# C/M Waqf Dargah Hazrat Peer Syed Mohammad Sahab (Rh) & Ors v. U.P. Sunni Central Waqf Board & Ors

- **Citation:** (2021) 10 ILRA 1013
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-01
- **Case number:** Misc. Bench No.22480 of 2021
- **Bench:** Rajan Roy, Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-waqf-dargah-hazrat-peer-syed-mohammad-sahab-rh-ors-v-u-p-sunni-central-waqf-46277
- **Pages:** 5

## Headnote

Waqf Act, 1995 - Sections 63 &.67 -
Mutawalli - Extension of term - there is no
provision
for
extension
of
term
of
committee of management or mutawalli
under the Act, 1995

Petitioner
/Committee
of
Management
appointed for three years on 22.01.2015 - as
alleged, its term extended for three years, which
expired on 21.01.2021 - petitioner moved an
application for extension of its term - In the
meantime, another committee of management
elected by the local persons - U.P. Sunni Central
Waqf Board rejected petitioner's application for
extension of term as the term of the petitioner
having expired and another committee having
been elected by the locals, the latter had been
appointed to manage the Waqf in question -
Held - petitioner's application for extension of its
term was not maintainable - once the term of
the committee of management expired on
21.01.2021 and it was not extended, then, it
had no right to function after that, legally and
substantively - In any case, there is no
indefeasible right in favour of the petitioner to
continue as Committee of Management or to be
appointed as such (Para 12, 13)

Waqf Act, 1995 - Sections 63 &.67-
Supersession
of
committee
of
Management - S.67 applies only when
there is a committee of management
functioning in terms of S.63 - term of
petitioner
committee
expired
&
in
meantime another committee elected by
local
residents
was
appointed
as
mutawalli - Held - Since petitioner was
not an existing committee of management
as appointed under S. 63, S. 67 cannot be
made applicable (Para 13)

Disposed of. (E-5)

## Text

10 All. C/M Waqf Dargah Hazrat Peer Syed Mohammad Sahab (Rh) & Ors. Vs. U.P. Sunni
 Central Waqf Board & Ors.
1013

"While drawing a distinction
between the absence of sanction and
invalidity of the sanction, this Court in
Parkash Singh Badal expressed in no
uncertain terms that the absence of sanction
could be raised at the inception and
threshold by an aggrieved person. However,
where sanction order exists, but its legality
and validity is put in question, such issue
has to be raised in the course of trial. Of
course, in Parkash Singh Badal, this Court
referred to invalidity of sanction on account
of non- application of mind. In our view,
invalidity of sanction where sanction order
exists, can be raised on diverse grounds like
non-availability of material before the
sanctioning authority or bias of the
sanctioning authority or the order of
sanction having been passed by an authority
not authorised or competent to grant such
sanction. The above grounds are only
illustrative and not exhaustive. All such
grounds of invalidity or illegality of sanction
would fall in the same category like the
ground of invalidity of sanction on account
of non-application of mind - a category
carved out by this Court in Parkash Singh
Badal, the challenge to which can always be
raised in the course of trial."

9. Again C.B.I. Versus Ashok Kumar
Aggarwal, the Hon'ble Apex Court has held
as under:-

"46. The most relevant issue
involved herein is as at what stage the
validity of sanction order can be raised. The
issue is no more res- integra. In Dinesh
Kumar v. Chairman Airport Authority of
India & Anr., AIR 2012 SC 858, this Court
dealt with an issue and placing reliance
upon the judgment in Parkash Singh Badal
& Anr. v. State of Punjab & Ors., AIR 2007
SC 1274, came to the conclusion as under:

"13. In our view, having regard to
the facts of the present case, now since
cognizance has already been taken against
the appellant by the trial Judge, the High
Court cannot be said to have erred in
leaving the question of validity of sanction
open for consideration by the trial court and
giving liberty to the appellant to raise the
issue concerning validity of sanction order
in the course of trial. Such course is in
accord with the decision of this Court in
Parkash Singh Badal..."

47. Undoubtedly, the stage of
examining the validity of sanction is during
the trial and we do not propose to say that
the validity should be examined during the
stage of inquiry or at pretrial stage.

10. It is clear from the above decisions
of the Hon'ble Apex Court that the validity of
sanction should be examined during the trial,
hence in the light of the decisions laid down
by the Hon'ble Apex Court, the relief prayed
by the petitioner cannot be granted.

11. In view of the above, this writ
petition is dismissed.
----------
(2021)10ILR A1013
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SURESH KUMAR GUPTA, J.

Misc. Bench No.22480 of 2021

C/M Waqf Dargah Hazrat Peer Syed
Mohammad Sahab (Rh) & Ors.
 ...Petitioners
Versus
U.P. Sunni Central Waqf Board & Ors.
 ...Respondents
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Somesh Tripathi, Haider Abbas

Counsel for the Respondents:
Adil Hussain, Syed Qamar Hasan Rizvi

Waqf - Waqf Al-al Khair i.e. a public waqf -
Waqf Act, 1995 - Sections 63 &.67 -
Mutawalli - Extension of term - there is no
provision
for
extension
of
term
of
committee of management or mutawalli
under the Act, 1995

Petitioner
/Committee
of
Management
appointed for three years on 22.01.2015 - as
alleged, its term extended for three years, which
expired on 21.01.2021 - petitioner moved an
application for extension of its term - In the
meantime, another committee of management
elected by the local persons - U.P. Sunni Central
Waqf Board rejected petitioner's application for
extension of term as the term of the petitioner
having expired and another committee having
been elected by the locals, the latter had been
appointed to manage the Waqf in question -
Held - petitioner's application for extension of its
term was not maintainable - once the term of
the committee of management expired on
21.01.2021 and it was not extended, then, it
had no right to function after that, legally and
substantively - In any case, there is no
indefeasible right in favour of the petitioner to
continue as Committee of Management or to be
appointed as such (Para 12, 13)

Waqf Act, 1995 - Sections 63 &.67-
Supersession
of
committee
of
Management - S.67 applies only when
there is a committee of management
functioning in terms of S.63 - term of
petitioner
committee
expired
&
in
meantime another committee elected by
local
residents
was
appointed
as
mutawalli - Held - Since petitioner was
not an existing committee of management
as appointed under S. 63, S. 67 cannot be
made applicable (Para 13)

Disposed of. (E-5)

(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Suresh Kumar Guta, J.)

1. Although there is a remedy against
the impugned order before the U.P. Waqf
Tribunal, Lucknow, as it is not functioning
on account of vacancy on the post of
presiding officer, therefore, we have
entertained this petition and are deciding it
with the consent of

2. Heard Shri Q.H. Rizwi, learned
counsel for the opposite party Nos.1 and 2
as well as Shri Syed Aftab Ahmad,
Advocate holding brief of Shri Adil
Hussain, learned counsel for the opposite
party Nos.3 to 5.

3. Considering the nature of the
dispute, we do not propose to call for any
counter affidavit in the matter.

4. The petitioners herein have
challenged an order dated 16.08.2021
passed by the U.P. Sunni Central Waqf
Board by which another Committee of
Management/Mutwalli has been appointed.

5. The contention of the learned
counsel for the petitioners is that the
petitioner no.1/Committee of Management
was initially appointed for three years on
22.01.2015. He says that the term of the
Committee of Management was extended
vide
order
dated
29.01.2018
w.e.f
22.01.2018 for three years. This term
expired on 21.01.2021. The petitioner
moved an application for extension of its
term. In the meantime, as is mentioned in
the impugned order, another committee of
management is said to have been elected by
the local persons. The Waqf in question
being Waqf Al-al Khair that is a public
waqf and the same was forwarded to the
U.P. Sunni Central Waqf Board for
10 All. C/M Waqf Dargah Hazrat Peer Syed Mohammad Sahab (Rh) & Ors. Vs. U.P. Sunni
 Central Waqf Board & Ors.
1015
appointment as Committee of Management
along with letter of one Sibtain Haider
dated 06.07.2021. Thereafter it is said that
some complaint was made against the
petitioner no.1/committee of management
which was ordered to be inquired by the
Waqf inspector. However, as it was
represented by the petitioners that a fair
inquiry is not possible by him, the law
officer of the Waqf Board was ordered to
inquire into the matter, who submitted his
report dated 11.08.2021, wherein two
deficiencies were found in the Management
of the Waqf. Firstly, the petitioner no.1 had
undertaken
some
constructions
in
connection with the Waqf, but without
permission of the Board. Moreover, the
Board was not informed for making
necessary
entries
about
the
said
constructions in its records; Secondly, it is
said that the Waqf also runs a Madarsa
Darul Uloom Mohammadia. However on
inquiry, it was found that its functioning is
being managed by a separate society and
not by the petitioner which has been taken
as a deficiency, by the Board. The Board
by means of the impugned order has opined
that the term of the petitioner no.1 having
expired and another committee having been
elected by the locals, the latter had been
appointed to manage the Waqf in question.

6. The contention of the learned
counsel for the petitioner is that the
impugned order has been passed without
any opportunity of hearing and that it is a
non speaking order. In this regard, he relies
upon Sub section 2 of Section 67 of the
Waqf Act, 1995.

7. The petitioner's application for
extension of term has been rejected and
another Committee of Management has
been appointed to manage the Waqf in
question.

8. First and foremost, we would like
to refer to Section 3 (i) of the Waqf Act,
1995 which defines the term '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 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,
khandim,
mujawar,
sajjadanashin,
amin
or
other
person
appointed by a mutawalli to perform the
duties of a mutawalli and save as otherwise
provided in this Act, any person, committee
or corporation for the time being, managing
or administering any waqf or waqf
property.

9. The definition of mutawalli, as
referred herein above, thus includes a
committee.
We
now
consider
the
provisions of Section 63 of the Act, 1995
which reads as under:

"63. Power to appoint mutawallis
in certain cases.--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."

10. The provision for appointment of
mutawalli is contained in the above quoted
Section 63. As already stated mutawalli
includes a committee, therefore, provision
for appointment of a committee of
management to manage the Waqf is also
contained in Section 63 of the Act, 1995.

11. We asked the counsel for the
parties as to where is the provision for
extension
of
term
of
committee
of
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
management or mutawalli under the Act,
1995, but none of the counsels could place
before the Court any such provision nor
could the Court find any such provision in
the
Act,
1995.
The
provision
for
appointment of a mutawalli/committee of
management is Section 63, unless of
course, there is a provision in this regard in
the Waqf deed in which case it is governed
by such deed independent of Section 63.
Now, it is the admitted factual position that
the petitioner's term expired initially on
22.01.2018
which
was
extended
till
21.01.2021. This extension, in fact, was a
fresh appointment, as there is no provision
for
extension.
In
this
scenario,
the
application of the petitioner, as claimed, for
extension of its term was not maintainable
in the first place. At best it could be treated
as an application for appointment as
mutawalli of the Waqf concerned.

12. On being asked, we have also
been informed that in case of Waqf Al-al
Khair that is a public waqf, the local
residents elect a committee of management
and then forward the same to the concerned
Board which considers appointment of such
committee of management. In the present
case, there is nothing to show that the
petitioner-Committee of Management was
ever so elected for appointment as
mutawalli under Section 63 of the Act,
1995. We are of the view that the
petitioner's application for extension of its
term was not maintainable in the first place.
In any case, there is no indefeasible right in
favour of the petitioner to continue as
Committee of Management or to be
appointed as such afresh.

13. Now, coming to the other aspect
of the matter as already noticed earlier,
another committee of management was
elected by the local residents and their
names were forwarded to the Board which
has been appointed as mutawalli of the
Waqf. However, while doing so on a
complaint being made, a report was called
for wherein two deficiencies have been
discussed in the impugned order. It is only
on account of this that the petitioner is
claiming the application of Section 67 of
the Act, 1995. We are of the opinion that
once the term of the committee of
management expired on 21.01.2021 and it
was not extended, then, it had no right to
function
after
that,
legally
and
substantively. Therefore, as Section 67
applies only when there is a committee of
management functioning in terms of
Section 63, there was no question of
application of Section 67 of the Act, 1995.
Section 67 deals with supervision and
supersession of committee of management,
meaning thereby, an existing committee of
management as appointed under Section
63. The petitioner was not such a
committee, therefore, there is no question
of application of Section 67. We are in fact
of the opinion that the Board could have
avoided
commenting
on
the
alleged
deficiencies brought to its notice in the
inquiry ordered especially, as the said
inquiry report was never given to the
petitioners
nor
was
the
petitioner
confronted
with
the
same
with
an
opportunity
of
hearing
as
alleged.
Therefore, in these circumstances, we
uphold
the order
appointing
another
committee of management and decline the
claim of the petitioner for extension of its
term. We, at the same time, provide that
none of the observations in the order of the
Board as regards the alleged deficiencies
by the petitioner shall be read against it,
unless of course, there is any occasion to
take action against any member of the
committee of management which can be
done only in accordance with law after due
10 All. Smt. Radha Shukla & Anr. Vs. State of U.P. & Ors.
1017
opportunity
of
hearing.
With
these
observations, we decline to interfere with
the impugned order.

14. With these observations, this
petition is disposed of.
----------
(2021)10ILR A1017
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.10.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Misc. Bench No. 22784 of 2021

Smt. Radha Shukla & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Ashish Kumar Rastogi

Counsel for the Respondents:
C.S.C., Anand Kumar Singh

Civil Law
-Constitution of India,
Article
226
-
Securitisation
and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act,
2002 (SARFAESI), S. 17 - Auction sale
by Bank - auction challenged under
Article 226 - Held - efficacious remedy
of questioning the auction proceedings
as well as the sale certificate under
Section 17 of the Act, 2002 before the
Debt Recovery Tribunal, hence the
instant
writ
petition
is
not
maintainable (Para 13)

Dismissed. (E-5)

List of Cases cited :

1.
Harshad
Govardhan
Sondagar
Vs
International Assets Reconstruction Company
Ltd. & ors. (2014) 6 SCC 1
2. Mathew Varghese Vs M. Amritha Kumar &
ors. (2014) 5 SCC 610

3. United Bank of India Vs Satyawati Tandon &
ors. 2010 (8) SCC 110

4. Standard Chartered Bank Vs V. Noble Kumar
& ors. (2013) 9 SCC 620

5. I.C.I.C.I. Bank Limited & ors. Vs Umakanta
Mohapatra & ors. 2019 13 SCC 497

(Delivered by Hon'ble Ramesh Sinha, J.)

(1) Heard Sri Ashish Kumar Rastogi,
learned Counsel for the petitioners, Sri
Amitabh Rai, learned Additional Chief
Standing Counsel for the State/respondents
no. 1 and 2 and Sri Anand Kumar Singh,
learned
Counsel
for
the
respondent
no.3/Bank.

(2) The instant writ petition under
Article 226 of the Constitution of India has
been filed by the petitioners, Smt. Radha
Shukla, Ajay Kumar Shukla, challenging
the
auction
sale
performed
by
the
respondent no.3/Bank on 18.08.2021. The
petitioners are also seeking a writ of
mandamus directing the respondents to not
interfere in the peaceful possession of the
petitioners.

(3) It appears that the petitioners took
housing
loan
of
Rs.8,00,000/-
on
12.06.2013 and thereafter Rs.4,00,000/- in
the year 2014, for the purpose of
construction of house, from the respondent
no.3-UCO Bank, Branch Office, Barabanki
after mortgaging House No. L-5/98, Awas
Vikas Colony, Obari Awas Yojna, District
Barabanki and paid regular installments till
2018 as per the agreement executed
between
them
and
the
respondent
no.3/Bank but on account of financial
constraint and illness, the petitioners failed
to pay the balance outstanding amount as