Sabhajeet Yadav - (1.) -By this petition, the petitioner has challenged the order dated 26.8.2008 passed by Wakf Tribunal/Civil Judge (Sr. Division), Muzaffar Nagar, contained in Annexure-12 of the writ petition) whereby ex parte temporary injunction has been granted by the Wakf Tribunal in favour of respondents against the petitioner and further relief in the nature of mandamus commanding the Civil Judge (Sr. Division), Muzaffar Nagar not to give effect to and not to implement the appointment of respondents No. 1 to 3 as Wakf Committee and not to interfere in petitioner's functioning as mutawalli of the Wakf has been sought for.
(2.) THE brief facts leading to the case are that the wakf in dispute is a public and charitable wakf registered as wakf Masjid Hauz Wali No. 13 Muzaffar Nagar with the U. P. Central Wakf Board and its management is carried out by the petitioner. Earlier vide order dated 25.8.2001 the Wakf Board had appointed the Managing Committee for 5 years under the Presidentship of Mohammad Fazil of which Zaheer Ahmad was Secretary. The term of said Committee was going to expire on 24.8.2006, therefore on 14.8.2006 the petitioner's committee filed an application for extension of its term. Whereas on 17.8.2006 some complaints were made by Shamim Akhtar and others against the petitioner's committee on which the Wakf Board after affording an opportunity to the parties on 7.6.2007 dismissed the said complaint and extended the term of petitioner's committee for further period of one year. In the new Committee Zaheer Ahmad was appointed as Joint Secretary. It is stated that said order dated 7.6.2007 was however wrongly stayed by the Chairman of the Wakf Board vide order dated 16.6.2007 which was challenged by the petitioner by means of Reference No. 8 of 2007 before the Tribunal/Civil Judge (Senior Division), Muzaffar Nagar, which is still pending. Subsequently the Chairman of Wakf Board passed an order on 3.9.2007 by which he has set aside the order of appointment of petitioner's committee dated 7.6.2007 and has appointed Administrative Committee under Section 65 of the Wakf Act, 1995 (hereinafter referred to as 'the Act'). In the said committee Zaheer Ansari the mutawalli of present Wakf committee has also been included as Member. It is stated that the State Government was required to publish a Gazette Notification to validate the said order under Section 65 of the Act, therefore, on 12.9.2007 the Chief Executive Officer of the Board had written a letter to the State Government for issuing a Gazette Notification. It is stated that till today the State Government has not issued any Gazette Notification under Section 65 of the Act in pursuance of said letter of Chief Executive Officer dated 12.9.2007 and to meet out the said flaw the Chief Executive Officer of Waqf Board has himself pasted a letter on Notice Board of the Board as "adhisoochna" but the said adhisoochna has not been published in any official Gazette as required under the aforesaid Act nor the Ministry of Wakf Board has yet approved the said action. In this view of the matter the petitioner filed Misc. Case No. 30 of 2007 on 17.9.2007 challenging the orders dated 3.9.2007 and 12.9.2007 under Section 83 of the Act, before the Wakf Tribunal. It is stated that the respondents filed an application 34C for rejecting the plaint under Order VII, Rule 11, C.P.C., which has been decided vide order dated 14.1.2008. Against the said order dated 14.1.2008 the petitioner filed a Civil Revision No. 42 of 2008 in which an interim order has been passed on 31.1.2008. The said order has been extended from time to time and is still in operation and the revision is still pending. It is further stated that in the meantime the respondents No. 1 to 3 had filed Wakf Case No. 20 of 2008 before the Wakf Tribunal/Civil Judge (Senior Division), Muzaffar Nagar without giving any notice to the Wakf Board as required by Section 90 of the Act. It is stated that an application 5C has also been filed in the said case under Order XXXIX, Rules 1 and 2, C.P.C. The petitioner has submitted an application dated 24.5.2008 before the Wakf Board for extension of his term. It is stated that without passing any order on the aforesaid application dated 24.5.2008, an order dated 18.7.2008 has been passed by the Wakf Board. A true copy of the said order dated 18.7.2008 is on record as Annexure-11 of the writ petition. It is stated that impugned order dated 26.8.2002 passed by Tribunal is based on order dated 18.7.2008 passed by the Board, whereby an ex parte interim injunction has been granted in favour of respondents against the petitioner, hence this petition. A true copy of the impugned order dated 26.8.2008 is on record as Annexure-12 of the writ petition. Heard, Sri M. A. Qadeer, learned senior advocate assisted by Sri Shamim Ahmad for the petitioner and Sri W. H. Khan, learned senior counsel assisted by Sri T. A. Khan for the respondents.
(3.) SRI M. A. Qadeer, learned senior counsel for the petitioner has submitted that since Case No. 20 of 2008 filed by respondents No. 1 and 3 before Tribunal is not against any order passed under the Wakf Act, 1995 (hereinafter referred to as the Act), therefore, aforesaid case is not maintainable under Section 83 (2) of the Act, accordingly no interim order dated 26.8.2008 could be passed by the Tribunal, as such impugned order dated 26.8.2008 is wholly without jurisdiction and cannot be sustained. Contrary to it, Sri W. H. Khan, learned senior counsel appearing for the respondents has submitted that the Tribunals constituted under Section 83 (1) of the New Act, 1995 have ample power to determine any dispute, question or other matter relating to a wakf or wakf property and shall be deemed to be a civil court and shall have the same powers as may be exercised by civil court under the Code of Civil Procedure, while trying a suit or executing a decree or order. Not only this but Section 85 of the Act, bars the jurisdiction of civil court in respect of any dispute, question or matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by Tribunal. Therefore, the impugned order passed by the Tribunal can neither be said to be without jurisdiction nor can be otherwise faulted with. In support of his submission learned counsel for the respondents has also placed reliance upon a Division Bench decision of this Court rendered in Najma Khatoon v. U. P. Sunni Central Board of Wakf and others, 2003 (21) LCD 266, wherein it has been held that Tribunal can adjudicate any dispute, question or other matter relating to wakf or wakf property under the Act and another Division Bench of this Court in Wakf Dargah Shah Mohd. and others v. U. P. Sunni Central Board of Wakf, Lucknow and others, 2003 (52) ALR 571 : 2003 (5) AWC 3469, has held that the Wakf Tribunal has jurisdiction to entertain the case, even if no order is passed under the Wakf Act, 1995. As the scope of Section 83 is very wide, the Court has held that the Wakf Tribunal has power to grant interim order also. Similar view has also been taken by Uttaranchal High Court in Amanullah Khan v. State of Uttaranchal and others, AIR 2005 NOC 178 (Utt).;