Parties Who Are Direct Beneficiaries & Would Be Affected Should Be Impleaded In Proceedings Before Waqf Tribunal For De-Listing Properties From Waqf Register: Allahabad HC
The Allahabad High Court observed that in a case where a mutawalli seeks the permission to de-list certain properties from the register of Waqf, at least those parties who, in the knowledge of the mutawalli, are the direct beneficiaries and would be affected has to be impleaded in the proceedings before the Wakf Tribunal.
The Lucknow Bench observed thus in a civil revision preferred under Section 83(9) of the Waqf Act, 1995 against the order of the Uttar Pradesh Waqf Tribunal in a case relating to several properties belonging to Waqf.
A Single Bench of Justice Jaspreeet Singh enunciated, “Applying the principles as culled out from the aforesaid decisions, it would be clear that in so far as the present dispute is concerned, where a mutawalli was seeking the permission to de-list certain properties from the register of Waqf then in such a case, at least those parties who, in the knowledge of the mutawalli, were the direct beneficiaries and would be affected ought to have been impleaded in the proceedings before the Tribunal. The Waqf Board, though, was a necessary and a proper party to the said proceedings but it could not exclude the revisionists who were the beneficiaries and their identity was very well known to the then mutawalli, moreso where it was a Waqf-Al-Aulad, (a private Waqf for the benefit of the descendants of the settlor) and the then mutawalli himself was its beneficiary and he had full knowledge of the fact that his two sisters, amongst others, were in the category of direct beneficiaries.”
Advocate Dhruv Mathur appeared on behalf of the revisionists while Senior Advocate Sudeep Seth appeared on behalf of the opposite parties.
Facts of the Case -
Dr. Mohd. Abdul Jalil Faridi and his brother created a Walf-Alal-Nafs and Alal-Aulad to be (known as Waqf Faridi) by a Waqf deed in 1945 and two properties were dedicated to the Waqf Faridi. Abdul Faridi was the first mutawalli of the Waqf and the Waqf deed provided that the income of the waqf would be shared amongst the wakifs from generation to generation in equal amounts. The Waqf deed further stipulated that the income from any of the properties if was less than the amount required for its upkeep and other necessary expenses then the same could be sold to purchase a better property subject to the condition that on the purchase of the new property, the same would also be dedicated to the Waqf. Mutawalli sought permission from District Judge in 1960 and sold part of the waqf property via deed in favour of Sunni Central Board of Waqf for a sale consideration of Rs. 61,307/-.
Since the proceeds were to be applied for the benefit of the waqf, Mutawalli purchased a plot via sale deed and another property was purchased from Sunni Central Board. The Waqf, therefore, had four properties. The first Mutawalli died and hence, his son became the same and he filed an affidavit before the Waqf Board for inclusion of two properties. Thereafter, a new lease was executed in his name and an application was made before the Waqf Board seeking permission to de-list/remove a plot and property from the register of waqf properties. The said application was rejected by the Waqf Board and the order was assailed before the Waqf Tribunal. The Tribunal allowed the petition and Mutawalli got the lease hold rights converted into free hold. Soon after his death, his three daughters transferred the plot and hence, the revisionist filed the revision against the order of the Tribunal.
The High Court in view of the facts and circumstances of the case noted, “The question that arises for adjudication before this Court is; (i) whether the instant revision is maintainable at the behest of the revisionists who were not parties before the Waqf Tribunal; (ii) Whether the lease hold property could be Waqfed or in the given facts and circumstances, upon the expiry of the lease period, the Waqf was extinguished and as such the Waqf Tribunal was justified in passing the impugned order dated 04.07.2018.”
The Court said that the least Mutawalli could do was to have impleaded the beneficiaries as a party as in this sort of dispute which was before the Waqf Tribunal, their presence was both necessary and imperative as it affected the character and composition of waqf property which was the corpus of the waqf and was for the benefit of the beneficiaries.
“Apparently, had the revisionist been impleaded and were granted an opportunity to contest and the aforesaid documents would have been placed on record of the Tribunal then at least its impact could have been noticed and assessed by the Tribunal after hearing the concerned parties while giving its verdict, however, this Court finds that in absence of the revisionist who were not impleaded and they could not raise their defence nor could produce the relevant documents before the Waqf Tribunal, hence, they have been deprived of an opportunity to contest as they were both necessary and proper parties”, it emphasised.
Furthermore, the Court noted that the scope of revision is not as wide as rights exercised by an Appellate Authority but the fact remains that even while exercising the powers of revision in terms of Section 83 (9) of the Waqf Act, 1995, the Court has the power to see the legality and proprietary of the order impugned and in order to ascertain the same.
“Unfortunately, the revisionists were not impleaded as a party and even the Waqf Board while filing its response before the Waqf Tribunal did not raise a relevant defence but a formal written statement filed which was nothing but an eye-wash and in such circumstances, this Court is of the clear opinion that the presence of the revisionists before the Waqf Tribunal was necessary and imperative”, it also remarked.
Accordingly, the High Court allowed the revision to an extent, set aside the impugned order, and restored the petition before the Waqf Board.
Cause Title- Ameena Jung and Anr. v. Faridi Waqf Thru. Mutawalli and Ors. (Neutral Citation: 2024:AHC-LKO:38200)
Appearance:
Revisionists: Advocates Dhruv Mathur, Subhash Vidyarthi, and Saud Rais.
Opposite Parties: Senior Advocate Sudeep Seth, Advocates Syed Qamar Hasan Rizvi, Farhan Habib, Pranav Agarwal, Pritish Kumar, Shantanu Gupta, and Syed Aftab Ahmad.
