DEVI PRASAD SINGH,J. - (1.) HEARD the learned Counsel for the petitioner, Sri Ajmal Khan learned Counsel for the O.P. No. 4, Sri A. A. Rizvi, learned Counsel for the O.P. No. 3, learned standing Counsel as well as perused record.
(2.) SYED Zafar Raza son of Sri Zafar Abbas, resident of Tanda district Ambedkar Nagar, moved an application before the Incharge, Shia Central Board of Wakf, U.P., Lucknow, on 27.2.2006 and Syed Kazim Raza on 4.8.2006 for appointment of Mutawalli for the Wakf in question. The deed of Wakf con­tains the condition that Mutawalli should be permanent resident of Tanda now, in District Ambedkar Nagar. The first Mutawalli was Syed. Mohd. Raza. After his death, his sons were appointed as Mutawalli. It has been alleged that later on, no one survived as direct descendant and in consequence thereof, the Syed Zafar Raza has installed his claim for the Office of Mutawalli. By the order dated 24.8.2006 the petitioner was appointed as Muntazim Mutawalli along with other five members of the Wakf which include Syed, Kazim Raza, O.P. No. 4. Later on, private respondent filed objection against the order dated 24.8.2006 appointing the petitioner as Muntazim Mutawalli. The application was rejected by the District Incharge of Shiya Central Wakf Board, U.P. Feeling aggrieved, the private respondent preferred an appeal be­fore the Appellate Authority i.e., Civil Judge (Sr. Div.), Faizabad. While passing the order dated 24.8.2006 the Board had appointed two persons namely, Smt. Wasim Zahra and Smt. Kaneez Zahra as members of the Committee who admittedly, are Pakistani National. Learned Appellate Authority relied upon section 63 of the Wakf Act, 1995 (in short the Act), which provides that Mutawalli shall be appointed in terms of condition provided in the Wakf deed and in case there is a dispute, the Board has got power to appoint any person as Mutawalli for such period as it may think fit. For convenience section 63 of the Act is reproduced as under: 63. Power to appoint mutawallis in certain cases. - When there is a va­cancy in the office of the mutawalli of a wakf and there is no one to be ap­pointed under the terms of the deed of the wakf, or where the right of any person to act as mutawalli is disputed, the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit. Keeping in view the fact that two of the members of the Committee, namely, Smt. Wasim Zahra and Smt. Kaneez Zahra are residents of Pakistan and also residing in Pakistan, and they could not have been appointed as mem­bers of the Wakf, the Appellate Authority has set aside the order dated 24.8.2006 and 12.3.2007.
(3.) IT has not been disputed that one of the conditions of the Wakf deed is that only a person residing in the city/Tanda Tahsil, may be appointed as members of the Wakf. While passing the impugned order, in pursuance of power conferred under section 63 of the Act, it was not open to Board to appoint the two persons as members of the Committee, who are Pakistani National. The Board has failed to discharge its obligations vested under the Act. Otherwise also, the spirit of the Act is to appoint a person as member of the Committee who is Indian National. No foreigner can be appointed as member of Wakf Committee by the Board. The appointment of two Pakistani Nationals, vitiates the entire order of selection and appointment.;