Heard Mr. Z.Zilani, learned counsel for the petitioner and Mr. Mohd. Arif Khan, learned Senior Advocate for opposite parties.
The petitioner has challenged the order dated 19th September, 1979 passed by the President, U.P. Central Sunni Board of Waqfs, Lucknow i.e. Opposite party no.3, the order dated 14.1.1982 passed by the State Government as also the order dated 22.1.1980 passed by the Secretary, U.P. Sunni Central Board of Waqfs, Lucknow (hereinafter referred as the Board). By means of order dated 19.9.1979 the President of U.P. Central Sunni Board of Waqfs, Lucknow appointed three members of committee of management declaring that Sri Shah Shabir Ata i.e. opposite party no.4 will be the President of committee of management. By means of order dated 14.1.1982 the Deputy Secretary, of Muslim Waqfs Department, State of U.P. has turned down the petitioner's appeal as not maintainable under section 63(3) of U.P. Muslim Waqf Act, 1960 (hereinafter referred to as the Act) . By means of order dated 22.1.1980 the Secretary of the Board declared that after the death of Mr. Mohd. Husain Jafri on 16.9.1979, there is no Mutawalli or committee of the waqf concerned at the present, hence no one is entitled to claim any amount from the fund of the Waqf and submitted a request to the Civil Judge, Raebareli for not giving funds of Waqf to any person till further order of the Waqf Board.
Briefly the facts set out by the petitioner are that in the town Salon, district Rae Bareli there is one Khanqah known as Khanqah Karimia established from the time of Moghul emperors which was recognised by the British Government also. During the time of VIII Sajjadanashin of the said Khanqah late Hazrat Shah Naim Ata filed a suit against the Board in 1945 for declaration that properties attached to the Khankah were not subject to Waqf Act VIII of 1963. The suit was compromised and the Sajjadanashin accepted that the properties were Waqf and subject to the said Waqf Act. Thereafter another Suit No. 1 of 1950 was filed by the Board before the Civil Judge, Rae Bareli under section 92 of the Code of Civil Procedure, who framed a scheme of administration to administer the Waqf. The provisions for composition of committee of management as provided bythe civil court are as follows:-
"(a) There will be a committee consisting of the Sajjadanashin of the Khanqah and 3 other persons.
(b) the Sajjadanashin of the Khanqah will be a member of the aforesaid committee by virtue of his being the spiritual head of the institution.
© The appointment of the remaining three members be made by the court as and when the vacancy occurs, with the conciliation of the Board and the Sajjadanashin."
4."Appointment of members- Shah Mohammad Naim Ata, Sajjadanashin of the Institution:- Sri Mohammad Husain Jafri Vakil would be Sajjadanashin (sisters son of shah Mohammad Naim Ata) and Hafiz Abdul Sahid, Secretary Jama-e-ull-ulema, Rae Bareli, will be the members of the first Managing Committee constituted under the scheme."
From the aforesaid provision it is evident that Sajjadanashin of Khanqah was nominated as member of committee of management by virtue of his being the spiritual head of the institution meaning thereby his nomination as member of committee of management was ex officio and remaining three members were to be appointed by the court with conciliation of the Board and the Sajjadanashin. Mr. Shah NiamAta died issue less on 15.1.1966 behind him Shah Mohammad Husain Jafri, who was nominated as Sajjadanashin. Therefore, Mr. Jafri (petitioner's father ) moved an application before the Board on 19.1.1966 for his formal recognition as Sajjadanashin by the Board. On 27.1.1966 the Board granted certificate to this effect to Mr. Jafri. Opposite party no.4 Mr Shah Shabir Ata son of step brother of lat VIII Sajjadanashin also moved an application before the Board claiming that it is he who had been nominated as Sajjadanashin by the late Sajjadanashin two years before his death, on account of which the President of the Board suspended the recognition certificate issued to the petitioner's father late Shah Mohammad Husain Jafri. The President of the Board ordered to inquire the matter in exercise of powers provided under section 61 of the Act. Being aggrieved with the withdrawal of recognition the petitioner's father filed a Regular suit bearing no. 31 of 1966 against opposite party no.4 in the court of Civil Judgd, Lucknow for declaration of his right as Sajjadanashin on 1st March, 1966. On 25.3.1966 an interim injunction was issued , which was confirmed on 7th October, 1966. Thus by means of the said injunction order the opposite party no.4 was restrained from proclaiming himself as Sajjadanashin Khanqah karimia Salon. Being aggrieved with the same, he filed an appeal before this court which was registered as F.A.F.O No. 7 of 1967. This Court modified the order passed by the court below to the extent that opposite party no.4 would remain restrained from interfering with the possession of petitioner (respondent no. 1 to the appeal) over the Khanqah as Sajjadanashin. The said order was made absolute on 22.9.1976 while disposing of the appeal against the said injunction order dated 7.10.1966. The petitioner's father also intimated the Board that the inquiry initiated by the Board is beyond the scope of the Waqf Act and prayed for stopping the inquiry during the pendency of the suit, but no heed was paid by the Board. Therefore, he submitted an application before the State Government to stop the inquiry. The State Government by means of the order dated 7.6.1966 stayed the same . In the proceeding of suit the Board was also issued notice under section 66 (1) of the Waqf Act . The Board filed reply challenging the jurisdiction of the court on the ground that it is only the Board which has jurisdiction to decide the matter of Sajjadanashin. During the pendency of the suit two members i.e. Mr. Mohammad Soib and Mr. Hafiz Abdul Shahid submitted resignation from the membership of the committee. In their place Board appointed Mr. Razzaq Ahmad and Mohammad Amin Khan as members of the managing committee and also appointed as Advisory committee consisting of seven persons. Being aggrieved with the same, the petitioner' father filed a writ petition before this Court which was registered as writ petition no. 143 of 1968 . The writ petition was admitted. Interim order was passed in favour of his father. However, after exchange of affidavits the counsel for the U.P. Sunni Central Board of Waqfs, Lucknow had given an undertaking before this Court not to enforce the impugned orders (Annexures 6 to 8 to the writ petition), whereby the Board had appointed Mr. Razzaq Ahmad and Mohammad Amin Khan as members of the committee of management. In view of the undertaking given by the counsel for the Board the counsel for the petitioner's father had given a statement that he does not press the writ petition. The writ petition was disposed of accordingly by means of order dated 11.2.1974. This order is reproduced hereininunder:- "Sri. Mirza states that in view of the above statement made on behalf of the Waqf Board he does not press the petition. The petition is therefore, dismissed as not pressed. The interim orders made by this court are vacated."
Thus the petitioner's father continued to remain managing the Waqf being the sole surviving member of the managing committee. It is stated that the petitioner's father made the petitioner as his Khalifa and executed a Khilaftama also in his favour in 1967. Thereafter the petitioner was nominated as Sajjadanashin by his father and a deed (Misal-e-Khilafat Wa Janashini) had also been executed by the petitioner's father in favour of the petitioner on 26th July, 1969 and all the customary formalities were completed. He also delivered him the renowned Khirqae Karimiya and Sajjadai Karimiya with all paraphernalias to the petitioner. Upon the demise of his father on 16th September, 1979 the petitioner communicated to all the authorities. On the third day ceremony (Soyam) of his death the petitioner was formally installed as Sajjadanashin of the said Khanqah Karimiya on 20.9.1979. Accordingly the petitioner claims that he is still continuing as duly nominated Sajjadanashin of the said Khanquah Karimiya, Salon. On the basis of his nomination as Sajjadanashin, the petitioner moved an application for substitution of his name in place of the name of the deceased plaintiff in the Regular Suit No. 31 of 1966. It is further stated that by means of letter dated 18.1.1982 issued by the Secretary of the Board the petitioner's father was informed with the decision of the Board, whereby he was permitted to continue to administer the Waqf under the supervision of the Board. Thereafter the petitioner moved an application before the Board recognising three persons for being appointed as members of committee of management along with him but he was informed that on the death of Mr. Mohammad Husain Jafri the President of Waqf Board vide order dated 19th September, 1979 appointed a committee consisting Mr. Shah Shabir Ata (opposite party no.4) and others two as members of managing committee, therefore the question of appointment of Mutawali did not arise. Since the order dated 19th September, 1979 amounted to removal of the petitioner from the membership of the committee of management, in which the petitioner was an ex officio member by virtue of his office as Sajjadanashin, the petitioner filed an appeal before the State Government under section 63 (6)/43 of th Act for setting aside the order dated 19th September, 1979 , in which the stay order was granted but ultimately the same has been turned down as not maintainable by means of the order dated 14.1.1982. In the meantime, the petitioner' application for substitution moved in Regular Suit no. 31 of 1966 was allowed by the learned Additional Civil Judge, Lucknow by means of order dated 10.7.1981. The opposite party no.4 challenged the said order passed on the application through revision which has been dismissed by the District Judge, Lucknow on 2.2.1982. After the death of petitioner's father the payments of salary were made to the employees of Khanqah by the Civil Judge, on the application of the petitioner, but on account of letter dated 22.1.1980 issued by the Board the same has been stopped. Through counter affidavit filed by the State it has been stated that under section 43 of Uttar Pradsh Muslim Waqfs Act, 1960 there is no provision for filing an appeal before the State Government as section 43 empowers the State Government to issue direction that the State Government may, from time to time, give to the Board such general or pecial directions as the State Government thinks fit and in the performance of its function the Board shall comply with such directions. It is further stated that the case does not fall under section 63 (6) of the Act as the petitioner was not the member of the managing committee, therefore, no question of removal arises. Section 63 (6) is reproduced hereinunder:- "The Board may instead of superseding any committee under sub section (2) remove any member thereof if the Board is satisfied that the member has flagrantly abused his position as such or has knowingly acted in a manner prejudicial to the interest of the waqf. The order of removal shall be duly served on the member concerned:
Provided that no order for removal of the member shall be made unless an opportunity has been afforded to him of being hear:
Provided further that an appeal shall lie within 30 days from the date of service of the order of removal to the State government and the order of the State Government, on appeal, shall be final and be not questioned in any court of law." As is evident from the aforesaid provision that there is provision of appeal by the member of the Board against the order of removal to the State Government.
After going through the aforesaid provision of the Act I am of the view that the state Government has rightly rejected the appeal. Since the petitioner was not a member of the committee of management, he had no right to challenge the order passed by the Board under section 63((6) of the Act. Judgment and decree passed in Regular Suit No. 31 of 1966 by the Additi0nal civil Judge, Lucknow has been brought on record, whereby the petitioner's suit for permanent injunction has been decreed and the mandatory injunction has been issued to the defendants for not interfering in his function as Sajjadanashin of the Khanquah Karimiya concerned by means of order dated 12.12.1984.
Through supplementary affidavit it has been brought to the notice of this court that when opposite party no.4 moved an application under Order IV Rule 13 of CPC for setting aside the judgment and decree dated 12.12.1984 it was rejected by Ist Additional Civil Judge, Lucknow on 16.11.1985. He challenged the said order by filing an appeal which was registered as Miscellaneous Civil Appeal No. 243 of 1985 . The same was also dismissed by means of order dated 12.4.1988 by the Additional District Judge, Lucknow. It is also stated that pursuant to the judgment and decree dated 12.12.1984 passed in the aforesaid regular suit the petitioner has already been recognised as the Sajjadanishin of Khankah Karimia, salon by the Civil Judge, Rae Bareli and his name has already been entered in the annuity roll existing in the name of waqf .
Upon perusal of the order dated 19th September, 1979 it is evident that the President of Board as well as members of the committee of management has to be appointed under the scheme of administration framed by the Civil Judge Rae Bareli in Regular Suit No. 1 of 1950. Now upon perusal of the provisions of composition of committee of management of Waqf I find that Sajjadanashin of Khanqah has nominated as member of committee of management by virtue of being the spiritual head of the institution. So far as appointment of remaining three members of committee of management is concerned, under the scheme of the administration it is provided that their appointments be made by the court as and when the vacancy occurs alongwith conciliation of the Board and Sajjadanashin. By means of the order dated 19th September, 1979 the opposite party no.4 was declared as Sajjadanashin and the President of the committee of management was authorised to make payment of salary etc who was operating the accounts of Waqf. Now after the decree passed in Regular Suit No. 31 of 1966 the order dated 19th September, 1979 goes and a fresh committee of management has to be constituted. therefore, I hereby quash the order dated 19th September, 1979 with the direction that the appointment of three members of committee of management shall be made with the conciliation of the Board of and Sajjadanashin , for which Sajjadanashin as well Board both shall move necessary application before the court concerned proposing the names for appointment as members. The court concerned after considering the eligibility of those persons shall appoint three persons as members of the committee of management of Waqf concerned out of proposed members, who along with the petitioner who has been declared as Sajjadanashin shall administer the waqf under the terms of the scheme of administration framed by the court. The order dated 22.1.1980 passed by the Secretary of the Board shall remain operative till the new composition of committee of management of the Waqf.
In the result, the writ petition is allowed in part.
Order Date :- 6.1.2010 GSY