Shashi Kant Gupta, J.@mdashThis writ petition is directed against the judgment and order dated 11.4.2012? (Annexure 21 to the writ petition) passed by Prescribed Authority/ACMM, Court No. 5, Kanpur Nagar in Rent Execution Case No. 5/23 of 1990 arising out of Rent Case No. 123 of 1989, Rafiq Hussain Vs. Iqbal Ahmad? ''and order dated 6.12.1989 (Annexure 8 to the writ petition) passed by the Prescribed Authority/Second Additional Civil Judge, Kanpur Nagar in Case No. 123 of 1989, Rafiq Hussain Vs. Iqbal Ahmad).
2. An application under Section 21 (1 )(a) of the UP Act No. 13 of 1972 (in short "Act") was filed by Rafiq Hussain (father of the Respondent No. 1 to 6) against Iqbal Ahmad on the ground of bonafide and genuine need. The said application was allowed in terms of the compromise entered into between the parties by the Prescribed Authority by order dated 6.12.1989. When the property in dispute was not handed over by Mohd. Iqbal, an Execution Application No. 5/23 of 1990 under Section 23 of the Act was filed on 13.4.1990. In the meantime, one declaratory suit was also filed by Rafiq Hussain against the erstwhile owner which was numbered as Suit No. 37 of 1992, Rafiq Hussain and another Vs. Munir Ahmad. The said suit was decreed in favour of Rafiq Hussain by judgment and order dated 30.9.1992 by the 5th ACMM, Kanpur Nagar. The petitioner who was a third party after a lapse of more than 20 years filed his objection to the Execution Application filed under Section 23 of the Act before the court below which was dismissed by order dated 11.4.2012. Hence the present writ petition.
3. Heard Sri Ramendra Asthana, learned counsel for the petitioner, Sri Krishna Shankar, learned counsel for the respondent and perused the record.
4. Learned counsel for the petitioner submitted that the alleged compromise entered into between Rafiq Hussain and Iqbal Ahmad in the release proceedings under Section 21 of the Act was collusive.
5. The main contention of the learned counsel for the petitioner is that the properly in dispute being a waqf property is exempted from the? purview of UP Act No. 13 of 1972. Hence, the application filed under Section 21 of the Act was not maintainable.
6. Learned counsel for the petitioner failed to establish before the court below that the property in dispute was a waqf property. More so, the objection has been filed by the petitioner after a lapse of 20 years without any plausible explanation with regard to delay The court below while passing the impugned order has observed that after passing of the order dated 6.12.1989 against the tenant Iqbal Ahmad he filed a misc. case for recalling the order passed under Section 21 of the Act but the same was dismissed. Thereafter, the outgoing tenant Iqbal Ahmad illegally handed over the possession of the disputed property to one Rashid Ahmad who in turn passed on the possession to the petitioner who happens to be his soninlaw. It appears that the petitioner Mohd. Sahid has been set up by the outgoing tenant Iqbal Ahmad through Rashid Ahmad.
7. In view of the above, I do not see any illegality or infirmity in the orders passed by the courts below.
8. The writ petition is, accordingly, dismissed. However, it is made clear that any observations made in this order by me will not influence the proceedings, if any, pending before the waqf tribunal in respect of the disputed premises.
