- (1.) THE present applicants have filed a suit No. 191 of 1978 in the Court of the Civil Judge, Lucknow alleging that they are the legally appointed Mutawallis of various public and charitable waqfs. THEir waqfs function under the general superintendence and guidance of Shia Central Board of Waqfs, U.P. Lucknow (hereinafter referred to as 'the Board') duly constituted under the provisions of U.P. Muslim Waqfs Act (hereinafter called 'the Act'). THEy alleged that on the expiration of the term of the Board in the year 1969, necessary arrangements were made according to Sec. 12 of the then Act, for holding election, co- option and nomination for constituting a new Board and after complying with the necessary formalities prescribed in the Act, a new Board was constituted in the year 1970, but its term could not commence as the publication of the notification by the Government was stayed by this Court in writ petition No. 784 of 1969 filed by Sri Agha Zaidi and others against the Board. That writ petition was dismissed on 31st Aug., 1973. In the meantime the Governor of Uttar Pradesh issued the U.P. Muslim Waqfs (Amendment) Ordinance 1974 which was published in the U.P. Gazette Extraordinary dated 15-4-1974. That ordinance was later on replaced by the U.P. Amendment Act, 1974 which was published on 26-6-1974. In Sec. 3 (2) of the Amendment Act, inter alia, it was provided that the election and co-option under Sub-Section (1) of S.12 shall be held and made within such time and in such manner as the State Government may be order prescribe. In view of the Amendment Act, the defendants 1 and 2 made necessary arrangements for the constitution of the Board and held elections and nominations under the provisions of S.12 of the Act and according to the plaintiffs the following persons became the members of the Board in 1974 : 1. Sarvasri Murtaza Ali Khan,
(2.) " Ambar Rizvi, " Agha Zaidi, " Syed Mohammad Jafar, and
(3.) " Syed Mohammad Ali Zaheer. The State Government nominated Sri Hashim Raza Abdi (defendant No. 4), who refused to accept the nomination on the ground that the Board as constituted in the year 1970 still existed and only its notification was to he done. Sri Imtiaz Husain and defendant No. 4 in the meantime filed writ petition No. 758 of 1974 in this Court and obtained a stay order against the notification of the Board. The plaintiffs (Applicants) have further alleged that Syed Ali Zaheer defendant No. 3 was illegally elected by the Board of Trustees of Shia College, Lucknow under S.12(1)(iii) of the Act as one of the members of the Board. According to the plaintiffs Syed Ali Zaheer could not be elected by the Board of Trustees of Shia College because in Regular Suit No. 2 of 1972 Fida Husain v. Honorary Secretary of Board of Trustees of Shia College, an interim order had been passed restraining the Board of Trustees of Shia College from holding any election for the constitution of Board on 29th July, 1972. Despite the said order the Board of Trustees of Shia College, Lucknow, however, elected Syed Ali Zaheer as one of the members of the Board. The writ petition No. 758 of 1974 was dismissed in 1975 and an application for special appeal No. 31 of 1975 was filed. Though Syed Ali Zaheer was illegally elected by the Board of the Trustees of Shia College, according to the plaintiffs, he along with other members held a meeting at the instance of defendants 1 and 2 for co- option of other members of the Board. The members of the Board also wanted to elect the President but they could not hold the election of the President of Board on account of the said stay order. The said stay order was however, no longer operating and it was, therefore, alleged by the plaintiffs in para 16 of the plaint that defendants 1 and 2 were taking steps to constitute another Board under the amended provisions of Sec. 12 of the Act and in that connection defendant No. 1 had issued a G.O. No. 2980, dated 9th July, 1978 requiring the defendant No. 2 to co-opt three members according to the provisions of Sub-Section (4) of S.12 of the Act. In the said G.O. the Government informed the defendant No. 2 that there were already four members of the Board according to the provisions of sub-cls. (i) (ii) and (iii) of Sub-Section (1) of Sec. 12 of the Amendment Act. In this connection the plaintiffs have alleged in para 20 of the plaint that no election of the Board of Trustees of Shia College, Lucknow, as mentioned in S.12(1)(iii) of the Act, has been held, yet the defendant No. 1 has stated in the said G. O., that compliance of Sec. 12(1)(ii) of the Act had been made. The defendant No. 2 also sought clarification on the point from the Government through letter dated 22/24-6-1978 and a reply was sent by the State Government on 29th July, 1978 wherein it was stated that the name of Syed Ali Zahir defendant No. 3 had been sent under Sec. 12(1)(iii) of the Act on the basis of the alleged election of the Board of Trustees of Shia College, Lucknow for constituting the new second Board. 2. In paragraph 23 of the plaint, the plaintiffs have alleged as under : "23. That it is clear that no election of the Board of Trustees of Shia College, Lucknow, has been held under Section 12(1)(iii) of the Act, and, as such, the defendant No. 3 cannot become the member of the Board, nor he has right to participate in any meeting for co-option as provided under S.12(1)(iv) of the Act." The Secretary of the defendant No. 2 issued notices to defendants Nos. 3, 4, 5 and 6 on 22-7-1978 for holding a meeting on 30-7-1978 under Sec. 12(1)(iv) of the Act. A meeting was accordingly held on 30-7- 1978 but no final decision for co-option could be made as defendant No. 4 raised a preliminary objection to the effect that the meeting so-called was illegal. This meeting for co-option was postponed for the next day. The defendants No. 3 to 6 again held a meeting on 31-7-1978 in the office of the Board and co-opted defendants Nos. 7, 8 and 9 as the members of the Board. It also appears that the defendant No. 3 was elected as the President but no notification in that behalf was made till the date of the institution of the suit. 3. An application for an interim injunction was moved by the plaintiffs before the trial court praying that the defendants 2 to 10 be restrained from holding any election of the President of opposite party No. 2 and the opposite party No. 1 be restrained from issuing any notification for the formation of the Board under Sec. 12(1)(iv) of the Act and that the opposite party No. 3 may be restrained from participating in any meeting of the Board during the pendency of the suit. This application was contested and a counter-affidavit was filed on behalf of the defendant No. 3 as well. Re-joinder affidavit was also filed. The application for grant of interim injunction was finally disposed of by the learned Civil Judge, Lucknow on 4th Sep., 1978 who dismissed the said application and vacated the interim injunction order passed earlier by him. Against that order an appeal was filed by the present plaintiff-applicants in the court of the District Judge, Lucknow. He granted an interim injunction on 14-9-1978. That appeal was, however, dismissed by the learned District Judge on 19th Sep., 1978. He also vacated his interim order dated 14th Sep., 1978. The plaintiffs have now come up to this Court in revision under S.115 of the Code of Civil Procedure against the said order of the learned District Judge. 4. Before I proceed to examine the contention raised on behalf of the parties, it may be stated that the learned counsel for the applicants conceded that the election of the President of the defendant No. 2 has taken place after the vacation of the injunction order and that Sri Syed Ali Zaheer was elected as President on 7th Aug., 1978 but the result of the election was not announced in view of the injunction order. When that injunction order was vacated the result of the said election was also announced. It has also been conceded that the notification constituting Waqf Board has also now been issued by the State Government. Further it was stated by the learned counsel for both the parties that an interim order has been passed by this Court in Special Appeal No. 31 of 1975 in the following terms : "The Standing Counsel states that the notification has already been published and the Committee has been duly constituted, but as the parties are agreed that the case itself be heard and disposed of on 5th Dec., 1978, the Controller shall function till that date instead of the elected committee." The plaintiffs had prayed for an interim injunction to restrain the defendants 2 to 10 from holding any election of the President of opposite party No. 2 and to restrain the defendant No. 1 from issuing any notification for the formation of the Board under Sec. 14 of the Act. These two reliefs sought for in the application moved under Order XXXIX. Rules 1 and 2 read with S.151 of the Code of Civil Procedure obviously have become infructuous inasmuch as the election for the office of the President of the opposite party No. 2 has taken place. The result of the said election has also been announced and a notification with respect to the formation of the Waqf Board has also been issued as is admitted by the learned counsel for the plaintiffs. The plaintiffs had, however, also asked by way of interim relief that defendant No. 3 be restrained from participating in any meeting of the opposite party No. 2 during the pendency of the suit. The ground on which this relief is sought for is that the Waqf Board was sought to be reconstituted as would appear from the letter of the State Government to the defendant No. 2 dated 19th July, 1978 and as no election by the Board of Trustees of the Shia College, Lucknow took place after May, 1974 and prior to or after 19th duly, 1978 the defendant No. 3 should not be held to have been elected as a member of the Board in accordance with clause (iii) of Sub-Section (1) of Section 12 of the Act. In order to appreciate the contentions made on behalf of the applicants it would, therefore, be appropriate to refer to the relevant provisions of the U.P. Muslim Waqfs Act, 1960 : 5. Section 10 of the Act requires that there shall be established in Uttar Pradesh two separate Boards to be called the "Sunni Central Board" and the "Shia Central Board" of Waqfs. Each Board shall be a body corporate and shall have perpetual succession and a common seal and shall by its said name sue or be sued. We are concerned in this case with the constitution of 'Shia Central Board'. Section 12(1) of the Act provides that the "Shia Central Board" shall consist of the following Shia Muslims elected or co-opted or nominated or ex-officio as hereinafter indicated : (i) All Shia members of the State Legislature; (ii) One member to be nominated by the State Government; (iii) One member to be elected by the Board of Trustees of the Shia College, Lucknow from amongst its members; (iv) Three members, one of whom shall be a Mutawalli of a Waqf to which this Act applies having an annual income of not less than (rupees three thousand), one shall have knowledge or practical experience in respect of finance and administration, and the third shall be an Alim, to be co-opted by the members referred to in the foregoing clauses; (v) The President, if he is not one of the members referred to in the foregoing clauses;;