Sahibzada Moinuddin Siddiqui vs U.P. Sunni Cetral Board Of Waqfs & ...
2017 Latest Caselaw 5627 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 5
 
1.	Case :- MISC. BENCH No. - 3778 of 1996
 
Petitioner :- Sahibzada Moinuddin Siddiqui
 
Respondent :- U.P. Sunni Cetral Board Of Waqfs & Others
 
Counsel for Petitioner :- I.H.Siddiqi,Z.Zilani
 
Counsel for Respondent :- C.S.C,Farid Ahmad,Mahoob Ahamad,Mohd.Ramzan Khan,Wasiquddin Ahamad
 
2.	Case :- MISC. BENCH No. - 9093 of 2016
 
Petitioner :- Sahibzada Moinuddin Siddiqui
 
Respondent :- U.P. Sunni Central Waqf Board Thru. Its C.E.O. And Ors.
 
Counsel for Petitioner :- Zafar Yab Jilani,Najam Zafar
 
Counsel for Respondent :- Tariq Sayeed,Md. Tanveer Alam,Mohd Abid Ali,Q.H.Rizvi
 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Rajesh Singh Chauhan,J.

(Per Hon'ble Rajesh Singh Chauhan,J.)

Since the subject matter of these two writ petitions is appointment of Mutwalli of Waqf No.161, Bareilly (Waqf Barai Umoor-e-Khair), learned counsel appearing for the parties have consented that both these writ petitions may be heard and decided together. Accordingly, the Court proceeds to decide these writ petitions by the order which follows:-

Under challenge in Writ Petition No. 3778(MB) of 1996 is an order dated 05.06.1996 said to have been purportedly passed by the Controller of U.P. Sunni Central Waqf Board whereby the operation of the order dated 04.04.1996 was stayed. It is noticeable that by means of order dated 04.04.1996, the petitioner-Sahibzada Moinuddin Siddiqui was appointed as Mutwalli to manage the affairs of the Waqf in question. This court while entertaining the writ petition no. 3778(MB) of 1996, passed an order on 03.01.1997, whereby the order impugned in the said writ petition dated 05.06.1996 was stayed and accordingly in compliance of the said order dated 03.01.1997, passed by this Court, no further proceedings were held by the Board or any other officer of the Board.

In Writ Petition No. 9093(MB) of 2016, which too has been filed by the petitioner-Sahimzada Moinuddin Siddiqui, under challenge is the decision dated 08.03.2016 said to have been taken by the U.P. Sunni Central Waqf Board whereby Sri Shahibzada Khurshid Husain (respondent No.4 in Writ Petition No. 9093(MB) of 2016) has been appointed as Mutwalli with the finding that it would not be appropriate to appoint the petitioner- Sahibzada Moinuddin Siddiqui as Mutwalli. At this juncture, we may also notice that Waqf Board while taking the decision dated 08.03.2016 has given a finding that there was a vacancy in the office of Mutwalli of the Waqf in question.

Heard Sri Zafaryab Jilani, learned counsel for the petitioner in both the writ petitions, namely, Sri Sahibzada Moinuddin Siddiqui, Sri Q.H. Rizvi, learned counsel representing the U.P. Sunni Central Waqf Board and Sri Mohd. Abid Ali, learned counsel representing Sri Shahibzada Khurshid Husain in Writ Petition No. 9093(MB) of 2016, who has been arrayed as respondent No.3 in Writ Petition No. 3778(MB) of 1996. We have also perused the record of both these writ petitions and have given our anxious consideration to the submissions made on behalf of the respective competing parties to these matters.

The facts of the case, which can be gathered from the record available and are relevant for the purposes of resolution of the issues involved in these writ petitions are that on 02.02.1994, Sri Sahibzada Khurshid Husain was appointed as Mutwalli of the Waqf by the then Secretary of the U.P. Sunni Central Waqf Board. The said order appointing Sri Sahibzabad Khurshid Husain as Mutwalli of the Waqf has been annexed as Annexure No.2 to the writ petition No.3778(MB) of 1996, which recites that in the vacancy caused by the demise of Sri Mamnoon Husain, the earlier Mutwalli of Waqf in question, Sri Sahibzada Khurshid Husain is appointed as Mutwalli of the Waqf for a period of two years. The appointment order of Sri Sahibzada Khurshid Husain as Mutwalli was passed by the Secretary of the Board for a period of two years and on expiry of the term of his Mutawalliship of the Waqf in question, by means of an order passed by the officiating Secretary of the Waqf Board on 04.04.1996, Sri Sahibzada Moinuddin Siddiqui was appointed as Mutwalli to manage the affairs of the Waqf in question.

It appears that said order dated 04.04.1996 was challenged by Sri Sahibzada Khurshid Husain before the Waqf Board itself and accordingly, the Controller of the Waqf Board passed an order on 05.06.1996 whereby he stayed the operation of the order dated 04.04.1996. The petitioner of both these writ petitions, Sri Sahibzada Moinuddin Siddiqui has challenged the said order dated 05.06.1996, passed by the Controller of the Waqf Board in writ petition no. 3778(MB) of 1996.

In respect of writ petition no. 3778(MB) of 1996, the sole submission made by Sri Jilani, learned counsel representing the petitioner is that after the enactment of Waqf Act, 1995 which came into force on 01.01.1996 by virtue of a Notification issued under Section 1(3) of the Waqf Act, 1995, the office of Controller of the Board created under the U.P. Muslim Waqf Act, 1960 seized to exist legally and therefore, any order passed by the Controller after 01.01.1996 will be an order completely without jurisdiction and hence, void ab initio. To fortify his submission, Sri Jilani has stated that prior to enactment of Waqf Act, 1995, the entire field relating to Muslim Waqfs in the State of U.P. was covered by the U.P. Muslim Waqfs Act, 1960 and under the said enactment, the Controller of the Waqf Board was appointed to discharge the functions of the Board and since Waqf Act, 1995 does not envisage any office of the Controller, hence the Controller appointed under the old Act of 1960 can not be said to have any jurisdiction to pass any order after 01.01.1996.

So far as the Writ Petition No. 9093(MB) of 2016 is concerned, Sri Jilani, learned counsel representing the petitioner-Sri Sahibzada Moinuddin Siddiqui has submitted that the impugned decision of the Waqf Board dated 08.03.2016 is referable to Section 64 of the Waqf Act, 1995 and in terms of the provision contained in Sub-section (3) of Section 64 of the said Act, no decision by the Board in respect of the removal of the Mutwalli under Sub-section (1) of Section 64 could be taken unless the decision was taken by a majority of not less than two-thirds of the members of the Board. He has further submitted that on the date the impugned decision dated 08.03.2016 was taken by the Board, it comprised of 11 members while impugned decision has been taken only by six members who have signed the decision, as such on account of non-fulfillment of the requirement of Section 64(3) of the Waqf Act, 1995, the impugned decision, in fact, is completely unlawful and the same can not be given effect to. He has further stated that as a matter of fact, the order dated 05.06.1996, passed by the Controller was stayed by this Court on 03.01.1997 and as such by virtue of operation of the order dated 04.04.1996, the petitioner-Sri Sahibzada Moinuddin Siddiqui was continued as Mutwalli of the Waqf in question on the date the impugned decision dated 08.03.2016 was taken by six members of the Board and hence it cannot be said that at the relevant point of time when the impugned decision was taken, there was any vacancy in the office of Mutwalli of the Waqf in question and accordingly, the impugned decision cannot be referred to Section 63 of the Waqf Act, 1995. According to Sri Jilani, the impugned decision, in fact, first removes the petitioner-Sri Sahibzada Moinuddin Siddiqui from the Mutwalliship and it is only thereafter that Sri Sahibzada Khurshid Husain has been appointed as Mutwalli and accordingly it is a case of removal of the Mutwalli and, thus, impugned decision has to be read in the light of the provision contained in Section 64 of the Waqf Act, 1995. Sri Jilani has further stated that in absence of the decision having been taken by the quorum provided under Sub-section (3) of Section 64, the impugned decision is not sustainable.

Sri Q.H.Rizvi, learned counsel representing the U.P. Sunni Central Waqf Board has, however, opposed the very maintainability of the writ petitions stating that against the impugned orders/decisions in both these writ petitions, the petitioner has got an efficacious and alternative remedy available to him by way of approaching the Tribunal created under Section 83 of the Waqf Act, 1995 and as such on account of availability of the said alternative remedy, these writ petitions should not be entertained. He has further stated that the decision of the Board dated 08.03.2016 is referable to Section 63 and not to Section 64 of the Waqf Act, 1995 for the reason that by the impugned decision it is the respondent No.4-Sri Sahibzada Khurshid Husain who has been appointed as Mutwalli without there being any removal of anyone from Mutwalliship. In the back-ground of this submission, it has been contended by Sri Q.H. Rizvi that for taking the decision under Section 63 of the Waqf Act, 1995 for appointment of Mutwalli in case of vacancy, provision of Section 64(3) would not be attracted; rather such power under Section 63 of the Act is to be exercised in accordance with the provision contained in Section 17(3) of the Waqf Act, 1995, which provides that all questions which may come before any meeting of the Board shall be decided by a majority of votes of the members present. Sri Rizvi has, thus, submitted that on the date the impugned decision dated 08.03.2016 was taken, six members were present who had taken the decision unanimously and as such no flaw or legal fault can be found in the said decision and the decision so taken by the six members collectively and unanimously is protected by the provision contained in Section 17(3) of the Waqf Act, 1995. He has also stated that, in fact, the order dated 04.04.1996 whereby the petitioner-Sahibzada Moinuddin Siddiqui was appointed as Mutwalli of the Waqf in question was also without jurisdiction for the reason that the said order has been passed by the officiating Secretary of the Board after 1995 Waqf Act came into force and hence the Secretary also did not have any jurisdiction to pass any order appointing anyone as Mutwalli, including the petitioner-Sahibzada Moinuddin Siddiqui. He has, thus, submitted that the order dated 04.04.1996 having been passed by an authority who patently lacked jurisdiction under any law or enactment needs to be ignored being null and void.

Sri Q.H. Rizvi has further submitted that the impugned decision by the Board has been taken in compliance of the judgment and order dated 28.01.2015, passed by a Division Bench of this Court in Writ-C No. 1859 of 2015 filed by Sri Sahibzada Khurshid Husain and since the impugned decision has been taken to ensure compliance of the order, the writ petitions filed by the petitioner would not be maintainable.

Sri Mohd. Abid Ali, learned counsel representing Sri Sahibzada Khurshid Husain has also stated that on account of availability of an alternative remedy by approaching the Tribunal under Section 83 of the Waqf Act, 1995, these petitions are not maintainable and hence need to be dismissed by this court.

It has been submitted by Sri Mohd. Abid Ali that on 02.02.1994, Sri Sahibzada Khurshid Husain was appointed as Mutwalli for a period of two years. However, in terms of Waqf deed being relied upon by Sri Sahibzada Khurshid Husain, he ought to have been appointed for a life long term and accordingly, Sri Sahibzada Khurshid Husain has been agitating the issue before the Board and its authorities. He has also submitted that it is in the light of these facts being asserted by Sri Sahibzada Khurshid Husain that the period of term of Mutwalliship of two years as indicated in the order dated 02.02.1994 was objected to by Sri Sahibzada Khurshid Husain and, thus, there was a dispute in relation to Mutwalliship on 04.04.1996 when the petitioner-Sri Sahibzada Moinuddin Siddiqui was appointed as Mutwalli and, therefore, the officiating Secretary could not have passed the said order dated 04.04.1996 for the reason that in disputed cases the officiating Secretary did not have the jurisdiction. It has, thus, been contended by Sri Mohd. Abid Ali that the order dated 04.04.1996 being completely without jurisdiction is void ab initio and that needs to be ignored for all purposes.

In respect of his submission, Sri Mohd. Abid Ali has relied upon a judgment of Hon'ble Supreme Court in the case of Deepak Agro Foods Vs. State of Rajasthan and others, reported in (2008) 7 Supreme Court Cases 748, wherein it has been held that any order passed without jurisdiction renders the order void ab initio on account of lack of jurisdiction in an authority passing such an order and since absence of jurisdiction goes to the root of the matter as such the order is to be ignored for the reason that such defect is not curable.

Sri Mohd. Abid Ali has also very strenuously argued that in case the impugned decision dated 08.03.2016, passed by the Board is interfered with, assuming it to be illegal, by this Court, the same would result in revival of the order dated 04.04.1996 which being completely without jurisdiction would perpetuate an illegality and in these circumstances, this Court should not interfere with the impugned decision. He has further stated that similar situation would emerge in case any interference is shown by this Court in Writ Petition No. 3778(MB) of 1996 and in case order impugned therein dated 05.06.1996 is interfered with, the same would also result in revival of the illegal order dated 04.04.1996 which would further perpetuate the illegality. In respect of this argument, Sri Mohd. Abid Ali has relied upon a judgment of Hon'ble Supreme Court in the case of Maharaja Chintamani Saran Nath Shahdeo Vs. State of Bihar and others, reported in (1999) 8 Supreme Court Cases 16, wherein Hon'ble Supreme Court has upheld the judgment and order passed by the Hon'ble High Court whereby it refused to interfere with the order impugned therein on the ground that if the Hon'ble High Court had quashed the order, it would have restored an illegal order. Sri Mohd. Abid Ali has drawn attention of the Court to paragraph-13 of the said judgment which is extracted herein below:

"In Gadde Venkateswara Rao v. Govt. of A.P. this Court considered the action of the State Government under Andhra Pradesh Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion that the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act but refused to interfere with the orders of the High Court on the ground that if High Court had quashed the said order, it would have restored an illegal order and, therefore, the High Court rightly refused to exercise its extraordinary jurisdictional power".

Sri Mohd. Abid Ali has, thus, contended that in case the decision dated 08.03.2016 and order dated 05.06.1996 which are under challenge in these writ petitions are interfered with, the same would result in perpetuating an illegal order dated 04.04.1996 which being completely without jurisdiction is null and void and hence in view of the law laid down by Hon'ble Supreme Court in the case of Commissioner of Endowments and others Vs. Vittal Rao and others, reported in (2005) 4 Supreme Court Cases 120, this Court is empowered and will be well within its jurisdiction to pass appropriate order without interfering in the writ petitions.

We will first consider and scrutinize the veracity of the arguments raised by the learned counsel appearing for the respective parties in respect of the order dated 05.06.1996 passed by the Controller of the Waqf Board, which is under challenge in Writ Petition No.3778 (M/B) of 1996.

Prior to enactment of the Waqf Act, 1995, the legislative field in respect of Waqfs in the State of Uttar Pradesh was held by a State Legislation known as U.P. Muslim Waqfs Act, 1960. The 1960 Act was enacted by the State Legislature with a view to provide a better governance, administration and supervision of the Waqfs in the State of Uttar Pradesh. The said Act contains exhaustive provisions so as to provide better governance and supervision of the Waqfs. Under Section 10 of the said Act, two separate Boards, which were called the "Sunni Central Board' and the "Shia Central Board" of Waqfs, were established which were entrusted with various statutory functions. The Waqf Board was, thus, constituted in terms of the provision contained in Section 10 of the said Act. In terms of the provision contained in Section 11, the Board constituted/established under 1960 Act was a multi member body which conducted and transacted its business entrusted to it under the said Act and the quorum for the meeting of the Board as prescribed under Section 16 of the Act was one-half of the total number of the members of the Board. The functions of the Board were provided under Section 19, according to which the Board was empowered to do all things reasonable or necessary to ensure that the Waqfs are properly maintained, controlled and administered. Under section 19(2)(o), the Waqfs Board was also vested with the power to remove and appoint a Mutwalli. The Board could delegate some of its powers in terms of the provision contained in Section 20 including the power to appoint and remove the Mutawalli. Sub-section (2) of Section 14 of 1960 Act provides that in case on account of result of any interim order of any court, if the State Government is unable to issue a notification for constitution of the new Board or after issuance of such notification the new Board is unable to function, the State Government could appoint a Controller of the Board which was empowered to perform, exercise and discharge the functions, powers and duties of the Board as well as those of its President and members. The appointment of Controller under 1960 Act is, thus, available in Section 14(2). However, the issue which falls for consideration in this case is as to whether any Controller could be appointed after Waqf Act, 1995 came into force and as to whether any Controller, if appointed even before the Waqf Act, 1995 came into force, would continue to discharge its functions in terms of the provisions contained in section 14(2) of 1960 Act.

The Waqf Act, 1995 has been enacted by the Central Parliament which received the assent of the President on 22.11.1995. Sub-section (3) of Section 1 of the Waqf Act, 1995 provides that said Act shall come into force in a State on a day to be notified by the Central Government in the official gazette. In terms of Section 1(3) of 1995 Act, the Central Government issued a notification appointing 01.01.1996 as the date on which the said Act came into force. The Waqf Act, 1995 contains repeal and savings clause in Section 112, which is quoted herein below:

"112. Repeal and savings- (1) The Wakf Act 1956 (29 of 1954) and the Wakf (Amendment) Act, 1984 (69 of 1984) are hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act.

(3) If, immediately before the commencement of this Act, in any State, there is in force in that State, any law which corresponds to this Act that corresponding law shall stand repealed:

Provided that such repeal shall not affect the previous operation of that corresponding law, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under the corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act was inn force on the day on which such things were done or action was taken".

Sub-section (3) of Section 112 of 1995 Act provides that if, immediately before the commencement of the said Act, any law in any State was in force which corresponds to 1995 Act, then in that eventuality the corresponding law in force in the State concerned shall stand repealed. The proviso appended to Sub-section (3) of Section 112 of 1995 Act further provides that such repeal will have no impact on the previous operation of the corresponding law, and subject thereto, anything done or any action taken under the corresponding law shall be deemed to have been done or taken in exercise of the powers conferred by or under 1995 Act as if the 1995 Act was in force on the day on which such things were done or action was taken.

Accordingly, savings provision contained in Section 112 of 1995 Act saves only previous operation of 1960 Act and provides that the things done or action taken under 1960 Act will be deemed to have been taken in exercise of the powers conferred under 1995 Act, however, any action taken or anything done under the old 1960 Act will be valid and will be deemed to have been taken under the new Act 1995 only and only if such thing was done or such action was taken before the Waqf Act, 1995 came into force i.e. before 01.01.1996. (Emphasis supplied)

Assuming that at the relevant point of time i.e. on the date the impugned order was passed i.e. on 05.06.1996, no duly constituted Board was working and in terms of the provision contained in Section 14 of 1960 Act, it is the Controller who was discharging the functions and duties of the Board, the question would still be as to whether any order passed by the Controller after 01.01.1996 will have any legal sanctity or not.

Even if, the Controller in the instant case was appointed prior to 01.01.1996 i.e. prior to enforcement of 1995 Act, his authority, much less any legal authority, ceased to exist once 1995 Waqf Act was enforced by the notification issued under Sub-section (3) of Section 1 of 1995 Act on 01.01.1996. It is not a case where certain proceedings were instituted prior to 01.01.1996 before the Controller and in such a proceedings pending on 01.01.1996, the order dated 05.06.1996 was passed. Admittedly, the order dated 05.06.1996 has been passed on an objection raised by Sri Sahibzada Khurshid Husain against the order dated 04.04.1996 passed by the officiating Secretary of the Waqf Board appointing Shri Sahibzada Moinuddin Siddiqui as Mutawalli of the Waqf in question. Thus by any stretch of imagination, it cannot be said that the order passed by the Controller of the Waqf Board dated 05.06.1996 was passed in any proceedings which were initiated prior to 01.01.1996 or in proceedings which can be said to be pending on 01.01.1996 i.e. the date on which the Waqf Act 1995 was enforced.

Accordingly, in our considered opinion the repeal and savings clause contained in Section 112 of the Waqf Act, 1995 does not save any action taken or even the impugned order passed on 05.06.1996 by the Controller of the Waqf Board for the reason that the said order has not only been passed after the Waqf Act, 1995 was enforced but also for the reason that the impugned order has been passed not in any proceedings which were initiated prior to enforcement of Waqf Act 1995 or were pending on the date of enforcement of the said Act. The Controller of the Waqf Board, thus, ceased to have any jurisdiction to take any action or pass any order after 01.01.1996. At the most, though not very relevant for the purposes of adjudicating the issue involved herein, the Controller could have passed the order or taken some action on a proceeding instituted prior to 01.01.1996 and which could be said to be pending and continuing before the said date i.e. before 01.01.1996.

The instant case not being such a case, we are completely unable to agree with the submissions made by Sri Q.H. Rizvi, learned counsel appearing for the Waqf Board that the order passed by the Controller cannot be said to be an order without jurisdiction.

At this juncture, we may also deal with the submissions raised by Sri Q.H. Rizvi based on a letter dated 16.01.1997 which has been annexed as Annexure CA-2 to the short Counter Affidavit filed on behalf of respondent nos.1, 2 and 3 in Writ Petition No.9093 (M/B) of 2016. The said letter dated 16.01.1997 has been written by the State Government to one Sri Siraj Husain, I.A.S, Registrar, Cooperative Societies, Lucknow, wherein it has been recited that Sri Siraz Husain was appointed on 17.06.1996 as Controller of the U.P. Sunni Central Waqf Board, however, pursuant to certain orders passed by this Court in Writ Petition No.1689 (M/B) of 1996, Rizwanul Haq Vs. Union of India and others, Writ Petition No. 1715 (M/B) of 1996, Mohd. Aslam Khan Vs. State and others and also in Writ Petition No.1751 (M/B) of 1996, Fazal Ahmad Vs. State and others, Sri Niyaz Ahmad continued to work as Controller. The letter further recites that in Special Leave Petition No.17747 of 1996 filed by the State, Hon'ble Supreme Court had stayed the interim order passed by this Court vide order dated 19.12.1996 and accordingly there does not appear to be any legal impediment, if Sri Siraz Husain discharges the duties and functions of U.P. Sunni Central Waqf Board.

Having considered the said argument made by Sri Q.H. Rizvi based on the letter dated 16.01.1997, we are unable to agree with the submission made by him for the reason that the said letter only states that the working of Sri Siraz Husain as Controller is a result of the order dated 19.12.1996 passed by Hon'ble Supreme Court.

The Controller appointed on 17.06.1996 would still have some functions to discharge even after the 1995 Act came into force. As observed above, Section 112 of 1995 Act specifically provides that repeal of any State enactment shall not affect the previous operation of the State enactment (corresponding law). It would simply mean that in case any proceedings etc. were pending before the Controller on the date of enforcement of the Waqf Act, 1995, the Controller appointed earlier shall continue to function and discharge his duties in respect of such proceedings instituted before 01.01.1996 and it is for the purposes of continuance of such proceedings alone that the Controller appointed on 17.06.1996 by the State Government will have certain powers and jurisdiction, that would, however, not mean that any Controller appointed prior to 01.01.1996 will have jurisdiction to pass orders and take action under the old 1960 Act including the power to appoint or remove Mutawalli of a Waqf. Appointment and removal etc. of Mutwalli of a Waqf after 01.01.1996 can be done only in accordance with the provisions of 1995 Act and not in accordance with old 1960 Act which stood repealed by virtue of operation of Section 112 on the date when 1995 Act came into force.

At this juncture, we may also deal with the submissions made by Shri Q.H.Rizvi and Shri Mohd. Abid Ali that the petitioner has got an alternative remedy of invoking the provisions of Section 83 of 1995 Act, as such these petitions may not be entertained.

The Writ Petition No. 3778(MB) of 1996 is pending since the year 1996. Affidavits between the parties have also been exchanged in both the writ petitions and have at this juncture, we do not find it appropriate to dismiss the writ petition as not maintainable on the ground of availability of such alternative remedy as has been suggested by Sri Q.H. Rizvi and Shri Mohd. Abid Ali for the reasons disclosed above.

We are of the considered opinion that the impugned order dated 05.06.1996 said to have been passed by the Controller of the U.P. Sunni Central Waqf Board as is contained in annexure no.6 to the Writ Petition No.3778 (M/B) of 1996 is completely without jurisdiction and without any lawful authority available to the Controller to pass such an order. The order itself is found to be absolutely unlawful and void ab initio .

Taking up the issue raised in Writ Petition No.9093 (M/B) of 2016, we may first refer to the order dated 28.01.2015 passed by this Court in Writ-C No.1859 of 2015, which was filed by Sri Sahibzada Khurshid Husain. The said writ petition was filed challenging the order dated 13.11.2014 passed by the Board, whereby the name of the petitioner-Sahibzada Moinuddin Siddiqui was ordered to be entered as Mutawalli in the Waqf Register.

The Division Bench of this Court while deciding the Writ-C No.1859 of 2015, vide its order judgment and order dated 28.01.2015, quashed the order dated 13.11.2014 passed by the Board, whereby the name of the petitioner-Sahibzada Moinuddin Siddiqui was ordered to be entered in the Waqf register and further directed the Board to consider the application dated 13.11.2014 preferred by the petitioner-Sahibzada Moinuddin Siddiqui and decide the same afresh after issuing notices to all concerned. Thus, the mandate as contained in the order dated 28.01.2015 passed by the Division Bench of this Court in Writ C No.1859 of 2015 was to decide the application preferred by the petitioner dated 13.11.2014. The said application dated 13.11.2014 is on record as annexure no.4 to the Writ Petition No.9093 (M/B) of 2016, wherein it was prayed by the petitioner- Sahibzada Moinuddin Siddiqui that he was appointed as Mutawalli way back on 04.04.1996 against which an order was passed on 05.06.1996 by the Controller staying the order of appointment of the petitioner as Mutawalli dated 04.04.1996. It was further stated by the petitioner in the application dated 13.11.2014 that against the said order dated 05.06.1996 he had preferred Writ Petition No.3778 (M/B) of 1996 wherein this Court had stayed the order dated 05.06.1996 by means of order dated 03.01.1997, as a result of which, the order appointing the petitioner as Mutawalli dated 04.04.1996 has come into existence and accordingly his name be entered as Mutawalli in the Waqf register.

It is in compliance of the aforesaid order dated 28.01.2015 that the impugned decision by the Board has been taken whereby it has been observed that it would not be appropriate to appoint the petitioner-Sahibzada Moinuddin Siddiqui as Mutawalli of the Waqf in question and that there existed a vacancy in the office of Mutawalli of the Waqf. The impugned decision further appoints Sri Sahibzada Khurshid Husain to be Mutawalli of the Waqf in question.

The impugned decision, admittedly, has been taken by the six members of the Board, whereas on the relevant date i.e. 08.03.2016 the Board comprised of 11 members as has been stated by Sri Q.H. Rizvi, learned counsel appearing for the Board on the basis of instructions received by him. The Division Bench of this Court while passing the order dated 28.01.2015 after quashing the order dated 13.11.2014 had directed to decide the application preferred by the petitioner dated 13.11.2014 wherein admittedly, the prayer made was only to the effect that the name of the petitioner be entered as Mutawalli in the Waqf Register.

The issue as to whether there was any vacancy or as to who is entitled to be appointed as Mutawalli, we are afraid, was not before the Board, however, the Board has proceeded to give a finding while taking the impugned decision that there existed a vacancy and it would not be appropriate to appoint the petitioner-Sahibzada Moinuddin Siddiqui as Mutawalli of the Waqf; rather it will be just and proper to appoint Sri Sahibzada Khurshid Husain as Mutawalli of the Waqf.

On the date on which the impugned decision was taken i.e. on 08.03.2016 the interim order passed by this Court in Writ Petition No.3778 (M/B) of 1996 was very much in operation. The result of the interim order dated 03.01.1997 was that the order dated 05.06.1996 passed by the Controller of the Waqf Board was not in existence temporarily, as a consequence of which the order dated 04.04.1996 whereby the petitioner-Sahibzada Moinuddin Siddiqui was appointed as Mutawalli of the Waqf was in operation. It appears that Waqf Board while taking impugned decision has completely ignored the aforesaid legal position and has not taken into account the impact of the interim order dated 03.01.1997 passed by this Court in Writ Petition No.3778(M/B) of 1996.

We may further consider the submission made by Sri Jilani that the impugned decision is referable to Section 64 of the Waqf Board and not to Section 63 of the Waqf Act, 1995 which argument has been attempted to be refuted both by Sri Q.H. Rizvi and Sri Mohd. Abid Ali, learned counsel appearing for the respondents. Section 63 empowers the Board to appoint Mutawalli in certain cases. It provides that where there is a vacancy in the office of the Mutawalli of a Waqf and there is no one to be appointed under the terms of the deed of Waqf, 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 Board while taking the impugned decision has completely ignored the impact of the interim order dated 03.01.1997 passed by this Court. If the said order was taken into account, it could not be said that there was any vacancy in the office of Mutawalli on the date on which the impugned decision dated 08.03.2016 was taken by the Board for the reason that as a result of operation of the interim order dated 03.01.1997, the order dated 04.04.1996 appointing the petitioner-Sahibzada Moinuddin Siddiqui stood revived. In this view of the matter, we are unable to agree with the findings recorded by the Waqf Board while taking the impugned decision that there was vacancy in the office of Mutawalli.

Having held as above, the question now would be that in case there was no vacancy in the office of Mutawalli which was being occupied by the petitioner-Sahibzada Moinuddin Siddiqui, whether the decision dated 08.03.2016 is referable to Section 64 of the Waqf Act and, therefore, the provisions of Sub-section (3) of Section 64 are attracted in this case or the decision is still referable to Section 63 of the Waqf Act wherein the provision of Section 17(3) will be attracted.

We have already held that as a result of operation of the interim order dated 03.01.1997 passed by this Court, the order dated 04.04.1994 appointing the petitioner-Sahibzada Moinuddin Siddiqui as Mutawalli of the Waqf in question stood revived and hence, any order appointing Sri Sahibzada Khurshid Husain as Mutawalli would necessarily mean removal of the petitioner- Sahibzada Moinuddin Siddiqui and hence, the impugned decision dated 08.03.2016 is referable to Section 64. Any appointment of Mutawalli under Section 63 can be made only after removal of the Mutawalli who was in office on 08.03.2016. Thus, the decision taken by the Waqf Board dated 08.03.2016 has to be tested on anvil of the provision contained in Sub- section (3) of Section 64.

Section 64 provides for removal of Mutawalli. Sub-section (3) of Section 64 categorically mandates that no action shall be taken by the Board under Sub-section (1) of Section 64 unless an enquiry is held into the matter in a prescribed manner and the decision has been taken by a majority of not less than two-thirds of the members of the Board. Admittedly, in this case, on the date of decision i.e. 08.03.2016, the Board comprised of 11 members whereas impugned decision has been taken only by 6 members who were present. Thus, the decision taken by the 6 members on 08.03.2016 is not in conformity with the provision of Sub-section (3) of Section 64 of the Waqf Act, 1995.

The quorum prescribed for decision to be taken by the Board under Sub-section (3) of Section 64 assumes importance for the reason that under Section 64, the Board exercises power of removal of the Mutwalli which visits the person so removed with various consequences. In respect of any decision other than removal of the Mutwalli, the decision by the Board is to be taken in terms of the provision contained in Sub-section (3) of Section 17 of Waqf Act, 1995 where the decision will be valid in case it has been taken by the Board by a majority of the members present. However, such provision has clearly been excluded in case power of the Board is to be exercised under Section 64 for removal of the Mutwalli of a Waqf. The intention of the Legislature is, thus, abundantly clear that in case of removal, the decision of the Board has to be taken only by a majority of not less than two-thirds members of the Board, whereas in respect of a decision in relation to any other matter, the decision of the Board has to be by a majority of the members present. The said distinction is clear from a bare perusal of the scheme of the Waqf Act, 1995. (Emphasis supplied)

For the reasons narrated herein above, we also find ourselves unable to agree with the submission made by Sri Q.H. Rizvi, learned counsel for the Board so far as the validity of the impugned decision dated 08.03.2016 taken by the Waqf Board is concerned.

Having observed as above, we now need to examine the argument canvassed by Sri Mohd. Abid Ali that the order dated 04.04.1996 whereby the petitioner-Sahibzada Moinuddin Siddiqui was appointed Mutwalli of the Waqf, having been passed by the officiating Secretary of the Board is also without jurisdiction and hence, any interference in the order dated 05.06.1996 and the impugned decision dated 08.03.2016 will perpetuate an illegality and, therefore, this Court may not interfere in these matters in exercise of its equity jurisdiction under Article 226 of the Constitution of India.

Admittedly, the order dated 04.04.1996 passed by the officiating Secretary of the Board is an order passed after the Waft Act, 1995 came into operation i.e. after 01.01.1996. The term of Sri Sahibzada Khurshid Husain as Mutwalli came to an end on 01.04.1996 for the reason that he was appointed as Mutwalli only for a period of two years by means of order dated 02.04.1994, passed by the Secretary of the Board. On the reasoning given by us above for holding the order dated 05.06.1996 to be without jurisdiction and hence void ab initio, we are persuaded to hold that the order dated 04.04.1996, passed by the officiating Secretary of the Board whereby the petitioner- Sahibzada Moinuddin Siddiqui was appointed as Mutwalli is also completely without jurisdiction and hence void ab initio.

As a result of forgoing discussions made and reasons given above, both the writ petitions are disposed of in terms of the following order and directions:

(1) The order dated 05.06.1996, passed by the Controller of the U.P. Sunni Central Waqf Board, as is contained in Annexure No. 6 to the Writ Petition No. 3778(MB) of 1996 and the entire proceedings from where the said order dated 05.06.1996 has emanated, are hereby quashed.

(2) The impugned decision dated 08.03.2016 of U.P. Sunni Central Waqf Board, which is contained as Annexure No. 1 to the Writ Petition No. 9093(MB) of 2016 is also hereby quashed.

(3) Since we have also held above that the order dated 04.04.1996, passed by the officiating Secretary of the U.P. Sunni Central Waqf Board, as is contained in Annexure No.3 to the writ petition No.3778(MB) of 1996, is completely without jurisdiction and void ab initio, hence the said order will also not be operative hence-fourth.

(4) The term of Sri Sahibzada Khurshid Husain as Mutwalli of the Waqf No. 161, Bareilly (Waqf Barai Umoor-e-Khair) came to an end on expiry of the period of two years on 01.04.1996 i.e. after Waqf Act, 1995 came into operation, hence the U.P. Sunni Central Waqf Board constituted under the Waqf Act, 1995 is directed to consider the respective cases of the petitioner- Sahibzada Moinuddin Siddiqui and Sri Sahibzada Khurshid Husain for appointment as Mutwalli of the Waqf in question afresh in accordance with law. The petitioner-Sahibzada Moinuddin Siddiqui as also Sri Sahibzada Khurshid Husain shall be at liberty to put-forth their claims for appointment as Mutwalli before the Board within a month from today. The Board thereafter shall consider their respective claims and take final decision in the matter after affording appropriate opportunity of hearing and adducing evidence to the parties, within a period of three months from the date such claims by the parties are received by it.

(5) During this interregnum period of four months i.e. till the final decision by the Board is taken under this order, the management and affairs of the Waqf shall be entrusted by the Chairman of the Board to any responsible officer subordinate to him in the Board, who shall manage the affairs of the Waqf and will be directly reporting to the Chairman and will be answerable to him.

There will be no order as to costs.

Order Date :- 24.10.2017

Sanjay