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Allahabad High Court · body

2015 DIGILAW 1791 (ALL)

Nabban Husain v. Rent Control & Eviction Officer

2015-07-07

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. Heard learned counsel for the parties. 2. By means of the present writ petition,petitioner is challenging the order dated 29.5.2015 passed by the Rent Control Eviction Officer/Additional City Magistrate(III), Kanpur Nagar wherein application dated 9.4.2015 filed under section 66(3) of Muslim Waqf Act, 1960(hereinafter referred to as the 'Act') and application dated 23.5.2015 filed under sections 65 and 66 of the Act have been rejected . By means of these applications, petitioner has sought impleadment of the Waqf Board as a party to the proceedings under section 16 of U.P. Act No. 13 for allotment of the premises in question. The pleading of the petitioner, who claims to be occupant of the building in question, is that the property in question is a Waqf property and is exempted under section 2(1) (bbb) of U.P. Act No. 13. 3. So far as the application in question is concerned, the petitioner had pleaded that the Waqf Board be impleaded and notice be issued and be called for to produce the waqf deed before the court below for establishing that the property in question is a Waqf property. The court below rejected the application on the ground that there is no provision of issuing notice to the Waqf Board under any U.P. Act No.13 of 1992.The petitioner may establish by leading evidence that the property in question belongs to Waqf and can produce the Waqf deed and the entires made by the Waqf Board in the relevant register. There is no question to summon a document, certified copy of which can be obtained. 4. Challenging the order impugned , learned counsel for the petitioner submits that while rejecting the application the court below has wrongly observed that the dispute is with regard to House no. 88/490 A which is not a Waqf property whereas the documents filed by the petitioner pertain to House no 88/490 which is different from the house in question occupied by the petitioner. 5. From a perusal of the order passed by the court below, it is evident that the application for issuing notice to the Waqf Board and summoning the Waqf deed was rejected. 5. From a perusal of the order passed by the court below, it is evident that the application for issuing notice to the Waqf Board and summoning the Waqf deed was rejected. The order is perfectly justified in as much as it is incumbent upon the petitioner to establish by leading positive evidence, namely, the waqf deed and other relevant documents that the property in question belongs to Waqf and is exempted from the operation of the U.P. Act No. 13 of 1972.There is no question to issue notice to the Waqf Board or summon the documents to decide the controversy. 6. So far as the observation in the order impugned regarding the documents filed by the petitioner, it is provided that the petitioner may be given an opportunity to lead evidence to establish his case and the matter may be decided on merits regarding maintainability of the proceedings under the Rent Control Act. While deciding the matter on merits, the finding recorded in the order dated 28.5.2015 that the property in dispute is not a waqf property will not come in his way. The court below has to record an independent finding after perusal of the documents/evidence led by the petitioner, if any, with regard to the nature of the property in question, without being influenced by the observations in the order dated 29.5.2015. However, no interference is required in the order impugned dated 29.5.2015. 7. The writ petition is disposed of with the observations made above.