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2025 DIGILAW 764 (ALL)

Waqf Madarsa Qasimul Uloom v. State of U. P.

2025-05-12

ROHIT RANJAN AGARWAL

body2025
Hon'ble Rohit Ranjan Agarwal,J. 1. The petitioner before this Court had instituted an Original Suit No.9 of 2011 against defendants-respondents No.1 to 3 claiming relief of permanent prohibitory injunction restraining them from demolishing the property in dispute and making new construction over the same. 2. In the plaint, it was averred that plaintiff is the owner and landlord of the property mentioned in the map marked as ‘A’, ‘B’, ‘C’ and ‘D’. It has been let out to defendants No.1 and 2 on a monthly rent of Rs.34/- In para 2 of the plaint, it has been stated that in the aforesaid Madarsa, a Masjid has been constructed where poor children are given basic education and functioning of Madarsa depends upon contribution made. Further in para 3 of the plaint, it is stated that on the said property, a Police Chauki of P.S. Gagalheri is standing, and, as the new building of the police station has been constructed, the aforesaid police chauki has become out of use and a lock is hanging over the police chauki. Further it has been stated in para 4 that the defendants were removing the roof of the police chauki and were demolishing the structure standing therein. 3. The defendants-respondents contested the suit and filed their written statement on 08.03.2011 wherein only tenancy of Rs.34/- per month was accepted but rest of the contents of the plaint were denied. In the additional pleas, it was specifically stated in para 7 that the plaintiff had claimed the property to be a waqf property but the same has not been registered as a waqf before the Waqf Board, thus the plaintiff had no right to maintain the said suit. 4. During pendency of the suit, an amendment application was moved by the defendants on 12.11.2014 for amending their written statement. The said application was allowed by the trial Court on 22.5.2015 against which the petitioner preferred a Revision No.107 of 2015 which has been dismissed vide order dated 18.3.2016, hence the present writ petition. 5. Learned counsel for the petitioner submitted that by the proposed amendment, defendants are trying to withdraw from the admission made in their written statement, which would result in change of defence and would affect the suit proceedings. 5. Learned counsel for the petitioner submitted that by the proposed amendment, defendants are trying to withdraw from the admission made in their written statement, which would result in change of defence and would affect the suit proceedings. According to him, the proposed amendment could not be allowed as the defendants have set up a new case that the plaintiffs have no right to prosecute the matter as they are not the owner of the same. Reliance has been placed upon decision of Hon’ble Supreme Court in case of Hiralal vs. Kalyan Mal & Ors. 1998 AIR (SC) 618 6. Sri Sanjai Kumar Singh, learned Standing Counsel appearing for the respondents submitted that it is not a case of withdrawal of admission by the defendants. In fact, after filing of the written statement by the defendants in the year 2011, the defendants received a letter dated 18.9.2014 from Assistant Engineer, National Highway, P.W.D., Saharanpur requiring for removal of Police Chauki, which has been constructed on National Highway No.73, and according to the records, the width of highway is 135 ft.. The Highway was to be transferred to the National Highways Authority of India, Ministry of Road Transport and Highways, Government of India (hereinafter called as “NHAI”). Widening of the highways has been proposed by National Highways Development Programme, Phase-IV B. He then contended that another letter dated 26.9.2014 was received by the office of Assistant Engineer, National Highway Division, PWD, Saharanpur wherein it was requested that unauthorized construction, standing on National Highway No.73, should be immediately stopped. On 13.10.2014, the Executive Engineer, National Highway Division, PWD, Saharanpur again wrote a letter addressed to the defendants requiring them to remove unauthorized constructions standing over the land of National Highways. 7. It was on the basis of letters received from the officials of the National Highway Division that amendment application was moved on 12.11.2014 for amending written statement. According to him the plaintiff- petitioner had encroached upon the land of National Highway and this Police Chauki alongwith other shops were constructed, which are required to be demolished in pursuance of the letters of official of the National Highway Division. Both the Courts below had rightly proceeded to allow the amendment application. 8. I have heard the respective counsel for the parties and perused the material on record. 9. Both the Courts below had rightly proceeded to allow the amendment application. 8. I have heard the respective counsel for the parties and perused the material on record. 9. It is a classic case where the land of NHAI has been encroached upon by the plaintiff and Madarsa along with Masjid and certain other constructions have been raised and the property is being claimed to be a ‘waqf’. 10. Before adverting to decide the issue in hand, a cursory glance of some of the provisions of Waqf Act, 1995 (hereafter called as “Act of 1995”) are relevant for the better appreciation of the case. 11. Section 3(a) of Act of 1995 defines “beneficiary”, which reads as under : “beneficiary” means a person or object for whose benefit a waqf is created and includes religious, pious and charitable objects and any other objects of public utility sanctioned by the Muslim law. 12. Section 3 (r) of Act of 1995 defines “Waqf”, which reads as under : “waqf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes— (i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser; (ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record; (iii) “grants”, including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and (iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law, and “waqif” means any person making such dedication; 13. Section 3 (s) of Act of 1995 defines “waqf deed”, which reads as under : “waqf deed” means any deed or instrument by which a waqf has been created and includes any valid subsequent deed or instrument by which any of the terms of the original dedication have been varied.” 14. Chapter II of Act of 1995 provides for “Survey of Auqaf”. Section 4 provides for preliminary survey of auqaf. Section 5 provides for publication of list of auqaf. Chapter II of Act of 1995 provides for “Survey of Auqaf”. Section 4 provides for preliminary survey of auqaf. Section 5 provides for publication of list of auqaf. It is on receipt of report under sub-section (3) of Section 4 of Act of 1995 that the State Government shall forward a copy of the same to the Board. The Board shall examine the report forwarded to it and forward it back to the Government within six months for publication in the Official Gazette. In case of dispute in regard to Auqaf, when a question arises whether a particular property specified as waqf property in the list of auqaf is waqf property or not or whether a waqf specified in such list is a Shia waqf or Sunni waqf, the Board or mutawalli of the waqf or any person aggrieved may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal shall be final. 15. Prior to commencement of Act of 1995, Waqf Act 1954, which was trice amended in 1959, 1964 and 1969 was governing the field. Prior to the Act of 1954, the enactments, which were governing the field, were :- (i) The Mussalman Wakf Validating Act, 1913 (ii) The Official Trustees Act 1913 (iii) The Charitable and Religious Trusts Act, 1920 (iv) Mussalman Wakf Act, 1923 (v) The Hyderabad Endowments Regulation 1349 Fasli (vi) Bihar and Orissa Mussalman Wakf Act, 1926 (vii) Bombay Mussalman Wakf Act, 1935 (viii) Bengal Wakf Act, 1934 (ix) Delhi Muslim Wakf Act, 1943 (x) United Provinces Muslim Wakfs Act, 1936 (xi) Bihar Wakf Act, 1947 16. Thus, from the combined reading of prior enactments on the subject of waqf, it is clear that ‘waqf’ means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. Thus, from the combined reading of prior enactments on the subject of waqf, it is clear that ‘waqf’ means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. According to Act of 1995, it includes a waqf by user, a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record; grants, including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law. “Waqif” means any person making such dedication. 17. ‘Waqf deed’ means any deed or instrument by which a waqf has been created and includes any valid subsequent deed or instrument by which any of the terms of the original dedication have been varied. 18. Thus, essential feature for a valid waqf, which culls out is that, there must be dedication of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings. 19. Syed Ameer Ali, one of Muslim Scholar has said as under : “the Mohammadan law owes its origin to a rule laid down by the Prophet of Islam; and means; the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings. As a result of the creation of a wakf, the right of wakf is extinguished and the ownership is transferred to the Almighty. The manager of the wakf is the mutawalli, the governor, superintendent, or curator. But in that capacity, he has no right in the property belonging to the wakf; the property is not vested in him and he is not a trustee in the legal sense.” 20. From the reading of the plaint, it transpires that over the waqf madarsa, a masjid has been constructed along with certain other structures, one of which has been let out to the defendants. There is no disclosure as to how the property in question is a waqf and when was it registered. From the reading of the plaint, it transpires that over the waqf madarsa, a masjid has been constructed along with certain other structures, one of which has been let out to the defendants. There is no disclosure as to how the property in question is a waqf and when was it registered. The defendants, in their written statement, has clearly stated in additional pleas that there is no registration of the said waqf nor there is any disclosure in the plaint. 21. It was the subsequent event, which had taken place in the year 2014, where the national Highway Authority took steps for road widening and it required defendants to stop construction being made on the land of National Highway No.73 and also for removing the same as the NHAI was proceeding under the National Highways Development Programme, Phase-IV B, for widening of national highways and the illegal constructions, which were standing, such as the Police Chauki and the other shops, need to be demolished. Letter addressed to the Station House Officer, Gagalheri on 18.09.2014, 26.09.2014 and 13.10.2014 of National Highway Division in this regard are extracted hereas under : 22. From the reading of these correspondence, it is clear that the entire constructions, which has been raised by the plaintiff, stands upon the land of National Highway No.73 and in the garb of waqf property, the petitioner is claiming right. The defendants had rightly moved amendment application for amending the written statement on the ground that it is the National Highway Authority, who is the owner of land in question as the constructions are standing over the National Highway No.73 which does not belong to the plaintiffs. Reliance placed upon decision rendered in case of Hiralal (supra) is distinguishable in the present set of case as the defendants have not resiled from their admission made earlier. 23. In fact, the defendants were never aware of the fact that the Police Chauki, which was functioning was constructed over the land of National Highway No.73. It was in the year 2014 when these correspondence were made by the officials of the National Highway Division with the Station House Officer, Gagalheri, defendant No.2 that the true picture came in light. The trial Court rightly allowed the amendment application as it does not set up a new case of the defendants. It was in the year 2014 when these correspondence were made by the officials of the National Highway Division with the Station House Officer, Gagalheri, defendant No.2 that the true picture came in light. The trial Court rightly allowed the amendment application as it does not set up a new case of the defendants. The defendants had been paying rent of Rs.34/- per month for a long time unknowingly, accepting the fact that the structure standing therein was the property of the plaintiff. Once it was revealed that the constructions were unauthorized, standing over the land of National Highway 73 that the amendment was sought. 24. This Court is surprised to note that the plaintiff has made construction over the land of National Highways and had let out the structure to different persons and is realizing the rent treating it to be property of waqf Madarsa. It cannot be said to be a case of ‘waqf by user’ as the owner of the property in dispute is the National Highway Authority of India, which is under the control of Central Government, Ministry of Road Transport and Highways. 25. Considering the facts and circumstances of the case, I find that no interference is required in the order passed by the trial Court allowing the amendment application filed by the defendants- respondents under Order VI, Rule 17 C.P.C. as well as order passed by revisional Court. 26. Writ petition fails and is hereby dismissed