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

- **Citation:** (2005) 4 ILRA 1061
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-19
- **Bench:** Mrs. Poonam Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/taala-v-smt-maya-devi-and-others-sri-40534
- **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
courts below-confirmed by High Court in
Second Appeal-review application also
rejected-finding to the effect that the
property in dispute is not waqf propertycan not be reopened on were 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 A.C.J. (2) 1159 relied on.

## Text

4 All] Allah Taala V. Maya Devi and others 1061
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2005

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

Second Appeal 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
courts below-confirmed by High Court in
Second Appeal-review application also
rejected-finding to the effect that the
property in dispute is not waqf propertycan not be reopened on were 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 A.C.J. (2) 1159 relied on.
(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.
The property in dispute is not Waqf
property as specific issue was framed on
this question. Issue no.9 was that:
1062 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
'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.
---------
4 All] Arun Kumar Singh V. State of U.P. and others
1063
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.07.2005

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 3447 of 2002

Arun Kumar Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.K. Singh

Counsel for the Respondents:
Sri M.A. Qadeer
Sri B.N. Singh
C.S.C.

Constitution of India, Art. 226-Service
Law-Right
to
appointment-Petitioner
being placed at serial No.-2 in the
waiting list for the post of U.P. State
Universities (centralized) Services Asstt.
Registrar
Examination
1996-on
the
ground that two candidates of general
category had resigned within the period
of One year from the date of joining and
the top most candidates of waiting list
refused to joine-State Government send
requisition vide its letter dt. 26.7.01-The
secretary Higher Education Commission
by its letter dt. 20.8.01 refused on the in
the garb of caused due to of Para 3 of
G.O. dt.23.12.97-the vacancy resignation
of
selected
candidate
after
their
joinings- cannot be filled its from the
waiting list-held-after joining of selected
candidates-such
vacancies
stood
exhausted-being fresh vacancies-to be
carried forward for the next selection-No
right to claim appointment subsists.

Held: Para 19,20

But if all the selected candidates who
had been offered appointment against
the vacancies included in the process of
process of selection join the post to fill
up
such
vacancies
though
shortly
thereafter any or some of the candidates
resign from the post even if during life
time or subsistence of select/waiting
list, such vacancies stood exhausted on
account of such joining of selected
candidates and cannot be filled up either
from the remaining candidates of select
list who ranked lower in order of merit or
from the waiting list despite their being
included in select/waiting list and life of
select/waiting list still subsists.

Thus the vacancies occurred on account
of
death,
compulsory
retirement,
voluntary retirement, dismissal, removal
of any incumbent during the life time of
waiting list, can not be filled up from
such
select/waiting
list.
In
our
considered opinion, as indicated herein
before, similarly the vacancies arising
out
of
resignation
of
a
selected
candidate after his joining would be a
fresh vacancy and cannot be filled in
from the aforesaid select list, rather to
be carried forward for the fresh process
of selection and to be filled up by
affording opportunity to compete all
eligible and qualified candidates. This is
crux of the matter.
Case law discussed:
2001 (1) UPLBEC-462
1999 (2) AWC-1230
AIR 1991 SC-1612
1974 (5) SCR 1645=AIR 1973 SC-2216
(1986) 4 SCC-268=AIR 1987 SC-169
(1985) 1 SCR-899=AIR 1984 SC-1850
1994 Supp. (2) SCC-591
(1996) 4 SCC 319
(1984) 1 SCR
AIR 1987 SC-454
(1989) 4 SC-130
1986 (4) SCC-268
1993 Supp. (2) SCC-377
1994 (1) SCC-126
1994 Supp. (2) SCC-591
AIR 1994 SC-765, AIR 1995 SC-1088
1993 (2) SCC-573, AIR 2001 SC-3757
J.T. 1997 (7) SC-537, 1997 (4) SCC-283
1999 (3) SCC-696, 2000 (1) SCC-600
1998 (8) SCC-59,