# Taala v. Smt. Maya Devi and others. Sri

- **Citation:** (2005) 2 ILRA 639
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-19
- **Case number:** Civil Misc. Application No.192419 of 2002
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/taala-v-smt-maya-devi-and-others-sri-40505
- **Pages:** 3

## Headnote

Sri Shamim Ahmad
Sri Faujdar Rai
Sri M.P. Sinha
 Sri Sanjay Kumar Singh
Sri Sanjay Rai
Sri S.A. Ali

U.P. Waqf Act No. 43 of 1995-Section-90
(3)-Maintainability-of
Applicationconcurrent
finding
recorded
by
the
Court's below-confirmed by High Court
in Second Appeal-review application also
rejected-findings to the effect that the
property in dispute is not Waqf propertycan not be reopened on mere assertions
of
made
by
the
applicant-heldapplication not maintainable.

Held: Para 3

In the case at hand, this question was
raised at the first instance and an issue
was framed and decided in negative,
which has also been confirmed by this
Court. In the circumstances, I come to
the conclusion that this Application is
not maintainable and is accordingly
rejected.
Case law discussed:
1995 ACJ (2) 1159

## Text

2 All] Allah Taala V. Maya Devi and others 639
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2005

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Civil Misc. Application No.192419 of 2002
On behalf of
U.P. Sunni Central Board of Waqfs
Lucknow...Applicant.
In
Second Appeal No. 1149 of 2002
Allah Taala

...Appellant
Versus
Maya Devi and others
 ...Respondents

Counsel for the Appellant:
Sri S. Asraf Ali
Sri Shahid Masood
Sri Rajesh Kumar
Sri M.A. Qadeer

Counsel for the Respondents:
Sri Shamim Ahmad
Sri Faujdar Rai
Sri M.P. Sinha
 Sri Sanjay Kumar Singh
Sri Sanjay Rai
Sri S.A. Ali

U.P. Waqf Act No. 43 of 1995-Section-90
(3)-Maintainability-of
Applicationconcurrent
finding
recorded
by
the
Court's below-confirmed by High Court
in Second Appeal-review application also
rejected-findings to the effect that the
property in dispute is not Waqf propertycan not be reopened on mere assertions
of
made
by
the
applicant-heldapplication not maintainable.

Held: Para 3

In the case at hand, this question was
raised at the first instance and an issue
was framed and decided in negative,
which has also been confirmed by this
Court. In the circumstances, I come to
the conclusion that this Application is
not maintainable and is accordingly
rejected.
Case law discussed:
1995 ACJ (2) 1159

(Delivered by Hon'ble Mrs. Poonam Srivastava, J.)

1.

Heard
Sri
M.A.
Qadeer,
Advocate, appearing on behalf of the U.P.
Sunni Central Board of Waqfs, Lucknow.
He has filed an application under Section
90 (3) of U.P. Waqfs Act No.43 of 1995
in second appeal no.1149 of 2002, Allah
Taala Vs. Smt. Maya Devi and others. Sri
Faujdar Rai, Advocate, appearing on
behalf of the plaintiff/respondents.

2. Both the counsels have also
furnished their written submissions. This
application has been challenged on behalf
of
the
plaintiff/respondents
raising
preliminary objection that the application
under Section 90 (3) of U.P. Waqfs Act
No.43 of 1995 (hereinafter referred as the
Act) is not maintainable. The suit filed by
the plaintiff/respondents was decreed on
24.11.1992 in Original Suit No. 101 of
1973 Musamat Bela Devi Vs. Allah
Taala. This judgment was confirmed in
appeal by the Additional District Judge,
court no.1 Ballia in civil appeal no.6 of
1993 and the Second Appeal filed against
the judgment and decree 26.8.2002 has
also been dismissed by this Court on
3.10.2002. A review application was also
filed on 11.11.2002, which was rejected
as not maintainable at the instance of a
different counsels other than one, who
had filed the Second Appeal. The review
application was rejected on 12.7.2004.
Sri
Faujdar
Rai,
Advocate,
has
emphatically
argued
raising
this
preliminary objection that since the suit
has been decreed up till the stage of this
High Court, this application at the behest
of the Waqfs Board is not maintainable.
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
640
The property in dispute is not Waqf
property as specific issue was framed on
this question. Issue no.9 was that

'Whether the suit is barred by the
provision of Section 65 of U.P. Sunni Act
1960'.

3. The said issue was decided by the
trial court holding that it has been
established that the property in question is
not Waqf property. In the circumstances,
no right of the Waqfs Board is effected
and accordingly, the suit is not barred by
Section 65 of the Act. This finding was
confirmed in appeal filed on behalf of the
defendant/appellants,
which
was
dismissed on 26.8.2002. I have perused
the judgment of the lower appellate court.
It transpires that the finding of the trial
court on issue no.9 was never challenged.
The Second Appeal was dismissed by this
Court. A review application was also
rejected by this Court. It appears that the
applicant has resorted to a second inning
by filing an application under Section 90
(3) of the Act. The argument advanced
by the counsel that the notice to the
Waqfs Board is mandatory in respect of
the property, which if admittedly is the
Waqf property, is not disputed. But in the
instant case, specific issue was framed
regarding the question as to whether the
property in dispute is Waqf property or
not? This has been decided that the
property in questions belongs to the
plaintiffs and is not Waqf property. In the
circumstances, the adjudication of the suit
up till the stage of the High Court cannot
be reopened on a mere assertions made by
the applicant that the property is Waqf
property. The argument of the counsel for
the applicant that in absence of the notice
under Sub clause 1 of Section 90 of the
Act, the proceedings are liable to be
declared as void, if the Board within one
month of its knowledge of the proceeding
applies to the court on this behalf. The
basic question to be decided before any
judgment or order is declared as void, is
that the subject matter of dispute must
necessarily be a Waqf property. In case it
is permitted to reopen the controversy
without arriving at a substantial and
categorical finding to the effect that firstly
the property is a Waqf property and
secondly that Waqf Board was not given
any notice, a piquant situation will arise in
every second case. Since there are
categorical findings of fact arrived at
consecutively
by
two
courts
and
confirmed in Second Appeal by this
Court, mere saying that the property in
question
is a
Waqf property and,
therefore, the entire proceedings should
be rendered void, is not correct. Counsel
for the respondents has placed a decision
of this Court Ajodhya Prasad Vs.
Additional Civil Judge, Moradabad and
others 1995 A.C.J. (2) page 1159, where
it has been held that it could never have
been the intention of the legislature to cast
a cloud on the right, title or interest, of
persons who are non Muslims. Counsel
for the applicant has also placed reliance
on a number of decisions relating to the
property which was admittedly a Waqf
property. The said decisions are not
applicable in the present case. In the case
at hand, this question was raised at the
first instance and an issue was framed and
decided in negative, which has also been
confirmed by this Court. In the
circumstances, I come to the conclusion
that this Application is not maintainable
and is accordingly rejected.
Application Rejected.
---------
2 All] Mahesh Chandra Gautam V. State of U.P. and others 641
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Writ Petition No. 50378 of 2005

Mahesh Chandra Gautam
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vijay Gautam
Sri Satya Prakash
Sri Amit Srivastava

Counsel for the Respondents:
Sri Suresh Singh
S.C.

Constitution of India Art. 226-Service
Law-right
of
deputanist-petitioners,
were sent on deputation-from Police
department
to
the
Trade
Tax
Department-for period of 3 yrs.-the
Commissioner Trade Tax by impugned
order-repatriated
back
to
Police
Department-challenge made on ground
that before expiry of the period for
deputation-the Commissioner Trade Tax
has no authority-held it is always open
to the borrowing deport to send back to
the parent department-in absence of
Rules or Regulations in this regard the
borrowing
department
has
every
jurisdiction it can not be saddled with
surplus staff.

Held: Para 9, 10

There is another aspect of the matter.
The borrowing department cannot be
saddled with surplus staff and if their
services are not required, it is always
open to the borrowing department to
sent the employee back to the parent
department. In my view, the borrowing
department was competent to pass the
orders repatriating the petitioners back
to their parent department.

In view of the aforesaid and in the
absence of any Rules or Regulations, I
am of the opinion that the Trade Tax
Department was competent to repatriate
the petitioners back to the parent
department. The borrowing department
had complete and full jurisdiction to pass
the order repatriating the petitioners to
their parent department.
Case law discussed:
1981 LIC-1057 distinguished
199 (3) AWC 2414
1981 LABIC 1057
2005 (5) SCC-362
2002 (4) AWC-3067 (L.B.)

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri Vijay Gautam, Sri
Satya Prakash and Sri Amit Srivastava,
the learned counsels for the petitioners
and Sri Suresh Singh, the learned standing
counsel appearing for the respondents.

2. The petitioners have challenged
the order dated 8.7.2005 issued by the
Joint Commissioner, Trade Tax, whereby
the petitioners have been repatriated back
to their parent department, i.e., the Police
Department. It transpires that on the
request of the Trade Tax Department, the
petitioners were sent on deputation to the
Trade Tax Department for a period of
three years. It is alleged that the period of
three years has not yet expired and, by the
impugned order, the period of deputation
has been cut short and the petitioners have
been repatriated back to their parent
department. The ground of attack is, that
the Joint Commissioner, Trade Tax has no
power to issue the order of repatriation,
inasmuch as, only the parent department
could recall the petitioners. The Joint
Commissioner, Trade Tax has the power
and authority to transfer the petitioners in