# Nauman Ali Revisionist v. Mazahar Hasan & Ors

- **Citation:** (2023) 1 ILRA 1324
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-03
- **Case number:** Civil Revision No. 57 of 2022
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nauman-ali-revisionist-v-mazahar-hasan-ors-49593
- **Pages:** 6

## Headnote

UP Waqf Tribunal Rules -Rule 3(4)-Revision
challenges the Waqf Tribunal's order - raised
issue of Tribunal benches comprising two
members - Rule 3(4) of UP Waqf Tribunal Rules
- against the statutory mandated - Waqf Act
Section 83(4) - A three-member composition -
Judgment emphasizes the statutory framework -
Tribunal's constitution defined in Section 83
cannot be altered through rules. (E-9)

List of Cases cited:

## Text

1324 INDIAN LAW REPORTS ALLAHABAD SERIES
defendant
was
miserably
failed
in
establishing its defence and creating any
doubt in the case and evidence of the
plaintiff land-lord. The trial court has
decreed the suit in toto as prayed in the
memo of revision the defendant has taken
plea that since the residential house of the
defendant was sealed since 2005, therefore,
she could not produce the receipts of
payment of rent. For this neither the court
nor the plaintiff are responsible. It does not
appear to be a true fact that instead of
keeping the records of payment in shop in
suit, the same would be kept in the
residential house. If it was so, the defendant
could have moved an application to direct
the plaintiff to produce the counter file of
the receipt. Mere sending rent money
through money order which could not be
received by the plaintiff as he was out of
station, it cannot be said that the defendant
tried to make the payment in bona fide
manner. The defendant should have sent
rent amount again or she could have
tendered the payment personally. There is
no defect regarding dismissal of the
application of the defendant under Section
30 of the UP Act No.13 of 1972. It is
established law that deposit under Section
30 would not be taken into consideration
for the purposes of SCC suit and it cannot
be permitted where the Act No.13 of 1972
has no applicability.

14. Thus this Court is of the view that
the order passed by the trial court does not
suffer from any infirmity. The revision
lacks merit and is liable to be dismissed.

ORDER

15. This revision is dismissed with
costs.
----------
(2023) 1 ILRA 1324
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2023

BEFORE

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

Civil Revision No. 57 of 2022

Nauman Ali ...Revisionist
Versus
Mazahar Hasan & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri
Mahboob
Ahmad,
Sri
Irfan
Alim
Siddiqui, Sri Umesh Vats

Counsel for the Opposite Parties:
Sri Anurag Yadav, Sri Gulrez Khan, Sri
Javed Husain Khan, Sri Punit Kumar Gupta

UP Waqf Tribunal Rules -Rule 3(4)-Revision
challenges the Waqf Tribunal's order - raised
issue of Tribunal benches comprising two
members - Rule 3(4) of UP Waqf Tribunal Rules
- against the statutory mandated - Waqf Act
Section 83(4) - A three-member composition -
Judgment emphasizes the statutory framework -
Tribunal's constitution defined in Section 83
cannot be altered through rules. (E-9)

List of Cases cited:

1. Naushad Raza & ors. Vs Waqf Prabandhak,
Committee of Waqf Qabristan & ors.

2. Faez Aftab Vs Zafar Ali Khan & ors.

3. Abrar Husain Vs U.P. Waqf Tribunal, Lucknow
& anr., 2017 SCC OnLine All 4081

(Delivered by Hon'ble J.J. Munir, J.)

This revision under the proviso to subSection (9) of Section 89 of the Waqf Act,
1995 is directed against the order of the
Waqf Tribunal dated 28.02.2022 passed in
Case No. 286 of 2017, rejecting the
1 All. Nauman Ali Vs. Mazahar Hasan & Ors.
1325
revisionist's application under Order VII
Rule 11 of the Code of Civil Procedure,
1908.

2. Amongst other grounds raised in
challenge to the impugned order, there is an
objection of seminal importance. On the
basis of that objection, this Court, while
reserving orders on 14.10.2022, framed the
following question for consideration :

Whether
the
Waqf
Tribunal,
constituted under Section 83(1) of the Waft
Act, 1995 can be said to be in valid
quorum, with a membership of two,
including the Chairman, or three members,
including the Chairman, envisaged under
sub-Section (4) of Section 83 of the Act, is
essential ?

3. A further question that would arise
is :

Whether given the mandatory
composition of the Tribunal under subSection (4) of Section 83 of the Waqf Act,
1995 comprising three members with
distinct qualifications and office specified,
can the Tribunal sit through benches of two
members,
irrespective
of
their
qualifications and office by virtue of subRule (4) of Rule 3 of the Uttar Pradesh
Waqf Tribunal Rules, 2017?

4. Heard Mr. Mahboob Ahmad,
learned Counsel for the revisionist, Mr.
Javed Hussain Khan, learned Counsel
appearing for respondent no. 1 and Mr.
Punit Kumar Gupta, learned Counsel for
respondent no. 2.

5. The impugned order has been
passed by the Uttar Pradesh Waqf Tribunal,
Lucknow, comprising the Chairman of the
Tribunal and one member. It is argued by
the learned Counsel for the revisionist that
by virtue of sub-Section (4) of Section 83
of the Waqf Act, 19951 the Tribunal must
comprise of the Chairman and two other
members, who are to be persons of
specified office and qualifications.

6. On the other hand, learned Counsel
for the respondents have brought to the
notice of this Court the fact that the State
Government, in exercise of powers under
Section 109 of the Act, has made rules
called The Uttar Pradesh Waqf Tribunal
Rules, 2017. These rules have been made
by notification published in the official
gazette dated 14th December, 2017. The
notification bears number 1468/LII-2-20172(279)-2013 T.C. Rule 3 of the Uttar
Pradesh Waqf Tribunal Rules, 20172 is
quoted below :

3 (1) Any mutawalli, person
interested in a waqf property or any other
person aggrieved by an order made under
this Act, or rules made thereunder, may
make an application within the time
specified in the Act or the rules for
resolution of any dispute, question or other
matter relating to the waqf.

(2) Where any application made
under sub-rule (1) relates to any waqf
property which falls within the territorial
limits of the jurisdiction of the Tribunals,
such application may be made to the Tribunal
within the local limits of whose jurisdiction
the mutawalli or any one of the mutawallies
of the waqf actually and voluntarily resides,
carries on business or personally works for
gain, and, where any such application is made
to the Tribunal as aforesaid, the other
Tribunals shall not entertain any application
for the determination of such dispute,
question or other matter.
1326 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) Every application, plaint or
memorandum of appeal or an application
for execution or recovery of possession
shall be accompanied by Court fee as
prescribed in Schedule I and II of Court
Fees Act, 1870 (Act No. VII of 1870) as
amended from time to time.

(4) The Chairman of the Tribunal
will constitute three benches comprising of
two members each. The bench will be
competent to decide a case. In case of
disagreement between the two members of
a bench, the matter will be decided by the
full tribunal comprising of the three
members with the majority decision.

(5) The decision of the Tribunal
shall be final and binding upon the parties
to the application and it shall have the force
of a decree made by a civil court.

(6) the Tribunal will generally sit
in Lucknow. However, in the public
interest, the Chairman may fix sittings of a
bench at divisional level, by issuing a
quarterly calendar well in advance.

7.

Learned
Counsel
for
the
respondents submit that in view of subRule (4) of Rule 3 of the Rules, in the State
of Uttar Pradesh, the Waqf Tribunal is in
valid quorum, sitting in a bench of two
members constituted by the Chairman of
the Tribunal. It is argued that the exigencies
of work and its volume in the State of Uttar
Pradesh require the Tribunal to sit through
different benches, rather than as a single
bench comprising the Chairman and two
members, envisaged under sub-Section (4)
of Section 83 of the Act. It is submitted that
the State Government is enabled, by virtue
of Section 109(1) of the Act, to make rules
by a notification published in the gazette to
carry out the purposes of the Act, other than
those that are part of Chapter III. It is
further submitted that under sub-Section (2)
of Section 109, there are specific matters
enumerated, with reference to particulars
sections of the Act, regarding which, the
State Government may make rules to
effectuate the purpose of the Act. Clause
(xxv) of sub-Section (2) of Section 109 of
the Act enables the State Government to
frame rules regarding any other matter,
which is required to be or may be
prescribed. According to the learned
Counsel, going by the definition of
''prescribed' clause (l) of Section 3 of the
Act, ''prescribed' means prescribed under
the Rules, except as regards Chapter III of
the Act.

8. The submission of the learned
Counsel for the respondents is that the State
Government has wide powers to make rules
in order to effectuate the objects and
purpose of the Act. The rules here,
including the one making provision for the
Tribunal
to
sit
through
two-member
benches, is also to make adjudication of
disputes by the Tribunal constituted under
the Act, effective. In short, it is said that it
is the purpose of sub-Rule (4) of Rule 3 of
the Rules that the Tribunal becomes a
viable forum for adjudication of all
disputes that are required to be decided by
the Waqf Tribunal, constituted under
Section 83 of the Act.

9. This Court has considered the
submissions made by learned Counsel for
parties.

10. Sub-Section (1) of Section 83 of
the Act may be quoted with profit :

83. Constitution of Tribunals,
etc.-- 3[(1) The State Government shall, by
notification
in
the
Official
Gazette,
constitute as many Tribunals as it may
think fit, for the determination of any
dispute, question or other matter relating to
1 All. Nauman Ali Vs. Mazahar Hasan & Ors.
1327
a waqf or waqf property, eviction of a
tenant or determination of rights and
obligations of the lessor and the lessee of
such property, under this Act and define the
local limits and jurisdiction of such
Tribunals.]

11. A reading of sub-Section (1) of
Section 83 would show that the Act
envisages that it is within the province of
the State Government, by notification in the
Official Gazette to constitute such number
of Tribunals as it thinks fit for the decision
of disputes, questions and other matters
relating to a Waqf or Waqf property.
Eviction of a tenant has also been brought
within the jurisdiction of these Tribunals.
The State Government has the power to
define the local limits and jurisdiction of
the Tribunals that it constitutes. It is
envisaged
as
a
three-member
body,
comprising a Chairman and two members.
The Chairman is mandated to be a member
of the State Judicial Services, holding a
rank not below than that of a District and
Sessions Judge or Civil Judge Class I; one
person who is an officer from the State
Civil Services equivalent in rank to that of
an Additional District Magistrate; and, one
person having knowledge of Muslim law
and jurisprudence.

12. What appears from a reading of
sub-Section (1) and sub-Section (2) of
Section 83 prima facie is that in the hearing
and decision of disputes relating to Waqf or
Waqf property, including eviction of
tenants
in
such
property,
the
State
Government has been empowered by the
Act to constitute such number of Tribunals
as it thinks fit. The number of Tribunals
that the State Government thinks fit would
depend upon the nature, and more than that,
the quantum of business before the
Tribunal. There is no hurdle in the way of
the State Government to constitute more
Tribunals
than
one
defining
their
jurisdiction, with reference to territory, or
may be the nature of causes to be dealt with
by each constituted Tribunal. There is no
hurdle in the State Government's way to
constitute a Tribunal at every headquarters,
or, may be more than one in a revenue
district. It would all depend upon the State
Government's wisdom, considering the
number of causes arising in a particular
area, the nature of those causes, the
distance that the litigants have to travel to
the seat of the Tribunal and other relevant
factors.

13. However, a reading of sub-Section
(4) of Section 83 of the Act, together with
sub-Section (1) does not seem to confer
upon the State Government, the power to
prescribe by rules made under Section 109
of the Act, the number of members who
would constitute valid quorum for a
Tribunal. The composition of the Tribunal
is spelt out by sub-Section (4) of Section 83
of the Act, and, prima facie, it cannot be
modified or tinkered with, in exercise of
the rule-making power under Section 109
by the State Government. The composition
of the Tribunal statutorily prescribed by
sub-Section (4) of Section 83 cannot be
disturbed through a rule made by the State
Government, prescribing the competent
quorum. In fact, a reading of sub-Section
(4) prima facie appears to spare little doubt
that each Tribunal's composition has been
purposely spelt out. It is not only about
numerical membership, but also about the
education,
professional
training
and
background of members constituting it. The
Chairman is mandated to be a member of
the State Judicial Service, whereas the two
members envisaged are also distinct and
different
by
their
qualifications
and
professional training. One has to be an
1328 INDIAN LAW REPORTS ALLAHABAD SERIES
administrative officer of the State Civil
Services carrying a specified rank, that is to
say, of an Additional District Magistrate,
whereas, the other member has to be a
person knowledgeable in the Muslim law
and jurisprudence. Each member of the
Tribunal is, therefore, distinctive by his
education,
professional
training
and
background;
and
the
Tribunal,
once
constituted prima facie has to comprise of
all the three members, as envisaged under
sub-Section (4) of Section 83. The Tribunal
envisaged by the statute prima facie is to
comprise of a presiding member and his
associates, all with dissimilar training and
background. Therefore, it does not seem to
be part of the statutory scheme for the
composition of the Tribunal that it should
be a multi-membered body of more than
three members, with a Chairman who may
allocate work to benches of two members
like a Court where the Presiding Member
or the Chief Member or the Chief Judge,
amongst Members or Judges of uniform
training
and
background,
may
be
authorised to allocate business to different
benches constituted by him. Under the
scheme of the statute, there does not appear
to be prima facie any power with the State
Government that may be exercised under
Rule
109
to
provide,
through
any
mechanism, a Tribunal with a different
composition than that envisaged by subSection (4) of Section 83 of the Act.

14. Decisions of this Court in
Naushad Raza and others v. Waqf
Prabandhak,
Committee
of
Waqf
Qabristan and others4 and Faez Aftab v.
Zafar Ali Khan and others5 have been
brought to the notice of this Court, where it
has been held that the Tribunal cannot sit
through two members. Another decision
taking a similar view that has been brought
to the Court's notice is Abrar Husain v.
U.P. Waqf Tribunal, Lucknow and
another6, which, though not laying down
the number explicitly, seems to have
followed the view that the Tribunal cannot
be in valid quorum through two members.
But, all these decisions have been rendered
before the rules were notified. The Court in
those cases, was, therefore, not confronted
with the rules; or the anomalous situation
that these present. It is a salutary principle
that
if
there
be
conflict
between
subordinate legislation and the statute, the
Court
may
ignore
the
subordinate
legislation as ultra vires the Act. The
principle, as aforesaid, has been laid down
by the Supreme Court in Bharathidasan
University and another v. All India
Council for Technical Edudcation and
others7 vis-à-vis the statutes of the
Universities and the University Grants
Commission in the matter of approval for
starting a new technical course and
introduction of a new programme.

15. In Bharathidasan University
(supra) it has been held by their Lordships:

14. The fact that the Regulations
may have the force of law or when made
have to be laid down before the legislature
concerned does not confer any more
sanctity or immunity as though they are
statutory
provisions
themselves.
Consequently, when the power to make
regulations is confined to certain limits and
made to flow in a well-defined canal within
stipulated banks, those actually made or
shown and found to be not made within its
confines but outside them, the courts are
bound to ignore them when the question of
their enforcement arises and the mere fact
that there was no specific relief sought for
to strike down or declare them ultra vires,
particularly when the party in sufferance is
a respondent to the lis or proceedings
1 All. Ishwar Sharan @ Ishwar Sharan Das Vs. Bharat Kumar & Ors.
1329
cannot confer any further sanctity or
authority and validity which it is shown and
found to obviously and patently lack. It
would, therefore, be a myth to state that
Regulations made under Section 23 of the
Act have "constitutional" and legal status,
even unmindful of the fact that any one or
more of them are found to be not consistent
with specific provisions of the Act itself.
Thus, the Regulations in question, which
AICTE could not have made so as to bind
universities/UGC within the confines of the
powers conferred upon it, cannot be
enforced against or bind a university in the
matter of any necessity to seek prior
approval to commence a new department or
course
and
programme
in
technical
education in any university or any of its
departments and constituent institutions.

16. Since in this case, the issue is
about the vires of sub-rule (4) and Rule 3 of
the Rules framed by the State Government
in exercise of power of power Section 109
of the Act, this Court is of opinion that the
matter ought to be heard and determined by
a Division Bench.

17. List this matter before the
appropriate
Bench,
after
seeking
nomination from his Lordship the Hon'ble
The Chief Justice.
----------
(2023) 1 ILRA 1329
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2023

BEFORE

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

Civil Revision No. 49 of 2022

Ishwar Sharan @ Ishwar Sharan Das
 ...Revisionist
Versus
Bharat Kumar & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Bhola Nath Yadav, Sri Prem Singh

Counsel for the Opposite Parties:
Sri Rahul Sahai, Sri Aman Sharma

Civil Law - Code of Civil Procedure, 1908 -
Sections 105 & 115 -Revision challenging
three orders - Revisionist contested rejection of
an application to bring a registered will on
record - the non-acceptance of a proposed
scheme of administration- the striking off of
execution
in
full
satisfaction-
Preliminary
objection on maintainability was raised - That
three
separate
revisions
should
be
file-
Revisionist argued challenging interlocutory
orders with the final order is permissible- The
court deeming the objection unsustainable.
Revision maintainable. (E-9)

List of Cases cited:

1. Rajendra Prasad Gupta Vs Prakash Chandra
Mishra & ors. (2011) 2 SCC 705

2. Achal Misra Vs Rama Shanker Singh & ors.
(2005) 5 SCC 531

(Delivered by Hon'ble J.J. Munir, J.)

This revision is directed against three
distinct orders passed by the Additional
District Judge, Court No. 9, Budaun in
Execution Case No. 1 of 2012, arising out
of the decree passed by the learned
Additional District Judge, Court No. 8,
Budaun in Original Suit No. 2 of 2001,
Bharat Kumar and others v. Ishwar Sharan,
a suit under Section 92 of the Code of Civil
Procedure, 19081. The first order impugned
is one dated 24.01.2022, rejecting the
application, Paper No. 54ग made in the
execution by one Gaurav Das, claiming to
bring on record a registered will dated
21.12.2016 in his favour, executed by the
the
late
Ishwar
Sharan,
the
former