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IN THE HIGH COURT OF ALLAHABAD
S. C. MATHUR
AFZAL HUSAIN - Appellant
Versus
DISTRICT JUDGE - Respondents
W. P. 706 Of 1978
Decided On : 04/23/1984
WAQF - REGISTRATION - EFFECT - JURISDICTION OF TRIBUNAL - APPEAL UNDER S. 49B(4) OF THE U. P. MUSLIM WAQFS ACT, 1960 - SCOPE - PROCEDURE FOR SENDING REQUISITION UNDER S. 57A OF THE ACT - SATISFACTION OF JURISDICTIONAL FACT - NOTICE TO PERSON IN UNAUTHORISED OCCUPATION - LIMITED OBJECTION - EXECUTING COURT - JURISDICTION TO GO BEHIND ORDER - EXCEPTION - NULLITY OR NON EST IN THE EYE OF LAW.
Fact of the Case:
Petitioner challenged the proceedings taken by Shia Central Board of Waqfs for his eviction from the property in dispute. The Board had sent a requisition to the Collector under S. 57a(i) of the U. P. Muslim Waqfs Act, 1960, alleging petitioner's unauthorized occupation of the property. Petitioner filed an appeal under S. 49b(4) of the Act before the District Judge, which was dismissed. Petitioner then approached the High Court under Art. 226 of the Constitution.
Finding of the Court:
1. The property in dispute was entered as the property of Shia Waqf in the register of Waqfs maintained under S. 30 of the Act. 2. The petitioner was debarred from disputing the registration of the waqf before the appellate authority in the appeal preferred by him under S. 49b(4) of the Act. 3. The appellate authority was also debarred from considering the validity of the entry made in the register maintained under S. 30 of the Act. 4. The Board had followed the procedure prescribed by the Act and the Rules framed thereunder before sending the requisition to the Collector. 5. The petitioner was not entitled to challenge the entry already made in the register of waqfs maintained under S. 30 and therefore a very limited objection could be filed by him. 6. The petitioner had not claimed any right to remain in occupation of the property in dispute except the right based on ownership, which was not available to him. 7. The learned District Judge committed manifest error when he did not enter into the controversy relating to the entry in the waqf register, but this infirmity did not call for interference with his order as evidence had been placed before the High Court on behalf of the Board which had not been controverted by the petitioner.
Issues: 1. Whether the property in dispute was entered as the property of Shia Waqf in the register of Waqfs maintained under S. 30 of the Act? 2. Whether the petitioner was debarred from disputing the registration of the waqf before the appellate authority in the appeal preferred by him under S. 49b(4) of the Act? 3. Whether the appellate authority was debarred from considering the validity of the entry made in the register maintained under S. 30 of the Act? 4. Whether the Board had followed the procedure prescribed by the Act and the Rules framed thereunder before sending the requisition to the Collector? 5. Whether the petitioner was entitled to challenge the entry already made in the register of waqfs maintained under S. 30? 6. Whether the petitioner had claimed any right to remain in occupation of the property in dispute except the right based on ownership? 7. Whether the learned District Judge committed manifest error when he did not enter into the controversy relating to the entry in the waqf register?
Ratio Decidendi: 1. The registration of a waqf and the entry of the property in the register maintained under S. 30 of the Act can be challenged only by a reference to the Tribunal under S. 29(7) of the Act. 2. The Court hearing appeal under S. 49b(4) of the Act is different from the Tribunal constituted under S. 70 of the Act. 3. The matters which fall within the exclusive purview of the Board and the Tribunal cannot be agitated before the appellate authority hearing appeal under the said provision. 4. The Board is required to make an inquiry in the manner prescribed by the Rules before sending a requisition to the Collector under S. 57a of the Act. 5. The first enquiry which the Board has to make is whether the immovable property in respect of which action is to be taken is entered as property of waqf in the register of waqfs maintained under S. 30. 6. The next enquiry that he is required to make is whether the said property is in unauthorized occupation of any one. 7. Action under S. 57a can be taken only when the first condition is satisfied, namely that the property is entered as waqf property in the register of waqfs maintained under S. 30. 8. This is a jurisdictional fact and action under S. 57a would be permissible only when the property is so entered. 9. An executing Court cannot go behind the order which it is required to execute, but there are certain exceptions to this rule, one of which is that if the order is a nullity or non est in the eye of law it can be ignored even by the executing Court.
Final Decision: The writ petition was dismissed.
( 1 ) AFZAL Husain, son of Altaf Husain has directed this petition against the proceedings taken by Shia Central Board of Waqfs U. P. , opposite party No. 3, for his eviction from house No. 68/218 and the appurtenant land situate at Mohalla Bari Hat, district Bahraich.
( 2 ) ON 7-10-1977 the Collector Bahraich issued an order to the petitioner stating therein that he had received a requisition from the Secretary Shia Central Board of Waqfs under S. 57a (i) of the U. P. Muslim Waqfs Act, 1960 regarding petitioners unauthorised occupation of the property described in the order and requiring the petitioner to deliver possession of the said property to the Shia Central Board of Waqfs U. P. within a period of 30 days from the date of service of the order. In this order it was also stated that if the petitioner failed to deliver possession to the Waqf Board, ejectment proceedings shall be initiated against him as laid down in R. 7 of the U. P. Muslim Waqfs (Recovery of Waqf Property) Rules, 1972. A copy of this order has been filed as Annexure No. 1 to the writ petition, on receipt of this order the petitioner preferred appeal under S. 49b (4) of the Act before the learned District Judge Bahraich which was transferred for hearing to the learned 1st Additional District Judge, Bahraich. A copy of the memorandum of appeal is Annexure 2. The stand taken before the appellate Court by the petitioner was thus :- (I) The property in dispute is neither Waqf property nor is it entered as property of Waqf in the register of Waqfs maintained in the office of the Shia Central Board of Waqfs U. P. ; (ii) In view of the fact that the property was neither Waqf property nor it was entered in the register of Waqfs, the Board could not send requisition under S. 57a (i) to the Collector and therefore the Boards requisition and the Collectors order were invalid and without jurisdiction; (iii) The enquiry, if any, made by the Board prior to the issue of the requisition to the Collector was a farce and was not conducted in accordance with the rules, therefore also the Boards requisition and the Collectors order are invalid and illegal; (iv) The property belonged to the petitioners uncle Sri Akhtar Husain who died leaving the petitioner his nearest heir, and as such heir, on the death of Sri Akhtar Husain the petitioner has become owner of the disputed property and this ownership continues; (v) The petitioner resided in the house in the lifetime of Sri Akhtar Husain and continued to reside therein even after his death and in this manner he has been in occupation of the property for the last 30 years and he is not in unauthorised occupation of the property in question.
( 3 ) THE appeal was dismissed by the learned 1st Additional District Judge, Bahraich by his judgment and order dated 13-2-1978, Annexure 3. The learned appellate Judge was of the opinion that the pleas raised by the petitioner could not be entertained in an appeal filed under S. 49b (4) of the Act because in the appeal the Court could only consider the validity of the Collectors order and not of the requisition sent by the Board. It was also observed that to challenge the validity of the requisition the petitioner may have the remedy of regular suit but the remedy of appeal was not available. Aggrieved by this order of the appellate Judge the petitioner has approached this Court under Art. 226 of the Constitution.
( 4 ) IN the present writ petition the petitioner has repeated the challenge made by him before the learned appellate Judge and has submitted additionally that the pleas raised by him raise the question of inherent jurisdiction of the Board and the Collector to act under S. 57 A and if the facts alleged by him are found to be correct, the Boards requisition and the Collectors order will be non est in the eye of law and such a question can be gone into even by executing Court or authority and consequently by the Court hearing the appeal against the order of the execu
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