Allahabad High Court
Mohd. Rehan vs Nawab Khushro Irshad And Others on 4 May, 2022
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 19.04.2022 Delivered on 04.05.2022 Court No. - 10 Case :- WRIT - A No. - 42413 of 2008 Petitioner :- Mohd. Rehan Respondent :- Nawab Khushro Irshad And Others Counsel for Petitioner :- B.N. Agrawal,Iqbal Ahmad,Sanjay Agrawal Counsel for Respondent :- ,D.K. Srivastava,H.K. Singh,P.K. Srivastava,Pramod Bhardwaj,Pramod Jain,Ram Prakash Srivastava,Vinay Kumar Upadhyay Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Iqbal Ahmad, learned counsel for the petitioner and Sri Pramod Jain, learned Senior Counsel assisted by Sri R.P. Srivastava, learned counsel for the respondents.
2. This writ petition under Article 226 of Constitution of India has been filed by tenant-petitioner assailing the order dated 19.07.2008 passed by Additional District Judge, Court No. 13, Meerut in Misc. Appeal No. 18 of 2008 and order dated 07.11.2009 passed by lower appellate court on the two questions framed and remitted by this Court on 04.09.2009.
3. Facts in brief, are that respondent no. 1, Nawab Khushro Irshad (deceased) filed a release application no. 31 of 2006 under Section 21 (1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 also known as U.P. Act No. 13 of 1972 for releasing the accommodation in possession of the tenant-petitioner situated at Kothi Jahanuma, Khairnagar, Meerut. The release application was rejected by the prescribed authority on 25.01.2008. Against which the landlords-respondents filed a Misc. Appeal No. 18 of 2008 which was allowed by judgment and order dated 19.07.2008. Against the said order, the tenant-petitioner preferred the present writ petition, wherein for the first time plea was raised by the petitioner that property in question is waqf-allal-aulad and thus in view of Section 2 (bbb) the property in question is exempted from the operation of U.P. Act No. 13 of 1972. This Court on 04.09.2009 framed two questions that is "1. Whether the deed of Wakf annexed with the supplementary affidavit was ever acted upon or not? 2. Whether in view of Wakf deed, Act No. 13 of 1972 is applicable or not?" The lower appellate court was required to record finding as to the fact whether the waqf deed was acted upon or not and whether the provisions of Act No. 13 of 1972 was applicable or not. Pursuant to remand by this Court on the above two questions so framed, both the parties appeared before the court concerned and filed their respective objections. The lower appellate court vide order dated 07.11.2009 after dealing with the issue in depth recorded a finding that the waqf deed as claimed by the tenant-petitioner dated 20.12.1934 was never acted upon and thus the provisions of U.P. Act No. 13 of 1972 are not exempted from the operation on the premises in question.
4. Sri Iqbal Ahmad, learned counsel appearing for the petitioner submitted that the court below had wrongly recorded finding that waqf deed was not acted upon though the copy of the waqf deed dated 20.12.1934 along with the assessment register of the Nagarpalika, Meerut was filed to show that premises in dispute is a waqf property but the finding has been recorded against the material on record.
5. He further submitted that once the waqf is created neither the wakif nor the mutwalli had the authority to transfer the said property. According to him, once a waqf is created it continues to retain such character which cannot be extinguished by any Act of the mutwalli or any one. He then contended that whether a waqf is registered or not under the relevant provisions of the statute, would not effect nature of waqf once it is created. Reliance has been placed upon decision of co-ordinate Bench of this Court in case of Haji Ehsan Elahi vs. Additional District Judge and another, 2013 (2) ADJ 126, relevant para 16 is extracted hereasunder:-
"16. The above discussion clearly shows that registration or no registration of a waqf under the provisions of relevant statute applicable from time to time would not affect nature of waqf once created since property in waqf once created shall always remain waqf property and it cannot cease its nature merely on the ground that it was not registered under the waqf Act applicable at the relevant time. Further the property of a waqf cannot be sold out by a Mutwalli inasmuch as no such power is vested in him."
6. Reliance has also been placed upon a Division Bench judgment of this Court in case of Mohakma- Alia Islami Ek- Anna Fund, Model Houses, Lucknow vs. The Controller, U.P. Sunni Central Board of Waqfs and others, 1984 (2) LCD 133, relevant para 6.
7. Reliance has also been placed upon a decision of Division Bench of this Court in case of Anjuman Islamia through Zahur Uddin vs. Latafat Ali and others, AIR 1950 Allahabad 109. Relevant paras 13 and 14 are extracted hereasunder:-
"13.The learned Civil Judge misapplied the law to the facts found by him and he fell into this error by the wrong pleadings. Whether the waqf was acted upon or not, was not a matter of pleading. If a waqf, valid at its inception, could not become invalid on account of its not being acted upon, the question whether if was acted upon or not would be irrelevant so far as the question of its validity was concerned. If the case of the defendants was that there was no valid waqfbrought into being at all because there was no intention in the mind of Wilait Ali to execute any waqf, that was a matter to be specifically pleaded, and whether the waqf was acted upon or not would be only a piece of evidence to prove whether the intention existed or not. As matters of evidence are prohibited from being put down in pleadings, the allegation that the waqf was not acted upon should not have found place in the written statements. But, even if it did, the learned Civil Judge should not have framed an issue about it. If he had taken the correct view of the law and framed proper issues, he might have come to a different finding from that arrived at by him. As it is, he has not paid sufficient attention to the question of intention at the time of the execution of the waqf.
14. There is absolutely no evidence about the intention existing in the mind of Wilait Ali at the time of the execution of the waqf, except what is furnished by the deed itself. According to that deed the intention was to create a waqf. It was followed up by a declaration that he had dedicated the property to GOD and divested himself of its ownership and that he would remain mutwalli and manager of it for his whole life. He also mentioned that the property had already been dedicated by his parents who, however, did not execute any deed and directed him to execute it. There can be no doubt from a reading of the deed that Wilait Ali had an intention of creating waqf. The essentials of a waqf, as far as this Court is concerned, are a declaration of endowment and delivery of possession to the mutwali [see Mohammad Imdadullah v. Bismillah, AIR (33) 1946 ALL. 468 1 (227 I.C. 60) the waqf deed contains the declaration of endowment. It also contains the statement that he would be the first mutwali and remain so for his lifetime. This statement amounts to a statement that he had divested himself of the possession as private owner and taken over possession as mutwali; vide Alimunnissa Bibi v. Mohammad Abdul Rahman, AIR (25) 1938 ALL. 485: (1771 I.C. 205). The fact that he, as mutwali, got rent notes executed by six tenants in respect of the shops immediately after the execution of the waqf shows that he had delivered possession to himself as mutwalli. Consequently a valid waqf came in to being in January, 1917. After that it was in the power of nobody to divest God of his ownership of the property."
8. Reliance has also been placed upon decision of the Apex Court in case of Chhedi Lal Mishra vs. Civil Judge, Lucknow and others, 2007 (3) ADJ 83 (SC) and U.P. Sunni Central Board of Waqfs vs. Mazhar Hasan and others, 2001 Allahabad Civil Journal 1530.
9. Lastly, he contended that copy of waqf register of U.P. Waqf Board could not be filed before the court below but all the other evidences were filed.
10. Sri Pramod Jain, learned Senior Counsel appearing for the landlord submitted that in the written statement filed by the tenant, the factum of tenancy was accepted and, nowhere it was stated before the courts below that the Act No. 13 of 1972 was not applicable and the premises in question was exempted in view of Section 2 (bbb) of the Act. It was for the first time before this Court that a new fact was introduced that premises in question is a waqf property and the proceedings for release of the premises under the Act No. 13 of 1972 was not maintainable. He has relied upon decision of co-ordinate Bench of this Court in case of Ashok Srivstava vs. Sri Chandra Narain Misra, 2017 (3) ARC 173 wherein this Court had held that plea relating to non-applicability of a particular Act was not acceptable when this plea was not raised by the tenant either in any pleading or argument before the court below.
11. Sri Jain then contended that tenant had admitted the respondent no. 1 as his landlord in his written statement and thus admission once made cannot be resiled from, and the said fact which has been admitted need not to be proved in view of Sections 17, 21 and 58 of the Evidence Act, 1872.
12. Reliance has been placed upon a decision of co-ordinate Bench of this Court in case of Hub Lal Singh (D) rep. By L.Rs. and another vs. Sheo Balak Singh and others, Second Appeal No. 196 of 2010, decided on 25.04.2013. Relevant paras 18, 19 and 20 are extracted hereasunder:-
"18. 'Admission' is defined in Section 17 of Act, 1872. It reads as under:
"17. Admission defined.- An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned."
19. The kind of circumstances in which "admissions" are made and are to be treated as "admissions" are provided in Section 18 to 20. Section 21 provides that the admissions are relevant and may be proved as against the person who makes them or his representative in interest but they cannot be proved by or on behalf of person who makes them or by his representative in interest, except in the cases provided in Clauses (1) (2) and (3) of Section 21. Section 21 of Act, 1872 reads as under:
"21. Proof of admissions against persons making them, and by or on their behalf.- Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:-
(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32.
(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.
(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission."
20. A party's admission, as defined in Section 17 of Act, 1872 fulfilling the requirement of Section 21 of Act, 1872 is a substantive evidence, proprio vigore. An 'admission', if clearly and unequivocally made, is the best evidence and though not conclusive, shifts the onus on to the maker. "
13. He lastly contended that post remand the court below has decided the issue and had recorded a categorical finding that waqf was never registered with the Waqf Board and was not acted upon. Further, the description of the property as claimed by the petitioner in the waqf deed and the premises did not match and thus the court below rightly held it to be not a waqf property and thus Act No. 13 of 1972 was applicable.
14. I have heard learned counsel for the parties and perused the material on record.
15. It is not in dispute that till the matter travelled to this Court, there was no dispute between the parties in regard to relationship of landlord and tenant. It was for the first time before this Court that tenant-petitioner through a supplementary affidavit came up with a case that the premises in question was a waqf property and thus in view of Section 2 (bbb), the provisions of the Act No. 13 of 1972 was not applicable. This Court on 04.09.2009 while framing two questions remitted the same to be decided by the lower appellate court. Both the parties appeared before the court below and filed their respective objections and the documents to be relied upon. Vide order dated 07.11.2009, the court below had recorded categorical finding that that waqf deed was never acted upon and thus the provisions of the Act No. 13 of 1972 was applicable and the premises was not exempted in view of Section 2 (bbb) of the Act.
16. The question which arises for consideration is whether under Article 226 of the Constitution once the finding has been recorded post remand by this Court on the questions framed, whether this Court can interfere with the finding recorded by the court below. On this aspect learned counsel for the petitioner could not make much submission and only submitted that finding recorded by the lower appellate court was against the material on record.
17. The Apex Court in case of Radhey Shyam and another vs. Chhabi Nath and others, (2015) 5 SCC 423 had held that judgments and orders arising from the civil court/tribunal are not amenable under Article 226 of Constitution of India. Relevant paras 27, 28 and 29 are extracted hereasunder:-
"27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.
28. We may also deal with the submission made on behalf of the respondent that the view in Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675 stands approved by larger Benches in Shail vs Manoj Kumar, (2004) 4 SCC 785, Mahendra Saree Emporium (2) vs. G.V. Srinivasa Murthy, (2005) 1 SCC 481 and Salem Advocate Bar Association (2) vs. Union of India, (2005) 6 SCC 344 and on that ground correctness of the said view cannot be gone into by this Bench. In Shail (supra), though reference has been made to Surya Dev Rai (supra), the same is only for the purpose of scope of power under Article 227 as is clear from para 3 of the said judgment. There is no discussion on the issue of maintainability of a petition under Article 226. In Mahendra Saree Emporium (2) (supra), reference to Surya Dev Rai (supra) is made in para 9 of the judgment only for the proposition that no subordinate legislation can whittle down the jurisdiction conferred by the Constitution. Similarly, in Salem Advocate Bar Association (2) in para 40, reference to Surya Dev Rai (supra) is for the same purpose. We are, thus, unable to accept the submission of the learned counsel for the respondent.
29. Accordingly, we answer the question referred as follows:-
29.1. Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution.
29.2. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226.
29.3. Contrary view in Surya Dev Rai (supra) is overruled."
18. This Court finds that the tenant-petitioner was granted an opportunity by this Court by framing two question as to whether, "the deed of Wakq annexed in the supplementary affidavit was ever acted upon or not and whether in view of Wakq deed, Act No. 13 of 1972 is applicable or not" which has been dealt in extenso by lower appellate court wherein a finding has been recorded that the waqf deed was never registered and there is no entry in the waqf register as to the waqf and moreover the description of the property given in the waqf deed does not match with the premises in question and thus it was held that waqf deed was never acted upon.
19. Reliance placed by the petitioner counsel on various decisions is not applicable in the present case as the dispute in the present case is to the very existence of the waqf deed. It is no doubt correct that waqf once created remains a waqf but the waqf as claimed by the petitioner to have been created by Bibi Nazir Begum never came into existence and was not acted upon.
20. The co-ordinate Bench of this Court in case of Ram Prakash Gupta vs. 1st Additional District Judge, Badaun and others, 1990 (1) ARC 435, while dealing with the scope of interference with regard to finding recorded by appellate authority held that finding of fact cannot be interfered by this Court in writ jurisdiction under Article 226 of Constitution of India. The Court further held that while exercising jurisdiction under the said provision, it is not exercising appellate power, but is exercising supervisory power as held by Apex Court in case of Muni Lal and others vs. Prescribed Authority and others, AIR 1978 SC 29. Relevant para 14 is extracted hereasunder:-
"14. Applying the ration of the above mentioned case that landlord, who desires to live independently and set up his business, has a valid right to do the same. He cannot be compelled to live on the earnings of his sons if he is physically fit to run the business. In the instant case nothing has been shown by the petitioner that the landlord was suffering from any ailment or was unable to start his own business. The finding recorded by the Appellate Authority that need of the landlord was bona fide and genuine, and greater hardship would be caused to the landlord in case the shop was not released, suffers from no error apparent on the face of the record. Both the findings are findings of the fact and cannot be interfered with by this Court in writ jurisdiction under Article 226 of the Constitution. This Court while exercising powers under this provision is not exercising appellate powers but is exercising supervisory power only as held by the Supreme Court in AIR 1978 SC 29 : 1981 ARC 470 (SC), Muni Lal and others v. Prescribed Authority and others."
21. Recently in Surendra Singh vs. Additional District Judge, Court No. 11, Muzaffarnagar and 4 others, 2019 (3) ARC 221, the co-ordinate Bench held that an order to be amenable to correction in certiorari jurisdiction, the error committed by the Court or Authority on whose judgment this Court is exercising jurisdiction, should be an error which is self-evident. The Court further noticed that an error which needs to be established by lengthy and complicated arguments or by indulging into a long- drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. The Court further held that High Court exercising supervisory jurisdiction cannot indulge into re-appreciation or revaluation of evidence or correcting the errors in drawing inferences like a court of appeal.
22. The finding returned by court below cannot be interfered by this Court exercising jurisdiction under Article 226 of Constitution of India as it is a finding of fact.
23. Moreover, the tenant has made an admission in his written statement as to the status of the contesting respondents that he is the landlord and also to the fact that the Act No. 13 of 1972 was applicable. Once the admission to the said fact is there, the onus was upon the tenant to have proved by evidence to show that the premises in question was part of waqf property. Once opportunity was granted by this Court on 04.09.2009, but having failed to prove that the waqf alleged to have been created by Bibi Nazir Begum on 20.12.1934 and the same having not been acted upon, this Court declines to interfere in the finding of fact recorded by the lower appellate court.
24. The submission that lower appellate court had not considered the evidences filed by the tenant is totally against the material on record as from the judgment itself it is clear that lower appellate court has appreciated and taken into consideration all the material which was brought before it and finding has been recorded. Pursuant to decision of the Apex Court in case of Radhey Shyam (supra), the petitioner did not convert his writ petition from Article 226 to Article 227 of the Constitution while assailing the finding returned by lower appellate court dated 07.11.2009. The question thus raised stands answered.
25. This Court under this extraordinary jurisdiction cannot re-appreciate the finding recorded by the court below. No interference is required under Article 226 of the Constitution of India.
26. Writ petition fails and is hereby dismissed.
Order Date :- 04.05.2022 V.S.Singh