Binod Kumar Roy, Lakshmi Bihari, JJ. - (1.) The petitioner has come up with a prayer to quash the order, the office memo and the letter as contained in Annexures-7, 8 and 9. 1.1. Annexure-7 reads as follows : "Seen the report of A.S.I. The proposal is approved. The order will take effect if there is no order from any Court contrary to it. Sd/- Nayaz Ahmad Controller 6.6.1996" 1.2. Annexure-8 shows that vide office memorandum dated 19.6.1996, the Secretary of the Waqf Board informed respondent No. 4 that the earlier order dated 22.3.1990 deleting the property of Pilikothi in Waqf No. 346-Agra, Firozabad has been recalled by the Controller vide his order dated 6.6.1996. 1.3. Annexure-9, shows, inter alia, that the Secretary of the Board through his letter dated 19.6.1996 requested the District Magistrate, Firozabad to pass an order for entering the entire property of the waqf as such in the records of Nagar Palika, Tundala in backdrop that the property Pilikothi is part of Waqf Mohsin Ali Khan situated at Tundala, district Firozabad is registered as purely charitable waqf at serial No. 346 of the records.
(2.) The Pleadings : 2.1. The petitioner asserts to this effect : A proceeding under Section 57A of the U. P. Muslim Waqf Act (hereinafter referred to as the Act) was instituted by the Waqf Board for eviction of Suraj Chand Vaish, her father-in-law from his Pilikothi ; Shiv Gopal Gupta, elder brother of her husband Girdhar Gopal Gupta, filed an application on behalf of his father Suraj Chand Vaish under Section 33 of the Act before the Controller, U. P. Central Sunni Waqf Board as he was informed that his house known as 'Pilikothi' situated in Tundala, district Firozabad has been included as waqf property by the Waqf Board stating, inter alia, that out of plot No. 472 the recorded owner Bal Mukund Singh had executed a sale deed on 18.3.1933 in respect of one bigha of land in favour of the applicant and so far as Pilikothi is concerned, it was purchased by him from its owner Sahu Jagdeshwar Nath and Sahu Rameshwar Nath which is apparent from the copy of the sale deed, which was also filed ; in the said proceeding respondent No. 4 the Secretary of the Waqf Jama Masjid, Tundala contended that the said property belonged to Hasan Ali Khan, who was given a permanent lease by the Zamindar Bal Mukund Singh, and after him, his son Mohsin Ali Khan became its owner who created a waqf Al-ul-aulad by means of a waqf the said proceeding was dropped by the Controller, vide his order dated 22.3.1990 (Annexure-1) holding Suraj Chand Vaish as owner of the property having acquired it in a legal manner noting that in the sale deed dated 22.7.1920 there was no reference of Pilikothi and the description mentioned therein does not tally besides that in his affidavit respondent No. 4 has stated that in the year 1930 the name of Pilikothi had figured whereas the application for registration of the waqf was filed in 1943 without mentioning Pilikothi therein ; against the order aforementioned respondent No. 4 and few others filed a reference (Annexure-2) under section 7 of the Act before the Tribunal ; even a civil suit was also filed in 1990 along with an application for grant of interim injunction in which the prayer for injunction after exchange of affidavits, was rejected vide order dated 5.8.1992 (Annexure-5) ; in the reference 5 issues stated in Paragraph 6 of the writ petition were framed vide order dated 27.10.1994 (Annexure-3) and thereafter the Tribunal directed the parties to file necessary documents and summoned the records from the Waqf Board ; in the meantime in 1995 the application (appended as Annexure-6) was filed for recalling the order dated 22.3.1990, in the reference the applicant did not appear and ultimately it was dismissed in default by the Tribunal on 11.1.1996 (copy of the order-sheet of the Tribunal containing orders passed from 22.11.1994 to 11.1.1996 appended as Annexure-4 about which the petitioner could not know as the male members of her family were doing pairvis : respondent No. 1 has acted without jurisdiction and authority in passing the impugned order after a lapse of almost more than five years in the absence of any specific provision for review under the Act about which she was apprised by one of the lawyers looking after Court cases that some kind of notice has been received in the office of District Magistrate and thereafter she started making enquiries in August, 1996 and obtained relevant documents and, therefore, some delay has been caused in filing this writ petition which be condoned in the interest of justice. 2.2. Respondent No. 4 alone has filed a counter-affidavit stating inter alia, that correct facts have been suppressed and material facts misrepresented ; Annexure-1 was passed on wrong information given by the petitioner, the statement that no notice of the petition was ever given is absolutely false ; the impugned order was passed after setting up of a proper enquiry in the review application and after giving an adequate opportunity ; Girdhar Gopal Gupta, the husband of the petitioner, had full knowledge about all proceedings, who had himself filed writ petition in the name of his father Suraj Chand Vaish, which is still pending but these facts have been concealed and on account of pendency of that writ petition, the instant petition on same facts is not maintainable and is liable to be dismissed with heavy cost ; the impugned order has become final under Section 40 (2) of the Act, as the petitioner has not challenged it before the Tribunal, which is an alternative remedy ; Suraj Chand Vaish has transferred the disputed property to Smt. Prabha Gupta wife of Om Prakash, who in her turn has transferred the disputed land to one Smt. Rameshwari Devi wife of Shanker Lal, resident of Tundala, district Firozabad and the petitioner, who has no concern at all with the waqf property, cannot have any grievance after transfer of the property though in an illegal manner during the pendency of the writ petition and the civil suit. 2.3. A rejoinder to the aforementioned counter-affidavit has been filed on 16.3.2000 after serving its copy on 15.3.2000 and appending a copy of the waqf deed dated 18.12.1917 in which it has been clearly mentioned that the property is situated at Mauja Mohammadabad, Tahsil Itmadpur, district Agra whereas the disputed property Pilikothi is situated at Mauja Tundala which was also never mentioned in the deed and thereby the property mentioned in the deed was a different property ; facts have been twisted and are being denied : the allegation regarding transfer of the property is denied clarifying that a very limited portion of it was transferred in favour of other persons appending a map as Annexure-RA 2 ; her father-in-law Suraj Chand Vaish had filed writ petition in 1993 whereas the petitioner is challenging the order passed in the year 1996 after having learnt of the proceedings after the death of her husband of which earlier she had no knowledge : and that as the writ petition contains good grounds, the same deserves to be allowed with cost. The Documents :
(3.) Having reproduced the pleadings, let us have a look at the documents brought on the record by both parties in form of annexures. 3.1. Firstly those brought on the record by the petitioner Annexure-1 contains the order dated 22.3.1990 passed by Farhat Ali, Controller, U. P. Sunni Central Board of Waqf. Lucknow in relation to the application filed under Section 33 of the Act. It recites and holds, inter alia, to this effect : A waqf in Agra was created by one Mohd. Mohsin Ali Khan, which was registered in the office of the Waqf Board bearing registration No. 9A, Agra ; on the report dated 23.12.1980 of the Superintendent of Waqf it was converted as a purely charitable waqf and given registration No. 346 and at that very time the property known as Pilikothi was included in the waqf and the register of waqfs was also amended under Section 31 of the Act ; thereafter proceedings under Section 57A of the Act were initiated against Suraj Chand Vaish, reported to be in an authorised occupation of Pilikothi : a notice under Rule 9(1) of the U. P. Muslim Waqfs (Recovery of Waqf Property) Rules was served on Suraj Chand Vaish to which he submitted a reply ; on his behalf his son Shiv Gopal Gupta moved the application under Section 33 of the Act for determination whether the property in question was really a waqf property? : on receipt of that application the Controller passed an order dated 14.12.1988 that the said application should be disposed of first and only thereafter, if necessary, proceedings under Section 57A of the Act be continued ; the parties filed affidavits and copies of number of documents to support their respective cases ; after hearing the learned counsel for both parties and going through the record the Controller observed and held that it is the Secretary of the Management of the Charitable Waqf who has been contesting the case against Suraj Chand Vaish no copy of the permanent lease by which it was claimed that the land on which the house stood has been given to Ali Hasan Khan, father of Mohsin Ali Khan, after whose death he had become its owner rather merely a reference of the lease has been made in the sale deed dated 22.7.1920 said to have been executed by Bal Mukund Singh, the owner of the land which neither mentions the plot number nor boundary of the plot, which was subject matter of the sale rather mentions only the area of the land as 2 bighas 5 biswas whereas it is admitted by both parties that the number of the plot in question was 472 whose new number was 533 and a perusal of the extract of the Khatauni relating to years 1309 Fasli, 1329 Fasli, 1334 Fasli and 1341 Fasli shows that the total area of this plot was 5 bighas only and thus obviously if Bal Mukund Singh sold 2 bighas 5 biswas of land it meant that it was some other plot which he had sold and not plot No. 472--it is important that the name of Mohsin Ali Khan was never mutated in respect of the said plot and thus had he really purchased the plot and became its owner, there was no reason why his name could not have been mutated in the revenue records--for these reasons it is doubtful whether the plot on which Pilikothi stood was really the property of Mohsin Ali Khan--the written waqf deed, by which this waqf was created dedicating the property permanently, does not specify any particular house property rather only this much has been stated that the Mutwalli will have a right to get partitioned the property, house, grove and trees which formed the subject-matter of the waqf--the explanation furnished that when the waqf was created it was not known that the house was known by the name of Pilikothi and the name Pilikothi came in vogue around 1930, but strangely enough the application moved in the year 1943 for registration of this waqf does not mention Pilikothi--in regard to the claim that Mohsin Ali Khan had come to know after the partition when this property was allotted in his share, he could have given its complete details in the column provided in the application for registration of the waqf property as by that time he had come to know of the name and its absence in mentioning in two applications moved by Mohsin Ali Khan and his wife Smt. Safdar Jahan Begum make it all the more doubtful whether Pilikothi really formed part of the waqf property--on the other hand the case of Suraj Chand Vaish is that the recorded owner of the plot Bal Mukund Singh on 18.3.1933 had executed a sale deed in respect of one bigha of land out of it and the building known as Pilikothi was purchased by Suraj Chand Vaish from its owners Sahu Jagdeshwar Nath and Sahu Rameshwar Nath and since then he has been in exclusive possession thereof is clearly shown from the sale deeds executed in his favour--from the Khewat for the years 1330 to 1341 Fasli, filed by the Secretary, it appears that the name of Suraj Chand Vaish was also mutated therein--further Nagar Palika. Tundala has certified that it was Suraj Chand Vaish, who was the owner of the Pilikothi--it would thus appear that it is extremely doubtful whether the property known as Pilikothi is really a waqf property, whereas the evidence filed by Suraj Chand Vaish indicates that it is his personal property, which he had acquired in a legal manner--it is, therefore, decided under Section 33 of the Act that it is not waqf property and consequently the entry in the register of waqfs showing the property in question as waqf property will have to be deleted and the proceedings under Section 57A of the Act will have to be dropped. 3.2. Annexure-2 contains copy of the waqf reference No. 82 of 1990 filed against the order as contained in Annexure-1 before the Tribunal which shows, inter alia, respondent No. 4 as petitioner No. 2 and U. P. Sunni Central Board of Waqf as respondent No. 1 and Gopal Gupta as respondent No. 2 3.3. Annexure-3, the order-sheet of the Court of Civil Judge, Agra in Suit No. 82 of 1992, shows that vide order dated 27.10.1994 issues were framed ; vide order dated 10.1.1995 the records were summoned fixing 8.2.1995 for evidence and vide order dated 11.1.1996 ultimately the suit was dismissed. 3.4. Annexure-5 contains the order dated 5.8.1992 passed by the Civil Judge, Firozabad in Suit No. 204 of 1990 Waqf Mohsin Ali Khan v. Suraj Chand Vaish, which shows rejection of the plaintiff's application for grant of temporary injunction for various reasons mentioned therein and recording of the findings that there is no prima facie case in favour of the plaintiff, that it is not the case of the plaintiff that the sale deed of 1934 through which the disputed property has been purchased, was annulled and the balance of convenience appears to be in favour of the defendant, since it is claimed that he is in continuous possession since 1934. 3.5. Annexure-6 is the copy of the review/recall application dated 25.1.1995 filed by respondent No. 4 against the order under Section 33 of the Act. 3.6. Annexure-RA 1 contains photocopy of the waqf deed. 3.7. Annexure-RA 2 is photocopy of the map showing location of the disputed house and possession thereof. 3.8. The only document filed by respondent No. 4, Annexure-C.A. 1, is copy of the notice issued to him by this Court in C.M.W.P. No. 37913 of 1993.;