Rajasthan High Court – Jodhpur
Lrs Of Peer Seyyad Julfikar Ali Jilani … vs Rajasthan Board Of Muslim Waqf on 27 February, 2025
Author: Nupur Bhati
Bench: Nupur Bhati
[2025:RJ-JD:9881]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Writ Petition No. 19528/2023
1. LRs of Peer Seyyad Julfikar Ali Jilani S/o Peer Seyyad
Anwar Ali Jilani, Sajjadanashin And Mutawwali, Dargarh
Hajrat Bade Peer Saheb, Nagaur.
2. Seyyad Sadakat Ali Jilani S/o Sh. Seyyad Mukhtar Ali
Jilani, aged about 50 Years, Sajjadanashin And
Mutawwali, Dargah Hajrat Bade Peer Saheb, Nagaur.
----Petitioners
Versus
Rajasthan Board of Muslim Waqf, through its Chairman, Jyoti
Nagar, Lal Kothi, C-Scheme, Jaipur.
----Respondent
For Petitioner(s) : Mr. Bhavit Sharma
Mr. Hukam Singh
For Respondent(s) : Mr. Himanshu Chowdhary
Mr. Naresh Singh
HON'BLE DR. JUSTICE NUPUR BHATI
Order
Reportable
Reserved on 18/02/2025
Pronounced on 27/02/2025
1. The instant petition under Article 227 of Constitution of India
has been filed challenging the order dated 05.12.2023 (Annex.1)
passed by the learned Sr. Civil Judge and Addl. Chief Judicial
Magistrate, Nagaur (‘learned trial court’) in Civil Suit No.884/2014
with the following prayer:
“It is, therefore, most respectfully prayed that record
of the case be called for and by an appropriate writ, order
or direction:-
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i. the impugned order dated 05.12.2023, passed by
the learned Senior Civil Judge and Additional Chief Judicial
Magistrate, Nagaur in Civil Suit No.884/2014 (03/95) titled
as “Peer Seyyad Julfikar Ali Jilani Vs. Rajasthan Board of
Muslim Waqf” may kindly be quashed and set aside and the
application filed by the respondent defendant may be
dismissed;
ii. any other appropriate writ, order or direction which
this Hon’ble Court may deemed just and proper in the facts
and circumstances of the case may kindly be passed in
favour of the petitioners.
iii. Writ petition filed by the petitioners may kindly be
allowed with costs.”
2. Briefly stated the facts of the case are that in the year 1995,
the petitioners filed a suit (Annex.1) for declaration and
permanent injunction before the learned trial court with the prayer
that the respondent-defendant be restrained from removing the
petitioners from the post of Sajjadanashin and the Dargah Bade
Peer Sahab, Nagaur be declared as a private Dargah.
2.1. The respondent-defendant filed written statement (Annex.3)
on 17.03.1997 through Mr. Ata-Ur-Rahman, the then Assistant
Secretary of the Rajasthan Board of Muslim Waqf, Jaipur (‘the
Waqf Board’). The learned trial court framed the issues on
01.08.2013. Subsequently, the evidence of petitioners was
concluded and matter was kept for defendant’s evidence. The
respondent-defendant filed affidavit dated 05.10.2019 (Annex.4)
of one Mr. Sabir Hussain under Order XVIII Rule 4 of Code of Civil
Procedure, 1908 (‘CPC‘). In the meanwhile the respondent-
defendant filed an application dated 23.10.2021 (Annex.5) under
Order VIII read with Section 151 of the CPC through Mr. Ahmad
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Khan (Chief Executive of the Waqf Board) for bringing on record
certain documents, which was allowed vide order dated
21.02.2022 (Annex.6), whereby the document sought to be
brought on record by the respondent-defendant was allowed to be
taken on record. Subsequently, Mr. Sabir Hussain filed an
application dated 15.09.2023 (Annex.7 colly) under Section 151 of
the CPC praying therein that he may be permitted to file additional
affidavit to amend the earlier affidavit (Annex.4) submitted by him
under Order XVIII Rule 4 of the CPC and also to exhibit the
documents which were taken on record vide order dated
21.02.2022 (Annex.6) since he has been authorized by the
respondent-defendant (the waqf board) for the same vide power
of attorney dated 01.09.2023 (Annex.7 colly.). The learned trial
court vide order dated 05.12.2023 (Annex.1) allowed the
application (Annex.7 colly.) and permitted Sabir Hussain to file
additional affidavit for the purpose of amending the earlier
affidavit (Annex.4) and also permitted him to exhibit the
documents that were taken on record vide order dated 21.02.2022
(Annex.6). Aggrieved by the same the instant writ petition has
been filed by the petitioners.
3. Learned counsel for the petitioners has submitted, while
relying on Section 22 of the Wakf Act, 1954, that the Chief
Executive Officer does not have power to delegate as the same
vests with the Waqf Board. He also submitted that the Chief
Executive Officer could not have delegated the power to exhibit
documents on behalf of the Waqf Board (respondent-defendant
herein) to Mr. Sabir Hussain coupled with the fact that Mr. Sabir
Hussain is neither a member of the Waqf Board nor an officer nor
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a servant. He also submitted that the whole purpose of the suit as
well as creation of Waqf Board will get frustrated if such powers
are delegated to a private party who might have interest in the
suit otherwise.
4. Learned counsel for the petitioners has also submitted that
the learned trial court has erred in permitting Mr. Sabir Hussain to
amend affidavit given in support of evidence under Order XVIII
Rule 4 of the CPC, more so when written statement/pleadings
have not been amended. He also submitted that an affidavit
submitted under Order XVIII Rule 4 of the CPC is virtually
examination-in-chief hence, once the same has been recorded, no
amendment can be made in it later.
5. Learned counsel for the petitioners also submitted that vide
order dated 21.02.2022 (Annex.6) only the permission to get the
documents on record was given however, there was no permission
to get these documents exhibited. Thus, the impugned order is
based on the wrong facts.
6. Learned counsel for the petitioners, while drawing attention
of this court to the caveat filed by the Waqf Board in the present
case in which name of the Chief Executive officer of the Waqf
Board appears, has submitted that on one hand the caveat before
this court has been filed by the Waqf Board and on the other hand
the respondent-defendant has delegated the power to exhibit
documents to Mr. Sabir Hussain who is neither member of the
Waqf Board nor an officer nor a servant.
7. Learned counsel for the respondent-defendant submitted
that he is ready to argue the matter finally without filing reply. He
submitted that the learned trial court has allowed the amendment
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in the affidavit (Annex.4) only to the extent of exhibiting the
documents which were already taken on record vide order dated
21.02.2022 (Annex.6).
8. Learned counsel for the respondent-defendant also
submitted that a resolution was passed by the Waqf Board for
delegating the power to exhibit documents to Mr. Sabir Hussain.
He prayed that he may be granted permission to place a true copy
of this resolution on record as the same is necessary to decide the
question of delegation.
9. In rebuttal the learned counsel for the petitioners
vehemently objected to this request while submitting that the
respondent-defendant has taken adjournment time and again and
it cannot be permitted to place a new document on record before
this court which was never placed before the learned trial court.
He also submitted that the respondent-defendant has not even
filed reply to the instant writ petition hence, they cannot be
permitted to file such additional documents without there being
any pleadings in this regard.
10. Heard the counsel for the parties and perused the material
available on record.
11. This court at the outset finds that the request made by the
learned counsel for the respondent-defendant to place on record
true copy of the resolution passed by the Waqf Board cannot be
allowed as the same was never placed before the learned trial
court. Moreover, the power of superintendence conferred by Article
227 of the Constitution of India is supervisory and not appellate,
thus, the question of considering a document which was not a
part of material avaialble on record before the learned trial court,
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does not arises. Thus, the request made by the counsel in this
regard is rejected.
12. At this juncture this court finds it appropriate to refer to
relevant provisions of law pertaining to the present controversy.
Although the learned counsel for the petitioners has cited
provisions of the Wakf Act, 1954 but this court finds that vide
notification dated 27.12.1995 the date of commencement of the
Waqf Act, 1995 (hereinafter as the Act of 1995) was notified as
01.01.1996, and as per Section 2 of the Act of 1995 it has been
made applicable to all the auqaf whether created before or after
the commencement of the Act of 1995, thus, the provisions of the
same are being referred to by this court. It is evident from the
perusal of preamble of the Act of 1995 that it has been enacted
for the better administration of Auqaf and for matters connected
therewith or incidental thereto.
13. Section 27 of the Act of 1995 provides for delegation of
powers by the Waqf Board. The same reads as under:
“27. Delegation of powers by the Board.–The Board
may, by a general or special order in writing, delegate to
the Chairperson, any other member, the Chief Executive
Officer or any other officer or servant of the Board or any
area committee, subject to such conditions and limitations
as may be specified in the said order, such of its powers
and duties under this Act, as it may deem necessary,
except the powers and functions of the Board mentioned
under clauses (c), (d), (g) and (j) of sub-section (2) of
section 32 and section 110.”
Thus, the bare perusal of Section 27 of the Act of 1995 makes it
evident that the Board may delegate such of its power and duties
except the powers and functions as provided under clauses (c),
(d), (g) and (j) of sub-section (2) of Section 32 of the Act of 1995
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to the Chairperson, any other member, the Chief Executive Officer
or any other officer or servant of the Board or any area
committee. The use of word ‘Board’ in the opening part of this
Section suggests that only the Board can delegate the powers
under Section 27 of the Act of 1995 and such powers cannot be
delegated to any other person except as mentioned therein. And
Section 3 (c) of the Act of 1995 defines the word ‘Board’ as a
Board of Waqf as established either under Section 13 (1) or
Section 13 (2) of the Act of 1995 and includes a common Waqf
Board established under Section 106 of the Act of 1995. Section 3
(c) of the Act of 1995 is reproduced as under:
“(c) “Board” means a Board of Waqf established under sub-
section (1), or as the case may be, under sub-section (2) of
section 13 and shall include a common Waqf Board
established under section 106;”
14. Sub-sections (1) and (2) of Section 13 of the Act of 1995
provides for establishment of Waqf Board. The same is reproduced
as under:
“13. Incorporation.–(1) With effect from such date as
the State Government may, by notification in the Official
Gazette, appoint in this behalf, there shall be established a
Board of Auqaf under such name as may be specified in
the notification:
Provided that in case where a Board of Waqf has not
been established, as required under this sub-section, a
Board of Waqf shall, without prejudice to the provisions of
this Act or any other law for the time being in force, be
established within six months from the date of
commencement of the Wakf (Amendment) Act, 2013 (27
of 2013).
(2) Notwithstanding anything contained in sub-section (1),
if the Shia auqaf in any State constitute in number more
than fifteen per cent. of all the auqaf in the State or if the
income of the properties of the Shia auqaf in the State
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[2025:RJ-JD:9881] (8 of 20) [CW-19528/2023]of properties of all the auqaf in the State, the State
Government may, by notification in the Official Gazette,
establish a Board of Auqaf each for Sunni auqaf and for
Shia auqaf under such names as may be specified in the
notification.
(2A) Where a Board of Waqf is established under sub-
section (2) of section 13, in the case of Shia waqf, the
Members shall belong to the Shia Muslim and in the case
of Sunni waqf, the Members shall belong to the Sunni
Muslim.
(3) The Board shall be a body corporate having perpetual
succession and a common seal with power to acquire and
hold property and to transfer any such property subject to
such conditions and restrictions as may be prescribed and
shall by the said name sue and be sued.”
15. Section 14 of the Act of 1995 provides for the Composition of
the Waqf Board and the same is reproduced as under:
“14. Composition of Board.–(1) The Board for a State
and the National Capital Territory of Delhi shall consist of–
(a) a Chairperson;
(b) one and not more than two members, as the State
Government may think fit, to be elected from each of the
electoral colleges consisting of–
(i) Muslim Members of Parliament from the State or,
as the case may be, the National Capital Territory of Delhi;
(ii) Muslim Members of the State Legislature;
(iii) Muslim members of the Bar Council of the
concerned State or Union territory:
Provided that in case there is no Muslim member of
the Bar Council of a State or a Union territory, the State
Government or the Union territory administration, as the
case may be, may nominate any senior Muslim advocate
from that State or the Union territory, and
(iv) mutawallis of the auqaf having an annual income
of rupees one lakh and above.
Explanation I.–For the removal of doubts, it is hereby
declared that the members from categories mentioned in
sub-clauses (i) to (iv), shall be elected from the electoral
college constituted for each category.
Explanation II.–For the removal of doubts it is hereby
declared that in case a Muslim member ceases to be a
Member of Parliament from the State or National Capital
Territory of Delhi as referred to in sub-clause (i) of clause
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(b) or ceases to be a Member of the State Legislative
Assembly as required under sub-clause (ii) of clause (b),
such member shall be deemed to have vacated the office of
the member of the Board for the State or National Capital
Territory of Delhi, as the case may be, from the date from
which such member ceased to be a Member of Parliament
from the State National Capital Territory of Delhi, or a
Member of the State Legislative Assembly, as the case may
be;
(c) one person from amongst Muslims, who has
professional experience in town planning or business
management, social work, finance or revenue, agriculture
and development activities, to be nominated by the State
Government;
(d) one person each from amongst Muslims, to be
nominated by the State Government from recognised
scholars in Shia and Sunni Islamic Theology;
(e) one person from amongst Muslims, to be nominated by
the State Government from amongst the officers of the
State Government not below the rank of Joint Secretary to
the State Government;
(1A) No Minister of the Central Government or, as the case
may be, a State Government, shall be elected or nominated
as a member of the Board:
Provided that in case of a Union territory, the Board
shall consist of not less than five and not more than seven
members to be appointed by the Central Government from
categories specified under sub-clauses (i) to (iv) of clause
(b) or clauses (c) to (e) in sub-section (1):
Provided further that at least two Members appointed
on the Board shall be women:
Provided also that in every case where the system of
mutawalli exists, there shall be one mutawalli as the
member of the Board.
(2) Election of the members specified in clause (b) of sub-
section (1) shall be held in accordance with the system of
proportional representation by means of a single
transferable vote, in such manner as may be prescribed:
Provided that where the number of Muslim Members
of Parliament, the State Legislature or the State Bar
Council, as the case may be, is only one, such Muslim
Member shall be declared to have been elected on the
Board:
Provided further that where there are no Muslim
Members in any of the categories mentioned in sub-clauses
(i) to (iii) of clause (b) of sub-section (1) the ex-Muslim
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[2025:RJ-JD:9881] (10 of 20) [CW-19528/2023]Members of Parliament, the State Legislature or ex-member
of the State Bar Council, as the case may be, shall
constitute the electoral college.
(3) Notwithstanding anything contained in this section,
where the State Government is satisfied, for reasons to be
recorded in writing, that it is not reasonably practicable to
constitute an electoral college for any of the categories
mentioned in sub-clauses (i) to (iii) of clause (b) of sub-
section (1), the State Government may nominate such
persons as the members of the Board as it deems fit.
(4) The number of elected members of the Board shall, at
all times, be more than the nominated members of the
Board except as provided under sub-section (3).
(6) In determining the number of Shia members or Sunni
members of the Board, the State Government shall have
regard to the number and value of Shia auqaf and Sunni
auqaf to be administered by the Board and appointment of
the members shall be made, so far as may be, in
accordance with such determination.
(8) Whenever the Board is constituted or reconstituted, the
members of the Board present at a meeting convened for
the purpose shall elect one from amongst themselves as
the Chairperson of the Board.
(9) The members of the Board shall be appointed by the
State Government by notification in the Official Gazette.”
Thus, sub-section (1) of Section 14 of the Act of 1995 provides
that the Board shall consist of a Chairperson, atleast one and not
more than two members elected by the State Government from
the electoral colleges as provided under sub-clauses (i) to (iv) of
clause (b), persons nominated by the State Government under
clauses (c), (d) and (e) of sub-section (1) of the Act of 1995.
Further, sub-section (9) of Section 14 of the Act of 1995 provides
that members of the Waqf Board shall be appointed by the State
Government by notification in the Official Gazette.
16. This court also takes into consideration Section 18 of the Act
of 1995 which provides for Committees of the Waqf Board as
under Section 27 of the Act of 1995 the Waqf Board is empowered
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to delegate its powers to an area committee as well. The same is
reproduced as under:
“18. Committees of the Board.–(1) The Board may,
whenever it considers necessary, establish either generally
or for a particular purpose or for any specified area or areas
committees for the supervision of auqaf.
(2) The Constitution, functions and duties and the term of
office of such committees shall be determined from time to
time by the Board:
Provided that it shall not be necessary for the
members of such committees to be members of the Board.”
Thus, the Waqf Board may establish committee (s) for supervision
of auqaf and it is not necessary for the members of such
committee to be members of the Waqf Board.
17. As in the present case the Chief Executive Officer has
delegated the power to Mr. Sabir Hussain to exhibit documents on
behalf of the Waqf Board (respondent-defendant) thus, it is
pertinent to refer to the relevant provisions of the Act of 1995
regarding the appointment, power and duties of Chief Executive
Officer. Section 3 (d) of the Act defines ‘Chief Executive Officer’ as
Chief Executive Officer appointed under sub-section (1) of Section
23 of the Act of 1995. Section 23 of the Act of 1995 provides for
the appointment of Chief Executive Officer, his term and other
conditions of service. The same is reproduced as under:
“23. Appointment of Chief Executive Officer and his
term of office and other conditions of service.–
(1)There shall be a full-time Chief Executive Officer of the
Board who shall be a Muslim and shall be appointed by the
State Government, by notification in the Official Gazette,
from a panel of two names suggested by the Board and
who shall not be below the rank of Deputy Secretary to the
State Government, and in case of non-availability of a
Muslim officer of that rank, a Muslim officer of equivalent
rank may be appointed on deputation.
(2) The term of office and other conditions of service of the
Chief Executive Officer shall be such as may be prescribed.
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(3) The Chief Executive Officer shall be ex officio Secretary
of the Board and shall be under the administrative control
of the Board.”
Thus, Section 23 provides for appointment of Chief Executive
Officer of the Waqf Board who shall be ex officio secretary of the
Waqf Board and shall be under the administrative control of the
Waqf Board.
18. Section 25 of the Act of 1995 provides for the duties and
powers of Chief Executive Officer. The same is reproduced as
under:
“25. Duties and powers of Chief Executive Officer.–
(1) Subject to the provisions of this Act and of the rules
made thereunder and the directions of the Board, functions
of the Chief Executive Officer shall include–
(a) investigating the nature and extent of auqaf and
waqf properties and calling whenever necessary, an
inventory of waqf properties and calling, from time to time,
for accounts, returns and information from mutawallis;
(b) inspecting or causing inspection of waqf properties
and accounts, records, deeds or documents relating
thereto;
(c) doing generally of such acts as may be necessary
for the control, maintenance and superintendence of auqaf.
(2) In exercising the powers of giving directions under sub-
section (1) in respect of any waqf, the Board shall act in
conformity with the directions by the waqf in the deed of
the waqf, the purpose of waqf and such usage and customs
of the waqf as are sanctioned by the school of Muslim law
to which the waqf belongs.
(3) Save as otherwise expressly provided in this Act, the
Chief Executive Officer shall exercise such powers and
perform such duties as may be assigned to him or
delegated to him under this Act.”
Thus, Section 25 provides for the duties and powers of the Chief
Executive Officer which are subject to the provisions of the Act of
1995 and rules made thereunder as well the directions of the Waqf
Board. Further, it is important to note here that under sub-section
(3) of Section 25 the Chief Executive Officer, save as otherwise
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provided under the Act of 1995, may also exercise powers and
perform duties which are or may be assigned to him or delegated
to him under the Act of 1995, but does not provide that the Chief
Executive Officer may further delegate the power to any person
for defending suit and proceedings relating to auqaf.
19. Section 32 of the Act of 1995 provides for the powers and
functions of the Waqf Board which reads as under:
“32. Powers and functions of the Board.–(1) Subject to
any rules that may be made under this Act, the general
superintendence of all [auqaf] in a State shall vest in the
Board established or the State; and it shall be the duty of
the Board so to exercise its powers under this Act as to
ensure that the [auqaf] under its superintendence are
properly maintained, controlled and administered and the
income thereof is duly applied to the objects and for the
purposes for which such [auqaf] were created or intended:
Provided that in exercising its powers under this Act in
respect of any [waqf], the Board shall act in conformity
with the directions of the [waqif], the purposes of the
[waqf] and any usage or custom of the [waqf] sanctioned
by the school of Muslim law to which the [waqf] belongs.
Explanation.–For the removal of doubts, it is hereby
declared that in this sub-section, “waqf” includes a [waqf]
in relation to which any scheme has been made by any
court of law, whether before or after the commencement of
this Act.
(2) Without prejudice to the generality of the foregoing
power, the functions of the Board shall be–
(a) to maintain a record containing information relating to
the origin, income, object and beneficiaries of every [waqf];
(b) to ensure that the income and other property of [auqaf]
are applied to the objects and for the purposes for which
such [auqaf] were intended or created;
(c) to give directions for the administration of 3 [auqaf];
(d) to settle schemes of management for a [waqf]:
Provided that no such settlement shall be made
without giving the parties affected an opportunity of being
heard;
(e) to direct–
(i) the utilisation of the surplus income of a [waqf]
consistent with the objects of [waqf];
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(ii) in what manner the income of a [waqf], the
objects of which are not evident from any written
instrument, shall be utilised;
(iii) in any case where any object of [waqf] has ceased
to exist or has become incapable of achievement, that so
much of the income of the [waqf] as was previously applied
to that object shall be applied to any other object, which
shall be similar, or nearly similar or to the original object or
for the benefit of the poor or for the purpose of promotion
of knowledge and learning in the Muslim community:
Provided that no direction shall be given under this
clause without giving the parties affected, an opportunity of
being heard.
Explanation.–For the purposes of this clause, the powers of
the Board shall be exercised–
(i) in the case of a Sunni [waqf], by the Sunni
members of the Board only; and
(ii) in the case of a Shia [waqf], by the Shia members
of the Board only:
Provided that where having regard to the number of
the Sunni or Shia members in the board and other
circumstances, it appears to the Board that the power
should not be exercised by such members only, it may co-
opt such other Muslims being Sunnis or Shias, as the case
may be, as it thinks fit, to be temporary members of the
Board for exercising its powers under this clause;
(f) to scrutinise and approve the budgets submitted by
mutawallis and to arrange for auditing of account of
[auqaf];
(g) to appoint and remove mutawallis in accordance with
the provisions of this Act;
(h) to take measures for the recovery of lost properties of
any [waqf];
(i) to institute and defend suits and proceedings
relating to [auqaf];
(j) to sanction lease of any immovable property of a waqf in
accordance with the provisions of this Act and the rules
made thereunder:
Provided that no such sanction shall be given unless a
majority of not less than two-thirds of the members of the
Board present cast their vote in favour of such transaction:
Provided further that where no such sanction is given
by the Board, the reasons for doing so shall be recorded in
writing.]
(k) to administer the [Waqf] Fund;
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(l) to call for such returns, statistics, accounts and other
information from the mutawallis with respect to the [waqf]
property as the Board may, from time to time, require;
(m) to inspect, or cause inspection of, [waqf] properties,
accounts, records or deeds and documents relating thereto;
(n) to investigate and determine the nature and extent of 1
[waqf] and [waqf] property, and to cause, whenever
necessary, a survey of such 1 [waqf] property;
[(na) to determine or cause to be determined, in such
manner as may be specified by the Board, market rent of
the waqf land or building;]
(o) generally do all such acts as may be necessary for the
control, maintenance and administration of [auqaf].
(3) Where the Board has settled any scheme of
management under clause (d) or given any direction under
clause (e) of sub-section (2), any person interested in the
[waqf] or affected by such settlement or direction may
institute a suit in a Tribunal for setting aside such
settlement or directions and the decision of the Tribunal
thereon shall be final.
(4) Where the Board is satisfied that any [waqf] land, which
is a [waqf] property, [has the potential for development as
an educational institution, shopping centre, market,
housing or residential flats and the like], market, housing
flats and the like, it may serve upon the mutawalli of the
concerned [waqf] a notice requiring him within such time,
but not less than sixty days, as may be specified in the
notice, to convey its decision whether he is willing to
execute the development works specified in the notice.
(5) On consideration of the reply, if any, received to the
notice issued under sub-section (4), the Board, if it is
satisfied that the mutawalli is not willing or is not capable of
executing the works required to be executed in terms of the
notice, it may, take over the property, clear it of any
building or structure thereon, which, in the opinion of the
Board is necessary for execution of the works and execute
such works from [waqf] funds or from the finances which
may be raised on the security of the properties of the
[waqf] concerned, and control and manage the properties
till such time as all expenses incurred by
the Board under this section, together with interest
thereon, the expenditure on maintenance of such works
and other legitimate charges incurred on the property are
recovered from the income derived from
the property:
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[2025:RJ-JD:9881] (16 of 20) [CW-19528/2023]
Provided that the Board shall compensate annually the
mutawalli of the concerned [waqf] to the extent of the
average annual net income derived from the property
during the three years immediately preceding the taking
over of the property by the Board.
(6) After all the expenses as enumerated in sub-section (5)
have been recouped from the income of the developed
properties, the developed properties shall be handed over
to mutawalli of the concerned waqf.
Thus, as per Section 32 (1) of the Act of 1995 the general
superintendence of all auqaf in a State vests with the Waqf Board
established for the State and it is the duty of the Waqf Board to
exercise its powers under the Act of 1995 so as to ensure that the
auqaf under its superintendence are properly maintained,
controlled and administered and the income thereof is duly applied
to the objects and for the purposes for which such auqaf were
created or intended. Section 32 (2) (i) of the Act of 1995 provides
for the functions of the Waqf Board to institute and defend suits
and proceedings relating to auqaf.
20. The conjoint reading of Section 23 and Section 25 of the Act
of 1995 makes it evident that the Chief Executive Officer shall be
under the administrative control of the Waqf Board and shall have
duties and respective powers as assigned to him or delegated to
him under the Act of 1995. Further, the conjoint reading of the
Section 27 and Section 32 (2) (i) of the Act of 1995 makes it
evident that only the Waqf Board may delegate its power by
general or special order in writing to institute and defend suits and
proceedings relating to auqaf only to the Chairperson, any other
member, the Chief Executive Officer or any other officer or servant
of the Board or any area committee. What emerges from the
above provisions is that only the Waqf Board can delegate its
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[2025:RJ-JD:9881] (17 of 20) [CW-19528/2023]
power to institute and defend suits and proceedings relating to
auqaf as enshrined under Section 32 (2)(i) of the Act of 1995 and
that too to the authority/member mentioned under Section 27 of
the Act of 1995 and the Chief Executive Officer is not bestowed
with any such power of further delegating the power to a person,
who does not fall in the category of members/authority, as laid
down under Section 27 of the Act of 1995.
21. This court finds that in the present case, vide power of
attorney dated 01.09.2023 (Annex.7 Colly.) Mr. Sabir Hussain has
been authorized to exhibit some documents on behalf of the Waqf
Board which were earlier permitted to be taken on record vide
order dated 21.02.2022 (Annex.6) which amounts to defending
the suit on behalf of the Waqf Board. However, the counsel for the
respondent-defendant has been unable to demonstrate before this
court that Mr. Sabir Hussain falls into the category as mentioned
under Section 27 of the Act of 1995 viz. Chairperson/ member/
the Chief Executive Officer/ officer/ servant of the Board or
member of any area committee to whom power may be
delegated. It is also important to note that the power of attorney
dated 01.09.2023 (Annex.7 Colly.) bears the signature of Chief
Executive Officer, Rajasthan Waqf Board who is not empowered
under Section 27 of the Act of 1995 to delegate the powers
further. Thus, this court finds that the power of attorney dated
01.09.2023 (Annex.7 colly) vide which Mr. Sabir Hussain was
authorized to exhibit documents on behalf of the respondent-
defendant (the Waqf Board) is itself non-est in the eyes of law for
the reason that firstly, as per Section 27 of the Act of 1995 only
the Waqf Board can delegate its powers enshrined under Section
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[2025:RJ-JD:9881] (18 of 20) [CW-19528/2023]
32 of the Act of 1995; Secondly, the Chief Executive Offier. could
not have delegated such power, even in case where he was
delegated the power enshrined under Section 32 (1) (i) of the Act,
further to Mr. Sabir Hussain who is neither the Chairperson nor
member nor the Chief Executive Officer nor officer nor servant of
the Board nor member of any area committee. This Court also
finds that the learned trial court, while allowing the application
(Annex.7 colly.) vide impugned order dated 05.12.2023 (Annex.1)
has also erred in observing that vide order dated 21.02.2022
(Annex.6) the respondent-defendant was allowed to place on
record some documents as well as to exhibit them as it is clear
from the bare perusal of the order dated 21.02.2022 (Annex.6)
that the respondent-defendant was only allowed to place the
documents on record. The relevant part of order dated 21.02.2022
(Anenx.6) as well as impugned order dated 05.12.2023 (Annex.1)
is reproduced as under respectively:
21.02.2022 (Annex.6):
Þcgl izkFkZuki= lquh xbZA i=koyh o izkFkZuki= ds lkFk izLrqr nLrkostkr
dk voyksdu fd;k x;kA
izdj.k ds ftu nLrkostkr dks izfroknh }kjk jsdMZ ij ysdj iznf”kZr djokus
dh vuqefr pkgh xbZ gS lHkh nLrkostkr l{ke U;k;ky;ksa }kjk tkjh izekf.kr
izfrfyfi;ka gS tks izdj.k ls lqlaxr izrhr gksrh gS ftudks izdj.k esa jsdMZ ij ysus ls
izdj.k dk U;k;iw.kZ fuLrkj.k djus esa lgk;rk izkIr gksxhA
ijUrq mDr lHkh nLrkostkr izfroknh }kjk tokcnkos ds lkFk izLrqr ugha djrs
gq, vc izLrqr fd;s gSa tks fulansg nsjh ls izLrqr fd;s gSaA vr% U;k;fgr esa izfroknh
dh vksj ls izLrqr izkFkZuki= varxZr vkns”k 8 o /kkjk 151 lhihlh ,rn~ }kjk
1000@& :i;s dksLV ij Lohdkj fd;k tkdj izkFkZuki= ds lkFk izLrqr nLrkostkr
dks jsdMZ ij fy;s tkus dh vuqefr iznku dh tkrh gSA dksLV vnk;xh izdj.k esa Hkkx
ysus dh iwoZorhZ “krZ jgsxhA izfroknh rkYyqdk fof/kd lsok lfefr esa mDr dksLV tek
djokdj jlhn izLrqr djsA i=koyh okLrs lk{; izfroknh fnukad 09-03-2022 dks is”k
gksAß05.12.2023 (Annex.1):
ÞmHk;i{k ds rdksZ ij euu fd;kA lacaf/kr fof/k dk /;kuiwoZd voyksdu
fd;kA voyksdu ls izdV gksrk gS fd izfroknh }kjk mDr izkFkZuk&i= ds ek/;e ls
iwoZ esa muds }kjk izLrqr nLrkost tks gktk U;k;ky; }kjk vkns”k fnukad 21-02-22 ds
tfj;s vfHkys[k ij fy;s x;s Fks] dks xokg lkfcj gqlSu ls iznf”kZr djokuk pkgk gSA
bl laca/k esa izfroknh ds vf/koDrk us oDQ cksMZ dh vksj ls xokg lkfcj gqlSu ls(Downloaded on 07/03/2025 at 11:13:37 PM)
[2025:RJ-JD:9881] (19 of 20) [CW-19528/2023]iznf”kZr djokus dk ewy vf/kdkj i= fn- 01-09-2023 Hkh bl izkFkZuk&i= ds layXu
dj is”k fd;k gSA bl laca/k esa mudk eq[; :ils ;g rdZ gS fd mDr vf/kdkj i=
ls iwoZ lkfcj gqlSu dh vksj ls vkns”k 18 fu;e 4 lhihlh ds v/khu xokg dk eq[;
ijh{k.k dk “kiFk i= is”k fd;k tk pqdk Fkk ijarq oDQ cksMZ }kjk izLrqr nLrkost tks
U;k;ky; }kjk vius vkns”k ls vfHkys[k ij fy;s x;s gSa]dks iznf”kZr djokus ds fy,
xokg ds “kiFk i= esa la”kks/ku dh vko”;drk gS ftlds dkj.k nwljk “kiFk i= is”k
djus dh vuqefr nh tkos tcfd oknh dh vksj ls izkFkZuk i= ij xaHkhj fojks/k trkrs
gq, ;g rdZ fy;k x;k gS fd U;k;ky; dk vkns”k dsoy nLrkost dks jsdMZ ij ysus
dk Fkk rFkk oDQ cksMZ lkfcj gqlSu dks nLrkost iznf”kZr djokus dk vf/kdkj ugha ns
ldrk dsoy U;k;ky; gh ns ldrk gS rFkk “kiFk i= la”kksf/kr djus dk dkuwu es
dksbZ izko/kku ugha gSA mDr rdksZ ds n`f’Vxr bl U;k;ky; }kjk ikfjr vkns”k fnukad
21-02-22 dk voyksdu fd;k tkos rks izdV gksrk gS fd U;k;ky; ds }kjk mDr vkns”k
esa izLrqr nLrkost tks l{ke U;k;ky; dh izekf.kr izfrfyfi;ka ,oa ifCyd MkD;qesaV
gksuk ekurs gq, lqlaxr ekurs gq, jsdMZ ij ysrs gq, iznf”kZr djokus dh vuqefr nh
xbZ gSA tgka rd dsoy xokg lkfcj gqlSu }kjk vkns”k fnukad 21-02-22 ds tfj;s
vfHkys[k ij fy;s x;s nLrkost dks iznf”kZr djus dk iz”u gS rks xokg lkfcj gqlSu
dks vuqefr nh tkuk U;k;laxr gS tcfd U;k;ky; }kjk iwoZ esa vfHkys[k ij
nLrkostkr dks lqlaxr ekurs gq, iznf”kZr djokus dh vuqefr nh tk pqdh gSA bl
laca/k esa izfroknh ds vf/koDrk xokg dk dsoy bl vuqefr dh gn rd la”kksf/kr
“kiFk i= is”k djsaA iwoZ esa is”k lkfcj gqlSu dk “kiFk i= ikVZ Mh- dk Hkkx cuk;k
tkosA vr% mijksDr vuqlkj izkFkZuk&i= fu.khZr fd;k tkrk gSA
bl Lrj ij i=koyh ds voyksdu ls ;g Hkh izdV gksrk gS fd i=koyh gktk
U;k;ky; dh 20 o’kZ iqjkuh i=koyh gS tks iqjkus izdj.kksa dh lwph la-2 esa gSA ,sls esa
ekuuh; jkt- mPp U;k;ky; }kjk 20 o’kZ ls vf/kd iqjkuh i=koyh dks gj gQrs is”kh
fu;r djus ds vkns”k izkIr gq, gSA mDr funsZ”kks dh ikyuk esa izfroknh ds vf/koDrk
dks funsZf”kr fd;k tkrk gS fd og vkxkeh is”kh ls rhu fnu iwoZ oknh ds vf/koDrk
dks la”kksf/kr “kiFk i= dh udy miyC/k djok;s rFkk vkxkeh rkjh[k is”kh ij
izfroknh leLr xokg is”k djsa rFkk oknh ds vf/koDrk ftjg gsrq rS;kj jgsaA
i=koyh okLrs lk{; izfroknh fnukad 13-12-23 dks is”k gksAß
22. Therefore, the learned trial court has erred in permitting Mr.
Sabir Hussain to exhibit the documents on behalf of the
respondent-defendant as the power of attorney by which he was
authorized to exhibit documents on behalf of the Waqf Board was
itself non-est in the eyes of law being issued by the Chief
Executive Officer who cannot delegate powers of the Waqf Board
as under Section 27 of the Act of 1995 delegation of power vests
exclusively with the Waqf Board. And thus, the power of the
board under Section 32 (1)(i) of the Act of 1995, if it was
delegated to the Chief Executive Officer could not have been
further delegated to Mr. Sabir Hussain, who is neither the
Chairperson nor member, nor the Chief Executive Officer /officer /
servant of the Board and member of any area committee.
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[2025:RJ-JD:9881] (20 of 20) [CW-19528/2023]
23. Thus, in view of the above, the instant petition deserves to
be allowed. Accordingly, the instant petition is allowed and the
impugned order dated 05.12.2023 (Annex.1) is quashed and set
aside.
24. Application (s), if any pending, shall also stand disposed of.
(DR. NUPUR BHATI),J
20D-/amit/-
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