Patna High Court
Qzair Ahmad Khan @ Ojair Ahmed Khan vs The Bihar State Sunni Waqf Board, … on 26 June, 2025
Author: Rajiv Roy
Bench: Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVIEW No.482 of 2017
In
Civil Writ Jurisdiction Case No.7838 of 2015
======================================================
Qzair Ahmad Khan @ Ojair Ahmed Khan S/o Akhyar Hussain Khan, R/o
Village - Paili, P.O. - Bhadeya, P.S. - Barachatti, District- Gaya, Presently
residing at Mohalla - Aliganj, P.S. - Chandauti, District- Gaya.
... ... Petitioner/s
Versus
1. The Bihar State Sunni Waqf Board, through its Chierf Executive Officer, Haj
Bhawan, 34 Ali Imam Path, Patna.
2. The Chief Executive Officer, Bihar Sunni Waqf Board, Haj Bhawan, 34 Ali
Imam Path, Patna.
3. Md. Arif Khan @ Khurram Khan S/o Late Abdul Jabbar Khan, Mutawalli
Irshad Ali Khan Waqf Estate No. 99, Gaya, R/o Village - Karma, P.S. -
Barachatti, District- Gaya.
4. Anup Gupta S/o Late Sonu Lal, Shop No. 17 (in the name and Styled as
Sonu Lal and Sons), Plaza Market, G.B. Road, P.S. - Civil Line, District-
Gaya, R/o 3 Makhlantganj, P.S. - Kotwali, District- Gaya.
5. Md. Mansoor Alam S/o Late Md. Siddique Ansari, Shop No. 15 (in the name
and styled as M.S. Electronics) Plaza Market G.B. Road, P.S. - Civil Line,
District- Gaya, R/o Mohalla - Old Karimganj, Gali No. 3, P.S. - Civil Line,
District- Gaya.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Santosh Kumar, Senior Advocate
Mr. Arshad Alam, Advocate
Ms. Anjum Parveen, Advocate
Mr. Utsav, Advocate
Mr. Kamran Fazal, Advocate
For the Resp. nos 1 & 2 : Mr. Md. Helal Ahmad, Advocate
For the Resp. No. 3 : Mr. Sajid Salim Khan, Sr. Advocate
Mr. Arif Daula Siddiqui, Advocate
Mr. Naumaan Ahmad, Advocate
For the Resp. nos. 4 & 5 : Mr. Syed Asgher Najmi, Advocate
Ms. Kainat Akhtar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
Date : 26-06-2025
Heard Mr. Santosh Kumar, learned Senior counsel
duly assisted by Mr. Arshad Alam for the petitioner, Mr. Sajid
Salim Khan, learned Senior Counsel for the respondent no.3,
Patna High Court C. REV. No.482 of 2017 dt.26-06-2025
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Mr. Helal Ahmad representing respondent nos. 1 and 2 and Mr.
Syed Asgher Najmi representing the respondent nos. 4 and 5.
2. The civil review petition no. 482 of 2017 has been
preferred for the following relief(s):
"to review the order dated 06.10.2017
passed in CWJC No. 7838 of 2015 by Hon'ble Mr.
Justice Ahsanuddin Amanullah (as his lordship
then was) by which the writ application filed by
this petitioner have been dismissed and the prayer
made by the petitioner to quash the order dated
13.03.2015
passed by the State Waqf Tribunal in
Title Suit No. 10/14 was rejected.”
3. The details of the property in question is/are as
follows:
“Plaza Market (Irshan Manzil) measuring 13
kathas, Holding No. 39, Ward No. 5 situated at Mohalla
G.B. Road (Kutchehary Road), Gaya, bounded as
follows:
North-House of Chamari Sahu.
South-Parti land and after that Theosophical
Society premises, Dargah of Hazrat Qutub Shaheed.
East-Municipal Drain and Road.
Patna High Court C. REV. No.482 of 2017 dt.26-06-2025
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Hasan Mukhtar.
(1). Shop no. 17, Block-A.
North -Shop No. 15
South- Shop of Fakhre Alam 9Watch Centre)
East- G.B. Road
West- Back Side of Sangam Electronics.
(2). Shop No. 15, Block-A.
North- Passage of Plaza Marked
South- Shop No. 17 Sonu Lal & Sons
East- Shop No. 16
West- Shop No. 14″
4. Anup Kumar Gupta (respondent no. 4) and Md.
Mansoor Alam (respondent no. 5) claiming themselves to be
tenants of the said Plaza Market preferred Title Suit No. 10 of
2014 (Anup Kumar Gupta and Anr. vs Bihar State Sunni
Waqf Board and other) before the Bihar State Waqf
Tribunal, Patna (hereinafter referred to as ‘the Tribunal’)
against the review petitioner (defendant no. 4 amongst other)
claiming that though the aforesaid land belongs to Waqf State,
they are their tenants but surprisingly, Qjair Ahmad Khan
(review petitioner) raising frivolous claim over the property
Patna High Court C. REV. No.482 of 2017 dt.26-06-2025
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wanted them to vacate the premises. In the said Suit, the Waqf
Board was also impleaded as a party. An objection was raised by
the review petitioner before ‘the Tribunal’ citing Section-89 of
the Waqf Act, 1995 (henceforth for short ‘the Act’) stating that
the suit has been filed without mandatory notice to the Waqf
Board and as such, it is fit to be dismissed.
5. Section 89 of ‘the Act’ read as follows:
‘No suit shall be instituted against the Board in
respect of any act purporting to be done by it in
pursuance of this Act or of any rules made
thereunder, until the expiration of two months
next after notice in writing has been delivered
to, or left at, the office of the Board, stating the
cause of action, the name, description and place
of residence of the plaintiff and the relief which
he claims; and the plaint shall contain a
statement that such notice has been so delivered
or left.”
6. The case of the review petitioner is/was that since
no notice was issued to ‘the Board’ before filing the suit, the
same is not maintainable. ‘The Tribunal’ took up the matter on
13.03.2015 and rejecting the preliminary objection of the review
Patna High Court C. REV. No.482 of 2017 dt.26-06-2025
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petitioner held that since the Waqf Board despite being
impleaded as defendant is not agitating the non-service of
notice, it cannot be fatal to the case. It held that the third party
objection is fit to be dismissed (Annexure-3 to the writ petition).
7. Aggrieved, the review petitioner preferred CWJC
No. 7838 of 2015 (Qzair Ahmad Khan @ Ojair Ahmad Khan
vs The Bihar State Sunni Waqf Board and Anr.).
8. During the pendency of the first writ petition, two
more writ petitions came to be filed by the petitioner; one
CWJC No. 10579 of 2017 for setting aside the order dated
15.02.2017 passed by ‘the Tribunal’ in Title Suit No. 10 of
2014 by which direction to maintain status quo was passed and
the other, CWJC No. 12357 of 2017 for setting aside the order
dated 30.06.2017 passed by ‘the Tribunal’ to maintain status
quo in Title Suit No. 07 of 2016 filed by ‘the Board’.
9. It is to be noted that during the pendency of the
first writ petition, ‘the Board’ came forward and also preferred
Title Suit No. 07 of 2016 before ‘the Tribunal’ with regard to
the same Suit property in which status quo order was passed as
stated above leading to the third writ petition.
10. The batch cases were taken up by a Bench of this
Court [Hon’ble Mr. Justice Ahsanuddin Amanullah (as his
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lordship then was)] on 06.10.2017 and the same were
dismissed . Paragraph no.8 onwards read as follow:
8. Having considered the facts and
circumstances and submissions of learned
counsel for the parties, the Court does not find
any merit in the present writ petitions. First and
foremost, the judgment of the Hon’ble Supreme
Court in the case of Rajasthan Wakf Board
(supra) squarely covers the issue before this
Court as the facts of the said case which have
been stated in paragraphs no. 6, 7 and 8 of the
judgment are similar to the facts of the present
case. Moreover and more importantly, just
because the petitioner has not denied the fact
that till 1973 the property was Wakf property
would not mean that the property being a Wakf
property is not in dispute. The Court is surprised
at the interpretation given by learned counsel for
the petitioner that since it is admitted that in the
year 1973 the property was Wakf property would
mean that the nature of the property being Wakf
property is not in dispute. Nothing can be more
Patna High Court C. REV. No.482 of 2017 dt.26-06-2025
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fallacious in such understanding, for the simple
reason that, in the years 2014 and 2016 when
Title Suits No. 10 of 2014 and 7 of 2016 were
filed before the Tribunal, the central and moot
question was that the property was disputed to
be Wakf property as the claim was that it had
become a purely private property owned by the
petitioner and that too from the year 1973 itself.
Thus, clearly as on day the Title Suits were filed,
the dispute started with the issue as to whether
the property in question was Wakf property,
which obviously is denied by the petitioner as he
claims that it is not so and it is his private
property right from the year 1973. The attempt of
learned counsel for the petitioner to take the
Court to the facts of Bhanwar Lal (supra) of the
Hon’ble Supreme Court is equally misplaced for
the reason that after considering the said
decision and another decision of the Hon’ble
Supreme Court, the judgment has been passed in
the case of Rajasthan Wakf Board (supra). The
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same categorically states that the question as to
whether the property was Wakf property or not
can be decided only by the Tribunal and not by
the Civil Court, the relevant being at paragraph
no. 27 of the aforesaid judgment, and is the
direct answer to the submissions made by
learned counsel for the petitioner, and thus, has
rightly relied upon by learned counsel for the
Board.
9. For the reason aforesaid, the writ petitions
stand dismissed.
10. However, it shall be open to the petitioner to
raise all the points available to him before the
Tribunal itself, which shall be decided by the
Tribunal, in accordance with law while finally
deciding the suits.
11. Further, as both the Title Suits are pending
before the Tribunal between the Board and
petitioner and other similarly situated persons, it
would be appropriate that they are heard and
disposed off together.
11. Aggrieved by the said order, the review petitioner
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moved before the Appellate Court by filing LPA No. 1554 of
2017 (Qjair Ahmad Khan vs. State Sunni Waqf Board &
Ors.) against the order passed in CWJC No. 7838 of 2015. The
Division Bench presided over by the then Hon’ble the Chief
Justice on 13.11.2017 took up the matter and taking note of
section 89 of ‘the Waqf Act‘ observed that the learned Single
Judge has not addressed the said issue. Thus, liberty was granted
to the appellant to prefer review petition. Another LPA no. 1463
of 2017 filed against the order passed in CWJC no. 12357 of
2018 was disposed of on 29.06.2018 by another Division Bench
following the order passed in LPA no. 1554 of 2017. This is
how the present Civil Review petition came to be filed.
12. Learned Senior Counsel representing the review
petitioner submits that section 89 of ‘the Waqf Act‘ is clear:
when the Waqf Board is one of the party defendant, notice has
to be issued mandatorily to it failing which the Suit is not
maintainable. He has taken this Court to the words used in the
said section to support the claim. Further, in support of the case,
he cited the order of the learned Single Judge of Bombay High
Court in Civil Revision No. 242 of 2007 (Syed Abdul Razzaq
Aminuddin and Anr. vs. Maharashtra State Board of Waqf)
to submit that even if the Board is a proforma party, notice has
Patna High Court C. REV. No.482 of 2017 dt.26-06-2025
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13. Learned Senior Counsel further submits that now
that ‘the Board’ itself has come forward and filed Title Suit No.
07 of 2016 before ‘the Tribunal’, in that background, the claim
of the private respondents automatically goes as even their
claim is that the property belongs to ‘the Board’ in the earlier
petition which has not come forward and is agitating the matter.
14. Mr. Helal Ahmad, learned counsel representing
‘the Waqf Board’ has filed counter affidavit in which their stand
is that ‘the Board’ being proforma party in Title Suit No. 10 of
2014, non-issuance of notice in no way affects the health of the
case. He however submits that since the review petitioner is
claiming the land to be his own property which is actually the
Waqf property, ‘the Board’ in order to protect its interest came
forward and preferred Title Suit No. 07 of 2016 which is
presently pending before ‘the Tribunal’.
15. Mr. Sajid Salim Khan, learned Senior Counsel
representing the respondent no.3 submits that the Writ Court
clearly recorded all the facts which resulted into dismissal of the
petitions holding that both the Title Suits of the private
respondent as also the Waqf Board can be heard together. The
review petition as such is fit to be dismissed.
Patna High Court C. REV. No.482 of 2017 dt.26-06-2025
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16. The original plaintiffs of Title Suit No. 10 of 2014
(Anoop Kumar Gupta & Anr.) are represented through Mr. Syed
Asghar Najmi and according to him, the absence of issuance of
notice under section 89 of ‘the Act’ will not affect the health of
the case. He however submits that now as ‘the Board’ has come
forward to claim its land by filing Title Suit No. 07 of 2016 and
since they have also been made parties to it, they shall be
agitating the matter in the said Suit.
17. Having heard the parties at length, the question
before this Court is: whether the absence of notice to ‘the Waqf
Board’ under section 89 of the Waqf Act will affect the merit of
T.S. no. 10 of 2014.
18. For the proper appreciation, this Court would
would like to re-record Section 89 of ‘the Act’ which read as
follows:
‘Section-89: No suit shall be instituted against
the Board in respect of any act purporting to be
done by it in pursuance of this Act or of any
rules made thereunder, until the expiration of
two months next after notice in writing has been
delivered to, or left at, the office of the Board,
stating the cause of action, the name,
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plaintiff and the relief which he claims; and the
plaint shall contain a statement that such notice
has been so delivered or left.”
19. The claim of plaintiff in the Title Suit No. 10 of
2014 is/was that the Suit property belongs to the Waqf Board
which the defendants/review petitioner are claiming to be their
personal property. However, since the plaintiffs sought remedy
against private defendants and not Waqf Board, it being
proforma party, notice under section 89 of ‘the Act’ was not
required.
20. This in the opinion of the Court is an erroneous
stand. Here is the case of the plaintiffs that the review petitioner
are claiming the property of the Waqf Board. In that
background, it was mandatory on their part to follow section 89
of ‘the Act’ by delivering a notice to ‘the Board’. When it has
been made a party to the suit, ‘the Board’ should have been
necessarily put on notice before the filing of the Suit as
mandated in the aforesaid section.
21. The order of the Bombay High Court in Syed
Abdul Razzaq Aminuddin (supra) is taken into account which
read as follows:
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18. In the said context, the contention of the
learned counsel for the petitioners, that if the
petitioners succeed in demonstrating that the
acts challenged of the defendants are not in
consonance of the provisions of the Wakf Act,
1995 then notice under Section 89 of the Wakf
Act, 1995 would not be necessary, would amount
putting the cart before the horse, and hence,
there is no substance in the said argument.
Moreover, it is also seen that the main relief
sought in Suit no. 109 of 2007 is against the
Maharashtra State Board of Wakfs, Aurangabad
and, therefore, the said relief is against the said
authority and not against its Chief Executive
Officer and therefore also, as rightly pointed out
by Shri P.V. Mandlik, learned Senior counsel for
respondent no. 17 notice under Section 89 of the
Wakf Act, 1995 prior to institution of Suit No.
109 of 2007 by the petitioners/plaintiffs herein is
mandatory and the said non-issuance of
mandatory notice under Section 89 of the Wakf
Act, 1995 prior to institution of Suit No. 109 of
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2007 is certainly fatal to the case of the
petitioners.
22. This Court is thus of the opinion that ‘the
Tribunal’ erred in rejecting the preliminary objection of the
review petitioner vide an order dated 13.03.2025 in Title Suit
No. 10 of 2014. This Court is in complete agreement with the
Bombay High Court judgment in Syed Abdul Razzaq
Aminuddin (supra) that the notice under Section 89 of ‘the Act’
is mandatory when ‘the Board’ is party to the suit.
23. Having recorded the aforesaid facts, this Court has
taken note of the fact that in between, another development took
place and ‘the Board’ realising its property is at stake too came
forward and preferred/filed Title Suit No. 07 of 2016 before
‘the Tribunal’ which is pending and both the plaintiffs and
defendants of the Title Suit No. 10 of 2014 have been impleaded
as parties in the said suit.
24. Thus, the closure of further proceedings in Title
Suit No. 10 of 2014 will not affect the health of either the
plaintiffs and/or the defendants/review petitioner as they will
have the opportunity to present their respective stand in Title
Suit No. 07 of 2016 filed by ‘the Board’.
25. At this stage, learned Senior Counsel for the
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review petitioner submits that probably and to his knowledge,
the plaintiffs of Title Suit No. 10 of 2014 have not been
impleaded as defendants by ‘the Board’ in the Title Suit No. 07
of 2016. Learned counsel representing the original plaintiffs of
Title Suit No. 10 of 2014 refutes the same and submits that it is
a wrong statement and they too are parties to the Title Suit No.
07 of 2016.
26. ‘The Tribunal’ shall verify the matter and if
necessary shall be issuing notices to all the necessary parties in
the case before the matter is taken to its logical conclusion.
27. In the aforesaid facts and circumstances, while
allowing ‘the Tribunal’ to go ahead with the Title Suit No. 07 of
2016 filed by ‘the Waqf Board’; this Court holds that so far as
the Title Suit No. 10 of 2014 (Anup Kumar Gupta & Anr. vs.
Bihar State Sunni Waqf Board and Ors.) is concerned, the
curtains should be lowered in the aforesaid case and the file be
consigned. In short, ‘the Tribunal’ shall close the proceedings of
the Title Suit No. 10 of 2014 and shall proceed only with the
Title Suit No. 07 of 2016 filed by ‘the Board’.
28. Needless to add, the status quo as existing today
shall be maintained with regard to the suit property by all the
parties. The agitating parties are duty bound to present proper
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petition(s) before ‘the Tribunal’ in next eight weeks for grant of
interim protection, if any, in the matter. In case, it is filed within
the aforesaid period, ‘the Tribunal’ shall be duty bound to pass
an order in the said petition after hearing the necessary parties in
next six weeks. Till ‘the Tribunal’ takes a decision in the matter
and passes an order relating to interim protection, the status quo
as existing today shall be maintained.
29. It is further made clear that if the parties fail to
present a proper petition within the next eight weeks; the status
quo order passed today shall come to an end.
30. With the aforesaid direction(s), the review
petitions stand disposed of.
(Rajiv Roy, J)
vinayak/-
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