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Subina Rizvi Petitioner v. State Of U.P. Thru. Prin. Secy., Deptt. Of Waqf & Anr. S
Factual and Procedural Background
The petition challenges an order dated 22.7.2015 issued by respondent No.2 (Shia Central Board of Wakf, Uttar Pradesh) which appointed respondent No.3 as the Mutawalli of the Wakf known as Nawab Muzaffar Husain Khan, Ram Narain Bazar, Patkapur, Kanpur. The Board's stated ground was that the petitioner's tenure as Mutawalli, fixed for five years by an earlier order dated 2.5.2008, had come to an end.
Background facts (as recorded in the opinion): The petitioner is the daughter of Late Nawab Syed Dilawar Husain Rizvi. She and her father constituted a Committee of Mutawallis under an order dated 17.3.2004. After the father's death on 7.2.2008, the petitioner was appointed Mutawalli by order dated 2.5.2008 for a period of five years (Annexure-5). The Wakf-deed dated 6.10.1902 governs succession; the pedigree (Annexure-3) includes both the petitioner and respondent No.3 and, according to the petitioner, does not exclude female descendants.
The petitioner received multiple notices challenging her administration (notice dated 29/30.1.2009, challenged in Writ Petition No.3621/2009 which was withdrawn; notice dated 1.10.2010 and related orders challenged in Writ Petition No.10888/2010, withdrawn as infructuous on 20.7.2011). An order of 26.10.2010 appointing a Committee was also challenged and subsequently withdrawn; the petitioner was appointed sole Mutawalli and the related petition dismissed as withdrawn.
A later attempt to remove the petitioner by appointing a Managing Committee was challenged before the Wakf Tribunal. The Tribunal (Learned Civil Judge (Senior Division), Kanpur) set aside the order dated 25.11.2011 by judgment dated 28.2.2015 (Annexure-12) and directed the Shia Central Board of Wakf to take appropriate steps regarding continuance of the Mutawalli. The Tribunal also recorded that the Wakf-deed did not bar appointment of a female descendant as Mutawalli.
Both the petitioner and respondent No.3 filed applications for appointment after the Tribunal's judgment (each staking claim). Instead of adjudicating the competing claims, the Board treated the petitioner's five-year tenure as having expired and, on that basis, declared a vacancy and appointed respondent No.3 by the impugned order dated 22.7.2015.
Legal Issues Presented
- Whether the impugned appointment of respondent No.3 as Mutawalli, on the ground that the petitioner's five-year tenure had ended, was valid under the Wakf Act, 1995 — in particular, whether Section 63 empowered the Board to appoint a Mutawalli in the circumstances recorded in the order.
- Whether the Board's action constituted a de facto removal without notice or opportunity to be heard, thereby violating principles of natural justice.
- Whether the Wakf-deed permits succession to the office of Mutawalli in favour of a female descendant and whether that issue was properly considered by the Board in light of the Tribunal's finding dated 28.2.2015.
- Whether competing claims to Mutawalliship (petitioner and respondent No.3) required adjudication on merits rather than treatment as a vacancy under Section 63.
Arguments of the Parties
Petitioner's Arguments
- The impugned order of 22.7.2015 was passed without giving the petitioner notice or opportunity to be heard (violation of natural justice); this lack of notice is expressly alleged in paragraph 21 of the writ petition.
- The five-year tenure was an administrative order (dated 2.5.2008) but tenure is not found in the original Wakf-deed; therefore, treating the petitioner’s tenure as having come to an end is not supported by the Wakf-deed's terms.
- The Wakf-deed is a Wakf-alal-aulad and, per the pedigree (Annexure-3), female descendants are included for appointment as Mutawalli; thus the Board should have considered the petitioner's entitlement rather than treating the matter as a vacancy.
- Reliance was placed on a line of authorities (including Syed Mohd. Ahmad Hasan v. Shia Central Board of Waqf, Committee of Management, Waqf No. 62/248, Haji Sajjad Ali, Tamil Nadu Wakf Board v. Larabsha Darga, Shri Rukunuddin Khan and Prem Shanker) for the propositions that (a) principles of natural justice apply and (b) the line of succession in a wakf cannot be altered contrary to the wakf-deed and competing claims must be adjudicated on merits.
Respondents' Arguments
- The Board's action did not amount to "removal" under Section 64 of the Wakf Act, 1995; rather, the petitioner's tenure had come to an end and a fresh Mutawalli was appointed under Section 63 of the Wakf Act, 1995.
- Implicitly, the Board treated the situation as a vacancy occasioned by expiration of the five-year tenure and therefore relied on its power under Section 63 to appoint respondent No.3.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Syed Mohd. Ahmad Hasan v. Shia Central Board of Waqf, U.P. and others, 2008 (3) JCLR 347 (All) | Cited as authority for the applicability of principles of natural justice in wakf administration matters. | The court noted this case among decisions demonstrating that lack of notice/opportunity can invalidate administrative action; it supports the petitioner's contention on natural justice. |
| Committee of Management, Waqf No. 62/248, Saharanpur v. State of U.P. and others, 2014 (3) JCLR 1 (All) | Cited in support of the proposition that principles of natural justice are applicable and that succession lines under a wakf deed cannot be arbitrarily altered. | Referenced by the court as part of the line of authorities confirming the need to respect deed provisions and provide fair procedure. |
| Haji Sajjad Ali (dead) by his Lrs. v. Controller, U.P. Sunni Central Board of Waqfs, Lucknow and others, 2013 (1) ARC 476 | Cited for principles on natural justice and appointment/removal in wakf matters. | Included by the court among precedents relied upon by the petitioner to demonstrate impropriety in appointing a Mutawalli without adjudication or notice. |
| Tamil Nadu Wakf Board v. Larabsha Darga, Panruti, 2008 (82) AIC 285 (SC) | Cited as part of the judicial authority for fair procedure and proper adherence to deed terms in wakf administration. | Noted by the court as one of the authorities supporting the petitioner's submissions about procedural and substantive constraints on appointment. |
| Shri Rukunuddin Khan v. Controller, U.P. Sunni Central Board of Waqfs, Lucknow and others, AIR 1991 All 279 | Authority for the proposition that competing claims to mutawalliship must be adjudicated on merits rather than being treated as a mere vacancy to be filled administratively. | The court expressly invoked the Division Bench judgment in Rukunuddin Khan (supra) to hold that, where two persons claim to be Mutawalli, the claim must be decided on merits; the Board erred in not following that approach. |
| Prem Shanker v. Mohan Lal and others, 1989 ACJ 277 | Cited among cases addressing principles of proper appointment/removal and natural justice in wakf or related administrative contexts. | Listed by the courts as part of the corpus of authority underpinning the petitioner's contention that procedural fairness and adherence to the deed are required. |
Court's Reasoning and Analysis
The court examined the impugned order in light of Section 63 of the Wakf Act, 1995. The relevant provision (reproduced in the opinion) permits the Board to appoint a mutawalli only in two scenarios: (1) "when there is a vacancy in the office of the mutawalli of a wakf and there is no one to be appointed under the terms of the deed of the wakf", or (2) "where the right of any person to act as mutawalli is disputed".
The court found that the impugned order proceeded on the assumption that the petitioner's five-year tenure had expired and thus a vacancy had arisen. The court concluded that this assumption was incorrect for two principal reasons explicitly recorded in the opinion:
- There was no factual finding in the impugned order that "there is no-one left in the family tree to be appointed under the terms of the deed." On the contrary, both the petitioner and respondent No.3 belonged to the same pedigree reflected in the deed, and therefore the first contingency in Section 63 did not apply.
- There was no indication in the impugned order of any dispute about the petitioner's right to act as Mutawalli of the Wakf that would trigger the second contingency in Section 63. Instead, the situation amounted to competing claims to appointment by two persons who both asserted entitlement.
Given that competing claims existed, the court held that the Board should have considered and adjudicated the respective claims on their merits rather than treating the matter as a vacancy to be filled administratively. The court relied on the Division Bench judgment in Rukunuddin Khan (supra) for the proposition that competing claims must be decided on the merits.
The court further held that procedural fairness was not observed: when applications had been filed by both the petitioner and respondent No.3, the Board should have given the petitioner notice or a show-cause opportunity before terminating her mutawalliship on the ground of termination of tenure. The absence of any such procedural step indicated that the action was designed to dislodge the petitioner without addressing her independent claim.
Finally, the court observed that the Board failed to examine whether the deed permitted succession in favour of a female descendant, an issue that should have been considered particularly because the Wakf Tribunal had earlier recorded a finding favourable to the petitioner on 28.2.2015. The total non-consideration of the petitioner's claim and the lack of procedural opportunity vitiated the impugned order.
Holding and Implications
Holding: The court allowed the writ petition and quashed the order dated 22.7.2015 by which respondent No.3 was appointed Mutawalli.
Direct consequences and procedural directions given by the court (as stated in the opinion):
- Both the petitioner and respondent No.3 are to appear before the Board on 16.11.2015 and stake their claims.
- The Board is directed to then proceed to pass an appropriate order within three weeks, taking into account the provisions of the Wakf-deed, the provisions of law, and any other material placed before it by either party.
Broader implications: The opinion does not announce any novel legal principle beyond the application of existing statutory text and precedent. Its effect is to require the Board to adjudicate competing claims and to observe principles of natural justice and the provisions of the deed before making appointments under Section 63; the decision directly affects the parties by invalidating the Board's appointment and remanding the matter for fresh consideration. The opinion does not purport to lay down a new precedent beyond these determinations.
1. This is a petition questioning the order passed by respondent No. 2 - Shia Central Board of Wakf, Uttar Pradesh, on 22.7.2015 whereby the respondent No. 3 has been appointed the Mutawalli of Wakf, Nawab Muzaffar Husain Khan, Ram Narain Bazar, Patkapur, Kanpur, on the ground that the tenure of the petitioner which was for a period of 5 years as Mutawalli under the order dated 2.5.2008 has come to an end. The petitioner is the daughter of Late Nawab Syed. Dilawar Husain Rizvi. She alongwith her father formed a Committee of Mutawallis for managing the said Wakf under order dated 17.3.2004. The petitioner's father is stated to have died on 7.2.2008 as a result whereof the office of Mutawalli had to be filled up and consequently under the order dated 2.5.2008, copy whereof is Annexure-5 to the writ petition, the petitioner was appointed as Mutawalli defining her period to be that of 5 years from the date of issuance of the order.
2. The succession to Mutawalliship is governed by the Wakf-deed executed on 6.10.1902, copy whereof is Annexure No. 2 to the writ petition. According to the petitioner, the pedigree of creator of the Wakf, which is a Wakf-alal-aulad, is as per the Chart, which has been appended as Annexure No. 3 to the writ petition. The petitioner and the respondent No. 3 are both reflected in the said pedigree. The petitioner's contention is that female descendants are not excluded and are rather included for being appointed as Mutawalli as per the Wakf-deed itself.
3. A notice was issued to the petitioner to show-cause and provide information about the alleged mal-administration of the Wakf to which the petitioner is stated to have given a reply. The said notice dated 29/30.1.2009 was also subjected to a challenge by the petitioner in Writ Petition No. 3621 of 2009 but the petition was withdrawn with liberty to seek an appropriate remedy after orders are passed by the concerned authority.
4. The petitioner was served with another notice on 1.10.2010 by a Member of the Board that since there is a vacancy in the office of Mutawalli, the petitioner was to submit a reply. The said Notice was also challenged in Writ Petition No. 10888 of 2010 but the said order/notice was withdrawn, as a result whereof the petition was dismissed as infructuous on 20.7.2011. It may also be pointed out that an order was passed on 26.10.2010 appointing a Committee for managing the Wakf which was also under challenge in the same writ petition but the said order was also withdrawn on 27.10.2010 and the petitioner was appointed as sole Mutawalli of the Wakf. It is in this background that the writ petition was dismissed as withdrawn on 20.7.2011.
5. The third attempt was made to dislodge the petitioner by appointing the Managing Committee removing the petitioner as Mutawalli that was challenged by the petitioner before the Wakf Tribunal. The order dated 25.11.2011 came to be set aside by the Wakf Tribunal/Learned Civil Judge (Senior Division), Kanpur, on 28.2.2015, a copy of the said judgment is on record as Annexure No. 12. A further direction was issued by the Tribunal to the Shia Central Board of Wakf to take appropriate steps in relation to continuance of Mutawalli of the Wakf. The Board had also recorded a finding to the effect that on a perused of the terms and conditions of the Deed, it is apparent that there is no bar on a female descendant being appointed as Mutawalli if she belongs to the pedigree of the family.
6. The petitioner moved an application on 28.2.2015 and the respondent No. 3 also appears to have moved an application for appointment as Mutawalli.
7. From a perusal of the impugned order dated 22.7.2015, it appears that the tenure of the petitioner has been treated to have come to an end and treating it to be a vacancy, the respondent No. 3 has been appointed as Mutawalli.
8. Learned Counsel for the petitioner Sri Singh vehemently submits that the impugned order is without any notice or opportunity, which fact has been categorically stated in paragraph No. 21 of the writ petition and other paragraphs. It has also been urged on behalf of the petitioner that tenure of Mutawalli is not find under the Wakf-deed and, therefore, treating the petitioner's tenure to have come to an end, is not supported by the terms and conditions of the Wakf-deed which has been completely overlooked while passing the impugned order. It is further submitted that the petitioner cannot be denied relief as violation of principles of natural justice clearly attract the ratio of the decisions in the cases of Syed Mohd. Ahmad Hasan v. Shia Central Board of Waqf, U.P. and others, 2008 (3) JCLR 347 (All), Committee of Management, Waqf No. 62/248, Saharanpur v. State of U.P. and others, 2014 (3) JCLR 1 (All), Haji Sajjad Ali (dead) by his Lrs. v. Controller, U.P. Sunni Central Board of Waqfs, Lucknow and others, 2013 (1) ARC 476, Tamil Nadu Wakf Board v. Larabsha Darga, Panruti, 2008 (82) AIC 285 (SC), Shri Rukunuddin Khan v. Controller, U.P. Sunni Central Board of Waqfs, Lucknow and others, AIR 1991 All 279, and Prem Shanker v. Mohan Lal and others, 1989 ACJ 277.
9. Relying on the other decisions noted above, it has been urged that apart from violation of principles of natural justice, the line of succession as Mutawalli cannot be altered contrary to the wishes of the executor of the Wakf-deed as contained therein and further the issue of appointment of Mutawalli in case of a dispute cannot be made without adjudicating the respective claims on merits.
10. Sri Yashwant Swaroop has advanced his submissions on behalf of the respondent No. 2 and Sri Shafiq Mirza alongwith Sri Humaun Mirza has advanced his submissions on behalf of the respondent No. 3.
11. The argument raised on behalf of the respondents is to the effect that this is not a case of removal of a Mutawalli so as to attract section 64 of the 1995 act, and rather the petitioner's tenure had come to an end as a result whereof a fresh Mutawalli has been appointed under the provisions of Section 63 of the Wakf Act, 1995.
12. We have considered the rival submissions raised and what we find is that the impugned order simply proceeds on the assumption that there is a vacancy in the office of Mutawalli by virtue of termination of the tenure of 5 years of the Mutawalliship of the petitioner. Section 63 of the Wakf Act, 1995, is reproduced here under: "63. Power to appoint mutawallis in certain cases.--When there is a vacancy in the office of the mutawalli of a wakf and there is no one to be appointed under the terms of the deed of the wakf, or where the right of any person to act as mutawalli is disputed, the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit."
13. The power to appoint a Mutawalli as per wakf-deed exists if there is a vacancy. Secondly, where the right of any person to act as a Mutawalli is disputed, the Board can appoint any person to act as a Mutawalli for such period and on such conditions as it may think fit. In the instant case, the impugned order does not record that there is no-one left in the family tree to be appointed under the terms of the deed of the Wakf and, therefore, on such a vacancy having arisen, the Mutawalli deserves to be appointed. There is also no indication of any dispute of the right of the petitioner to function as Mutawalli which may attract the second contingency under Section 63 to empower the Board to invoke its authority to appoint a Mutawalli. What appears is that since the petitioner's continuance was under a tenure as contemplated in the order dated 2.5.2008 for 5 years, the completion of the said period was treated to be a contingency giving rise to a vacancy. Such a vacancy is not contemplated under Section 63 where the petitioner, who claims herself and is undisputedly one of the legal heirs under the Wakf-deed, was available. The same status was that of the respondent No. 3, who is also from the same pedigree. Consequently, this was a case of competing claims of appointment of Mutawalliship for which applications had been moved consequent to the judgment of the Wakf Tribunal dated 28.2.2015 indicated herein above. The Board did not appreciate this aspect in correct perspective when there were two persons claiming themselves to be Mutawalli of the Wakf. The claim had to be decided on merits as is reflected from the Division Bench judgment in the case of Rukunuddin Khan (supra).
14. Apart from this, when the application had been filed by the petitioner and the respondent No. 3 both and they were competing claims, then before terminating the Mutawalliship of the petitioner on the ground of end of tenure, an information ought to have been given to the petitioner or a show-cause as to why her Mutawalliship should not be treated to have come to an end. The action, therefore, was couched in a manner so as to dislodge the petitioner and at the same time not to consider her independent claim which was otherwise permissible, keeping in view the fact that she belongs to the same pedigree and claims entitlement to mutawalliship.
15. The issue as to whether the deed also allows succession to the office of mutawalli in favour of a female descendant was also not looked into more particularly when the Tribunal had given a finding in favour of the petitioner in the order dated 28.2.2015. The Board, therefore, clearly erred in proceeding to straightway appoint the respondent No. 3 without complying with what has been observed herein above. The claim of the petitioner went unheeded inspite of the fact that it deserved a consideration in accordance with law. Thus, a total non-consideration of the claim of the petitioner vitiates the impugned order dated 22.7.2015. The writ petition is, accordingly, allowed. The order dated 22.7.2015 is quashed. Learned Counsel for the parties agree that both the petitioner and the respondent No. 3 shall appear before the Board on 16.11.2015 and stake their claims. The Board shall then proceed to pass an appropriate order within 3 weeks keeping in view the provisions of the Wakf-deed and the provisions of law in this regard as well as any other material on which reliance may be placed by either of the parties. ______________
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