HASHIM HUSAIN Vs. AHMAD RAZA

JUDGEMENT

(1.) THE present Misc. Application No. 1 of 1963 has been filed under Section 76 of U. P. Muslim Waqt Act 1960 (hereinafter referred to as the Act). The proviso to the aforesaid section gives power to the High Court to call for and examine the record of any case for the pur pose of satisfying itself as to the correctness, legality or propriety of any award made under the Act.

(2.) WAQF No. 388, known as 'Waqf Altaf Husain, Varanasi City' is a public waqf and had been published as such in U. P. Gazette dated 23rd January, 1954 by the C. R. Central Board of Waqfs, Uttar Pradesh, Lucknow. The aforesaid waqf comprises of an imambara with a big hall, a room, mosque and a vacant piece of land, situated in mohalla Sarai Shitab Rai, Mutalliqa Roshan Katra, Varanasi. An application under Sec tion 63 (5) of the Act was filed by the appli cants for possession of the waqf properties detailed above on the ground that the Shia Central Board (hereinafter referred to as the Board) had appointed a committee of management consisting of the applicants as mutwallis and as the possession of the op posite parties was unauthorised and illegal the applicants were entitled to obtain pos session from the opposite parties. It was alleged in this connection in the aforesaid ap plication that one Syed Ghulatn Abbas, who was the last mutwalli of the said waqf, died on 30th May, 1960. As there was no deed of waqf laying down the line of succession to the mutwalliship the office of mutwalli be came vacant after his death. Opposite Par ties 1 to 3 (hereinafter referred to as the opposite parties), however, asserted that as they had been nominated by Ghulam Abbas to act as mutwallis after his death so by virtue of the said nomination they were en titled to function in that capacity. As the right of the opposite parties to work and function as mutwallis was disputed by the Board, on being approached by some resi dents of Varanasi the Board passed a resolu tion dated 3rd March, 1963 under Section 48 of the Act and appointed applicants 1 to 3, with two others, as members of the com mittee of management of the waqf. These two others, however, subsequently resigned. They were, therefore not the members of the committee. The Board by the letter dated 19th March, 1963 authorised the applicants to have delivery of possession over the waqf properties and as the opposite parties did not hand over possession consequently the applicants filed an application under Sec tion 63 (5) of the Act against the opposite parties for an award to direct them to deliver possession of all the waqf properties, ac counts and cash. The said application was numbered as Reference No. 7 of 1965. It was contested by opposite parties 1 to 3. The tribunal by the award dated. 12th March, 1968 found in favour of the applicants and directed the opposite parties to vacate pos session of all the waqf properties. Against the aforesaid award an application under Section 76 of the Act was filed in the High Court. The High Court by its judgment dated 24th January, 1969 found that as the term of the members of the committee who had made the application had expired, they became functus officio, hence no relief could be granted to those members on the basis of that application. The High Court refrain ed from making any observation on the merits of the grounds on which the tribunal had passed the order holding the opposite parties liable to hand over possession. It appears that the Board, after the aforesaid judgment of the High Court, passed a fresh resolution on 16th March, 1969 and appointed a fresh committee of management consisting of the present applicants as mutwallis. This resolu tion was passed in exercise of the power under Section 48 of the Act on the assump tion that as after the death of Ghulam Abbas there was a vacancy in the office of mut walli so far as this waqf was concerned and as Ghulam Abbas did not have any right to nominate any mutwalli after his death, therefore the opposite parties could not law fully claim themselves as mutwallis. It was after the passing of the aforesaid resolution that the present application to the tribunal for an award to direct the opposite parties to deliver possession of all the waqf properties was made. The ground taken in the aforesaid application, as stated above, was that since the office of mutwalli was vacant and as the Board was entitled to appoint the applicants as mutwallis the applicants having been appointed as such and authorised by the Board to obtain possession, were making the application in that capacity.

(3.) THE Board also filed a written statement and admitted in the same that Ghu-lam Abbas had been appointed as a mut-walli in the year 1922 and that he had been recognised as a mutawalli by the Board. It was, however, alleged by the Board that after the death of Syed Ghulam Abbas in 1960 there was vacancy in the office of mutwalli as nomination of the opposite parties as mutwalli was without any authority of law.