- (1.) THIS is a special appeal directed against the judgment dated 30th. March, 1972 of the learned Single Judge whereby he dismissed the writ petition of the appellant who prayed for the quashing of the order of the Waqfs Board dated 15th January, 1970 constituting a committee to advise the appellant for the management of the property and substantially curbing his powers of management of the Waqfs in question.
(2.) THE case as set up by the appellant in his writ petition is that the Waqf in question is situate in Jaipur City outside the Ghat Gate. This Waqf was originally founded by Miskeen Shah, the ancestor of the appellant and is known as "miskeen shah Ki Dargah". In the Dargah compound there is a mosque a garden and a well besides other properties which need not be mentioned in detail here, Hazrat ghulam Mohd. Shah alias Miskeen Shah who will be hereafter called "miskeen shah" came from Kashmir and settled down in Jaipur City about 130 years back. He rose to eminence by his religious piety and personal sanctity and attracted a large number of followers from the rank and file. A State grant of 12 bishas was made in favour of Miskeen Shah by the erstwhile ruler of Jaipur for his secluded living and meditation. After his death Miskeen Shah was succeeded by his only son zahiruddin Shah who became Sajiada-nashin-cum-Mutawalli of the Dargah. The erstwhile ruler of Jaipur granted two villages in Jagir to Zahiruddin Shall zahiruddin Shah was succeeded by his eldest son Mazhar Haq Shah in the office of sajjadanashin. On the death of Mazhar Haq Shah the office of Sajjada-nashincum-Mutawalli devolved upon his only son Fazle Haq Shah. As both Mis-keen Shah and Zahiruddin Shah had been granted property by the former State of Jaipur the matmi proceedings were also sanctioned in favour of the respective successors-Fazle Haq Shah died on 24th February, 1964 and the appellant is his son. The appellant claimed to be the Sajjadanashin-cum-Mutawalli of the Dargah being the only son of the last incumbent namely Fazle Haq Shah. His contention in the writ petition is that since the foundation of the Dargah, succession to the office of sajjadanashin-cum-Mutawalli devolved upon the eldest son of the last incumbent of the office of Sajjadanashin-cum-Mutawalli, under the rule of primogeniture governing such succession. He also contended that the last incumbent had nominated and appointed him as his successor. He therefore contended that as per the custom and usage governing succession to the office of the Sajjadanashincum-Mutawalli he was nominated by the last incumbent, his father Fazle Had Shah on 30th March, 1949, the date of the 'urs' of Miskeen Shah before the congregation of several citizens of Jaipur City, followers and others, who had assembled on that occasion, to be the next Sajjadanashin-cum-Mutawalli after his death. It has been alleged in the petition that on the death of his father the appellant became the Sajjadanashin-cum-Mutawalli by virtue of the rule of primogeniture as also under the nomination and declaration made by his father during his lifetime before a congregation. It has also been alleged that his succession as Sajjadanashin-cum-Mutawalli has been recognised by the congregation of his followers and on the third day ceremony after the death of his father the followers had in token of accepting him as Sajjadanashin offered 'nazars'. Later on he had also been recognised as saiiadanashin-cum-Mutawalli by the Collector. Jaipur and Assistant Commissioner, devasthan in connection with the payment of annuity in lieu of the resumption of jagir which had been granted by the former Jaipur State and that, even the secretary of the Board of Waqfs in his letters exhibits 8 and 9 had admitted nun to be the Sajjadanashin-cum-Mutawalli of the Dargah. The case of the appellant further is that on the death of his father although he had be-come the Sajjadanashin-cum-Mutawalli of the Dargah in question the respondent No. 1. the board of Muslim Waqfs taking note of the complaint by one Ghulam Mohiuddin appointed receiver of the Waqf in question on 9-11-1964 and on the application of some Muslims of Jaipur has illegally appointed a committee for the management of the Dargah. This order is dated 8th November, 1969. Under this order the respondent No. 1, the Board of Waqfs, has constituted a committee of five persons including the appellant and has restricted the power of the appellant in the management of the properties in such a manner that he has been reduced to a nonentity. It will be profitable here to give the gist of the order passed by the Board of Waqfs which is contained in Exhibit 28. Under Ex. 28 the Board of Waqfs appointed a committee of five persons and the appellant was made the Chairman of the committee. One Mohd. alias Johri was appointed as Secretary of the committee while Abdul K. Thekadar of Ajmeri Darwaza was appointed as Treasurer of the committee. The decision of the committee was to be by majority and the same would be binding upon the appellant. The secretary was to realise the rents and was to maintain the account and to deposit the money so realised in a bank in the account to be opened in the name of the committee. The drawing authority under the said order was conferred upon the appellant and the treasurer jointly. The appellant was to have a separate meter for the water and the electricity to be consumed sit his place of residence. This order was communicated to the appellant in pursuance of a detailed order passed by the Board on 8th November, 1969 which is Ex. A/10 on the record. The appellant challenged the appointment of the aforesaid committee in the writ petition inter alia on the ground that there was no vacancy in the office of the Mutawalli and the Board had no jurisdiction to pass the impugned order Ex. 28 which was tantamount to a substantial interference in the appellant's right to manage the property. He also prayed for quashing the order and removing the receiver who had been appointed on the application by one ghulam Mohiuddin and also for restoration of the Property to him for management.
(3.) IN answer to the writ petition the respondent No. 1 asserted that the office of the Mutawalli had fallen vacant on the death of Fazle Haq Shah. The stand taken by the Board is that the appellant was not the Sajjadanashin-cum-Mutawalli of the aforesaid Dargah and that the succession to the office of the Sajjjadanashin-cum-Mutawalli was not governed by the rule of primogeniture. The Board contended that the Sajjada-nashin could be nominated by the last Incumbent with the consent of the followers and Murids of Miskeen Shah and the Board had power to appoint a committee under Section 15. Section 42 and Section 43 of the Muslim waqfs Act, 1954 (hereinafter called the 'act' ). The Board also denied the nomination of the appellant as Sajjadanashin-cum-Mutawalli by his father. It also denied that the appellant had ever taken the charge of the Muta-walliship and had come to be in possession of the property-The Board nowhere denied that the office of the Sajjada-nashin and Mutawalli combined in one and the same person. The further plea of the Board is that the points raised in the writ petition involved the investigation into complicated questions of fact which could not be gone into in this writ petition and the same was therefore, not maintainable.;