Patna High Court – Orders
Mirza Akhtar Hussain vs The Bihar State Shia Waqf Board, Patna on 30 January, 2025
Author: Khatim Reza
Bench: Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.152 of 2023
======================================================
1. Mirza Akhtar Hussain Son of Late Quaisar Hussain Resident of Ram Autar
Prasad khatri path Deewan Mohalla, Gurhatta Hamam P.S. Khajekalan,
Patna City, District- Patna.
2. Safdar Abbass Son of Mirza Akhtar Hussain Resident of Ram Autar Prasad
khatri path Deewan Mohalla, Gurhatta Hamam P.S. Khajekalan, Patna City,
District- Patna.
3. Suhail Abbas Son of Mirza Akhtar Hussain Resident of Ram Autar Prasad
khatri path Deewan Mohalla, Gurhatta Hamam P.S. Khajekalan, Patna City,
District- Patna.
4. Nazre Abbas @ Bunty Son of Mirza Akhtar Hussain Resident of Ram Autar
Prasad khatri path Deewan Mohalla, Gurhatta Hamam P.S. Khajekalan,
Patna City, District- Patna.
5. Chhoti Begum D/o Late Quaisar Hussain Resident of Ram Autar Prasad
khatri path Deewan Mohalla, Gurhatta Hamam P.S. Khajekalan, Patna City,
District- Patna.
6. Munauwar Hussain Son of late Quaiser Hussain Resident of Ram Autar
Prasad khatri path Deewan Mohalla, Gurhatta Hamam P.S. Khajekalan,
Patna City, District- Patna.
7. Shahzada Hussain Late Quaiser Hussain Resident of Ram Autar Prasad
khatri path Deewan Mohalla, Gurhatta Hamam P.S. Khajekalan, Patna City,
District- Patna.
... ... Petitioner/s
Versus
1. The Bihar State Shia Waqf Board, Patna Through the Chief Executive
Officer, Bihar State Shia Waqf Board, 2nd Floor Haj Bhawan, 34 Ali Imam
Path (Harding Road), P.S.- Sachivalaya, District- Patna.
2. The Chief Executive Officer, Bihar State Shia Waqf Board, 2nd Floor, Haj
Bhawan, 34 Ali Imam Path (Harding Road), P.S.- Sachivalaya, District-
Patna.
3. Mirza Haider Ali @ Vicky, s/o Late Mirza Sulaiman Haidar, Resident of
Mugalpura Fauzdari Khan, P.S.- Khajekalan, District- Patna.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Syed Qaiser Hassan, Advocate
Mr. Arshad Alam, Advocate
For the O.P. No. 1&2 : Mr. Md. Anjum Akhter, Advocate
For the O.P. No. 3 : Mr. Md. Shamimul Hoda, Advocate
Mr. Anuj Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
CAV ORDER
Patna High Court C.R. No.152 of 2023(8) dt.30-01-2025
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8 30-01-2025
Heard Mr. Syed Qaiser Hassan, learned counsel
for the petitioners, Mr. Md Anjum Akhter, learned counsel
for the opposite party no. 1 & 2 and Mr. Shamimul Hooda,
learned counsel for the opposite party no. 3.
2. This Civil Revision Application has been filed
to question the judgment and order dated 10.11.2023 passed
by Bihar State Waqf Tribunal (hereinafter referred to as
‘Tribunal’) in Eviction Application No. 24 of 2020 whereby,
eviction application filed by Chief Executive Officer, Bihar
State Shia Waqf Board for declaring opposite parties
(petitioners) as encroacher over the Waqf property, in
question, has been allowed by learned Tribunal.
3. The aforesaid eviction application was filed in
pursuance of order dated 29.08.2019 passed by the Chief
Executive Officer, Bihar State Shia Waqf Board, Patna
under Section 54 of the Waqf Act, 1995 (Amendment Act,
2013) for removal/eviction of opposite parties from Waqf
property and they have been declared encroacher by the
Waqf Board of the premises of Mirza Wazir Hussain Waqf
Estate, Waqf No. 230/Patna.
4. The case of the Waqf Board is that, opposite
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party no. 3 informed the Chief Executive Officer that
opposite parties (petitioners) have illegally encroached the
Waqf property of the aforesaid Waqf Estate. Upon this
information, the applicant sent notice in form 52 to the
opposite parties (petitioners) asking them to furnish their
explanation as to why an order for removal of
encroachment should not be passed against them. After
receiving of the said notice, petitioner no. 1 namely, Mirza
Akhtar Hussain has filed reply to show cause wherein, he
himself claimed to be Mutawalli of the said Waqf Estate. It
is further contended that the said Waqf Estate was created
by his maternal great grandfather namely, Mirza Wazir
Hussain and after its creation, he himself was appointed as
Mutawalli of the said Waqf Estate. During his lifetime,
Mirza Wazir Hussain had nominated/appointed his son,
Mirza Sattar Hussain as Mutawalli on 04.01.1944 thereafter,
Mirza Sattar Hussain had nominated/appointed his son in-
law, Quaiser Hussain as Mutawalli on 08.12.1962 and
Quaiser Hussain nominated/appointed Mirza Akhtar
Hussain (petitioner no. 1) as Mutawalli on 12.10.1982 and
since then he is discharging his duty and he has also
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questioned the appointment of Mirza Haider Ali as
Mutawalli of Mirza Wazir Hussain Waqf Estate. Petitioner
no. 2 to 7 (petitioner no. 2 to 4 are sons of petitioner no. 1
and petitioner no. 5 to 7 are daughters and sons of late
Quasir Hussain respectively) also filed their reply to show
cause and adopted the reply filed by Mirza Akhtar Hussain.
5. However, in view of order passed in Criminal
Miscellaneous No. 47321 of 2014, an enquiry was
conducted by the then Chief Executive Officer along with
Administrative Officer and on the basis of enquiry report
dated 07.03.2019, the Chief Executive Officer passed an
order dated 29.08.2019 under Section 54 of the Waqf Act
declaring opposite parties as encroacher under Section 3(ee)
of the Waqf Estate.
6. In view of Waqf (Amendment) Act, 2013, the
Waqf Board filed Eviction Application No. 24 of 2020
before the learned Waqf Tribunal for grant of order of
eviction of opposite parties (petitioners) for removing the
encroachment from the Waqf premises. It is further
contended that opposite parties (petitioners) are not the
tenant nor the owner of the Waqf premises. They occupied
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the premises as encroacher of the Waqf Estate No.
230/Patna.
7. On summon, the opposite parties (petitioners)
filed their reply wherein, it is pleaded that the Mirza Wazir
Hussain Waqf Estate was created by great grandfather of
petitioner no. 1 namely, Mirza Wazir Hussain. It is further
pleaded that it is a private Waqf for Masjid & Imambara and
the Waqif has constructed a Hujra over the part of Plot No.
1216 for his residence and to look after and take care of
Mosque and Imambara. It is further contended that the
Waqif was living in that Hujra with his family members.
Waqif namely, Mirza Wazir Hussain had nominated his son
Mirza Sattar Hussain as Mutawalli of the Waqf Estate and
also authorized him to appoint next Mutawalli after him and
prepared a Wasiyatnama dated 04.01.1944. It is further case
of the petitioner that from perusal of Wasiyatnama, it
appears that Waqif has himself appointed the next successor
Mutawalli and also authorized his son (Mirza Sattar
Hussain) to appoint successor Mutawalli. It appears that it
should be the Mutawalli, who will appoint the next
Mutawalli for the said Waqf Estate and since then rule of
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succession of Mutawalli was followed and as per wishes of
Waqif and Mutawallis of the Waqf Estate have been
appointing the next Mutawalli which is as follows; Mirza
Wazir Hussain appointed/nominated his son, Mirza Sattar
Husaain. Mirza Sattar Hussain appointed his son in-law
Mirza Quaser Hussain. Mirza Quaiser Hussain appointed
his son Mirza Akhtar Hussain (petitioner no. 1). Since
beginning the Mutawalli of the Waqf Estate used to live in
that house without any hindrance or objection. However,
recently, Waqf Board appointed one Mirza Haider Ali @
Vicky as Mutawalli of the said Waqf Estate. It is further
pleaded that from Wasiyatnama of the Waqif, it is crystal
clear that the Mutawalli of the Waqf Estate should only
appoint the next Mutawalli and he should use the
house/Hujra, in question. Despite it, Waqf Board has
appointed a stranger as Mutawalli which is completely
against the wishes of Waqif as well as law.
8. It is further contended that Municipal Survey
Khatiyan published on 19.12.1933 stands recorded in the
name of Public Masjid Mutawalli Mirza Wazir Hussain with
respect to Plot No. 1216, holding No. 18. It is vehemently
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submitted by the petitioners that the Board has registered
the property in question invoking Section 36 of the Waqf
Act, 1995. The said Section casts a duty upon the Waqf
Board to make requisite inquiries as per Section 36(7) of the
Act. The application submitted by respondent no. 3 (Mirza
Haider Ali) should not have been entertained straight
forward as opposite party no. 3 is not a person
administering the property in question. It is, therefore,
apparent that registration of the property as Waqf property
has been done by complete violation of Section 36 of the
Waqf Act. The Board has miserably failed in its duty in
following the law or Section required for the purpose and
opened up a controversy putting the petitioners under quite
inconvenient situation. However, the application for
registration was made by Mirza Haider Ali against whom
the said Waqf Board has lodged an FIR vide Khajekalan
P.S. Case No. 114 of 2015 and the same accused, who is
facing criminal cases for the offences of fraud and cheating,
has been made Mutawalli of Mirza Wazir Hussain Waqf
Estate. However, the said Mirza Haider Ali @ Vicky has
filed an affidavit before the Patna High Court on 28.03.2018
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in Criminal Miscellaneous No. 47321 of 2014 stating
therein, that the landed property of Mosque is not a Waqf
property. Lastly, it is submitted that petitioners are not
encroacher nor unauthorized occupant rather petitioner no.
1 is a Mutawalli as per the wishes of Waqif and petitioner
nos. 2 to 7 are family members of petitioner no. 1.
9. Per contra, opposite party no. 3 has filed
counter affidavit in support of the case of Bihar State Shia
Waqf Board. Learned counsel for the opposite party no. 3
submitted that on the application of opposite party no. 3,
Mirza Wazir Hussain Waqf Estate was registered as Waqf
Estate No. 230/Patna. It is submitted that an encroachment
proceeding started against the petitioners in view of the
order dated 26.02.2019 passed by this Court in Criminal
Miscellaneous No. 47321 of 2014. It is evident from the
Municipal Survey Khatiyan that the property of Waqf Estate
shown as Mosque is deemed to be Waqf property under the
Waqf Act, 1995. The claim of the petitioner no. 1 as
Mutawalli was never approved by the Bihar State Shia
Waqf Board. Petitioners occupied the Waqf land without
any authority. So far question of appointment of opposite
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party no. 3 as Mutawalli of the Waqf Estate is concerned, it
has not been stayed by any competent Court and the
allegation made by the petitioners against opposite party no.
3 is false and concocted.
10. After considering the pleadings made by the
parties, the learned Waqf Tribunal allowed the eviction
application filed by the Chief Executive Officer, Bihar State
Shia Waqf Board and declared them as encroachers and
they are liable to be evicted from the Waqf property, in
question.
11. Being aggrieved by the judgment and order
dated 10.11.2023 passed by Bihar State Waqf Tribunal, the
petitioners filed the instant Civil Revision application.
12. Learned counsel for the petitioners submitted
that petitioner no. 1 is Mutawalli and is residing there in
accordance with line of succession as enumerated in
Wasiyatnama dated 04.01.1944, 08.12.1962 and
08.10.1982. It is vehemently submitted that by no stretch of
imagination, petitioners can be categorized as encroacher in
terms of Section 3(e) of the Waqf Act, 1995 (Amendment
Act, 2013). The Board has passed notification dated
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20.07.2016 in connivance with opposite party no. 3. The
Board issued notification dated 20.07.2016 wherein, it has
been categorically stated that ‘as per Board’s Resolution
No. 12 dated 16.03.2016, the Chairman, Bihar State Shia
Waqf Board has been pleased to register Mirza Wazir
Hussain Waqf Estate’ bearing Registration no. 230/Patna
under Section 36 of the Waqf Act, 1995 and Sri. Mirza
Haider Ali be appointed as Mutawalli of the said Waqf
Estate. Opposite party no. 3 applied for registration of said
Waqf Estate on 04.07.2016. The registration and
appointment of Mutawalli was made prior to the application
of opposite party no. 3 which is in the teeth of provision of
Sections 36 and 63 of the Waqf Act, 1995. The petitioners
filed a detailed show cause reply to the notice on
25.07.2019. The Chief Executive Officer did not consider
the same and without application of mind, the Waqf Board
has passed the order against the petitioners as encroacher.
The Chief Executive Officer has not considered the ‘Will’
dated 04.01.1944, 08.12.1962, 08.10.1982, on whose basis
petitioner no. 1 was appointed Mutawalli as per the wishes
of Waqif. Petitioners do not come under the category of
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encroacher rather petitioner no. 1 is Mutawalli and
petitioners are residing in the said Hujra. This fact has been
mentioned in the Wasiyatnama of Waqif namely, Mirza
Wazir Hussain. Petitioners are entitled to reside as per the
wishes of Waqif. The learned Tribunal has not considered
the Wasiyatnama and wishes of Waqif and passed a
mechanical order and affirmed the order of Waqf Board.
Petitioner no. 1 being Mutawalli does not come under the
definition of Section 3(ee) of the Waqf Act, 1995
13. Learned counsel for the petitioners submitted
that I.A. No. 01 of 2024 has been filed during the pendency
of this Civil Revision application for restoration of
possession of the petitioners, who have been dispossessed
on 03.09.2024, in view of order dated 10.11.2023 passed in
Eviction Application No. 24 of 2020 by the learned
Tribunal, Patna. Learned counsel further submitted that
petitioner no. 1 being Mutawalli of Mirza Wazir Hussain
Waqf Estate has right of residence as per Wasiyatnama. The
said Wasiyatnama has not been considered either by the
Waqf Board or by the learned Tribunal. The said Waqf
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Estate consists of Masjid, Imambara and Hujra/ house of
Mutawalli appertaining to Plot No. 1216 holding No. 18,
Ward No. 29/59 and area of 30 Kari (approx 1306 Sq.ft.) It
is further contended that all these aspects of the matter has
not been considered by the learned Waqf Tribunal.
14. Per Contra, learned counsel for the Shia Waqf
Board has submitted that the property, in question, is said to
be Waqf Property belonging to Mirza Wazir Hussain Waqf
Estate No. 230/Patna. The said Waqf was registered on
04.07.2016 in the office of the Waqf Board. On the
direction of Hon’ble High Court in Criminal Miscellaneous
No. 47321 of 2014, spot verification of the entire property
including built up area, as per the Khatiyan, in presence of
both the parties was conducted. The land of the Waqf is
found to be 30 Kari, out of which, Masjid was found to be
situated upon half of the land and the other half area was
found to be in unauthorized occupation by the petitioners.
Steps have been taken for removal of encroachment as per
the direction of Court and accordingly notices were issued
to the petitioners. Pursuant to the notice, the petitioners
filed their reply wherein, petitioner no. 1 has stated that the
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said house/Hujra is residence of Mutawalli of Mirza Wazir
Hussain Waqf Estate. Petitioner no. 1 has claimed that he
was nominated as Mutawalli of the said Waqf Estate by the
successor Mutawalli namely, Mirza Quaiser Hussain on
12.10.1982 by way of Wasiyatnama. It is further submitted
by the respondent Board that petitioner nos. 1 to 7 are not
Mutawalli appointed by the Waqf Board hence, they cannot
claim their right to live in the said house as Mutawalli of the
said Waqf.
15. On the other hand, learned counsel for the
opposite parties submitted that opposite party no. 3 was
appointed Mutawalli by the Board and there is no material
on record to show that his appointment has been challenged
by the petitioners or any other person before the competent
forum of law. It is vehemently submitted that the present
proceeding under Section 54(3) of the Waqf Act cannot be
interfered in the order pertaining to appointment of
Mutawalli. The application under Section 54(3) of the Waqf
Act is for issuance of order of eviction against petitioners
for removal of encroachment from the Waqf property.
16. On analyzing the impugned order and
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materials on record, it is apparent that eviction application
has been filed under Section 54(3) of the Waqf Act against
the petitioners for eviction from the Waqf property as
encroacher. Municipal Survey Khatiyan reveals that Khata
no. 1216 holding No. 18 is recorded as Public Masjid
measuring an area 30 kari. In column 5 of the Khatiyan,
name of the occupant is mentioned as Mirza Wazir Hussain
and in column 4, it has been mentioned that the rent has to
be paid on behalf of Public Masjid by Mirza Wazir Hussain.
The said Municipal Survey Khatiyan was published on
19.12.1933 which shows that the said Public Masjid,
Mutawalli Mirza Wazir Hussain exists since 1933 and
admittedly Mirza Wazir Hussain was the Mutawalli of the
said Masjid/property. On plain reading of Wasiyatnama
dated 04.01.1944, it shows that during his lifetime, Mirza
Wazir Hussain appointed his son namely Mirza Sattar
Hussain as Mutawalli for looking after the said Masjid and
its properties and also delegated his power to his son for
appointment of successor Mutawalli.
17. The Waqf Board has not controverted the fact
that Mirza Wazir Hussain was not waqif or 1st Mutawalli
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of the said Waqf Estate and in the instant case waqif has laid
down the rule of successor Mutawalli. The question only
remains whether Mutawalli has any right to reside in the
Hujra/house constructed for the residence of family
members of the Mutawalli. It is also admitted fact that from
1933 to 2016, no interference in the management of Waqf
Estate has been made by the Board or any authority. The
property in question is a Waqf by its nature which is used as
Masjid, Imambara and Hujra is part of it. The role of
appointment of Mutawalli or removal of Mutawalli by the
Waqf Board comes into play, when the Waqf Estate is
registered in the office of Waqf Board. After registration of
the said Waqf Estate, the Waqf Board has appointed
opposite party no. 3 as Mutawalli without removing the
existing Mutawalli.
18. The Waqf Act, 1995 is enacted to provide for
the better administration of aquaf and for matters connected
therewith or incidental thereto. Clause (i) to Section 3 of the
said Act defines ‘Mutawalli’ to mean any person appointed,
either verbally or under any deed or instrument by which a
waqf has been created, or by a competent authority, to be
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the Mutawalli of a waqf and includes any person who is a
Mutawalli of a waqf by virtue of any custom or who is a
Naib-mutawalli, Khadim, Mujawar, Sajjadanashin, Amin or
other person appointed by a Mutawalli to perform the duties
of a Mutawalli and save as otherwise provided in the said
Act, any person, committee or corporation for the time
being managing or administering any waqf or waqf
property.
19. Section 32 of the Waqf Act deals with the
powers and functions of the Waqf Board established under
Section 13 of the Act. As per clause (g) to Sub-section (2)
of Section 32, without prejudice to the generality of the
power under sub-section (1), the Board shall have the power
to appoint and remove Mutawallis in accordance with the
provisions of the said Act.
20. Section 37 of the Waqf Act deals with register
of auqaf. By the Waqf (Amendment) Act, 2013 Section 37
was numbered as Sub-section (1) thereof. As per Sub-
section (1) of Section 37, the Board shall maintain a register
of auqaf which shall contain in respect of each waqf copies
of the waqf deeds, when available, and the particulars
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enumerated under clauses (a) to (f) thereof. Going by clause
(c) to Sub-section (1) of Section 37, such particulars shall
include the rule of succession to the office of Mutawalli
under the waqf deed or by custom or by usage. Section 63
of the Waqf Act, which deals with the power of the Board to
appoint Mutawalli in certain cases provides that, when there
is a vacancy in the office of the Mutawalli of a waqf and
there is no one to be appointed under the terms of the deed
of the waqf, or where the right of any person to act as
Mutawalli is disputed, the Board may appoint any person to
act as Mutawalli for such period and on such conditions as
it may think fit.
21. A conjoint reading of Sections 3(i), 32(2) (g),
37(1) (c) and 63 of the Waqf Act, 1995 makes it explicitly
clear that, if the waqf is created by a deed or instrument, the
rule of succession to the office of Mutawalli provided in
such deed or instrument should be followed while making
appointment to that office. Clause (c) to sub-section (1) of
Section 37, indicates that, the rule of succession to the
office of Mutawalli shall be governed by the provisions
under the waqf deed and, in the absence of any provisions
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under such deed or instrument, the office of Mutawalli may
become hereditary by custom or usage. Further, it is evident
from a plain reading of Section 63 that, the power of the
Board to appoint Mutawalli, when there is a vacancy in the
office of the Mutawalli of a waqf, can be exercised only
when there is no one to be appointed to that office under the
terms of the deed of the waqf or where the right of any
person to act as Mutawalli is disputed.
22. In Maulvi Abdul Rahman Siyai vs. Sardar
Maqbool Hasan reported in AIR 2009 All 62, a Bench of
the Allahabad High Court, in the context of Sections 32(2)
(g), 37(c) and 63 of the Waqf Act, 1995 held that, the power
of superintendence and control of the Board over the waqf
including appointment of Mutawalli to a waqf is not
absolute and as such, while exercising such power of
superintendence in respect of a waqf, the Board cannot act
according to its sweet will, rather it has to act in conformity
with the directions of the concerned waqf. But, where the
waqf is not created by any waqf deed or where the waqf is
created by user and there exist no such waqf deed, in view
of Section 37(c) of the Act, the rule of succession to the
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office of Mutawalli shall be governed by custom or usage
and/or scheme of the administration of said waqf by virtue
of the provision of Section 37(e) of the Act. Paragraphs 16
and 17 of the said judgment reads thus;
16. Further under Section 32(2) (g) of
the Act the Board is empowered to appoint and
remove the Mutawalli in accordance with the
provisions of the Act, but this power of
appointment and removal of the Mutawalli is
without any prejudice to the general power of
superintendence of the Board over a waqf.
Besides, Section 37 (c) of the Act also indicates
that the rule of succession to the Office of
mutawalli is governed by the waqf deed and if
the waqf is not created by the waqf deed, the
same is governed by the custom or usage.
However, the power to appoint Mutawalli under
Section 63 of the Act can be exercised by the
Board only when there is no one to be
appointed under the terms of waqf deed or
where the right of any person to act as
Mutawalli is disputed, in that situations alone
the Board may appoint any person to act as
Mutawalli for such period and on such
conditions as it may think fit and not in other
situations.
17. It implies that while exercising the
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power of superintendence including the
appointment of Mutawalli the Board has no
absolute power, instead thereof the Board is
under duty to follow directions of the waqf as
contained in the waqf deed and if the waqf is
not created by any waqf deed, it shall be
governed by the customs and usage of the waqf,
which have sanction of School of Muslim law to
which it belongs. Therefore, in my opinion, the
power of superintendence and control of the
Board over the waqf including to the
appointment of Mutawalli to a waqf is not
absolute, as such while exercising such power
of superintendence in respect of a waqf, the
Board cannot act according to its sweet will,
rather it has to act in conformity with the
directions of the concerned waqf but where the
waqf is not created by any waqf deed or where
the waqf is created by user and there exist no
such waqf deed like in present case, in such
situation, in view of Section 37(c) of the Act, the
rule of succession to the office of Mutawalli
shall be governed by the customs or usage
and/or scheme of the administration of said
waqf by virtue of the provision of Section 37(e)
of the Act.
23. In the instant case as per the recital of
Wasiyatnama executed by Waqif/1st Mutwalli dated
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04.01.1944 the rule of succession to the Office of Mutwalli
is enumerated. The founder (Waqif) has laid down the rule
of succession to the Office in which case the rule has to be
adhered to and where the office of Mutawalli be herediatry
by custom in which case the custom should be followed.
This view has been observed at pages 672 and 673 of “The
commentaries on Mohammedan Law” by V.R. Verma (12 th
Edition) and also by Justice S.A. Kader and Mulla in their
authoritative commentaries specifically in the “Law of
Waqfs” at Page 38 written by Justice S.A. Kader as
observed.
24. It is apparent from the record that the Masjid
existed since before 1933 as per the Municipal Survey
Khatiyan. The Hujra in question, was constructed later on
by Mirza Wazir Hussain (Waqif/Mutawalli) which is
revealed from Wasiyatnama dated 04.01.1944 and is being
used by Mutawalli and his family members for looking after
Masjid and Imambara. The said Wasiyatnama also disclosed
the line of succession and following the principle laid down
in the Wasiyatnama. The Mutawalliship carried on in
continuation of principle of successor Mutawalli. The
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Mutawalli (petitioner no. 1) was continuing in the office
and enjoying the right to residence over the said Hujra
along with his family members.
25. The above aspect has not been looked into by
the learned Tribunal. The documents mentioned above were
already on record in the eviction application yet, the learned
Tribunal has refrained from discussing the same and glossed
over in its spirit. Moreover, it is well settled that a
Mutawalli rightly or wrongly dispensing the work can not
be removed without following the due process of law laid
down for removal of Mutawalli or for declaring such person
as encroacher. The learned Tribunal has not decided as to
whether the Mutawalli and his right to residence was
proved by the documents and precedents and further
whether the said Mutawalli (petitioner no. 1) was rightful in
view of Wasiyatnama and that whether Wasiyatnama and
Khatiyan were legal and valid documents and whether
Wasiyatnama dated 04.01.1944 establishes the continued
right to Mutawalli’s family or having right to residence on
the basis of Wasiyatnama executed from time to time.
Further the learned Tribunal has also not decided the
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question of right to residence of petitioner no. 1 along with
his family members on the basis of definition of encroacher
as defined under Section 3 (e) of the Waqf Act, 1995 as to
whether they were residing without authority of law.
26. It is admitted fact that petitioner no. 1 has not
been removed by the Waqf Board from the Mutawalliship
as claimed by the petitioner no. 1 and since the documents
were not considered in its spirit by the Tribunal whether
petitioner no. 1 and his family members has right to reside
on the basis of Wasiyatnama executed by Mirza Wazir
Hussain (Waqif/Mutawalli of the Waqf Estate), it amounts
to perversity of the order dated 10.11.2023 passed by the
learned Tribunal. The learned Waqf Tribunal has not
exercised its jurisdiction therefore, the impugned judgment
suffers from irregularity and jurisdictional error.
27. Accordingly, the impugned order dated
10.11.2023 is set aside.
28. In the light of above discussion, the Eviction
Application No. 24 of 2020 is remanded for afresh hearing
after due notice to the parties,
29. Till the disposal by the Tribunal, the status quo
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as existed vide order dated 04.09.2024 passed in the instant
case shall continue.
30. The learned Tribunal is directed to dispose of
the Eviction Application No. 24 of 2020 in the light of the
above discussion within a period of six months from the
date of receipt/production of a copy of this order.
31. Accordingly, the instant Civil Revision
application stands disposed of.
(Khatim Reza, J)
Sankalp/-
Prabhat/-
U
