# Ibney Hasan v. Special Judge E.C. Act Faizabad & Ors

- **Citation:** (2024) 5 ILRA 1638
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** Writ C No. 1005292 of 2006
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ibney-hasan-v-special-judge-e-c-act-faizabad-ors-52009
- **Pages:** 6

## Headnote

(A) Muslim Waqf law - U. P. Muslim Waqf
Act, 1960 - Section 57-A - Recovery of
possession of waqf property from unauthorized occupants , Section 58 - Powers
of inquiring authority, The Waqf Act, 1995
- Section 112(3) - repeal and savings - U.P.
Muslim Waqf Act 1960 stood repealed
immediately upon enactment of the Waqf
Act, 1995 ( with effect from 01.01.1996) ,
after 01.01.1996, no action could be taken
or proceedings could be continued under
U.P. Muslim Waqf Act, 1960 , Section 83(2)
- alternative remedy before Tribunal - U.P.
Muslim Waqf Rules - Rule 5 - Controller's
order and subsequent proceedings are
without jurisdiction under Section 57-A of
5 All. Ibney Hasan Vs. Special Judge Vs. E.C. Act Faizabad & Ors.
1639
the U.P. Muslim Waqf Act, 1960, after
enactment of the U. P. Muslim Waqf Act
1995 - Availability of an alternative remedy
does
not
prevent
the
exercise
of
jurisdiction under Article 226 of the
Constitution of India. (Para - 7, 11)

Petitioner's Waqf Property Ownership Case -
Petitioner claims ownership of part of waqf
property - construction of shop by someone over
land in 1995 - Shops were recorded in
petitioner's and his predecessors' names in town
records - later becoming Nagar Palika Parishad -
Impugned orders were passed after repeal of
U.P. Muslim Waqf Act, 1960 - in exercise of
powers conferred by repealed Act - not under
powers conferred by the Waqf Act, 1995 -
petitioner cannot avail remedy under Section
83(2).(Para - 3, 12)

HELD:-
 Impugned order and consequential
requisition are without any authority of law.
Proceedings initiated against petitioner prior to
repeal of U.P. Muslim Waqf Act and enactment of
Waqf Act, 1995 transferred to competent
authority under Waqf Act, 1995. Board shall
proceed in accordance with law from the stage
that had been achieved prior to 01.01.1996 i.e.
date of enforcement of Waqf Act, 1995. Petition
filed on 06.11.2006, pending for 18 years, should
not
be
relegated
to
alternative
remedy.
Impugned order quashed. (Para - 14,15)

Petition allowed. (E-7)

List of Cases cited:

## Text

1638 INDIAN LAW REPORTS ALLAHABAD SERIES
wife had been repeatedly meeting the
applicant and from the CCTV footage as
well as statements of the witnesses elicited
during investigation it prima facie reflects
towards the complicity of the applicant.

33. In normal circumstances and even
as per the law, the Jail Authorities do not and
could not grant such unrestricted access to
any person which has been allegedly
extended to the wife of the applicant,
obviously at the asking of the applicant. The
recovery of two mobile phones from the
wife of the applicant who was found in the
Jail premises in a room where she could not
have access unless the Jail Authorities
turned a blind eye.

34. Allegedly such dereliction of duty
/violation of rules and regulations at the
behest of the Jail Authorities, frequently and
selectively for the applicant and his wife
may not have been possible merely for
monetary gains. Considering the profile and
the background of the applicant and his
family antecedents, the allegations may not
be completely without substance. If such
influence whether for monetary reason or
under threat or coercion, if can be exercised
over police and prison authorities so
effectively who are basically enforcers of
law then it can be well imagined how the
applicant can effectively garner power to
influence any witness or to persuade him to
change his stand and this aspect if seen in
light of the fact that the evidence is yet to
commence. In the aforesaid facts and
circumstances where the evidence is yet to
commence and there are eye-witnesses and
certain police authorities who were to be
examined, hence, at this stage, this Court is
not inclined to grant bail to the applicant
which is accordingly rejected. The Trial
Court shall expedite the trial and endevour
be made to decide the same as expeditiously
as possible. The prosecution State shall also
ensure that they do not seek any unnecessary
adjournments
for
examining
of
the
witnesses. It is also made clear that any
observations made by this Court in the
instant order may not be taken as an
expression of opinion on merits and the Trial
Court shall proceed strictly in accordance
with law.
----------
(2024) 5 ILRA 1638
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ C No. 1005292 of 2006

Ibney Hasan ...Petitioner
Versus
Special Judge E.C. Act Faizabad & Ors.
 ...Respondents

Counsel for the Petitioner:
Pushpila Bisht

Counsel for the Respondents:
C.S.C., Haider Abbas, Ishtiaq Ahmad,
M.M.Salam, Mohd.Yasin, Rakesh Kumar
Srivastava, S.A.A.Rizvi, S.M.Munish Jafri

(A) Muslim Waqf law - U. P. Muslim Waqf
Act, 1960 - Section 57-A - Recovery of
possession of waqf property from unauthorized occupants , Section 58 - Powers
of inquiring authority, The Waqf Act, 1995
- Section 112(3) - repeal and savings - U.P.
Muslim Waqf Act 1960 stood repealed
immediately upon enactment of the Waqf
Act, 1995 ( with effect from 01.01.1996) ,
after 01.01.1996, no action could be taken
or proceedings could be continued under
U.P. Muslim Waqf Act, 1960 , Section 83(2)
- alternative remedy before Tribunal - U.P.
Muslim Waqf Rules - Rule 5 - Controller's
order and subsequent proceedings are
without jurisdiction under Section 57-A of
5 All. Ibney Hasan Vs. Special Judge Vs. E.C. Act Faizabad & Ors.
1639
the U.P. Muslim Waqf Act, 1960, after
enactment of the U. P. Muslim Waqf Act
1995 - Availability of an alternative remedy
does
not
prevent
the
exercise
of
jurisdiction under Article 226 of the
Constitution of India. (Para - 7, 11)

Petitioner's Waqf Property Ownership Case -
Petitioner claims ownership of part of waqf
property - construction of shop by someone over
land in 1995 - Shops were recorded in
petitioner's and his predecessors' names in town
records - later becoming Nagar Palika Parishad -
Impugned orders were passed after repeal of
U.P. Muslim Waqf Act, 1960 - in exercise of
powers conferred by repealed Act - not under
powers conferred by the Waqf Act, 1995 -
petitioner cannot avail remedy under Section
83(2).(Para - 3, 12)

HELD:-
 Impugned order and consequential
requisition are without any authority of law.
Proceedings initiated against petitioner prior to
repeal of U.P. Muslim Waqf Act and enactment of
Waqf Act, 1995 transferred to competent
authority under Waqf Act, 1995. Board shall
proceed in accordance with law from the stage
that had been achieved prior to 01.01.1996 i.e.
date of enforcement of Waqf Act, 1995. Petition
filed on 06.11.2006, pending for 18 years, should
not
be
relegated
to
alternative
remedy.
Impugned order quashed. (Para - 14,15)

Petition allowed. (E-7)

List of Cases cited:

1. Sahibzada Moinuddin Siddiqui Vs U.P. Sunni
Central Board of Waqfs, 2017 SCC OnLine All
3659

2. Whirlpool Corporation Vs Registrar of Trade
Marks, Mumbai & ors., (1998) 8 SCC 1

 (Delivered by Hon'ble Subhash Vidyarthi,
J.)

(C. M. Application No.51889 of 2015)

1. Heard Ms. Pushpila Bisht, the
learned counsel for petitioner, Sri Umesh
Srivastava, learned Standing Counsel for the
opposite party no.5-Collector, Faizabad and
Sri S.A.A. Rizvi, learned counsel for the
opposite party nos.2 & 3.

2. Sri Adnan Rafiq Hasan had filed an
application for impleadment through Sri M.
M. Salam, Advocate. Name of Sri M.
M.Salam has been shown in the cause list
but neither he is present to assist the Court
nor has he sent any request for adjournment
of the case.

3. In the affidavit filed in support of the
application for impleadement, it has been
stated that the applicant was Managing
Mutawalli of Waqf Masjid and Rauza Hazrat
Qasim, (opposite party no.4) and being
Mutawalli, he is a necessary party to the writ
petition.

4. The Waqf Masjid and Rauza Hazrat
Qasim is already impleaded as opposite
party no.4 in the writ petition and therefore,
the Mutawalli of Waqf Masjid and Rauza
Hazrat Qasim is not a necessary party.

5. Accordingly, the impleadment
application is rejected.

Order on Memo of Writ Petition

1. By means of the instant writ petition
filed
under Article
226/227
of
the
Constitution of India, the petitioner has
challenged the validity of an order dated
26.03.1996 passed by the Controller, Shia
Central Waqf Board, U.P. Lucknow under
Section 57-A of U. P. Muslim Waqf Act,
1960 directing issuance of a requisition for
taking possession of a property bearing
no.277, which is bounded in the East by a
Road, in the West by land of waqf, in the
North by a shop of waqf and in the South
1640 INDIAN LAW REPORTS ALLAHABAD SERIES
also by another shop of the waqf, for taking
possession of the aforesaid property from
the petitioner and to hand it over to the
Mutwalli of Waqf Maszid Rauza Hazrat
Kasim (the opposite party no. 4). The
petitioner has also challenged the validity of
a requisition dated 21.06.1996 issued by the
Collector, Faizabad in furtherance of the
aforesaid order dated 26.03.1996 passed by
the Controller.

2. The petitioner has also challenged
the validity of a judgment and order dated
12.10.2006 passed by the Special Judge,
E.C. Act, Faizabad in Misc. Civil Appeal
No.9 of 1996, whereby the petitioner's
appeal filed against the aforesaid orders
26.03.1996 passed by the Controller and the
requisition dated 21.06.1996 issued by the
Collector Faizabad, was dismissed.

3. Briefly stated facts of the case are
that the petitioner claims to be the owner of
a part of waqf property bearing plot no.277
and he claims that Sri Sageer Husain had
constructed a shop over the land in the year
1955 under an Ijazatnama granted by the
erstwhile Taluqdar of Lorepur Estate on
13.09.1944.
Subsequently
another
Ijazatnama was issued by the Chairman,
Nagar Palika Parishad of Jalalpur on
27.09.1955.
Sri
Sageer
Husain
had
constructed some shops over plot no.277 in
furtherance of the Ijazatnama. The shops
were recorded in the name of the petitioner
and his predecessors in the records of town
area Jalalpur which has subsequently
become Nagar Palika Parishad, Jalalpur.

4. The Controller, Shia Central Waqf
Board U.P., Lucknow had initiated an
enquiry under section 58 of U. P. Muslim
Waqf Act, 1960 and a report was submitted
in furtherance of the enquiry on 22.05.1992.
On 27.02.1995, a notice under Section 58 of
the U.P. Muslim Waqf Act, 1960 was issued
against the petitioner and other persons. The
petitioner filed his reply to the notice
claiming that plot no.277 had been leased
out to Sri Sageer Husain in the year 1944
and the shops had been constructed thereon
in the year 1955 and the same are not waqf
property. Opposite party no.4 claims that
plot no.277 is the property of Waqf Maszid
Rauza Hazrat Kasim.

5. On 26.03.1996, the Shia Central
Waqf Board, U.P. passed an order under
Section 57-A of the U.P. Muslim Waqf Act,
1960 holding that the property in question is
the property of Waqf Maszid Rauza Hazrat
Kasim and ordering ejectment of the
petitioner from waqf property and its
requisition under section 57-A of the Act of
1960. In furtherance of the aforesaid order
dated 26.03.1996 passed by the Controller
of Shia Central Waqf Board, U.P., the
Collector Lucknow issued a requisition
dated 21.06.1996 for delivery of possession
of the property to the Waqf under Rule 5 of
U.P. Muslim Waqf Rules. The petitioner
filed Misc. Civil Appeal No.9 of 1996
against the aforesaid order which has been
dismissed by means of the judgment and
order dated 12.10.2006 passed the Special
Judge, E.C. Act, Faizabad holding that the
petitioner ought to have filed a reference to
the Tribunal constituted under U.P. Muslim
Waqf Act, 1960 and the petitioner should
agitate the question of title before the
Tribunal. The appeal filed by the petitioner
regarding his title could not be decided by
the District Judge as only the Tribunal has
power to decide the title of the parties.
Accordingly, the appeal was dismissed as
not maintainable.

6. Assailing the validity of the
aforesaid three orders, Ms. Pushpila Bisht,
the learned counsel for the petitioner has
5 All. Ibney Hasan Vs. Special Judge Vs. E.C. Act Faizabad & Ors.
1641
submitted that the Waqf Act, 1995 was
enacted by the Parliament with effect from
01.01.1996. Section 112 of the Waqf Act,
1995 provides as follows: -

"112. Repeal and savings- (1) The
Waqf Act 1956 (29 of 1954) and the Waqf
(Amendment) Act, 1984 (69 of 1984) are
hereby repealed.

(2) Notwithstanding such repeal,
anything done or any action taken under the
said Acts shall be deemed to have been done
or taken under the corresponding provisions
of this Act.

(3) If, immediately before the
commencement of this Act, in any State,
there is in force in that State, any law which
corresponds to this Act that corresponding
law shall stand repealed:

Provided that such repeal shall
not affect the previous operation of that
corresponding law, and subject thereto,
anything done or any action taken in the
exercise of any power conferred by or under
the corresponding law shall be deemed to
have been done or taken in the exercise of
the powers conferred by or under this Act as
if this Act was in force on the day on which
such things were done or action was taken."

7. A bare perusal of Section 112(3) of
the Act of 1995 makes it clear that U.P.
Muslim Waqf Act 1960 stood repealed
immediately upon enactment of the Waqf
Act, 1995 i.e. with effect from 01.01.1996
and after 01.01.1996, no action could be
taken or proceedings could be continued
under U.P. Muslim Waqf Act, 1996.

8. Ms. Pushpila Bisht, learned
counsel for the petitioner has relied upon
a judgment rendered by a Division Bench
of this Court in the case of Sahibzada
Moinuddin Siddiqui v. U.P. Sunni
Central Board of Waqfs, 2017 SCC
OnLine All 3659, wherein it was held that:
-

"19.
Accordingly,
savings
provision contained in section 112 of 1995
Act saves only previous operation of 1960
Act and provides that the things done or
action taken under 1960 Act will be
deemed to have been taken in exercise of
the powers conferred under 1995 Act,
however, any action taken or anything
done under the old 1960 Act will be valid
and will be deemed to have been taken
under the new Act 1995 only and only if
such thing was done or such action was
taken before the Waqf Act, 1995 came
into force i.e., before 1.1.1996."
(Emphasis in original)

9. Sri S.A.A. Rizvi, learned counsel
representing the opposite parties no.2 and
3 has submitted that the petitioner has an
alternative remedy of challenging the
aforesaid orders of the Controller and
Collector before the Tribunal under
section 83(2) of the Waqf Act, 1995.
However, hecould not dispute the legal
position and the affect of section 112(3) of
the Waqf Act, 1995.

10. The learned counsel for the
petitioner submitted that in the case of
Whirlpool Corporation vs. Registrar of
Trade Marks, Mumbai and others,
reported in (1998) 8 SCC 1, Hon'ble
Supreme Court has held that: -

"15. Under Article 226 of the
Constitution, the High Court, having regard
to the facts of the case, has a discretion to
entertain or not to entertain a writ petition.
But the High Court has imposed upon itself
certain restrictions one of which is that if an
effective
and
efficacious
remedy
is
available, the High Court would not
1642 INDIAN LAW REPORTS ALLAHABAD SERIES
normally exercise its jurisdiction. But the
alternative remedy has been consistently
held by this Court not to operate as a bar in
at least three contingencies, namely, where
the writ petition has been filed for the
enforcement of any of the Fundamental
Rights or where there has been a violation
of the principle of natural justice or where
the order or proceedings are wholly without
jurisdiction or the vires of an Act is
challenged. There is a plethora of case-law
on this point but to cut down this circle of
forensic whirlpool, we would rely on some
old decisions of the evolutionary era of the
constitutional law as they still hold the
field."

11. As in the present case, after
enactment of the Waqf Act 1995, the
Controller had no jurisdiction under Section
57-A of the U. P. Muslim Waqf Act, 1960,
the order passed by the Controller and the
consequential
proceedings
are
wholly
without
jurisdiction
and
in
such
circumstances,
the
availability
of
an
alternative remedy will not be a bar against
exercise of jurisdiction under Article 226 of
Constitution of India. Further, when the writ
petition was filed way back on 06.11.2006
and the pleadings have been exchanged and
the petition is pending for the last about 18
years, it would not proper to relegate the
petitioner to any other alternative remedy at
this belated stage.

12. Moreover, Section 83(2) of the
Waqf Act, 1995 provides remedy to a
person aggrieved by "an order made under
this Act or Rules made thereunder". The
impugned orders have been passed after
repeal of U.P. Muslim Waqf Act, 1960 in
exercise of powers conferred by the
repealed Act and not under powers
conferred by the Waqf Act, 1995.
Therefore, the petitioner cannot avail the
remedy under Section 83(2) of the Waqf
Act, 1995.

13. Accordingly, keeping in view the
entire facts and circumstances of the case,
it would not be proper to relegate the
petitioner to the matter being decided on
merits.

14. The proviso appended to Section
112(3) merely saves anything done or any
action taken in exercise of any power
conferred by U.P. Muslim Waqf Act, 1960
till the aforesaid enactment was in
existence i.e. prior to 01.01.1996. The
order dated 26.03.1996 was passed by the
Controller under Section 57-A of U.P.
Muslim Waqf Act, 1960, whereas of U.P
Muslim Waqf Act, 1960 stood repealed
with effect from 01.01.1996. Therefore,
the order dated 26.03.1996 passed by the
Controller
and
the
consequential
requisition dated 21.06.1996, are without
any authority of law.

15. Accordingly, the writ petition is
allowed. The impugned order dated
26.03.1996 passed by the Controller, Shia
Central Waqf Board, U.P. Lucknow under
Section 57-A of U. P. Muslim Waqf Act,
the requisition dated 21.06.1996 issued by
the Collector, Faizabad in furtherance of
the aforesaid order dated 26.03.1996
passed by the Controller and the order
dated 12.10.2006 passed by the Special
Judge, E.C. Act, Faizabad in Misc. Civil
Appeal No.9 of 1996, are hereby quashed.

16. The proceedings that were initiated
by the opposite party no.4 against the
petitioner prior to repeal of U.P. Muslim
Waqf Act and enactment of Waqf Act, 1995
shall stand transferred to the competent
authority under the Waqf Act, 1995 i.e. Waqf
Board which shall proceed in accordance
5 All. Durga Khadi Evam Gramodyog Seva Sansthan, Lko. Vs. Additional Commissioner,
 Administration, Lucknow & Ors.
1643
with law from the stage that had been
achieved prior to 01.01.2006 i.e. date of
enforcement of Waqf Act, 1995.
----------
(2024) 5 ILRA 1643
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.05.2024

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ - C No. 2403 of 2024

Durga
Khadi
Evam
Gramodyog
Seva
Sansthan, Lko. ...Petitioner
Versus
Additional Commissioner, Administration,
Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Pradeep Kumar

Counsel for the Respondents:
C.S.C.

Civil Law -transfer of a land belonging to a
Scheduled
Case
land
owner
to
the
petitioner society-without prior permission
of the Collector- Sections 157A and 157AA
of the UPZA&LR Act,1950-Parliament does
not confer the status of scheduled casteany Institution/Society or company or an
association or a body of individuals or upon
any
artificial
person-such
a
transfer
without prior approval of Collector is
invalid-impugned orders upheld- petition
dismissed. (Paras 11 and 12)

HELD:

In the aforesaid judgment, it has clearly been
held that the Society/ Institution has not been
conferred the status of a scheduled caste and by
necessary implication even if it is assumed that
any institution or a Society is a person, it would
not be a person specified and notified to be
scheduled caste hence, the prior approval from
the Collector/Assistant Collector is necessary
before the sale of property. (Para 12)
Petition dismissed. (E-14)

List of Cases cited:

Civil Misc. Writ Petition No. 44098 of 2014
(Committee of Management, Randhir Singh U.M.
Vidayala Vs St. of U.P. & ors.) decided on
10.04.2019

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

1. Heard Shri Pradeep Kumar, learned
counsel for the petitioner and Shri Hemant
Kumar Pandey, learned Standing Counsel
for the State.

2. Present petition has been preferred
for quashing of the impugned order dated
17.10.2023 passed by the respondent no. 1Additional Commissioner, Administration,
Lucknow Mandal, Lucknow in Case No.
503/2014
(Computerized
Case
No.
C2014100000503) (Durga Khadi Vs. U.P.
Ziladhikari) under Section 333 (3) of the
U.P.Z.A. & L.R. Act, 1950 (hereinafter
referred to as, the Act, 1950) and the
impugned order dated 03.08.2013 passed by
the respondent no. 2 Deputy Collector
(Revenue), District Lucknow in Case No.
02/02/2008-09 (State Vs. Durga Khadi
Evam Gramodyog Seva Sansthan and other)
under Section 166/167 of the Act, 1950.

3. Learned counsel for the petitioner
i.e. Durga Khadi Evam Gramodyog Seva
Sansthan (hereinafter referred to as, the
Society) has submitted that land of Khata
No. 554 was purchased by respondent no. 4Munishwar from respondent no. 3-Sanjay
Kumar by registered sale deed dated
20.09.2003 and both the parties belong to
the Scheduled Caste. Thereafter, the
petitioner Society through Smt. Pushpa
Devi, Secretary/Manager, Durga Khadi
Evam Gramodhyog Seva Sansthan has
purchased the said property from respondent