New Delhi: Holding the Uttar Pradesh Shia Central Waqf Board guilty of suppression and concealment of material facts, the Allahabad High Court imposed Rs 15,000 as costs on the Board on 30 May.
In doing so, the bench of Justice Jaspreet Singh rejected the claim of the UP Shia Waqf Board, Lucknow, on the private Imambara and house of Nawab Mohammad Hussain Khan. An Imambara refers to a Shia Islamic congregation hall or shrine where mourning ceremonies or majlis are held, particularly during Muharram to commemorate the martyrdom of Imam Husayn.
Saying that this is “a clear case where the board is guilty of suppression of material facts”, the court said such conduct by the board cannot be appreciated, and anyone guilty of suppression and concealment “can be thrown out of the litigation at any stage”.
Although the court said that the entire case of the Shia Waqf Board could be dismissed “on this ground alone”, given the top court’s judgments on the question, it decided to consider all aspects of the present controversy, and the pleas before it, before passing a judgment.
Speaking to ThePrint, advocates Kashif Iqbal and Syed Ali Murtaza, who appeared for Huma Zaidi, the great-granddaughter of Nawab M.H. Khan who owned the properties in this case, said that the case originates from a waqf deed executed on 27 March, 1934, by the Nawab who resided in Bareilly. “The Waqf deed related to 17 shops that were built and situated adjacent to his kothi or residential premises. Essentially, this deed said these properties were Waqf properties and one of the conditions was that out of the income generated from these 17 shops, the entire amount would be spent on the maintenance of the shops and the Nawab’s kothi.”
Murtaza, while explaining how this arrangement continued for several years, added that once the Nawab died, his only surviving daughter—Nawab Anwar Jahan Begum—filed a civil suit in the civil court at Bareilly, with the hopes of seeking a declaration that the 1934 Waqf deed, along with two other Waqf deeds, were null and invalid.
“However, the UP Shia waqf board contested the civil suit and lost the case. The result was a 1952 judgment passed by the civil court at Bareilly, which stated that the 1934 Waqf deed was illegal because the actual object of the Waqf was neither pious or religious, nor charitable. This also led the Shia Waqf board to delete the property from their records. But, surprisingly after 63 years, the Board appointed mutawallis or trustees for the Waqf.”
Terming such an act to be contemptuous of the law, and the Bareilly court’s order, Murtaza said that after the 1952 order, “the board wrote to the concerned District Magistrate, saying that the personal property of the Nawab will remain the waqf’s property, and his daughter cannot claim it. After this, the DM asked the authorities in June last year to ensure that no construction is carried out at the Waqf property which has an Imambara.”
After we approached the Allahabad High Court, it provided us the much-needed relief we were seeking, he added.
Also read: Acquisition of waqf assets by legislative diktat—Sibal’s opening arguments for petitioners in SC
What was the case?
In this case, the UP Shia Central Waqf Board moved court under Section 83(9) of the Waqf Act, 1995, which says that although no appeal shall lie against any decision or order of the Waqf Tribunal, the High Court can review records related to the dispute, question or matter, and either confirm it or modify it.
Such a review of the Waqf’s decision by high courts can be done either if the court itself initiates the process, or if an application is made by the Waqf Board or any other aggrieved person.
Aggrieved by the 29 April, 2024 order passed by the Wakf tribunal in this case, declaring the Shia Waqf Board’s 2015 order appointing joint mutawallis or custodians for the “Waqf’s property” as void, the board had to approach the court.
The crux of the board’s entire case was that the earlier 1952 ruling, which nullified the 1934 Waqf deed was only in respect of the 17 shops, and not the Nawab’s Imambara. The basis for their argument was that the 1952 order didn’t create any impediment over the Imambara, nor did it say that the Imambara was not a Waqf.
What was the order?
At the outset, the court noted that the board’s lawyer was unable to give any response and “feigned ignorance”, when asked why the facts weren’t disclosed about another plea on the same issue they had filed before the Allahabad High Court.
The court said that such conduct cannot be appreciated, and the same has been confirmed by the top court in its 2007 and 2013 rulings in A.V. Papayya Sastry vs Government of AP.
After analysing the 1952 trial court order, the high court concluded that the income of Nawab’s 17 shops was liable to be split on the repairs of the residential house and his shops. Given that the objective of this Waqf deed was repairing the home and the 17 shops, the trial court had then concluded that a Waqf cannot be said to be validly created as its object was neither pious or religious nor charitable.
However, the court also noted that the board hadn’t challenged the trial court’s finding that the 1934 deed was referring to the residential house (kothi) and the 17 shops in question.
“In the aforesaid background, this court clearly finds that the trial court did not find the object of the Waqf relating to the residential property as pious, religious or charitable and held that the Waqf was not valid. This was never challenged in the First Appeal by the Board and, therefore, the said findings became final,” the court said.
In such a situation, the board is directly or indirectly prevented from raising the same issue, the court further said, while adding that the Shia Board had only submitted an undated document showcasing the permission granted by the executive authorities for taking out the Muharram procession, as proof of their claim to the property.
With regards to the 2015 order passed by the board appointing the custodians, the court said it was “clearly impermissible for the board to have appointed a Mutawalli in respect of the Waqf in question, when as way back as 1952 it was held that it was not a valid Waqf and the said finding had attained finality”. It then dismissed the board’s plea, imposing costs of Rs 15,000 on it.
(Edited by Viny Mishra)
Also read: What is ‘waqf-by-user’ and why it’s at centre of debate over contentious amendments to waqf law
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