Subina Rizvi vs State Of U.P. Thru. Prin.Secy., ...
2015 Latest Caselaw 3857 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 4
 

 
Case :- MISC. BENCH No. - 8680 of 2015
 

 
Petitioner :- Subina Rizvi
 
Respondent :- State Of U.P. Thru. Prin.Secy., Deptt. Of Waqf & Anr.
 
Counsel for Petitioner :- Sushil Kumar Singh
 
Counsel for Respondent :- C.S.C.,Humayun Mirza,S.A.A. Rizvi,Shafiq Mirza,Yashovardhan Swarup
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Attau Rahman Masoodi,J.

This is a petition questioning the order passed by respondent No.2 - Shia Central Board of Wakf, Uttar Pradesh, on 22.7.2015 whereby the respondent No.3 has been appointed the Mutawalli of Wakf, Nawab Muzaffar Husain Khan, Ram Narain Bazar, Patkapur, Kanpur, on the ground that the tenure of the petitioner which was for a period of 5 years as Mutawalli under the order dated 2.5.2008 has come to an end.

The petitioner is the daughter of Late Nawab Syed. Dilawar Husain Rizvi. She along with her father formed a Committee of Mutawallis for managing the said Wakf under order dated 17.3.2004. The petitioner's father is stated to have died on 7.2.2008 as a result whereof the office of Mutawalli had to be filled up and consequently under the order dated 2.5.2008, copy whereof is Annexure-5 to the writ petition, the petitioner was appointed as Mutawalli defining her period to be that of 5 years from the date of issuance of the order.

The succession to Mutawalliship is governed by the Wakf-deed executed on 6.10.1902, copy whereof is Annexure No.2 to the writ petition. According to the petitioner, the pedigree of creator of the Wakf, which is a Wakf-alal-aulad, is as per the Chart, which has been appended as Annexure No.3 to the writ petition. The petitioner and the respondent No.3 are both reflected in the said pedigree. The petitioner's contention is that female descendants are not excluded and are rather included for being appointed as Mutawalli as per the Wakf-deed itself.

A notice was issued to the petitioner to show cause and provide information about the alleged maladministration of the Wakf to which the petitioner is stated to have given a reply. The said notice dated 29/30.1.2009 was also subjected to a challenge by the petitioner in Writ Petition No. 3621 of 2009 but the petition was withdrawn with liberty to seek an appropriate remedy after orders are passed by the concerned authority.

The petitioner was served with another notice on 1.10.2010 by a Member of the Board that since there is a vacancy in the office of Mutawalli, the petitioner was to submit a reply. The said Notice was also challenged in Writ Petition No.10888 of 2010 but the said order/notice was withdrawn, as a result whereof the petition was dismissed as infructuous on 20.7.2011. It may also be pointed out that an order was passed on 26.10.2010 appointing a Committee for managing the Wakf which was also under challenge in the same writ petition but the said order was also withdrawn on 27.10.2010 and the petitioner was appointed as sole Mutawalli of the Wakf. It is in this background that the writ petition was dismissed as withdrawn on 20.7.2011.

The third attempt was made to dislodge the petitioner by appointing the Managing Committee removing the petitioner as Mutawalli that was challenged by the petitioner before the Wakf Tribunal. The order dated 25.11.2011 came to be set aside by the Wakf Tribunal/Learned Civil Judge (Senior Division), Kanpur, on 28.2.2015, a copy of the said judgment is on record as Annexure No.12. A further direction was issued by the Tribunal to the Shia Central Board of Wakf to take appropriate steps in relation to continuance of Mutawalli of the Wakf. The Board had also recorded a finding to the effect that on a perusal of the terms and conditions of the Deed, it is apparent that there is no bar on a female descendant being appointed as Mutawalli if she belongs to the pedigree of the family.

The petitioner moved an application on 28.2.2015 and the respondent No.3 also appears to have moved an application for appointment as Mutawalli.

From a perusal of the impugned order dated 22.7.2015, it appears that the tenure of the petitioner has been treated to have come to an end and treating it to be a vacancy, the respondent No.3 has been appointed as Mutawalli.

Learned Counsel for the petitioner Sri Singh vehemently submits that the impugned order is without any notice or opportunity, which fact has been categorically stated in paragraph No.21 of the writ petition and other paragraphs. It has also been urged on behalf of the petitioner that tenure of Mutawalli is not find under the Wakf-deed and, therefore, treating the petitioner's tenure to have come to an end, is not supported by the terms and conditions of the Wakf-deed which has been completely overlooked while passing the impugned order. It is further submitted that the petitioner cannot be denied relief as violation of principles of natural justice clearly attract the ratio of the decisions in the cases of Syed Mohd. Ahmad Hasan Vs. Shia Central Board of Waqf, U.P. and others, 2008 (3) JCLR 347 (All), Committee of Management, Waqf No.62/248, Saharanpur Vs. State of U.P. and others, 2014 (3) JCLR Page 1 (All), Haji Sajjad Ali (dead) by his Lrs. Vs. Controller, U.P. Sunni Central Board of Waqfs, Lucknow and others, 2013 (1) ARC 476, Tamil Nadu Wakf Board Vs. Larabsha Darga Pan Rutti, 2008 (82) AIC 285 (SC), Shri Rukunuddin Khan Vs. Controller, U.P. Sunni Central Board of Waqfs, Lucknow and others, AIR 1991 ALLAHABAD 279, and Prem Shanker Vs. Mohan Lal and others, 1989 ACJ 277.

Relying on the other decisions noted above, it has been urged that apart from violation of principles of natural justice, the line of succession as Mutawalli cannot be altered contrary to the wishes of the executor of the Wakf-deed as contained therein and further the issue of appointment of Mutawalli in case of a dispute cannot be made without adjudicating the respective claims on merits.

Sri Yashwant Swaroop has advanced his submissions on behalf of the respondent No.2 and Sri Shafiq Mirza along with Sri Humaun Mirza has advanced his submissions on behalf of the respondent No.3.

The argument raised on behalf of the respondents is to the effect that this is not a case of removal of a Mutawalli so as to attract Section 64 of the 1995 Act, and rather the petitioner's tenure had come to an end as a result whereof a fresh Mutawalli has been appointed under the provisions of Section 63 of the Wakf Act, 1995.

We have considered the rival submissions raised and what we find is that the impugned order simply proceeds on the assumption that there is a vacancy in the office of Mutawalli by virtue of termination of the tenure of 5 years of the Mutawalliship of the petitioner. Section 63 of the Wakf Act, 1995, is reproduced here under:-

"63. Power to appoint mutawallis in certain cases. -- When there is a vacancy in the office of the mutawalli of a wakf and there is no one to be appointed under the terms of the deed of the wakf, or where the right of any person to act as mutawalli is disputed, the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit."

The power to appoint a Mutawalli as per wakf-deed exists if there is a vacancy. Secondly, where the right of any person to act as a Mutawalli is disputed, the Board can appoint any person to act as a Mutawalli for such period and on such conditions as it may think fit. In the instant case, the impugned order does not record that there is no-one left in the family tree to be appointed under the terms of the deed of the Wakf and, therefore, on such a vacancy having arisen, the Mutawalli deserves to be appointed. There is also no indication of any dispute of the right of the petitioner to function as Mutawalli which may attract the second contingency under Section 63 to empower the Board to invoke its authority to appoint a Mutawalli. What appears is that since the petitioner's continuance was under a tenure as contemplated in the order dated 2.5.2008 for 5 years, the completion of the said period was treated to be a contingency giving rise to a vacancy. Such a vacancy is not contemplated under Section 63 where the petitioner, who claims herself and is undisputedly one of the legal heirs under the Wakf-deed, was available. The same status was that of the respondent No.3, who is also from the same pedigree. Consequently, this was a case of competing claims of appointment of Mutawalliship for which applications had been moved consequent to the judgment of the Wakf Tribunal dated 28.2.2015 indicated herein above. The Board did not appreciate this aspect in correct perspective when there were two persons claiming themselves to be Mutawalli of the Wakf. The claim had to be decided on merits as is reflected from the Division Bench judgment in the case of Rukunuddin Khan (supra).

Apart from this, when the application had been filed by the petitioner and the respondent No.3 both and they were competing claims, then before terminating the Mutawalliship of the petitioner on the ground of end of tenure, an information ought to have been given to the petitioner or a show cause as to why her Mutawalliship should not be treated to have come to an end. The action, therefore, was couched in a manner so as to dislodge the petitioner and at the same time not to consider her independent claim which was otherwise permissible, keeping in view the fact that she belongs to the same pedigree and claims entitlement to mutawalliship.

The issue as to whether the deed also allows succession to the office of mutawalli in favour of a female descendant was also not looked into more particularly when the Tribunal had given a finding in favour of the petitioner in the order dated 28.2.2015. The Board, therefore, clearly erred in proceeding to straightway appoint the respondent No.3 without complying with what has been observed herein above. The claim of the petitioner went unheeded in spite of the fact that it deserved a consideration in accordance with law.

Thus, a total non-consideration of the claim of the petitioner vitiates the impugned order dated 22.7.2015. The writ petition is, accordingly, allowed. The order dated 22.7.2015 is quashed. Learned Counsel for the parties agree that both the petitioner and the respondent No.3 shall appear before the Board on 16.11.2015 and stake their claims. The Board shall then proceed to pass an appropriate order within 3 weeks keeping in view the provisions of the Wakf-deed and the provisions of law in this regard as well as any other material on which reliance may be placed by either of the parties.

Order Date :- 4.11.2015

Irshad