- (1.) Afzal Husain, son of Altaf Husain has directed this petition against the proceedings taken by Shia Central Board of Waqfs U. P., opposite party No. 3, for his eviction from house No. 68/218 and the appurtenant land situate at Mohalla Bari Hat, district Bahraich.
(2.) On 7-10-1977 the Collector Bahraich issued an order to the petitioner stating therein that he had received a requisition from the Secretary Shia Central Board of Waqfs under S.57A(i) of the U.P. Muslim Waqfs Act, 1960 regarding petitioner's unauthorised occupation of the property described in the order and requiring the petitioner to deliver possession of the said property to the Shia Central Board of Waqfs U.P. within a period of 30 days from the date of service of the order. In this order it was also stated that if the petitioner failed to deliver possession to the Waqf Board, ejectment proceedings shall be initiated against him as laid down in R.7 of the U.P. Muslim Waqfs (Recovery of Waqf Property) Rules, 1972. A copy of this order has been filed as Annexure No. 1 to the writ petition, on receipt of this order the petitioner preferred appeal under S.49B(4) of the Act before the learned District Judge Bahraich which was transferred for hearing to the learned 1st Additional District Judge, Bahraich. A copy of the memorandum of appeal is Annexure 2. The stand taken before the appellate Court by the petitioner was thus :- (i) The property in dispute is neither Waqf property nor is it entered as property of Waqf in the register of Waqfs maintained in the office of the Shia Central Board of Waqfs U. P.; (ii) In view of the fact that the property was neither Waqf property nor it was entered in the register of Waqfs, the Board could not send requisition under S.57A(i) to the Collector and therefore the Board's requisition and the Collector's order were invalid and without jurisdiction; (iii) The enquiry, if any, made by the Board prior to the issue of the requisition to the Collector was a farce and was not conducted in accordance with the rules, therefore also the Board's requisition and the Collector's order are invalid and illegal; (iv) The property belonged to the petitioner's uncle Sri Akhtar Husain who died leaving the petitioner his nearest heir, and as such heir, on the death of Sri Akhtar Husain the petitioner has become owner of the disputed property and this ownership continues; (v) The petitioner resided in the house in the lifetime of Sri Akhtar Husain and continued to reside therein even after his death and in this manner he has been in occupation of the property for the last 30 years and he is not in unauthorised occupation of the property in question.
(3.) The appeal was dismissed by the learned 1st Additional District Judge, Bahraich by his judgment and order dated 13-2-1978, Annexure 3. The learned appellate Judge was of the opinion that the pleas raised by the petitioner could not be entertained in an appeal filed under S.49B(4) of the Act because in the appeal the Court could only consider the validity of the Collector's order and not of the requisition sent by the Board. It was also observed that to challenge the validity of the requisition the petitioner may have the remedy of regular suit but the remedy of appeal was not available. Aggrieved by this order of the appellate Judge the petitioner has approached this Court under Art.226 of the Constitution.;