V.K. Bist, J.
1. Instant petition has been filed by the petitioner challenging the order dated 24.02.2010 passed by District Judge, Dehradun in Misc. Case No. 33 of 2009. The petitioner has further prayed to issue a writ of mandamus permitting the petitioner for selling the property no.11A, Municipal Road, Dehradun and Municipal No. 46/31/30 situate at Acharya Narender Deo Road, Dehradun and reinvesting in other property as per Mohammedan Law.
2. Briefly stated that that the property in question was inherited by the petitioner from his ancestor late Bibi Benazir Jan w/o Sardar Mohammad Yusuf Khan, who executed Waqf-al-al-aulad deed on 26thJune, 1934. Late Bibi Benazir Jan had three sons, namely, Sardar Amin Ullah Khan, Sardar Sher Ahmad Khan and Sardar Abdul Qadir Khan. Sardar Abdul Qadir Khan left two sons as successor, namely Sardar Abdullah Khan (respondent no.2) and Sardar Abdul Wahid Khan (petitioner). By filing Misc. Case No. 33 of 2009 before the District Judge, Dehradun the petitioner sought permission to sell the property in question and invest the same in other property as per requirement of Waqf deed dated 26th June, 1934. It is asserted that pursuant to order dated 11.09.1957, late Bibi Benazir Jan entered into memorandum of understanding dated 25th November, 1988. Before the Court below, the petitioner filed Waqf Deed dated 26th June, 1934, order dated 11.09.1957 and copy of compromise in Suit No. 53 of 1956. Notice was published in the newspaper. The respondent no.2 filed his reply on 28.05.2009/02.07.2009 in the misc. case stating that he has no objection. The Uttarakhand Waqf Board, Dehradun as well as Caption S. Amanullah Khan also moved an application under Order 1 Rule 10 read with Section 151 C.P.C., against which the petitioner filed his objection with the contention that the Central Waqf Act, 1995 excludes from its ambit private Waqfs, which do not fall under the authority and control of administrative scheme provided under the said Act. However, the learned District Judge, Dehradun without entering into the merits of the case, dismissed the petition of the petitioner holding that the same was not maintainable on the ground of jurisdiction.
3. Learned Senior Advocate for the petitioner submitted that petitioner had moved a misc. application Case no. 33 of 2009 in the court of District Judge Dehradun under Section 207 of Mullas Principle of Mohammedan law to obtain permission to sell and reinvest (exchange) the portion of the Waqf al-al-auld property under his management (Mutawalliship), as Clause 7 of the al-al-aulad deed expressly empowers the Mutawalli to exchange the property with another property.
4. English translation of Clause-7 is reproduced as under.3
âAny Mutawalli of the Waqf shall at no time, have the right to, wholly or partly, mortgage, lease or alienate the subject property of the Waqf. However, they can, in the eventuality of profit, exchange the subject property with another property. Hence this Waqf naama al-nafas al-al-aulad which will remain forever and for perpetuityâ.
5. Learned Senior Advocate for the petitioner contended that the motive for which the said al-al-aulad was constituted is also for the benefit and advantage of the Waqifs progeny. The same is not being fulfilled under the given circumstances of the petitioner. Hence the present case is in total conformity with the provision of law under Section 207 of Mullas Mohammedan law, the motive of the al-al-aulad and the provisions under paragraph 7 of the Waqf deed. He contended that the core issue before this Court is whether the Waqf Act, 1995 is applicable to the Waqf al-al-aulad in question. It is an admitted fact of the case that the property in question is an al-al-aulad and the only Section in the entire Waqf Act 1995 which deals with al-al-aulad is Section {3(r) iii} which provides that âWaqf means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable and includes a Waqf-al-al-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable. Further, the Waqf Act 43 of 1995 will have application to Waqfs al-al-aulad or Waqfs created for private and secular purposes to the extent of the provisions made therein for religious and charitable purposes. The definition of âWaqfâ in section 3 (r) of the Waqf Act, 1995 also indicates that the Legislature with deliberate intent kept private Waqfs out of the ambit of the said Act and the administrate control of the authorities appointed or constituted under the Act, except to the extent that provision was made therein for religious and charitable purposes. He further stated that Section 2 of the Waqf Act has to be read in accordance with the definition of Waqf, which would read that the Act applies to all Waqf [dedicated for religious charitable purpose] whether created before or after commencement of the Act.
6. Learned Senior Advocate for the petitioner submitted that it has been held by Allahabad High Court in Civil Revision No. 46 of 2008 Gandhi Ashram Anta Ghar vs. Kr. Abdul Wasi Khan and others dated 26.2.2008 that âSection 85 of the Waqf Act creates bar of jurisdiction of Civil Court in respect of any disputed question and other matter relating to Waqf property or other matter, which is liable to be determined by the Tribunal, appointed under Section 83 of the Waqf Act. There can be no dispute about the fact that mischief of Section 85 of the Act only come into play in respect of Waqf or Waqf property and unless it is Waqf, covered under the definition, as contained in the Act, the provisions of Section 85 of the Act would not apply. The only allegation as contained in para-1 of the plaint is that property is Waqf al-al-aulad. There is absolutely no detail with respect to property being dedicated for any purpose pious, religious or charitable so as to include the Waqf-al-al-aulad in the definition of Waqf. While considering the rejection of the plaint under Order VII Rule 11 of the Code only the plaint allegations are to be seen. In the absence of any such allegations, it cannot be said that suit property is Waqf property covered under the definition of Waqf Act and as such, mischief of Section 85 of the Act will not come into play and plaint is not liable to be rejected. Learned Senior Advocate for the petitioner then submitted that in Special Appeal No. 120 of 2009 dated 01.07.2009, this High Court has held that âA bare look at Section 85 of the Waqf Act 43 of 1995 informs us that the bar, if any, applies to a person filing a suit or legal proceeding in a Civil Court. Approaching the High Court by invoking its extraordinary writ jurisdiction under Article 226 of the Constitution of India is not akin to a person filing a civil suit or a legal proceeding in a Civil Court. By now it has been well established that invoking the jurisdiction of a Civil Court under Section 9 CPC is different and distinct as compared to approaching the High Court by invoking its extraordinary jurisdiction under Articles 226 or 227 of the Constitution of India. The extraordinary writ jurisdiction of this Court is saved and it being plenary in nature actually cannot be curtailed or taken away in any Statute. The ambit and the amplitude of this jurisdiction cannot be curtailed by a statutory provision.â
7. Learned Senior Advocate for the petitioner then contended that to create a private Waqf al-al-aulad it is mandatory to vest the title of the property in the almighty. But this vesting is only in theory and the property practically vests in the beneficiaries for whom the Waqf al-al-aulad has been created. He submitted that in the case of Thakur Mohd. Ismail vs. Thakur Sabir Ali A.I.R. 1962 S.C 1722, the Honble Supreme Court has held that âthe Waqf al-al-aulad in the instant case, though in theory it vested the property in God Almighty, was not for charitable or religious purposes. It must therefore, be treated as a gift to God Almighty in which, however, for generations to come God Almighty would have no beneficial ownership nor the Waqf validating Act of 1913 make any difference to this position. That Act specifically provides by Section 3 that a Muslim can lawfully create a Waqf-al-al-aulad. This however, does not mean that the purpose of such a Waqf is a religious or charitable purpose.â
8. Mr. A. Rab, contended that the sole objective of the Waqf-al-al-aulad in question is âupbringing, welfare, and to safeguard the future of the waqifs descendantsâ that by approaching the Court to seek permission for selling and reinvesting the said Waqf is totally in accordance with the objective of the Waqf. He submitted that it has been observed by the Madras High Court in A.I.R. 1964 MADRAS 18(V 15 C-7) that âA vesting of power of alienation by way of exchange or sale under the document creating Waqf is not inconsistent with the document constituting a Waqf under the Muslim law. A dedication to a Waqf will not cease to be such merely because a power is reserved in the Mutavalli to exchange the Waqf lands for other lands or sell them and purchase other lands so the land so taken in exchange or by purchase, might become the subject of the Waqfâ.
9. He further contended that the Uttarakhand Waqf Board in its arguments has contested that having charity at the end of the ladder makes it a charitable Waqf even before the extinction of the family, whereas it has been clearly stated in the above mentioned cases that in a Waqf al-al-aulad the property vests in beneficiaries and the income from the property is used for the maintenance and support of the family of the founder and his descendants. In case, the family becomes extinct then the Waqf becomes a public Waqf. He further contends that the Waqf Board in its desperation is unsuccessfully trying to cast aspersions on the petitioner by crooked mean. The petitioner has, all along, from the lower Court constantly maintained his inability to fend for himself and his family over the years that he took to consolidate his property from illegal occupants and usurpers and in his attempt to restore the property from its extremely dilapidated state and the debts incurred in the process. The petitioner has refrained from detailing his circumstances and position as the present case stands with regard to whether or not the Uttarakhand Waqf Boards constituted under the Waqf Act 43 of 1995 have any jurisdiction over the said Waqf al-al-aulad. Learned Senior Advocate submitted that additional prayer as regards permission to sell and reinvest (exchange) the property is a consequential relief that can be granted by this Court in keeping with the motive and wishes of the Waqif.
10. Mr. A. Rab prayed that the order dated 24-2-2010 passed by learned District Judge Dehradun in Miscellaneous Case No. 33 of 2009 between Sardar Abdul Wahid Khan Versus Sardar Abdullah Khan may be set aside and the petitioner may be granted permission to sell and reinvest the subject portion of the said Waqf al-al-aulad, under his Mutawalliship, in order to enable him to provide for the appropriate 'parvaarish' of himself and his family. This will be in keeping with the motive of the Waqf, the intention of the Waqif, and the provisions of Mohammedan law.
11. The respondent no.2 filed written statement and stated that the Waqf in question is a private Waqf, created by the Waqif-Bibi Benazir Jan in 1934 for the express and exclusive benefit, sustenance, use and welfare of her sons and progeny/successors to come in perpetuity. The said Waqf is a private Waqf, governed by the general Principles of Mohammedan Law. It is further contended that Section 3 (r) iii of the Waqf Act, 1995 expressly, excludes a Waqf al-al-aulad from the ambit of the operation of the said Act, hence the statutory authorities/tribunal envisaged and provided in the said Act, would have no application to the present private Waqf al-al-aulad.
12. Respondent no. 4 Uttarakhand Waqf Board also filed its counter affidavit with the averment that present Waqf has been registered under the provisions of Uttar Pradesh Muslim Waqf Act, 1960, as amended by Act no. 11 of 1974 and Section 2 of the Act provides that it applies to all Waqfs. Section-4 of the Act provides for appointment of Commissioner and Addl. Commissioner of Waqfs. Section 6(3) of the Act provides the powers of Civil Court vested in Commissioner. Section 6(4) of the Act provides that the State Govt., after holding the property to be Waqf property, shall notify in the official gazette. Section-8 of the Act provides about the disputes, whether the property is a Waqf property or not, has to be referred to the Tribunal and its proviso provides limitation of one year from the date of publication of the list of Waqfs for filing suit before Tribunal. It is asserted that as per the Section-29 of the Act, every other Waqf, subject to this Act or not or whether created before or after the commencement of this Act, shall be registered at the office of the Board and Section 29 (8) provides limitation of ninety days for filing the suit before the Tribunal and under Section 49 (A) of the Act, transfer of property by way of sale, mortgage or exchange is prohibited. It is asserted that Section 75 of the Act provides bar of jurisdiction of Civil Court. It is also asserted that as per Section 32 of the Act, all the Waqf in the State shall vest in the Board, established by the State and it shall be the duty of the Board to exercise its power under this Act. It is asserted that the property in question has been registered under the Act in the register of Uttarakhand Waqf Board by U.P. Sunni Central Board which has been ordered to be registered by Commissioner of Waqfs in case n o. 297 of 1983. It is stated that Section 6 of the Act, which has been repealed, stated about survey and search of Waqf properties, which is done by Waqf Board and the State Government. It is further stated that as per Section 6(3) the Commissioner, the Addl. Commissioner, Asstt. Commissioner have full power of the Civil Procedure Code, 1908 and after survey they shall notify the same in official gazette. It is further asserted that the Board has power to decide the issue and aggrieved person has a right of representation before Tribunal, within ninety days. It is stated that the State Waqf Commissioner in case no. 297 of 1983 has held the property in suit to be a Waqf property and on 28.10.1983 directed to incorporate the name of said Waqf in the register of Waqfs. It has been notified in U.P. Gazette dated 20.03.1986 at column 264 that the Waqfnama and Waqf is al-al-aulad having religious, pious, charitable character, recognized by Muslim Law is defined in Section 3 (XI) of the Act. The name was mutated in the record of the Waqf Board Uttar Pradesh and now the Waqf is under the management of the Uttarakhand Waqf Board.
13. Learned counsel for respondent no.4 contended that in the entire application (Misc. Case no. 33 of 2009) the provision under which the said application/proceeding has been brought about has not been indicated and the Waqf Board was deliberately not made a party while it is apparent that the said property has been registered as Waqf Property no. 11A, Dehradun in the Waqf Records and the Waqf Board was a necessary party as per provisions of Section 92 of the Waqf Act, 1995. He submitted that Section 85 of the Waqf Act, 1995 lays down that no suit or other legal proceeding shall lie in any Civil Court in respect of any dispute, question or other matter relating to any Waqf, Waqf property or other matter which is required by or under this Act to be determined by a Tribunal. Thus, the petitioners application/Misc. Case was liable to be rejected on this count alone, being barred by jurisdiction by the Civil Court. Learned counsel for the respondent no.4 relied on the judgment of Honble the Apex Court in the matter of Board of Waqf, West Bengal Vs. Anis Fatma Begum and Ors., reported in 2010 (12) SCALE 323.
14. Learned counsel for respondent no. 4 submitted that paragraph no. 7 of the Waqf Deed itself suggests that the property is inalienable and not transferable as per the provisions of the Waqf deed itself and the exchange with another immovable property can only be done in case of profit, which is not the case in the petitioners petition. He contended that the Apex Court in the matter of Chhedi Lal Misra vs. Civil Judge, Lucknow and Others, reported in 2007 (4) SCC-632 has held that "once a Waqf is created, the Waqif stands divested of his title to the properties which after the creation of the Waqf vests in the Almighty. It is no doubt true that in a given case the creation of a Waqf may be questioned if it is shown that the Waqif had no intention to create a Waqf but had done so to avoid a liabilityâ.
15. Learned counsel for the respondent no.4 then contended that the undue reliance of the petitioner on Section 3 (r) of the Act is unwarranted inasmuch, illogical in view of the fact that this Act clearly states that Waqf means the permanent dedication by a person professing Islam of any movable and immovable property for any purpose recognized by the Muslim law as pious, religious or charitable and includes a Waqf al-al-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable. Thus, even the use of the usufruct of the property for her own family is a pious and charitable object and the Waqf property would remain a Waqf property and secondly as per Clause 5 of the Waqf deed, the property would be relegated for purposes of Islam and to the respectable Muslims of Dehradun for charitable purposes. Thus, in any view of the matter, the argument of the petitioner falls to the ground. He submitted that in the said application/petition in paragraph no. 9 thereof the reason assigned for sale is that the petitioner (Sardar Abdul Wahid Khan) has now become unable to maintain his family. However, the said petitioner on 10-7-2006 has executed an agreement to sale with one Arvind Gupta for sale of the Waqf al-al-aulad property for ` 3.50 Crore and as per the said deed had already received ` 25 Lakhs. The said agreement to sell was subsequently modified on 30-08-2007.
16. He submitted that the public record of the Uttarakhand Waqf Board shows that the property in dispute is a Waqf having a Waqf deed, dedicated for purposes of pious, religious and charitable purposes recognized by Muslim law. The registration has been done on judicial side. The aggrieved person had one-year time to challenge the same before the tribunal. The limitation has expired, and said orders are final, conclusive between Waqf and Board. He further submitted that the order dated 28-10-1983 passed in case No. 287 of 1983, by Waqf State Commissioner, shown in the register of Waqfs maintained under section 37 of the Waqf Act 1995, has not been challenged within one year. It has been held in Civil Appeal No. 4372 of 1985, Sayyed Ali and others vs. Andhra Pradesh Waqf Board, Hyderabad dated 28-01-1998 (reported in A.I.R. 1998 Supreme Court, Page 972) that if no reference is made by aggrieved person to the tribunal within one year, then the Waqf published in the gazette is final and conclusive. Relevant portion of paragraph-9 of the said judgment is reproduced below :-
âThe parliament has enacted· Waqf Act to provide for better administration and supervision of Waqfs. Under sub-section (2) of Section 5 of the Act the Board is required to publish in the official Gazette the list of Waqf properties whether in existence at the commencement of the Act or coming into existence thereafter. Section 6 of the Waqf Act further provides that if any question arises whether a particular property specified as Waqf property in the list of Waqf published under the Act, is a Waqf property or not, the Board or Mutuwallis of the Waqf or any person interested therein, may institute a suit in a Civil Court of competent jurisdiction for decision of the question and the decision of the Civil Court in respect of such matter shall be final. It is also provided therein that no such suit shall be entertained by the Civil Court after the expiry of one year from the date of the publication of the list of Waqf under sub-section (8) of Section 5 of the Act. Sub-section (4) of Section 6 further provides that the list of Waqfs published under sub-section (2) of Section 5 shall, unless it is modified in pursuance of a decision of the Civil Court under sub-section (1), be final and conclusive. Therefore, any dispute relating to the character of Waqf property is to be decided in the manner provided under the Waqf Act. Subject to the result of a civil suit, if filed, the list of Waqfs published in the official gazette is final and conclusive. In the present case, the disputed property was shown as Waqf property in the A.P. Official Gazette on 30-11-1961 and no suit having been filed challenging the Waqf property, the entries in the official gazette describing the property as Waqf became final and conclusive.â
17 Placing reliance on the above judgment, learned counsel for the respondent no.4 submitted that once Waqf in question was published in the official Gazette and was not challenged in time, the property in question became Wakf property and Wakf Act would apply.
18. I have heard Mr. A. Rab, Senior Advocate with Mr. Pooran Singh Rawat and Mr. Gopal K. Verma, Advocates for the petitioner, Mr. Sudhir Kumar, Brief Holder for the State/respondent nos. 1 and 3, Mr. D. Barthwal, Advocate for respondent no.4 and perused the record.
19. In the present petition, this Court has to examine the legality of the order of learned District Judge, Dehradun. This Court is not sitting in writ jurisdiction under Article 226 of Constitution of India. The Waqf in question has been registered under the provisions of Uttar Pradesh Muslim Waqf Act, 1960 as amended by Act No. 11 of 1974. Waqf in question was published in Gazette dated 20.03.1986. After commencement of Waqf Act, 1995, Uttar Pradesh Muslim Waqf Act, 1960 stood repealed and the provisions of Waqfs Act, 1995 shall be applicable all over India. It applies to all types of Waqfs. Section 51 (2) of the Waqfs Act, 1995 provides that it is the only Waqf Board, who according to law, can grant permission, provided same is necessary or beneficial to the Waqf, consistent to the objects of the Waqf, the consideration thereof is reasonable and adequate. The power of Tribunal vests in District Judge. The Honble Supreme Court in Board of Waqf West Bengal vs. Anis Fatma Begum and others, reported in 2010 (12) SCALE 323 has held that full fledged remedy is available to any party if there is any dispute, question or other matter relating to Waqf or Waqf property. Relevant paragraphs of the judgment is reproduced below:
â10. In our opinion, all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India.
14. Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words âany dispute, question or other matters relating to a Wakf or Wakf propertyâ are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The work âWakf has been defined in Section 3 ® of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3 (r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.
15. Under Section 83 (5) of the wakf Act, 1995 the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules 1,2 and 2A of the Code of Civil Procedure to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a Wakf or Wakf property.
16. We may further clarify that the party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Sections 83 (1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt Section 83 (2) refers to the orders passed under the Act, but, in our opinion, Sections 83 (1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question, or other matters relating to a Wakf or Wakf property, as the plain language of Sections 83 (1) and 84 indicatesâ.
20. In view of above, the argument of learned Senior Advocate for the petitioner that application of the petitioner should have been allowed under Section 207 of Mohamadan Law, is not acceptable. Similarly, his argument that the Waqf in question is out of the ambit of the Act, is also rejected. Section 85 of the Waqf Act, 1985 totally bars the jurisdiction of the Civil Court in respect of any dispute, question or other matter relating to any Wakf, Wakf property. In my view, the learned District Judge, Dehradun has rightly rejected the application of the petitioner on the ground of non-maintainability. The petition lacks merit and is liable to be dismissed.
21. Accordingly, the petition is dismissed.
22. No order as to costs.