appeal so filed, it was contended that he was tenant of one Rafikur Rahman Khan and that the property in dispute was not a waqf property. It was contended that the Waqf Sunni Board was not the owner of the property in question. The entire proceedings initiated under the Waqf Act, 1960 were without jurisdiction. 5. On behalf of Waqf Board, it was contended before the Authority concerned that the property was part and parcel of Waqf No. Ex No. 138/4,5. It was stated that Azizur Rehman Khan had executed a waqf deed in respect of property in question on 19.1.1926 which was duly registered in the office of the Registrar. It was further stated that the Waqf stood duly registered under Section 30 of the Waqf Act, and at no point of time the alleged landlord or the predecessor in interest of the petitioners, raised any objection in respect of the registration of waqf alongwith its property under Section 30 of the Waqf Act. It was contended that the registration of the property as that of the Waqf under Section 30 of the Waqf Act is a conclusive proof of the fact that the property is of the Waqf. It was contended that the registration of the property as that of the Waqf under Section 30 of the Waqf Act is a conclusive proof of the fact that the property is of the Waqf. Therefore, the case of the predecessor in interest of the petitioner that he was tenant of one Rafikur Rahman cannot be accepted nor the notice could be challenged on the said ground. It was clarified that the owner of the property Azizur Rahman Khan had purchased the house in 1957 by way of sale deed from Nawab Begum and it is this house which is in dispute. 6. The matter was considered by the 12th Additional District Judge, Moradabad and he by means of judgment and order dated 16.1.1990 he held that the notice issued by the Collector dated 8.9.1986 was bad. It was accordingly quashed. It was held that the property in question did not belong to Azizur Rehman Khan exclusively and, therefore, he could not have created a waqf of the entire property. It was also held that objections to the registration of the property as waqf property can be raised in an appeal filed under Section 49-B(4) by a person who has no interest in the Waqf, like the predecessor in interest of the petitioner. 7. The Sunni Waqf Board not being satisfied with the order so passed by the appellate authority filed Writ Petition No. 1438/1980. The High Court allowed the writ petition and issued following directions: “I, therefore, think that it is necessary that the matter be remanded to the Court below to clearly distinguish and identify the property of the Waqf and the respondents. The order of the District Judge is vitiated because it has failed to do this and, therefore, the order of the District Judge dated 16.1.1990 is hereby set aside. The matter is remanded for consideration afresh and as it is an old matter, it may be concluded within a period of one year after providing to both the parties an opportunity of hearing and of leading evidence. It is, however, made clear that until the matter is decided, the respondents shall not be dispossessed from the portion they are occupying as tenants. The petition is, therefore, allowed. No order as to costs.” 8. It is, however, made clear that until the matter is decided, the respondents shall not be dispossessed from the portion they are occupying as tenants. The petition is, therefore, allowed. No order as to costs.” 8. On remand, the 4th Additional District Judge, Moradabad after taking into consideration the evidence led by the parties, recorded a categorical finding of fact that the house subject matter of dispute is in fact the property of the waqf which was registered under Section 30. The rent receipts issued by Rafikur Rahman Khan as landlord whereof no legal consequence. Lastly, it has been recorded that if the occupant felt aggrieved by the registration of the property as Waqf he should have approached the Waqf Tribunal under Section 29(8) of the Waqf Act as then applicable which remedy was never availed of either by the occupant or Rafikur Rahman Khan who according to him was the owner of the property, despite being a party to the proceedings before the appellate Court. After having arrived at the aforesaid conclusion the appellate Court has held that the notice issued to the predecessor in interest of the petitioners was strictly in accordance with law and they were liable to be evicted. Accordingly, the notice of eviction was confirmed. It is against this order that the present writ petition has been filed. 9. Shri W.H. Khan, Senior Advocate vehemently contended before this Court that the property in question was not the exclusive property of Azizur Rahman Khan and, therefore, the Waqf executed by him of the entire property was illegal. Such illegality could not be said to have been cured merely because of the registration of the waqf deed. He submits that it was not necessary for the predecessor in interest to have filed an application under Section 29 sub-clause 8 of the Waqf Act, as then applicable, before the Tribunal, nor it was necessary for any issue being raised in that regard under Section 33(2) before the Tribunal. He clarifies that the issue as to whether the property was a waqf property or not could be raised in an appeal filed under Section 49-B (4) by a person who is not interested in the waqf. Therefore, such issue had to be gone into by the appellate Court while deciding the appeal. He clarifies that the issue as to whether the property was a waqf property or not could be raised in an appeal filed under Section 49-B (4) by a person who is not interested in the waqf. Therefore, such issue had to be gone into by the appellate Court while deciding the appeal. Since the appellate Court has not examined the aforesaid aspect of the matter, the impugned order cannot be legally sustained. He has further clarified that the predecessor in interest had been in possession over the property in question more than 45 to 50 years. 10. Shri W.H. Khan has placed reliance upon the following judgments of Hon’ble High Court: (a) Smt. Nargis Jamal and another v. U.P. Sunni Central Board of Waqfs and others, 2007 (9) ADJ 539 (b) Smt. Amina Khatoon v. Third Additional District Judge, Farukhabad and others, 1987 (13) (HC) ALR 456, (c) Shia Central Board of Waqfs, U.P. Lucknow v. District Judge, Rampur and another, 1986 All LJ 425. 11. Shri M.A. Qadeer, Advocate, counsel for the Waqf Board with reference to the judgment of this Court in the case of Afzal Husain v. Ist Additional District Judge and others, AIR 1985 All. 79 (LB), in reply contends that dispute qua a property being wrongly registered as waqf property cannot be raised or can be gone into in an appeal under Section 49-B (4). The remedy for the purpose is under Section 29(8) or Section 33(2) of Act, 1960. 12. I have heard counsel for the parties and have examined the records of the present writ petition. 13. It is not in dispute between the parties that proceedings under Section 49-B (4) were initiated on a letter of the U.P. Sunni Waqf Board by the Collector in respect of property which is duly registered as the waqf property in the relevant waqf register. In the proceedings objection initially taken was that the property which was subject matter of notice under Section 49-B (4) in fact was not a waqf property. The District Judge in appeal recorded that since Azizur Rehman Khan was not the exclusive owner of the property in question, he could not have executed the waqf deed in respect of the entire property. The District Judge in appeal recorded that since Azizur Rehman Khan was not the exclusive owner of the property in question, he could not have executed the waqf deed in respect of the entire property. It was held that the Rafiur Rehman had a share in the property and the portion which in the occupation of the present petitioner was let out to him by Rafikur Rahman Khan and, therefore, the notice under Section 49-B (4) was bad. 14. The High Court while deciding the writ petition filed by Waqf Board under judgment and order dated 30.11.2005 remanded the matter for determination of the issue as to whether the property in question was in fact part of the Waqf property duly registered or not and to distinguish and identify the property subject matter of dispute with reference to the properties of waqf. The relevant portion of the order of the High Court has already been quoted above. The Additional District Judge on remand has recorded a categorical finding, after appreciating evidence led by the parties, that the disputed house is in fact part and parcel of the waqf property duly registered and, therefore, it has been held to be a waqf property. It has been further recorded that if there was any challenge to the registration of the property as waqf property, for whatever reason it may be, the remedy was under Section 29 sub-clause 8 of Act 1960 as then applicable which remedy has not been availed of either by the alleged landlord who was party to the appeal proceedings or by the alleged tenant namely the present petitioners at any point of time. It is for this reason that the appeal has been dismissed. 15. Before this Court, the issue canvassed is that for a person who is not interested in the waqf, it is not necessary to either file an application under Section 29(8) or to initiate proceedings under Section 33 (2) as then applicable. The issue as to whether the property was correctly recorded as waqf property or not can be agitated and has to be examined in an appeal filed under Section 49-B (4). For appreciating the contentions raised, this Court may produce Section 29 (7 & 8) and Section 33 of the Waqf Act as was then applicable. The issue as to whether the property was correctly recorded as waqf property or not can be agitated and has to be examined in an appeal filed under Section 49-B (4). For appreciating the contentions raised, this Court may produce Section 29 (7 & 8) and Section 33 of the Waqf Act as was then applicable. 29.Registration (7) On receipt of an application for registration, the Board may, before the registration of the wakf, make such inquiries as it thinks fit in respect of the genuineness and validity of the application and the correctness of any particular therein, and, when the application is made by any person other than the person administering the wakf property, the Board shall, before registering the wakf, give notice of the application to the person administering the wakf property and shall, after affording him a reasonable opportunity of being heard, pass such orders as it may deem fit. (8) Any person aggrieved by an order of the Board under sub-section (7) may, by application within 90 days from the date of that order, refer the dispute to the Tribunal which shall give its decision thereon. 33. Decision if a property is wakf property.—(1) The Board may collect or cause to be collected information regarding any property which it has reason to believe to be a wakf property and if any question arises whether a particular property is wakf 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 sub-section (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. It would be apparently clear that any person aggrieved by an order of the Waqf Board under Section 29 registering a property to be that of Waqf can file an application within 90 days of such registration of the Waqf property before the Tribunal. Similarly, if any question arises as to whether a particular property is a waqf property or not the same is to be decided by the Board under Section 33(1) and against the decision a person aggrieved has the remedy by way of reference to the Tribunal under Section 33(2) of Act, 1960. 17. Similarly, if any question arises as to whether a particular property is a waqf property or not the same is to be decided by the Board under Section 33(1) and against the decision a person aggrieved has the remedy by way of reference to the Tribunal under Section 33(2) of Act, 1960. 17. Sections 29 sub-clause 8 and Section 33 sub clause 2 open with the words ‘any person aggrieved’. In the opinion of the Court, the words ‘any person aggrieved’ will include a person who claims a title over the property which is being registered as waqf. In the facts of this, a person who alleges that the property is not exclusive property of the person executing the waqf deed and that the complainant had a share in the property which share cannot be converted into the waqf property. Similarly, this Court may record that person who claims to be a tenant of a premises which is being so recorded as waqf property would also answer the description of ‘any person aggrieved’ if he feels that he was a tenant of some other landlord owner or that the property is not a waqf property. Such tenant can seek his remedy under Section 29(8) or under Section 33(2). 18. The Hon’ble High Court in the case of Afzal Husain v. Ist Additional District Judge and others, AIR 1985 All 79 (LB) has specifically held that the dispute about registration of waqf property cannot be gone into an appeal filed under Section 49-B (4). For reading reference paragraphs 8 and 9 of the said judgment are being reproduced as under: 8. “The next question that arises for consideration is whether the above registration of the waqf and the entry of the property in the register maintained under Section 30 can be challenged in an appeal preferred under Section 49-B (4) of the Act. For deciding this question some provisions of the Waqfs Act will require consideration. Registration of Waqfs is dealt with in Chapter III of the Act. Under Section 28 of the Act all waqfs which have already been registered under the provisions of the U.P. Muslim Waqfs Act 1936 shall be deemed to have been registered under the provisions of the Waqfs Act, 1960. Section 29 provides the procedure for registration of waqf under the Act of 1960. Under Section 28 of the Act all waqfs which have already been registered under the provisions of the U.P. Muslim Waqfs Act 1936 shall be deemed to have been registered under the provisions of the Waqfs Act, 1960. Section 29 provides the procedure for registration of waqf under the Act of 1960. The application made for registration of a waqf under Section 29 is to be signed and verified in the same manner as is provided in Civil Procedure Code, 1908 for signing and verification of pleadings. Registration is done under sub-section (7). Sub-section (8) of Section 29 provides that any person aggrieved by an order of the Board under sub-section (7) may, by application within 90 days from the date of that order, refer the dispute to the Tribunal which shall give its decision thereon. In view of this provision a person aggrieved by the order of the Board registering a waqf is entitled to have the dispute decided by a tribunal provided he makes an application in that behalf within 90 days from the date of the order. After a waqf has been registered under Section 29 it is required to be entered in the register of waqfs which is required to be maintained under Section 30 of the Act. If any question arises whether any property is waqf property the same is to be decided by the Board under sub-section (1) of Section 33. Against the decision of the Board a reference to the Tribunal is maintainable at the instance of the aggrieved person under Sub-section (2)of the same section. The constitution and the powers of the Tribunal are contained in Chapter IX of the Act. Under Section 70 falling under this Chapter the Tribunal is to be constituted by the State Government. Under Sub-section (2) the Tribunal is to consist of one person only who shall be a judicial officer of the State Government not below the rank of a Civil Judge. Under Section 72 the Tribunal while deciding the dispute is required to follow the same procedure as is prescribed by the Civil Procedure Code 1908 in regard to suits except where specific provision to the contrary has been made in the Act or the Rules, framed thereunder. Under sub-section (2) of Section 72 the provisions of the Evidence Act 1872 are applicable to the adjudication of a dispute by a Tribunal. Under sub-section (2) of Section 72 the provisions of the Evidence Act 1872 are applicable to the adjudication of a dispute by a Tribunal. The Tribunal gives its award under Section 73. Under Section 74 the Tribunal is deemed to be a Civil Court and it enjoys the same powers as are vested in such a Court under the provisions of the Civil Procedure Code when trying a suit or executing a decree or order. Section 75 provides that no person shall institute any suit or other proceedings in any Civil Court with respect to any dispute or question or other matter which is required or permitted under this act to be referred to a tribunal for adjudication. This section thus bars the jurisdiction of the Civil Court in respect of the matters triable by the Tribunal. Under Section 76 the award of the tribunal is made final and a conclusive. Such an award shall have the force of a decree and it cannot be questioned or appealed against in any Court of law. Under the proviso to this section discretion has been conferred upon this Court to call for and examine the record of any case for the purpose of satisfying itself as to the correctness legality or propriety of any award made under this Act. This power may be exercised by this Court suo motu or on the application of the Board or of any person aggrieved. From these provisions it would appear that exclusive jurisdiction has been carved out in favour of the Board and the Tribunal in respect of matters which can be decided and dealt with by the Board and the Tribunal. The Court hearing appeal under Section 49-B (4) of the Act is different from the Tribunal constituted under Section 70 of the Act. The matters which fall within the exclusive purview of the Board and the Tribunal cannot be agitated before the appellate authority hearing appeal under the said provision. I am, therefore, of the opinion that the petitioner was debarred from disputing the registration of the waqf before the appellate authority in the appeal preferred by him under Section 49-B(4) of the Act. The appellate authority was also debarred from considering the validity of the entry made in the register maintained under Section 30 of the Act. I am, therefore, of the opinion that the petitioner was debarred from disputing the registration of the waqf before the appellate authority in the appeal preferred by him under Section 49-B(4) of the Act. The appellate authority was also debarred from considering the validity of the entry made in the register maintained under Section 30 of the Act. The entry in this register, it may be pointed out, is consequential to the registration of the waqf under Section 29". 19. In view of the aforesaid, the Additional District Judge appears to be justified in recording that in the proceedings under Section 49-B (4), the issue qua registration of the property as Waqf property cannot be examined. 20. So far as the judgment relied upon by the petitioner in the case of Smt. Nargis Jamal (supra) which in turn is based upon the judgment of this Court in the case of Shia Central Board of Waqfs, U.P. Lucknow v. District Judge, Rampur, 1986 All LJ 425, is concerned, this Court may record that in the aforesaid case, it has been held that Section 33 only applies to a case where the property has not been entered in the register of Waqf. In paragraphs 9 and 10, it has been laid down that since the property was registered as a waqf property, the only remedy available to a person who has been served with a notice under Section 49-B/2 is to file an appeal under Section 49-B (4). There can be no dispute in respect of the said proposition however there was no issue as to whether the registration of the property as waqf, was correct or not and, therefore, the High Court was not called upon to examine as to whether the registration of the waqf property itself could be questioned in an appeal under section 49-B (4) or not. 21. 21. So far as the case of Smt. Amina Khatoon (supra) is concerned, it may be stated that the said judgment has no application in the facts of the present case for the reason that in the aforesaid case it was an admitted position that the lease/licence in question was granted prior to the execution of the waqf deed and, therefore, this Court held that such licence/lease shall not stand terminated prior to the expiry of term for which it had been so granted only because of the execution of the waqf deed. 22. The answer to the issue has been more appropriately provided in the case of Afzal Husain (supra) which applies with full force in the facts of this case. This Court holds that any person aggrieved in respect of registration of a property as waqf property or it being a waqf property or not has the remedy of either filing an application under Section 29(8) or under Section 33(2). Such issues cannot be raised in an appeal under Section 49-B(4). 23. At this stage, counsel for the petitioners contended that he has been in occupation of the premises for last more than 40 to 45 years, and since he is liable to be evicted in view of the impugned order, this Court may grant some protection so as to provide a breathing time to approach the authority under Section 29(8)/33(2) of the Act, 1960. 24. The right of the petitioners to seek his remedy under Section 29 sub-clause 8 or Section 33-(2) of the act, 1960 before the Tribunal against the registration of the property as waqf property or the property being not a waqf property is statutory right he may if so advised avail the same. He is also at liberty to seek interim protection in accordance with law in said proceedings. 25. This Court finds no good ground to interfere with the order impugned. 26. Writ petition stands dismissed. —————