- (1.) RAN Vijai Singh, J. The dispute in all the writ petitions arises from one and the same transaction of registration of Masjid and Azakhana/imambara situate in Mohalla Bagla, Amorha, District Jyotibaphule Nagar as wakf before the U. P. Shiya Central Board of Wakf Lucknow, therefore, all the three writ petitions are taken up together. The facts of the writ petition No. 28001 of 2007 (Ali Makin Naqvi vs U. P. Shiya Central Board of Waqf and others )
(2.) THE petitioner in the present case applied for registration of Masjid and Azakhana/imambara as Wakf before respondent no. 1 i. e. , U. P. Shiya Central Board of Wakf Lucknow (hereinafter referred to as Board) on 01. 02. 2003. The respondent no. 3 i. e. , Wali Haider filed an objection on 16. 02. 2004 stating therein that the Imambara and Masjid were constructed by Sri Daad Ali his ancestor and the same is being maintained and managed by his family members. In his submissions the Imambara and Masjid mentioned in different Wakf are already registered and there is no question of new registration of Masjid and Imambara now. It was further alleged that only one room and house was to be included in Imambara and to that effect application had already been given by him on 03. 12. 1997 for registration. The respondent no. 1 after considering the case of the petitioner and the respondent no. 3 has allowed the application of the petitioner by a detailed order dated 05. 07. 2004 and also appointed the petitioner as Mutwalli of the Wakf for a period of three years. The respondents no. 3, 4 and 5 aggrieved from the aforesaid order have filed a Civil Misc. Writ Petition No. 4622 (M/b) of 2004 at Lucknow Bench of this Court challenging the order dated 05. 07. 2004 and the order dated 23. 10. 2003 by which the Administrator was appointed. In that writ petition counter affidavit was filed by the petitioner as well as by the Board. In fact in the counter affidavit, the Board has justified the earlier order passed on 05. 07. 2004.
(3.) PENDING aforesaid writ petition the respondent no. 4 moved an application without any supporting affidavit or evidence on 05. 01. 2005 before respondent no. 1 to recall and set aside the order dated 05. 07. 2004 and allow the application dated 03. 12. 1997. The grounds for recalling the order dated 05. 07. 2004 as stated in the application are as under: (a) Because the order dated 05. 07. 2004 is without jurisdiction as the same has been passed by the Administrator who was appointed as Administrator by the State under Section 102 of the Wakf Act 1995 (hereinafter referred to as the Act ) and not under Section 99 (1) of the Act, since under Section 102 of the Act, the State Government is not competent to appoint Administrator therefore, the order dated 05. 07. 2004 is without jurisdiction. (b) Because the aforesaid order has been obtained by misleading the Administrator after concealing the material facts. The prayer was also made for staying the operation of the order dated 05. 07. 2004 and appointing the applicants ( respondents no. 3 to 5 ) as Mutwalli of the said wakf for three years. It appears that Chairman of the Board has passed an order on 07. 01. 2005 staying the operation of the order dated 05. 07. 2004 till further orders. The petitioner came to know about the aforesaid application and order on 13. 01. 2005 and immediately thereafter he filed an objection on 19. 1. 2005 on the following grounds: (i) Because the applicants ( respondents no. 3 to 5 ) have already filed Civil Misc. Writ Petition No. 4622 (M/b) of 2004 at Lucknow Bench of this Court challenging the order dated 05. 07. 2004 in which counter affidavits have already been filed by the petitioner as well as by the Board and the writ petition is still pending therefore, no fresh application is maintainable. (ii) Because under the Act there is no power of review therefore, the application is not maintainable. (iii) Because the order dated 05. 07. 2004 was passed on merit after hearing both the parties and considering their version in detail. It has already been notified in U. P. Gazette on 06. 11. 2004 and pursuant thereto the petitioner is functioning as Mutwalli. Therefore, the order dated 07. 01. 2005 could not be passed without hearing the petitioner. (iv) Because the order dated 07. 01. 2005 is an out come of the pursuation of respondent no. 3 who has now become Member of the Board, as well as Member of Judicial Committee also of which Incharge, Sri Hasan Ibrahim has passed the impugned order, therefore, the same is not sustainable.;