AQEEL AHMAD Vs. MOHD. MOIN

JUDGEMENT

(1.) Heard Sri Saurabh Srivastava, learned counsel for the petitioner and Sri Atul Dayal, assisted by Sri Manish Tandon, learned counsel appearing on behalf of the respondents. The brief facts, as set up by the petitioner in the present writ petition, are that House No. 99/11, Bekanganj, Kanpur Nagar, was owned by one late Mst. Fatima Bibi. It appears that there were several tenants in the said house. One of the tenants was Jalil Ahmad. Mst. Fatima Bibi, during her life time, dedicated the said property in the name of 'Allah' 'The God', through a registered will dated 24th January, 1970. Subsequently, she executed another registered will, dated 18th April, 1980, dedicating her property in the name of 'Allah', 'The God'. Lastly, Mst. Fatima Bibi again executed a third registered will deed dated 15th June, 1981 by which she bequeathed said property to Smt. Mahmooda Begum. Mst. Fatima Bibi died on 14th December, 1981. Smt. Mahmooda Begum also died on 23rd December, 1983. After the death of Smt. Mahmooda Begum, her son became the owner of the property, who sold the property to the respondents by means of the registered sale-deed dated 13th December, 1991. It appears that the respondents filed the release application, under Act No. 13 of 1972, in the year 1994 against Jalil Ahmad for release of the accommodation, which was registered as Rent case No. 45 of 1994. Jalil Ahmad died during the pendency of the said rent case and his legal heirs, namely, his widow and five daughters were substituted. The release application was allowed vide order dated 27th April, 1996. Appeal filed against the order dated 27th April, 1996, has been dismissed against which Writ Petition No. 11365 of 1998 has been filed, which too has been dismissed vide an order dated 30th July, 2012. The respondents moved a petition under Section 23 of Act No. 13 of 1972 to enforce the order dated 27th April, 1996, passed in Rent Case No. 45 of 1994, which was registered as Miscellaneous Case No. 2/23/2011, Mohd. Moin and others v. Smt. Julekha and others. The Prescribed authority issued warrant of possession.

(2.) It is the case of the petitioner that after execution of the first will deed on 24th January, 1970 and by the declaration made therein, the property has been dedicated to 'Allah', The God' and a waqf was created and the said property vested on the waqf. When the petitioner came to know about the alleged misappropriation of the waqf property, he applied before the Sunni Central Waqf Board for registration of the property as the waqf property. An enquiry was made by the Inspector of the Sunni Central Waqf Board and thereafter, notices were issued to the respondents and the petitioner and on consideration of the evidence filed by both the parties, Sunni Central Waqf Board, vide the order dated 8th July, 2006, has held that the Premises No. 99/11, Bekanganj, Kanpur Nagar, is a waqf property and Zamila Khatoon was appointed as the President, the petitioner as the Secretary and one Wakil Ahmad was made member. Subsequently, Zamila Khatoon died and the constitution of the Mutwalli was changed vide order dated 25th May, 2008 by the Board. The petitioner, however, continued as the Secretary. Against the order of Waqf Board, the respondents instituted a Misc. Case No. 281/70 of 2006, Mohd. Moin and others v. Sunni Central Waqf Board, before the Waqf Tribunal, Kanpur Nagar. Sunni Central Waqf Board filed the objection and the petitioner also filed his objection and the said case is pending for disposal before the Waqf Tribunal. The Tribunal has not passed any interim order and when the Waqf Board directed the District Magistrate, Kanpur Nagar to deliver the possession to the Waqf, the Waqf Tribunal vide order dated 22nd July, 2011 has directed to maintain status quo. The matter is still pending.

(3.) According to the petitioner, when the Prescribed authority issued warrant of possession, then the petitioner came to know about the rent control proceedings and thereafter, the petitioner filed the objection in Misc. Rent case No. 2/23/11, which has been registered as Misc. Case No. 20/74/2012. The objection has been filed stating that the property in question is a waqf property of which the petitioner is a Mutwalli, therefore, the provisions of Act No. 13 of 1972 do not apply in view of Section 2(bbb) of the Act. Thus, no warrant of possession can be issued under Act No. 13 of 1972. The respondents also filed their objection. The Prescribed authority, vide order dated 15th July, 2013 has rejected Misc. Case No. 20/74/2012, Aqeel Ahmad v. Mohd. Mobin, which is being impugned in the present writ petition.