Allahabad High Court
C/M Waqf Dargah Hazrat Peer Syed ... vs U.P. Sunni Central Waqf Board ... on 27 April, 2022
Bench: Rajan Roy, Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 4
Case :- CIVIL MISC REVIEW APPLICATION No. - 211 of 2021
Applicant :- C/M Waqf Dargah Hazrat Peer Syed Mohammad Sahab And Ors.
Opposite Party :- U.P. Sunni Central Waqf Board Thru.Chairman Lko. And Ors.
Counsel for Applicant :- Akhlaq Ali,Haider Abbas,S.M. Rashid
Hon'ble Rajan Roy,J.
Hon'ble Suresh Kumar Gupta,J.
Heard.
This is an application seeking review of the judgment dated 01.10.2021 passed in Writ Petition No.22480 (M/B) of 2021. The only ground pressed before the Court during course of argument for seeking review of the said judgment is that it is in conflict with the law laid down by a Co-ordinate Bench of this Court in the case of 'Subina Rizvi vs. State of U.P. & Anr.' 2016 (34) LCD 95. Learned counsel for the petitioner has only relied upon para no.15 of the said judgment which reads as under:-
"15. 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. "
We have perused our judgment and we find that the order under challenge therein in the writ petition was dated 16.08.2021 by which the U.P. Sunni Central Waqf Board had appointed another Committee of Management/ Mutawalli. After noticing the arguments of the counsel, we have considered Section 3(i) of the Waqf Act, 1995 (in short 'the Act, 1995)' which defines the term 'mutawalli'. Thereafter, we have considered Section 63 of the Act, 1995 which contains the provision for appointment of mutawalli which includes the Committee of Management. We have recorded a finding that none of the counsels could point out any provision for extension of term of Committee of Management/ Mutawalli under the Act, 1995. The provision for appointment of a mutawalli/committee of management is Section 63, unless of course, there is a provision in this regard in the Waqf deed in which case it is governed by such deed independent of Section 63. We have also recorded thatit is the admitted factual position that the petitioner's term expired initially on 22.01.2018 which was extended till 21.01.2021. This extension, in fact, was a fresh appointment, as there is no provision for extension. We have categorically recorded a finding that in this scenario, the application of the petitioner, as claimed, for extension of its term was not maintainable in the first place. At best it could be treated as an application for appointment as mutawalli of the Waqf concerned. We have also observed that there is nothing to show that the petitioner-Committee of Management was ever so elected for appointment as mutawalli under Section 63 of the Act, 1995 by the local residents. We have also noticed thatanother Committee of Management was elected by the local residents and their names were forwarded to the Board which has been appointed as mutawalli of the Waqf. We have also opined thatonce the term of the committee of management expired on 21.01.2021 and it was not extended, then, it had no right to function after that, legally and substantively. Therefore, as Section 67 applies only when there is a committee of management functioning in terms of Section 63, there was no question of application of Section 67 of the Act, 1995. Section 67 deals with supervision and supersession of committee of management, meaning thereby, an existing committee of management as appointed under Section 63. The petitioner was not such a committee, therefore, there is no question of application of Section 67.
We have also observed that the Board could have avoided commenting on the alleged deficiencies brought to its notice in the inquiry ordered and have taken care about the stigmatic observations by providing that none of the observations in the order of the Board as regards the alleged deficiencies by the petitioner shall be read against it, unless of course, there is any occasion to take action against any member of the committee of management which can be done only in accordance with law after due opportunity of hearing.
In the grounds of the review application, it is nowhere being stated that during course of argument in the writ petition it was pressed by the counsel that no opportunity of hearing was given in the matter. In fact, we have recorded a finding that term of the petitioner had expired and therefore, Section 67 of the Act, 1995 did not apply in the facts of the case. There is no question of terminating the tenure of the petitioner in this case as the tenure had expired long back, admittedly so. Moreover, the counsel who had argued the writ petition is not present instead Sri Akhlaq Ali, learned counsel has argued the case though the earlier counsel has also signed the Vakalatnama. In these circumstances, when we peruse the judgment passed in the case of Subina Rizvi (supra), we find that the observations in para no.15 have been made in the facts of the said case which do not apply to this case. Moreover this is not a case of termination of tenure of mutawalli which is governed by Section 64 of the Act, 1995 nor of supersession of Managing Committee which is governed by Section 67 of the said Act. It is a case of appointment of Committee of Managment / Mutwalli under Section 63 of the Act, 1995. We do not find any conflict with the judgment in Subina Rizvi's case (supra) nor any ground for reviewing the judgment dated 01.10.2021.
Accordingly, the application for review is dismissed.
(Suresh Kumar Gupta,J.) (Rajan Roy,J.)
Order Date :- 27.4.2022
Shanu/-
