Iftikhar Fatima v. U.P. Waqf Tribunal Lucknow, Through Its Registrar And

3. Submission of learned counsel for the revisionist is that the Waqf Mir Azhar Husain, registration no.I-66, situate at Shikohabad, District Firozabad was created by means of the waqf deed executed by the waqifs on 24.01.1934. It is urged that there is clear stipulation in the waqf deed that the Mutwalli would be appointed from the family of the waqifs and it is in furtherance thereof that the father of the revisionist, namely, late Majid Husain had been acting as Mutwalli of the waqf in question for several decades. Upon the death of Majid Husain in the year 2008, the revisionist being the daughter and belonging to the family of the waqifs made an application before the Waqf Board seeking 2 CLRE No. 50 of 2023 her appointment as Mutwalli of the Waqf.

4. In the aforesaid background, one Syed Manzar Husain Rizvi, who also claims to belong to the family of waqifs raised certain issues regarding misappropriation and alienation of the waqf property and also brought the same to the notice of the Waqf Board by moving certain applications. However, no action was taken on the said applications which prompted Syed Manzar Husain Rizvi to invoke the writ jurisdiction of this Court by means of Writ-C No.17147 of 2019 (Syed Manzar Husain Rizvi vs. Shiya Central Board of Waqf and others). The Division Bench of this Court at Allahabad while considering the petition filed by Syed Manzar Husain Rizvi disposed of it with a direction to the Waqf Board to dispose of the application which had been moved by Syed Manzar Husain Rizvi before the Waqf Board.

5. It is also relevant to notice that while the said applications were pending before the Waqf Board and at that point of time the Waqf Board realized that since the earlier Mutwalli namely, Majid Husain had expired, and accordingly it was the time to appoint Mutwalli for the said Waqf. At this relevant time, the Waqf Board had two persons before it, one the revisionist who had already moved an application for her to be considered as appointment of Mutwalli and Syed Manzar Husain Rizvi the person who had invoked the writ jurisdiction of the Court and made certain applications alleging misappropriation and alienation of the waqf property. It is considering the aforesaid two applications that the Waqf Board vide order dated 09.09.2022 rejected the application of the revisionist holding that her father late Majid Husain had alienated the waqf property/created third party right by executing lease deeds in perpetuity and for the said reasons she was not found fit to be considered as the Mutwalli. The only other application was that of Syed Manzar Husain Rizvi, accordingly he along with few other members allegedly from the family of the waqfis and other members appointed a Committee of twelve persons to manage the affairs of the waqf in question for a period of two years.

6. This order dated 09.09.2022 was assailed by the revisionist before the Waqf Tribunal and by means of order impugned dated 14.03.2023 the 3 CLRE No. 50 of 2023 application for injunction moved by the revisionist was rejected which prompted the revisionist to approach this Court.

7. Two fold submission has been made by learned counsel for the revisionist; (i) that there is no settled or transparent and fair procedure prescribed by the Board to determine the fitness of a person to be appointed as Mutwalli of the Waqf. Since office of Mutwalli is not heritable, hence any disability incurred by erstwhile Mutwalli cannot be a ground to non-suit another person merely because the person applying was the successor of the said Mutwalli. (ii) the other ground raised is that in absence of any clear procedure merely selecting one out of many purely on discretionary basis without there being any material before the Waqf Board, gives unbridled powers to the Waqf Board to misuse so as to appoint any person as Mutwalli wherein the Waqf Board may have an interest.

8. Elaborating the aforesaid submission, it has been urged that once Majid Husain the erstwhile Mutwalli had left for his heavenly abode then any act which was detrimental to the interest of the waqf could not be taken as a ground to non-suit the revisionist merely because she happened to be the daughter of the erstwhile Mutwalli. It is also urged that the person who had moved an application before the Waqf Board and had also filed the writ petition allegedly claims to be from the family of the waqifs but he also did not raise any issue regarding any alleged act of misdeed relating to Majid Husain prior to the year 2018. The allegation against late Majid Husain was relating to execution of certain lease deeds in perpetuity sometime between the year 1977 till 1980. Since 1980 till 2018 there was never any dispute nor was the said act ever called into question either by the Waqf Board or by any other alleged family members of the waqifs. Moreover, Majid Husain had expired in 2008, and until 2018, neither did the Waqf Board awaken from their slumber to ascertain whether a Mutawalli needed to be appointed, nor did the other family members of the waqifs raise this issue.

9. In the given backdrop, once the revisionist had moved an application before the Waqf Board which was to be decided on its own merit, the manner 4 CLRE No. 50 of 2023 in which it was considered and the claim of the revisionist for being considered as Mutwallii having been rejected by the Waqf Board solely on the ground that she was daughter of Majid Husain who had executed certain lease deeds somewhere between 1977-1980 and the revisionist did not inform this to the Waqf Board is purely arbitrarily, has no basis and such an illegal order could not be passed. This also indicates that the Waqf Board adopts the complete opaque process which is arbitrary too in deciding who should be appointed as the Mutwalli. In such circumstances, the Waqf Tribunal also erred in failing to consider this aspect of the matter which has rendered the order passed by the Waqf Tribunal bad and susceptible to judicial intervention.

10. Sri Syed Aftab Ahmad learned counsel for Waqf Board uptil now had not filed his counter affidavit. It is only at a later stage when the Court has passed a strict order imposing cost that the counter affidavit was filed and significantly though the same has been filed in the registry but till date it is not on record as it has been informed that there are certain defects. However, the Court has the benefit of perusing through the said counter as the hard copy has been provided by Sri Syed Aftab Ahmad, learned counsel for Waqf Board.

11. Primarily the stand taken in the counter of the Board is that in accordance with the settled practice, the Committee was constituted for a period of two years. It has further been informed that since period of two years of the respondent no.4/Committee has already expired in the year 2024, however, no new Mutwalli has been appointed, though two persons have moved applications regarding their appointment, one by Syed Manzar Husain Rizvi who was the person in whose favour the last Committee had been constituted and the other has been moved by one Mutahir Hussain.

12. It has further been stated that till date no new Mutwalli has been appointed. A specific query was put to Sri Syed Aftab Ahmad as to what are the rules and as to how the Waqf Board comes to know that who is the person with credentials who can be appointed as the Mutwalli. It was also put to him to indicate what procedure is adopted while appointing a Mutwalli. 5 CLRE No. 50 of 2023

13. On the basis of instructions and after calling for the records, which have been made available for perusal before this Court by Sri Zafar Sajjad, Legal Assistant, Sri Syed Aftab Ahmad, learned counsel for the Waqf Board could not dispute the fact that even where any vacancy in the waqf arises there is no methodology of advertising the same or informing the public at large of the same. As and when some applications come the same is considered by the Board and considering the recitals of the waqf deed/provisions contained in Section 63 of the Waqf Act 1995 an appropriate decision is taken either to appoint a sole Mutwalli or a Committee. It is in the aforesaid background, it has been urged that since Syed Manzar Husain Rizvi had moved certain applications and there was a direction of the High Court to consider and dispose of the same and at that point of time the only other applicant before the Waqf Board was the revisionist, hence since her father was found to have misappropriated the waqf property, hence she was not found appropriate and the only other choice was that of Syed Manzar Husain Rizvi and therefore a committee of twelve members including him was constituted.

14. Sri Syed Aftab Ahmad, learned counsel for Waqf Board could not dispute the fact that as of today the term of the committee which was constituted in the year 2022 has already come to an end in the year 2024 and since then there is no proceedings pending nor a new Mutwalli has been appointed.

15. Sri Ruved Kamaal Kidwai, learned counsel for respondent no.4 has only made submissions in tandem and supporting the case of the Board since the Committee appointed by the Board for a period of two years and since the term has expired and no further Mutwalli/Committee has been constituted accordingly the respondent no.4 submits that he would ultimately abide by the outcome of the revision or the order to be passed by the Board relating to the management of the Waqf. However, Sri Kidwai could not dispute the fact that after the termination of two years period for which that the Committee was constituted, Syed Manzar Husain Rizvi has made an application seeking his reappointment as the sole Mutwalli and the same is engaging the attention of the Waqf Board. 6 CLRE No. 50 of 2023

16. Having heard the learned counsel for the parties and upon perusal of the material on record, this Court finds that as far as the issue whether the revisionist was rightly or incorrectly discarded from being considered as Mutwalli is one which is to be considered, and the other issue that arises as to whether there could be any substantive relief granted to the revisionist since the period of two years for the respondent no.4/committee has already expired in the year 2024.

17. Keeping the aforesaid issues in mind and considering the material available on record, this Court finds that the order passed by the Waqf Board which was challenged before the Waqf Tribunal who rejected the injunction application of the revisionist. However, the order of the Board rejecting the application of the revisionist on the ground that she was the daughter of Majid Husain who allegedly had executed certain lease deeds putting the waqf property to peril, cannot be a ground extended to discard the application of the revisionist.

18. It may be relevant to state that the office of Mutwalli is an office which is neither heritable nor can be made transferrable by any testamentary or non- testamentary instrument. In the given circumstances, even if at all the father of the revisionist Majid Husain had executed any lease deed or disposed of any property of the waqf that in itself cannot be held against the revisionist per se.

19. From the perusal of the order passed by the Waqf Board, it would indicate that since the revisionist did not inform the Waqf Board regarding the lease deeds executed by her father this has been taken as disability which per se is arbitrary and has no basis. The same reasoning was adopted by the Waqf Tribunal in rejecting the application for injunction.

20. This Court is satisfied that the order passed by the Waqf Board as well as order passed by the Waqf Tribunal are patently erroneous and cannot be sustained.

21. Since the Waqf Board is required to appoint a new Mutwalli as the earlier committee's term expired in the year 2024, hence no formal adjudication of the 7 CLRE No. 50 of 2023 order passed by the Board or the Tribunal is required.

22. Thus in the changed circumstances, this Court refrains from making any observation and leaving all issues open to be considered by the Waqf Board regarding the appointment of Mutwalli/Committee but with a rider that the same would be done in accordance with law. There can be no opaque procedure for appointment of Mutwalli. Since the revisionist also claims that she belongs to the family of waqifs, her candidature would be considered afresh and the disability that her father had executed any lease deeds per se cannot be held against her. Any other person belonging to the family of waqifs can be considered and for that purpose there should be proper circulation so that any right minded person either belonging to the family of the waqifs or a person professing Islam and having sterling credentials can also be considered and this can only be done if a transparent and appropriate procedure inviting proper application by circulation or being posted at a conspicuous part in the office of the Waqf Board and notice to the persons concerned is adopted while taking into consideration all facts for appointment of the Mutwalli/Committee, as the case may be.

23. In light of the aforesaid, the instant revision is disposed of and the impugned order dated 14.03.2022 passed by the Waqf Tribunal and the order dated 09.09.2022 in so far as it rejected the consideration of the revisionist as Mutwalli will not be taken into consideration while considering the case/claim of the revisionist for being appointed as a Mutwalli or member of the Committee for purpose of managing the Waqf in question.

24. The Waqf Board shall earnestly take up the matter and after affording and adequate opportunity and adopting a due transparent procedure shall appoint a Mutwalli/Committee for the waqf taking into consideration not only the recitals contained in the waqf deed but also the Waqf Act the and Rules framed thereunder. The entire exercise shall be completed within a period of eight weeks from the date of copy of this order is placed before the Waqf Board concerned. 8 CLRE No. 50 of 2023

25. Since term of Committee is over and the order dated 09.09.2022 has outlived its purpose, hence the order is not being formally set aside; rather as noticed in the preceding paragraphs it will not be considered against the revisionist. She shall be entitled to file a fresh application, which shall be considered in accordance with law in light of the observation made hereinabove. December 9, 2025 Renu/- (Jaspreet Singh,J.) ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

3. Submission of learned counsel for the revisionist is that the Waqf Mir Azhar Husain, registration no.I-66, situate at Shikohabad, District Firozabad was created by means of the waqf deed executed by the waqifs on 24.01.1934. It is urged that there is clear stipulation in the waqf deed that the Mutwalli would be appointed from the family of the waqifs and it is in furtherance thereof that the father of the revisionist, namely, late Majid Husain had been acting as Mutwalli of the waqf in question for several decades. Upon the death of Majid Husain in the year 2008, the revisionist being the daughter and belonging to the family of the waqifs made an application before the Waqf Board seeking 2 CLRE No. 50 of 2023 her appointment as Mutwalli of the Waqf.

4. In the aforesaid background, one Syed Manzar Husain Rizvi, who also claims to belong to the family of waqifs raised certain issues regarding misappropriation and alienation of the waqf property and also brought the same to the notice of the Waqf Board by moving certain applications. However, no action was taken on the said applications which prompted Syed Manzar Husain Rizvi to invoke the writ jurisdiction of this Court by means of Writ-C No.17147 of 2019 (Syed Manzar Husain Rizvi vs. Shiya Central Board of Waqf and others). The Division Bench of this Court at Allahabad while considering the petition filed by Syed Manzar Husain Rizvi disposed of it with a direction to the Waqf Board to dispose of the application which had been moved by Syed Manzar Husain Rizvi before the Waqf Board.

5. It is also relevant to notice that while the said applications were pending before the Waqf Board and at that point of time the Waqf Board realized that since the earlier Mutwalli namely, Majid Husain had expired, and accordingly it was the time to appoint Mutwalli for the said Waqf. At this relevant time, the Waqf Board had two persons before it, one the revisionist who had already moved an application for her to be considered as appointment of Mutwalli and Syed Manzar Husain Rizvi the person who had invoked the writ jurisdiction of the Court and made certain applications alleging misappropriation and alienation of the waqf property. It is considering the aforesaid two applications that the Waqf Board vide order dated 09.09.2022 rejected the application of the revisionist holding that her father late Majid Husain had alienated the waqf property/created third party right by executing lease deeds in perpetuity and for the said reasons she was not found fit to be considered as the Mutwalli. The only other application was that of Syed Manzar Husain Rizvi, accordingly he along with few other members allegedly from the family of the waqfis and other members appointed a Committee of twelve persons to manage the affairs of the waqf in question for a period of two years.

6. This order dated 09.09.2022 was assailed by the revisionist before the Waqf Tribunal and by means of order impugned dated 14.03.2023 the 3 CLRE No. 50 of 2023 application for injunction moved by the revisionist was rejected which prompted the revisionist to approach this Court.

7. Two fold submission has been made by learned counsel for the revisionist; (i) that there is no settled or transparent and fair procedure prescribed by the Board to determine the fitness of a person to be appointed as Mutwalli of the Waqf. Since office of Mutwalli is not heritable, hence any disability incurred by erstwhile Mutwalli cannot be a ground to non-suit another person merely because the person applying was the successor of the said Mutwalli. (ii) the other ground raised is that in absence of any clear procedure merely selecting one out of many purely on discretionary basis without there being any material before the Waqf Board, gives unbridled powers to the Waqf Board to misuse so as to appoint any person as Mutwalli wherein the Waqf Board may have an interest.

8. Elaborating the aforesaid submission, it has been urged that once Majid Husain the erstwhile Mutwalli had left for his heavenly abode then any act which was detrimental to the interest of the waqf could not be taken as a ground to non-suit the revisionist merely because she happened to be the daughter of the erstwhile Mutwalli. It is also urged that the person who had moved an application before the Waqf Board and had also filed the writ petition allegedly claims to be from the family of the waqifs but he also did not raise any issue regarding any alleged act of misdeed relating to Majid Husain prior to the year 2018. The allegation against late Majid Husain was relating to execution of certain lease deeds in perpetuity sometime between the year 1977 till 1980. Since 1980 till 2018 there was never any dispute nor was the said act ever called into question either by the Waqf Board or by any other alleged family members of the waqifs. Moreover, Majid Husain had expired in 2008, and until 2018, neither did the Waqf Board awaken from their slumber to ascertain whether a Mutawalli needed to be appointed, nor did the other family members of the waqifs raise this issue.

9. In the given backdrop, once the revisionist had moved an application before the Waqf Board which was to be decided on its own merit, the manner 4 CLRE No. 50 of 2023 in which it was considered and the claim of the revisionist for being considered as Mutwallii having been rejected by the Waqf Board solely on the ground that she was daughter of Majid Husain who had executed certain lease deeds somewhere between 1977-1980 and the revisionist did not inform this to the Waqf Board is purely arbitrarily, has no basis and such an illegal order could not be passed. This also indicates that the Waqf Board adopts the complete opaque process which is arbitrary too in deciding who should be appointed as the Mutwalli. In such circumstances, the Waqf Tribunal also erred in failing to consider this aspect of the matter which has rendered the order passed by the Waqf Tribunal bad and susceptible to judicial intervention.

10. Sri Syed Aftab Ahmad learned counsel for Waqf Board uptil now had not filed his counter affidavit. It is only at a later stage when the Court has passed a strict order imposing cost that the counter affidavit was filed and significantly though the same has been filed in the registry but till date it is not on record as it has been informed that there are certain defects. However, the Court has the benefit of perusing through the said counter as the hard copy has been provided by Sri Syed Aftab Ahmad, learned counsel for Waqf Board.

11. Primarily the stand taken in the counter of the Board is that in accordance with the settled practice, the Committee was constituted for a period of two years. It has further been informed that since period of two years of the respondent no.4/Committee has already expired in the year 2024, however, no new Mutwalli has been appointed, though two persons have moved applications regarding their appointment, one by Syed Manzar Husain Rizvi who was the person in whose favour the last Committee had been constituted and the other has been moved by one Mutahir Hussain.

12. It has further been stated that till date no new Mutwalli has been appointed. A specific query was put to Sri Syed Aftab Ahmad as to what are the rules and as to how the Waqf Board comes to know that who is the person with credentials who can be appointed as the Mutwalli. It was also put to him to indicate what procedure is adopted while appointing a Mutwalli. 5 CLRE No. 50 of 2023

13. On the basis of instructions and after calling for the records, which have been made available for perusal before this Court by Sri Zafar Sajjad, Legal Assistant, Sri Syed Aftab Ahmad, learned counsel for the Waqf Board could not dispute the fact that even where any vacancy in the waqf arises there is no methodology of advertising the same or informing the public at large of the same. As and when some applications come the same is considered by the Board and considering the recitals of the waqf deed/provisions contained in Section 63 of the Waqf Act 1995 an appropriate decision is taken either to appoint a sole Mutwalli or a Committee. It is in the aforesaid background, it has been urged that since Syed Manzar Husain Rizvi had moved certain applications and there was a direction of the High Court to consider and dispose of the same and at that point of time the only other applicant before the Waqf Board was the revisionist, hence since her father was found to have misappropriated the waqf property, hence she was not found appropriate and the only other choice was that of Syed Manzar Husain Rizvi and therefore a committee of twelve members including him was constituted.

14. Sri Syed Aftab Ahmad, learned counsel for Waqf Board could not dispute the fact that as of today the term of the committee which was constituted in the year 2022 has already come to an end in the year 2024 and since then there is no proceedings pending nor a new Mutwalli has been appointed.

15. Sri Ruved Kamaal Kidwai, learned counsel for respondent no.4 has only made submissions in tandem and supporting the case of the Board since the Committee appointed by the Board for a period of two years and since the term has expired and no further Mutwalli/Committee has been constituted accordingly the respondent no.4 submits that he would ultimately abide by the outcome of the revision or the order to be passed by the Board relating to the management of the Waqf. However, Sri Kidwai could not dispute the fact that after the termination of two years period for which that the Committee was constituted, Syed Manzar Husain Rizvi has made an application seeking his reappointment as the sole Mutwalli and the same is engaging the attention of the Waqf Board. 6 CLRE No. 50 of 2023

16. Having heard the learned counsel for the parties and upon perusal of the material on record, this Court finds that as far as the issue whether the revisionist was rightly or incorrectly discarded from being considered as Mutwalli is one which is to be considered, and the other issue that arises as to whether there could be any substantive relief granted to the revisionist since the period of two years for the respondent no.4/committee has already expired in the year 2024.

17. Keeping the aforesaid issues in mind and considering the material available on record, this Court finds that the order passed by the Waqf Board which was challenged before the Waqf Tribunal who rejected the injunction application of the revisionist. However, the order of the Board rejecting the application of the revisionist on the ground that she was the daughter of Majid Husain who allegedly had executed certain lease deeds putting the waqf property to peril, cannot be a ground extended to discard the application of the revisionist.

18. It may be relevant to state that the office of Mutwalli is an office which is neither heritable nor can be made transferrable by any testamentary or non- testamentary instrument. In the given circumstances, even if at all the father of the revisionist Majid Husain had executed any lease deed or disposed of any property of the waqf that in itself cannot be held against the revisionist per se.

19. From the perusal of the order passed by the Waqf Board, it would indicate that since the revisionist did not inform the Waqf Board regarding the lease deeds executed by her father this has been taken as disability which per se is arbitrary and has no basis. The same reasoning was adopted by the Waqf Tribunal in rejecting the application for injunction.

20. This Court is satisfied that the order passed by the Waqf Board as well as order passed by the Waqf Tribunal are patently erroneous and cannot be sustained.

21. Since the Waqf Board is required to appoint a new Mutwalli as the earlier committee's term expired in the year 2024, hence no formal adjudication of the 7 CLRE No. 50 of 2023 order passed by the Board or the Tribunal is required.

22. Thus in the changed circumstances, this Court refrains from making any observation and leaving all issues open to be considered by the Waqf Board regarding the appointment of Mutwalli/Committee but with a rider that the same would be done in accordance with law. There can be no opaque procedure for appointment of Mutwalli. Since the revisionist also claims that she belongs to the family of waqifs, her candidature would be considered afresh and the disability that her father had executed any lease deeds per se cannot be held against her. Any other person belonging to the family of waqifs can be considered and for that purpose there should be proper circulation so that any right minded person either belonging to the family of the waqifs or a person professing Islam and having sterling credentials can also be considered and this can only be done if a transparent and appropriate procedure inviting proper application by circulation or being posted at a conspicuous part in the office of the Waqf Board and notice to the persons concerned is adopted while taking into consideration all facts for appointment of the Mutwalli/Committee, as the case may be.

23. In light of the aforesaid, the instant revision is disposed of and the impugned order dated 14.03.2022 passed by the Waqf Tribunal and the order dated 09.09.2022 in so far as it rejected the consideration of the revisionist as Mutwalli will not be taken into consideration while considering the case/claim of the revisionist for being appointed as a Mutwalli or member of the Committee for purpose of managing the Waqf in question.

24. The Waqf Board shall earnestly take up the matter and after affording and adequate opportunity and adopting a due transparent procedure shall appoint a Mutwalli/Committee for the waqf taking into consideration not only the recitals contained in the waqf deed but also the Waqf Act the and Rules framed thereunder. The entire exercise shall be completed within a period of eight weeks from the date of copy of this order is placed before the Waqf Board concerned. 8 CLRE No. 50 of 2023

25. Since term of Committee is over and the order dated 09.09.2022 has outlived its purpose, hence the order is not being formally set aside; rather as noticed in the preceding paragraphs it will not be considered against the revisionist. She shall be entitled to file a fresh application, which shall be considered in accordance with law in light of the observation made hereinabove. December 9, 2025 Renu/- (Jaspreet Singh,J.) ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench