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2024 Supreme(All) 812
IN THE HIGH COURT OF ALLAHABAD
SUBHASH VIDYARTHI, J.
Ibney Hasan - Petitioner
Versus
Special Judge E.C. Act Faizabad And Others - Respondents
Writ C No. 1005292 Of 2006
Decided On : 17-05-2024
For the Petitioner: Pushpila Bisht.
For the Respondents: C.S.C., Haider Abbas, Ishtiaq Ahmad, M.M. Salam, Mohd.Yasin, Rakesh Kumar Srivastava, S.A.A. Rizvi, S.M. Munish Jafri.
IMPORTANT POINT
The court affirmed that any action taken under a repealed statute is invalid if done after the repeal, emphasizing the importance of jurisdiction and authority in administrative actions.
Headnote:
Waqf - Property Dispute - U.P. Muslim Waqf Act, 1960; Waqf Act, 1995, Section 112 - The court discussed the repeal of the U.P. Muslim Waqf Act, 1960 by the Waqf Act, 1995, emphasizing that any actions taken under the repealed Act after its repeal were without authority. The interpretation of Section 112(3) of the Waqf Act, 1995 clarified that the previous actions under the 1960 Act were only valid if done before the new Act came into force. This legal framework influenced the court's decision to quash the orders made under the repealed Act.
Fact of the Case:
The petitioner challenged the validity of an order from the Controller of the Shia Central Waqf Board and a subsequent requisition by the Collector, asserting ownership of a property claimed to be waqf property. The petitioner argued that the property was not waqf and that the orders were made under a repealed Act.
Finding of the Court:
The court found that the orders issued under the U.P. Muslim Waqf Act, 1960 were invalid as the Act had been repealed by the Waqf Act, 1995. The court held that the Controller had no jurisdiction to issue the orders after the repeal.
Issues: Whether the orders passed under the U.P. Muslim Waqf Act, 1960 were valid after the enactment of the Waqf Act, 1995, and whether the petitioner had an alternative remedy available.
Ratio Decidendi: The court established that actions taken under the repealed U.P. Muslim Waqf Act, 1960 after its repeal were without authority. The interpretation of Section 112(3) of the Waqf Act, 1995 was crucial in determining the invalidity of the orders issued under the repealed Act.
Final Decision: The writ petition was allowed, quashing the orders made under the U.P. Muslim Waqf Act, 1960 and transferring the proceedings to the competent authority under the Waqf Act, 1995.
JUDGMENT :
(Subhash Vidyarthi, J.) :
(C. M. Application No.51889 of 2015)
1. Heard Ms. Pushpila Bisht, the learned counsel for petitioner, Sri Umesh Srivastava, learned Standing Counsel for the opposite party no.5-Collector, Faizabad and Sri S.A.A. Rizvi, learned counsel for the opposite party nos.2 & 3.
2. Sri Adnan Rafiq Hasan had filed an application for impleadment through Sri M. M. Salam, Advocate. Name of Sri M. M.Salam has been shown in the cause list but neither he is present to assist the Court nor has he sent any request for adjournment of the case.
3. In the affidavit filed in support of the application for impleadement, it has been stated that the applicant was Managing Mutawalli of Waqf Masjid and Rauza Hazrat Qasim, (opposite party no.4) and being Mutawalli, he is a necessary party to the writ petition.
4. The Waqf Masjid and Rauza Hazrat Qasim is already impleaded as opposite party no.4 in the writ petition and therefore, the Mutawalli of Waqf Masjid and Rauza Hazrat Qasim is not a necessary party.
5. Accordingly, the impleadment application is rejected.
Order on Memo of Writ Petition
1. By means of the instant writ petition filed under Article 226/227 of the Constitution of India, the petitioner has challenged the validity of an order dated 26.03.1996 passed by the Controller, Shia Central Waqf Board, Uttar Pradesh Lucknow under Section 57-A of U. P. Muslim Waqf Act, 1960 directing issuance of a requisition for taking possession of a property bearing no.277, which is bounded in the East by a Road, in the West by land of waqf, in the North by a shop of waqf and in the South also by another shop of the waqf, for taking possession of the aforesaid property from the petitioner and to hand it over to the Mutwalli of Waqf Maszid Rauza Hazrat Kasim (the opposite party no. 4). The petitioner has also challenged the validity of a requisition dated 21.06.1996 issued by the Collector, Faizabad in furtherance of the aforesaid order dated 26.03.1996 passed by the Controller.
2. The petitioner has also challenged the validity of a judgment and order dated 12.10.2006 passed by the Special Judge, E.C. Act, Faizabad in Misc. Civil Appeal No.9 of 1996, whereby the petitioner’s appeal filed against the aforesaid orders 26.03.1996 passed by the Controller and the requisition dated 21.06.1996 issued by the Collector Faizabad, was dismissed.
3. Briefly stated facts of the case are that the petitioner claims to be the owner of a part of waqf property bearing plot no.277 and he claims that Sri Sageer Husain had constructed a shop over the land in the year 1955 under an Ijazatnama granted by the erstwhile Taluqdar of Lorepur Estate on 13.09.1944. Subsequently another Ijazatnama was issued by the Chairman, Nagar Palika Parishad of Jalalpur on 27.09.1955. Sri Sageer Husain had constructed some shops over plot no.277 in furtherance of the Ijazatnama. The shops were recorded in the name of the petitioner and his predecessors in the records of town area Jalalpur which has subsequently become Nagar Palika Parishad, Jalalpur.
4. The Controller, Shia Central Waqf Board U.P., Lucknow had initiated an enquiry under section 58 of U. P. Muslim Waqf Act, 1960 and a report was submitted in furtherance of the enquiry on 22.05.1992. On 27.02.1995, a notice under Section 58 of the Uttar Pradesh Muslim Waqf Act, 1960 was issued against the petitioner and other persons. The petitioner filed his reply to the notice claiming that plot no.277 had been leased out to Sri Sageer Husain in the year 1944 and the shops had been constructed thereon in the year 1955 and the same are not waqf property. Opposite party no.4 claims that plot no.277 is the property of Waqf Maszid Rauza Hazrat Kasim.
5. On 26.03.1996, the Shia Central Waqf Board, Uttar Pradesh passed an order under Section 57-A of the Uttar Pradesh Muslim Waqf Act, 1960 holding that the property in question is the property of Waqf Maszid Rauza Hazrat Kasim and ordering ejectment of the petitioner from wa
