AI Structured Summary
Not yet generated for this judgment
Judgment
Rakesh Sharma, J.—Heard Sri H.S. Sahai, learned Senior Advocate assisted by Sri U.S. Sahai for the petitioner. Sri Anil Kumar, learned Counsel has put in appearance on behalf of opposite party No. 1 and newly impleaded parties. Mohd. Arif Khan, learned Counsel has put in appearance saying that he is appearing for the Mutawalli of Waqf, Musammat Rahiman, widow of Sheikh Baqar, opposite party No. 2. Sri K.L. Gurnanee, learned Counsel has appeared before the Court stating that he has been engaged by the opposite party No. 2, claiming himself to be Mutawalli of Waqf.
Since this is a writ petition under Article 226 of the Constitution of India, the learned Counsel who have put in appearance before the Court, claiming themselves to be interested in the subject matter of dispute, were given opportunity of putting forth their cases as per Rule 5A contained in Chapter 32 of the Rules of the Court. This Court can hear the versions of the concerned parties as intervener also.
A Sri K.L. Gurnanee appearing for opposite party No. 1, has opposed the impleadment of Mohd. Khalil, Hazi Mohd. Nazeer, Mohd. Moeed and Sri Mustaqeem Ahmed. This Court has already passed an order on 2.5.2006, allowing application for impleadment of these persons as necessary parties. This Court has also taken note of the fact that Sri H.S. Sahai, learned Senior Counsel appearing for the petitioner, in his application for interim relief/stay and affidavit submitted on 1.9.1998, has inflated that the property it. dispute has been sold through a registered deed executed on 15.4.1998 to the above named persons. The sale deed, was executed on 15.4.1998 and proceedings for mutation of their names in the record of Nagar Nigam were pending disposal. The petitioner herself admitted in her affidavit dated 31.8.1998 that the sale deed was executed between the above named persons represented by Mohd. Arif Khan, learned Senior Advocate and Satya Marg Lodge Theosophical Society, Lucknow. In the light of these versions and the order passed by this Court on 2.5.2006, the submission of Mohd. Arif Khan, learned Senior Advocate appearing for the newly impleaded opposite parties, has already been heard.
Sri H.S. Sahai, learned Senior Advocate has further submitted that the matter could be remanded to the Rent Control Officer for re- adjudication in the light of the submissions made by the parties before this Court.
The petitioner, Km. Qudsia Begum has assailed the order passed by the Rent Control Officer, Lucknow (then District Supply Officer (Rent Control) Lucknow on 20.9.1979 and the subsequent order passed by the revisional Court i.e. the III Additional District Judge, Lucknow, on 21.4.1980. Both the Courts below have recorded concurrent findings of fact that the allotment of the disputed premises by the Rent Control Officer on 10.7.1979 was obtained on perpetrating fraud and misrepresentation by Km. Qudsia Begum in collusion with Abdul Rahim alleging himself to be Mutawalli of Waqf Musammat Rahiman. The order dated 20.9.1979, by which the illegal allotment order was set aside and found to be legal, valid and proper by the revisional Court. It is noteworthy that the alleged allotment in favour of Km. Qudsia Begum had remained in operation from 10.7.1979 to 20.9.1979 i.e. 72 days only.
Sri H.S. Sahai, learned Senior Counsel appearing for the petitioner, Sri H.S. Sahai, has submitted that the petitioner is running Pritec Tailoring & Embroidery Centre, Lucknow, which is a Government sponsored institution for imparting training to the women of weaker Sections of the society. Earlier this centre was being run in two small rooms rented in 114, Wazirganj, Lucknow. There is a Waqf known as Waqf Musammat Rahiman, which comprised of, besides other properties, Khasra Plot No. 53 and part of 54 known as Takia (Qabristan) in Mohalla Khalayak Bagh on Jagat Narain Road near the Railway Bridge, City Station, Lucknow. After the death of one Sheikh Baqar, a Waqf known as Shah Hamdani was created in respect of Plots No. 53 and 54 and Abdul Karim was appointed as its Muttawalli. This was a registered Waqf granted by Alfaz Kareev as its Muttawalli. Near plots No. 53 and 54, which are Waqf properties, there is a building known as Satya Marg Lodge Theosophical Society, which is on Jagat Narain Road, Lucknow.
As per Sri H.S. Sahai, learned Counsel for the petitioner, Km. Qudsia Begum and Sri K.L. Gurnanee appearing for the alleged Muttawalli, the construction of Satya Marg Lodge Theosophical Society''s building exists on plot No. 52 and part of plot No. 54. The Satya Marg Lodge Theosophical Society became defunct. After the death of its Muttawalli, Sri Abdul Karim, Sri Abdul Rahim became the Mutawalli. The petitioner needed better and spacious accommodation for running the Pritec Tailoring & Embroidery Centre, in furtherance of which, she submitted an application to the District Supply Officer (Rent Control) on 17.5.1979 for declaring the building at Plot No. 53 as vacant.
Sri H.S. Sahai has further submitted that the petitioner had applied for allotment of the property of plot No. 53. The District Supply Officer (Rent Control) called for a report from the Rent Control Officer who submitted its report on 22.5.1979. Some other persons had also applied for allotment of the accommodation but they did not press their applications. A formal allotment order was issued in favour of the petitioner on 10.7.1979. Mutwalli, Sri Abdul Rahim was not handing over the possession of the property as he was demanding premium (Pagari) for allowing entry of the petitioner. The petitioner applied to the District Supply Officer, (Rent Control) for obtaining Form No. C and Form No. D. The possession of the building was taken by the petitioner on 5.8.1979 after seeking help of the local police. A copy of the report regarding delivery of the possession has been filed along with the writ petition. One Sri Ateeq son of Sri Haji Abdul Rahim had also taken possession of the articles kept in the hall of the building.
Dr. Ravindra Behari Srivastava, son of late Dr. Pyarey Lal Srivastava who got the society registered with the Registrar of Firms on 22.5.1979 in the name and style of ''Satya Marg Lodge Theosophical Society'', filed an application dated 7.8.1979, seeking review of the allotment order dated 10.7.1979 issued in favour of the petitioner, Km. Qudsia Begum. This application was filed u/s 16(5) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''U.P. Act No. 13 of 1972'') for reviewing the order of allotment issued in favour of the petitioner-tenant. A fresh report was called from the Rent Control Officer who agam visited the site and another report was submitted on 27.8.1979 by one Sri R.C. Pandey, Senior Inspector. The petitioner hadsubmitted her objections to this report on 4.9.1979. The petitioner wanted to give an application for permission to cross-examine the Senior Inspector, Sri R.C. Pandey but her application was rejected by the order dated 4.9.1979 and 11.9.1979 was fixed for hearing.
Mutwalli, Abdul Rahim also filed his reply on 11.9.1979 along with an affidavit. The District Supply Officer (Rent Control) by the order dated 20.9.1979 allowed the review application submitted by the opposite party No. 1 and ordered that possession of the building in dispute be delivered to Satya Marg Lodge Theosophical Society, Lucknow. The said authority had indicated in the order that he was not going to decide the question of title, whether the building in dispute was constructed on Khara Plot No. 53 or Khasra Flot Nos. 52 or 54. He was to see as to who was in possession in the said building before it was allotted and at the time of delivery of the possession through the police force. As per the District Supply Officer (Rent Control), Lucknow, Satya Marg Lodge Theosophical Society, was housed in the premises in question and its library existed therein. It was held that the order dated 10.7.1979 was based on misrepresentation of facts of the petitioner and it was done in collusion with Abdul Rahim etc.
Being aggrieved of the order, a Rent Revision No. 252 of 1979 was filed by the petitioner. Another Revision No. 245 of 1979 was filed by Mutwalli, Abdul Rahim, challenging the order dated 20.9.1979 passed by the District Supply Officer (Rent Control), Lucknow. These revisions were heard and decided together by III Additional District Judge, Lucknow, who vide order dated 21.4.1980, dismissed these revisions.
Sri H.S. Sahai, learned Counsel for the petitioner has submitted that both the Courts below have wrongly held that the building in dispute allotted to the petitioner, was already in possession of Satya Marg Lodge Theosophical Society. This Society was in possession of the said building at the time of submission of the application for allotment. In fact, the Society was not in possession of the building or premises which was allotted to the petitioner, Km. Qudsia Begum to run the Pritec Tailoring & Embroidery Centre.
Sri K.L. Gurnanee, learned Counsel for the opposite party No. 2, Mutawalli, Sri Abdul Rahim, now substituted by his son Abdul Hakim, has put in appearance. He has submitted that he is representing the legal and valid Mutwalli of the Waqf, which is having possession and rightful claim over the Khasra plot No. 53. The premises, which was allotted to Km. Qudsia Begum, was a Waqf property. She was paying rent to the Mutwalli of the Waqf. The said Mutwalli had contested the review petition filed by Satya Marg Lodge Theosophical Society. Sri Abdul Rahim had also filed a Revision No. 245 of 1979, which was wrongly rejected.
Sri K.L. Gurnanee, the whole dispute is centred around the plot No. 53, which was a Waqf property, managed by his client, the present Mutwalli of the Waqf. He has laid much stress on an affidavit dated 21.5.1980 filed by a retired Amin, Syed Abdul Rub who had submitted before this Court that he was involved in the survey and settlement of the land in the area in question. After survey of the area, Syed Abdul Rub, had found that the whole building in dispute situate at Khasra plot No. 53, and no portion of it is situate Khasra plot Nos. 52 or 54. A map was also prepared by him. Sri K.L. Gurnanee has further submitted that he was managing the building and its possession was handed over by him to Km. Qudsia Begum after allotment of the same in her favour by the District Supply Officer (Rent Control), Lucknow. Furniture and other goods which were lying in the building were taken away by the son of Mutwalli. The Rent Control Officer and the revisional court were not empowered to settle the dispute relating to the title. In fact, both the courts below have adjudicated title dispute, which is not permissible under law. These orders are null and void. Sri K.L. Gurnanee has placed reliance on the cases reported in 1954 ALJ 551 , Bux Singh Vs. Joint Director of Consolidation and Others, , Bux Singh v. Joint Director, Consolidation, AIR 1978 Mad 285, Kumaraswami v. D.R. Naiappa, in support of his submissions that the courts below were lacking jurisdiction. Without any justification, the District Supply Officer (Rent Control) had unnecessarily cancelled the valid allotment of the petitioner. The Mutwalli never objected to the allotment of Km. Qudsia Begum. The relationship of landlord and tenant were between Waqf and the petitioner.
The affidavit of a retired Amin which has been filed for the first time has also got no relevance to this case. He was heard by the District Supply Officer (Rent Control), Lucknow while entertaining the review application of the Society through its lawyer on 27.8.1979. The objection was filed on 4.9.1979. Thus Sri Abdul Rahim, alleged Mutwalli was given opportunity of hearing by the Rent Control Officer also before setting aside the allotment order. Sri Kamaluddin had put in appearance on his behalf before the Rent Control Authority and the Rent Control Inspector who had submitted the subsequent report during review proceedings.
Sri Anil Kumar, learned Counsel for the newly impleaded opposite parties who had purchased the property in dispute from Satya Marg Lodge Theosophical Society, Lucknow vide sale deed dated 1.4.1998 has vehemently opposed the writ petition. He has submitted that unnecessary confusion has been created by the tenant Km. Qudsia Begum by introducing alleged Mutwalli, falsely stating before the court that the building/property/structure situated at Khasra Plot Nos. 52, 54 and 53 Khalayak Bagh, Wazirganj, Lucknow was a Waqf property and the building was owned by the Waqf. The submissions of the petitioner-tenant and the opposite party No. 2, are fabricated, false and baseless. It is nothing but an attempt to grab the property of philanthropic charitable educational trust. He has led the Court through the chronology of events and highlighted the past history of the property.
The building covers (Khasra No. 53 and some portion of Khasra Nos. 52 and 54). The Satya Marg Lodge Theosophical Society was established in the city of Lucknow as every educated citizen knows that Miss. Annbesant had established the society in Madras and its branches did spread over in all parts of the Country. In the year 1927, the Satya Marg Lodge Theosophical Society took on lease a plot of land from Nazul. On 22.4.1932, a deed of lease was executed in respect of the said land between the Secretary of State for India in Council and Babu Beni Prasad, President of Theosophical Satyamarg Lodge, Lucknow, whereby 1 Bigha, 2 Biswas, 9 Biswansis and 16 Kachwansis plot of land situate at Golaganj in the city of Lucknow was leased out to the Theosophical Society for a term of 90 years from 1st day of August, 1927.
Under the terms of the said lease a sum of Rs. 120 Annas 8 only was payable as yearly rent for the first 30 years, Rs. 168 Annas 12 was payable as yearly rent for the second 30 years and Rs. 253 Annas 2 was payable as yearly rent for the third 30 years. To the said lease a lay out plan of the land was also annexed and the deed was duly registered in the office of Sub-Registrar, Lucknow. In the year 1935, Dr. Pyare Lal Srivastava resident of Chanchhi Kunwan, Lucknow was the President of the Satyamarg Lodge Theosophical Society. The then President of the Satyamarg Lodge Theosophical Society, Dr. Pyare Lal Srivastava obtained permission to raise construction over the aforesaid land. The aforesaid permission was granted on 7.11.1935 on the application made by Dr. Pyarelal Srivastava on 17.9.1935. Ramendra Behari Srivastava obtained a certified copy of the permit to build, issued by the Municipal Board, Lucknow. After the aforesaid permission to build was granted, the disputed building was constructed on a portion of land leased out to the Society under the lease deed dated 22.4.1932. In the aforesaid building, an electric connection was also taken in the name of this Society. Even before 1940, the aforesaid Society was maintaining its library in the main hall with furniture, ceiling fans and other electric fittings, worth several thousands of rupees. In this very hall, meetings of the Theosophical Society were used to be held and no portion of the building was ever let out to anybody. Apart from the said building there were, houses which were let out to the tenants, who paid rent to the said Society. The electricity bills dated 6.5.1939 and current bill have already been put on record.
The building was assessed to house and water taxes. In the year 1953, it was assessed in the name of Dr. Pyarelal Srivastava, President Satya Marg Lodge Theosophical Society. The Municipal Taxes assessed on the aforesaid building are being paid by the Satya Marg Lodge Theosophical Society, Lucknow. On 5.8.1979, which was a Sunday and the premises were locked, the possession over the building was taken by the petitioner, Km. Qudsia Begum with the help of police. As soon as the said information reached, Ramendra Bihari Srivastava contacted the local police and came to know that the possession had been delivered under the orders of respondent No. 4. On 7.8.1979, Sri Ramendra Bihari Srivastava on behalf of the said Society filed a review application before the respondent No. 4 u/s 16(5) of the U.P. Act No. 13 of 1972. The said review application was allowed after contest by the Km. Qudsia Begum by order dated 20.9.1979. Thereafter, two revisions were filed before the District Judge, Lucknow one by the petitioner and the other by the respondent No. 2, said to be Mutwalli. Both these revisions were dismissed by the III Additional District Judge vide order dated 21.4.1980.
These orders have been assailed by the petitioner in this writ petition. On the basis of above chronology of events, Sri Anil Kumar has submitted that the above said Society was the owner of the building, premises and it had rightly sold the premises in question covering plot, Khasra Nos. 52 and 54 to Mohd. Moid, Mohd. Khalil, Mohd. Nazeer and Mustaqeem, on 1.4.1998. A lease deed of transfer was duly executed. A registered sale deed was also executed on 6.4.1998. Copies of the registered deeds executed on 1.4.1998 and 6.4.1998, have been placed on record. Now the aforesaid persons have become absolute owners and landlords of the property, including the built up portion of the premises in question. The new owners have stepped into the shoes of the previous owner/landlord, namely; Satya Marg Lodge Theosophical Society, Lucknow.
Anil Kumar has further submitted that learned Additional District Judge/Special Judge, E.C. Act, Lucknow, has granted approval to the transfer of the property by the Society in Misc. Case No. 296 of 1997. The schedule of the property is same as the same was in the year 1932, when the original lease deed was executed on 22.4.1932 between the Secretary of the Estate and Council and Babu Beni Prasad, the President of the Satya Marg Lodge Theosophical Society. This lease was registered and entered in Register No. 1352, Book No. 1, Volume 889 on Page 63 dated 2.5.1932.
Sri Anil Kumar has further contended that Km. Qudsia Begum, petitioner in collusion with Abdul Rahim and Abdul Hakim etc. has created unnecessary confusion and has really blown up the matter. Both the courts below have taken into account that the application for allotment in favour of the petitioner was dealt with hurriedly. The first report of the Inspector was found to be incorrect, although, the Mutwalli did not file any objection to the allotment proceedings. The possession of the said premises was delivered through Forms C and D using police force. Right from the beginning, the said Mutwalli, represented by Sri K.L. Gurnanee was acting in collusion with Km. Qudsia Begum with an intention to grab the property. The landlord, owner of the property immediately reacted by sending telegrams to the higher authorities and immediately filed a review application u/s 16(5) of U.P. Act No. 13 of 1972. The Society was in possession of the building, adjacent land and quarters since 1927. It was maintaining its library and old and new valuable books were kept in the main hall with furniture, ceiling fans and electric fittings etc. The building was never let out to anybody and the same was also not open for allotment.
Unnecessary controversy was raised regarding plot number where the said building was situated. The building was in existence for more than 60 years. It was false to say that the premises was constructed on a Qabristan. Imaginary submissions have been made by the petitioner and her associates, alleged Mutwallis etc. Both the courts below have taken note that Forms C and D were issued on the ground that landlord was not handing over its possession and demanding illegal gratification from the petitioner. Valuable books and furniture were hidden away. The lease deed indicates the location of the premises and its number which was leased out to the President of the society on 22.4.1932. Earlier also, the A.D.M. (City), who himself inspected the site and found that some persons had pulled down the surrounding wall of the main building of the Satya Marg Lodge Theosophical Society and broken the glass of the building. The electricity bills also show that the Society was utilizing the electricity and paying the bills for the building, not for a Qabristan or Takia Khaliyak Bagh. It was indicated in the report of the police who helped the delivery of the possession of the building in question to Km. Qudsia Begum, petitioner that nine small and big almirahs, old books, chairs and other articles were found in the premises, which were taken by Abdul Rahim.
Sri Anil Kumar has drawn attention of this Court that the courts below had also noted the conduct of the Mutwalli that he had raised no objection to the allotment proceedings and then what was the use of the above mentioned articles which were kept there in the premises in question. The total number of books, seal, furnitures put in the library, were not disclosed by the concerned police. It was also not ascertained as to whom these articles belong to. Both the courts have rightly come to the conclusion that there was a library which was being used by Satya Marg Lodge Theosophical Society and almirahs, chairs and old books were found in the premises in question. This fact has led to the conclusion that these articles belong to the society. Being aggrieved with the aforesaid ex parte possession to Km. Qudsia Begum, telegrams were sent by the Society to the higher authorities immediately and instantly.
Earlier to this also, complaints were made by the Society to the higher authorities that there was apprehension of taking over the possession of the premises by some undesirable elements. It was rightly held by the District Supply Officer (Rent Control) that the aforesaid Society was using the premises in question, in which its library existed. The courts below have rightly dealt with the objections raised by the Mutwalli and Km. Qudsia Begum that the building was constructed on plot No. 53 and it belongs to Waqf Masjid Shah Hambani Khaliqbagh. The courts below have also dealt with the submissions of the present petitioner and the Mutwalli that the Rent Control Officer was not to decide the question of title rather was required to see that the premises which has been allotted to Km. Qudsia Begum of which possession was taken by her through the police was being claimed by Satya Marg Lodge Theosophical Society, seeking review that the premises, building belongs to the society and its library was existing therein. The Rent Control Officer, District Supply Officer (Rent Control) has taken note of the fact that there was existence of a building for which three persons had sought allotment. At the time of allotment proceedings, the said Mutwalli raised no objection but when he caused hindrance in delivering possession, Forms C and D were issued. The Mutwalli willingly allowed the petitioner and her persons to take over the articles found in the premises.
Sri Anil Kumar has further drawn attention of the Court that the same Mutwalli did not disclose to the Rent Control Officer as to who was the last tenant of the premises in question. The issuance of Forms C and D, indicates that there was demand of illegal gratification and some unsocial elements were interested in grabbing the property of Satya Marg Lodge Theosophical Society, Lucknow. The courts below have also taken note of the strange behaviour exhibited by the Mutwalli. The conduct of Sri H.P. Chauhan, Inspector, who submitted the first report was found to be suspicious. He was the root cause of the problem. The Rent Control Officer has gone to the extent of saying that that if the Society was not housed in the premises in question, then what charm he has to enter into this controversy and move to the higher authorities for help. The findings and conclusions drawn by the courts below are just and proper.
Sri. Anil Kumar has also further submitted that both the orders passed by the courts below had become final as the opposite party No. 2, Mutwalli represented by Sri K.L. Gurnaree has not approached this Court, challenging the order passed by the revisional court. His revision No. 245 of 1979 has already been dismissed by the revisional court. He, in fact, had collusion with the petitioner in grabbing the property of the society, which is now held by the new purchasers. Km. Qudsia Begum, petitioner is occupying the premises illegally without even paying the rent to anyone. The revision was dismissed on 21.4.1980. Thus, the orders passed by the prescribed authority as well as the revisional court have attained finality.
As far as Abdul Rahim and his legal heirs are concerned, Sri Anil Kumar has brought to the notice of the Court, the provisions contained in Section 16(7) of U.P. Act No. 13 of 1972 and submitted that Sri K.L. Gurnanee, learned Counsel for the Mutwalli, cannot challenge these two orders as the same have become binding upon Abdul Rahim and Abdul Hakim etc. He has also submitted that the Society was paying lease rent to the Lucknow Development Authority. The demand was made on 17.2.1979, 21.2.1979 and 25.3.1979 by the Society (not by any other claimant of the property).
Sri Anil Kumar, learned Counsel for the respondent No. 1, has placed reliance on several cases in support of his submissions and findings of fact that society was owner and in possession of the premises which cannot be altered under writ jurisdiction of this Court under Article 226 of the Constitution of India. There was element of fraud. On the point of finality of the orders of Rent Control Officer/District Magistrate u/s 18(3) of Act No. 13 of 1972. Sri Anil Kumar has placed reliance on the following judgments:
1994 (1) ARC 327, Abdul Ghafoor v. The Rent Control and Evition Officer
1988 (1) ARC 297 Dr. Smt. Keshav Devi v. Addl. District Magistrate
1989 (2) ARC 01, G.S. Barrow v. District Magistrate, Lucknow and Ors.
1992 (1) ARC 493. Smt. Meera Agrawal and Ors. v. Addl. City Magistrate
1992 (2) ARC 127, Shilandra Kumar v. Krishna Devi and Ors.
1994 (1) ARC 361, Rate Bajpi v. The District Judge, Kanpur Nagar and Ors.
1998 (2) ARC 678, Kailash Kumar v. IVth Addl. District Judge, Moradabad and Ors.
2005 (3) Supl. ARC 347, Prakash v. IVth Addl. District Judge, Bulandshahar and Ors.
1998 (1) ARC 200 Lakshman Prasad Mahendra Prasad v. Ist Addl. District Judge
Ashok Kumar and Others Vs. Sita Ram,
2005 (2) ARC 80, Sheo Pratap Sinsh v. IIIrd Addl. District Judge
Mohd. Arif Khan, learned Senior Advocate has also made his submissions on the basis of a counter affidavit filed by Mirza Imran Beg, claiming himself to be the President of the Committee of Management of VVaqf appointed by U.P. Sunni Central Board of Waqf vide order dated 20.6.2002. He has submitted that Abdul Hakeem son of Abdul Kareem claiming himself to be the successor of Abdul Raheem, alleged Mutwalli of Waqf of Mst. Raheeman Khalayakbagh, Lucknow is not now Mutwalli of the Waqf. Sri K.L. Gurnanee appearing for the said Mutwalli has concealed the material from the Court that Abdul Hakeem filed a regular Suit No. 234 of 2003, challenging the order of appointment of Mirza Imran Beg. This suit regarding his status is pending disposal before the learned Civil Judge (SD), Lucknow and 15.5.2006 was fixed as the next date. Certified copies of the orders passed on 9.5.2003 and 22.3.2006 have been placed before this Court.
The judgment and order or any other order passed in the writ petition shall affect the rights of Mirza Imran Beg, President of the committee of Waqf and, therefore, he deserves hearing by this Court. He has indicated in Para 4 of the counter affidavit, that there existed a plot/construction/building of Satya Marg Lodge Theosophical Society. It has been clearly indicated in the Waqf deed dated 29.7.1935 registered on 30.7.1935 that on the east side land of Dr. Pyarey Lal (Mulhiq Araji Dr. Pyarey Lal), one of the founder members of the above said Society, has been shown. The Waqf No. 147 comprised of part of plot No. 53 and part of plot No. 54 of the settlement of 1862 with an area of 0-0-10-12 biswansis situate in Mohalla Golaganj, Khalayakbagh, P.S. Wazirganj, Lucknow. On thjs land i.e. plot No. 53 and part of plot No. 54, a masque, a huzra, a kothari and a Mazar was constructed. These have been placed in the registered waqf deed dated 29.7.1935.
Sri Mohd. Arif Khan, learned Senior Advocate has placed on record a copy of the Waqf deed dated 29.7.1935 and the order passed by the U.P. Sunni Centra, Board of Waqf on 27.6.2002, appointing Mirza Imran Beg as Mutwalli of the Wrqf Ekteba Register u/s 30 U.P. Muslim Waqf Act, 1916, to demonstrate the above facts. Mohd. Arif Khan denied all the submissions made by Sri H.S. Sahai and Sri K.L. Gurnanee. According to him, it is. absolutely false and incorrect to state that there are kotharies and a building comprising of a hall, 2 bed rooms and a veranaah with a separate kitchen, bath joom and a latrine constructed a little away from the building.
As a matter of fact, the premises in dispute and the constructions stated in the para under reply do not belong to the Waqf and it is practically impossible and beyond imagination that so much constructions may exist on a small area of 0-0-10-12 biswansis = 721 square fts. purchased by Sheikh Baqar and there also exist a grave yard on a portion of plot No. 53. It is further submitted that Smt. Rahiman had also included a pucca house situate in Mohalla, Chaudhary Garhaiya, P.S. Wazirganj, Lucknow of which the valuation was shown on the date of execution of the Waqf deed as Rs. 400/- and the house was included in the Waqf created by her. He has connected the receipts, building plan and permit sanction of plan of 1933 in this case with the submissions and facts. The resolution of Waqf of 1934 was also read.
As per Sri Khan, both the learned Counsel for the petitioner and the Mutwallis, Abdul Raheem and Abdul Hakeem have tried to mislead the Court in not submitting a correct Hindi translation Will Deed that Smt. Rahiman widow of Sheikh Baquer had written on 29.7.1935 and registered on 30.7.1935. This document was a Will Deed and not a Waqf Deed as has been highlighted by both the Counsel. In this document, the boundaries of the plots have not been mentioned deliberately to assess the correct identity of the plot in dispute. The petitioner is guilty of suppression of material fact and Annexure 6-0 of the petition is not a true copy of the Waqf Deed, whereby Smt. Rahiman included a house situate in Mohalla Chaudhary Garhaiya in the Waqf created by her in respect to plot No. 53M and 54M having an area of 0-0-10-12 biswansis. Most of the time, the petitioner and erstwhile Mutwalli''s Counsel have been reciting about plot No. 53 while in the Will and Waqf Deed plots no 53M and 54M having the above said area has been shown. The building plan filed by the petitioner as Annexure No. 3, relates to a masque which could not be constructed over such a small area of 721 sq. ft., but mention of other constructions as stated to have been raised by the Waqif, Smt. Rahiman etc. or Musmmat Rahiman, is absolutely false and incorrect.
According to Sri Mohd. Arif Khan, learned Senior Counsel, this writ petition deserves to be dismissed on this ground. Sri Khan has dissected each and every document filed by Km. Qudsia Begum, highlighting these documents and explaining their relevance. He has brought to the notice of the Court that Tribunal in O.S. Suit No. 440 of 1986 had passed a judgment/decree on 28.5.1990, ordering deletion of the entry of Waqf No. 543 from the Waqf register. The boundaries of the plots etc. were correct in the Register.
Sri Khan has categorically submitted in Para 9 of the counter affidavit, that there exists a building known as Satya Marg Lodge Theosophical Society, abutting Jagat Narain Road which was built by late Beni Prasad Bhatnagar. The aforesaid building situates on plot No. 52 and part of plot No. 54 but it is absolutely false and incorrect to state that the said building is other than that of the premises in dispute. As a matter of fact, the petitioner by placing incorrect facts is trying to mislead this Court. It is not disputed that the building known as Satya marg Lodge Building and other constructions standing thereon had electric connection and electricity bills were also paid by Dr. Pyare Lal Srivastava. It is absolutely false and incorrect to state that the premises in dispute, namely; Satya Murg Lodge Theosophical Society is a Waqf property or the same is situate on plot No. 53 as has been admitted by the petitioner herself in Paras 8 and 10 of her own writ petition.
Lastly Mohd. Arif Khan has submitted that the judgment and order passed by both the courts below are legal, just and proper and the writ petition is not maintainable and the same is liable to be dismissed.
I have heard learned Counsel for the parties and perused the material on record. I have also carefully gone through the documents pertaining to the allotment proceedings and judgment of the District Supply Officer (Rent Control) and the order passed by the revisional Court i.e. the III Additional District Judge, Lucknow on 21.4.1980.
Both the Courts below have recorded concurrent findings of fact, holding that Satya Marg Lodge Theosophical Society was housed in the premises in question and its library along with furniture, fixtures, electrical fittings were existing in it. The allotment order dated 10.7.1979 was passed in favour of the petitioner by the District Supply Officer (Rent Control), Lucknow on misrepresentation of facts by Km. Qudsia Begum in collusion with Abdul Rahim, alleged Mutwalli (represented by Sri K.L. Gurnanee, Advocate). The allotment order which continued for a short period i.e. from 10.7.1979 to 20.9.1979) was set aside and the possession of the premises in question was restored to Satya Marg Lodge Theosophical Society, having possession of the premises in dispute since 1932.
In the present case, the District Supply Officer (Rent Control) had exercised its power u/s 16(5) of Act No. 13 of 1972 on an application submitted by the said society through its President, Dr. Ravindra Behari Srivastava, real owner, immediately after delivery of the possession of the building, premises to Km. Qudsia Begum who was armed with Forms No. C and D, and sought help of the police force of P.S. Wazirganj, Lucknow. Admittedly, the possession was delivered to her on 5.7.1979 by the Mutwalli, Abdul Rahim who had earlier declined to deliver the peaceful possession and was in collusion with the petitioner during allotment proceedings. The said Society never inducted any tenant in its building, premises. The revisional court while dealing with the two revisions No. 252 of 1979 filed by the petitioner and 245 of 1979 filed by Sri Abdul Rahim, the said Mutwalli, opposite party No. 2 has dismissed them on 21.4.1980 by a detailed, well considered judgment.
The learned Senior Counsel for the petitioner, Sri H.S. Sahai and Sri K.L. Gurnanee appearing for Abdul Rahim, Mutwalli, now represented by Abdul Hakim have created unnecessary confusion in this case, raising question of title, identification of the property etc. Both the courts below have clearly held that the question whether the premises lies in Plot Nos. 52, 54 or in Plot No. 53, was to be decided in the proceedings before the Rent Control Officer i.e. District Supply Officer (Rent Control), Lucknow. The courts below were not examining question of title. They were required to see that the premises which had been allotted to Km. Qudsia Begum and her Pritec Tailoring & Embroidery Centre, the possession of which was taken over by her through police, was being claimed by Satya Marg Lodge Theosophical Society. The Satya Marg Lodge Theosophical Society had claimed before the Rent Control Officer that the premises belongs to the Society and its library was existing therein. The premises was in the possession of the Society since 1932.
The pith and substance of the dispute before the courts below and this Court is whether the above mentioned Society was housed in the premises in question or not? The Rent Control Officer has indicated in its order dated 20.9.1979 that the society may or may not be the owner of the premises but the appropriate authority under the Rent Control Act was to see as to who was in possession of the building at the time of allotment. It has also dealt with the question of ownership of the building, premises which was sought to be allotted to the petitioner. Both the authorities below have come to the conclusion, on the basis of documentary and oral evidence, that Satya Marg Lodge Theosophical Society was housed in the premises in question and its library was existing therein. The courts below on the basis of material on record have come to the conclusion that the order of allotment was obtained perpetrating fraud and misrepresentation on District Supply Officer (Rent Control), Lucknow. The allotment proceedings were illegal. The proceedings were conducted without any notice to the landlord, owner or the party in possession of the premises.
I have also thoroughly gone through the documents filed in this petition by the parties. On the basis of documents submitted by Sri Anil Kumar, learned Counsel for the Satya Marg Lodge Theosophical Society, it was abundantly clear that through a registered sale deed executed on 22.4.1932, the said Society became lessee, owner and landlord of the premises. The Society on 17.9.1935 applied to the Secretary of the State Government of U.P. A formal permission was granted on 7.11.1935. The present building (illegally allotted to the Km. Qudsia Begum) was built on the said premises. The court has taken note of the boundaries in the lease deed dated 22.4.1932 and the permission to build the house or building. An electric connection was also obtained by the Society for the same building and the electric connection continued in the building. This Court has also perused the electricity bills, receipts etc. issued on 17/19.5.1939. At the relevant time, the United Provinces Electricity Supply Ccmpany Ltd., was supplying the electricity in the city of Lucknow. Another electricity bill of the year 1979 is also on record. The said Society was duly registered on 21.5.1979. However, there existed Satya Marg Lodge Theosophical Society in the year 1927 and in the year 1932 also.
The Court further noted that the building was assessed by the Nagar Mahapalika, Lucknow in the year 1953, 1970 and thereafter. In response to the notice given by the Lucknow Development Authority, the landlord-society had paid taxes and other dues to the Lucknow Development Authority. During all these period, Abdul Rahim, Mutwalli or the other erstwhile Mutwallis were not in the picture. It is noteworthy that in the counter affidavit filed by Mirza Imran Beg, President of the duly recognized Waqf, appointed by the Waqf, as per the provisions of the Waqf Act, has supported the above facts. It has been brought on record that the alleged Waqf known as Waqf No. 147 comprised of Plot No. 53 and part of plot No. 54, indicated as Plot No. 53M and 54M in the Waqf Register on 30.7.1935. Even the Plot Nos. 53M and 54M fully described the land of Dr. Pyarey Lal (Mulhiq Araji Dr. Pyarey Lal), one of the old founders of Satya Marg Lodge Theosophical Society, Lucknow. Thus the said Society was not the stranger to the premises. The District Supply Officer (Rent Control) has rightly observed in its judgment dated 20.9.1979 that "if the applicant was not housed in the premises in question then what charm he has to enter in these controvery and moved to the higher authority".
In the affidavit filed by Mirza Imran Beg, President of the Waqf appointed by U.P. Sunni Central Board of Waqf vide order dated 20.6.2002, status of the premises owned by Satya Marg Lodge Theosophica1 Society etc. has been clearly highlighted. In this regard I have already indicated the detailed pleadings of the Satya Marg Lodge Theosophical Society and the present President of the committee of the Waqf in the foregoing paras.
As far as allotment proceedings are concerned, both the courts below have held that the fraud and misrepresentation was perpetrated on the Rent Control Officer by Km. Qudsia Begum, petitioner petitioner and Abdul Rahim, Mutwalli, opposite party No. 2. As per chronology of events, only three applicants, Smt. M. Begum, Dr. Y.K. Sharma and Pritec Tailoring & Embroidery Centre, had submitted their applications on 10.5.1979 for allotment of the premises in question. A report of Rent Control Inspector, Sri H.P. Chauhan was obtained on the said allotment applications who reported on 22.5.1979 that the premises, consists of one big hall two side rooms, latrine and both room. He has further indicated in its report (falsely reported) that the premises belong to Waqf, Shah Hamdani of which Haji Abdul Rahim was a Mutwalli. As per Inspector''s report, the premises was lying vacant for the last 10-12 years and it was under the lock and key of the said Mutwalli.
On the basis of his report dated 22.5.1979, the vacancy of the said premises was notified and the premises in question was allotted to the petitioner on 10.7.1979 as the other two applicants did not press their applications for allotment. Interestingly, the Mutwalli, Abdul Rahim had filed his Vakalatnama but did not file any objection about the allotment proceedings. In fact, the District Supply Officer (Rent Control) ought to have made an investigation and the objections of Satya Marg Lodge Theosophical Society should have been invited by appropriate notification. Both the courts below have taken notice of the strange fact that Haji Abdul Rahim, said to be Mutwalli, although, he did not file any objection to the allotment proceedings had refused to deliver possession of the premises. There were allegations of making illegal demand, gratification from the petitioner for handing over the possession.
Forms C and D were issued and the petitioner took possession of the premises on 5.8.1979 with the help of the local police. It is relevant to mention that Satya Marg Lodge Theosophical Society immediately after learning about the delivery of the possession of its own b aiding had instantly reacted, sent telegrams to the authorities and submitted a review application on 7.8.1979 u/s 1(5(5) of U.P. Act No. 13 of 1972. The said Society had alleged that Km. Qudsia Begum had taken possession by force. It had been admitted by the police authorities of P.S. Wazirganj , Lucknow that there were 9 small and big wooden almirahs, books, chairs and other articles in the premises. These were taken away by Abdul Rahim, alleging himself to be the Mutwalli of the property.
The District Supply Officer (Rent Control) has rightly expressed his surprise on the conduct of Abdul Rahim and the petitioner, as to why the process of obtaining Forms C and D has been adopted in this case when Mutwalli, Abdul Rahim raised no objection in the allotment proceedings and what was the use of the articles like books, almirahs which were kept there in the premises in question. The said Society has claimed that it was housed in the premises in question and its library was being maintained therein. The District Supply Officer (Rent Control) while setting aside his earlier order of allotment has laid emphasis on the police report which indicated that there were old books, almirahs, chairs and furniture in ihe premises which were taken away by Abdul Rahim, Mutwalli.
The said authority has also noted that the President of the Society had sent telegrams to the authorities and earlier to this event he approached the authorities, showing apprehension of taking over the premises by undesirable persons. The attending circumstances indicate that undesirable elements of the area were trying to grab the property of Satya Marg Lodge Theosophical Society, taking advantage of the nature of the society. With this intention, some contenders to the property have come in the picture and made all efforts to illegally enter the property after misrepresenting and misleading the rent control authorities. There was a deliberate design, plan by inducting Km. Qudsia Begum and her centre in collusion with Abdul Rahim who was claiming himself to be Mutwalli of a nearby Waqf, property having 0-0-10-12 Biswansis land measuring 721 sq. fts. only. Mirza Imran Beg, the President of the committee has rightly indicated in its counter affidavit that the building owned by Satya Marg Lodge.
Theosophical Society which was constructed on the plot leased out to Dr. Pyarey Lal in 1932 could not have been constructed on 721 sq. fts'' land, in fact purchased by Sheikh Baquer where existed a grave yard on a portion of plot No. 53. As per Will Deed registered on 30.7.1935 by Smt. Rahiman widow of Sheikh Baquer, there was indication of Plot Nos. 53M and 54M and a portion of plot No. 53 (not the whole plot No. 53).
However, the controversy raised by Sri H.S. Sahai, learned Senior Advocate and Sri K.L. Gurnanee, regarding situation of the. building, identification of the property etc. is not relevant in the present case. Admittedly, a civil suit is pending disposal in the competent civil court at Lucknow in which these disputes are pending adjudication. The concerned persons are parties to this civil suit. The parties may approach the concerned civil court for adjudication of the dispute regarding title.
This writ petition was filed in the year 1980 by the petitioner who remained an allottee on the basis of illegal allotment order which was obtained by committing fraud and concealment over Plot Nos. 52, 53 or 54 or other plots.
Both the courts below have recorded concurrent findings of facts that the said allotment was obtained by perpetrating fraud and misrepresentation etc. After going through the material on record, I find no reason to disagree with the conclusions arrived at by both the courts below. The petitioner has abused the process of law and has tried to remain in possession for the last 27 years without paying any rent to the landlord, owner of the premises. The request of Sri H.S. Sahai, learned Senior Counsel for remanding the matter for adjudication afresh, is wholly misconceived. This Court has dealt with all the points raised by the parties and arrived at the above conclusion. There is force in the argument of Sri Anil Kumar and the case laws cited by him have relevance and fully support his case. In this case, the courts below have held that the society was the owner in possession of the property, building in dispute on the date of its illegal allotment in favour the petitioner and, therefore, an unauthorized allottee is liable to be evicted from the premises. The owners of the property are entitled to be put back in the property. The above mentioned decisions cited by the learned Counsel for the Society cover the controversy raised in this writ petition.
It has also been brought to the notice of the Court that in respect of the property indicated by Sri H.S. Sahai, learned Senior Advocate and Sri K.L. Gurnanee, an adjudication is pending before the Tribunal. A reference u/s 83 of the Waqf Act has already been made to the appropriate authority which is also pending disposal and the parties may wait its decision. This Court has also taken note of the fact that Revision No. 245 of 1979 filed by Sheikh Abdul Rahim, Mutwalli was dismissed by the revisional court. Admittedly, he has not challenged the order dated 21.4.1980 passed by the revisional court. As far as Abdul Rahim is concerned, vide Section 16(7) of U.P. Act No. 13 of 1972, the orders passed by the prescribed authority and the revisional court have, attained finality. The principles of res judicata will now operate against him and he has no right to enter in this litigation now. In the present set of circumstances, the case laws cited by Sri K.L. Gurnanee, learned Counsel appearing for the Mutwalli, opposite party No. 2, are not relevant.
The Satya Marg Lodge Theosophical Society has submitted before the Rent Control Officer that it was the owner of the property and was in possession. There was existence of a library with old books, furniture, fixtures, electricity and water connections in the municipal record and in the record of Lucknow Development Authority. The Society was registered as owner of the premises in the record of Lucknow Development Authority which was illegally allotted to Km. Qudsia Begum. The allotment proceedings were held ex parte behind the back of the owner of the property. Abdul Rahim said to be Mutwalli was introduced by way of fraud as owner of the property by Km. Qudsia Begum. All these allegations against the aforesaid persons were found correct by both the courts below.
It has also been brought to the notice of the Court that the property in dispute has now been transferred to the newly impleaded opposite parties, Mohd. Khalil, Hazi Mohd. Nazeer, Mohd. Moeed and Sri Mustaqeem Ahmad after obtaining permission from the District Judge on 15.11.1997. The deed of transfer of lease was prepared on 1.4.1998 and it was registered on 6.4.1998. The above newly impleaded parties have now stepped into the shoes of Satya Marg Lodge Theosophical Society, Lucknow as owners, landlords of the premises, building.
In view of above discussion, the writ petition is devoid of merits and the same is dismissed.
The petitioner, Km. Qudsia Begum and all those concerned with the management of Pritec Tailoring & Embroidery Centre, are directed to vacate the premises, building in dispute within one month from today.
This judgment and order is being pronounced in the presence of learned Counsel for the parties. Since this Court has upheld the order passed by the District Supply Officer (Rent Control) on 20.7.1979 and the order dated 21.4.1980 passed by the revisional Court i.e. III Addl. District Judge, Lucknow who had concluded the controversy that the petitioner had obtained allotment order dated 10.7.1979 by perpetrating fraud and misrepresentation, the petitioner shall pay damages amounting to Rs. 1,00,000/- for illegally using and occupying the premises for the last more than 26 years to the owner of the property in dispute, opposite party No. 1. The undertaking given by Sri K.B. Sinha on behalf of the opposite party No. 1, landlord was withdrawn on 23.5.1980, and there was no interim order available to the petitioner after this date to occupy the premises.
The petitioner and legal heirs of Abdul Rahim and Abdul Hakim, who were and are still claiming to be Mutwallis of Waqf, Musammat Rahiman widow of Sheikh Baqar, are directed to return/hand over the books, old books, documents, almirahs, fixtures, electrical fittings etc. (as indicated in the police report, of P.S. Wazirganj dated 5.8.1979 and may be available in the file of allotment proceedings), within one month from today to the Satya Marg Lodge Theosophical Society, Lucknow. The concerned authorities of Rent Control Section of the Collectrate, District Magistrate''s Office and P.S. Wazirganj will make necessary endeavour to deliver the property back to the society which the police of P.S. Wazirganj, Lucknow delivered to Sri Ateek Ahmad son of Sri Abdul Rahim.
This order is being passed in peculiar facts and circumstances of the case. Abdul Rahim had taken away the above material, property from the premises in dispute. The police of P.S. Wazirganj, Lucknow had delivered the old books, almirahs, furniture, electrical fittings etc. to Abdul Rahim, said Mutwalli. Sri K.L. Gurnanee, learned Counsel appearing for the opposite party No. 2 shall communicate this order to the concerned parties for ensuring compliance of the Court''s order. Sri K.L. Gurnanee shall file affidavit of compliance sworn by the legal heirs of Abdul Rahim and Abdul Hakim or other concerned persons who are responsible for returning the above material, books etc. which were available in the premises on 5.8.1979, Sunday.
All the concerned parties, authorities including the District Magistrate, Lucknow, Senior Superintendent of Police, Lucknow, stent Control Officer, Prescribed Authority appointed under the rent control laws shall ensure compliance of this Court''s order and take all necessary measures including coercive measures, which are available with them under law. The Prescribed Authority appointed under the U.P. Act No. 13 of 1972 shall take out all concerned record immediately to assist the concerned authorities who are responsible for compliance of this Court''s order passed today.
A copy of this judgment and order shall be sent to the District Magistrate, Lucknow and Senior Superintendent of Police for information and taking necessary action.