Asra Khan Thru. Power Of Attorney Holder Mohd. Aleem Khan v. U.P. Sunni Central Waqf Board Lko. Thru. Chairman And

petitioner, Shri Farhan Habib, learned counsel who has filed Power on behalf of Opposite Parties No. 1 to 3 and Shri Faizal Ahmad Khan, learned counsel appearing on behalf of Opposite Party No. 4, the private respondent.

2. This petition has been filed with the following prayers:- "(a.) Issue a writ, order or direction in the nature of certiorari to quash order dated 07.08.2025 passed by the U.P. Sunni Central Waqf Board and the consequential office memorandum dated 12.08.2025 issued by the Assistant Secretary, U.P. Sunni Central Waqf Board as contained in Annexure No. 1 and 2 respectively to the writ petition. (b.) Issue a writ, order or direction in the nature of mandamus commanding the U.P. Sunni Central Waqf Board to not interfere in the functioning of the petitioner as mutawalli of Waqf Khan Bahadur Shahenshah Wali Khan, Waqf No. 63-A-Bareilly, Qura No. 2 on the strength of the impugned orders."

3. It has been submitted by learned counsel for the petitioner that the petitioner's great grandfather, Khan Bahadur Malik Shahenshah Wali Khan, had created a waqf-alal-aulad by means of a deed on 24.07.1941 which was registered in office of the Sub-Registrar as Waqf No. 63-A in Bareilly by the U.P. Sunni Central Waqf Board on 30.08.1941. After the death of the great grandfather, his son Malik Sartaj Wali Khan i.e. the 2 WRIC No. 9221 of 2025 grandfather of the petitioner, became the mutwalli. He executed and registered a Tauliyatnama on 24.03.1988 dividing the properties of the Waqf in three separate parts i.e. Quras, which he placed under the management of his three sons separately as mutwallis. One of the parts i.e. Qura No. 2 was given to the middle son of Malik Sartaj Wali Khan i.e. Akram Sartaj Wali Khan, father of the petitioner. He died unfortunately on 03.12.2008 leaving behind his widow, Smt. Farha Khan, and three daughters i.e. the petitioner, Asra Khan, Jozzy Khan & Zafira Khan, as his heirs.

4. The grandfather of the petitioner i.e. Malik Sartaj Wali Khan executed and registered a Tauliyatnama dated 24.04.2009 and nominated the petitioner as mutwalli of Qura No. 2 in place of her father, and since she was a minor, such appointment was made under the guardianship of her mother Smt. Farha Khan. On 22.07.2010, the Board accepted the resignation of Malik Sartaj Wali Khan, the grandfather of the petitioner, and also accepted the petitioner under the guardianship of her mother, Smt. Farha Khan, as mutwalli of Qura No. 2. An Office Memorandum was issued by the Chief Executive Officer of the Board in compliance of such order on 29.07.2010. Further, Late Malik Sartaj Wali Khan, grandfather of the petitioner, without being so empowered under the original waqf deed dated 24.07.1941, executed another deed on

24.05.2011 removing the petitioner from the office of mutwalli of Qura No. 2 by registering a cancellation deed and a fresh Tauliyatnama was executed in respect of Qura No. 2 on 28.05.2011 in favour of the two uncles of the petitioner namely, Mukarram Sartaj Wali Khan & Moazzam Sartaj Wali Khan. The grandfather of the petitioner, Late Malik Sartaj Wali Khan, submitted an application before the Board on 21.09.2011 seeking appointment of Mukarram Sartaj Wali Khan and Moazzam Sartaj Wali Khan as mutwalli of Qura No. 2.

5. Further, on 07.09.2012, the Chairman of the Board without affording an opportunity of hearing to the petitioner and her mother, allowed the application made by her grandfather and appointed her uncles, Mukarram Sartaj Wali Khan and Moazzam Sartaj Wali Khan, as mutwalli of Qura No. 2 of the waqf. The petitioner challenged such order in Writ C No. 28472 of 2013 before this Court. The writ was allowed and the order 3 WRIC No. 9221 of 2025 dated 07.09.2012 was quashed on 29.08.2017 on grounds of violation of principles of natural justice. During pendency of the writ petition, the grandfather of the petitioner, Late Malik Sartaj Wali Khan, died on

22.12.2016. In compliance of the order passed by this Court on

29.08.2017, the Assistant Secretary of the Board issued an Office Memorandum dated 12.10.2017 appointing the petitioner as mutwalli of Qura No. 2 of the waqf. An application for modification of the order dated 29.08.2017 passed by this Court in Writ C No. 28472 of 2013 was filed by the Uncle of the petitioner, which application was disposed of with a direction to the Board to pass a fresh order on the pending application of the Uncle i.e. Moazzam Sartaj Wali Khan, the opposite party no. 4.

6. On 23.06.2018, the Board accepted the claim of the Opposite Party No. 4 i.e. Moazzam Sartaj Wali Khan holding that cancellation deed dated

24.05.2011 and Tauliyatnama dated 28.05.2011 made out by the grandfather of the petitioner did no suffer from any legal infirmity. The petitioner was heard but her contention was neither recorded nor dealt with in respect of the right of Malik Sartaj Wali Khan, the grandfather, to cancel the nomination of mutwalli, once he has made such nomination. In furtherance of such order passed by the Board, the Opposite Party No. 4 was appointed mutwalli of Qura No. 2 vide Office Memorandum dated

29.06.2018.

7. The petitioner assailed the order dated 23.06.2018 before this Court in Writ C No. 27565 of 2018 which was dismissed vide order dated

20.08.2018 on the ground of availability of alternative remedy under Section 83 of the Waqf Act, 1995. The petitioner then filed a Waqf Case No. 8 of 2019 before the Waqf Tribunal, U.P., Lucknow assailing the order passed by the Board on 23.06.2018, and the Office Memorandum dated 29.06.2018 recognizing the Opposite Party No. 4 as mutwalli of Qura No. 2 of the Waqf No. 63-A. During the pendency of the reference Waqf Case No. 08 of 2019, the application of the Opposite Party No. 4 continued to be looked into by the Board and a report was summoned by the Board from the Circle Inspector of Bareilly, and on the basis of such report, the Board itself stayed the operation of its own order dated

23.06.2018. The petitioner as well as the Opposite Party No. 4 were 4 WRIC No. 9221 of 2025 heard, and the claim of the petitioner was upheld and the order dated

23.06.2018, as also, the Office Memorandum dated 29.06.2018 were recalled on 28.01.2025.

8. The Opposite Party No. 4 thereafter, made an application on

08.04.2025 seeking his appointment as mutwalli of Qura No. 2 which application was considered and decided by the order impugned without giving any opportunity of hearing to the petitioner only on the basis of some legal opinion given by the Standing Counsel of the Board. It has been submitted by the Counsel for the petitioner that not only was the order impugned passed by the Board without affording any opportunity of hearing to the petitioner but the Board was not vested with any jurisdiction to review or recall its order as per the Waqf Act of 1995. Once it had recognized the petitioner as mutwalli, it could not have cancelled its order and passed an order in favour of the Respondent No. 4.

9. Shri Mohd. Faizal Ahmad Khan, learned Counsel who appears on behalf of the Respondent No. 4, on the basis of Section 32 (1) of the Waqf Act, 1995 has argued that the Board has to act in conformity with the directions of the Waaqif, the purposes of the waqf and any usage of custom of the Waqf sanctioned by the School of Muslim Law to which the Waqf belongs, in this case, the grandfather of the petitioner who was the mutwalli appointed by the Waaqif who is the great grandfather i.e. Khan Bahadur Malik Shahenshah Wali Khan. The waaqif (great grandfather) had given the power to the mutwalli to appoint his successor. The mutwalli retained the power even after appointment of the petitioner through her mother as guardian, as mutwalli of Qura No. 2, and he cancelled such nomination and nominated the Opposite Party No. 4 as mutwalli instead. The Waqf Board only respected the wishes of the mutwalli, Late Malik Sartaj Wali Khan.

10. We find from a perusal of the order impugned that it has been passed without giving any opportunity of hearing to the petitioner. This fact could not be denied by the Counsel appearing for the Respondents No. 1 to 3, as also, the Counsel appearing for Respondent No. 4, as, it is not apparent from bare perusal of such order that any opportunity was in fact given to the petitioner. 5 WRIC No. 9221 of 2025

11. Having considered the facts and circumstances of this case, we set aside the impugned order dated 07.08.2025 and remand the matter back to the Board to consider afresh after affording opportunity of hearing to the petitioner as well. Since, the petitioner has raised a ground regarding the power of the Board to recall / review its order, we leave the ground open for the petitioner to raise before the Board during the fresh hearing, which needs to be given to both the parties by the Board. Let the matter be decided afresh within a period of three months from the date of presentation of a certified copy of this order.

12. Till fresh order is passed by the Waqf Board, the Opposite Party No. 4 may not interfere in the functioning of the petitioner as mutwalli of Qura No. 2, however, the petitioner shall not have any right to alienate the property of Qura No. 2 in any manner and create any third party rights.

13. The writ petition is allowed in the aforesaid terms. September 18, 2025 Lokesh Kumar (Manjive Shukla,J.) (Mrs. Sangeeta Chandra,J.) LOKESH KUMAR LOKESH KUMAR High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

petitioner, Shri Farhan Habib, learned counsel who has filed Power on behalf of Opposite Parties No. 1 to 3 and Shri Faizal Ahmad Khan, learned counsel appearing on behalf of Opposite Party No. 4, the private respondent.

2. This petition has been filed with the following prayers:- "(a.) Issue a writ, order or direction in the nature of certiorari to quash order dated 07.08.2025 passed by the U.P. Sunni Central Waqf Board and the consequential office memorandum dated 12.08.2025 issued by the Assistant Secretary, U.P. Sunni Central Waqf Board as contained in Annexure No. 1 and 2 respectively to the writ petition. (b.) Issue a writ, order or direction in the nature of mandamus commanding the U.P. Sunni Central Waqf Board to not interfere in the functioning of the petitioner as mutawalli of Waqf Khan Bahadur Shahenshah Wali Khan, Waqf No. 63-A-Bareilly, Qura No. 2 on the strength of the impugned orders."

3. It has been submitted by learned counsel for the petitioner that the petitioner's great grandfather, Khan Bahadur Malik Shahenshah Wali Khan, had created a waqf-alal-aulad by means of a deed on 24.07.1941 which was registered in office of the Sub-Registrar as Waqf No. 63-A in Bareilly by the U.P. Sunni Central Waqf Board on 30.08.1941. After the death of the great grandfather, his son Malik Sartaj Wali Khan i.e. the 2 WRIC No. 9221 of 2025 grandfather of the petitioner, became the mutwalli. He executed and registered a Tauliyatnama on 24.03.1988 dividing the properties of the Waqf in three separate parts i.e. Quras, which he placed under the management of his three sons separately as mutwallis. One of the parts i.e. Qura No. 2 was given to the middle son of Malik Sartaj Wali Khan i.e. Akram Sartaj Wali Khan, father of the petitioner. He died unfortunately on 03.12.2008 leaving behind his widow, Smt. Farha Khan, and three daughters i.e. the petitioner, Asra Khan, Jozzy Khan & Zafira Khan, as his heirs.

4. The grandfather of the petitioner i.e. Malik Sartaj Wali Khan executed and registered a Tauliyatnama dated 24.04.2009 and nominated the petitioner as mutwalli of Qura No. 2 in place of her father, and since she was a minor, such appointment was made under the guardianship of her mother Smt. Farha Khan. On 22.07.2010, the Board accepted the resignation of Malik Sartaj Wali Khan, the grandfather of the petitioner, and also accepted the petitioner under the guardianship of her mother, Smt. Farha Khan, as mutwalli of Qura No. 2. An Office Memorandum was issued by the Chief Executive Officer of the Board in compliance of such order on 29.07.2010. Further, Late Malik Sartaj Wali Khan, grandfather of the petitioner, without being so empowered under the original waqf deed dated 24.07.1941, executed another deed on

24.05.2011 removing the petitioner from the office of mutwalli of Qura No. 2 by registering a cancellation deed and a fresh Tauliyatnama was executed in respect of Qura No. 2 on 28.05.2011 in favour of the two uncles of the petitioner namely, Mukarram Sartaj Wali Khan & Moazzam Sartaj Wali Khan. The grandfather of the petitioner, Late Malik Sartaj Wali Khan, submitted an application before the Board on 21.09.2011 seeking appointment of Mukarram Sartaj Wali Khan and Moazzam Sartaj Wali Khan as mutwalli of Qura No. 2.

5. Further, on 07.09.2012, the Chairman of the Board without affording an opportunity of hearing to the petitioner and her mother, allowed the application made by her grandfather and appointed her uncles, Mukarram Sartaj Wali Khan and Moazzam Sartaj Wali Khan, as mutwalli of Qura No. 2 of the waqf. The petitioner challenged such order in Writ C No. 28472 of 2013 before this Court. The writ was allowed and the order 3 WRIC No. 9221 of 2025 dated 07.09.2012 was quashed on 29.08.2017 on grounds of violation of principles of natural justice. During pendency of the writ petition, the grandfather of the petitioner, Late Malik Sartaj Wali Khan, died on

22.12.2016. In compliance of the order passed by this Court on

29.08.2017, the Assistant Secretary of the Board issued an Office Memorandum dated 12.10.2017 appointing the petitioner as mutwalli of Qura No. 2 of the waqf. An application for modification of the order dated 29.08.2017 passed by this Court in Writ C No. 28472 of 2013 was filed by the Uncle of the petitioner, which application was disposed of with a direction to the Board to pass a fresh order on the pending application of the Uncle i.e. Moazzam Sartaj Wali Khan, the opposite party no. 4.

6. On 23.06.2018, the Board accepted the claim of the Opposite Party No. 4 i.e. Moazzam Sartaj Wali Khan holding that cancellation deed dated

24.05.2011 and Tauliyatnama dated 28.05.2011 made out by the grandfather of the petitioner did no suffer from any legal infirmity. The petitioner was heard but her contention was neither recorded nor dealt with in respect of the right of Malik Sartaj Wali Khan, the grandfather, to cancel the nomination of mutwalli, once he has made such nomination. In furtherance of such order passed by the Board, the Opposite Party No. 4 was appointed mutwalli of Qura No. 2 vide Office Memorandum dated

29.06.2018.

7. The petitioner assailed the order dated 23.06.2018 before this Court in Writ C No. 27565 of 2018 which was dismissed vide order dated

20.08.2018 on the ground of availability of alternative remedy under Section 83 of the Waqf Act, 1995. The petitioner then filed a Waqf Case No. 8 of 2019 before the Waqf Tribunal, U.P., Lucknow assailing the order passed by the Board on 23.06.2018, and the Office Memorandum dated 29.06.2018 recognizing the Opposite Party No. 4 as mutwalli of Qura No. 2 of the Waqf No. 63-A. During the pendency of the reference Waqf Case No. 08 of 2019, the application of the Opposite Party No. 4 continued to be looked into by the Board and a report was summoned by the Board from the Circle Inspector of Bareilly, and on the basis of such report, the Board itself stayed the operation of its own order dated

23.06.2018. The petitioner as well as the Opposite Party No. 4 were 4 WRIC No. 9221 of 2025 heard, and the claim of the petitioner was upheld and the order dated

23.06.2018, as also, the Office Memorandum dated 29.06.2018 were recalled on 28.01.2025.

8. The Opposite Party No. 4 thereafter, made an application on

08.04.2025 seeking his appointment as mutwalli of Qura No. 2 which application was considered and decided by the order impugned without giving any opportunity of hearing to the petitioner only on the basis of some legal opinion given by the Standing Counsel of the Board. It has been submitted by the Counsel for the petitioner that not only was the order impugned passed by the Board without affording any opportunity of hearing to the petitioner but the Board was not vested with any jurisdiction to review or recall its order as per the Waqf Act of 1995. Once it had recognized the petitioner as mutwalli, it could not have cancelled its order and passed an order in favour of the Respondent No. 4.

9. Shri Mohd. Faizal Ahmad Khan, learned Counsel who appears on behalf of the Respondent No. 4, on the basis of Section 32 (1) of the Waqf Act, 1995 has argued that the Board has to act in conformity with the directions of the Waaqif, the purposes of the waqf and any usage of custom of the Waqf sanctioned by the School of Muslim Law to which the Waqf belongs, in this case, the grandfather of the petitioner who was the mutwalli appointed by the Waaqif who is the great grandfather i.e. Khan Bahadur Malik Shahenshah Wali Khan. The waaqif (great grandfather) had given the power to the mutwalli to appoint his successor. The mutwalli retained the power even after appointment of the petitioner through her mother as guardian, as mutwalli of Qura No. 2, and he cancelled such nomination and nominated the Opposite Party No. 4 as mutwalli instead. The Waqf Board only respected the wishes of the mutwalli, Late Malik Sartaj Wali Khan.

10. We find from a perusal of the order impugned that it has been passed without giving any opportunity of hearing to the petitioner. This fact could not be denied by the Counsel appearing for the Respondents No. 1 to 3, as also, the Counsel appearing for Respondent No. 4, as, it is not apparent from bare perusal of such order that any opportunity was in fact given to the petitioner. 5 WRIC No. 9221 of 2025

11. Having considered the facts and circumstances of this case, we set aside the impugned order dated 07.08.2025 and remand the matter back to the Board to consider afresh after affording opportunity of hearing to the petitioner as well. Since, the petitioner has raised a ground regarding the power of the Board to recall / review its order, we leave the ground open for the petitioner to raise before the Board during the fresh hearing, which needs to be given to both the parties by the Board. Let the matter be decided afresh within a period of three months from the date of presentation of a certified copy of this order.

12. Till fresh order is passed by the Waqf Board, the Opposite Party No. 4 may not interfere in the functioning of the petitioner as mutwalli of Qura No. 2, however, the petitioner shall not have any right to alienate the property of Qura No. 2 in any manner and create any third party rights.

13. The writ petition is allowed in the aforesaid terms. September 18, 2025 Lokesh Kumar (Manjive Shukla,J.) (Mrs. Sangeeta Chandra,J.) LOKESH KUMAR LOKESH KUMAR High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench