Allahabad High Court
U.P. Shia Central Waqf Board Thru. ... vs U.P. Waqf Tribunal Lucknow U.P. And ... on 30 May, 2025
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:33283
Reserved
Court No. 8
Case :- CIVIL REVISION No. - 8 of 2025
Revisionist :- U.P. Shia Central Waqf Board Thru. Chairman Sri Ali Zaidi
Opposite Party :- U.P. Waqf Tribunal Lucknow U.P. And Others
Counsel for Revisionist :- Saiyed Afzal Abbas Rizvi
Counsel for Opposite Party :- Mohammad Tariq Saeed,Mohd Kashif Iqbal,Mohd.Altaf Mansoor,Tanay Chaudhary
Hon'ble Jaspreet Singh,J.
1. The Uttar Pradesh Shia Central Waqf Board (hereinafter referred to as "Board") has approached this Court by means of the instant revision under Section 83 (9) of the Waqf Act, 1995 being aggrieved by the order dated 29.04.2024 passed by the Waqf Tribunal in Case No. 255 of 2017 (Tawawar Ali Vs. U.P. Shia Central Board and Others) whereby the reference filed by the respondent no. 2 was allowed and the order dated 20.01.2015 passed by the Board has been set aside and declared as void.
2. Sri Syed Afzal Abbas Rizvi, learned counsel for the revisionist has submitted that one Nawab Mohd. Hussain Khan in his lifetime executed three different Waqf Deeds whereby he had waqfed his properties. Two Waqf Deeds were executed on 27.03.1934 but relating to two different separate properties and the third Waqf Deed was executed on 13.08.1934 which related to a different property.
3. It was further submitted that Nawab Anwar Jahan Begam who was the descendant of Nawab Mohd. Husain Khan had filed a declaratory suit in the year 1944 bearing Case No. 19 of 1944 seeking a declaration that the properties which were the subject matter of the three Waqf Deeds be declared as being personal property and not Waqf.
4. The suit came to be decided by means of judgment dated 30.04.1952 wherein, as per the revisionist-board only the Waqf Deed dated 27.03.1934 in so far as it related to 17 shops was found to be invalid. The Court in its judgment dated 30.04.1952 held that the The United Provinces Muslim Waqf Act, 1936 (hereinafter referred to as "U.P Act No. 13 of 1936") did not apply to the properties of the Waqf Deed dated 27.03.1934 executed in respect of Munawar Bagh and Village Lakshmanipur, however, in so far as the Waqf created by the deed dated 13.08.1934 is concerned, the same was found to be valid.
5. It was further submitted that the Board thereafter preferred a First Appeal before the High Court bearing No. 287 of 1952 which was allowed by means of judgment and decree dated 07.05.1964 and the judgment and decree of the Trial Court was modified to the extent that the finding given by the Trial Court regarding non-applicability of the U.P Act No. 13 of 1936 to the Waqf in respect of Munawar Bagh and Village Laxmanipur was set aside and the prayer made in the suit to the aforesaid extent was dismissed.
6. The Board by means of order dated 20.01.2015 appointed joint Mutawallis in respect of Waqf Nawab Mohd. Husain Khand, Bareilly. This order passed by the Board was challenged by the respondent no. 2 before the Waqf Tribunal who allowed the reference which led the Board to approach this Court in the instant revision.
7. The submission of learned counsel for the revisionist is that the Tribunal erred in allowing the reference as the Tribunal misread the judgment passed in the civil proceedings which came to be decided on 30.04.1952. It was emphasized that in the civil suit, the Court had declared only 17 shops not to be the Waqf. It did not relate to the Imambara and it is in this context that the order passed by the Board which related to the Imambara could not be faulted and this aspect has been ignored by the Tribunal.
8. It is urged that the suit which came to be partly decreed on 30.04.1952 was only in respect of 17 shops which were the subject matter of the Waqf Deed executed on 27.03.1934.
9. As per the deed of 1934, the author of the Waqf while executing the deed had referred to the residential house, Imambara and the 17 shops constructed on the said property.
10. The Trial Court in its judgment dated 30.04.1952 had specifically declared the Waqf of 17 shops as void but that did not include the residential portion including the Imambara which was used on the occasion of Moharram and moreover there has been a Mutawalli managing the said properties and it has always been treated as a Waqf properties and now at the behest of the respondent no. 2, the reference has been allowed in derogation of the aforesaid facts which cannot be sustained.
11. The learned counsel for the Board also urged that the judgment of the Trial Court was assailed by the Board by filing a First Appeal wherein the issue of 17 shops alone was in question and it was held that the 17 shops could not be Waqfed whereas the appeal was thereafter allowed in respect of the other reliefs and the suit filed in the year 1952 for declaring the properties as personal property was dismissed. Thus, from the conjoint reading of the judgment of the Trial Court dated 30.04.1952 which was modified in appeal vide judgment dated 07.05.1964, it would reveal that the Tribunal has misconstrued the said judgments and by ignoring material aspect it has passed the impugned order which deserves to be set aside.
12. Sri Mohd. Tariq Syed, learned counsel for the respondent no. 6 (the person who was appointed as the Mutawalli by the order of the Board) has also supported the submissions of the learned counsel for the Board and has additionally added that there was ample evidence on record to indicate that the Mutawalli who was the father of the respondent no. 2 himself in his capacity as Mutawalli had sought permissions from the Government for taking out the procession of Moharram and he himself has been treating the properties as Waqf property, now after his death, the respondent no. 2 cannot take a stand which is contrary and to claim the properties as personal and not Waqf properties.
13. He has also submitted that it is not necessary that a Waqf is to be created by a deed only. A Waqf can be created even by user which is a concept mentioned in the Muslim Law and this aspect has also not been taken note of by the Tribunal while allowing the reference.
14. The learned counsel for the respondent no. 6 has further raised a contention that the reference was bad for want of notice as mentioned in Section 89 of the Act of 1995 which provides that unless the notice is served to the Board, the proceedings would not be maintainable and admittedly, in the instant case, no such notice has been served by the respondent no. 2 before initiating the proceedings before the Tribunal, hence, they were bad and ignoring this aspect, the Tribunal has also grossly erred. In support of his submissions, he has relied upon a decision of a Coordinate Bench of this Court in Waqf Qabristan, Unnao Thru. Mutawalli , Nafees Khan v. U.P. Sunni Central Board of Wakfs, 2019 SCC OnLine All 4552 decided on 11.03.2019.
15. The learned counsel for the respondent no. 2 Mohd. Altaf Mansoor has refuted the aforesaid submissions and has pointed out that a deliberate attempt has been made not only by the Board to usurp the personal property terming it to be a Waqf property and while doing so it had deliberately violated the order passed by the Civil Court which came to be passed on 30.04.1952 and in so far as the present controversy relating to Imambada is concerned, the same was also considered by the Trial Court and it was not interfered with by the High Court in appeal which was filed by the Board and decided on 07.05.1964.
16. It is further submitted that in earlier declaratory suit, there were clear findings that the Waqf Deed dated 27.03.1934 which related to the 17 shops inter alia was not valid. There was never any issue of Imambara which is now sought to be raised and the Waqf Board by misguiding the Executive Authorities attempted to introduce the disputed properties as the Waqf Properties which was against the earlier adjudication.
17. It is further submitted that the issue regarding the residential house and 17 shops was the subject matter of the Waqf Deed of 27.03.1934 and it clearly referred, in the plaint of the civil suit, as the property situate at serial no. (i) and if the averments of the plaint are seen in context with the findings given by the Court in the declaratory suit, it would be clear that the said properties were the personal properties and it never was Waqf property, hence, it was declared void.
18. It is further urged, that the revisionist and the respondent no. 5 have attempted to mislead the Court, inasmuch as, their contentions are quite contrary to the record. This can be substantiated from the bare perusal of the memo of appeal, which was filed by the Board before the High Court against the judgment and decree dated 30.04.1952, which came to be decided on 07.05.1964 and the said documents have been placed on record along with the counter affidavit.
19. The learned counsel for the respondent no. 2 has further submitted that after the order dated 20.01.2015 which was passed by the Waqf Tribunal, a direction was issued to the Waqf Board to delete the entry. Following the directions of the Waqf Tribunal, the Board submitted its report on 15.05.2024 through its Administrative Officer.
20. Later, the Administrative Officer wrote to the District Magistrate, Bareilly apprising him that the order passed by the Tribunal has been complied with in so far as 17 shops were concerned, however, it stated that the house and the Imambara still continues to remain as Waqf properties and an entry was made to the said effect. Relying upon the aforesaid letter of the Administrative Officer, the District Magistrate issued a letter to the SDM dated 18.06.2024 to ensure that no construction activity is made over the Waqf property which has an Imambara.
21. It was urged that the respondent no. 2 being aggrieved against the said letter/order issued by the administrative officer of the Board dated 21.05.2024 and the consequential order dated 18.06.2024 passed by the District Magistrate, Bareilly were challenged by the respondent no. 2 by filing a writ petition before this Court at Allahabad bearing Writ- C No. 42856 of 2024 (Huma Zaidi Vs. U.P. Shia Central Board of Waqf and 7 Others). Division Bench of this Court after hearing the parties which included the Board vide its order dated 09.01.2025, stayed the effect and operation of the order dated 21.05.2024 as well as the consequential order dated 18.06.2024 and the Management of the property was directed to be continued to be governed in the same manner as was being done prior to the passing of the impugned order.
22. It is submitted that the Board was a party to the said petition at Allahabad and was very well aware of the order dated 09.01.2025 passed by the Division Bench, yet by concealing the aforesaid facts it filed the instant revision on 31.01.2025.
23. It is urged that the Board by suppressing the aforesaid facts including the order passed by the Division Bench is guilty of committing fraud and for the said reason, the revision deserves to be dismissed on this ground alone.
24. It has also urged that the decision which was relied upon by the learned counsel for the respondent no. 5 in so far as it relates to the notice under Section 89 of the Waqf Act is concerned, the same has no applicability in the instant case.
25. He has also urged that merely on account of the fact that in a residential house during the period of Moharram, certain ceremonies are held will not change the nature of the residential house or any part thereof to be treated as a Waqf and the entire premise upon which the submissions have been made both by the revisionist and the learned counsel for the respondent no. 5 are baseless, against the material available on record and suffers from suppression and concealment, hence, the revision deserves to be dismissed.
26. The Court has heard the learned counsel for the parties and also perused the material on record.
27. At the outset, learned counsel for the revisionist Sri Syed Abbas Rizvi was put to a query regarding the fact as to why the fact of the writ petition filed by the private respondent no. 2 at Allahabad High Court and the interim order dated 09.01.2025 was not disclosed in the instant revision which came to be filed on 31.01.2025.
28. The learned counsel for the revisionist could not give any reply rather he feigned ignorance. Apparently, the learned counsel for the revisionist could not give any reply for the reasons as it appears from the order dated 09.01.2025, a copy of which has been brought on record as Annexure No. CA-10 by the respondent no. 2 which clearly indicates that the notice on behalf of the Waqf, who was the respondent no. 1 in the said writ petition had been accepted by Sri S.M. Iqbal Hasan, Advocate.
29. Even the fact that that the said order of the Division Bench was placed along with the counter affidavit yet the revisionist has not filed any rejoinder affidavit to controvert that fact or to give any explanation in this regard.
30. This apparently is a clear case where the Board is guilty of suppression of material facts. Such conduct on the part of the revisionist cannot be appreciated. In this regard, the observations made by the Apex Court in the following cases i.e. S.P. Chengalvarya Naidu(dead) by L.Rs. v. Jagannath (dead) by L.Rs., (1994) 1 SCC 1; A.V. Papayya Sastry v. Government of A.P., (2007) 4 SCC 221; Bhaskar Laxman Jadhav v. Karamveer Kakasaheb Wagh Education Society, (2013) 11 SCC 531, are relevant and it provides that any person guilty of suppression and concealment can be thrown out of the litigation at any stage.
31. Even though as per the dictum of the Apex Court in the aforesaid mentioned cases, the revision can be dismissed on this ground alone, however, looking into the controversy, this Court deems it appropriate to examine the other pleas as well.
32. The contention of learned counsel for the revisionist revolves around the fact that the earlier declaratory suit which annulled the Waqf Deed dated 27.03.1934 was only in respect of 17 shops and not the Imambara.
33. According to the learned counsel for the revisionist, the judgment in the declaratory suit dated 30.04.1952 does not create any impediment over the Imambara nor it holds the Imambara to be not a Waqf and it cannot be said to be in violation of the order passed in declaratory suit.
34. In order to examine the aforesaid submissions, it will be relevant to take a note of the plaint of suit no. 19 of 1944 which was filed before the Civil Judge at Bareilly and was decided by the judgment dated 30.04.1952. The plaint has been brought on record by the respondent no. 2 along with his counter affidavit and part of Annexure No. CA-2 at running page 45 to 52 of the counter affidavit.
35. In the plaint, it was categorically stated that the list of properties as attached to the plaint belonged to the father of the plaintiff namely Nawab Mohd. Husain Khan. In paragraph 11 of the plaint, several grounds were taken upon which the Waqf Deeds were sought to be challenged. In paragraph 15, the plaintiff had sought the relief to the effect that it be declared that the properties mentioned in the list attached with the exception of Mauja Harbanshpur @ Lakshmanipur and Munawwar Bagh owned by the plainitff have not been made a Waqf and the provisions of the U.P. Act No. 13 of 1936 do not apply to the entire property mentioned in the list attached.
36. Perusing the list of properties, it would indicate that at serial no. 1, there is a house property which has been described as 17 shops in Qilabazar, Bareilly then there are properties at serial nos. 18 to 25 which have been described as 8 shops which is in the Bazar (market). There is another set of properties which are shown as situated in Harbanshpur, Bareilly @ Lakshmanipur and another set of properties situate at Munawwarbagh.
37. It is not disputed between the parties that the properties, the subject matter of three Waqf Deeds are:-
(i) Waqf Deed dated 27.03.1934 relating to the house properties with 17 shops;
(ii) the Waqf Deed dated 27.03.1934 which is in respect of the properties of Lakshmanipur and Munawar Bagh;
(iii) The properties covered by the Waqf Deed 13.08.1934 was in respect of property situate in Village Hirapur, Safdarzang, Rajanpur, Atkona, Bhedkheda and Kamaria which were all (referred to as the 'village properties in the suit of 1944').
38. The said suit no. 19 of 1944 was contested by the Board and upon exchange of pleadings, the Trial Court had framed 7 issues, however, issues nos. (ii), (iii) and (iv) which were framed are relevant for the present controversy which were:-
"(ii) Whether U.P Act No. 13 of 1936 applies to the Waqf in question;
(iii) Whether the Waqf Deeds dated 27.03.1934 and 13.08.1934 are invalid and void on the ground mentioned in paragraph 11 of the plaint; and
(iv) Whether the Waqf Deeds dated 27.03.1934 and 13.08.1934 were duly executed and acted upon and were they valid."
39. The Trial Court after considering the entire evidence and in context with the grounds of challenge raised by the plaintiff and as mentioned in paragraph 11 of the plaint, the Trial Court recorded the following findings;
(i) It held that the said Waqf Deeds cannot be declared invalid on the ground that the executants were not possessed of mental capacity at the time of execution of the deed.
(ii) It also recorded a finding that the income of the 17 shops was liable to be split on the repairs of the residential house as well as the shops.
(iii) The object of this Waqf Deed (relating to the residential house which is the subject matter of the present controversy) was for the repairs of the residential house as well as the 17 shops :-
40. What is important to note that at the relevant time, the learned counsel for the Board then had raised a submission that there was an Imambara in which the ceremonies in connection with Moharram were performed and from time to time, certain acts of charity were done in the very house itself and, therefore, it should be deemed for charitable purpose.
41. This contention came to be rejected in the following words:-
" I am afraid, this contention is not correct. It cannot be disputed in this case that the house is not the subject matter of Waqf. Whatever, therefore, was described in the body of waqfnama would not mean that any portion of the residential house had been waqfed for any purpose of either performance of Moharram or doing any other charitable acts by the Waqif in this house would not tantamount to creation of waqf in respect of residential house itself. That expenditure at best was on the sweat will of the person who may be residing for the moment in that house. What I mean to say is that the person residing in the house was not bound to observe all those ceremonies or to perform all those acts which the Waqif might has been doing himself. The fact remains that from the very recital which I have mentioned above, the only conclusion that can be drawn is that this waqf was created expressly for the purposes of carrying out repairs of the residential house as well as the repairs of the residential as well as the shops and as such it cannot be held to be a valid waqf and this deed cannot be called a waqf deed and therefore I hold that this deed of 27.03.1937 is not a valid waqf deed."
42. The Trial Court rather held that in the instant case, the entire income of the Waqf property was to be spent over the repairs of the residential house as well as the shops, hence it cannot be said that a Waqf was validly created as the object of the Waqf was neither pious, nor religious nor charitable. The relevant findings of the Trial Court in the judgment dated 30.04.1952 read as under:-
"It is not in dispute that the residential house of Nawab Mohd. Khan was not made the subject matter of waqf. A patta in respect of it was created by him my means of the lease Deed executed on that very date in favour of Smt. Safdari Begam for a period of 45 years. For a waqf to be valid under the Shia Law or for the matter of Mohammedan Law, it is necessary that a dedication should be for any purpose which is recognized by Mohammedan Law as charitable, biased and religious." and then it went on to hold that from the plain reading of the waqf deed in question, it goes on to show that it cannot be said to have been created for either religious, pious or charitable purpose because the repair of the house as well as the shops especially when the residential house was not the subject matter of the waqf cannot be called religious, pious or charitable purpose."
43. Now, after the decision dated 30.04.1952, the Board preferred a First Appeal, though, the revisionist has not filed the copy of the memo of First Appeal, however, the same has been brought on record by the respondent no. 2 as Annexure CA-2 with her counter affidavit.
44. From the perusal of the memo of appeal, it would clearly indicate that in the appeal, the Board had sought the relief to modify the decree of the Trial Court so far as it relates to the applicability of the U.P Act No. 13 of 1936 to the items nos.9 and 10 of the properties are concerned and sought dismissal of the plaintiff's claim in this respect with cost in favour of the appellant throughout.
45. This would clearly indicate that the Board never challenged the finding in so far as the Waqf Deed dated 27.03.1934 relating to the property at serial no. 1 in the list of properties referring to the residential house and 17 shops are concerned. This will also be clear from the bare perusal of the judgment delivered by the High Court in First Appeal No. 287 of 1952 decided on 07.05.1964 and a copy of which has been brought on record as Annexure No. 4 with the revision.
46. A coordinate Bench of this Court noticed that the defendant's first appeal was in respect of the properties of Munawar Bagh and Village Lakshmanipur which related to the properties described at Serial Nos. 9 and 10 with the list of properties annexed with the plaint.
47. The High Court while allowing the appeal by means of its judgment dated 07.05.1964 held as under:
"The Appeal is therefore allowed with cost and the decree of the court below is modified only to the extent that the declaration as regards the non-applicability of the Act 13 of 1936 to the Waqf in respect of Munawar Bagh and Village Lakshmanipur is set aside and the suit is dismissed in this regard."
48. In the aforesaid background, this Court court clearly finds that the Trial Court did not find the object of the Waqf relating to the residential property as pious, religious or charitable and held that the Waqf was not valid. This was never challenged in the First Appeal by the Board and, therefore, the said findings became final.
49. The necessary corollary is that the Board directly or indirectly is prevented from raising the same issue. Once the Board was aware of the aforesaid fact and it was in notice of the aforesaid judgment and decree, in such circumstances, it was not open for the Board to have taken a contrary plea which cannot be countenanced.
50. In so far as the contention of the learned counsel for the Mutawalli is concerned, the father of the respondent no. 2 himself treated the said property as Waqf, the same is based on one single document which has been filed by the respondent no. 5 along with counter affidavit as CA-1. The same appears to be some sort of permission granted by the Executive Authorities for taking out the Moharram procession, however, the order allegedly is undated. Moreover it does not refer to any property and merely because the name of the father of the respondent no. 2 is mentioned and he is described as Mutawalli of Waqf Nawab Mohammad Hussain Khan does not indicate or can give rise to any inference that the property in question (specifically which was held to be Non-Waqf in the year 1952) has been treated as Waqf property and in absence of any judicial order contrary to the order dated 30.04.1952, hence, that sole document pales into insignificance as it has no basis nor could it be connected to the property which is subject matter of this revision.
51. Another reason for discarding the said document is that certain other properties of Mohd. Hussain Khan was part of the Waqf. It may be that the said permission may relate to the other properties which were held to be Waqf. Thus, the said submission of the learned counsel for the respondent no. 5 is misconceived.
52. As far as his contention relating to the applicability of notice under Section 83 (2) is concerned, suffice to state that the facts of the case in Waqf Qabristan, Unnao (Supra) are quite different from the facts of the instant case, hence, it has no applicability, as there is no issue of Section 6 and Section 7 of the Waqf Act is involved in the instant case, accordingly, the said decision in Waqf Kabristan (supra) does not come to the aid of the respondent no. 5.
53. Thus, it would be seen that in so far as the Waqf Deed dated 27.03.1934 relating to the residential house and 17 shops is concerned, it was never treated as a Waqf and it did not belong to the Waqf.
54. Now after noticing the background in detail, if the order dated 20.01.2015 passed by the Board is seen, it would indicate that it was clearly impermissible for the Board to have appointed a Mutawalli in respect of the Waqf in question when as way back as in 1952 it was held that it was not a valid Waqf and the said finding had attained finality once the first appeal preferred by the Board was decided on 07.05.1964.
55. The Waqf Tribunal while trying the reference specifically found that it was not open for the Board to have passed any resolution for appointing a Mutawalli as it had no right to do so.
56. Once, the order had already been implemented and in the Waqf register an endorsement of deleting the said property had been made then in absence of any judicial order, it was not open for the Board to have introduced the said property and treat it again as a Waqf property and any consequential order appointing a Mutawalli was void-ab-initio. This finding and the reasoning of the Waqf Tribunal cannot be faulted.
57. In so far as the subsequent orders passed by the Board and the Executive Authorities is concerned, the same is under challenge in Writ- C No. 42856 of 2024 (Huma Zaidi Vs. U.P. Shia Central Board of Waqf and 7 Others), before a Division bench of this Court and it is not appropriate for this court to enter into the said arena, nor the said orders are under challenge in this revision and the only issue before this Court is regarding the validity of the reference order passed by the Waqf Tribunal.
58. As already noticed above, the findings recorded by the Tribunal on the basis of the material on record cannot be faulted and moreover, the conduct of the revisionist indulging in suppression of material facts relating to the writ petition filed at Allahabad, including an interim order granted by a Division Bench of this Court, cannot be appreciated.
59. For all the aforesaid reasons, this Court finds that the revision sans merit and is accordingly dismissed with a cost of Rs. 15,000/- to be deposited with the State Legal Services Authority within a period of two weeks from the date of pronouncement of the judgment.
Order Date :- 30th May, 2025
Asheesh/-
(Jaspreet Singh, J.)
