Mohammad Rashid and Another vs Dy. Director of Consolidation and Others

Ram Surat Ram (Maurya), J.—Heard Sri C.K. Rai for the petitioners and Sri Ram Niwas Singh for the respondents. The writ petition has been filed against the order of Assistant Settlement Consolidation Officer dated 11.12.2006 and 30.5.2009 and Deputy Director of Consolidation dated 2.9.2013 by which, the order of Assistant Settlement Consolidation, Officer dated 4.3.1987 was set aside and the appeal was restored to its original number and the recall application filed by the petitioners has been dismissed and the revision filed by the petitioners has also been dismissed.

Sheikh Kayamuddin (ancestor of the respondents-7 to 10) created a private Waqf by the Waqf deed dated 1.2.1924. In the year 1971, Mehdi Hasan filed Civil Suit No. 370 of 1971 for cancellation of the Waqf deed dated 1.2.1924. On the basis of a compromise dated 9.12.1987 the civil suit No. 370 of 1971 was decreed and the Waqf deed was cancelled. Simultaneously, the dispute relating to the properties recorded in the name of Waqf was also raised before the consolidation authorities and the objection filed by the petitioners was dismissed by Consolidation Officer. The petitioners filed two appeals (registered as Appeal Nos. 71/24 and 72/12) from the order of Consolidation Officer before the Settlement Officer Consolidation. Mohammad Amin, Mehadi Hasan and Mukhtar Ahmad entered into compromise in this appeal on 28.2.1987. It may be mentioned that Sunni Waqf Board, U.P. was also arrayed as respondent-3 in the appeal but the compromise was neither signed by any officer of Sunni Central Waqf Board, U.P. nor any permission has been taken for entering into compromise as required u/s 69 of Muslim Waqf Act, 1960. The Assistant Settlement Officer, Consolidation, however, decided the appeals in terms of the compromise by order dated 4.3.1987. Sunni Central Waqf Board, U.P. filed an application dated 27.7.2006 for recall of the order of Assistant Settlement Officer, Consolidation dated 4.3.1987. Sunni Central Waqf Board, U.P. has also filed an application before the Civil Court (registered as Miscellaneous Case No. 231 of 2006) for setting aside the decree dated 9.12.1987 and restoring the suit to its original number. The Civil Judge (Junior Division), Azamgarh by order dated 15.12.2010 allowed the application and set aside the decree dated 9.12.1987. The order dated 15.12.2010 has been challenged in Civil Revision No. 44 of 2011 which has been dismissed by order dated 22.7.2011. It is alleged that some writ petition has been filed in the year 2011 against the aforesaid order which is pending before this Court.

The application moved by Sunni Central Waqf Board, UP was heard by Assistant Settlement Officer, Consolidation, Azamgarh, who by order dated 11.12.2006 allowed the application condoned the delay and set aside the order dated 4.3.1987 and restored the appeals to their original numbers. The petitioners filed two recall applications for recall of the order dated 11.12.2006 which were rejected by Assistant Settlement Officer, Consolidation by orders dated 30.5.2009. The petitioners filed a revision (registered as Revision No. 685) from the aforesaid order which has been dismissed by order dated 2.9.2013. The consolidation authorities found that although Sunni Central Waqf Board U.P. was party in the appeal but the compromise was neither filed by it nor any prior permission has been taken for entering into the compromise. Accordingly, the order passed on the basis of compromise were illegal. Hence, this writ petition has been filed.

The Counsel for the petitioners submits that Waqf deed has already been cancelled by the decree of the Civil Court dated 9.12.1987, accordingly, the Sunni Central Waqf Board, U.P. was neither necessary nor proper party in the appeal. However, property was continuing in its name, accordingly, it was arrayed as party in the appeal. In such circumstances the compromise was rightly filed by the contesting parties before the Settlement Officer, Consolidation and it was rightly accepted and the order has been passed on its basis. He submits that recall application moved by the Sahayak Survey Commissioner, Waqf Board was not maintainable and the recall application was liable to be dismissed. He further submits that in any case as the order setting aside the decree of the Civil Court is challenged in the writ petition before this Court, as such, this writ petition be also kept pending till the disposal of that writ petition.

In reply to the aforesaid arguments the Counsel for the respondents submits that the petitioners have concealed the material facts that the decree of the Civil Court has been set aside and the revision filed against that order was also dismissed. Accordingly, the writ petition is liable to be dismissed on this ground alone, as held by Supreme Court''s judgment in the case of Ramjas Foundation and Another Vs. Union of India (UOI) and Others, . He further submits that under the Waqf deed dated 1.2.1924, a specific prohibition has been imposed upon the right of Muttawalli to transfer the land in dispute. Accordingly neither the Muttawalli nor the beneficiary of the Waqf have any right to transfer the properties of the Waqf or enter into any compromise relating to its property. He submits that u/s 49-A of U.P. Muslim Waqf Act, 1960, the transfer of immovable property of Waqf is not possible without previous permission of the Waqf Board, similarly, u/s 69 of the U.P. Muslim Waqf Act, 1960 the compromise by the Muttawalli in any case in relation to the properties of the Waqf was not possible without the previous sanction to the Waqf Board. He submits that in spite of the fact that Waqf Board was impleaded as the respondent in the appeals, neither any permission has been obtained for entering into compromise nor the compromise was signed by any officer of the Waqf Board. The compromise has been illegally accepted by Settlement Officer, Consolidation, accordingly, the order of the Assistant Settlement Officer, Consolidation dated 11.12.2006 and 30.5.2009, by which the orders based on compromise have been recalled, do not require an interference by this Court.

I have considered the arguments of the counsels for the parties and examined the records. A perusal of the memorandum of appeal, supplied by the Counsel for the respondents shows that Sunni Central Waqf Board, U.P. was arrayed as respondent-3 in the appeal, however, the compromise was entered into by Mohammad Amin who was appellant and Mehadi Hasan and Mukhtar Ahmad were respondents 1 and 2 in the appeal. The compromise has neither be signed by any officer of the Sunni Central Waqf Board U.P. nor any permission for entering into compromise has been taken from it. In basic consolidation records, the properties in dispute were recorded in the name of the Waqf accordingly, the Waqf Board was necessary party and it was arrayed as respondent also in the appeal. In such circumstances, the compromise could not have been acted upon without there being any representation of the Sunni Central Waqf Board, U.P. in compromise or there being any previous sanction of the Waqf Board as required u/s 69 of U.P. Muslim Waqf Act, 1960. Accordingly, the order allowing the recall application by Assistant Settlement Officer, Consolidation is not required to be interfered by this Court.

So far as the arguments of the Counsel for the petitioners that writ petition is pending against the order of setting aside the decree of the Civil Court, accordingly this writ petition be also entertained and be connected with that writ petition, is concerned, the decree has been set aside, as such, under the Waqf deed is revived. The decree of the Civil Court was passed on 9.12.1987, while the compromise has been filed before Assistant Consolidation Officer on 28.2.1987 on which, order has been passed on 4.3.1987. Thus, on the date of compromise dated 28.2.1987 and order dated 4.3.1987, the Waqf deed dated 1.2.1924 was in existence, as such, the prohibition imposed upon the right of Muttawalli for transferring the land of Waqf was applicable. In such circumstances, mere pendency of the writ petition or the suit will be no ground for keeping the matter before consolidation Court also, pending. The writ petition has no merit and is dismissed.