Patna High Court - Orders
Mirza Akhtar Hussain vs The Bihar State Shia Waqf Board, Patna on 30 January, 2025
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.152 of 2023
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1. Mirza Akhtar Hussain Son of Late Quaisar Hussain Resident of Ram Autar
Prasad khatri path Deewan Mohalla, Gurhatta Hamam P.S. Khajekalan,
Patna City, District- Patna.
2. Safdar Abbass Son of Mirza Akhtar Hussain Resident of Ram Autar Prasad
khatri path Deewan Mohalla, Gurhatta Hamam P.S. Khajekalan, Patna City,
District- Patna.
3. Suhail Abbas Son of Mirza Akhtar Hussain Resident of Ram Autar Prasad
khatri path Deewan Mohalla, Gurhatta Hamam P.S. Khajekalan, Patna City,
District- Patna.
4. Nazre Abbas @ Bunty Son of Mirza Akhtar Hussain Resident of Ram Autar
Prasad khatri path Deewan Mohalla, Gurhatta Hamam P.S. Khajekalan,
Patna City, District- Patna.
5. Chhoti Begum D/o Late Quaisar Hussain Resident of Ram Autar Prasad
khatri path Deewan Mohalla, Gurhatta Hamam P.S. Khajekalan, Patna City,
District- Patna.
6. Munauwar Hussain Son of late Quaiser Hussain Resident of Ram Autar
Prasad khatri path Deewan Mohalla, Gurhatta Hamam P.S. Khajekalan,
Patna City, District- Patna.
7. Shahzada Hussain Late Quaiser Hussain Resident of Ram Autar Prasad
khatri path Deewan Mohalla, Gurhatta Hamam P.S. Khajekalan, Patna City,
District- Patna.
... ... Petitioner/s
Versus
1. The Bihar State Shia Waqf Board, Patna Through the Chief Executive
Officer, Bihar State Shia Waqf Board, 2nd Floor Haj Bhawan, 34 Ali Imam
Path (Harding Road), P.S.- Sachivalaya, District- Patna.
2. The Chief Executive Officer, Bihar State Shia Waqf Board, 2nd Floor, Haj
Bhawan, 34 Ali Imam Path (Harding Road), P.S.- Sachivalaya, District-
Patna.
3. Mirza Haider Ali @ Vicky, s/o Late Mirza Sulaiman Haidar, Resident of
Mugalpura Fauzdari Khan, P.S.- Khajekalan, District- Patna.
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Syed Qaiser Hassan, Advocate
Mr. Arshad Alam, Advocate
For the O.P. No. 1&2 : Mr. Md. Anjum Akhter, Advocate
For the O.P. No. 3 : Mr. Md. Shamimul Hoda, Advocate
Mr. Anuj Kumar Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV ORDER
Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025
2/24
8 30-01-2025Heard Mr. Syed Qaiser Hassan, learned counsel for the petitioners, Mr. Md Anjum Akhter, learned counsel for the opposite party no. 1 & 2 and Mr. Shamimul Hooda, learned counsel for the opposite party no. 3.
2. This Civil Revision Application has been filed to question the judgment and order dated 10.11.2023 passed by Bihar State Waqf Tribunal (hereinafter referred to as 'Tribunal') in Eviction Application No. 24 of 2020 whereby, eviction application filed by Chief Executive Officer, Bihar State Shia Waqf Board for declaring opposite parties (petitioners) as encroacher over the Waqf property, in question, has been allowed by learned Tribunal.
3. The aforesaid eviction application was filed in pursuance of order dated 29.08.2019 passed by the Chief Executive Officer, Bihar State Shia Waqf Board, Patna under Section 54 of the Waqf Act, 1995 (Amendment Act, 2013) for removal/eviction of opposite parties from Waqf property and they have been declared encroacher by the Waqf Board of the premises of Mirza Wazir Hussain Waqf Estate, Waqf No. 230/Patna.
4. The case of the Waqf Board is that, opposite Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 3/24 party no. 3 informed the Chief Executive Officer that opposite parties (petitioners) have illegally encroached the Waqf property of the aforesaid Waqf Estate. Upon this information, the applicant sent notice in form 52 to the opposite parties (petitioners) asking them to furnish their explanation as to why an order for removal of encroachment should not be passed against them. After receiving of the said notice, petitioner no. 1 namely, Mirza Akhtar Hussain has filed reply to show cause wherein, he himself claimed to be Mutawalli of the said Waqf Estate. It is further contended that the said Waqf Estate was created by his maternal great grandfather namely, Mirza Wazir Hussain and after its creation, he himself was appointed as Mutawalli of the said Waqf Estate. During his lifetime, Mirza Wazir Hussain had nominated/appointed his son, Mirza Sattar Hussain as Mutawalli on 04.01.1944 thereafter, Mirza Sattar Hussain had nominated/appointed his son in- law, Quaiser Hussain as Mutawalli on 08.12.1962 and Quaiser Hussain nominated/appointed Mirza Akhtar Hussain (petitioner no. 1) as Mutawalli on 12.10.1982 and since then he is discharging his duty and he has also Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 4/24 questioned the appointment of Mirza Haider Ali as Mutawalli of Mirza Wazir Hussain Waqf Estate. Petitioner no. 2 to 7 (petitioner no. 2 to 4 are sons of petitioner no. 1 and petitioner no. 5 to 7 are daughters and sons of late Quasir Hussain respectively) also filed their reply to show cause and adopted the reply filed by Mirza Akhtar Hussain.
5. However, in view of order passed in Criminal Miscellaneous No. 47321 of 2014, an enquiry was conducted by the then Chief Executive Officer along with Administrative Officer and on the basis of enquiry report dated 07.03.2019, the Chief Executive Officer passed an order dated 29.08.2019 under Section 54 of the Waqf Act declaring opposite parties as encroacher under Section 3(ee) of the Waqf Estate.
6. In view of Waqf (Amendment) Act, 2013, the Waqf Board filed Eviction Application No. 24 of 2020 before the learned Waqf Tribunal for grant of order of eviction of opposite parties (petitioners) for removing the encroachment from the Waqf premises. It is further contended that opposite parties (petitioners) are not the tenant nor the owner of the Waqf premises. They occupied Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 5/24 the premises as encroacher of the Waqf Estate No. 230/Patna.
7. On summon, the opposite parties (petitioners) filed their reply wherein, it is pleaded that the Mirza Wazir Hussain Waqf Estate was created by great grandfather of petitioner no. 1 namely, Mirza Wazir Hussain. It is further pleaded that it is a private Waqf for Masjid & Imambara and the Waqif has constructed a Hujra over the part of Plot No. 1216 for his residence and to look after and take care of Mosque and Imambara. It is further contended that the Waqif was living in that Hujra with his family members. Waqif namely, Mirza Wazir Hussain had nominated his son Mirza Sattar Hussain as Mutawalli of the Waqf Estate and also authorized him to appoint next Mutawalli after him and prepared a Wasiyatnama dated 04.01.1944. It is further case of the petitioner that from perusal of Wasiyatnama, it appears that Waqif has himself appointed the next successor Mutawalli and also authorized his son (Mirza Sattar Hussain) to appoint successor Mutawalli. It appears that it should be the Mutawalli, who will appoint the next Mutawalli for the said Waqf Estate and since then rule of Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 6/24 succession of Mutawalli was followed and as per wishes of Waqif and Mutawallis of the Waqf Estate have been appointing the next Mutawalli which is as follows; Mirza Wazir Hussain appointed/nominated his son, Mirza Sattar Husaain. Mirza Sattar Hussain appointed his son in-law Mirza Quaser Hussain. Mirza Quaiser Hussain appointed his son Mirza Akhtar Hussain (petitioner no. 1). Since beginning the Mutawalli of the Waqf Estate used to live in that house without any hindrance or objection. However, recently, Waqf Board appointed one Mirza Haider Ali @ Vicky as Mutawalli of the said Waqf Estate. It is further pleaded that from Wasiyatnama of the Waqif, it is crystal clear that the Mutawalli of the Waqf Estate should only appoint the next Mutawalli and he should use the house/Hujra, in question. Despite it, Waqf Board has appointed a stranger as Mutawalli which is completely against the wishes of Waqif as well as law.
8. It is further contended that Municipal Survey Khatiyan published on 19.12.1933 stands recorded in the name of Public Masjid Mutawalli Mirza Wazir Hussain with respect to Plot No. 1216, holding No. 18. It is vehemently Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 7/24 submitted by the petitioners that the Board has registered the property in question invoking Section 36 of the Waqf Act, 1995. The said Section casts a duty upon the Waqf Board to make requisite inquiries as per Section 36(7) of the Act. The application submitted by respondent no. 3 (Mirza Haider Ali) should not have been entertained straight forward as opposite party no. 3 is not a person administering the property in question. It is, therefore, apparent that registration of the property as Waqf property has been done by complete violation of Section 36 of the Waqf Act. The Board has miserably failed in its duty in following the law or Section required for the purpose and opened up a controversy putting the petitioners under quite inconvenient situation. However, the application for registration was made by Mirza Haider Ali against whom the said Waqf Board has lodged an FIR vide Khajekalan P.S. Case No. 114 of 2015 and the same accused, who is facing criminal cases for the offences of fraud and cheating, has been made Mutawalli of Mirza Wazir Hussain Waqf Estate. However, the said Mirza Haider Ali @ Vicky has filed an affidavit before the Patna High Court on 28.03.2018 Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 8/24 in Criminal Miscellaneous No. 47321 of 2014 stating therein, that the landed property of Mosque is not a Waqf property. Lastly, it is submitted that petitioners are not encroacher nor unauthorized occupant rather petitioner no. 1 is a Mutawalli as per the wishes of Waqif and petitioner nos. 2 to 7 are family members of petitioner no. 1.
9. Per contra, opposite party no. 3 has filed counter affidavit in support of the case of Bihar State Shia Waqf Board. Learned counsel for the opposite party no. 3 submitted that on the application of opposite party no. 3, Mirza Wazir Hussain Waqf Estate was registered as Waqf Estate No. 230/Patna. It is submitted that an encroachment proceeding started against the petitioners in view of the order dated 26.02.2019 passed by this Court in Criminal Miscellaneous No. 47321 of 2014. It is evident from the Municipal Survey Khatiyan that the property of Waqf Estate shown as Mosque is deemed to be Waqf property under the Waqf Act, 1995. The claim of the petitioner no. 1 as Mutawalli was never approved by the Bihar State Shia Waqf Board. Petitioners occupied the Waqf land without any authority. So far question of appointment of opposite Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 9/24 party no. 3 as Mutawalli of the Waqf Estate is concerned, it has not been stayed by any competent Court and the allegation made by the petitioners against opposite party no. 3 is false and concocted.
10. After considering the pleadings made by the parties, the learned Waqf Tribunal allowed the eviction application filed by the Chief Executive Officer, Bihar State Shia Waqf Board and declared them as encroachers and they are liable to be evicted from the Waqf property, in question.
11. Being aggrieved by the judgment and order dated 10.11.2023 passed by Bihar State Waqf Tribunal, the petitioners filed the instant Civil Revision application.
12. Learned counsel for the petitioners submitted that petitioner no. 1 is Mutawalli and is residing there in accordance with line of succession as enumerated in Wasiyatnama dated 04.01.1944, 08.12.1962 and 08.10.1982. It is vehemently submitted that by no stretch of imagination, petitioners can be categorized as encroacher in terms of Section 3(e) of the Waqf Act, 1995 (Amendment Act, 2013). The Board has passed notification dated Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 10/24 20.07.2016 in connivance with opposite party no. 3. The Board issued notification dated 20.07.2016 wherein, it has been categorically stated that 'as per Board's Resolution No. 12 dated 16.03.2016, the Chairman, Bihar State Shia Waqf Board has been pleased to register Mirza Wazir Hussain Waqf Estate' bearing Registration no. 230/Patna under Section 36 of the Waqf Act, 1995 and Sri. Mirza Haider Ali be appointed as Mutawalli of the said Waqf Estate. Opposite party no. 3 applied for registration of said Waqf Estate on 04.07.2016. The registration and appointment of Mutawalli was made prior to the application of opposite party no. 3 which is in the teeth of provision of Sections 36 and 63 of the Waqf Act, 1995. The petitioners filed a detailed show cause reply to the notice on 25.07.2019. The Chief Executive Officer did not consider the same and without application of mind, the Waqf Board has passed the order against the petitioners as encroacher. The Chief Executive Officer has not considered the 'Will' dated 04.01.1944, 08.12.1962, 08.10.1982, on whose basis petitioner no. 1 was appointed Mutawalli as per the wishes of Waqif. Petitioners do not come under the category of Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 11/24 encroacher rather petitioner no. 1 is Mutawalli and petitioners are residing in the said Hujra. This fact has been mentioned in the Wasiyatnama of Waqif namely, Mirza Wazir Hussain. Petitioners are entitled to reside as per the wishes of Waqif. The learned Tribunal has not considered the Wasiyatnama and wishes of Waqif and passed a mechanical order and affirmed the order of Waqf Board. Petitioner no. 1 being Mutawalli does not come under the definition of Section 3(ee) of the Waqf Act, 1995 (Amendment Act, 2013).
13. Learned counsel for the petitioners submitted that I.A. No. 01 of 2024 has been filed during the pendency of this Civil Revision application for restoration of possession of the petitioners, who have been dispossessed on 03.09.2024, in view of order dated 10.11.2023 passed in Eviction Application No. 24 of 2020 by the learned Tribunal, Patna. Learned counsel further submitted that petitioner no. 1 being Mutawalli of Mirza Wazir Hussain Waqf Estate has right of residence as per Wasiyatnama. The said Wasiyatnama has not been considered either by the Waqf Board or by the learned Tribunal. The said Waqf Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 12/24 Estate consists of Masjid, Imambara and Hujra/ house of Mutawalli appertaining to Plot No. 1216 holding No. 18, Ward No. 29/59 and area of 30 Kari (approx 1306 Sq.ft.) It is further contended that all these aspects of the matter has not been considered by the learned Waqf Tribunal.
14. Per Contra, learned counsel for the Shia Waqf Board has submitted that the property, in question, is said to be Waqf Property belonging to Mirza Wazir Hussain Waqf Estate No. 230/Patna. The said Waqf was registered on 04.07.2016 in the office of the Waqf Board. On the direction of Hon'ble High Court in Criminal Miscellaneous No. 47321 of 2014, spot verification of the entire property including built up area, as per the Khatiyan, in presence of both the parties was conducted. The land of the Waqf is found to be 30 Kari, out of which, Masjid was found to be situated upon half of the land and the other half area was found to be in unauthorized occupation by the petitioners. Steps have been taken for removal of encroachment as per the direction of Court and accordingly notices were issued to the petitioners. Pursuant to the notice, the petitioners filed their reply wherein, petitioner no. 1 has stated that the Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 13/24 said house/Hujra is residence of Mutawalli of Mirza Wazir Hussain Waqf Estate. Petitioner no. 1 has claimed that he was nominated as Mutawalli of the said Waqf Estate by the successor Mutawalli namely, Mirza Quaiser Hussain on 12.10.1982 by way of Wasiyatnama. It is further submitted by the respondent Board that petitioner nos. 1 to 7 are not Mutawalli appointed by the Waqf Board hence, they cannot claim their right to live in the said house as Mutawalli of the said Waqf.
15. On the other hand, learned counsel for the opposite parties submitted that opposite party no. 3 was appointed Mutawalli by the Board and there is no material on record to show that his appointment has been challenged by the petitioners or any other person before the competent forum of law. It is vehemently submitted that the present proceeding under Section 54(3) of the Waqf Act cannot be interfered in the order pertaining to appointment of Mutawalli. The application under Section 54(3) of the Waqf Act is for issuance of order of eviction against petitioners for removal of encroachment from the Waqf property.
16. On analyzing the impugned order and Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 14/24 materials on record, it is apparent that eviction application has been filed under Section 54(3) of the Waqf Act against the petitioners for eviction from the Waqf property as encroacher. Municipal Survey Khatiyan reveals that Khata no. 1216 holding No. 18 is recorded as Public Masjid measuring an area 30 kari. In column 5 of the Khatiyan, name of the occupant is mentioned as Mirza Wazir Hussain and in column 4, it has been mentioned that the rent has to be paid on behalf of Public Masjid by Mirza Wazir Hussain. The said Municipal Survey Khatiyan was published on 19.12.1933 which shows that the said Public Masjid, Mutawalli Mirza Wazir Hussain exists since 1933 and admittedly Mirza Wazir Hussain was the Mutawalli of the said Masjid/property. On plain reading of Wasiyatnama dated 04.01.1944, it shows that during his lifetime, Mirza Wazir Hussain appointed his son namely Mirza Sattar Hussain as Mutawalli for looking after the said Masjid and its properties and also delegated his power to his son for appointment of successor Mutawalli.
17. The Waqf Board has not controverted the fact that Mirza Wazir Hussain was not waqif or 1st Mutawalli Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 15/24 of the said Waqf Estate and in the instant case waqif has laid down the rule of successor Mutawalli. The question only remains whether Mutawalli has any right to reside in the Hujra/house constructed for the residence of family members of the Mutawalli. It is also admitted fact that from 1933 to 2016, no interference in the management of Waqf Estate has been made by the Board or any authority. The property in question is a Waqf by its nature which is used as Masjid, Imambara and Hujra is part of it. The role of appointment of Mutawalli or removal of Mutawalli by the Waqf Board comes into play, when the Waqf Estate is registered in the office of Waqf Board. After registration of the said Waqf Estate, the Waqf Board has appointed opposite party no. 3 as Mutawalli without removing the existing Mutawalli.
18. The Waqf Act, 1995 is enacted to provide for the better administration of aquaf and for matters connected therewith or incidental thereto. Clause (i) to Section 3 of the said Act defines 'Mutawalli' to mean 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 Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 16/24 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, Khadim, Mujawar, Sajjadanashin, Amin or other person appointed by a Mutawalli to perform the duties of a Mutawalli and save as otherwise provided in the said Act, any person, committee or corporation for the time being managing or administering any waqf or waqf property.
19. Section 32 of the Waqf Act deals with the powers and functions of the Waqf Board established under Section 13 of the Act. As per clause (g) to Sub-section (2) of Section 32, without prejudice to the generality of the power under sub-section (1), the Board shall have the power to appoint and remove Mutawallis in accordance with the provisions of the said Act.
20. Section 37 of the Waqf Act deals with register of auqaf. By the Waqf (Amendment) Act, 2013 Section 37 was numbered as Sub-section (1) thereof. As per Sub- section (1) of Section 37, the Board shall maintain a register of auqaf which shall contain in respect of each waqf copies of the waqf deeds, when available, and the particulars Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 17/24 enumerated under clauses (a) to (f) thereof. Going by clause
(c) to Sub-section (1) of Section 37, such particulars shall include the rule of succession to the office of Mutawalli under the waqf deed or by custom or by usage. Section 63 of the Waqf Act, which deals with the power of the Board to appoint Mutawalli in certain cases provides that, when there is a vacancy in the office of the Mutawalli of a waqf and there is no one to be appointed under the terms of the deed of the waqf, or where the right of any person to act as Mutawalli is disputed, the Board may appoint any person to act as Mutawalli for such period and on such conditions as it may think fit.
21. A conjoint reading of Sections 3(i), 32(2) (g), 37(1) (c) and 63 of the Waqf Act, 1995 makes it explicitly clear that, if the waqf is created by a deed or instrument, the rule of succession to the office of Mutawalli provided in such deed or instrument should be followed while making appointment to that office. Clause (c) to sub-section (1) of Section 37, indicates that, the rule of succession to the office of Mutawalli shall be governed by the provisions under the waqf deed and, in the absence of any provisions Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 18/24 under such deed or instrument, the office of Mutawalli may become hereditary by custom or usage. Further, it is evident from a plain reading of Section 63 that, the power of the Board to appoint Mutawalli, when there is a vacancy in the office of the Mutawalli of a waqf, can be exercised only when there is no one to be appointed to that office under the terms of the deed of the waqf or where the right of any person to act as Mutawalli is disputed.
22. In Maulvi Abdul Rahman Siyai vs. Sardar Maqbool Hasan reported in AIR 2009 All 62, a Bench of the Allahabad High Court, in the context of Sections 32(2)
(g), 37(c) and 63 of the Waqf Act, 1995 held that, the power of superintendence and control of the Board over the waqf including appointment of Mutawalli to a waqf is not absolute and as such, while exercising such power of superintendence in respect of a waqf, the Board cannot act according to its sweet will, rather it has to act in conformity with the directions of the concerned waqf. But, where the waqf is not created by any waqf deed or where the waqf is created by user and there exist no such waqf deed, in view of Section 37(c) of the Act, the rule of succession to the Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 19/24 office of Mutawalli shall be governed by custom or usage and/or scheme of the administration of said waqf by virtue of the provision of Section 37(e) of the Act. Paragraphs 16 and 17 of the said judgment reads thus;
16. Further under Section 32(2) (g) of the Act the Board is empowered to appoint and remove the Mutawalli in accordance with the provisions of the Act, but this power of appointment and removal of the Mutawalli is without any prejudice to the general power of superintendence of the Board over a waqf.
Besides, Section 37 (c) of the Act also indicates that the rule of succession to the Office of mutawalli is governed by the waqf deed and if the waqf is not created by the waqf deed, the same is governed by the custom or usage.
However, the power to appoint Mutawalli under Section 63 of the Act can be exercised by the Board only when there is no one to be appointed under the terms of waqf deed or where the right of any person to act as Mutawalli is disputed, in that situations alone the Board may appoint any person to act as Mutawalli for such period and on such conditions as it may think fit and not in other situations.
17. It implies that while exercising the Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 20/24 power of superintendence including the appointment of Mutawalli the Board has no absolute power, instead thereof the Board is under duty to follow directions of the waqf as contained in the waqf deed and if the waqf is not created by any waqf deed, it shall be governed by the customs and usage of the waqf, which have sanction of School of Muslim law to which it belongs. Therefore, in my opinion, the power of superintendence and control of the Board over the waqf including to the appointment of Mutawalli to a waqf is not absolute, as such while exercising such power of superintendence in respect of a waqf, the Board cannot act according to its sweet will, rather it has to act in conformity with the directions of the concerned waqf but where the waqf is not created by any waqf deed or where the waqf is created by user and there exist no such waqf deed like in present case, in such situation, in view of Section 37(c) of the Act, the rule of succession to the office of Mutawalli shall be governed by the customs or usage and/or scheme of the administration of said waqf by virtue of the provision of Section 37(e) of the Act.
23. In the instant case as per the recital of Wasiyatnama executed by Waqif/1st Mutwalli dated Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 21/24 04.01.1944 the rule of succession to the Office of Mutwalli is enumerated. The founder (Waqif) has laid down the rule of succession to the Office in which case the rule has to be adhered to and where the office of Mutawalli be herediatry by custom in which case the custom should be followed. This view has been observed at pages 672 and 673 of "The commentaries on Mohammedan Law" by V.R. Verma (12 th Edition) and also by Justice S.A. Kader and Mulla in their authoritative commentaries specifically in the "Law of Waqfs" at Page 38 written by Justice S.A. Kader as observed.
24. It is apparent from the record that the Masjid existed since before 1933 as per the Municipal Survey Khatiyan. The Hujra in question, was constructed later on by Mirza Wazir Hussain (Waqif/Mutawalli) which is revealed from Wasiyatnama dated 04.01.1944 and is being used by Mutawalli and his family members for looking after Masjid and Imambara. The said Wasiyatnama also disclosed the line of succession and following the principle laid down in the Wasiyatnama. The Mutawalliship carried on in continuation of principle of successor Mutawalli. The Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 22/24 Mutawalli (petitioner no. 1) was continuing in the office and enjoying the right to residence over the said Hujra along with his family members.
25. The above aspect has not been looked into by the learned Tribunal. The documents mentioned above were already on record in the eviction application yet, the learned Tribunal has refrained from discussing the same and glossed over in its spirit. Moreover, it is well settled that a Mutawalli rightly or wrongly dispensing the work can not be removed without following the due process of law laid down for removal of Mutawalli or for declaring such person as encroacher. The learned Tribunal has not decided as to whether the Mutawalli and his right to residence was proved by the documents and precedents and further whether the said Mutawalli (petitioner no. 1) was rightful in view of Wasiyatnama and that whether Wasiyatnama and Khatiyan were legal and valid documents and whether Wasiyatnama dated 04.01.1944 establishes the continued right to Mutawalli's family or having right to residence on the basis of Wasiyatnama executed from time to time. Further the learned Tribunal has also not decided the Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 23/24 question of right to residence of petitioner no. 1 along with his family members on the basis of definition of encroacher as defined under Section 3 (e) of the Waqf Act, 1995 as to whether they were residing without authority of law.
26. It is admitted fact that petitioner no. 1 has not been removed by the Waqf Board from the Mutawalliship as claimed by the petitioner no. 1 and since the documents were not considered in its spirit by the Tribunal whether petitioner no. 1 and his family members has right to reside on the basis of Wasiyatnama executed by Mirza Wazir Hussain (Waqif/Mutawalli of the Waqf Estate), it amounts to perversity of the order dated 10.11.2023 passed by the learned Tribunal. The learned Waqf Tribunal has not exercised its jurisdiction therefore, the impugned judgment suffers from irregularity and jurisdictional error.
27. Accordingly, the impugned order dated 10.11.2023 is set aside.
28. In the light of above discussion, the Eviction Application No. 24 of 2020 is remanded for afresh hearing after due notice to the parties,
29. Till the disposal by the Tribunal, the status quo Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025 24/24 as existed vide order dated 04.09.2024 passed in the instant case shall continue.
30. The learned Tribunal is directed to dispose of the Eviction Application No. 24 of 2020 in the light of the above discussion within a period of six months from the date of receipt/production of a copy of this order.
31. Accordingly, the instant Civil Revision application stands disposed of.
(Khatim Reza, J) Sankalp/-
Prabhat/-
U