# Mohammad Azam Khan v. State of U.P

- **Citation:** (2022) 5 ILRA 213
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-10
- **Case number:** Criminal Misc. Bail Application No. 40580 of 2021
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-azam-khan-v-state-of-u-p-48490
- **Pages:** 19

## Headnote

G.A., Sri Prasoon Kumar, Sri Sharad
Sharma, Sri Syed Ahmad Faizan, Sri Zaheer
Asghar, Sri Taqi Abidi, Ms. Anjum Fatima,
Sri Syed Farman Ahmad Naqvi (Senior
Adv.)

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 439 - Bail -
Indian Penal Code, 1860 - Sections 420,
467, 468, 471, 447, 201 & 120-B - The
Prevention of Damage to Public Property
Act, 1984 - Section 3 - The Administration
of Evacuee Property Act, 1950 - Section 8
- Enemy Property Act, 1968 - Section 5 -
The Waqf Act, 1995 - Section 36 and 37 -
Proviso to Section 36(2) of the Waqf Act -
Evacuee Property - ''Custodian' of the
State - 'Waqf Property' - 'conflict of
interest' - "Religion is regarded by the
common people as true, by the wise as
false, and by rulers as useful" - "power
corrupts a man and absolute power
corrupts absolutely" - Bail is a right of any
accused and jail is exception. (Para -
38,39,)

Bail application after rejection of second bail -
land in dispute - declared as Enemy Property
swindled by applicant - property surrendered in
the name of religion "ONCE A WAQF
PROPERTY
IS
ALWAYS
A
WAQF
PROPERTY"
as
an
ultimate
weapon
-
applicant to grab the land unlawfully - ashramite
himself under the umbrella of religion - ''the
Waqf property is the property of Almighty' -
applicant, intoxicated on the throne of the
power and position - misused his authority in a
most indecent manner - "If absolute power
214 INDIAN LAW REPORTS ALLAHABAD SERIES
corrupts absolutely, where does that leave
God?" - (Para - 6,20,38)

HELD:-On the humanitarian ground , keeping
in view the applicant's deteriorating health, old
age and the period undergone in jail, bail
granted
to
applicant
by
imposing
conditions.(Para - 39)

Bail application allowed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,938 of 64,842. This is a partial read: ask again with offset=39938 for what follows._

5 All. Mohammad Azam Khan Vs. State of U.P.
213
counsel. In case of his absence, without
sufficient cause, the trial court may proceed
against him under Section 229-A of the
Indian Penal Code.

(iii) In case, the applicant misuses
the liberty of bail during trial and in order
to secure his presence proclamation under
Section 82 Cr.P.C. is issued and the
applicant fails to appear before the court on
the date fixed in such proclamation, then,
the trial court shall initiate proceedings
against him, in accordance with law, under
Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
applicant is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.

(v) The applicant shall not leave
the country without permission of the Court
concerned.

19. Before parting with it is expected
that the trial shall be concluded with
expedition. Further, the learned trial court
may take all coercive measures as per law
if either of the parties do not co-operate in
the trial properly. The learned trial court
shall fix short dates to ensure that trial is
concluded at the earliest.
----------

(2022)05ILR A213
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2022

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
Criminal Misc. Bail Application No. 40580 of
2021

Mohammad Azam Khan ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Mohammad Khalid, Sri Syed Safdar Ali
Kazmi, Sri Qamrul Hasan Siddiqui, Sri
Imran Ullah

Counsel for the Opposite Party:
G.A., Sri Prasoon Kumar, Sri Sharad
Sharma, Sri Syed Ahmad Faizan, Sri Zaheer
Asghar, Sri Taqi Abidi, Ms. Anjum Fatima,
Sri Syed Farman Ahmad Naqvi (Senior
Adv.)

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 439 - Bail -
Indian Penal Code, 1860 - Sections 420,
467, 468, 471, 447, 201 & 120-B - The
Prevention of Damage to Public Property
Act, 1984 - Section 3 - The Administration
of Evacuee Property Act, 1950 - Section 8
- Enemy Property Act, 1968 - Section 5 -
The Waqf Act, 1995 - Section 36 and 37 -
Proviso to Section 36(2) of the Waqf Act -
Evacuee Property - ''Custodian' of the
State - 'Waqf Property' - 'conflict of
interest' - "Religion is regarded by the
common people as true, by the wise as
false, and by rulers as useful" - "power
corrupts a man and absolute power
corrupts absolutely" - Bail is a right of any
accused and jail is exception. (Para -
38,39,)

Bail application after rejection of second bail -
land in dispute - declared as Enemy Property
swindled by applicant - property surrendered in
the name of religion "ONCE A WAQF
PROPERTY
IS
ALWAYS
A
WAQF
PROPERTY"
as
an
ultimate
weapon
-
applicant to grab the land unlawfully - ashramite
himself under the umbrella of religion - ''the
Waqf property is the property of Almighty' -
applicant, intoxicated on the throne of the
power and position - misused his authority in a
most indecent manner - "If absolute power
214 INDIAN LAW REPORTS ALLAHABAD SERIES
corrupts absolutely, where does that leave
God?" - (Para - 6,20,38)

HELD:-On the humanitarian ground , keeping
in view the applicant's deteriorating health, old
age and the period undergone in jail, bail
granted
to
applicant
by
imposing
conditions.(Para - 39)

Bail application allowed. (E-7)

List of Cases cited:-

1. Satendra Kumar Antil Vs C.B.I. , 2021 SCC
Online SC 922

2. Naveen Singh Vs St. of U.P., 2021 6 SCC 191

3. St. of Maha. Vs Sitaram Popat Vital, AIR 2004
SC 4258

4. Ram Govind Upadhyay Vs Sudarshan Singh
& ors., AIR 2002 SC 1475

5. Prahalad Singh Bhati Vs N.C.T. Delhi & ors,
AIR 2001 SC 1444

6. Sanjay Chandra Vs C.B.I., (2012) 1 SCC 49

7. Manoranjana Sinh @ Gupta Vs C.B.I., 2017
(5) SCC 218

8. Sanjay Chandra Vs C.B.I. , (2012) 1 SCC 40

9. Prashanta Kumar Sarkar Vs Ashis Chatterjee
& anr., (2010) 14 SCC 496

(Delivered by Hon'ble Rahul Chaturvedi,
J.)

1. Heard Sri Imran Ullah, assisted by
Sri Mohd. Khalid, Sri Qamrul Hasan
Siddiqui, Sri Safdar Ali Qazmi, learned
counsel for the applicant; Sri Syed Farman
Ahmad Naqvi, learned Senior Advocate
assisted by Sri Syed Ahmad Faizan, Sri
Zaheer Asghar, Sri Taqi Abidi, Sri Sharad
Sharma and Ms. Anjum Fatima, learned
counsel appearing for the informant and Sri
M.C.
Chaturvedi,
learned
Additional
Advocate General, assisted by Sri Jai
Narain Varshney, Sri Patanjali Mishra, Sri
Abhijeet Mukherjee, learned Additional
Government Advocates appearing for the
State. Perused the record.

2.

The
pleadings
have
been
exchanged between the parties, the matter
was heard at length on previous occasion
and the order was reserved to be dictated in
the Chamber, meanwhile, learned A.G.A.
on 28/29th April, 2022 made a mention in
the Court, in the presence of learned
counsel for the applicant, that on account of
certain recent developments, touching the
core issue, have cropped up during
intervening period, and thus, requested to
bring on record those fresh developments
by filing a supplementary affidavit. With
the consent of learned counsels of the
applicant, the matter was reopened and
after the exchange of affidavits, on
5.5.2022,
heard
marathon
arguments
advanced to the satisfaction of counsels of
both the sides and after having the written
submissions from the contesting parties,
judgement was reserved to be pronounced
in the second week of May, 2022.

3. This bail application has been filed
on behalf of Mohammad Azam Khan, the
applicant after his second bail application
was rejected by learned Special Judge
(M.P./M.L.A.)/Additional Sessions Judge,
Court No.4, Rampur vide order dated
4.8.2021.

4. The applicant Mohd. Azam Khan,
who deserves no introduction, at one point
of time was a political heavyweight of the
then ruling party of the State of U.P.,
presently Member of Parliament from
Rampur
Loksabha
constituency
and
Chancellor of Mohammad Ali Jauhar
University (established by U.P. Act No.19
5 All. Mohammad Azam Khan Vs. State of U.P.
215
of 2006), is facing a prosecution in Case
Crime No.312 of 2019, u/s 420, 467, 468,
471, 447, 201, 120-B I.P.C. and Section 3
of the Prevention of Damage to Public
Property Act, 1984, Police Station-Azeem
Nagar, District-Rampur. He is behind the
bars in connection with aforesaid offence
since 26.02.2020 and seeking bail during
trial.

STORY AS NARRATED IN FIR

5. Coming to the merits of the case,
which ignites from lodging of the F.I.R. by
one Sri Allama Zamir Naqvi, a self
proclaimed public spirited person, by
moving an application addressed to the
D.G.P., Luckow on 29.7.2019, and as such,
the present F.I.R. came into existence
against nine named accused persons
including the applicant, his wife Tanzim
Fatima and son Abdullah Azam along with
six others on 19.8.2019.

6. I have keenly perused the contents
of the F.I.R. and for the sake of brevity the
bulky F.I.R. is reduced to following points:

(a) The land in dispute relates to
one Mr. Imamuddin Quereshi s/o late
Badruddeen Qureshi, permanent resident of
Lucknow. This gentleman belonged to
''Sunni Sect' of Muslim religion (Backward
Class), Kasai/Qureshi community, who
after
the
partition,
relinquished
the
citizenship of India and migrated to
Pakistan during 1947-49 and since then
turned a citizen of Pakistan. As per the
provisions
of
Section
-8
of
"The
Administration of Evacuee Property Act,
1950" the property left by Imamuddin
Qureshi was declared as Evacuee Property
and deemed to have been vested with the
''Custodian' of the State, as per legal
implication.

(b)
The
property
left
by
Imamuddin Qureshi contains one room and
an Imambara situated at Village -Singhan
Khera, Pargana and Tehsil Sadar, Rampur,
having pucca Raqba 86 beegha, 2 biswa
and as per notification issued by the
Government of India 1962 and 1971, in all
45
gatas,
ad-measuring
area
13.842
hectares of agricultural land got endorsed
and vested with the government, as per
Section 5 of Enemy Property Act, 1968.

(c) In fact, this landed property
ad-measuring area 13.842 hectares situated
at Village Singhan Khera, Pargana and
Tehsil Sadar, District Rampur is the focul
issue of the entire controversy of the
present bail application.

(d) It is further alleged in the
F.I.R. that despite of the fact that the
aforesaid property in dispute i.e. 13.842
hectares is under the custody of Custodian,
Enemy
Property,
Ministry of
Home,
Government
of
India.
The
applicant
belonging to the City of Rampur and
pursuing his dream project "Mohammad
Ali Jauhar University" have an evil eye
over the land in dispute and in order to
digest a valuable piece of land without
paying any sale consideration or any
authority or title recognized under the law,
won over the then Chairman, Sri Syed
Waseem Rizvi who was at the relevant time
adorning the chair of U.P. Shia Central
Waqf Board. Not only Mr. Syed Waseem
Rizvi, but rest of the Board of members,
namely Mazhar Ali Khan @ Bhukkal
Nawab of Lucknow and other members and
Inspector, have fabricated certain forged
papers and documents. These members and
other office bearers of Shia Central Waqf
Board virtually started dancing on the tune
of their political boss the Applicant and the
Chairman. After hatching a conspiracy,
making those forged and crafted documents
have used them as a genuine one, got the
216 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid land belonging to person of Sunni
Sect of Kasai community, showing him as a
permanent resident of Asharfabad Deen
Dayal Road, Kotwali Saadatganj, Lucknow
got the property in question converted into
a ''Waqf Property' by preparing a forged
Waqf Deed, whose alleged settler was late
Imamuddin Qureshi. Interestingly a person
who has already migrated to Pakistan in
1947-1949, his alleged Waqf was got
registered as ''I-78' at U.P. Shia Central
Waqf Board, Lucknow in 2003. This by
itself per se throws ample light on the
modus operandi of applicant, who was the
then Cabinet Minister and his close friend
Syed Waseem Rizvi. Alleged waqf deed is
nothing but a tissue of utter falsehood, a
tailored document with ulterior motive and
purpose just to digest that 13.842 hectares
of the land left by Imamuddin Qureshi
during partition days. This land was
eventually encircled within the University
premises, without paying single penny as
its consideration or without any authority
or title over the land in question.

(e) It is further alleged in the
F.I.R., that when in the year 1942 U.P. Shia
Central Waqf Board and Sunni Central
Waqf Board were established, all waqf
properties in the State were measured and
identified on a district level. In this regard
it was alleged, that during that period
Imamuddin Qureshi Trust was registered or
not, is a pivotal question? who was its
Mutwalli since its establishment? Without
having any certificate applied it seems that
Mohd. Azam Khan misusing his powers as
Cabinet Minister along with his close ally
Sri Syed Wazim Rizvi without having any
inquiry managed to get said Waqf Deed of
Imamuddin Qureshi registered by the then
Administrative officer of Shia Central Waqf
Board, Sri Syed Gulamus Syedden, in
furtherance of common intention of all. The
alleged legal formalities are simply eyewash or a hoax after grossly misusing
applicant's power and position at relevant
time.

(f) It is also alleged in paragraph5 of the F.I.R. that as to who are the
decedents of alleged settler Imamuddin
Qureshi and whether they are residing in
Lucknow or Rampur or all of them have
migrated to Pakistan are not known,
because as mentioned above Imamuddin
belonged to Sunni Sec and as to how his
trust/waqf property was registered as Shia
Waqf Board. By way of repetition it has
been alleged that the applicant Mohd.
Azam Khan after conniving with the then
Chairman, Shia Central Waqf Board Mr.
Syed Waseem Rizvi and other Members of
Board have swindled the property in
question just to benefit Azam Khan's dream
project ''Mohammad Ali Jauhar University'
without any sale consideration or passing
any title over the land. By this action the
applicant and other co-accused have caused
a consideration financial dent to the
Government of U.P. as well as Government
of India in an organized way.

(g) Interestingly almost after 12
years of its alleged registration with U.P.
Shia Central Waqf Board on 2.4.2015 one
Masood Khan was appointed as its
Mutwalli in a slip short way. It is alleged
that Mutwalli Masood Khan was appointed
its
Mutwalli
after
12
years
of
its
registration, is a puppet as ''Yes Man' of the
applicant.
He
requested
the
District
Magistrate, Rampur to hand over the
aforesaid property as a waqf property. In
response to the same, A.D.M., Rampur vide
its letter dated 15.4.2015 informed that the
land in question ad-measuring 13.842
hectares is an Enemy Property and would
remain till such time the Government of
India does not release it.

(h) In this long F.I.R. a direct
allegation has been made against the
5 All. Mohammad Azam Khan Vs. State of U.P.
217
applicant for misusing his power as a
Cabinet Minister and hushing up the landed
property belonging to the Custodian,
Evacuee Property, Mumbai, who migrated
to Pakistan during partition. In the Revenue
Records of 1359 Fasli there is a clear
endorsement
that
land
belongs
to
Imamuddin Qureshi managed by the
''Custodian'. Thus right from the day of
partition the land is named in the custody
of Custodian, Evacuee Property, Mumbai.

(i) After receiving this complaint,
the Central Waqf Council Government of
India, New Delhi has constituted a nine
members team, headed by Dr. Syed Aizaz
Naqvi, Advocate, Supreme Court Delhi,
who had given a detailed inquiry report on
6.1.2017, and thus, it was prayed that 45
gatas of land belonging to Imamuddin
Qureshi, who left Pakistan and accepted the
citizenship of that nation, ad-measuring
area 13.842 hectares of village Singhan
Khera, Pargana Tehsil Rampur it has been
declared
as
''Enemy
Property'
after
fabricating documents in a forged way with
intention to cheat and play fraud, causing a
huge loss to the Government of U.P. as well
as Government of India. It is Mohd. Azam
Khan, his wife Tanzim Fatima, his son
Abdulla Azam, his friend Syed Waseem
Rizvi and others who after concealing the
material facts and forging the documents
have succeeded to encircle the aforesaid
land in dispute within the campus of
Mohammad Ali Jauhar Ali University
(hereinafter referred to as ''University').

Hence this F.I.R. relying upon the
report given by the Probe Committee.

7. Thus, for the purpose of present
bail application the focal issue of the
land is total 45 gatas ad-measuring
13.842 hectares of land situated at
Village- Singhan Khera, Pargana and
Tehsil Sadar, District Rampur, which has
been
declared
as
Enemy
Property
swindled by Mohd. Azam Khan, the then
Cabinet Minister of Govt. of U.P. later on
become Chancellor of the University
named above.

SUBMISSIONS ADVANCED BY
LEARNED
COUNSEL
FOR
THE

APPLICANT

8. Sri Imran Ullah, learned Advocate
appearing for the applicant raised his
submissions touching the various issues,
which for the sake of convenience are
being formulated herein below :

(i)
The
applicant
has
fully
cooperated with the investigation, never
misused or terrorized any of the witnesses,
in which after investigation the police
submitted a report u/s 173(2) Cr.P.C. on
27.5.2020. It is contended that the trial has
yet not been commenced, thus, now no
useful purpose would be served to keep the
applicant behind the bars during trial. He is
already
facing
incarceration
since
26.2.2020.

(ii)
After
change
in
the
establishment in the State of U.P. in the
year 2017 in the State of U.P., there is
volley of criminal cases, one after the other
within a span of 2-3 months. Out of 89
cases lodged against the applicant, he has
attained bail in 88 cases and thus, present is
only case left for the consideration of this
Court.

(iii)
Since
the
applicant
is
languishing in jail since 26.2.2020 and as
per the ratio laid down by Hon'ble Apex
Court in the case of Satendra Kumar
Antil vs C.B.I. reported in 2021 SCC
Online SC 922 the applicant deserves to be
bailed out in the present case too.

(iv) It is next contended by
learned counsel for the applicant that the
218 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant is a person of 72 years of age,
though powerful and influential political
giant of the State of U.P., is in jail for
almost two and half years. Last year during
Covid pandemic he was nearly saved on
account of Providence. He was severely
fallen sick, his cardiac and renal organs
were severely adversely affected and he is
still on medication. It would be indeed
cruel and inhuman if he would die in
harness without any proper treatment.

(v) It is further contended by Sri
Imran Ullah, that no doubt the applicant
was a Cabinet Minister twice in the
Government of Uttar Pradesh, first in 2003
and thereafter in 2012. On both occasions,
the applicant was second in command of
the Ministry, a virtual political giant. As
soon as he came into power on both the
occasions, without wasting much of the
time after exploiting his position as a
Cabinet Minister, managed to get the
alleged Imamuddin Trust registered, and
thereafter, managed to get the land in
question leased out to the University on
31.5.2007, but soon after change in the
Government of State of U.P., the said lease
deed was cancelled by the same authority
on 26.6.2007. As mentioned above, the
foundation stone was laid in the year 2005
and the University became a legal entity
after establishing the U.P. Act No.19 of
2006. The said Act was passed by the
Assembly of the State of U.P. The applicant
Mohd. Azam Khan being the perpetual
Trustee of Maulana Mohd. Ali Jauhar Trust
was declared as a Chancellor of the
University for all times to come. This, in
fact, the University was his fiefdom of the
applicant.

(vi) It is contended by learned
counsel Sri Imran Ullah that the applicant
has worked for the University constantly,
relentlessly
for
the
betterment
and
upliftment of the citizen, specially the
youth of Rohilkhand area. Being a social
activist and educationalist he was deeply
concerned about the social as well as social
upliftment of his area and believes that
widespread education is the only way to
enlightening masses. He plays the major
role for the socio-economic development of
the weaker and underprivileged classe in
that area. It is further argued that the
applicant has dedicated his entire career for
the promotion of education in the State of
U.P., especially the Districts of Rohilkhand
area.

(vii)
Learned
counsel
for
applicant fairly conceded that there is no
genuine document or any deed with the
University/Trust, establishing its good title
over the property in dispute i.e. 13.842
hectares village Singhan Khera, Sadar,
Rampur. On making query by the Court, as
to how and under what circumstances the
property in question was encircled within
the University premises, Sri Imran Ullah
fairly conceded that since the adjacent
properties
were
purchased
by
the
University/Trust, and thus this is the only
reason for encircling the Enemy Property
within the University campus without any
authority of land or good title over the land
in question.

This,
in
fact
is
startling
revelation, whereby it has been conceded
by the counsel that in no uncertain terms
the modus operandi of ''encircling the
Enemy Property' in most abnormal and
surreptitious way. This in fact a new
jurisprudence by which a disputed landed
property could be grabbed, without even
semblance of good title.

9. In addition to this, in his rejoinder
affidavit, during argument, Sri Imran Ullah,
learned
counsel
for
the
applicant,
categorically submitted that "the land in
dispute is still lying idle and vacant, though
5 All. Mohammad Azam Khan Vs. State of U.P.
219
within
the
boundaries
of
aforesaid
University and not a single brick has been
kept over it." In this regard para-8 of the
rejoinder affidavit is quoted herein below :

"8. ......Moreover the land in
question is still lying as it is, with absolutely
no construction/hindrance/obstacle on the
same. However, as per the report of District
Magistrate dated 4.9.2017 as well as the site
plan also on the land in question no
construction has been raised. It has wrongly
been alleged that the same is encroached
through boundary wall, which is evident from
the perusal of the bird's eye view as contained
in Google Map, annexed along with bail
application as annexure no.28. It may be
pointed out that merely by purchasing the
land adjacent and around the land in
question, it cannot be said that the
University/Trust has been encroached upon
the said land. There is also a road adjacent to
the land in question (Enemy Property) by
which the same can be access. It is only for
the reasons, best known to the authority
concerned, the same has not been used till
date by the Administration. Further it is
wrongly stated in para under reply that
applicant appointed Masood Khan as
Mutawalli of the trust Imamuddin, it is
specifically mentioned at this stage that
applicant has nothing to do with the trust
Imamuddin or its mutwalli Masood Khan,
neither at any point of time was having any
power or control over the trust Imamuddin,
hence no question was arise with the
appointment of any mutawalli of the said
trust."

Similarly, in the written argument
submitted on behalf of applicant, there is
identical reiteration of the aforesaid fact in
para s 24 & 25, which are being reproduced
thus :

"24.
On
13.5.2020
the
Investigating Officer visited the alleged site
and prepared Site map which is contained
in parcha No.33 of the case diary (RA-1
Page 42 of Rejoinder Affidavit) It shows the
land in dispute is surrounded by the
University land but there is an approach
two way road which can be used to access
the alleged land in dispute. The land in
dispute I..e the land which has been
declared as Enemy Property in the year
2006 and has been given to the custody of
District Magistrate, Rampur is still lying as
it
is
with
absolutely
no
construction/hindrance/obstacle on the
same though surrounded by the land of
university from three sides. However, as
per the report of District Magistrate dated
4.9.2017 as well as the site plan also on the
land in question no construction has been
raised, though in the year 2007 when a
demand was made to give the property in
question to the University/Trust, the Trust
intended that in case, the said land will be
given to the University, the same will be
changed into a play ground. As per the
allegation of the Investigating Officer, the
entire disputed land is surrounded by the
land purchased by the Trust/University. It
has wrongly been alleged that the same is
encroached through boundary wall the land
in question is clear from all hindrance,
obstacle, and construction till date. As
evident from google map (page 440) further
as evident from the site plan itself, the
approach road to the land in dispute is also
through the road which is being used for
going towards University. Not only this,
there is another road from behind which
can be used as approach road of the
aforesaid disputed property and as such it
is wrongly being alleged that the land is
being encroached by the University.

25. That in case the land is
declared to be enemy land in future the
same can be taken possession by the
custodian any time as the same is still lying
220 INDIAN LAW REPORTS ALLAHABAD SERIES
vacant without any hindrance having
approach road from two sides."

10. On a conjoint reading of the
contents of paragraph mentioned above,
which is reproduction from the affidavit on
behalf of applicant, the Court has gathered
an impression that the land in question is
lying vacant, though within the University
campus and not even single brick is kept
over the land in dispute, then the question
arises as to how and under whose authority
or title the land in dispute has been
encircled
within
the
boundaries
of
University. Interestingly in Para-25, it has
been mentioned that in the event the land in
question to be Enemy land in future, the
same can be taken possession by the
Custodian any time as the same is still
lying vacant without any hindrance or
having approach road from two sides.
Indeed, this is the novel and crooked way
of usurping the property from the days of
partition. It is the custodian who is having
right, title over the property in question.
The applicant, being a Chancellor of the
University, is a rank trespasser, without any
authority of law or license encircled the
property in question within the University
campus and there seems that now the
applicant is "obliging" the government of
India/the
Administration/Custodian
of
Evacuee Property, Mumbai to approach the
court concerned and get a decree of
eviction, then only University would
release the property. It is simply amusing
whereby rank trespasser, a usurper is
justifying its possession over the land in
dispute. This is no justification to encircle
13 hectares and odd land in dispute, within
the boundaries of the University. Moreover,
it has been mentioned that there is proper
access to the land given by the University.
This is unheard of a novel way of justifying
the possession over the property for which
neither the Chancellor nor the University
has ever authority to encircle the same.

11. From the above averments, it
seems that the applicant now wants to
distance and disassociate himself in his
personal
capacity
as
well
as
the
Chancellor of University over that land
in question as well as Imamuddin
Qureshi Trust. Under the circumstances,
and
relying
upon
his
own
averment/submissions, let the land in
dispute be reverted to the Administrator,
Evacuee
Property
or
the
District
Magistrate,
Rampur,
being
its
representative.

12. The applicant in some way or the
other, is trying to impress upon the Court
that he is doing a pious duty to educate the
youth by raising the University but while
going through the entire case, this Court is
puzzled to seek pious objective and motto
to raise any educational institution and that
too a dream University in the name of one
of our ancestors, Mohammad Ali Jauhar
University, in a trading smug manner.

13. Thus, if taking the above
averments, submissions and the pleadings
of the affidavits, it is well established that
the applicant Mohd. Azam Khan was out
and out for anyhow grab the property
which is already earmarked as Enemy
Property by exploiting his position as a
Cabinet Minister. He has not having any
semblance of any document which could
even indicate a good title over the property
in question. It is simply amusing and
surprising that a Cabinet Minister is
stooping down to take away the Enemy
Property by applying all foul means and
tricks and now trying to delink and
disassociate himself from the property in
dispute for the reason best known to him.
5 All. Mohammad Azam Khan Vs. State of U.P.
221

From the aforesaid fact it is clear,
that in order to achieve and thrive his
dream project shook his hands with Sri
Syed Waseem Rizvi, who has manufactured
a sham and a parallel claim by Imamuddin
Qureshi Waqf allegedly registered as Shia
Central Waqf Board in the year 2003.

SUBMISSIONS ADVANCED BY
LEARNED
COUNSEL
FOR
THE
STATE

14. Per contra, Sri M.C. Chaturvedi,
learned Additional Advocate General for
the State and Sri Farman Ali Naqvi, learned
Senior Advocate have spearheaded the
submissions for the State of U.P. as well as
for the informant. At the outset, attention of
the Court has been drawn to the Section 36
and 37 of The Waqf Act, 1995 (Chapter -
V), Registration of [AUQAF], which is
quoted herein below :

"36. Registration.--

(1) Every [waqf], whether created
before or after the commencement of this
Act, shall be registered at the office of the
Board.

(2) Application for registration
shall be made by the mutawalli:

Provided that such applications
may be [made by the wakf] or his
descendants or a beneficiary of the [waqf]
or any Muslim belonging to the sect to
which the [waqf] belongs.

(3) An application for registration
shall be made in such form and manner
and at such place as the Board may by
regulation provide and shall contain
following particulars:--

(a) a description of the [waqf]
properties sufficient for the identification
thereof;

(b) the gross annual income from
such properties;

(c) the amount of land revenue,
cesses, rates and taxes annually payable in
respect of the [waqf] properties;

(d) an estimate of the expenses
annually incurred in the realisation of the
income of the [waqf] properties;

(e) the amount set apart under the
[waqf] for--

(i) the salary of the mutawalli and
allowances to the individuals;

(ii) purely religious purposes;

(iii) charitable purposes; and

(iv) any other purposes;

(f) any other particulars provided
by the Board by regulations.

(4) Every such application shall
be accompanied by a copy of the [waqf]
deed or if no such deed has been executed
or a copy thereof cannot be obtained, shall
contain full particulars, as far as they are
known to the applicant, of the origin,
nature and objects of the [waqf].

(5) Every application made under
sub-section (2) shall be signed and verified
by the applicant in the manner provided in
the Code of Civil Procedure, 1908 (5 of
1908) for the signing and verification of
pleadings.

(6) The Board may require the
applicant to supply any further particulars
or information that it may consider
necessary.

(7) On receipt of an application
for registration, the Board may, before the
registration of the [waqf] make such
inquiries as it thinks fit in respect of the
genuineness and validity of the application
and correctness of any particulars therein
and when the application is made by any
person other than the person administering
the [waqf] property, the Board shall, before
registering the [waqf], give notice of the
application to the person administering the
[waqf] property and shall hear him if he
desires to be heard.
222 INDIAN LAW REPORTS ALLAHABAD SERIES

(8) In the case of [auqaf] created
before the commencement of this Act, every
application for registration shall be made,
within
three
months
from
such
commencement and in the case of [auqaf]
created after such commencement, within
three months from the date of the creation
of the [waqf]:

Provided that where there is no
board at the time of creation of a [waqf],
such application will be made within three
months from the date of establishment of
the Board.

37. Register of [auqaf].--The
Board shall maintain a register of [auqaf]
which shall contain in respect of each
[waqf] copies of the [waqf] deeds, when
available and the following particulars,
namely:--

(a) the class of the [waqf];

(b) the name of the mutawalli;

(c) the rule of succession to the
office of mutawalli under the [waqf] deed
or by custom or by usage;

(d) particulars of all [waqf]
properties
and
all
title
deeds
and
documents relating thereto;

(e) particulars of the scheme of
administration
and
the
scheme
of
expenditure at the time of registration;

(f) such other particulars as may
be provided by regulations.

(2) The Board shall forward the
details of the properties entered in the
register of auqaf to the concerned land
record office having jurisdiction of the waqf
property.]

[(3) On receipt of the details as
mentioned in sub-section (2), the land
record office shall, according to established
procedure, either make necessary entries in
the land record or communicate, within a
period of six months from the date of
registration of waqf property under section
36, its objections to the Board.]

15. Sri Chaturvedi, learned Additional
Advocate General at the outset has drawn
attention of the Court to the Proviso to
Section 36(2) of the Waqf Act by making a
mention that the registration shall be made
by mutwalli provided that such application
may be made by the waqf board or his
descendants or a beneficiary of the waqf or
any Muslim belonging to the ''SECT' to
which waqf belongs. Thus, it has been
argued that the property once owned by
Imamuddin Qureshi admittedly a person
belonging to ''Sunni Sect' of the Muslims
community, now, it is the applicant who has
to explain as to how and under what
circumstances he managed to get the same
registered in U.P. Shia Central Waqf Board,
when its alleged settler was Sunni.

16. It is canvassed by learned
Additional Advocate General that the
original waqf deed by the alleged settler of
Imamuddin Qureshi was never made
available while making its registration
which is mandatory. It is further contended
that
as
mentioned
above
that
for
registration of document has to be routed
through by the mutwalli of the Waqf. The
mutwalli ''Masood Khan' of this Waqf was
appointed on 20.3.2015. Thus, this is an
apparent anomaly, wherein a mutwalli is
being appointed in the year 2015 and the
aforesaid waqf has already been registered
in the year 2003. In addition to this it is
argued that the creation of waqf and the
migration of its Waqif of that Waqf in
question to Pakistan, does not grant any
right to anyone to usurp the waqf property
or for that matter of fact, an enemy
property. Said action with regard to either
status of waqf or the status of evacuee
property has to be decided by the
authorities concerned of the respective
departments in accordance with law and no
other
person
whosoever
the
higher
5 All. Mohammad Azam Khan Vs. State of U.P.
223
authority may be utilize or use his position
to manipulate government record. It is
urged that the person of a rank of Cabinet
Minister of the Govt. of U.P. i.e. the
applicant, has got a greater responsibility to
act in a more sensible, responsible and
diligent way, which is not expected from a
person of his stature. It is just for his
personal gain to fulfill his dream in the
shape of University. Moreover, taking to be
true on the face value, that the waqf was
created in 1943 remained abandoned uptil
2003, that is to say about 70 years, and all
of a sudden a rank stranger Masood Khan,
stooge of the applicant, sought appointment
as mutwalli, woke up from slumber and got
the appointment on the basis of an
application
dated
16.3.2015.
The
appointment of mutwalli in the year 2015 is
simply an eye-wash and just within one day
without holding any inquiry about him he
was appointed as mutwalli just to serve the
aim and objective of his master i.e. Mohd.
Azam Khan, a cabinet minister.

17. It is further submitted by learned
counsel for the State that as per revenue
record of 1359 Fasli is shown as a land in
dispute in the name of "Waqif Imamuddin
Qureshi" with a remark that the land in
dispute is under the management of
"Custodian" and since then the status of
property in question remained as such.

18. Sri S.F.A. Naqvi, learned counsel
further
pointed
certain
glaring
abnormalities which touches the core issue
that, when the waqf property has been
declared as a evacuee property then
aforesaid correspondences were made to
the competent authorities to bring disputed
plots within the area of so called Waqf of
Imamuddin Qureshi. All the issues raised
by Sri Naqvi has already been pointed out
by Sri MC Chaturvedi, learned AAG and it
would
be
simply
reiteration
of
the
arguments.

19. All the acts, referred to above,
were maneuvered and conducted in a well
planned and settled way, just to grab the
disputed property by creating a ''sham and
parallel dispute' regarding the title and
ownership of the Enemy property left by
Imamuddin Qureshi from the year 2003
itself. Audacity of the officers, who were
dancing to the tunes of the then Cabinet
Minister Mohammad Azam Khan, started
playing
unnaturally
by
appointing
a
Mutwalli of the Waqf in question vide its
resolution dated 17.3.2015. Even in the
year 2015, again a representation was made
by the Mutwalli before the District
Magistrate/Additional
Survey
Commissioner
of
Waqf,
Rampur
for
carrying out necessary correction in the
name of Waqf in the relevant revenue
record. In response to the same, the
Additional District Magistrate/Additional
Survey Commissioner Waqf, Rampur vide
letter dated 15.4.2015 informed that the
property in dispute, measuring 13.842
hectares and 2 biswas, has been declared as
''enemy property' vide notification dated
18.7.2006, out of which 9.111 hectares of
the land has been leased out to the Border
Security Force, remaining land has been
recorded as Chak Road Naveen Parti and in
the name of other persons. Thus the land in
issue, for the purposes of this bail
application, is land admeasuring area
13.842
hectare
over
Gata
No.45
surrounded by University from three sides
and there is approach road for the fourth
side at village Singhan Khera.

20. After miserably failing to
establish any good title or its genuine
source over the property in dispute i.e.
13.842 hectares Village Singhan Khera,
224 INDIAN LAW REPORTS ALLAHABAD SERIES
Sadar, Rampur, as a last resort, learned
counsel for the applicant has floated a legal
fantasy in order to snatch the property and
staking claim over the said land by a legal
fantasy and fiction by making a mention
that the property surrendered in the name of
religion "ONCE A WAQF PROPERTY IS
ALWAYS A WAQF PROPERTY" as an
ultimate weapon. It has been mentioned
that way back in the year 1943 when the
settler has himself created Imamuddin Waqf
toards the said property since then the said
property belongs to Almighty "Allah" and
thus it cannot be declared as Enemy
Property, despite of the fact that its
waqif/settler has already been migrated to
Pakistan and relinquished the citizenship of
India.

21. It is further alleged that the
applicant cleverly tailored a sham and a
parallel claim against custodian of Enemy
Property left by ex-citizen of India who
migrated to Pakistan. Of late, getting the
said Imamuddin Qureshi Waqf registered
under U.P. Shia Central Waqf Board over
the land in question the applicant Azam
Khan, at a relevant point of time i.e. 2003,
crookedly and deceitfully, created a parallel
religious body in the name of Imamuddin
Qureshi Waqf in connivance of the said
Syed Waseem Rizvi, to stake claim over the
property
in
question
vis-a-vis
Administrator, Enemy Property, Mumbai,
who was managing the same and finds
place its name since the days of partition.
This is a naked attempt of misusing the
power and his position by the applicant as a
cabinet minister who wants that let these
bodies may fight for their respective claim
over the property in dispute and taking the
advantage of their "shadow fighting" he
would enjoy the land in question, without
any authority of law.

At this juncture, Sri S.F.A. Naqvi,
learned
counsel
has
advanced
his
submission by making a mention that
applicant was working in twin capacity, as
a Chancellor of the University as well as a
Cabinet Minister of the State Government.
There is clear cut case of ''conflict of
interest' whereby in order to fulfill his
dream project he has compromised his
position as a Cabinet Minister and now is
distancing and disassociating himself from
the land in question as well as from the
Imamuddin Qureshi Waqf as well as its
registration process.

22. As mentioned above, Sri Imran
Ullah in no uncertain terms has admitted
the very fact that Maulana Ali Jauhar
Trust or the University has got no title
even for the namesake over the property
in dispute.