- (1.) IN the instant writ petition the sole petitioner claiming to be Mutawalli of the Waqf in question, is aggrieved by the order of the U. P. Sunni Central Waqf Board, Lucknow, dated 4-3-2002 (Annexure-4) recalling its earlier order dated 18-4-2001 and the office memorandum dated 7-3-2002 (Annexure-5) appointing Managing Committee to manage the affairs of the Waqf in question.
(2.) IT appears that on the application moved by the petitioner the Waqf in question was registered as Waqf No. 3145 vide order dated 18-4-2001 and Committee consisting of 7 persons including petitioner was constituted by the Waqf Board for supervision and management of the Waqf. However, the respondent No. 4, Shamshad Ahmad, moved an application before the Waqf Board on 6-12-2001 to recall its earlier order, dated 18-4-2001 on the ground, inter alia, that the Committee headed by him is in actual management of the Waqf in question. Accordingly the Waqf Board stayed its earlier order dated 18-4-2001 and issued notices to the petitioner to give show-cause. An order was also passed on 31-1-2002 for spot enquiry. Accordingly, the Circle Inspector went to the site and after necessary enquiry reported that there exists a mosque in which five times namaz is being held every-day and Namaz-e-Juma is also performed on every Friday. IT has also been found that the said Mosque has a permanent Imam and the Waqf in question is being managed by the Committee of respondent No. 4. Since the petitioner did not appear, by an ex parte impugned order dated 4-3-2002 the order dated 18- 4-2001 appointing committee to manage the Waqf in question headed by the petitioner was accordingly recalled and a new committee headed by respondent No. 4 was constituted vide office memorandum dated 7-3-2002. Sri B. D. Mandhyan, learned Counsel for the petitioner vehemently contended that the aforesaid order has been passed without affording any opportunity of hearing to the petitioner and the notice alleged to have been issued pursuant to the order dated 20th December, 2001 was never issued nor served on the petitioner. It is also contended that sub-section (2) of Section 67 of the Waqf Act, 1995 provides that before superseding any Committee, a show-cause notice mentioning reasons for the proposed action is mandatory in the absence of which order passed under Section 67 of the Act is illegal, without jurisdiction and cannot sustain and, therefore, the whole proceeding initiated under Section 67 of the Act on this score alone deserves to be quashed. He also argued that the petitioner is managing the Waqf in question since 1942 and for the first time respondent No. 4 has moved the application before the Waqf Board with a view to usurp the Waqf property and change the nature of Waqf in question. Mr. M. A. Qadeer, learned Counsel appearing for the respondent No. 1, U. P. Sunni Central Waqf Board, and respondent No. 2 its Chief Executive Officer, on the other hand, contended that the notices were issued to the petitioner and in spite of that he did not choose to appear in the proceeding. It is also submitted that the petitioner obtained the registration of Waqf by suppressing material facts. It is also alleged that in the application of registration the petitioner has mentioned that there is only tomb of 14 Pirwala and he did not mention about the mosque, which also exists there since time immemorial. It is also alleged that the petitioner has wrongly stated in the aforesaid application that he is managing the said Waqf since 1942. He also pointed out that the present writ petition is not maintainable at this stage in view of availability of the alternative remedy under the Act itself. He drew our attention to the proviso to sub-section (4) of Section 67 of the Act which provides that any person aggrieved by the order passed under sub-section (2) superseding the managing committee, can prefer an appeal to the Tribunal within 60 days from the date of the order.
(3.) MR. W. H. Khan, learned Counsel appearing on behalf of respondent No. 4 submitted that the committee of respondent No. 4 is in actual and effective control of the Waqf in question and is managing its affair from the very beginning and the petitioner has obtained the registration certificate by mis-representation and without stating correct fact and as such he has no right to manage the Waqf in question. He vehemently argued that the petitioner has falsely stated that he is managing the said Waqf since 1942. We have heard learned Counsel for the parties at length.;