Raghubar Dayal, J. - (1.) This is a Special Appeal by the Sunni Central Waqf Board, U.P. (hereinafter referred to as the Board) and Sri Rafiq Ahmad, Inspector of Waqfs, against the order of Mr. Justice Chaturvedi holding the order of the President of the Board, dated 10-5-1955, a nullity and issuing a writ of mandamus directing the Board not to enforce that order and not, in any way, to interfere with the rights of the respondents Nos. 1 to 10.
(2.) Sixteen persons, the respondents in this appeal, filed a petition under Article 226 of the Constitution against the two appellants alleging themselves to be the khadims of the Dargah Badruddin Shah Wilayat Saheb in the city of Budaun, a religious institution mainly visited on the occasion of the annual Urs in the month of Ramzan by pilgrims. Pilgrims also visit the Dargah on other ceremonial occasions. The Board declared the Dargah to be a waqf to which the provisions of the U. P. Muslim Waqfs Act No. XIII of 1938 (hereinafter called the Act) applied. This led to the institution of a civil suit No. 56 of 1945 by respondents Nos. 1 to 5 in the Court of the Civil Judge, Budaun, against the appellant Board. A compromise was arrived at between them and the Board on 30-8-1952. Such terms of the compromise as are mentioned in the affidavits filed on behalf of the parties are : "1. That the plaintiffs agree that the property which is the subject matter of the suit is Waqf for public benefit and the Waqf is governed by the Muslim Waqfs Act of 1936. The property is intended for "umoor khair" (works of general benefit for the public) and it will be utilized in future for "umoor khair" only (vide paragraph No. 8 of the counter-affidavit). 2. (a) Intizar Husain, Iltifat Husain, Arshad Ali, Imtiaz Husain and Intizam Husain will act as muta-walis of the waqf properties. (b) The Government dues will be paid out of the income of the waqf properties. (c) Out of the income left after the payment of the Government dues one third will be appropriated by the mutawallis, the khadims and their successors, which they will spend in the manner they choose. Besides the persons named in the compro-mise, if any body was held entitled to benefits as Khadim, under the waqf, he will be paid out of this 1/3rd allocated for them and the 2/3rd wilt not be affected thereby. The opposite party will not charge or levy any contribution or liability upon the Khadims in respect of this 1/3rd portion of the income. (d) The remaining 2/3rd of the income of the waqf property will be spent for the objects of the Dargah, including Urs etc., according to the budget, prepared by the mutawallis and approved by the opposite party No. 1. The accounts will be audited at the end of the year. The contribution shall be leviable upon the 2/3rd of the income of the waqf properties allocated for purposes of the Dargah and for the payment of this contribution the mutawalli shall be liable. (e) As to the arrears of the contribution, the mutawallis were allowed to pay it up by annual instalments of Rs. 200/-" (vide paragraph 10 of the affidavit of Initiaz Husain).
(3.) A second compromise was arrived at on 8-11-1952 between respondents Nos. 6 to 10 and the Board whereby these five persons were also to be mutawaillis Subject to the same conditions and liabilities which applied to the previous five mutawallis.;