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

- **Citation:** (2023) 12 ILRA 77
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-11
- **Case number:** Civil Revision No. 37 of 2022
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-e-o-uttar-pradesh-sunni-central-waqf-board-lucknow-revisionist-v-mohammad-49529
- **Pages:** 4

## Headnote

(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)

## Text

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
78 INDIAN LAW REPORTS ALLAHABAD SERIES
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.1directing him to deliver the possession
of the property within 15 days 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.1
directing him to deliver the possession of
the waqf property (shop No.5) to the
committee of management.

5.

The
Tribunal
accordingly
registered a case and issued notice to the
opposite party who put in appearance
before
the
Tribunal
and
moved
an
application 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 respondent No.1
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.2 i.e.
committee of management of respondent
No.1 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
12 All. C.E.O. Uttar Pradesh Sunni Central Waqf Board Lucknow Vs. Mohammad Noor & Ors. 79
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
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.
80 INDIAN LAW REPORTS ALLAHABAD SERIES
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.29 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.
----------
(2023) 12 ILRA 80
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Civil Revision No. 49 of 2021

Smt. Kamla Kapoor & Anr. ...Revisionists
Versus
Neelam Kapoor & Ors. ...Respondents

Counsel for the Revisionists:
Sri Ashutosh Yadav, Ms. Abhilasha Singh,
Sri Shyam Lal

Counsel for the Respondents:
Sri Vikash Chandra Tiwari, Sri Abhijeet
Mukherji, Ms. Sushmita Mukherjee
(A)
Civil
Law
-
The
Code
of
Civil
Procedure, 1908 - Section 115 - Revision,
Section 10 - Stay of Suit, Order 4A-
Consolidation of suits and proceedings -
ex debito justitiae - Section 10 of the
Code does not go to the root of the Court's
jurisdiction trying the subsequent suit, but
lays down a rule of procedure, that does
not
forbear
consolidation
and
simultaneous trial of two suits, one
instituted earlier and the other later
between the same parties involving issues
that are directly and substantially the
same.(Para -21, 22)
(B) The Code of Civil Procedure, 1908 -
Section
10
-
interplay
between the
restrictive principle in Section 10 and the
facilitative one in Order IV-A of the Code -
fundamental test to attract Section 10 -
whether on final decision being reached in
the previous suit, such decision would
operate as res judicata in the subsequent
suit or not.(Para -28)

Declaratory suit of 2015 and partition suit of
2017 pending before same Court - facts
pleaded and cause of action in Original Suit of
2017 - identical to that of suit of 2015 - relief
claimed
different

-
few
formal
facts
introduced - plaintiff sought decree for
partition of her 3/4th share with separate
possession after drawing of lots - physical
partition not possible - suit property be valued
and appropriate relief granted - permitting to
purchase defendants' share - suit of 2017
stayed by Trial Judge under Section 10 of
Code - held - all ingredients to attract bar
under Section 10 of the Code are disclosed -
aggrieved,
hence

revision.
(Para
-
2,7,8,9,15,19,20)

HELD:- Trial court's cryptic remark that Order
IV-A of the Code is only for the convenience of
recording evidence and disposing of suits is a
failure to exercise jurisdiction. This could cause
irreparable harm to the plaintiff, as the relief
claimed in the 2015 suit may conflict with the
plaintiff's cause of action. Conclusions reached
will not prevent the defendant from raising
pleas to resist the suit, as it would be open to
the Trial Court to judge on their own merits.
Trial Court has been directed to consolidate two
separate suits and expedite their trial within six
months.
Impugned
order
set
aside
and
reversed. (Para - 28,29)

Revision allowed. (E-7)

List of Cases cited:-

1. Prem Lala Nahata & anr. Vs Chandi Prasad
Sikaria , (2007) 2 SCC 551