# C.E.O. U.P. Sunni Central Waqf Board Lucknow Revisionist v. Mohammad Nihal & Ors. Opp. Parties

- **Citation:** (2023) 12 ILRA 73
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-11
- **Case number:** Civil Revision No. 35 of 2022
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-e-o-u-p-sunni-central-waqf-board-lucknow-revisionist-v-mohammad-nihal-ors-opp-49517
- **Pages:** 5

## Headnote

74 INDIAN LAW REPORTS ALLAHABAD SERIES
Adil Hussain, Farhan Habib, Syed Qamar
Hasan Rizvi

(A) Civil Law - Waqf Act, 1995 - Sections
6,7 & 54 - Disputes regarding auqaf -
Power of Tribunal to determine disputes
regarding
auqaf
-
Removal
of
encroachment from waqf property , The
Uttar Pradesh Waqf Rules, 2017- Rule 3 ,
The Court Fee Act,1870 - Section 7(5) -
Computation of fees payable in certain
suits - action under Section 54 can be
initiated on mere application to the Chief
Executive Officer - who in turn on his
being satisfied with regard to removal of
encroachment
-
further
moves
the
application to the Tribunal for immediate
purpose i.e. to seek an order of eviction -
application under Section 54 to the
Tribunal
cannot
be
treated
as
suit
proceedings on which court fees would be
liable to be paid.(Para - 8,10)

Application moved by revisionist under Section
54 before Tribunal - removal of encroachment -
eviction - application of CEO akin to suit for
eviction and as per Rule 3 of the UP. Waqf
Tribunal Rules, 2017 - court fee liable to be paid
on such an application as per Section 7 (5) of
Court Fee Act, 1870. (Para - 5, 10)

HELD:-
Procedure
prescribed
for
suit
proceedings initiated under Sections 6 and 7 of
the Act of 1995 is different from the procedure
prescribed under Section 54 for removal of the
encroachers. Petitioner not liable to pay court
fee. Order passed by U.P. Waqf Tribunal not
sustainable and set aside.(Para - 9, 11, 12)

Revision allowed. (E-7)

## Text

12 All. C.E.O., U.P. Sunni Central Waqf Board Lucknow Vs. Mohammad Nihal & Ors.
73
have been wrongly paid out to him during
his years in service. Thus, furnishing of an
undertaking is a sine qua non to invoke an
exception to Clause (ii) of Rafiq Masih
(supra).

26.

The
qualifying
Clause
incorporated in the order dated 03.09.2013
is an unilateral act of the employer. It is not
an
undertaking
given
by
the
employee/recipient nor it can ever be
equated with the same. Though the
employer had unilaterally qualified the
benefit of MACP, that restriction created
could be enforced only in accordance with
law. Once the Supreme Court has laid
down the law in Rafiq Masih (supra) and
provided that the recovery of any amount
(that may have been wrongly paid to an
employee), may be made subject to
conditions laid down in that decision, the
qualifying Clause relied by learned counsel
for the Union of India would remain
subservient to the law declared by the
Supreme Court in Rafiq Masih (supra).
Being contrary to that, it is therefore
unenforceable. To the extent, that law
would not allow for recovery to be made
from the Class-III employee after his
retirement, no benefit may be drawn by the
Union on the strength of the said qualifying
Clause.

27. As noted above, in the present
case, it has not been shown to us, either that
the respondent was obligated under the
Rules to furnish such undertaking or that he
had,
as
a
fact,
furnished
such
an
undertaking. Consequently, the exception
being claimed by the Union is wholly
misconceived
and
unfounded.
Consequently, the decision in the case of
Jagdev Singh (supra) is distinguished on
facts. The exception to Clause (ii) of Rafiq
Masih (supra) being claimed by the Union
of India, is unfounded and misconceived.

28. Earlier, this Court had the
occasion to consider the decision of Jagdev
Singh (supra), in Writ-A No. 33686 of
2017 (Union of India and another Vs.
Mohd. Yunush) Neutral Citation No.
2023:AHC:170688-DB, (in which one of
us Saumitra Dayal Singh was a member).
Therein, a similar view was expressed.

29. In view of the above, we find no
merit in the present review application.

30.

Accordingly,
the
review
application is dismissed.

31. Any amount or consequential
benefit that may have been withheld till
now may be released within a period of two
months from today, failing which, the same
shall attract interest @ 8% from the date it
became due till the date of its actual
payment.
----------
(2023) 12 ILRA 73
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.12.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Civil Revision No. 35 of 2022

C.E.O. U.P. Sunni Central Waqf Board
Lucknow ...Revisionist
Versus
Mohammad Nihal & Ors. ...Opp. Parties

Counsel for the Revisionist:
Syed Aftab Ahmad

Counsel for the Opp. Parties:
74 INDIAN LAW REPORTS ALLAHABAD SERIES
Adil Hussain, Farhan Habib, Syed Qamar
Hasan Rizvi

(A) Civil Law - Waqf Act, 1995 - Sections
6,7 & 54 - Disputes regarding auqaf -
Power of Tribunal to determine disputes
regarding
auqaf
-
Removal
of
encroachment from waqf property , The
Uttar Pradesh Waqf Rules, 2017- Rule 3 ,
The Court Fee Act,1870 - Section 7(5) -
Computation of fees payable in certain
suits - action under Section 54 can be
initiated on mere application to the Chief
Executive Officer - who in turn on his
being satisfied with regard to removal of
encroachment
-
further
moves
the
application to the Tribunal for immediate
purpose i.e. to seek an order of eviction -
application under Section 54 to the
Tribunal
cannot
be
treated
as
suit
proceedings on which court fees would be
liable to be paid.(Para - 8,10)

Application moved by revisionist under Section
54 before Tribunal - removal of encroachment -
eviction - application of CEO akin to suit for
eviction and as per Rule 3 of the UP. Waqf
Tribunal Rules, 2017 - court fee liable to be paid
on such an application as per Section 7 (5) of
Court Fee Act, 1870. (Para - 5, 10)

HELD:-
Procedure
prescribed
for
suit
proceedings initiated under Sections 6 and 7 of
the Act of 1995 is different from the procedure
prescribed under Section 54 for removal of the
encroachers. Petitioner not liable to pay court
fee. Order passed by U.P. Waqf Tribunal not
sustainable and set aside.(Para - 9, 11, 12)

Revision allowed. (E-7)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Syed Aftab Ahmad,
learned counsel for the revisionist and Sri
Pankaj Srivastava for respondent No.1.

2. By means of this revision the
revisionist has assailed the order dated
28.3.2022 passed by U.P. waqf Tribunal,
Lucknow in case No.28 of 2020 (Chief
Executive Officer Vs. Mohd. Nihal and
others) whereby the Tribunal held that the
proceedings initiated on the behest of Chief
Executive Officer of U.P. Sunni Central
Waqf Board under Section 45 are akin to
suit proceedings and accordingly direction
has been given for payment of court fee by
the revisionist which has been deficient to
the valuation of Rs.6,72,000/-.

3. A complaint was moved by Chief
Executive Officer in respect of Waqf
Masjid Bande Ali Khan, Lucknow stating
therein that the waqf is duly registered in
the office of U.P. Sunni Central Waqf
Board, Lucknow and the property situated
at Nawal Kishore Road, Hazratganj,
Lucknow of which respondent No.s 1 and 2
who were tenants in shop No.6 situated on
the ground floor of the said property at the
monthly rate of Rs.15/- and he has
deposited the payment of rent but he has
not paid arrears of rent of Rs.2805/- for the
period from 1.8.2000 to 29.2.2016. It was
stated that the notice had also been given to
opposite party No.s 1 and 2 but despite the
notice the opposite party has failed to pay
the rent including arrears of rent and also to
vacate the shop in question and accordingly
it is in aforesaid facts that prayer was made
to remove the encroachment in respect to
the premises in question and proceedings
accordingly for eviction of the encroachers
for from the premises in question and
deliver the vacant possession of the
premises to the applicant.

4. The Chief Executive Officer
directed an inquiry to be conducted with
regard to the allegations made by the
petitioner and on the submission of report
of the inquiry issued a notice to respondent
No.s 1 and 2 directing them to deliver the
possession of the property within 15 days
12 All. C.E.O., U.P. Sunni Central Waqf Board Lucknow Vs. Mohammad Nihal & Ors.
75
to the committee of management appointed
by the waqf but the opposite party put in
appearance and objected to the claim made
by the revisionist. On the basis of the rival
submission
made
before
the
Chief
Executive Officer he moved an application
to the waqf Tribunal at Lucknow seeking
direction under Section 54(4) of the Waqf
Act, 1995 against opposite party No.s 1 and
2 directing them to deliver the possession
of the waqf property (shop No.6) to the
committee of management.

5.

The
Tribunal
accordingly
registered a case and issued notice to the
opposite parties who put in appearance
before the Tribunal and moved applications
stating that the application preferred by
Chief Executive officer under Section 54 of
the Act of 1995 was akin to suit
proceedings and as per Rule 3 of the UP.
Waqf Tribunal Rules, 2017 and court fee is
liable to be paid on such an application.
The Tribunal considered the application
preferred by the respondents and allowed
the same by means of the impugned order
dated 28.3.2022 and returned a finding that
the application of the Chief Executive
Officer is akin to suit for eviction on which
as per Section 7 (5) court fee is liable to be
paid as per the Court Fee Act,1870.

6. Learned counsel for the petitioner
while assailing the said order has submitted
that in the present case application was
moved by the Waqf - respondent No.3 i.e.
committee of management, Waqf Masjid
Bandey Ali Khan, Nawal Kishor Road,
Hazratganj, Lucknow before the Chief
Executive Officer under Section 54 of the
Act of 1995. According to Section 54 the
matter
was
inquired
into
and
recommendation of the Chief Executive
Officer were moved before the Tribunal in
the form of application seeking direction
for issuance of order of eviction as
provided for in under Section 3(4). He
submits that the said proceedings have been
initiated on an application under Section 54
of the Waqf Act and in sub Section 3 it has
been provided that the Chief Executive
Officer on his satisfaction that there has
been encroachment on the waqf property
may move application to the Tribunal for
grant of order for eviction. He submits that
in case the intentions of the legislature was
to treat such an application as suit then the
legislature would have described the said
proceedings as suit proceedings under
Section
54
rather
than
merely
an
application. He further submits that a bare
perusal of Section 6 and 7 of the Act of
1995 would make it abundantly clear that
the proceedings under Section 54 are
different from the suit proceedings as
provided for in the aforesaid Sections. He
submits that the disputes which can engage
Tribunal in suit have been clearly specified
under Section 6 which according to him are
issues; (a) as to whether a particular
property specified as property in the list of
Waqf is waqf property or not or (b)
whether a waqf specified in such list is is
Shia or Sunni, the Board or mutawalli of
the waqf or any person aggrieved may
institute a suit in a Tribunal for the decision
of the question and the decision of the
Tribunal of such matter shall be final. He
submits that persons who can institute a
suit have been clearly specified under
Section 6. It is, thus, clear that in a suit
under Section 6 or 7 court fee is liable to be
paid under Rule 3 of the Uttar Pradesh
Waqf Rules, 2017.

7. Heard learned counsel for the
parties and perused the record.

8. This Court notices that specific
provision has been made with regard to
76 INDIAN LAW REPORTS ALLAHABAD SERIES
removal of encroachment from the waqf
property. It has been provided that
whenever Executive Officer considers
whether on receipt of a complaint or on his
own
motion
that
there
has
been
encroachment on a land building or other
property which is waqf property and it has
been registered as such, under the relevant,
Act, he shall cause to be issued a notice
specifying the property and calling upon
him to show cause on the date to be
specified therein, requiring him to remove
the encroachment before the the dates.
After considering the response of the
alleged encroacher and after conducting
inquiry and in case he is satisfied that the
property in question is waqf property and
also that there has been encroachment of
the said property he may make an
application to the Tribunal for grant of an
order of eviction for removing the said
encroachment. The Tribunal on receipt of
such an application from the Executive
Officer may make an order of eviction
directing that the waqf property shall be
vacated by all the persons who may be in
occupation therefore and after passing such
an order the property of the complainant is
required to be vacated from such person
who are alleged to have enroached upon the
waqf property.

9. From the above, it is clear that
express procedure has been prescribed
under Section 54 which is distinct from the
procedure prescribed for suit proceedings
initiated under Sections 6 and 7 of the Act
of 1995. Legislation clearly provided that
action under Section 54 can be initiated on
mere application to the Chief Executive
Officer who in turn on his being satisfied
with regard to removal of encroachment
further moves the application to the
Tribunal for immediate purpose i.e. to seek
an order of eviction. The application moved
by the Chief Executive Officer contains all
the details including inquiry conducted by
him and after hearing the encroachers.

10. It is also relevant to note that the
Chief Executive Officer is not an aggrieved
person but is moving an application only as
per
the
statutory
provisions
and
consequently he cannot be directed to pay
court fee on such application and further it
could not have been the intentions of the
legislature to treat the application under
Section 54 to the Tribunal as suit
proceedings on which court fees would be
liable to be paid.

11. It is in aforesaid circumstances
that this Court is of the considered
opinion that the procedure prescribed for
the suit is different from the procedure
prescribed under Section 54 for removal
of the encroachers and that there is clear
distinction with regard to the procedure
prescribed under Sections 6 and 7 of the
Act of 1995 with regard to suit for the
court fee is liable to be paid under
Section and is clearly distinct from the
suit initiated as per Section 54 of the Act
of 1995.

12. In light of the above, it cannot be
said that the proceedings under Section 54
are
suit
proceedings
for
which
the
petitioner is liable to pay court fee, as such,
the order dated 28.3.2022 passed by the
U.P. Waqf Tribunal, Lucknow in Case
No.28 of 2020 is not sustainable and is
accordingly set aside.

13. The Tribunal is directed to
proceed and conclude the proceedings
expeditiously, in accordance with law.

14. The revision thus stands allowed.
----------
12 All. C.E.O. Uttar Pradesh Sunni Central Waqf Board Lucknow Vs. Mohammad Noor & Ors. 77
(2023) 12 ILRA 77
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.12.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Civil Revision No. 37 of 2022

C.E.O. Uttar Pradesh Sunni Central Waqf
Board Lucknow ...Revisionist
Versus
Mohammad Noor & Ors. ...Opp. Parties

Counsel for the Revisionist:
Syed Aftab Ahmad

Counsel for the Opp. Parties:
Varun Kant, Adil Hussain, Farhan Habib,
Pankaj Srivastava, Syed Qamar Hasan Rizvi

(A) Civil Law - Waqf Act, 1995 - Section
6,7 & 54 - Disputes regarding auqaf -
Power of Tribunal to determine disputes
regarding
auqaf
-
Removal
of
encroachment from waqf property , The
Uttar Pradesh Waqf Rules, 2017- Rule 3 ,
The Court Fee Act,1870 - Section 7(5) -
Computation of fees payable in certain
suits - action under Section 54 can be
initiated on mere application to the Chief
Executive Officer - who in turn on his
being satisfied with regard to removal of
encroachment
-
further
moves
the
application to the Tribunal for immediate
purpose i.e. to seek an order of eviction -
application under Section 54 to the
Tribunal
cannot
be
treated
as
suit
proceedings on which court fees would be
liable to be paid.(Para - 8, 10)

Application moved by revisionist under Section
54
before
Tribunal
-
removal
of
encroachment - eviction - application of CEO
akin to suit for eviction and as per Rule 3 of
the UP. Waqf Tribunal Rules, 2017 - court
fee liable to be paid on such an application
as per Section 7 (5) of Court Fee Act, 1870.
(Para - 5, 10)
HELD:-
Procedure
prescribed
for
suit
proceedings initiated under Sections 6 and 7 of
the Act of 1995 is different from the procedure
prescribed under Section 54 for removal of the
encroachers. Petitioner not liable to pay court
fee. Order passed by U.P. Waqf Tribunal not
sustainable and set aside.(Para - 9, 11, 12)

Revision allowed. (E-7)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Syed Aftab Ahmad,
learned counsel for the revisionist and Sri
Pankaj Srivastava for respondent No.1.

2. By means of this revision the
revisionist has assailed the order dated
28.3.2022 passed by U.P. waqf Tribunal,
Lucknow in case No.29 of 2020 (Chief
Executive Officer Vs. Mohd. Noor and
others) whereby the Tribunal held that the
proceedings initiated on the behest of Chief
Executive Officer of U.P. Sunni Central
Waqf Board under Section 45 are akin to
suit proceedings and accordingly direction
has been given for payment of court fee by
the revisionist which has been deficient to
the valuation of Rs.3,11,641/-.

3. A complaint was moved by Chief
Executive Officer in respect of Waqf
Masjid Bande Ali Khan, Lucknow stating
therein that the waqf is duly registered in
the office of U.P. Sunni Central Waqf
Board, Lucknow and the property situated
at Nawal Kishore Road, Hazratganj,
Lucknow of which respondent No.1 who
was a tenant in shop No.5 situated on the
ground floor of the said property at the
monthly rate of Rs.1000/- and he has
deposited the payment of rent but he has
not paid arrears of rent of Rs.15933 for the
period from 1.1.2015 to 28.4.2016. It was
stated that the notice had also been given to
opposite party No.1 but despite the notice