Rakesh Tiwari - (1.) -Heard Sri R. B. Yadav, counsel for the petitioners, Sri Awadhesh Kumar Singh, counsel for the respondents and perused the record.
(2.) THIS petition has been filed for quashing the order dated 10.5.2005 passed by the Civil Judge (Junior Division), Gorakhpur. It appears from record that the father of the petitioner No. 2 had filed an application under Section 30 (1) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') (paper No. 4-Ga) supported by an affidavit dated 2.12.2004 before the Civil Judge (Junior Division), Gorakhpur-respondent No. 1 for allowing him to make payment of rent which was due since March, 2003 till December, 2004. An extract of khatauni was also filed by the father of the petitioner No. 2 on 8.5.2005 to establish that the property in dispute is not a waqf property but is owned by the State Government. Sri Habib Ahmad, Advocate who is said to be the Secretary of the Hamidia Educational Society Waqf No. 128, Post Office Sadar, district Gorakhpur filed objections supported by affidavit inter alia that the application was not maintainable under Section 30 (1) of the Act and is barred by Section 85 of the U.P. Muslim Waqf Act No. 16 of 1960. It was also objected that the authority had no jurisdiction in the matter as the property was waqf property and beyond the purview of the Act. Civil Judge (Junior Division) Gorakhpur-respondnet No. 1 rejected the application of father of the petitioner No. 2 vide impugned order dated 10.5.2005 holding that the disputed property is waqf property, therefore, provisions of the Act are not applicable.
(3.) AGGRIEVED, the petitioners have come up in this writ petition. Counsel for the petitioners vehemently contended that the disputed property under their tenancy is not waqf property and the court below has committed an illegality and error apparent on the face of record in not allowing the application for payment of arrears of rent.;