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2019 DIGILAW 1831 (ALL)

Fakhre Alam v. Spl. Judge/A. D. J. , Pratapgarh

2019-07-31

IRSHAD ALI

body2019
JUDGMENT : Irshad Ali, J. Heard Sri G.C. Sinha, learned counsel for the petitioner and to Sri A.R. Khan, learned counsel for respondent Nos.3 and 4. 2. Brief fact of the case is that Sri Babban Khan was a Zamindar and executed a registered waqf deed and devoted his entire property including the disputed shop to the almighty God in the name of Allahtala. The Civil Judge (Senior Division), Pratapgarh vide judgment and decree dated 31.01.1983 passed in Regular Suit No.23 of 1980 held that the partition decree obtained on the basis of compromise is null and void by holding that the property in dispute belongs to Sri Babban Khan and by means of a waqf deed, it is a waqf property. 3. The respondent No.4 Jane Alam executed a sale deed regarding the disputed premises in favour of Mohd. Saleem on 10.06.1997. An application was moved by one Sri Nadir Khan for allotment of the shop before the respondent No.2 on 30.09.1997. The respondent No.2, on the basis of the allotment application, directed to the Rent Control Inspector to make spot inspection and to submit a report as per provisions of Rule 8 of U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972, hereinafter referred to as U.P. Rent Control Act, 1972. The report was submitted on 17.10.1997 and the petitioner was found in occupation of the disputed shop. On 17.07.1999, the respondent No.2 himself inspected the spot and prepared a report, wherein the petitioner was again found in occupation and running his business. 4. On 30.07.1999, a notice was issued to the petitioner to submit his objection. The petitioner submitted detailed written objection before the respondent No.2 and mentioned the entire facts regarding the title to use the occupation and legal status declared by the Court. 5. The respondent Nos.3 and 4 moved a transfer application before the District Magistrate, whereupon a report was called for, wherein the respondent No.2 submitted a report to the District Magistrate on 21.01.2000 and thereafter, the case was transferred by the District Magistrate to the Additional District Magistrate, Pratapgarh. When the case was transferred, no vacancy was declared as required under Section 12 of the Act No.13 of 1972. 6. Vide order dated 01.01.2003, the Additional District Magistrate without declaring the vacancy allotted the shop to the respondent No.3. 7. When the case was transferred, no vacancy was declared as required under Section 12 of the Act No.13 of 1972. 6. Vide order dated 01.01.2003, the Additional District Magistrate without declaring the vacancy allotted the shop to the respondent No.3. 7. Against the order passed by the prescribed authority/allotment authority dated 01.01.2003, revision was filed under Section 18 of the Rent Control Act before the District Judge, Pratapgarh, which was also decided vide judgment and order dated 01.09.2004. 8. By means of the present writ petition, the petitioner is challenging the order of allotment dated 01.01.2003 of the shop and the order of revisional Court passed on 01.09.2004. 9. Assailing the impugned orders, learned counsel for the petitioner submitted that under the written statement filed before the allotment authority, in paragraph Nos.6, 7, 8 and 9 specific objection was taken that the shop in question is a waqf property and has also referred the judgment and decree passed in the year 1983 declaring the shop to be waqf property. Thus, his submission is that both the authorities ignoring this material fact have proceeded to pass the impugned orders. 10. He next submitted that under Section 2(1)(bbb) of U.P. Act No.13 of 1972, it has been provided that in case the property is waqf property, then the provisions of U.P. Act No.13 of 1972 is not applicable. Thus, his submission is that the proceeding initiated by exercise of power under Section 2(1)(bbb) of U.P. Act No.13 of 1972 is wholly without jurisdiction. 11. He further submitted that both the authorities have exercised their power under U.P. Act No.13 of 1972 and without recording cogent reasons have proceeded to pass the impugned orders, which are not sustainable. 12. On the other hand, learned counsel for respondent Nos.3 and 4 submitted that the allotment authority as well as the revisional authority have committed no error in law in allotting the shop and affirming the allotment in favour of respondent No.3. 13. He next submitted that the objection raised in the written statement was duly considered and after consideration of the material on record, the allotment authority as well as the revisional authority have recorded finding that it is not a waqf property, therefore, the provisions of U.P. Act No.13 of 1972 are applicable. 14. 13. He next submitted that the objection raised in the written statement was duly considered and after consideration of the material on record, the allotment authority as well as the revisional authority have recorded finding that it is not a waqf property, therefore, the provisions of U.P. Act No.13 of 1972 are applicable. 14. He further submitted that the submission advanced by learned counsel for the petitioner is fallacious and cannot be accepted in view of the finding returned by the revisional Court. 15. Having heard the rival contentions advanced by learned counsel for the parties, I perused the material on record. 16. To resolve the controversy involved in the present writ petition, the provisions of Section 2(I)(bbb) of U.P. Act No.13 of 1972 are being quoted below: "2. Exemptions from operation of Act.-(1) Nothing in this Act shall apply to [the following, namely] :- (bbb) any building belonging to or vested in a waqf including a waqf-alal-aulad;]" 17. In regular Suit No.23 of 1980, after leading evidence and on perusal of the material placed, a finding has been returned by the Civil Judge (Senior Division) that Shop No.49 was numbered on the basis of partition decree in terms of compromise in regular Suit No.25 of 1971. The trial Court while examining the material on record has also considered the partition decree in terms of the compromise and recorded finding that this is a waqf property and the judgment and decree obtained in terms of the compromise is void. 18. It has further been recorded that the shop, which is numbered as Shop No.49, is not recorded in the municipal record and the area has been allotted by the claimants, who were party to the decree obtained in terms of the compromise. 19. On perusal of the judgment and decree dated 31.01.1983, it is recorded that the property in question was the property of Sri Babban Khan and it was transferred in the name of Allahtala by making a registered waqf deed with the beneficiary of the legal heirs/representatives of the family of Sri Babban Khan as Mutvalli. 20. It has also been recorded that four sons of the pedigrees including Sri Jane Alam are Mutvallis of the property in question. 21. 20. It has also been recorded that four sons of the pedigrees including Sri Jane Alam are Mutvallis of the property in question. 21. On perusal of the order passed by the prescribed authority, it is apparent that in issuing allotment letter in regard to Shop No.49, the finding returned by the trial Court vide judgment and decree dated 31.01.1983 has nowhere been considered in true letter and spirit. Once, there is a judgment and decree declaring the shop in dispute to be part of the waqf property, the proceeding under Act No.13 of 1972 was not amenable in view of the bar imposed under Section 2(1)(bbb) of U.P. Act No.13 of 1972. 22. On perusal of the order of allotment, it is reflected that in spite of specific objection raised, the prescribed authority has failed to appreciate that there is a declaration of the competent Court of law in the judgment and decree, therefore, he cannot sit over a judgment and decree while initiating the proceeding of allotment under the provisions of U.P. Rent Control Act. Thus, the prescribed authority in not considering the relevant material placed through written statement has committed manifest error of law in making applicable the provision, which was not attracted in view of the fact that the property belongs to the waqf. 23. The revisional Court has also ignored the relevant aspect of the matter while passing the judgment and has affirmed the finding returned by the prescribed authority in its judgment. Once, there is a judgment and decree passed by the competent Court of law, which has not been assailed in appeal or in any other proceeding before any competent Court of law, it has attained finality in the eyes of law. 24. Therefore, ignorance while deciding an issue, wherein the property was declared to be waqf property by recording specific finding, the orders impugned vitiate in law. 25. Accordingly, the revisional Court has also committed manifest error of law in applying the provisions of U.P. Act No.13 of 1972, which was actually not applicable in view of the fact that the property is a waqf property. 26. Upon thoughtful consideration of the material on record, this Court is of the opinion that the prescribed authority as well as the revisional authority have committed manifest error of law in ignoring the relevant material placed before them. 26. Upon thoughtful consideration of the material on record, this Court is of the opinion that the prescribed authority as well as the revisional authority have committed manifest error of law in ignoring the relevant material placed before them. Therefore, the orders impugned dated 01.01.2003 and 01.09.2004 being wholly without jurisdiction cannot be sustained and the are hereby set aside. 27. The writ petition succeeds and is allowed with a cost of Rs.10,000/-.