Allahabad High Court
Mohd. Mubarak Khan vs U.P. Sunni Central Waqf Board ... on 16 February, 2023
Bench: Sangeeta Chandra, Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 2
Case :- WRIT - C No. - 1221 of 2023
Petitioner :- Mohd. Mubarak Khan
Respondent :- U.P. Sunni Central Waqf Board Thru. Chairman , Lko. And Others
Counsel for Petitioner :- Syed Asaghar Mehdi
Counsel for Respondent :- Farhan Habib,C.S.C.
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Manish Kumar,J.
(1) Heard Shri Syed Asaghar Mehdi, learned counsel for the petitioner and Shri Syed Aftab Ahmad and Shri Mohd. Maroof who appears for the Respondent no.6, their power is taken on record, and Shri Farhan Habib, who appears on behalf of the U.P. Sunni Central Waqf Board, Lucknow, the Respondent nos.1 and 2 and the learned Standing counsel who appears on behalf of the Respondent nos.3 and 4.
(2) This petition has been filed by the petitioner for the following main prayer:-
"(i) Issue a writ, order or direction in the nature of CERTIORARI quashing the impugned order dated 07.09.2022 passed by the Opposite party no.1 and Certificate of Taulitat dated 19.09.2022 has been issued by the Opposite party no.2 Waqf Muslim Yateem Khana, Waqf No.468, situated at Mohalla Rafi Nagar, Utraula, District Balrampur, contained in Annexure Nos.1 & 2 in the interest of justice."
(3) It is the case of the petitioner that he is the Secretary/ Manager of Committee of Management of a Society duly registered under the Societies Registration Act in the name of Darul Uloom Jiyaul Islam with Registration No.2611/1987-88 which runs Waqf Muslim Yateem Khana situated at Mohalla Rafi Nagar, beside Jama Masjid, Utraula, District Balrampur. The private-respondents had made a complaint on the basis whereof the Assistant Survey Inspector had conducted an enquiry and submitted a report that the Secretary of the said Committee of Management died a long time ago. On the report of the Assistant Survey Inspector, the impugned orders have been passed appointing Mohd. Hussain as President and Saifuddin as Secretary. Such orders have been passed by the Chairman of the Board without jurisdiction as only the Board itself in its meeting can pass such orders appointing Mutuwalli.
(4) Learned counsel appearing for the private-respondents has pointed out that the petitioner has appropriate remedy against the order passed by the Board before the Waqf Tribunal under Section 83 of the Waqf Act. Learned counsel for the private respondents has also pointed out that since the petitioner's claim to be Secretary and Manager of the Society registered for looking after Waqf Muslim Yateem Khana then the writ petition filed in his individual capacity is even otherwise not maintainable. If Society / the Committee of Management is aggrieved by any order passed by the Respondent no.1, the then Secretary and President of the Society should have approached this Court.
(5) The counsel for the petitioner has placed reliance upon a judgment rendered by the Hon'ble Supreme Court in the case of Maharashtra State Board of Waqf Vs. Sheikh Usuf Bhai Chawla and others. However, this Court has gone through the judgment rendered by the Hon'ble Supreme Court as aforecited and finds that the facts in the said case were completely different with the facts as mentioned in this petition. A judgment rendered by the Hon'ble Supreme Court can be considered to be a binding precedent only for that which it considers and decides. One additional fact may change the whole tenor of the controversy before the Court. The judgment rendered by the Hon'ble Supreme Court cannot be relied upon by the counsel for the petitioner out of context.
(6) The writ petition is finally disposed of with a liberty to the petitioner to approach Waqf Tribunal within a period of three weeks from today. If such application is filed, the Tribunal shall consider the same and pass appropriate reasoned and speaking orders thereon after hearing of the parties concerned as expeditiously as possible.
Order Date :- 16.2.2023
N.PAL
