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Judgment
D. K. Seth, J.—Sari Musahid All had filed this kppiication for substitution in place and $tead of deceased Maqsood Ali, the petitioner in the present writ petition. Shri Maqsood Ali participated in the writ petition in the capacity of Mutwalli in the Waqf creatjed by Sher Ali and Moti Begum, Moradabad, It is alleged by the applicant that he is the son of deceased petitioner and therefore he should be substituted. It ia not claimed that he has been appointed as Mutwalli in respect of the Waqf and that he was seeking his subs titution as Mutwalli of the Waqf property. However, by an application dated 2571997 filed on behalf of Sadat Ali, respondent No. 4, it is alleged that Shri Musanid Ali had already been appointed as Mutwalli on 2911997.
Be that as it may, the application of Musahid for substitution is being allowed subject to objection that might be taken up by respondents. This substitution shall be treated only for the sake of deciding this writ petition and shall not be taken into account for the purpose of any decision by the Board if occasion so arises and the question relating to the rights of the respective parties would remain open for decision by the Board in accordance with law if it is so required to be decided, without being influenced by the substitution allowed in the present writ petition.
The name of Shri Maqsood Ali be deleted and that of Shri Musahid Ali be substituted. The office will take appropriate steps in course of one week for amending the cause title of the writ petition.
After the above application for substitution is allowed Shri V. M. Zaidi, learned Counsel representing the substituted heir and Shri A. N. Bhargava, learned Counsel representing respondent No. 4 had agreed that the matter may be taken up for disposal and had accordingly addressed the court on merit of the case.
I have heard Shri V.M. Zaidi, learned Counsel for the petitioner and Shri A. N. Bhargava learned Counsel for contesting respondent at length.
In the present case, order dated 1231993 passed by Controller U.P. Sunni Central Board of Waqfs, Lucknow, being Annexure8 to the writ petition has been challenged on the ground that the same is contrary to the. directions contained in the Waqf Deed. Inasmuch as according to the directions the Waqfs Board can appoint only one Mutawalli for the Waqf whereas the order hadsought to appoint a committee of management. The other ground of challenge is that Shri Maqsood Ali being the only relative of the Waqifs, it is he who could alone be appointed and said Shri Sadat Ali can have no claim for being so appointed. The third point of the learned Counsel for the petitioner is that Shri Maqsood Ali was a Mutawalli appointed and he had never been removed from the post under Section 55 of the Uttar Pradesh Muslim Waqfs Act, 1960, hereinafter called as the 1960 Act, and as such there cannot be any appointment of anyone else as Mutawalli including the committee of management.
While elaborating his argument Shri Zaidi, contends that on earlier occasion when the petitioner was removed and five member committee was appointed, the petitioner had challenged the said order on a reference which was dismissed. A revision against the said order was preferred. In the revision an interim was so granted to the extent that Shri Maqsood Ali may be included in the management of Waqf. Pursuant thereto Shri Maqsood Ali was appointed as sole Mutawalli. By reason of such appointment he got his revision application dismissed as not pressed on 821989 (Annexure8). He claims that by reason of his fresh appointment, it is no more open for the Board to appoint five member committee as has been sought to be done. One such appointment was questioned in Writ Petition No. 8791 of 1990. The said order was passed on 2721990. While disposing of the writ petition by an order dated 791992, this court had passed the following order:
"I therefore, set aside the order of the Controller dated 272 1990 and remand the matter to him to pass a fresh decision on merits after considering the aspect of the matter and the interest of the Waqf. It may be mentioned that the Board can appoint a Mutwalli under Section 19(2) (o) of the Waqfs Act but under the proviso to the said section, the Board has to be guided as far as possible by the directions of the Waqifs. It is also inherent that the interest of the Mutwalli. The fact that the petitioner has been working as Mutwalli for a long is also a relevant consideration but it is not the sole consideration. If the Board finds that the petitioner has been working against the interest of the Waqf, then the petitioner can certainly be removed. The interest of the Waqf and direction of the Waqifs are paramount consideration in such matters. Hence the Board will issue notice to both the parties and consider the entire matter in detail and pass a fresh order appointing a Mutwalli according to law. Until such order is passed the petitioner will continue since he has been working for long. The petitioner will also render accounts of the Board."
Pursuant to the said order, the present impugned order has been passed ignoring the direction contained in the said order dated 791992. According to Mr. Zaidi, since the petitioner has never been removed under Section 55 of the 1960 Act, the order dated 1231993 is void ab initio. He further contends that because of the appointment of Shri Musahid Ali by a subsequent order and the said order having not been challenged by Sadat Ali, it is no more open to this Court to decide the question contrary to the contentions raised on behalf of the petitioner.
Shri A. H. Bhargava, learned Counsel for respondent, on the other hand contends that appointment of Shri Maqsood Ali being in terms of the interim order passed in revision, the said order was subject to the result of the revision. The revision having been dismissed as not pressed, the interim order has merged in the said order and, therefore, the appointment made pursuant to the interim order could not survive and has no legal sanction. Then again by reason of the order dated 2721990 the said order stands confirmed requiring a fresh decision on the question and the appointment made pursuant to the interim order was granted in the revision was no more allowed to be continued and was not confirmed even in the order dated 7992 passed in Writ Petition No. 8791 of 1990 wherein the order dated 2721990 was challenged. On the other hand in the said order, the matter was directed to be decided afresh in accordance with law irrespective of the appointment of Shri Maqsood Ali in terms of the interim order passed in revision. He points out from the order dated 7992 that no where it has been directed in the said order that the appointment of Shri Maqsood Ali pursuant to the interim order granted in the revision should be adhered to. Since the appointment of the petitioner had merged with the dismissal of the revision application and fresh appointment is being made and the appointment of the petitioner having not been continued there is no scope of removal of the petitioner under Section 55 of the said Act and it has no manner of application in the present case.
I have heard both the learned Counsel at length as observed earlier.
In order to decide the question It is necessary to refer the background in brief. On 731929 one Shri Sher Ali and his wife Smt. Moti Begum created a waqf through a registered deed which was registered with the Waqf Board with registration No. 573 Moradabad. The said deed contain a condition that Waqif Sher Ali during his lifetime would remain appointed as Mutawalli to be succeeded by his wife as Mutawalli upon his death. On the death of his wife their descendants would be appointed as Mutawalli till the extinction of the branch. In the absence of any lineal descendants, the Mutawalli was to "be appointed from amongst the members of the family of the Waqifs. If there was no one in the family, a person belonging to the tribe (''Biradri'') having the prescribed qualification was to be appointed as the Mutawalli by a five member committee. Admittedly, there is no lineal descendants male or female of the Waqifs. In the year 1964, the Board appointed a seven member committee for the management of the Waqf. This committee was superseded by the Board on 2121968 and appointed five member committee, with Shri Maqsood Ali as its Secretary. This committee was dissolved on 2571978 on account of death of the President of the Committee and resignation of two of the members. A new five member committee was appointed by the Board. A reference was made by; Shri Maqsood Ali aggrieved by the said order which was stayed by the Waqf Tribunal. The reference was dismissed on 251986. A revision No. 491 of 1986 before this Court was filed by the aggrieved Maqsood Ali. By an order dated 2271986 an order of stay was granted in the said proceeding to the extent that if the committee appointed by the Board is not taken over possession, i ts functioning shall remain stayed. However, the Board was given the option that while making arrangement for the management of the Waqf Shri Maqsood Ali be included in the management. In compliance with the said order, by an order dated 2991988 Shri Maqsood Ali was appointed as sole Mutawalli which appointment was continued by subsequent Order. Ultimately the said revision was not pressed and accordingly it was so dismissed by an order dated 821989. On the other hand one Shri Sadat Ali being aggrieved by the order dated 2991988 appointing Shri Maqsood Ali as Mutawalli had moved an application for recalling the order. Pursuant to which notices were issued to the parties and after hearing them, the order dated 2991988 was recalled on 2721990. This order was challenged in Writ Petition No. 8791 of 1990 which was allowed on 791992 directing the Board to decide the matter on merjits as indicated in the said order. This is how the present impugned order dated 1231993 came to be passed by the Board. This order has been assailed on the grounds indicated above.
The scope of the order dated 1231993 is to be tested on the basis of the direction contained in the order dated 791992 passed in Writ Petition No. 8791 of 1990. The said order directed reconsideration of the matter taking into account all aspects under Section 19(2) (o) of the Waqfs Act. The interest of the Waqf is one of the prime consideration. If it is found by the Board that the petitioner is working against the interest of the Waqf then he can be removed. Therefore, the Board will issue notice to both the parties and consider the matter in detail and pass a fresh order appointing Mutawalli according to law, having regard to the direction contained in the Deed of Waqf.
Now the question of removal of the petitioner under Section 55 of the said Act can crop up only if the petitioner was appointed as Mutawalli. If he was not appointed by the Board, in that event, Section 55 cannot come into play. In the present case admittedly it is not a removal of the Matawalli. Inasmuch as right from 1964, tHe committee of management was being appointed and consisted 7 members. While in 1968, the committee consisted 5 members of which the petitioner was a member secretary. The petitioner Maqsood Ali was included in the committee of management and had been the Secretary of such committee of management for long time. Such committee was appointed successively even in 1978. Only when an order was passed on 257 1978, the petitioner became aggrieved and filed a reference which was dismissed on 251986. This dismissal of the reference was challenged in revision No. 491 of 1986 which was ultimately dismissed as not pressed. As soon as the revision is dismissed as not pressed, the order of dismissal of the reference which was stayed in the said revision becomes operative and continue to survive so long as the order remain and states on the face of (sic) Maqsood Ali. Admittedly Shri Maqsood Ali was appointed as Mutwalli on 2991988 pursuant to the interim order passed on 22 71986 in the revision. Two years two months difference between the interim order and the appointment of the petitioner pre supposes that the committee had been functioning during this period. Therefore, it was open to the Board to opt to include shri Maqsood Ali in the committee of management. Within the scope and ambit of the interim order passed in revision, Maqsood Ali could be included within the committee of management and he could not have been appointed to the exclusion of the committee of management as Mutawalli. Even if he is so appointed on 2991988 on a misconceived interpretation of the order dated 2271986, still then the said appointment being an appointment in terms of the interim order, cannot survive after the interim order lapses. The revision being dismissed as not pressed, the interim order has merged in the said order and had thereby lapsed. The interim order cannot survive once the matter is dismissed or disposed of and nothing is indicated in the order disposing of the matter as to what would happen to such appointment pursuant to the interim order. In the present case, the order of dismissal does not indicate as to what would have been the consequence of the dismissal with regard to the appointment made in compliance of the interim order. Therefore, in normal course, the interim order having its existence during the pendency of the revision and after appropriate order is made in the pending matter, it merges with the final order passed in the revision. The revision having been dismissed, the interim order cannot survive on account of its merger and has thereby lapsed. Therefore, no benefit could be obtained on the basis of the petitioner''s appointment on 2991988 pursuant to the interim order granted in the revision as soon as the same stood dismissed as not pressed on 821989.
Now when the order dated 2991988 was sought to be recalled by Shri Sadat Ali and the same stood recalled by order dated 27 21990 which was the subjectmatter in Writ Petition No. 8791 of 1990, the question has to be governed in the light of the said decision in the backdrop as mentioned above. No decision has been arrived in the said order dated 7992 passed in Writ Petition No. 8791 of 1990 with regard to the consequence of the interim order passed in Revision No. 491 of 1986 visavis the order dated 2991988 and the impact of the dismissal of the revision on 8289. These questions were kept open for being decided in accordance with law in the said order dated 7992.
Therefore, the question of removal of Shri Maqsood Ali under Section 55 of the Act of his being appointed as Mutawalli on 29 988 does not stand to reason because he was not the Mutawalli as contemplated in Section 55 of the Act. Inasmuch as it is not a case of removal of the Mutawalli but it is a case where the appointment itself has lapsed or extinguished by reason of the legal impact on the dismissal of the revisional application by reason of the appointment being made in compliance of the interim order granted therein that too outside the scope and ambit of the interim order so granted in the revision. Inasmuch as the said interim order never contemplated appointment of Shri Maqsood Ali as Mutawalli to the exclusion of the committee of management. On the other hand, the interim order had permitted an option to the Board to include Shri Maqsood Ali in the committee of management. Therefore, I am unable to agree with the contention of Shri V. M. Zaidi, learned Counsel for the petitioner with regard to his proposition that unless Shri Maqsood Ali is removed under Section 55 of the Act no fresh appointment could be made.
Now it is not being a question of removal and there being no Mutawalli, it is open to the Board to arrange for management of the Waqf which it had done so through committee of management as indicated in the Waqf deed itself in the absence of lineal descendants. Admittedly, both Shri Maqsood Ali and Shri Sadat Ali are not lineal descendants and they are equally distant from the family of Waqifs and therefore one cannot claim preference over the other. This proposition is not disputed by Mr. Zaidi and which appears to have been so found in the impugned orderdated 1231993.
Section 19 of the 1960 Act describes the functions of the Board which includes removal or appointment of Mutawalli. Proviso to subsection 2(o) of Section 19 provides that in the appointment of Mutawallis or in making any other management of Waqf property, the Board shall be guided, as far as possible, by the directions of the waqif, if any. As we have seen earlier, the direction contained in the waqf deed contemplate appointment of 5 member committee. Therefore, it cannot be saiq that in not appointing sole Mutawalli and appointing committee of management, the direction of Waqf deed has been violated. Then again the provision contemplates that the discretion of the Board should be guided as far as possible by the direction of the Waqif. Directions if necessary may be ignored if the Board so feels in the interest of Waqf particularly when it is not in confrontation with the direction contained in the waqf deed. Therefore, in the present case even in terms of Section 19(2)(o) the Board is free to decide the question having obtained guidance from the direction contained ii} the waqf deed which provided appointment of five member committee in certain contingency which is in existence in the present case. In the impugned order dated 1231993, the question of appointment of the petitioner Shri Maqsood Ali was also considered in the light of the observation made in the order dated 791992 as to whether the appointment of Shri Maqsood Ali would be in tae interest of waqf. It has come into a finding that Shri Maqsood Ali had been working against the interest of the Waqf, therefore, he was not included in the committee of management. This finding is supported by various facts particularly the earlier orders through which the Shri Maqsood Ali was excluded bn account of certain allegations against him which fact stand concluded by order dated 251986 dismissing the reference whicjh stood confirmed by reason of dismissal of the revision as not pressed on 821989.
I have perused the impugned order. It does not appear from the said order that in any manner the Board had flouted any of the direction contained in the order dated 791992 in which it was observed that the petitioner Shri Maqsood Ali had been working as Mutawalli for long may be a relevant consideration but it is not the sole consideration and that the management should be made in the interest of the waqf and direction of the waqif which should be paramount consideration. Admittedly the Board had issued notices to both the parties and had considered the entire matter in detail and had passed a fresh order having regard to all the consideration which ought to have been taken into account. A perusal of said order shows that the same is in detail and supported by cogent reasons. The findings of the facts cannot be interfered with in writ jurisdiction unless any perversity is brought to its notice. During the course of argument, no perversity has been brought to the notice of the Court. Therefore, by no stretch of imagination, recalling of the order dated 2991988,1811989 and 1911989 and appointing five member committee including Shri Sadat Ali cannot be said to be illegal. Therefore, I do not find any reason to interfere with the said order.
The writ petition fails and is accordingly dismissed.
There will be, however, no order as to cost.