Hon'ble Ravi Nath Tilhari,J.
Heard Sri Mahboob Ahmad for the petitioners; Sri Punit Kumar Gupta for the respondent no.1; and the learned Standing Counsel for the respondents 3 and 4.
The prayer in this petition is to quash the order dated 26.11.2019, by which the merger of Waqf Kunwal Mohd. Abdul Salaam Khan No.50A Aligarh into Waqf Kunwar Mohd. Abdul Ghafoor Khan No.2172 was directed on the ground that one Abdul Ghafoor Khan created an Alal-Khair waqf of his property by registered waqf deeds executed in the year 1904-08 and the waqf was registered in the records of the Board at Sl.No.2172-Aligarh. The petitioner has also challenged the subsequent order dated 26.02.2020 which seeks to give effect the earlier order.
On 08.12.2020, Sri Punit Kumar Gupta was required to seek instructions in the matter.
On instructions, Sri Punit Kumar Gupta, learned counsel for the respondent no.1, has informed the Court that since there cannot be two waqfs on the same property, upon finding that those two waqfs related to the same property, the Board took a decision to merge the aforesaid two waqfs. He further submitted that under sub-section (2) of Section 83 of the Waqf Act, 1995 any mutawalli, person interested in a waqf or any other person aggrieved by an order made under the Act, or rules made thereunder, can make an application, within the time specified in the Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the waqf and therefore the petitioner has efficacious alternative remedy to raise his grievance before the Tribunal in respect of the order passed by the Board.
At this stage, Sri Mahboob Ahmad, the learned counsel for the petitioners, submitted that although there may be an alternative remedy available to the petitioner under sub-section (2) of Section 83 of the Act, 1995 but the the Additional City Magistrate, First, Aligarh would have no jurisdiction to seek for eviction from the waqf property and as the said Additional City Magistrate is holding an inquiry into the matter, it is apprehended that he may pass eviction orders. He submitted that the proceedings before the Additional City Magistrate, First, Aligarh, being without authority, be quashed.
Sri Mahboob Ahmad, learned counsel for the petitioners, in support of the above contention has placed reliance on the provisions of Section 54 of the Waqf Act, 1995 which enables the Chief Executive Officer of the Board to seek for removal of encroachment from waqf property and does not empower the District Administration to direct such removal. He thus submits that it is only the Chief Executive Officer of the Board which can initiate any such proceeding and therefore the Additional City Magistrate, First, Aligarh would have no jurisdiction in respect of seeking eviction of any of the occupants of the waqf property. He further submitted that the power under Section 52 of the Act is in respect of those properties which are transferred in contravention of the provisions of Section 51 of the Act, 1995 and therefore the District Administration would not have any jurisdiction to secure eviction of an occupant from the waqf property and it is the Chief Executive Officer alone which has the power under Section 54 of the Act, 1995.
We have gone through the record.
From the record it does not appear that the Additional City Magistrate, First, Aligarh, as on date, has passed any order of eviction or has taken recourse to any coercive measures against the petitioner. Under the circumstances, if the petitioners seeks to challenge the jurisdiction of the District Administration, it is always open to the petitioners to file an objection in those proceedings and challenge the jurisdiction of the authorities concerned as per advice. But since to challenge the order impugned dated 26.11.2019 and the subsequent order dated 26.02.2020, the petitioners have alternative remedy under Section 83(2) of the Act, 1995, we decline to entertain this petition without prejudice to the petitioners to take recourse to alternative remedy. We also leave it open to the petitioners to raise an objection before the Additional City Magistrate, First, Aligarh in respect of his jurisdiction to draw proceedings in respect of the property concerned, as per advice.
Subject to above, the petition is disposed off.
Order Date :- 11.1.2021 AKShukla/-