AMINA KHATOON Vs. THIRD ADDL. D.J.

JUDGEMENT

(1.) THE short question which falls for determination is whether in an appeal filed under section 57 -A of the U.P. Muslim Waqf Act, 1960, the appellate court has jurisdiction to determine the question whether the person against whom the Board issues a requisition to the Collector to obtain and deliver possession of the property, is an unauthorised occupant or his occupation is valid and lawful. In the present case the learned District Judge has dismissed the appeal filed by the original petitioner Smt. Amina Khatoon (who died during the pendency and is now represented by Tariq Akhtar Ansari) without considering her claim that she was in occupation as a 'Mutvalli' on the ground that in the exercise of his power under section 57 -A, it was not competent to examine the correctness or otherwise of the requisition issued by the Board to the Collector under Section 57 -A. Challenging the legality of the impugned order, Haji Iqbal Ahmed, learned counsel for the petitioner submitted that the view taken by the appellate court is manifestly unsustainable in law and as a consequence he has failed to exercise jurisdiction which was vested in it by law. Sri Haider Hussain, learned counsel for the respondent, on the other hand, submitted that the appellate court rightly refused to go into the above question.

(2.) IN order to appreciate the conditions it will be convenient to set forth the relevant statutory provisions:

(3.) IT will be seen that the scope of an appeal under section 57 -A read with section 49 -B is not restricted to any specific grounds. Sub -section 2 of Section 57 -A simply says that the provisions of sub -sections (2) to (7) of Section 57 -B shall mutatis mutandis apply in relation to a requisition under sub -section (1) of Section 57 -A as they apply to a requisition under sub -section (1) of Section 49 -B. Sub -section (4) of Section 49 -B which will apply to an appeal filed under sub -section (2) of Section 57 -A merely confers on an aggrieved person the right to file an appeal to the District Judge against an order of the Collector under sub -section (2). There is, however, nothing in sub -section (4) of Section 49 -B or even Section 57 -A which might justify the conclusion that in an appeal filed against an order of the Collector directing the person alleged to be in unauthorised occupation to deliver the property to the Board, the scrutiny shall be confined only to the question whether the Board has issued any requisition to the Collector and not to the further question whether the person who is alleged to be in unauthorised occupation by the Board is in fact in occupation of the property without any right or title. The words used in Section 57 -A(2) read with Section 49 -B(4) are of wide amplitude not hedged in by any restrictive clause and there is nothing in the scheme of the Act which may justify the conclusion that the District Judge is barred from examining the question whether the occupation of the person proceeded against by the Board under Section 57 -A is lawful, that is, whether he has any right or title to remain in possession over the property.