The determination of whether a property is waqf property or not falls within the jurisdiction of the Waqf Board or the Tribunal, as provided under the Waqf Act, 1995.

Heard learned counsel for the petitioner Sri S.C. Srivastava and Sri Mohd. Sayeed for the Waqf Board.

2. The petitioner challenges the appointment of Mutawalli on the ground that the land in question is an agricultural land, which could not constitute the waqf property and as a matter of fact, no waqf was created at all by the tenure holders thereof.

3. Learned counsel draws the attention of the Court to the proceedings arising out of Section 34 of the U.P. Land Revenue Act, in which, against the order passed by the Board of Revenue, a writ petition was filed before this Court, in which an interim order of stay was passed.

4. Sri Mohd. Sayeed, appearing for the Waqf Board, submitted that the writ petition is not maintainable for the reason; (1) the question whether the the property in question is a waqf property or not, can be decided, either by the Board or by the Tribunal; and (2) proceedings under Section 34 of the U.P. Land Revenue Act would not give any declaration about the property being waqf or not, moreso when the Waqf Board is not a party in those proceedings.

5. Sri Sayeed further says that even appointment of Mutawalli can be challenged before the Tribunal by making reference under Section 83 of the Waqf Act, 1995.

6. Section 6 of the Waqf Act, 1995 deals with the disputes regarding waqf and says that if any question arises whether a particular property specified as waqf property in the list of waqfs is waqf property or not or whether a waqf specified in such list is a Shia waqf or Sunni waqf, the Board or the mutawalli of the waqf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final.

7. Section 7 of the Act gives power to the Tribunal to determine disputes regarding waqfs.

8. Section 36 speaks about the registration of waqf, whether created before or after the commencement of this Act.

9. Section 37 provides for maintaining register of waqf, whereas Section 40 gives power to the Board to decide whether the property is a waqf property or not.

10. Section 40 of the Act reads as under:

"40. Decision if a property is waqf property- (1) The Board may itself collect information regarding any property which it has reason to believe to be waqf property and if any question arises whether a particular property is waqf property or not or whether a waqf is a Sunni waqf or a Shia waqf it may, after making such inquiry as it may deem fit, decide the question;

(2) The decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the Tribunal, be final;

(3) Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the Societies Registration Act, 1860 (21 of 1860) or under any other Act, is waqf property, the Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is waqf property, call upon the trust or society, as the case may be, either to register such property under this Act as waqf property or show cause why such property should not be so registered;

Provided that in all such cases, notice of the action proposed to be taken under this sub-section shall be given to the authority by whom the trust or society had been registered;

(4) The Board shall, after duly considering such cause as may be shown in pursuance of notice issued under sub-section (3), pass such orders as it may think fit and the order so made by the Board, shall be final, unless it is revoked or modified by a Tribunal."

11. Section 41 gives power to cause registration of waqf and to amend the register.

12. With the aforesaid scheme of the Act, the question regarding a particular property being the waqf property or not, has to be considered by the Board or by the Tribunal. If the Board exercises its pow