Allahabad High Court
Zameel Ahmad Naziri vs U.P. Waqf Tribunal Lucknow Thru Its ... on 22 October, 2019
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved Court No. - 9 Case :- CIVIL REVISION No. - 221 of 2017 Revisionist :- Zameel Ahmad Naziri Opposite Party :- U.P. Waqf Tribunal Lucknow Thru Its Chairman And 6 Ors. Counsel for Revisionist :- Brajesh Kumar Dwivedi,Kunal Ravi Singh,Manjari Singh Counsel for Opposite Party :- Mahboob Ahmad,Amit Kumar Srivastava,Punit Kumar Gupta Hon'ble Anjani Kumar Mishra,J.
Heard Shri Kunal Ravi Singh, learned counsel for the revisionist and Shri Mahmoob Ahmad, learned counsel for the respondent no. 6, the Committee of Management of Waqf No. 2443, Azamgarh.
The revision is directed against the order dated 13.01.2016 passed by the Waqf Board removing the revisionist from the post of de-facto mutawalli, the consequential office memorandum, whereby a five member committee has been appointed to manage the affairs of the Waqf and the order dated 16.06.2017, whereby the orders aforesaid have been affirmed upon dismissal of the revisionist's appeal.
Facts of the case, as also narrated in the impugned order passed by the Waqf Tribunal are that seven persons purchased plot no. 1218 having a area of 523 links in Village Newada, Post Amilo, District Azamgarh through a registered sale deed dated 11.10.1982 for construction of a Jama Masjid. These seven purchasers became joint mutawallis.
The seven joint mutawallis in a meeting appointed the revisionist as mutawalli for construction, supervision and management of the Jama Masjid. The revisionist was also authorized to nominate his successor. The seven original mutawallis were competent to appoint another mutawalli on the death of the revisionist. This was reduced to writing, on 17.07.1983 and in pursuance thereof, an authority letter dated 01.10.1985 was prepared, duly signed by the seven joint mutawallis.
It is stated that meetings were held on 17.07.1983, 01.10.1985 and 26.03.1995 in pursuance of decisions taken therein, the revisionist, as Mutawalli, applied for registration of the Waqf, which was then registered as Waqf No. 2443, Azamgarh. The revisionist was recognized as mutawalli for period of three years. This term was extended for another period of three years with effect from 25.05.1998 i.e. till 24.05.2001.
A renewal/extension application was filed by the revisionist, which is stated to be pending consideration even today not having been disposed of finally by the Board.
It appears that on an application filed by opposite party no. 6 on 01.08.2015, an enquiry was ordered. The enquiry report dated 10.08.2015 was filed, wherein it was proposed to replace the revisionist whose term had not been extended beyond 24.05.2001, by a five member of committee.
The revisionist filed an application requesting for a nor partisan fresh enquiry on 25.08.2015, whereupon an order of status quo was passed and a fresh enquiry report was called for.
Ultimately, a show cause notice was issued to the revisionist on 14.10.2015. After hearing the parties, the order dated 13.01.2016 was passed, removing the revisionist from the post of de-facto mutawalli and appointing a five member of committee to manage the affairs of the Waqf. In pursuance of the said order, an office memorandum was issued on 19.01.2016.
Aggrieved by the above, the revisionist approached the Waqf Tribunal by means of an appeal, which has been dismissed. Hence this revision challenging the aforesaid orders.
Assailing the impugned orders, the contention of counsel for the revisionist is that the notice issued to him was one under Section 64 of the Waqf Act treating him to be a de-facto mutawalli. Since the proceedings were under Section 64 of the Waqf Act, in accordance with the provisions of sub-section 3 of Section 6, the order of his removal could have been passed only by a 2/3rd majority of the members of the Board. On the contrary, it has been passed by a mere six members. Therefore, the order of removal passed against the revisionist is patently illegal. It is illegal also because there is material on record to show that the revisionist was appointed as mutawalli for life and merely because the Waqf Board recognized him as mutawalli for three years, the same will not whittle down the right of the revisionist.
Elaborating further, it has been submitted that the Waqf Board consists of eleven members, under the amended Section 14 of the Waqf Act. Sub-section 3 of Section 64 provides that no order removing a Mutawalli shall be passed under Section 64(1) except by a 2/3rd majority of the Board. Therefore, the order was required to be passed by eight members of the Board, to be a valid and binding order. This argument has been glossed over by the Waqf Tribunal by carving out a new case that the provisions contained in sub-section 3 of Section 64 were not attracted as the revisionist was not a mutawalli, his term, as such, having expired in the year 2001.
It has been reiterated that the revisionist was appointed as mutawalli for life and merely because at the time of registration of the Waqf, the term of revisionist's appointment was mentioned as three years, it could not curtail his life time appointment as mutawalli.
It is next submitted that in the show cause notice issued to the revisionist under Section 64(1) of the Waqf Act, one of the charges revelled was that the revisionist has constructed Madarsa over the land belonging to the Masjid and the Waqf.
The Madarsa exists over plot no. 1219 and not over plot no. 1218 purchased for the construction of the Madarsa. It is contended that this aspect was specifically pleaded before the Tribunal but has not been considered. It is therefore, the case of the revisionist that the Madarsa and Masjid are two distinct and separate entities.
It has also been stated that the impugned order of the Board has been passed also on the ground that the revisionist is a salaried employee of the Madarsa, which is factually incorrect. The Madarsa is managed by a Committee of Management, with which the revisionist has no concern.
Shri Mahbood Ahmad appearing for the Committee of Management appointed by the impugned order of the Waqf Board, has submitted that the revisionist claims to be a de-facto mutawalli. This claim is untenable because some duties are required to be performed by a person to acquire the status of mutawalli. A person claiming to be mutawalli must act as per the provisions contained in Section 50 of the Waqf Act read with Section 46 and 47 thereof, failing which his status would be of a mere unauthorized occupier. The argument therefore is that since the revisionist did not submit yearly accounts to the Board, nor he got any audit done, he cannot claim to be a Mutawalli or de-facto Mutawalli.
He has also submitted that Section 3(1), permits a person to manage the affairs of a Waqf for the time being. The Tribunal has rightly held that the benefit of sub-section 3 of Section 64 could not be extended to the revisionist as the revisionist failed to discharge the duties of a Mutawalli.
It has lastly been submitted that the plea that only a few person were opposing the revisionist, has not been raised earlier either before the Board or the Waqf Tribunal.
In rejoinder, counsel for the revisionist has submitted that the plea in the counter affidavit that the seven initial mutawallis did not possess the power to appointing another mutawalli, namely the revisionist is incorrect. The seven mutawallis definitely possessed this power. Besides, any person managing affairs of the Waqf is covered by the definition of the mutawalli under Section 3(1) of the Act. Since the revisionist was looking after the affairs of the Waqf, hence the show cause notice was issued under sub-section 1 of Section 64 referring to him as the de-facto mutawalli. Under the circumstances, it is not open for the respondent to claim or plead to the contrary.
I have considered the submissions made by counsel for the parties and perused the record.
The show cause notice issued to the revisionist, (Annexure 19 in the revision) called upon him to show cause as regards seven points mentioned therein. In brief the charges to which the revisionist was required to show cause were that a Madarsa had been constructed over the land purchased for Masjid and the Masjid had been constructed on the first floor; that a Madarsa had been established without permission of the Board; that the land of the Masjid and Madarsa had been treated as one and that there was only a single rasta to approach both of them; the ground floor of the Masjid was not let out on rent, leading to loss of income to the Waqf; that after 1998 no audit was conducted from 1999 to 2015 and that the income of the Waqf had not been disclosed; that Anwar Sadat was prepared to donate five lacs because the roof of the Masjid was not being cast, citing paucity of funds and since the roof was not cast he donated only Rs. 97,000/-.
Perusal of the order passed by the Sunni Central Waqf Board reveals that the revisionist has been removed from the post of de-facto mutawalli on the ground that the reply to the show cause notice was not satisfactory and that no evidence was filed by the revisionist to show that the Waqf was being managed properly; that a Madarsa had been constructed over the land belonging to the Masjid without prior permission of the Board and because the revisionist is a paid employee of the Madarsa and also because the southern-west portion of the land had not been constructed upon and rooms on the ground floor were not let out on rent and that the audit for a period of 17 years from 1999 to 2015 was done in one go.
There is material on record to indicate that the revisionist was appointed as a life time mutawalli. The Tribunal has categorically noticed the documents in this regard, which had been filed before it. The allegation of the opposite parties before the Tribunal was that these documents are forged. However, neither the Waqf Board nor the Waqf Tribunal has recorded any categorical finding in this regard, nor given any reasons for discarding these documents.
Although, the show cause notice as also the impugned order passed by the Board are to the effect that the Madarsa was constructed over land purchased for the construction of the Masjid, there is no consideration of the reply given by the revisionist to the show cause notice, categorically stating that the Madarsa and the Masjid existed on separate and distinct plots and that the Madarsa had not been constructed over the land purchased for the Masjid and the Waqf.
Moreover, this Court upon a perusal of the counter and supplementary counter affidavits filed on behalf of respondent no. 6, prima facie feels that this assertion of the revisionist is in fact admitted by the respondent because it has been stated that the Madarsa was constructed out of the donations received for the construction of the Masjid as the revisionist had no independent source of income.
This assertion of the respondents, prima facie, leads to a conclusion that the revisionist is not a salaried employee as has been held in the impugned order. It cannot be alleged that a salaried person is a person having no source of income.
In view of this assertion made by the contesting respondents and since no definitive findings have been returned with regard to the above, the impugned orders are found to be unsustainable.
From the perusal of the order passed by the Board, it is clear that the order has been passed exercising the powers conferred by Section 64 of the Waqf Act. In fact, the order of the Board specifically mentions Section 64. This was so because the revisionist was found to be functioning as Mutawalli.
Section 3(i) of the Waqf Act, which defines a Mutawalli reads as follows:-
"(i) "mutawalli" means any person appointed, either verbally or under any deed or instrument by which a waqf has been created, or by a competent authority, to be the mutawalli of a waqf and includes any person who is a mutawalli of a waqf by virtue of any custom or who is a naib-mutawalli, khandim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being, managing or administering any waqf or waqf property:
Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office-bearer of such committee or corporation:"
Thus, the seven admitted Mutawallis were competent to have appointed the revisionist to discharge the duties of a Mutawalli. There is no dispute that the revisionist functioned as such till 2001. He did get the accounts of the Waqf audited in 2015 and also deposited the money required to be deposited with the Board.
Under the circumstances, the Tribunal was not justified in holding that the provisions of Section 64 were not applicable to the revisionist, who was functioning as Mutawalli and in doing so, the Tribunal has carved out a new case, which it could not have done. This again vitiates the order of the Waqf Tribunal.
For the same reason the arguments of Shri Mahboob Ahmad that the revisionist was not a Mutawalli or de-facto Mutawalli do not appeal to this Court. Once, the proceedings drawn against the revisionist were under Section 64 of the Waqf Act treating him to be a de-facto mutawalli, the order of his removal could have been passed only by a 2/3rd majority of the Waqf Board, as mandatorily required.
This has not been done because the Waqf Board as per the amended Section 14, comprises of eleven members. 2/3rds' of eleven members would be eight members. The order of Waqf Board has been passed by six members alone.
Although, the impugned order of the Waqf Board has been passed on the ground that the audit for the period from 1999 to 2015 was done in one go and not yearly, as required, it emerges from the record that a show cause notice in this regard was issued to the auditor. Nothing has been stated as to the out-come of this show cause notice and as to why the auditor audited the accounts of the Waqf from 1999 to 2015 in the year 2015, in case, the same was not legally permissible.
There is yet another aspect of the matter. Admittedly, revisionist's application for renewal of his mutawalliship has not been disposed of by the Board since the year 2002. The Board has not given any explanation for the same in its order of 2013.
In view of the above, this Court finds that two crucial aspects have not been dealt with in the orders impugned. First, the claim of the revisionist that he was a lifetime Mutawalli, which claim was supported by documentary evidence, has not been dealt with. No reasons have been assigned for not relying upon the said documentary evidence. Secondly the defence that the Madarsa existed on a plot, separate from the plot, purchased for constructing the Masjid has also not been adverted to by the Board and the Waqf Tribunal.
Under the circumstances and in view of the foregoing, the impugned orders are not liable to be sustained. The revision is accordingly allowed. The impugned orders dated 13.01.2016 and 16.06.2017, are hereby set-aside.
The Waqf Board is directed to pass appropriate orders on the application for extension of the revisionist's appointment as mutawalli, which application is admittedly pending before it. While considering this application the Board shall necessarily deal with the contention of the revisionist that he had been appointed Mutawalli for life, of the Waqf in question as evidenced from the documents filed on record of this revision as also before the Waqf Tribunal.
Order Date :- 22.10.2019 Mayank