A.N. Varma, J. - (1.) THE short question which falls for determination is whether in an appeal filed under section 57 -A of the U.P. Muslim Waqf Act, 1960, the appellate court has jurisdiction to determine the question whether the person against whom the Board issues a requisition to the Collector to obtain and deliver possession of the property, is an unauthorised occupant or his occupation is valid and lawful. In the present case the learned District Judge has dismissed the appeal filed by the original petitioner Smt. Amina Khatoon (who died during the pendency and is now represented by Tariq Akhtar Ansari) without considering her claim that she was in occupation as a 'Mutvalli' on the ground that in the exercise of his power under section 57 -A, it was not competent to examine the correctness or otherwise of the requisition issued by the Board to the Collector under Section 57 -A. Challenging the legality of the impugned order, Haji Iqbal Ahmed, learned counsel for the petitioner submitted that the view taken by the appellate court is manifestly unsustainable in law and as a consequence he has failed to exercise jurisdiction which was vested in it by law. Sri Haider Hussain, learned counsel for the respondent, on the other hand, submitted that the appellate court rightly refused to go into the above question.
(2.) IN order to appreciate the conditions it will be convenient to set forth the relevant statutory provisions: 49 -B. RECOVERY OF WAKF PROPERTY TRANSFERRED IN CONTRAVENTION OF SECTION 49 -A. - -(1) If the Board is satisfied after making an inquiry in such manner as may be prescribed that any immovable property of a waqf in the register of waqfs maintained under Section 30, has been transferred without the previous sanction of the Board in contravention of the provisions of Section 29 -A, it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it. (2) On receipt of a requisition under sub -section (1), the Collector shall pass an order directing the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order. (3) Every order passed under sub -section (2) shall be served - - (a) by giving or tendering or by sending it by post to the person for whom it is intended; or (b) if such person cannot be found, by affixing it on some conspicuous part of his last known place of abode or business, or by giving or tendering it to some adult male member or servant of his family or by causing it to be affixed on some conspicuous part of the property to which it relates: Provided that where the person on whom the order is to be served is a minor, service upon his guardian or upon any adult member or servant of his family shall be deemed to be service upon the minor. (4) Any person aggrieved by an order of the Collector under sub -section (2) may, within a period of thirty days from the date of the service of the order, prefer an appeal to the Court of the District Judge within whose jurisdiction the property is situate. The next relevant provision is 57 -A which runs as follows: 57 - -A. RECOVERY OF POSSESSION OF WAKF PROPERTY FROM UNAUTHORISED OCCUPANTS - -(1) If the Board is satisfied after making an inquiry in such manner as may be prescribed that any person is in unauthorised occupation of any immovable property entered as property of a waqf in the register of waqfs maintained under Section 30 it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it. (2) The provisions of sub -sections (2), (3), (4), (5), (6) and (7) of Section 49 -B shall mutatis mutandis apply in relation to a requisition under sub -section (1) as they apply in relation to a requisition under sub -section (1) of that section.
(3.) IT will be seen that the scope of an appeal under section 57 -A read with section 49 -B is not restricted to any specific grounds. Sub -section 2 of Section 57 -A simply says that the provisions of sub -sections (2) to (7) of Section 57 -B shall mutatis mutandis apply in relation to a requisition under sub -section (1) of Section 57 -A as they apply to a requisition under sub -section (1) of Section 49 -B. Sub -section (4) of Section 49 -B which will apply to an appeal filed under sub -section (2) of Section 57 -A merely confers on an aggrieved person the right to file an appeal to the District Judge against an order of the Collector under sub -section (2). There is, however, nothing in sub -section (4) of Section 49 -B or even Section 57 -A which might justify the conclusion that in an appeal filed against an order of the Collector directing the person alleged to be in unauthorised occupation to deliver the property to the Board, the scrutiny shall be confined only to the question whether the Board has issued any requisition to the Collector and not to the further question whether the person who is alleged to be in unauthorised occupation by the Board is in fact in occupation of the property without any right or title. The words used in Section 57 -A(2) read with Section 49 -B(4) are of wide amplitude not hedged in by any restrictive clause and there is nothing in the scheme of the Act which may justify the conclusion that the District Judge is barred from examining the question whether the occupation of the person proceeded against by the Board under Section 57 -A is lawful, that is, whether he has any right or title to remain in possession over the property.;