- (1.) This Bench has been constituted to answer following two questions of law referred by the learned Single Judge vide his order dated 28.1.2011: (a) Whether for proceedings being initiated under Section 8 of the Act, 1960, it is necessary that there must be a determination by the Commissioner under Section 6 of Act, 1960 out of several matters which are mentioned in the said Section to be decided by the Commissioner or not? (b) Whether the law laid down by the Hon'ble Single Judge in the case of Mukhtar Husain , specifically paragraph-18 is the correct law or not? The facts of the case for answering the above two questions need to be noted: The Writ Petition No. 18047 of 1990 Shia Central Board of Woofs and another v. VII A.D.J. Meerut and others, is connected with Second Appeal No. 2066/1986, Syed Ahmad v. Allah Mehar.
(2.) Background facts giving rise to these two proceedings are; a Suit No. 346/1977 was filed by Sri Allah Mehar and 3 others against Syed Ahmad and others praying for a decree for permanent injunction in favour of the plaintiff as the representative of the Sunni Community of town Abdullahpur claiming right of possession of the entire premises of the Mosque No. 307 and the defendants were asked to be restrained as the representative of the Shia community from interfering in the right of the possession and taking out procession called "Duldul". In the said suit Shia Central Board was not a party. The suit was decreed by the trial Court vide its judgment and order dated 9.5.1984. The defendants filed an appeal against the judgment and order dated 9.5.1984 in which an interim injunction was granted, however the appeal was dismissed on 11.8.1986. The Second Appeal No. - 2066 of 1986 has been filed by the defendants which is pending in this Court. Initially, an interim order was granted in the second appeal by this Court which was subsequently vacated. The Shia Central Waqf Board filed a Suit No. 157/1988, for restraining the defendants from interfering in the possession of the plaintiff with the suit property. It was claimed that one Smt. Rahmatul Nisha, wife of Dildar Ali, r/o village Abdullahpur belonging to Shia community has created the waqf. The waqf has also been registered on 27.11.1987 with the Shia Central Waqf Board. It was pleaded in the plaint that in Suit No. 346/1977, decree was obtained without impleading the Shia Central Waqf Board and no notice was issued to the Shia Central Waqf Board, hence the decree is a nullity. An application for interim injunction under order 39 rule 1 C.P.C. was filed by the Shia Central Waqf Board in Suit No. 157/1988. The defendants of the suit filed an application under Section 10 of the C.P.C. praying that proceedings of Suit No. 157/1988 be stayed since the same issues are pending adjudication in the Second Appeal No. 2066 of 1986, arising out of Suit No. 346/1977. The trial Court vide judgment and order dated 26.8.1988, rejected the application for temporary injunction and by another order of the same date proceedings of Suit No. 157/1988, were stayed till the pendency of the second appeal arising out of Suit No. 346/1977. Against these two orders, a miscellaneous appeal as well as the civil revision was filed by the Shia Central Waqf Board. Both the appeal and the revision were dismissed by order dated 11.4.1990 by VIIth ADJ. The Writ Petition No. 18047/1990 has been filed challenging the orders passed by the trial Court and the appellate Court. A mandamus has also been sought commanding the respondents not to interfere in the possession, control and management and administration of the petitioner over the waqf in question.
(3.) The learned Single Judge vide order dated 25.7.1990, passed in the present writ petition granted an interim order directing the parties to maintain status quo on the site only for the performance of religious functions. The said interim order has been extended by order dated 9.6.1992 until further orders. Further interim orders have been passed on 5.1.2009, 15.12.2009 and lastly on 1.11.2012 enabling the petitioner to take out religious procession on the seventh day of Moharrum subject to deposit of Rs. 50,000/- with the Collector concerned.;