Allahabad High Court
Waqf Munshi Imam Khan vs Prescribed Authority/ Civil Judge And ... on 5 August, 2010
Author: Devendra Pratap Singh
Bench: Devendra Pratap Singh
Court No. - 7 Case :- WRIT - A No. - 45594 of 2010 Petitioner :- Waqf Munshi Imam Khan Respondent :- Prescribed Authority/ Civil Judge And Others Petitioner Counsel :- Shamim Ahmad,Mr. M. A. Qadeer Respondent Counsel :- Pradeep Kumar Hon'ble Devendra Pratap Singh,J.
Heard learned counsel for the petitioner and for the respondent caveator.
It appears that Waqf Munshi Imam Khan through its Mutwalli Nanhey Khan filed a release application under Section 21 (1)(b) of U.P. Act No.13 of 1972 against the petitioner tenant for release of the disputed accommodation which was registered as P.A. Case No. 6 of 1983. The release application was allowed vide order dated 8th December 1988 whereafter the resultant appeal was also dismissed on 27th of October 1989.
Both these orders were subjected to challenge by the respondent tenant in Writ Petition No. 1982 of 1998. During the pendency of this writ petition, Haji Iqbal Ahmad Khan son of Abdul Majeed Khan was substituted in his place as the Mutwalli of the Waqf vide an order dated 13th April 2009. In fact, in pursuance of an order of this Court dated 3rd of July 2008, the rent of the disputed accommodation was also paid to Iqbal Ahmad, Mutwalli through Banker's cheque by the respondent tenant. Ultimately the writ petition was dismissed vide order dated 13th April 2009 but on the undertaking of the respondent tenant, he was granted time to hand over vacant possession of the disputed shop on or before 30th September 2009.
It appears that during pendency of the writ petition, Nanhey Khan had already preferred a Misc. Execution Case No. 1 of 1998. When the respondent tenant did not hand over vacant possession, he proceeded with the execution and sought his impleadment against which the petitioner filed his objection and the Prescribed Authority, ignoring the orders of this Court, has rejected the execution application on the ground that Iqbal Ahmad is not the Mutwalli.
It is apparent that the petitioner had not objected to the impleadment of Iqbal Ahmad as Mutwalli which is evident from the order dated 13.4.2009 which is quoted below :
"Two bank drafts drawn on ICICI Bank Ltd. in favour of Mutwalli Iqbal Ahmad for a sum of Rs.8,320/- being bank draft no.100653 and another draft for Rs.1,280/- being bank draft no.100623 where produced by the learned counsel for the petitioner in compliance to earlier order passed by this Court. These drafts have been handed over to Sri M.A.Qadeer, learned Senior Counsel for the respondents, subject to the object as he may raise.
It has been stated that an application has been filed by Sri M.A.Qadeer learned Senior Counsel to substitute the name of the present Mutwalli namely Iqbal Ahmad in place of outgoing Mutwalli. Although the said application is not on record, (the office may restore it on the record), the learned counsel for the petitioner has no objection in allowing the said application.
The prayer is accepted.
Let the name of Mutwalli Iqbal Ahmad son of Abdul Majid resident of Savitganj, Etawah be substituted in place of the present Mutwalli Nanhey Khan in the array of the parties with regard to the respondent nos.3 and 4."
It also evident that he had paid rent to Haji Iqbal Ahmad treating him to be the Mutwalli and therefore also he could not raise any objection in the execution proceedings. Though he should be heard in this writ petition, the undertaking has to be complied before he is heard.
Accordingly, the Prescribed Authority is directed to ensure that the possession of the disputed accommodation is handed over to Iqbal Ahmad, the Mutwalli impleaded by this Court within a period of ten days from today,if necessary by police force. The possession shall be subject to further orders of this Court and the Mutwalli is directed not to alienate, create any third party rights or change the nature of the property without the express permission of the Court. In case the possession is not delivered, the Prescribed Authority, Etawah shall file his personal affidavit explaining the reasons why possession could not be handed over, as detailed above.
Learned counsel for the respondent may file his counter affidavit by the next date.
List on 16th of August 2010.
Order Date :- 5.8.2010 PKG