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Sahid Husain And Others v. U.P. Sunni Central Board Of Waqf Lko. - WRIT - C No. 38191 of 1993  RD-AH 7254 (4 April 2006)
CIVIL MISC. WRIT PETITION NO. 38191 OF 1993
Shri Shahid Husain and others. .........Petitioners
U.P. Sunni Central Board of Waqfs, 3-A Mall
Avenue, Lucknow through its Controller and
others. .......... Respondents
Hon'ble Bharati Sapru, J.
I have heard learned Senior counsel for the petitioner Shri Sashi Nandan assisted by Shri Anurag Jauhari and learned counsel for the respondent Shri S. Masood at length. Parties have also submitted their written arguments.
The present writ petition arising out of an order passed by the Controller of Waqf Board, Lucknow dated 7.7.93 under the provisions of Section 57-A of the U.P. Muslim Waqf Act, 1960. The said provision is for the recovery of possession of Waqf property from unauthorized occupants.
Under the impugned order dated 7.7.93, the Controller of the Waqf Board has passed an order that requisition be sent to the Collector, Rampur to obtain from Smt. Gayatri Devi and others the possession of the property in dispute and deliver it to the Board through Hamid Ali Khan, the President of the Committee of Management of Waqf.
The facts of the case are that there is a plot No.375 situated in village Mandayyan, Nadir Bagh, Tahsil Sadar, District Rampur. The petitioners Shri Shahid Husain and others claimed that they had purchased this property by way of a sale deed registered on 12.8.81. The petitioner states that after the purchase of this plot, a sale deed dated 12.8.81 was executed and they had purchased this land from Zia Ullah Khan and Mazhar Ullah Khan, who were sons of Ata Ullah Khan who were recorded as the tenure holder. It is the petitioners' case that the sons of Ata Ullah Khan had transferable rights under the provisions of the Rampur Tenancy Act, which was applicable to the land in dispute. As one of the sons of Ata Ullah Khan was a minor at the time of the sale deed, which was registered on 12.8.81, a fresh sale deed was registered on 17.5.83 in favour of the petitioner when the second son of Ata Ullah Khan Mazhar Ullah Khan attained majority.
The petitioner states in the petition that for the year 1389, Fasli, the names of both the petitioner No.1 & 2 were mutated over the land in dispute and they had been in possession of the said land since the year 1981. From the record, it appears that from the period 1981 to 1986 the possession of the plot in dispute remained with the petitioner and was not disputed.
However, in the year 1986, one Hamid Ali Khan, who is respondent No.2 in the present petition filed an application for registering a Waqf in respect of Mazjid and of a Mazaar Allah Noor Saheb under Section 29 of the U.P. Muslim Waqf Act. No.16 of 1960.
It is the petitioner's case that even though they were in possession of plot No.375 measuring 13 Biswas was also included in the property that was registered as a Waqf. No notice of this registration was given to the petitioner before passing of the order-dated 7.3.84. Thereafter, on 18.1.86 the plot in question was included in the register of the Waqf Board as Waqf property. But no notice of the same was given to the petitioner. An application was filed by the respondent No.2 before the S.D.O for expunging the names of the petitioners by exparte order. The names of the petitioners were expunged. The petitioners have moved an application on 14.1.87 that the order dated 24.5.85 expunging the names of the petitioners be recalled and the order was recalled. Against the order of recall, a reference No.9 of 1987 was filed by the other side, which abated on 15.5.92. The reference abated on 15.5.92. This reference was numbered as 9 of 1987. On 14.4.91 the respondent No.2 filed original suit for cancellation of the sale deed in favour of the petitioner. On the one hand, the present respondents filed the proceedings under Section 57-A of the Waqf Act and on the other hand, the respondent No.2 filed original suit No.33 of 1991 for cancellation of sale deeds made in favour of the petitioner. The said suit was dismissed in default on 18.2.92. The respondents, thereafter did not make any attempt to get their suit restored. The respondents moved a second suit. This suit was dismissed for default on 8.4.92 in the absence of the respondent No.2. The respondent No.2 filed no restoration in the said suit.
When the respondent No.2 failed in his attempt in two regular proceedings to oust the petitioner from the property in dispute, he filed an application under Section 57 A for requisition of the said property and for the eviction of the petitioner as an unauthorized of the petitioner occupant from the property in dispute and claimed that the property in dispute was property of the Waqf. It is this application moved by the respondent No.2 under Section 57 A which has been decided by the Controller of the Waqf property. The petitioner being aggrieved by the order 7.7.93 has come-up in writ proceedings and complained that he is aggrieved by the order dated 7.7.93 because it results in serious civil consequences against him and argues that the impugned order is vitiated on account of the following reasons. :-
The petitioner contended before this Court that respondent No.1- the Controller has failed to consider the material evidence filed by the petitioner as well as his objections in which the petitioner had sought to establish the fact that the petitioner had purchased the property in dispute by way of a registered sale deed for proper consideration and value. He was bonafide purchaser of value and, therefore, the transaction of the petitioner was to be protected under the provisions of Section 41 of the Transfer of Property Act. This plea has been ignored by the Controller.
The second argument raised by the learned counsel for the petitioner is that the impugned order has been passed on the basis of reliance placed on Tauliat Nama dated 10.7.59. The Tauliat Nama, which was produced by the respondents was only a photo copy and the original was neither summoned nor produced. It is the petitioner's contention that no order of requisition and eviction could have been passed on the basis of evidence of the year 1959 which was not an original and, therefore, not admissible as evidence. It is also argued by the learned counsel for the petitioner that the other evidence which was given in the report by the Circle Inspector reported that the property in dispute belonged to the Waqf. It is the petitioner's contention that the Circle Inspectors report was made ex-parte against the petitioner and the petitioner has not been given any opportunity to rebut the circle report given by the inspector.
The petitioner has argued that the petitioner held a valid title to the property in dispute and the sale deed had been made by the petitioner in the year 1981 which was prior in time to the inclusion of the disputed property as Waqf property on 18.1.86. It is the petitioner's contention that the existence of a valid sale deed could not have been ignored by the Controller in the proceedings under Section 57-A of the Waqf Act, 1960.
The petitioner also contends that the suit, which was filed by the respondent for cancellation of the sale deed was dismissed in default on 8.4.92 and had become final between the parties because the respondents did not seek any restoration to the sale. The petitioner has also argued that in fact there was no existence of the legal Waqf-D to support the stand of the respondent No.2 as even at present it is the name of the petitioners which is still in existence in the revenue records and they are the persons who are recorded as the tenure holders.
The petitioners have argued that when the respondents suit was dismissed under Order IX Rule 8 it would also operate as res judicata under Section 11 of the C.P.C. The order of dismissal-dated 8.4.92 is in the nature of a decree and the authority under the Waqf Act can not go behind that decree. Learned counsel for the respondent has argued that the petitioner has an alternative remedy of going in appeal as once an order is passed under Section 57-A of the Act, then a requisition may be sent under Sub-section 1 to the Collector and the Collector can pass an order directing the person in possession of the property to deliver the property to the Board within a period of 30 days. Section 57-A is to be read with the provisions of Section 49-b of the Act and sub section 4 of Section 49-b provides that any person aggrieved by an order of the Collector under sub-section 2 may file an appeal to the Court of District Judge within whose jurisdiction the property is situated.
The learned counsel for the respondents has argued that the petitioners have filed a writ petition against the order of the Controller sending a requisition to the Collector even before the Collector could issue notice. They have obtained the stay order. Learned counsel for the respondent has argued that the appellate authority could deal with all questions legitimately arising out of an order passed under Section 57-A. In so far as the question of the suit being decided against the respondents, the learned counsel for the respondent has argued that the suit had not been filed by the U.P. Sunni Central Board of Waqf and, therefore, it would not prevent any proceedings under Section 57-A of the Muslim Waqf Act, 1960.
I have heard learned counsel for both the parties and have perused the record. It becomes clear that the Controller has passed his entire reasoning that the property in dispute is Waqf property on the face of two evidences. Firstly, the Tauliat Nama and secondly, the report of the Circle Inspector. It is also clear from the record that the original Tauliat Nama was not produced by the respondents. A photocopy of the same has been produced and the respondents did not produce the original. The Tauliat Nama could only have been in their possession and therefore, they should have produced it.
In so far as the report of the Circle Inspector is concerned, the same was also made without giving to the petitioner any opportunity to rebut the report of the Circle Inspector. It is also made clear from the record that indeed a suit for cancellation of the sale deed was filed by the respondent Hamid Ali Khan himself but the same was dismissed in default and it was never restored and decided on merits. The petitioner approached this Court against the impugned order before a notice could be sent by the Collector. This part is true. The apprehension of the petitioner was that the petitioner would be evicted before the appeal should be decided. The contentions as raised by the learned counsel for the petitioner that the order is vitiated because it ignores material evidence and pleading made before it are correct and are well founded. The Controller of the Board while placing reliance on the Tauliat Nama, should have certainly summoned the original to see whether the Tauliat Nama was a genuine one. In so far as the report of the Circle Inspector was concerned, the petitioner should have been given an opportunity to rebut the same.
Also the Controller while dealing with the issue relating to the suit also should have taken notice of the fact that the suit has been filed by Shri Hamid Ali himself. The Controller has failed to properly examine the issue before him and has wrongly come to the conclusion on the basis of inferences that the property in dispute was Waqf property.
In my opinion, it would be proper that the matter be remanded to the Controller to re-consider all these issues after taking into consideration all material evidence and pleadings.
The plea of alternative remedy as raised by the learned counsel for the respondent is not without force. However, in the facts and circumstances of the present matter, where the evidence itself was not properly considered, it would not stand in the way of the petitioner, therefore, for filing the present writ petition. As the petitioners apprehension that he shall be evicted in pursuance of the said order was not without justification. The apprehension was real and, therefore, this Court on 8.10.93 passed an order protecting the possession of the petitioner.
I hereby set aside the order of the Controller dated 7.7.93 and remand the matter back to the Controller for proper consideration of all material evidence and pleadings on record. The matter will re-open before the Controller immediately upon production of a certified copy of this order. He will decide the matter within a period of one year. For a period of one year, the petitioner shall not be evicted from the property in dispute. It is also made clear that while considering the matter on remand, the Controller will give full opportunity to both sides to pursue the matter but will not allow either side any privilege or unreasonable adjournment.
The petition is allowed. There will be no order as to costs.
Dated : 4.4.06
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