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Judgment
Rakesh Tiwari, J.—Heard, Sri M. A. Qadeer, senior counsel assisted by Sri Shamim Ahmad, learned Counsel for the petitioners, Sri Haider Hussain, the learned Counsel for respondent No. 1 and Sri M. A. Siddiqui, learned Counsel for respondent No. 13. Perused the record.
In view of the nature of the order which is proposed to be passed, notice need not be issued to respondent Nos. 2 to 12 at this stage.
Waqf No. 3069, Dargah Jhanda Shareef Bade Peer Sahab is registered with the U.P. Sunni Central Board of Waqf, U.P., Lucknow after survey conducted under the provisions of Waqf Act No. 16 of 1960. Another Waqf No. 43, Farrukhabad was also registered separately.
The Controller of the Waqf Board without notice or opportunity to the Committee of Management of Waqf No. 3069 by his ex parte order dated 9.6.1999 merged both the Waqfs appointing Shah Fasihul Hussain Mujeebi, respondent No. 1 who was mutwalli of Waqf Board No. 43 as mutawalli of Waqf Board No. 3069 also. On coming to know about the order dated 9.6.1999, the Committee of Management of Waqf Board No. 3069 moved an application for recall of the aforesaid ex parte order dated 9.6.1999 for setting aside the ex parte order of merger of the two Waqf aforesaid.
The Waqf Board after hearing the parties recalled its ex parte order dated 9.6.1999 and appointed a Managing Committee of managing the Waqf Board No. 3069 as earlier, before merger for a period of one year to be headed by Vice-President, Sharafat Khan and Manu Khan as Secretary. The Waqf Board also issued orders for enquiry against the mutawalli, i.e., respondent No. 1-Waqf No. 43, Sri Fasihul Hussain for his removal from the said waqf. The proceedings for removal of Sri Faishul Hussain from the post of mutawalli of Waqf No. 43 are said to be still pending.
Aggrieved by the aforesaid order, Shah Fasihul Hussain Mujeebi, respondent No. 1, mutawalli of Waqf Board No. 43 filed an appeal u/s 64(4) of the Waqf Act, 1995. The appeal was filed by him after about 8 years from the date of the order dated 19.2.2007 by which the ex parte order merging two Waqf Boards was recalled.
In the meantime, the term of the Committee of Management came to an end on 4.2.2008 as such new members of new Committee of Management were appointed on 19.2.2008 for managing registered Waqf No. 3069 for a period of one year. An Application No. 51C/2 was also filed on behalf of Waqf No. 3069 for dismissing the appeal filed by Sri Faishul Hussain mutawalli of Waqf No. 43 as not maintainable and having become infructuous due to recall of order of merger and after expiry of the term of the Committee of Management and on appointment of the new Committee of Management in its place.
Sri Fasihul Hussain appellant before the Tribunal and in the writ petition respondent No. 1 filed application No. 52A by which an amendment was sought challenging the appointment of new Committee of Management vide order dated 19.2.2008 to which an objection paper No. 60C was filed by the defendant-petitioners, Committee of Management of Waqf No. 3069. The Tribunal has now fixed 3.1.2009 as the date for hearing the matter.
It appears from record that another application No. 56C/2 dated 24.11.2008 has also been filed for expeditious hearing of the appeal allegedly without serving copy of the same upon the counsel for the petitioners, Committee of Management representing Waqf No. 3069 yet another application dated 27.11.2008 also appears to have been filed u/s 24 of the C.P.C. before the District Judge, Farrukhabad for transfer of the case from the Court of Civil Judge (Senior Division), Farrukhabad to some other Court also without giving copy of the same to the counsel for the petitioners.
By an ex parte order dated 26.11.2008 the District Judge has directed the Tribunal to decide the case on day-to-day basis as the Court of Civil Judge (Senior Division), Farrukhabad is only the competent Court to decide the case.
The grievance of the petitioners is that, though, the arguments have been heard on application paper No. 51C/2 yet the Court of Tribunal has not passed any order on the said application and by the impugned order dated 1.12.2008 has allowed the application paper No. 52C/2, which is an amendment application permitting the appellant respondent to amend the grounds challenging the order dated 19.2.2008 by which the new Committee of Management Waqf No. 3069 had been appointed.
Sri Haider Hussain, learned Counsel for respondent No. 1 submits that it is settled law that the amendment may be liberally allowed by which neither the facts nor the nature of the suit is changed and no harm is caused to anybody.
Sri M.A. Siddiqui, learned Counsel appearing on behalf of the Waqf Board supports the petitioners and submits that the appellant respondent No. 1 has a remedy of moving application u/s 83(2) of the Waqf Act, 1995 before the Waqf Tribunal as appeal is not maintainable in respect of the independent cause of action. He also submits that appeal filed by respondent No. 1 before the Tribunal is u/s 64(4) of the Act which can be invoked only against an order of removal of the mutawalli duly appointed in accordance with law.
It is vehemently urged by him that appointment of Sri Fasihul Hussain mutawalli of Waqf No. 43 as also mutawalli of Waqf No. 3069 was not proper and that ex parte order of merger under which he had been appointed had been recalled, therefore, does not vest him with any legal right. It is lastly submitted by him that in the circumstances the case of the appellant/respondent does not fall within the ambit of Section 64(4) of the Waqf Act, 1960.
Section 64(4) of the Waqf Act, 1960 reads as under:
64 (4) A mutawalli who is aggrieved by an order passed under any of the Clauses (c) to (j) of Sub-section (1), may, within one month from the date of the receipt by him of the order, appeal against the order to the Tribunal and the decision of the Tribunal on such appeal shall be final.
Sri Haider Hussain, learned Counsel for respondent No. 1 has refuted this contention by stating that appeal is maintainable as it is against the order of removal of mutawalli of Waqf Board No. 3069.
Admittedly, after hearing learned Counsel for the parties and on perusal of the record it appears that this writ petition has been filed challenging the validity and correctness of the interim order by which the amendment has been allowed and further that application of the petitioners filed prior to the amendment application regarding maintainability of the appeal is pending. The said appeal before the Tribunal is also pending which has not yet been finally decided, hence in the facts and circumstances of this case, this Court is not inclined to interfere in the matter on merits at this stage. The question for the Tribunal still remains to be decided as to (1) whether respondent No. 1 could have been appointed as mutawalli of Waqf Board No. 3069 by an ex parte order of merger of Boards which has been recalled by the Board would fall within the purview of Section 64(4) of the Waqf Act as regards removal of the mutawalli and (2) whether after expiry of the term of the Committee of Management respondent No. 1, mutawalli of Waqf No. 43 could have moved an amendment application in respect of Waqf No. 3069 which admittedly is a separate waqf independent of Waqf No. 3069.
The parties agree that on the date fixed, i.e., 3.1.2009 they will appear before the Tribunal which may be directed to decide all the pending applications on the date fixed including the application regarding maintainability of the appeal filed by the petitioners before deciding the case finally.
For all the reasons stated above and without entering into the merits of the case, it is directed that the Tribunal on the date fixed, i.e., 3.1.2009 shall decide all the pending applications before deciding the case finally keeping in view the two issues raised by the counsel for the parties above, by reasoned and speaking order in accordance with law.
With the aforesaid directions, the writ petition is disposed of finally. No order as to costs.