B.K.Roy, J. - (1.) THE prayer of the petitioners is to quash various orders passed by the authorities under the provisions of the U.P. Muslim Waqfs Act, 1960 (hereinafter referred to as the Act) and follow up orders as contained in Annexures 3 and 4 of Writ Petition No. 3491 of 1977 and Annexure -C -8 to the counter affidavit of Respondent No. 3. Even though the records of this writ petition are bulky, in my view the relevant facts are in a narrow compass. According to the petitioners they are Hindus whose ancestors were, and after them they are in possession of 2.69 acres of lands bearing Khasra No. 5943 situated in Mohalla Danish Bandan, Town Amroha, District Moradabad for last approximately 100 years, of which they had become its sirdar and later Bhumidhar; that children of one Syed Hussain Raja of the locality claimed the lands to be a waqf property and Syed Hussain Raja as its Mutwalli and filed in that capacity a suit for eviction of fathers of petitioner Nos. 3 to 6 from the lands in question under the provisions of Section 202 of the U.P.Z.A. and L.R. Act; that the said suit was contested on the grounds, inter alia, that the lands aforementioned is not waqf property; that the suit was dismissed by judgment and order dated 19.1.1967 (copy appended as Annexure -1) holding to the effect that (i) the waqf deed dated 11.5.1876 filed by the plaintiffs does not show that neither it nor does the samad of the waqf property includes the disputed lands, (ii) the plaintiff admits that he is the Zamindar of Khewat No. 1835, the total area of which is 4.22 acres out of which only 2.69 acres is in dispute and only 1,90 Acres is shown as grove, (iii) the defendants on the other hand had shown their possession over the disputed plot for the last 45 years that is to say before coming into force of the abolition of Zamindari, (iv) the name of the plaintiff had not come on record as Bhumidhar, besides no entry was made in his favour, after the abolition of the Zamindari, (v) the plaintiff is not Mutwalli of the disputed plot, and (vi) the defendants are not liable to be ejected; that the validity of the judgment aforementioned was challenged in Appeal preferred by the Waqf Allahtala through Syed Hussain Raja but later on an application was filed for withdrawing the suit on technical grounds, which despite opposition, was allowed by order dated 3.7.1969 on the ground that the defects in the plaint are such which require withdrawal and the suit was permitted to be withdrawn with liberty to file afresh and consequently the judgment and decree under appeal was set aside; that the descendants of Syed Hussain Raja aforementioned approached Respondent No. 3. The Shia Central Board of Waqf, Lucknow for having possession of the lands after eviction of the petitioners which, without conducting any enquiry on or about February, 1974, sent a notice to the petitioners requesting them to vacate the lands in dispute as they were occupying them illegally; that the Respondent No. 3 was informed by the petitioners by a registered letter with acknowledgment due that they are rightful owners of the lands who had become Sirdar after the abolition of the Zamindari cannot be evicted; that the petitioners lodged a written protest before Respondent No. 3 of finding the close relationship of Syed Hussain Raja with the President of the Board Respondent No. 3 and of being same group of persons yet they explained their position in detail; that they were assured by the President of the Board that he was convinced that they had become owners and Sirdar of the lands in question but instead of sending his order to them a requisition order under Section 57A of the Act (copy appended as Annexure -3) was sent to the Collector, who later on issued an order directing the petitioners to vacate the lands; that the petitioners went up in appeal under Section 49B(4) of the Act, which was dismissed vide judgment dated 12.8.1977 (as contained in Annexure -4); that the orders are liable to be quashed on various grounds as the petitioners are Hindus the provisions of the Act do not apply to them.
(2.) RESPONDENT No. 3 in its counter affidavit, sworn by Syed Mehsoob Hasan Khan, states, inter alia, that the disputed property is a waqf property by virtue of a registered waqf deed dated 11.5.1876, which consists a Mango Grove and other trees, a Grave Yard of the family of the Waqf and some houses known as Mohammad Mohsin Khan, and was being managed by the successive Mutwalli; that the Waqf was registered under Section 38 of Act No. XIII of 1936; that about 1941 fathers of petitioners Nos. 2 to 8, who are Mali by caste, and who were faithful to the ancestors of the deponent, who were big Zamindars, were engaged as servants by the Mutwalli to look after the Grove and Grave Yard and had allowed them to live at the said grove; that the ancestor of the deponent used to give theka of the fruits of the trees to them, that from the very beginning in the Revenue Records the Waqf property, consisting of Grove and Grave Yard stand continuously recorded; that the provision of Section 38 of Act No. XIII of 1936 was reiterated under Section 30 of the U.P. Act No. XVI of 1960 and the property in question is entered in the Register maintained by the Waqf Board; that the petitioners had not acquired any right in the properties, who had never denied before 1965 its character as a waqf property; that the suit was filed under a wrong legal advice treating the defendants as Asami, which was withdrawn and the judgment rendered therein has no relevance now; that an enquiry was made by the Inspector of the Board, who also submitted his report that Syed Alia Raja Khan, as managing Mutwalli of the waqf, filed an application under Section 57A of the Act against the petitioners for taking appropriate action against them, on which notices were issued, objections filed and the petitioners as well as the Mutwalli of the Waqf were asked to produce their evidence in accordance with the provisions of Section 58 of the Act and some of the petitioners and Mutwalli filed their documents, some of them also made statements, which were recorded, and a final judgment was pronounced, which in the absence of any challenge under Section 33(2) of the Act, has become final and binding on the petitioners who however, on 22.7.1975 filed a suit for grant of injunction, which was ultimately dismissed. The submissions: - - Shri G.N. Verma, the learned counsel appearing on behalf of the petitioners, submitted as follows: (i) After withdrawal of the earlier suit from the Appellate Court with liberty to institute a fresh suit on account of alleged technicalities, instead of filing of a fresh suit for declaration of title in regard to the lands in question and for recovery of possession, illegally the provisions of the Act was invoked; (ii) The impugned orders were illegally passed even though, as repeatedly laid down by the Supreme Court in Board of Muslims Waqfs v. Radha Kishan : AIR 1979 SC 289 and Board of Muslims Waqfs v. Hazi Begum and others : 1993 (1) S.C.C. 192, that the jurisdiction under the Waqfs Act cannot be invoked when the other side is a non -Muslim to whom the Act do not apply and accordingly the impugned orders including the proceedings initiated under the said Act, all are liable to be quashed.
(3.) MR . Haider Hussain followed up by Mr. Bansari Das, the learned counsel appearing in on behalf of the Respondents, on the other hand, contended as follows: - - (i) The submissions of Mr. Verma have got no force. It was open for the respondents either to institute a fresh suit under the provisions of U.P.Z.A. and L.R. Act or to take recourse to the provisions of the Waqfs Act and thus in taking recourse to the later mode no illegality and/or impropriety was committed by the Respondents. (ii) The claim of the petitioners was also negatived in the suit filed by them against which also they did not prefer any appeal and the finding recorded therein is binding on them. (iii) The decisions relied upon are in relation to the Waqfs Act as applicable to the State of Rajasthan, and not to this State. Under Section 49B of the U.P. Act, a provision has been made for the protection of Waqf properties, and on the finding of fact recorded by the authorities the land in question was a waqf property and, thus, the defence of the petitioners that it was their Sirdari etc. was correctly not accepted by the authorities under the Act and also for the reasons of their own the petitioners did not assail the findings recorded against them by filing an appeal under Section 49B(4) of the Act.;