Reserved on 19.04.2022

Delivered on 04.05.2022

Court No. - 10

Case :- WRIT - A No. - 42413 of 2008

Petitioner :- Mohd. Rehan

Respondent :- Nawab Khushro Irshad And Others

Counsel for Petitioner :- B.N. Agrawal,Iqbal Ahmad,Sanjay Agrawal

Counsel for Respondent :- ,D.K. Srivastava,H.K. Singh,P.K.

Srivastava,Pramod Bhardwaj,Pramod Jain,Ram Prakash Srivastava,Vinay

Kumar Upadhyay

Hon'ble Rohit Ranjan Agarwal,J.

1.

Heard Sri Iqbal Ahmad, learned counsel for the petitioner and Sri

Pramod Jain, learned Senior Counsel assisted by Sri R.P. Srivastava,

learned counsel for the respondents.

2.

This writ petition under Article 226 of Constitution of India has

been filed by tenant-petitioner assailing the order dated 19.07.2008 passed

by Additional District Judge, Court No. 13, Meerut in Misc. Appeal No.

18 of 2008 and order dated 07.11.2009 passed by lower appellate court on

the two questions framed and remitted by this Court on 04.09.2009.

3.

Facts in brief, are that respondent no. 1, Nawab Khushro Irshad

(deceased) filed a release application no. 31 of 2006 under Section 21 (1)

(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)

Act, 1972 also known as U.P. Act No. 13 of 1972 for releasing the

accommodation in possession of the tenant-petitioner situated at Kothi

Jahanuma, Khairnagar, Meerut. The release application was rejected by

the prescribed authority on 25.01.2008. Against which the landlords-

respondents filed a Misc. Appeal No. 18 of 2008 which was allowed by

judgment and order dated 19.07.2008. Against the said order, the tenant-

petitioner preferred the present writ petition, wherein for the first time

plea was raised by the petitioner that property in question is waqf-allal-

aulad and thus in view of Section 2 (bbb) the property in question is

exempted from the operation of U.P. Act No. 13 of 1972. This Court on

04.09.2009 framed two questions that is “1. Whether the deed of Wakf

WRIT - A No. - 42413 of 2008

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annexed with the supplementary affidavit was ever acted upon or not? 2.

Whether in view of Wakf deed, Act No. 13 of 1972 is applicable or not?”

The lower appellate court was required to record finding as to the fact

whether the waqf deed was acted upon or not and whether the provisions

of Act No. 13 of 1972 was applicable or not. Pursuant to remand by this

Court on the above two questions so framed, both the parties appeared

before the court concerned and filed their respective objections. The lower

appellate court vide order dated 07.11.2009 after dealing with the issue in

depth recorded a finding that the waqf deed as claimed by the tenant-

petitioner dated 20.12.1934 was never acted upon and thus the provisions

of U.P. Act No. 13 of 1972 are not exempted from the operation on the

premises in question.

4.

Sri Iqbal Ahmad, learned counsel appearing for the petitioner

submitted that the court below had wrongly recorded finding that waqf

deed was not acted upon though the copy of the waqf deed dated

20.12.1934 along with the assessment register of the Nagarpalika, Meerut

was filed to show that premises in dispute is a waqf property but the

finding has been recorded against the material on record.

5.

He further submitted that once the waqf is created neither the wakif

nor the mutwalli had the authority to transfer the said property. According

to him, once a waqf is created it continues to retain such character which

cannot be extinguished by any Act of the mutwalli or any one. He then

contended that whether a waqf is registered or not under the relevant

provisions of the statute, would not effect nature of waqf once it is

created. Reliance has been placed upon decision of co-ordinate Bench of

this Court in case of Haji Ehsan Elahi vs. Additional District Judge

and another, 2013 (2) ADJ 126, relevant para 16 is extracted

hereasunder:-

“16. The above discussion clearly shows that registration or no

registration of a waqf under the provisions of relevant statute

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applic