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MOHAMMAD ZAAR versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Mohammad Zaar v. State Of U.P. And Another - WRIT - C No. - 68592 of 2006 [2007] RD-AH 16490 (9 October 2007)

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 AT ALLAHABAD

RESERVED.

Civil Misc. Misc. Writ No. 68592 of 2006.

Mohammad Zafar. Vs. State of U.P. and others.

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Hon'ble Janardan Sahai, J.

Original Suit No. 321 of 1993 filed by Shafique Ahmad mutawalli of the waqf against the petitioner was decreed by the trial court on 7.2.2004. The appeal against the decree was dismissed by the Additional District Judge, Bulandshahr by judgment and decree dated 2.3.2006. The second appeal filed by the petitioner was also dismissed by the High Court on 12.4.2006. The decree was put into execution. Objections under Section 47 Civil Procedure Code were filed by the petitioner on the ground that no notice to the Waqf Board as required under Section 66 of the U.P. Muslim Waqf Act, 1960 was issued. It was also alleged that under Section 90 of the Waqf Act 1995 notice to the Waqf Board was necessary as the suit related to recovery of possession over Waqf property. The objections were dismissed by the trial court. A revision was filed by the petitioner, which has also been dismissed by order of the Additional District Judge, Bulandshahr dated 16.11.2006. Both these orders have been challenged in the present writ petition.

Sri Sheetla Sahai, learned counsel for the petitioner made only one submission; that the decree in the Original Suit No.321 of 1993 is a nullity and the execution application was also not maintainable because neither the suit nor the execution application was filed by the Waqf Board but was filed by the Waqf through the Mutawalli who was not competent to do so.

I have heard Sri S.A. Shah, learned counsel for the respondents.

In Maulvi Reza Ansari and others Vs. Shyamlal Sah and others A.I.R. 1983 Patna 299 a Division Bench of the Patna High Court dealing with the question whether proceedings for execution of a decree passed in a suit for possession of Waqf property after (the Waqf Act No.29 of 1954) came into force in the State of Bihar could be instituted by the Mutawalli of the Waqf, held that the execution case could have been filed only in the name of the Board. The Patna High Court placed reliance upon the provisions of Section 15 (2) of the Act of 1954, which enumerates the powers and functions of the Waqf Board and includes the power to institute and defend suits and proceedings in a court of law relating to Waqf. The duties of the Mutawalli are laid down in Section 36 of that Act and none of those duties relates to the institution of suits. The High Court of Delhi has taken a similar view in Mst. Mohammad Jahan Begum Vs. Abdul Hakim 1991 (3) Current Civil Cases 6. The Andhra Pradesh High Court in A.S. Abdul Khader Waqf for Deeni Talim Vs. Saber Miah and etc. A.I.R. 2003 Andhra Pradesh 528 has however dissented from the Patna High Court. The Andhra Pradesh High Court placed reliance upon the decision of the Kerala High Court in Badagara Jumayath Palli Dharas Committee Vs. P. Ummerkutty Haji A.I.R. 2002 SC 402 Kerala 56. The Andhra Pradesh High Court has held that the Mutawalli is a person in-charge of the affairs of the Waqf and is interested in the maintenance and management of the Waqf and its property and can in the interest of the institution maintain a suit for eviction, recovery of mesne profits or damages for use and occupation.

To answer the question whether the Mutawalli could institute the suit and execute the decree it is necessary to examine the status of the Mutawalli under the Personal Law as well as under the provisions of the U.P. Muslim Waqf Act, 1960 and the Waqf Act 1995. Para 527 of Tyabji's Muslim Law (Fourth Edition) is quoted:

"The mutawalli has no ownership right or estate in waqf property; in that respect he is not a trustee in the technical sense; he holds the property as a manager for fulfilling the purpose of the waqf".

In Moattar Raza Vs. Joint Director of Consolidation, U.P., A.I.R. 1970 All. 509 it has been held by a full Bench of the Allahabad High Court that the legal status and position of a Mutawalli is that of a manager or superintendent. The Supreme Court in Bibi Siddique Fatima Vs. Saiyed Mohammad Mahmood Hasan A.I.R. 1978 SC 1362 held that a mutawalli is like a manager rather than a trustee. Before examining the statutory provisions it may be noted that the Waqf Act 1954 was never enforced in U.P. The U.P. Muslim Waqf Act 1960 was applicable in this State. Section 15 (2) of this Act gives a list of the functions to be performed by the Waqf Board, which includes the right of instituting and defending suits. The position in the Waqf Act, 1995 is the same vide Section 32 (2) of the Act. The question is whether this power given to the Waqf Board is in addition to the right of the Mutawalli to institute a suit for eviction of a tenant or in derogation thereof. The Waqf Act 1995 defines a Mutawalli in Section 3 (i) as follows:

"3 (i) "mutawalli" means any person appointed, either verbally or under any deed or instrument by which a waqf has been created, or by a competent authority, to be the mutawalli of a waqf and includes any person who is a mutawalli of a waqf by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any waqf or waqf property;

Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office bearer of such committee or corporation."

It appears from the definition that a Mutwalli has a right to manage and administer the Waqf property. The right of management would also include the right of letting out the Waqf property unless the statute prohibits or restricts the right. Para 533 of Tyabji's Muslim Law (Fourth Edition) is quoted below;

"533 The mutawalli may grant a lease for a year of a house dedicated to the poor or other charitable object, and a lease for three years of lands; and the lease in either case is not determined by his death. A lease granted by the mutawalli for a longer term than for one year or three years respectively is not void but voidable."

Section 56 of the Waqf Act, 1995 puts a restriction on transfer by way of lease or sub-lease of immovable property of the Waqf for a period more than three years. Leases for more than a year and less than three years can be executed with the approval of the Board. There is no restriction on the execution of leases up to one year. Section 49-A of the U.P. Muslim Waqf Act, 1960 prohibited the grant of lease for a period exceeding one year. In the present case a lease of the premises in dispute for period of one year was executed by the Mutawalli in the year 1989 when the provisions of the U.P. Muslim Waqf Act, 1960 were in force. The petitioner was thus inducted by the Mutawalli. The lease was terminated by anotice under Section 106 of the Transfer of Property Act also given by the Mutawalli. The suit was instituted by the Mutawalli alleging that the property was let out by him. The petitioner did not deny the relationship of landlord and tenant between the parties. In view of the fact that the property was let out to the petitioner by the Mutwalli and the tenancy was also terminated by a notice given by the Mutawalli it is difficult to accept the petitioner's contention that the Mutwalli was not competent to institute the suit or to maintain the execution proceedings. In Yatan Swaropp Saxena Vs. Allah Rabbul Almin through Shafiq Ahamd Khan, Mutawalli Masjid Tahsil Wali and another 1995 (2) A.R.C. 406 it was held that Section 57-A of U.P. Muslim Waqf Act, 1960, which speaks about recovery of possession of Waqf property from unauthorized occupants and section 66 of the Act, which requires the court to issue notice to the Waqf Board where claim to the title of the Waqf property or the right of the Mutawalli is involved do not come in the way of a suit for ejectment of a tenant. In Mohiuddin Vs. IInd Additional District Judge, Allahabad and others 1986 (1) A.R.C. 420 it was held that an application under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 filed by the Mutawalli of a public Waqf is maintainable. A suit for eviction of the tenant can be filed by the landlord under the general law. A suit for eviction of the tenant could therefore be filed by the Mutawalli as landlord and manager of the waqf unless there is anything to the contrary contained under the U.P. Muslim Waqf Act, 1960 or the Waqf Act, 1995.

The property of the Waqf vests in the Almighty. The Waqf Board is a corporate body, which has a right to hold and dispose of property but the property of the Waqf does not vest in the Waqf Board. The property is also not under the direct management of the waqf Board. It is the Mutwalli who is the manager of the Waqf property. No doubt the Board has the over all superintendence over the Waqf property and can issue directions to the Mutwalli and can also institute and defend suits on behalf of the waqf vide section 19 (2) (q) of the U.P. Muslim Waqf Act, 1960 and Section 32 (i) of the Waqf Act, 1995 but these provisions are enabling provisions and do not take away the right of the Mutawalli where the property has been let out by him to institute a suit for eviction of the tenant and for recovery of arrears of rent. A suit for eviction of a lessee in fact is ordinarily to be filed by the lessor, who in this case is the Mutawalli. The contention of the petitioner's counsel, therefore, that the Mutwalli had no right to institute a suit on behalf of the Waqf or to execute the decree is repelled.

Sri S.A. Shah, learned counsel for the respondents also submitted that the plea that the suit was not instituted by the Waqf Board was not taken up in the suit itself nor in the objections under Section 47 Civil Procedure Code and the point is not available to the petitioner for the first time in this petition. Learned counsel for the petitioner, however, submitted that the point goes to the root of the matter and the decree being void the point can be taken up even for the first time in writ petition. Reliance was placed by the petitioner's counsel upon a decision of the Apex Court in Balwant N. Viswamitra and others Vs. Yadav Sadashiv Mule (dead) through Lrs. And others 2004 (8) SCC 706. In that case the Supreme Court drew the distinction between a "void decree" and "illegal", incorrect or irregular" decree. It was held that where a decree is without jurisdiction or a void decree it can be challenged at any stage and even in execution or collateral proceedings but if the decree is an incorrect or irregular decree the objection cannot be taken up in execution proceedings. It is not the case of the petitioner that the court, which passed the decree had no jurisdiction to pass it. What is being canvassed is that the Mutawalli had no right to institute a suit and it is only the Waqf Board, which could do so. The objection to the decree, therefore, does not relate to the jurisdiction of the Court and the decree cannot therefore be regarded as void. The writ petition lacks merit and is dismissed.

9 /10/2007.

s.


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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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