- (1.) THE U.P. Sunni Central Waqf Board, Lucknow vide order dated 27.7.2006 had appointed the eight members'committee with Fazlur Rahman as President to manage the Wakf Dargah Hazrat Qutub Sher No. 271, Saharanpur. The appointment was made fora period of one year. The term expired sometimes on 26.7.2007. The application for extension was pending. The Chairman of the Board vide order dated 20.5.2009 appointed a fresh Committee of Management with 10 members? with Rahman Ahmed as President and Nadeem Shikoh as Secretary. Vide order dated 27.6.2009 passed by one of the members of the Board, the operation of the earlier order dated 20.5.2009 was stayed and notices were issued to both the parties to appear on 18.7.2009. The action was challenged by the contesting respondents on the ground that the earlier order was passed by the Chairman of the Board and recall of the earlier order can only be done by the Chairman and not by any member of the Board. Various other contentions were raised in the Writ Petition No. 33995 of 2009 preferred by the contesting respondents which was allowed vide judgment and order dated 31.8.2009 and the matter was remanded to the Chairman to decide the application dated 24.6.2009 filed by the present petitioners. Pursuant to the order given by this Court, the Chairman had decided the matter vide order dated 24.10.2009 by which petitioner's application has been rejected and the earlier order has been maintained. When the order dated 24.10.2009 was placed for execution before the Chief Executive Officer of the Board, he had some reservations and therefore, exercising power under Section 26 of the Wakf Act, 1995 had referred the matter for reconsideration by the Board. The order under Section 26 has been passed on 10.11.2009, copy of which has been filed as annexure-SA-2 to the affidavit filed by the petitioners.
(2.) THE submission of Sri M.A. Quadeer, learned Senior Counsel appearing for the petitioners is that from the order dated 10.11.2009 passed by the Chief Executive Officer, it is clear that the income of the wakf is more than Rs. 1, 00, 000 in the last several years and therefore, the power to appoint the Committee of Management or Mutawalli of such a wakf vests with the three members as per power delegated by the Board and not by the Chairman individually. He, therefore, submitted that the order dated 20.5.2009 is therefore, patently without jurisdiction. Sri W.H. Khan, learned Senior Counsel appearing for the respondent No. 4 submitted that against the order dated 24.10.2009 passed by the Chairman, petitioners have efficacious speedy alternative remedy by way of filing a reference before the Wakf Tribunal and further as to whether the wakf had income of Rs. 1, 00, 000 or more is a disputed question of fact which can more appropriately be gone by the Tribunal and this Court should not interfere at all.
(3.) WE have given our thoughtful consideration to the various pleas raised by the learned counsel for the parties and have perused the averments made in the writ petition as also supplementary affidavit and its Annexures. From the order dated 10.11.2009 passed by the Chief Executive Officer we find that he has mentioned that the income of the waqf was Rs. 1, 34, 928 in the year 1997-98 and vide order dated 8.11.2005 passed by the Chairman, the income of Rs. 11, 16, 000 has been entered in the demand register which prima facie goes to show that the waqf had income of more than 1, 00, 0007-. The matter has already been referred back for reconsideration before the Board under Section 26 of the Act. We have been informed that the term of the Board has expired and the State Government has appointed a Controller to look after the affairs and the said Controller is exercising all the powers of the Board. Sri M.A. Sidiqqui, learned counsel appearing for the Board made a statement that the Board is going to be reconstituted very shortly and shall start functioning in January, 2010. We therefore, instead of deciding the matter deem fit and proper to direct the Board to decide the matter within a month from the date, it starts functioning after giving an opportunity of hearing to the petitioner and also the contesting respondents.;