Poonam Srivastava, J. - (1.) Heard learned counsel for the applicant.
(2.) This is an application under Article 227 of the Constitution of India invoking supervisory jurisdiction for modifying the order dated 22.11.2005, passed by the Waqf Tribunal and also to restrain the opposite party No. 2 from interfering with the possession of the applicant and other beneficiaries of the Waqf No. 122, Aligarh and from alienating property and assets in any manner during pendency of the application for temporary injunction.
(3.) Submission made by Sri J. J. Munir, counsel for the applicant is that one Mohd. Noor Khan created a waqf alul-aulad regarding his properties, which is in form of grove, shops and mosque besides some other properties located at Mohalla Atish Bazar, Aligarh. This Waqf was created for benefit of his family members and lineal descendants. The applicant claims himself to be lineal descendant of Wakhib, Mohd. Noor Khan. During his life time, he made scheme for settlement of the properties and he provided that he would remain mutawalli during his life time. After his death, his son Nooruddin was mutawalli of the Waqf. The applicant states that he is descended in the direct main line and took over as mutawalli of the Waqf and is managing affairs. Subsequently, some dispute arose relating to the management of the Waqf property. This led to dispute, which was adjudicated by the District Judge, Aligarh in case No. 2 of 1939. Vide order dated 22.2.1941, it was provided that Trust Committee shall consist of members only from amongst male lineal descendant of Mohd. Noor Khan. In the course of time, affairs of the Waqf were taken over as mutawalli by Shri Ashfaq Ahmad alias Mohd. Ashfaq grandson of Wakhib, Mohd. Noor Khan. He has been continuing since 1959. The contesting opposite party is alleged to be harden criminal of district Aligarh. A complaint was instituted at his instance before the Waqf Board alleging misconduct and mismanagement by Shri Ashfaq Ahmad. The Waqf Board vide order dated 1.8.1995 directed removal of sitting mutawalli from the office. An application before the Waqf Tribunal/ Civil Judge (Senior Division) Aligarh under Section 83, Waqf Act, 1995 was filed, which was numbered as Misc. Case No. 31 of 1996. The Tribunal stayed operation of the order removing mutawalli dated 1.8.1995 but subsequently vide order dated 11.3.1998, dismissed the application/reference on 12.2.2001 on the ground that the Civil Judge (Senior Division) Aligarh, is not constituted as a Tribunal under the Waqf Act, 1995 in view of U.P. Government Notification No. 369/52-2-1998 dated 11.3.1998. A revision under Section 83 (9) (Proviso) of the Waqf Act, 1995 was filed before this Court on the ground that the order was passed without giving an opportunity of hearing and non-consideration of material evidence. Notice was issued and operation of the order dated 1.8.1995, passed by the Waqf Board and also order dated 12.2.2001 were stayed. The said revision was dismissed in default and a restoration application to recall the order dated 19.9.2005 is pending. The contesting opposite party No. 2 got himself appointed as mutawalli of the Waqf which belongs to applicant's family, taking advantage of fact that revision stands dismissed in default. The contesting opposite party has started alienating the Waqf property. The instant application under Article 227 of the Constitution of India has been filed with a prayer that it is a case of urgency unless this Court ensures that contesting respondent may not misuse his authority only because revision, which has been dismissed in default and a restoration application is pending, the whole scheme of Waqf will stand frustrated and irreparable loss will be caused to the applicant, who is a direct lineal male descendant of the original creator of Waqf.;