# C/M Waqf Masjid & Anr. Revisionists v. Waqf Tribunal, U.P. & Ors

- **Citation:** (2023) 4 ILRA 134
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-14
- **Case number:** Civil Revision No. 7 of 2023
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-waqf-masjid-anr-revisionists-v-waqf-tribunal-u-p-ors-50045
- **Pages:** 6

## Headnote

A. Civil Law - Waqf Act, 1995 - Sections
3(k), 67(6) & 83(9) - Proceeding before
the Waqf Tribunal - Who can sue -
Plaintiff was removed from the post of
Mutawalli - Effect - Person interested -
Defined - Held, a person interested in a
waqf is any person who is entitled to
receive any pecuniary or other benefits
from the waqf - Provision is inclusive of
any person who has a right to offer prayer
or perform any religious rite in a religious
place as defined thereunder
- Held
further, despite the fact that revisionist
was
removed
from
his
post
as
Mutawalli/Secretary
of
the
managing
committee of waqf, the application filed
by him under Section 83(2) of the Act,
1995 in his individual capacity was clearly
maintainable
not
only
as
a
person
interested in a waqf but also as a person
aggrieved by order. (Para 10 and 18)
Revision allowed. (E-1)
List of Cases cited:

## Text

134 INDIAN LAW REPORTS ALLAHABAD SERIES
आदेश

19. यह प्रार्थवनापि अंतगवत िारा 482 दं०प्र०सं०
उपरोक्तानुसार खण्डण्डत वकया जाता है।
----------
(2023) 4 ILRA 134
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.03.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Civil Revision No. 7 of 2023

C/M Waqf Masjid & Anr. ...Revisionists
Versus
Waqf Tribunal, U.P. & Ors.
 ...Opposite Parties

Counsel for the Revisionists:
Mohd. Shadab Khan

Counsel for the Opposite Parties:
Syed Aftab Ahmad

A. Civil Law - Waqf Act, 1995 - Sections
3(k), 67(6) & 83(9) - Proceeding before
the Waqf Tribunal - Who can sue -
Plaintiff was removed from the post of
Mutawalli - Effect - Person interested -
Defined - Held, a person interested in a
waqf is any person who is entitled to
receive any pecuniary or other benefits
from the waqf - Provision is inclusive of
any person who has a right to offer prayer
or perform any religious rite in a religious
place as defined thereunder
- Held
further, despite the fact that revisionist
was
removed
from
his
post
as
Mutawalli/Secretary
of
the
managing
committee of waqf, the application filed
by him under Section 83(2) of the Act,
1995 in his individual capacity was clearly
maintainable
not
only
as
a
person
interested in a waqf but also as a person
aggrieved by order. (Para 10 and 18)
Revision allowed. (E-1)
List of Cases cited:
1. P. Kasilingam & ors. Vs P.S.G. College of
Technology & ors.; 1995 Supp (2) SCC 348
2. N.D.P. Namboodripad Vs U.O.I.& ors.; (2007)
4 SCC 502
3. Ayaaubkhan Noorkhan Pathan Vs St. of Mah.
& ors.; (2013) 4 SCC 465

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

1. Heard Mr. Mohd Shadab Khan
learned counsel for revisionist and Mr.
Syed Aftab Aftab Ahmad learned counsel
for opposite parties 4 and 5. The opposite
parties 1,2 and 3 being merely proforma in
nature, notices are dispensed with.

2. Revision under Section 83(9) of the
Waqf Act 1995 has been filed against order
dated 26th December, 2022 passed in Case
No. 37 of 2022 whereby the suit
proceedings have been dismissed on the
ground that it has become infructuous.

3. Learned counsel for revisionist
submits that the aforesaid case had been
filed before the Waqf Tribunal under
Section 83(2) of the Act of 1995 against
order dated 16th February, 2022 whereby
the opposite party No.4 was inducted as a
Member of the Committee of Management.
It is submitted that the aforesaid suit was
filed by the revisionist in his capacity as
Mutawalli/Secretary
of
the
Managing
Committee of the Waqf as well as in his
individual capacity. It is submitted that by
means of impugned order, it has been
noticed that subsequent to filing of the suit,
the revisionist has been removed from the
post of Mutawalli/Secretary by means of
order dated 20th September, 2022 in terms
of Section 67(6) of the Act, 1995 and
therefore the cause of action having come
4 All. C/M Waqf Masjid & Anr. Vs. Waqf Tribunal, U.P. & Ors.
135
to an end, the case itself was dismissed as
infructuous.

4. Learned counsel for revisionist
submits that the Waqf Tribunal has clearly
erred in passing the impugned order while
ignoring the fact that suit proceedings were
maintainable in the individual capacity of
revisionist
apart
from
his
status
as
Mutawalli/Secretary of the Committee of
Management. He has adverted to Section
83(2), Section 32(2)g) and Section 3(i)(k)
of the Waqf Act 1995 to submit that the
revisionist would come within definition of
not only a person interested but also a
person aggrieved by the initial order and
these are the aspects which have not been
considered by the Tribunal by passing the
impugned order.

5. Learned counsel appearing on
behalf of opposite party No. 4 and 5 has
submitted that it was on the application
made by opposite party No.5 that the
impugned order has been passed dismissing
the case as having become infructuous. It is
submitted that there is no error in the
impugned order since the case was filed by
the
revisionist
in
his
capacity
as
Mutawalli/Secretary
of
the
Managing
Committee of the waqf and since during
pendency of proceedings, he was removed
from the said post, the cause of action at
the instance of revisionist came to an end
since he lost his locus standi to maintain
the suit. It is further submitted that the
revisionist does not come within the
definition of either any person interested in
a waqf or any other person aggrieved by
the order made under the Act and therefore
the impugned order rejecting the suit as
infructuous has been rightly passed.

6. Considering submissions advanced
by learned counsel for parties, it is evident
that a suit or proceeding can be instituted
before a waqf tribunal in terms of Section
83(2) of the Act of 1995 which authorizes
any mutawali or person interested in a waqf
or any other person aggrieved by an order
made under the Act or Rules made
thereunder to make an application before
the Tribunal within the specified time
frame for determination of any dispute,
question or other matter relating to waqf.

7. In the present case, admittedly the
plaint was filed by revisionist not only in
his capacity as Mutawalli/Secretary of the
Managing Committee of waqf but also in
his individual capacity. The order against
which the suit proceedings were instituted
is dated 16th February, 2022 pertaining to
inclusion of opposite party No.4 as a
member of the managing committee of the
waqf. It is also admitted that during
pendency of proceedings, revisionist was
removed
from
his
post
of
Mutawalli/Secretary
of
the
managing
committee of waqf vide order dated 20th
September, 2022.

8. For the purposes of maintaining
any proceeding before the waqf tribunal in
terms of Section 83(2) of the Waqf Act of
1995, a person should either be a
mutawalli, a person interested in a waqf or
any other person aggrieved by an order
made under the Act. Admittedly at the time
of filing of proceedings, revisionist was a
mutawalli. Question as such requiring
adjudication is whether the revisionist
would also come within definition of a
person interested in a waqf as well as any
other person aggrieved by order made
under the Act ?

9. For the purposes of determination of
aforesaid question, it is necessary to advert
to definition of 'a person interested in a
136 INDIAN LAW REPORTS ALLAHABAD SERIES
waqf' as defined under Section 3(k) of the
Act, 1995 which is as follows:-

"3(k) "person interested in a
[wakf]" means any person who is entitled
to receive any pecuniary or other benefits
from the [wakf]and includes--

(i) any person who has a right to
[offer prayer] or to perform any religious
rite in a mosque, idgah, imambara,
dargah,[khanqah,
peerkhana
and
Karbala], maqbara, graveyard or any
other religious institution connected with
the [wakf] or to participate in any religious
or charitable institution under the [wakf];

(ii)
the
[wakif]
and
any
descendant
of
the
[wakif]
and
the
mutawalli;"

10. Evidently a person interested in a
waqf is any person who is entitled to
receive any pecuniary or other benefits
from the waqf. The provision is inclusive
of any person who has a right to offer
prayer or perform any religious rite in a
religious place as defined thereunder.

11. It is not denied by learned counsel
for opposite party that the revisionist has a
right to offer prayers or to perform
religious rite in the religious institution for
which the waqf has been created but
submits that the aforesaid right would be
restricted to only those persons who receive
any pecuniary or other benefits of the waqf
only and as such would exclude the
revisionist who after removal from the post
of Mutawalli/Secretary of the managing
committee of the waqf does not derive any
pecuniary or other benefits of the waqf.
The aforesaid submission of learned
counsel for opposite party No.4 and 5,
though attractive at first glance, does not
hold any good ground in view of definition
clause itself which is an inclusion clause
and not an exclusion clause and is therefore
required to be seen ejusdem generis with
the primary clause whereby a person
interested in a waqf has been defined to be
any
person
entitled
to
receive
any
pecuniary or other benefits from the waqf.
Such other benefits have been explained as
an inclusionary clause to include a person
who has a right to offer prayer or to
perform any religious rite in the religious
institution concerned. Once it is admitted
that petitioner even without holding the
post of Mutawalli or Secretary of the
managing committee of the waqf has a
right to offer prayers or to perform any
religious rite in the religious institution of
the waqf, the revisionist would come
within definition of a person interested in
the waqf as defined under Section 3(k) of
the Act, 1995.

12. With regard to an inclusionary
clause in a statutory provision, Hon'ble
Supreme Court in the cases of P.
Kasilingam and others versus P.S.G.
College of Technology and others reported
in 1995 Supp (2) Supreme Court Cases 348
and N.D.P. Namboodripad versus Union
of India and others reported in (2007) 4
SCC 502 has held as follows:-

P. Kasilingam and others versus
P.S.G. College of Technology and others

"A particular expression is often
defined by the Legislature by using the
word 'means' or the word 'includes'.
Sometimes the words 'means and includes'
are used. The use of the word ' means'
indicate that "definition is a hard- and-fast
definition and no other meaning can be
assigned to the expression that is put down
in definition." [See Gough v. Gough,
(1891)
2
QB
665;
Punjab
Land
Development and Reclamation Corpn. Ltd.
v. Presiding Officer, Labour Court, (1990
4 All. C/M Waqf Masjid & Anr. Vs. Waqf Tribunal, U.P. & Ors.
137
(3) SCC 682,717]. The word 'includes'
when used, enlarges the meaning of the
expression defined so as to comprehend not
only such things as they signify according
to their natural import but also those things
which the clause declares that they shall
include. The words 'means and includes',
on the other hand, indicate "an exhaustive
explanation of the meaning which, for the
purposes of the Act, must invariably be
attached to these words or expressions."

N.D.P. Namboodripad
versus
Union of India and others

"19. Justice G.P. Singh in his
treatise
Principles
of
Statutory
Interpretation (10th Edn., 2006), has
noticed that where a word defined is
declared to "include" such and such, the
definition is prima facie extensive, but the
word "include" when used while defining a
word or expression, may also be construed
as equivalent to "mean and include" in
which event, it will afford an exhaustive
explanation of the meaning which for the
purposes of the Act must invariably be
attached to the word or expression [vide
pp. 173 and 175 referring to and relying on
the decisions of this Court in Municipal
Council, Raipur v. State of M.P. [(1969) 2
SCC 582 : AIR 1970 SC 1923] , South
Gujarat Roofing Tiles Manufacturers Assn.
v. State of Gujarat [(1976) 4 SCC 601 :
1977 SCC (L&S) 15 : AIR 1977 SC 90] ,
Hindustan Aluminium Corpn. v. State of
U.P. [(1981) 3 SCC 578 : 1981 SCC (Tax)
280 : AIR 1981 SC 1649] and Reserve
Bank of India v. Peerless General Finance
& Investment Co. Ltd. [(1987) 1 SCC 424]
It is, therefore, evident that the word
"includes" can be used in interpretation
clauses either generally in order to enlarge
the meaning of any word or phrase
occurring in the body of a statute, or in the
normal
standard
sense,
to
mean
"comprises" or "consists of" or "means and
includes" depending on the context."

13. Upon applicability of aforesaid
judgment, it is evident that the inclusionary
clause would directly relate to other
benefits being derived from the waqf by
any person who is entitled to such benefit
and would therefore come within definition
of a person interested in a waqf.

14. Furthermore under Section 83(2)
of the Act 1995, an application for the
purposes of determination of any dispute,
question or other matter relating to waqf is
also maintainable at the behest of 'any other
person aggrieved by and order made under
this Act or Rules'.

15. Although the definition of person
aggrieved has not been provided in the Act
of 1995 but the same has been explained in
a number of judgments not only of this
Court but also of the Hon'ble Supreme
Court as laid down in the case of
Ayaaubkhan Noorkhan Pathan versus
State of Maharashtra and others reported
in (2013) 4 SCC 465 in the following
manner:-

10. A "legal right", means an
entitlement arising out of legal rules. Thus,
it may be defined as an advantage, or a
benefit conferred upon a person by the rule
of law. The expression, "person aggrieved"
does not include a person who suffers from a
psychological or an imaginary injury; a
person aggrieved must, therefore, necessarily
be one whose right or interest has been
adversely affected or jeopardised. (Vide Shanti
Kumar R. Canji v. Home Insurance Co. of
New York [(1974) 2 SCC 387 : AIR 1974 SC
1719] and State of Rajasthan v. Union of India
[(1977) 3 SCC 592 : AIR 1977 SC 1361] .
138 INDIAN LAW REPORTS ALLAHABAD SERIES

xxx
xxxx

xxxxx

12. In A. Subash Babu v. State of
A.P. [(2011) 7 SCC 616 : (2011) 3 SCC
(Civ) 851 : (2011) 3 SCC (Cri) 267 : AIR
2011 SC 3031] , this Court held : (SCC pp.
628-29, para 25)

"25. ... The expression ''aggrieved
person' denotes an elastic and an elusive
concept. It cannot be confined within the
bounds of a rigid, exact and comprehensive
definition. Its scope and meaning depends
on diverse, variable factors such as the
content and intent of the statute of which
the contravention is alleged, the specific
circumstances of the case, the nature and
extent of the complainant's interest and the
nature and the extent of the prejudice or
injury suffered by the complainant."

16. The provision of Section 83(2) of
the Act 1995 as such clearly includes any
other person aggrieved by an order made
under this Act or Rules. It is not disputed
that the order dated 16th Febraury, 2022
pertaining to inclusion of opposite party
No.4 as a member of the committee of
management has been passed in terms of
Section 32(2)(g) pertaining to powers of
the Board to appoint and remove Mutawalli
in accordance with provisions of the Act.
The aforesaid power is clearly referable to
Section 3(i) of the Act of 1995 which
defines
Mutawalli
in
the
following
manner:-

"3(i) "mutawalli" means any
person appointed, either verbally or under
any deed or instrument by which a 1[waqf]
has been created, or by a competent
authority, to be the mutawalli of a 1[waqf]
and includes any person who is a mutawalli
of a 1[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 this Act, any person, committee
or corporation for the time being managing
or administering any 1[waqf] or 1[waqf]
property:

Provided that no member of a
committee or corporation shall be deemed
to be a mutawalli unless such member is an
office-bearer
of
such
committee
or
corporation:

2[Provided
further
that
the
mutawalli shall be a citizen of India and
shall fulfil such other qualifications as may
be prescribed:

Provided also that in case a waqf
has specified any qualifications, such
qualifications may be provided in the rules
as
may
be
made
by
the
State
Government;]"

17. Upon consideration of the said
provisions of the Act, it is clear that the
order dated 16th February, 2022 which was
under challenge at the behest of revisionist
was passed by the board exercising its
power under Section 32(2)(g) of the Act of
1995 read with Section 3(i) of the Act
pertaining to any person, committee or
corporation for the time being managing or
administering any waqf or waqf property.

18. It is therefore evident that despite
the fact that revisionist was removed from
his post as Mutawalli/Secretary of the
managing
committee
of
waqf,
the
application filed by him under Section
83(2) of the Act, 1995 in his individual
capacity was clearly maintainable not only
as a person interested in a waqf but also as
a person aggrieved by order dated 16th
February, 2022 passed in terms of Section
32 of the Act.

19. A perusal of the impugned order
reveals the fact that revisionist's application
4 All. Ansar Nawaz Khan Vs. Adeel Ahmad & Ors.
139
under Section 83(2) of the Act of 1995 has
been dismissed as infructuous only on the
ground that he has been removed from the
post of Mutawalli/Secretary of the managing
committee of waqf. The Tribunal has clearly
not adverted to other provisions of Section
83(2) of the Act of 1995 pertaining to
whether the suit was maintainable in
individual capacity of revisionist either as a
person aggrieved or as a person interested in
the waqf.

20. The aspect of a person aggrieved by
the order dated 16th February, 2022 was also
required to be seen in the context of pleading
made in the plaint particularly with regard to
paragraph 16 thereof in which the revisionist
has clearly stated that the person inducted in
the management of the waqf have no concern
with the management and that their inclusion
is also barred under provisions of Section
32(2)(g) of the Waqf Act, 1995. The
aforesaid pleadings made by revisionist in his
plaint have clearly been ignored by the
Tribunal while passing the impugned order.

21. Considering the aforesaid factors,
the impugned order dated 26th December,
2022 passed by the Waqf Tribunal in case
No. 37 of 2022 being against provisions of
Act,1995 is hereby set aside.

22. Consequently the revision succeeds
and is allowed. Parties to bear their own cost.
----------
(2023) 4 ILRA 139
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.03.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Civil Revision No. 14 of 2023

Ansar Nawaz Khan ...Revisionist
Versus
Adeel Ahmad & Ors. ...Opposite Parties

Counsel for the Revisionist:
Mohammad Tariq Saeed

Counsel for the Opposite Parties:
Sunil Sharma, Farhan Habib, Ruved Kamal
Kidwai, Syed Aftab Ahmad

A. Civil Law - Court Fees Act, 1870 -
Sections 7 (iv-A) and (iv-A) Suit for
declaration,
not
for
possession
-
Application of provision - Held, suit for
declaratory decree has been filed with
consequential relief of only permanent
injunction and not for possession. In
such circumstances, Court fees would
be payable in terms of Section 7(iv)(a)
of the Act and not in terms of Section
7(iv-A) of the Act and therefore only a
fixed Court fee of Rs. 500/- was
payable
by
the
revisionist.
The
Tribunal has clearly erred in holding ad
valorem Court fee being payable. (Para
21)
Revision allowed. (E-1)
List of Cases cited:
1. Basant Kumar Mata Nehliya Vs Chowdhary
Ujjair; (2011) 89 ALR 551
2. Dr. Sushil Suri Vs Harish Suri & ors.; 2023(2)
ADJ 552 (L.B)
3. Chief Inspector of Stamps Vs Laxmi Narain;
AIR 1958 SC 245
4. Suhrid Singh Vs Randhir Singh & ors.;
(2010)12 SCC 112

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

1. Heard Mr. Mohammad Tariq
Saeed, learned counsel for revisionist, Mr.
Sunil Sharma and Mr. Ruved Kamal
Kidwai, learned counsel for opposite party
no.2 and Mr. Syed Aftab Ahmad, learned
counsel for opposite party no.8.