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KRISHNA MURARI AGRAWAL versus U.P. SUNNI CENTRAL BOARD OF WAKF 3

High Court of Judicature at Allahabad

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Krishna Murari Agrawal v. U.P. Sunni Central Board Of Wakf 3-A Mal Avenue Thru' C.E. - WRIT - C No. 24725 of 2003 [2006] RD-AH 6037 (20 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 1

Civil Misc. Writ Petition No. 24725 of 2003

Krishna Murari Agarwal............ Vs. U.P..  Sunni Central board  of Wakf and others..

Connected with

Civil Misc. Writ Petition No. 25616 of 2003

Khwaza Shafqat Ullah............ Vs.  Collector Allahabad  & others..

And

Civil Misc. Writ Petition No. 25573 of 2003

Smt. Zakia Khatoon............ Vs.  Collector Allahabad  & others..

And

Civil Misc. Writ Petition No. 25349 of 2003

Jagdish Narain Chopra ...... Vs.  Collector Allahabad  & others..

And

Civil Misc. Writ Petition No. 24832 of 2003

Sonu Agarwal...... Vs.  Collector Allahabad  & others..

And

Civil Misc. Writ Petition No. 26316 of 2003

Manohar Lal ............ Vs.  Collector Allahabad  & others..

And

Civil Misc. Writ Petition No. 25149 of 2003

Mohd. Yaqub............ Vs. U.P..  Sunni Central board  of      Wakf and others..

And

Civil Misc. Writ Petition No. 25269 of 2003

Sri Prakash Agrawal ............ Vs. Sate of U.P.  & others..

And

Civil Misc. Writ Petition No. 25617 of 2003

Smt. Imtiyazi Begum.... Vs. Sate of U.P.  & others..

And

Civil Misc. Writ Petition No. 25175 of 200

         R.K. Midha .... Vs.  Tehsildar and   & others.

Hon'ble Yatindra Singh,J

Hon'ble R.K.Rastogi,J

1. A Wakf named as Umda Bibi  Wakf No. 60 ( the Wakf) Allahabad  was created    on 6th June, 1885. It has been registered  under the different   Wakf Acts  and  is presently  registered under the  Wakf Act,1995 ( the Wakf Act). This  Wakf   has  two  buildings  and    is situated in  the Chowk  area of Allahabad .  There are   16 shops in it.  Most of  these  shops have been let out  to different persons  from  the time of their predecessors in interest and  they have been in possession   for   more than 50 years.  The rent of  these shops   is  very nominal  in comparison to  other shops of that area.  Thus the income  of this   Waqf  is   very  little  with the result  that the Mutwalli  is    not being given proper remunerations. Similar is the case in  respect  of a large number of other   wakfs in the country .

2. An Association  of Imams  filed a case  before  the  Supreme Court  for improving  their conditions . The decision  in this  case is reported  in All India Imam Organization  Vs. Union of India  (AIR 1993 SC 2086). The  Supreme  Court   held that   it is the  duty of  different  Waqf Boards of the States  to harness  their  resources and  to pay  the persons  who performed the most important and pious  duty,  namely of leading  the community  prayer  in a mosque. The Supreme court also issued  guidelines  to frame Scheme in  this regard.

3. In pursuance of the aforesaid  decision  of the  Supreme Court  the   U.P. Sunni Central Board of Wakfs (the Board)  also issued  certain  directions on 23.1.1998   for  enhancing   rent of the wakf properties according to the market rate. In pursuance of  this direction  a  Survey   was done  and  the  Survey Commissioner submitted his  report on  29.10.99  for enhancing rent of the shops. Subsequently the Mutwalli  issued  a notice  on 18.7.2000 enhancing  the rent  w.e.f.  1.1.1996 as mentioned in the  Survey Commissioner's  Report . Later on  the date of  enhancement  of rent was  changed  to 1.4.2000. Some of the tenants have paid the enhanced rent,  but   the petitioners  have not paid the enhanced rent,  though  some of them have paid the rent  according to the  old rate. An audit  was done and the  auditors submitted their report on 4.2.2000 mentioning  therein that the petitioners  are not  paying the enhanced  rent. On the basis of this audit report ,  recovery certificates    had  been  issued  under section 49 of the Wakf Act ,1995,  hence the present writ petitions.

4. We have heard  the counsel for  the petitioners , Miss  Afshan Shafaut, the counsel for Wakf (Mutwalli) and Mr. M.A. Siddiqui counsel for  the Board and Standing Counsel for the  State (respondents).

5. The lease of  immovable property is governed by  Chapter V of the  Transfer of Property Act,1882 ( the T.P. Act). The   U.P. Urban Buildings (Regulation of  Letting,  Rent  & Eviction ) Act, ( the   Act)  came into force, in 1972  and  originally the  Wakf property  was also  governed by the  Act . Section 2 of the  Act  provides  for  exemption  to certain properties from  operation of the Act. It was  amended and clause (bbb) in Sub-Section (1)  of  Section 2{ Section 2(1)(bbb)} was inserted in 1995.  It  exempts  any building  belonging to  or vested in a  waqf including a  wakf alal-aulad from operation of the  Act    It is not  disputed  that  the property   in dispute  is vested in  a wakf  and as such the Rent Control  Act is not applicable to it. Hence the  rights of the parties   are to be governed by Chapter V of T.P.Act .

6. It is admitted  between the parties that there is no  written contract    between the parties  and as such  the  lease will be governed by  Section 106 of T.P. Act. The  Counsel for the petitioners submitted  that  the petitioners  never agreed to pay  rent at the enhanced rate, and as  such enhanced rent can  not be recovered  from them.

7. It is not necessary to decide the aforesaid question at this stage. It is  also not necessary  at this stage  to  decide  the question  whether   the   rent  has been reasonably enhanced  or not,  as the case  can  be decided  on the other question  raised by the counsel of the petitioners.

8. Section 48 of the  Wakf Act  provides  that the Board  shall examine the auditor's report and may call for the explanation  of any person in regard to  any matter mentioned  therein , and  shall pass such orders as it thinks fit  including  orders for the recovery of the amount certified  by the auditor  under sub-section (2) of  section 47. Any person aggrieved with that  order can also  file an appeal before the Tribunal constituted under the Wakf Act . In this case   the Board has not  given any notice  to the petitioners after the receipt of the auditor's   report . In view of this,  the recovery  is   in violation of  the above  mandatory  provision  and is illegal . It  is    quashed.

9. The copy of the  Survey Commissioner's report dated 29.10.1999 and  the Auditor's report  darted 4.2.2002 are annexed as Annexure no.  C.A. 5. and  C.A. 9  to  the counter affidavit  in   writ petition No. 25616/03.  The  petitioners may file their  objections against  them  before the Board  within  six weeks. The Board may decide the objections of the petitioners expeditiously, if possible, within three  months  from the date of receipt of  the objections. Thereafter  further proceedings may be undertaken.  

10. Some of  the   petitioners have deposited  some amount  in pursuance of the recovery  as well as  in pursuance of the interim order of this Court. This amount will  remain deposited  and the Board while   deciding  objection  of the petitioners will   pass appropriate orders regrading  this amount also .

11. We wish to make it clear that it will be open to the parties to enter into mutual settlement. In case there is no settlement, then  it is  also open  to  the   Wakf   to   take action  against the petitioners under the provisions of the T.P. Act.

With these observations  all the writ petitions  are disposed  of .

Dated: 20.3.2006

MLK


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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