- (1.) Heard Shri W.H. Khan, Senior Advocate assisted by Shri Gulrez Khan, Advocate on behalf of the petitioners and Shri M.A. Qadeer, Advocate on behalf of the respondent No. 2.
(2.) Petitioners before this Court seek quashing of the order of Waqf Tribunal, Moradabad dated 6.8.2010 whereunder the appeal filed by the predecessor in interest of the petitioners under section 49-B (4) of the U.P. Muslim Waqf Act, 1960 (hereinafter referred to as 'Act' 1960) has been dismissed.
(3.) Facts giving rise to the present writ petition are as follows: (i) U.P. Sunni Central Board of Waqf forwarded a letter referable to section 49-B (4) of the Act 1960 to the Collector for the petitioner being evicted from the Waqf property more appropriately described in the letter itself on the allegation that he was an unauthorised occupant over the property of the Waqf. The Collector in turn forwarded a notice to the petitioners referable to section 49-B (2) of the Act 1960. (ii) The predecessor in interest of the petitioner filed an appeal against the said notice of the Collector as provided for under section 49-B(4) of Act, 1960. In the appeal so filed, it was contended that he was tenant of one Rafikur Rahman Khan and that the property in dispute was not a Waqf property. It was contended that the Waqf Sunni Board was not the owner of the property in question. The entire proceedings initiated under the Waqf Act, 1960 were without jurisdiction. (iii) On behalf of Waqf Board, it was contended before the Authority concerned that the property was part and parcel of Waqf No. Ex No. 138/4, 5. It was stated that Azizur Rehman Khan had executed a waqf deed in respect of property in question on 19.1.1926 which was duly registered in the office of the Registrar. It was further stated that the Waqf stood duly registered under section 30 of the Waqf Act, and at no point of time the alleged landlord or the predecessor in interest of the petitioners, raised any objection in respect of the registration of Waqf along with its property under section 30 of the Waqf Act. It was contended that that the registration of the, property as that of the Waqf under section 30 of the Waqf Act is a conclusive proof of the fact that the property is of the Waqf. Therefore, the case of the predecessor in interest of the petitioner that he was tenant of one Rafikur Rahman cannot be accepted nor the notice Could be challenged on the said ground. It was clarified that the owner of the property Azizur Rahman Khan had purchased the house in 1957 by way of sale-deed from Nawab Begum and it is this house which is in dispute. (iv) The matter was considered by the 12th Additional District Judge, Moradabad and by means of judgment and order dated 16.1.1990 he held that the notice issued by the Collector dated 8.9.1986 was bad. It was accordingly quashed. It was held that the property in question did not belong to Azizur Rehman Khan exclusively and, therefore, he could not have created a waqf of the entire property. It was also held that objections to the registration of the property as Waqf property can be raised in an appeal filed under section 49-B(4) by a person who has no interest in the Waqf, like the predecessor in interest of the petitioner. (v) The Sunni Waqf Board not being satisfied with the order so passed by the appellate authority filed Writ Petition No. 1438/1980. The High Court allowed the writ petition and issued following directions: I, Therefore, think that it is necessary that the matter be remanded to the Court below to clearly distinguish and identify the property of the Waqf and the respondents. The order of the District Judge is vitiated because it has failed to do this and, therefore, the order of the District Judge dated 16.1.1990 is hereby set aside. The matter is remanded for consideration afresh and as it is an old matter, it may be concluded within a period of one year after providing to both the parties an opportunity of hearing and of leading evidence. It is, however, made clear that until the matter is decided, the respondents shall not be dispossessed from the portion they are occupying as tenants. The petition is, therefore, allowed. No order as to costs.?;