R.H.Zaidi, J. - (1.) By means of this petition under Article 226 of the Constitution of India, petitioner mainly prays for Issuance of writ, order or direction in the nature of certiorari quashing the order dated 28.8.1997 in so far as it directs for fixation of the date for final hearing, without disposing of the application for interim relief, which according to the petitioner amounts to an order refusing to exercise the Jurisdiction to grant ad interim injunction, and for quashing the orders dated 9.10.1996 and 15.6.1996 passed by respondent No. 3. Prayer for writ, order or direction in the nature of mandamus restraining the respondent No. 3 to function as Controller and to directing the respondent No. 1 to decide the reference filed by the petitioner within the time specified by this Court were also made.
(2.) The dispute relates to a 'Waqf Al-al-aulad', known as 'Waqf Hamid Begam Saltanat Manzil, Hamid Road. Lucknow' (for short the "waqf in question').' The waqf in question was created by means of a registered waqf deed dated 13.2.1946 and. supplementary waqf deed dated 13.4.1946 (by Rani Saltanat Begum, wife of Khan Bahadur Nawab Syed Hamid Hussain Khan Sahab). It is stated that 'Saltanat Manzil' (for short the building in question), which is a subject-matter of the Waqf in question, was in dilapidated condition and needed reconstruction which was also necessary for enhancement of the income of the Waqf. The mutawallis of the 'waqf in question' therefore, prepared a 'development project' and submitted the same before the respondent No. 2 for Its approval in January, 1983. Since the approval was not granted by the respondent No. 2. the petitioner applied to the District Judge. Lucknow for grant of requisite permission. The District Judge vide order dated 7.10.1983 accorded the permission as prayed for, to work on the 'development project'. The petitioner thereafter on 21.10.1983 intimated the Board about the permission granted by the District Judge. In pursuance of the order of the District Judge referred to above and in exercise of the powers under clause 12) of the Waqf Deed, a copy of which has been placed on the record as Annexure-2 to the writ petition, an agreement dated 10.10.1983 registered on 22.9.1984 was entered into between the petitioner and one Sri B. P. Halwasiya which was thereafter revised and modified on 7.10.1985, by means of a registered document, a copy of which also forms part of the record of the case. The respondent No. 2 instead of accepting the request made by the petitioner issued notices te the mutawallis of the waqf in question under Sections 49B and 55 of U. P. Muslim Waqfs Act. 1960 on 8.2.1996, calling upon them to show cause as to why the agreement entered into between the Waqf and Sri B. P. Halwasiya, be not cancelled and as to why. they be not removed, from the office of mutawailis. On receipt of the notices, replies were filed on behalf of the mutawallis. Respondent No. 3 by his order dated 15.6.1996 held that the agreements entered into between the petitioner and Sri B. P. Halwasiya were Illegal and directed the mutawailis to get the said agreements cancelled and also directed other relevant authorities not to act upon the said deeds. By means of the said order it was further directed that the map (building plan) if submitted before the competent authority shall not be passed. The respondent No. 3 in exercise of powers purportedly under Section 20 of the U. P. Muslim Waqf Act. 1960 delegated the powers to hear the cases under Sections 29, 45B. 55 and 57A of the Act. to the Secretary of the Board vide order dated 24.8.96. On the strength of the said order, the Secretary of the Waqf Board heard the case under Section 55 of the Act and thereafter concluding the hearing of the case, placed the record before the respondent No. 3. Respondent No. 3 vide his order dated 9.10.96. deprived of and removed Syed All Hamid and Smt. Hasima Raza from the mutawalli-ship of Waqf tn question. According to the petitioner, orders dated 15.6.1996 and 9.10.1996 were passed by respondent No. 3 without affording any opportunity of hearing to the petitioner, or to its mutawallis. Petitioner challenging the validity of the orders dated 15.6.1996 and 9.10.1996 filed Writ Petition No. 3044 (M/S) of 1996. It has been stated in paragraph 12. of the writ petition, the contents of which have not been denied in the counter-affidavit, that the learned Judge, hearing the said writ petition orally observed that writ petition was liable to be dismissed on the ground of availability of alternative remedy under Section 71 of the Act. The petitioner. therefore, got the said writ petition dismissed as not pressed and thereafter the reference No. 15 of 1995 was filed on 7.1.1997 before respondent No. 1 challenging the validity of the orders dated 15.6.1996 and 9.10.1996 and an application under Order XXXIX, Rule 1/2, C.P.C. was also filed, for interim injunction, along with the same of reference. On the said date of filing, the respondent No. 1 instead of granting interim injunction issued notices to the defendants-respondents and thereafter, it is stated that case was listed and arguments on the application for grant of temporary injunction were heard as many as fourteen times, but insplte of the fact petitioner applied for day-to-day hearing of the Interim injunction application and grant of interim injunction, respondent No. 1 instead of granting injunction order vide impugned order dated 28.8.1997 framed the issues and fixed 23.9.1997 for final hearing of the case. The petitioner, thereafter filed the present petition, as according to the submission made by the learned counsel for the petitioner, order dated 28.8.1997 amounted an order of refusal to exercise the Jurisdiction, to grant interim injunction in favour of the petitioner.
(3.) Learned counsel for the petitioner vehemently urged that the respondent No. 1 acting as Waqf Tribunal, failed to exercise the Jurisdiction vested in it to grant injunction by not disposing of the application for interim relief and directing the case to be heard finally. The said order amounted to an order refusing to grant interim relief and was. therefore, to that extent liable to be set-aside respondent Nos. 2 and 3 were liable to be directed to refrain from interfering in the affairs of the waqf in question and the respondent No. 1 was liable to be directed to decide the case within the time fixed by this Court. It has also been urged that petitioner was prlma facie entitled to interim relief in its favour, inasmuch as the orders passed by respondent No. 3 were prlma facie wholly illegal and without jurisdiction. It has been urged that U. P. Act No. 16 of 1960 has been repealed by the Central Act, i.e., Waqf Act. 1995 (Act No. 43 of 1995) w.e.f. 1.1.1996 respondent No. 3. therefore, ceased to have jurisdiction to act as controller of the waqf board. Alternatively, it has been urged that appointment of respondent No. 3 as controller of waqf board in exercise of powers under Section 14 of the U. P. Waqf Act was for a limited period. The period of his initial appointment as well as the period of extension granted by the State Government came to an end and Section 14 itself having been repealed, therefore, the respondent No. 3 automatically ceased to be the controller of the waqf board, by operation of law. It has also been urged, that the respondent No. 3 had no power to act as controller of the waqf board and had no jurisdiction to delegate his power to the Secretary. Alternatively, it has been urged that the respondent No. 3 had no jurisdiction to pass the orders against the petitioner, inasmuch as. the cases were heard by the Secretary and not by the respondent No. 3. as legally if a case is heard by an authority or Court. same is required to be decided by that very authority or Court and not by any other authority or Court. It was further submitted that interim order dated 13.6.1996 granted by this Court in Civil Misc. Writ Petition No. 1689 (M/B) of 1996. on the basis of which impugned orders were passed by respondent No. 3. was stayed by the Supreme Court vide order dated 19.12.96 passed in State of U. P. v. Rizwanull Haq. Special Leave Petition No. CC 6851-6854 of 1996. Therefore, the orders passed by respondent No. 3 relying upon the order dated 13.6.1996 were illegal and without Jurisdiction and. were liable to be quashed.;