Patna High Court - Orders
Md.Naushad & Ors vs Bihar State Sunni Wakf Board P on 22 August, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT
PATNA
Civil Writ Jurisdiction Case No.1531 of 2012
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1.Md.Naushad son of Late Samiuddin.
2. Md. Waziuddin son of Late Md. Hussain.
3.Md. Firoz son of Md. Hussain.
4.Naqui Imam son of Late Jaliluddin.
5.Shahina Parween wife of Naqui Imam.
6.Md.Irshadullah son of Late Amanullah.
All residents of village Bhusaula, Danapur P.S.
Phulwarisharif, District
Patna.
.... .... Petitioner/s
Versus
1.Bihar State Sunni Wakf Board, Patna.
2.The Chief Executive Officer, Bihar State Sunni Wakf Board,
Patna.
3.Md.Azimuddin son of Late Md. Imamuddin, Secretary of
Wakf Estate
No. 1488 Bhusaula Danapur P.S. Phulwarisharif, District
Patna.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Syed Arshad Alam, Adv.
Mr. Gautam Kumar Yadav,Adv.
Mr.Fakruddin Ali Ahmad, Adv.
For the Res. No.1 & 2 : Mr. Rashid Rais, Adv.
Mr.Rashid Izhar, Adv.
Mr. Jagjit Roshan,Adv.
For the Res. Nos. 3 :
Mr. Mahendra Prasad,Adv.
Mr.Nawab Alam, Adv.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
C.A.V
14 22 -08-2012Heard learned counsel for the petitioners and the learned counsel for the State.
2. In this case, petitioners are challenging the judgment and order dated 20th October 2011 passed in T.S.No. 4 of 2008/ 1 of 2009 (Md. Naushad and others .v. 2 Patna High Court CWJC No.1531 of 2012 (14)
2 / 53 Bihar State Sunni Wakf Board and others) whereby and whereunder the suit filed by the petitioners, as mentioned hereinabove, has been dismissed.
3. This matter relates to Plot Nos. 755, 756 and 829, measuring an area of 25 decimals, 20 decimals and 21 decimals respectively.
4. As per the case of petitioners, Abdul Rauf Quadri was the original land-holder and according to the petitioners, he died in the year 1948. It has been alleged that in the year 1973, three applications dated 23rd January 1973, 5th February 1973 and 17th February 1973 were filed and aforesaid properties were registered as Wakf property without proper enquiry. It has been alleged that in fact the properties in question were never a Wakf property. As petitioners have claimed, Abdul Rauf was a Hakim and he settled along with his family members at Kolkata in the State of West Bengal. It has been stated in the petition that he has two sons, namely, Abdul Mabood and Abdul Masood but according to the respondents, Md.Rauf and his wife Bani Khatoon left behind three sons namely, Md. Masood, Abdul Mabood and Abdul 3 Patna High Court CWJC No.1531 of 2012 (14) 3 / 53 Wadood and one daughter, namely, Farkhunda Bano as their legal heirs. As they were living at Kolkata, they were not in a position to look after their property and, as such, his Phupheri sister, namely, Khujista Bano was care-taker of the property. After death of Abdul Rauf, his wife and sons of Khujista Bano inherited the property and became the owner of the property of Abdul Rauf. It has been submitted that after the death of Khujista Bano, her son Mahmood Hassan inherited the said property and, accordingly, he became the owner of the same.
5. It has been submitted that Md. Mahmood Hassan had sold the property to Dinesh Singh and Jagannath Singh and, accordingly, petitioner No.4 Naqui Imam and petitioner No.5 Shahina Parween have purchased plot Nos. 755 and 756 from the wife and children of Late Dinesh Singh vide registered sale-deed dated 19th February 1992. Petitioner no.1 Md. Naushad, petitioner no.2 Md. Waziuddin and petitioner no.3 Md. Firoz purchased the land from Jagannath Singh, vide separate sale-deed No. 16th October 1992. Naqvi Imam (Petitioner No.4) purchased the property from Saraswati 4 Patna High Court CWJC No.1531 of 2012 (14) 4 / 53 Devi and her sons, vide registered deed dated 15th July 1991, 19th February 1992 and petitioner No.5 got the property thorough registered sale deed and Md. Irshadullah (Petitioner No.6) got the property by gift. Aforesaid two persons, namely, Late Dinesh Singh and Jagannath Singh had purchased the said property from Mohmood Hassan son of Khujista Bano. It has been in the plaint by the petitioners that Khujista Bano and her son made a mortgage of plot nos. 755 and 756 in favour of Jagdeo Singh by registered Rehan deed and the same was redeemed on 13th June 1973. It has been alleged that as Khujista Bano and her son were owner of the said property, they sold the property to different persons. It has been alleged that Abdul Masood had a house in Bhusaula Danapur was in dilapidated condition. Whenever he used to come, he used to stay with one Amanullah, as he was taking special care, he had made an oral Hibba to the aforesaid Amanullah and later on Yaddastnama was executed. Accordingly, father of the aforesaid plaintiff was living in the house during his life time and after his death, his son plaintiff no.2 inherited 5 Patna High Court CWJC No.1531 of 2012 (14) 5 / 53 the property. It has been alleged that the petitioners have valid right, title and interest over the plots in question and the same was never recorded in the name of any person , including Wakf Board. It has been alleged that in the year 1973, some disgruntle persons filed petitions before the Board regarding registration of plots as Abdul Rauf had made an oral wakf of the property aforesaid. It has been further said that the Officer of the Board heard the matter and formed a Committee of some persons of Bhusaula, Danapur and registered the same as Wakf vide Registration No. 1488 but did not pass any order. It has been alleged that the said Committee was constituted under the political pressure and no enquiry was made. It has been stated that the plaintiffs filed a petition before the Government making statement that the property in question was not a wakf property and without proper enquiry as provided under Section 27 of the Wakf Act, the property has been registered as wakf property, as aforesaid.
6. It has been stated that vide letter dated 20th September 1977, order was given to the Special 6 Patna High Court CWJC No.1531 of 2012 (14) 6 / 53 Officer, Wakf Board to enquire into the matter and report to the Government. The matter was enquired into and on the basis of the enquiry report, the Special Officer recommended for release of plot no. 819 and accordingly, on 14th November 1977 the said plot was released. It has further been stated that Khujista Bano and Mahmood Hassan when learnt about the registration of the property as a wakf they filed an objection before the Government and the Government of Bihar ordered to deregister and all plots of Wakf Registration No. 1488, including plot Nos. 755, 756 and 829 and, accordingly, the Special Officer deregistered the same vide order dated 12th January 1978. It has been further stated that after lapse of thirty years, on 5th October 2010 the Board has issued letter No. 1402 under Section 54 of the Act, to show cause for the purpose of removal of the encroachment. It has been stated that there was no record in the name of Abdul Rauf to show that the plot Nos. 755, 756 and 829 were entered as Wakf property and it appears from the record that the Chief Executive Officer vide order dated 26th/29th February 2008 passed the order for removal of the 7 Patna High Court CWJC No.1531 of 2012 (14) 7 / 53 encroachment, without following the mandatory provisions of the law and claimed that the order passed by the Chief Executive Officer is liable to be set aside. The said order of Chief Executive Officer was challenged in T.S. No. 4/2008/1/2009 before the Tribunal and the same was decided against the petitioners which is under challenge.
7. During the trial, one Azimuddin, respondent no.3 claimed to be the Mutwalli who was later on added as defendant who filed his written statement. The defendant-respondent Wakf Board filed written statement stating that the plaintiffs before filing the suit, did not comply the mandatory provisions of Section 89 of the Act and claimed that the suit is to be dismissed on this ground alone. In the written statement it has been stated that Abdul Rauf and his wife died in the year 1948 leaving behind three sons, namely, Abdul Masood, Abdul Wadood and Abdul Mabood and one daughter Farkunda Bano who inherited the property of Abdul Rauf. It has further been stated that Hakim Abdul Rauf and his wife Bani Fatima dedicated the above plots 8 Patna High Court CWJC No.1531 of 2012 (14) 8 / 53 orally as Wakf Fisabilillah in presence of witnesses for religious and social purpose, like Masjid, Madarsa, Kabristan, Musafirkhana etc. in the name of Allah. It has been stated by the Board that in 1973, on receipt of an application by the public of the locality, the property was registered as wakf property vide Registration No. 1488 and constituted a Managing Committee under Section 78 of the Act. It has been further stated that after the resignation of Samsul Hassan, Md. Azimuddin was appointed as Secretary of the aforesaid Wakf in the year 1976.
8. In view of the judgment of this Court in C.W.J.C.No. 1193 of 1986, on 4th December 1986, a Managing Committee was constituted. It has further been stated that the Wakf Board passed the order dated 28th June 1979 and the Deputy Secretary, Law Department, Government of Bihar already confirmed the decision of the Board. It has further been stated that Title Suit No. 114 of 1982 was filed by one Arshad Kamal for declaration of his title of the said property claiming that the property in question is not a Wakf property but during 9 Patna High Court CWJC No.1531 of 2012 (14) 9 / 53 the pendency of the suit, Arshad Kamal after the order of deregistration dated 12th January 1978, the suit was withdrawn. The said order of deregistration was challenged by Azimuddin, respondent no.3 before this Court in C.W.J.C. No. 1193 of 1996. This Court set aside the deregistration.
9. The respondent no.3 has also filed a written statement where he has claimed that he is Mutwalli of the said property where it has been stated that neither Khujista Bano nor sons of Mahmood Hassan inherited the property nor they came in possession. It has further been stated that the Wakf property was registered in the year 1973, entry was made in the Register of Wakf Board vide Registration No. 1488 and it has been further stated that once a property is created as wakf property it continues to be wakf property and there cannot be deregistration of the same. It has been claimed by the defendants that the property in question was declared as wakf Fisabilillah in presence of witnesses, namely, (i) Sheikh Razi Ahmad, (ii) Dr.Md. Iliyas, (iii) Hafeez (iv) Abdul Majeed and (v) Hakeem Mohammad Ishaque and 10 Patna High Court CWJC No.1531 of 2012 (14) 10 / 53
(vi) Abdul Rauf himself.
10. Abdul Rauf, became Mutwalli and later on he nominated Maulana Ishaque as Mutwalli and Maulana Ishaque nominated Md. Mahmood Hassan as Mutwalli in the year 1967.
11. Md. Mahmood Hassan was mismanaging the property and, as such, three applications were filed to the Wakf Board for its registration and, accordingly, the property in question was registered as Wakf property. Accordingly, notices were issued to Mahmood Hassan and in spite of service of notice, he did not challenge the notice as aforesaid and in this way, the property has been registered as Wakf Fisabilillah. As the petitioners were issued notice under Section 54 of the Wakf Act 1954 by the Chief Executive Officer for removal of encroachment and considering the objection the petitioners were asked to removed the same which was subject matter of the suit and the suit was decided. Hence, this writ petition is under consideration.
Points raised by the Petitioners:
12. In this case the petitioners have raised a 11 Patna High Court CWJC No.1531 of 2012 (14) 11 / 53 point that the Wakf Board while entering into its register on receipt of application, it was required to make enquiries after giving notice to the affected parties, but in the present case, the mandatory provisions which is part of Section 25 of the Wakf Act 1954 was not followed and, as such, the registration of the property in question as Wakf property is vitiated for non-compliance of Section 27 of the Wakf Act. The 2nd point that has been raised is that in 1978 on an application, the property in question was deregistered by the Government and the order of deregistration has not been modified or set aside by any court or authority and, as such, the proceeding initiated against them under Section 54 of the Wakf Act 1995 is completely illegal and not sustainable in law. It has further been contended that the Tribunal has not considered this aspect of the matter and passed the order on the premise that the property in question was registered. Another point that has been raised is that the property in question was never a Wakf property as that was never dedicated by Md. Rauf, rather it was always a private property of his Fufera sister Khujista 12 Patna High Court CWJC No.1531 of 2012 (14) 12 / 53 Bano and thereafter Mahmnood Hassan as Abdul Rauf and their sons were living at Kolkata and on their death, Khujista Bano and her son Mahmood Hassan became the absolute owner.
Points raised by Respondents:
13. In contra, it has been submitted by the private respondents that the property in question is a Wakf property, originally it was belonging to Md. Rauf who declared and dedicated the property in question as Wakf property for the benefit of public for Masjid, Musafirkhana etc. and later on these petitioners illegally occupied those properties. It has further been submitted that at the first occasion, Md. Rauf was Mutwalli and at a later stage Mahmood Hassan was declared to be the Mutwalli when he had started misusing the Wakf property then in the year 1973, persons of the locality had filed three applications dated 1st February 1973, 5th February 1973 and 15/17th February 1973. It has further been submitted that on receipt of the application, the Wakf Board has issued notice (Ext-G-series) to Mahmood Hassan and after proper enquiry, the property 13 Patna High Court CWJC No.1531 of 2012 (14) 13 / 53 was registered as Wakf property. It has further been submitted that the aforesaid applications bear the signatures of villagers, including, Haider Imam, Md. Okasi Ahmad, Amanullah, father of plaintiff No.6. It has further been argued that Bihar State Sunni Majlis-e- Auqaf appointed Mr. Amanullah, father of plaintiff No.6 as Assistant Secretary of the Wakf Estate No. 1488 and, as such, the claim of the plaintiff-petitioners that the land in question is not a Wakf property, rather a private property is completely not sustainable in law and falsified from the fact that it is his father who had also put his signature on the application and later on appointed as Assistant Secretary. It has further been argued that the registration of the property as Wakf was never challenged either by the original vendor Md. Mahmood Hassan and the vendor of the petitioners. Even the petitioners in their suit have not challenged the registration of the property. It has been further argued that once the property has been given to Wakf, it is dedication to the Almighty. Once a Wakf always a Wakf Neither the Wakif nor the Mutwalli can have a right, title over the property nor they 14 Patna High Court CWJC No.1531 of 2012 (14) 14 / 53 can withdraw the dedication. It has further been submitted that vide Letter dated 16th June 1976 letter was sent to Mahmood Hassan to remove the encroachment and vacate the premises. It has further been submitted that heirs and successor of Abdul Rauf did not challenge the registration, when the original vendor did not challenge the same, the present petitioners whose vendor also did not challenge the registration are estopped to challenge the registration. It has further been submitted that after the dedication of the property to Wakf, any transfer without permission of the Wakf Board is a void transaction and does not confer any right, title over the property. It has further been submitted that according to Section 6 of the Wakf Act 1954, the limitation prescribed for challenging the registration by filing a suit is one year from the date registration of the property and, as such, the suit that was filed before the Tribunal was/is barred by limitation. It has further been submitted that the order for deregistration was obtained under political influence which is not sustainable in law as any order passed by the Chief Executive Officer is completely a void order. 15 Patna High Court CWJC No.1531 of 2012 (14)
15 / 53 The Wakf Board has also supported the private respondents reiterating the aforesaid submissions and, as such, it is not required to repeat the same again.
14. In view of the aforesaid submissions of the parties, it is apt and desirable to examine different provisions of the Wakf Act 1954 and the relevant judgments of the Hon'ble Supreme Court as also of different High Courts, including this Court for coming to right conclusion in the present case.
Section-2(l) ―wakf‖ means the permanent dedication by a person professing Islam of any movable property for any purpose recognized by the Muslim law as pious, religious or charitable and includes--
(i) a wakf by user;
(ii) grants (including mashrut-ul- khidmat) for any purpose recognized by the Muslim law as pious, religious or charitable: and
(iii) a wakf-al-al-aulad to the extent to which the property is dedicated for any 16 Patna High Court CWJC No.1531 of 2012 (14) 16 / 53 purpose recognized by Muslim law as pious, religious or charitable; and ―wakif‖ means any person making such dedication; Section-5. Publication of list of wakf. -(1) On receipt of a report under sub-section (3) of section 4, the State Government shall forward a copy of the same to the Board. (2) The Board shall examine the report forwarded to it under sub- section (i) and publish, in the Official Gazette, a list of wakfs (in the State, or as the case may be, the part of the State, whether in existence at the commencement of this Act or coming into existence thereafter) to which the report relates and) containing such particulars as may be prescribed.
Section-6. Disputes regarding wakfs. -(1) If any question arises (whether a particular property specified as a wakf property in a list of wakfs published under sub-section (2) of section 5 is a Wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf) the 17 Patna High Court CWJC No.1531 of 2012 (14) 17 / 53 Board or the Mutwalli of the wakf or any person interested therein may institute a suit in a civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be final:
Provided 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 wakfs under sub-section (2) of section 5.
(2) Notwithstanding anything contained in sub-
section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit.
(3) The (Survey Commissioner) shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules made thereunder.
18 Patna High Court CWJC No.1531 of 2012 (14)
18 / 53 (4) The list of wakfs 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.
(5) On and from the commencement of the Wakf (Amendment) Act, 1984 in a State, no suit or other legal proceeding shall be instituted or commenced in a civil court in that State in relation to any question referred to in sub-section (1).
Section-25. Registration.--(1) Every wakf whether created before or after the commencement of this Act shall be registered at the office of the Wakf Commissioner.
(2) Application for registration shall be made by the Mutwalli;
Provided that such application may be made by the wakif or his descendants or a beneficiary of the wakf or any Muslim belonging to the sect to which the wakf belongs.
(3) An application for registration 19 Patna High Court CWJC No.1531 of 2012 (14) 19 / 53 shall be made in such form and manner and at such place as the Wakf Commissioner may prescribe and shall contain the following particulars, so far as possible--
(a) a description of the wakf properties sufficient for the identification thereof;
(b) the gross annual income from such properties;
( c) the amount of land revenue and cesses and of all rates and taxes annually payable in respect of the wakf properties;
(d) an estimate of the expenses annually incurred in the realization of the income of the wakf properties;
(e) the amount set apart under the wakf for -
(i) the salary of the Mutwalli and allowances to individuals;
(ii) purely religious purposes;
(iii) charitable purposes; and 20 Patna High Court CWJC No.1531 of 2012 (14) 20 / 53
(iv) any other purposes;
(f) any other particulars prescribed by the Wakf Commissioner.
(4) Every such application shall be accompanied by a copy of the wakf deed or if no such deed has been executed or a copy thereof cannot be obtained, shall contain full particulars as far as they are known to the applicant, of the origin, nature and objects of the wakf.
(5) Every application made under sub-section (2) shall be signed and verified by the applicant in the manner provided in the Code of Civil Procedure, 1908 for the signing and verification of pleadings.
(6) The Wakf Commissioner may require the applicant to supply any further particulars or information that he may consider necessary.
21 Patna High Court CWJC No.1531 of 2012 (14)21 / 53 (7) On receipt of an application for registration the Wakf Commissioner may, before the registration of the wakf, make such inquiries as he thinks fit in respect of the genuineness and validity of the application and the correctness of any particulars therein and when the application is made by any person other than the person administering the wakf property, the Wakf Commissioner shall, before registering the wakf, give notice of the application to the person administering the wakf property and shall hear him if he desires to be heard.
(8) In the case of wakfs create before the commencement of this Act, every application for registration shall be made, within three months from such commencement and in the case 22 Patna High Court CWJC No.1531 of 2012 (14) 22 / 53 of wakfs created after such commencement, within three months from the date of the creation of the wakf.
(9) Every wakf registered under this section before the commencement of the Wakf (amendment) Act, 1984 shall be deemed to have been registered on such commencement, at the office of the Wakf Commissioner.
(10) Every application for registration under this section pending immediately before the commencement of the Wakf (Amendment) Act, 1984 before the Board shall, on such commencement, stand transferred to the Wakf Commissioner and the Wakf Commissioner shall deal with such application as if it were an application pending before him.
23 Patna High Court CWJC No.1531 of 2012 (14)23 / 53 Section-26. Register of wakfs. - The Board shall maintain a register of wakfs which shall contain in respect of each wakf copies of the wakf deeds, when available and the following particulars namely:
(a)the class of the wakf;
(b) the name of the Mutwalli;
(c ) the rule of succession to the office of Mutwalli under the wakf deed or by custom or by usage;
(d) particulars of all wakf properties and all title deeds ad documents relating thereto;
(e) particulars of the scheme of administration and the scheme of expenditure at the time of registration;
(f) such other particulars as may be prescribed.
Section-27. Decision if a property is wakf 24 Patna High Court CWJC No.1531 of 2012 (14) 24 / 53 property. -
(1) The Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not or whether a wakf is a Sunni wakf or a Shia wakf, it may, after making such inquiry as it may deem fit, decide the question.
(2) The decision of the Board on any question under sub-section (1) shall, unless revoked or modified by a civil court of competent jurisdiction, be final.
Section-28. Power to cause registration of wakf and to amend register. - The board may direct a mutwalli to apply for the registration of a wakf, or to supply any information regarding a wakf or may itself cause the wakf to be registered or may at any time amend the register of wakfs. 25 Patna High Court CWJC No.1531 of 2012 (14)
25 / 53 Section-36A. Transfer of immovable property of wakfs. - Notwithstanding anything contained in the wakf deed, no transfer of any immovable property of a wakf by way of
(i) sale, gift, mortgage or exchange; or
(ii) lease for a period exceeding three years in the case of agricultural land, or for a period exceeding one year in the case of non-
agricultural lad or building, shall be valid without the previous sanction of the Board.
Section-36B. Recovery of wakf property transferred in contravention of section 36A.
(1) If the Board is satisfied, after making an inquiry in such manner as may be prescribed, that any immovable property of a wakf entered as such in the register of wakfs 26 Patna High Court CWJC No.1531 of 2012 (14) 26 / 53 maintained under section 26, has been transferred without the previous sanction of the Board in contravention of the provisions of section 36A, it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it.
(2) On receipt of a requisition under sub-section (1), the Collector shall pass an order directing the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order.
(3) Every order passed under sub-
section (2) shall be served -
(a) by giving or tendering the order or by sending it by post to the person for whom it is intended; or
(b) if such person cannot be found, 27 Patna High Court CWJC No.1531 of 2012 (14) 27 / 53 by affixing the order on some conspicuous part of his last known place of abode or business, or by giving or tendering the order to some adult male member or servant of his family or by causing it to be affixed on some conspicuous part of the property to which it relates;
Provided that where the person on whom the order is to be served is a minor, service upon his guardian or upon any adult male member or servant of his family shall be deemed to be service upon the minor.
(4) Any person aggrieved by the order of the Collector under sub-
section (2) may, within a period of thirty days from the date of the service of the order, prefer an appeal to the district court within whose jurisdiction the property is situated and the decision of the district court on such 28 Patna High Court CWJC No.1531 of 2012 (14) 28 / 53 appeal shall be final.
Explanation - In this sub-section, ―district court means, in any area for which t here is a city civil court, that court, and, any other area, the principal civil court of original jurisdiction.
(5) Where an order passed under sub-section (2) has not been complied with and the time for appealing against such order has expired without an appeal having been preferred or the appeal, if any, preferred within that time has been dismissed, the Collector shall obtain possession of the property in respect of which the order has been made, using such force, if any, as may be necessary for the purpose and deliver it to the Board.
(6) in exercising his function under this section the Collector shall be 29 Patna High Court CWJC No.1531 of 2012 (14) 29 / 53 guided by such rules as may be made in this behalf by the State Government.
Section-62. Directions by the Central Government. -
(1) The Central Government may issue such directions, as it may think fit, on questions of policy to be followed by a Board and for issuing such directions it may call for any periodic or other report or information from any Board through the Government of the State concerned.
(2) In the performance of its functions under this Act, the Board shall be guided by the directions issued under sub-section (1).
Section-63. Directions by the State Government. - Subject to any directions on questions of policy issued under section 62, the State Government may, from time to time, give to 30 Patna High Court CWJC No.1531 of 2012 (14) 30 / 53 the Board such general or special directions as the State Government thinks fit and in the performance of its functions, the Board shall comply with any such directions.‖ 15 It is important before delving into merit, it is desirable to find out the meaning of ‗Wakf' and its categories which has been elaborately discussed by this Court in a judgment reported in AIR 1975 Pat. 48 (Asma Jafar Imam v. State of Bihar):.
―Para-11. A 'Wakf', in its primitive sense, means a "detention". In the language of the Muslim Law, it signifies a dedication of a thing (corpus) in the implied ownership of the Almighty in such a manner that its profits (usufruct) may revert to, or be applied for, the benefit of the mankind; and that its validity is founded on the Rule laid down by the Prophet himself, who declared "tie up the property, (Aslcorpus) and devote the usufruct to human being; it is not to be sold or made the subject of gift or inheritance; 31 Patna High Court CWJC No.1531 of 2012 (14)
31 / 53 devote its produce to your children or kindred and poor in the way of God". As such, a wakf extinguishes the right of the wakif or the dedicator and transfers the ownership to God. The Mutawalli is the manager of the wakf, but the property does not vest in him. The purpose for which a wakf could be created must be one recognised by the Mahomedan Law as religious, pious or charitable‖.
16. Under the Mohammedan Law, Wakf are of two types, public and private. A Wakf is one for public religious or charitable purpose. A private Wakf is one of the benefit to the settlers' family and his or her descendants which is generally called ‗Wakf-Alal-aulad' A Wakf which is public wakf comes under the supervision and control of Wakf Board but in a Wakf, where beneficiaries were descendants of Wakif cannot be treated as one for charitable purpose, even under the Mohammedan law and it will be out side jurisdiction of Wakf Board.
32 Patna High Court CWJC No.1531 of 2012 (14)
32 / 53
17. This issue has been considered by this Court in the case of Asma Jafar Imam (supra)75 .This Court has gone deep and made an analysis of the Wakf Act. The following extracts of the judgment will be very much relevant for consideration of this case:
―In my opinion, in a wakf-alal-aulad if there is specific dedication of any property for any purpose recognised by the Muslim law as religious or charitable, to that extent it will be deemed to be a 'wakf' within the meaning of the 1954 Act and the provisions of that Act will apply to that extent. The properties which have been dedicated for such purposes will be within the supervision and control of the Board. If this interpretation is adopted, then effect is given to the words "to the extent to which the property is dedicated for any purpose recognised in Muslim law as pious, religious or charitable" occurring in Section 3 (1) (iii).
A private gift to one's own self or kith 33 Patna High Court CWJC No.1531 of 2012 (14) 33 / 53 and kin may be meritorious and pious but is not a charity in the legal sense and the Courts in India have never regarded such gifts as for religious or charitable purposes even, under the Mahomedan Law.
Further in Abul Fata Mahomed Ishak's case. (1895) 22nd Apr. 76 (PC) the Privy Council clearly held that a wakf under which the beneficiaries were the descendants of the wakif could not be treated as one for a charitable purpose even under the Mahomedan law."
18. The aforesaid view has been derived from Thakur Md. Ismail vs. Thakur Sabir [(1962) SC 1728 ] from which it is clear that Hon'ble Supreme Court accepted the view of Privy Council decision holding that a wakf-alal-aulad is not related to any religious or charitable purpose. The Court further held as follows:
―If the words to the extent to which the property is dedicated for the purpose recognized by 34 Patna High Court CWJC No.1531 of 2012 (14) 34 / 53 Muslim law as pious, religious or charitable" have to be given some meaning, it has to be held that they do not relate to the mere act of making provision for the children and descendants in a wakf-alal-aulad. I am of the opinion that only such wakfs-alal-aulad in which simultaneously with the making provision for family members and descendants some property is dedicated for any purpose which is recognised as pious, religious or charitable by Muslim law, will be covered by the definition of 'wakf'. To that extent, the Board will have jurisdiction. This view is supported by the aforesaid two decisions of the Madras High Court in M. A. Bhaimia, (1968) 1 Mad LJ 410 and V. Mohammed Mohin, AIR 1968 Mad 243‖.
―As I have already held that the wakf in question is a wakf-alal-aulad strictly in terms of the 1913 Act, where it is not possible to find out the extent to which the properties have been dedicated for purposes which are pious, religious or charitable, I am left with no option but to hold that 35 Patna High Court CWJC No.1531 of 2012 (14) 35 / 53 the provisions of the 1954 Act are not applicable to the said wakf-alal-aulad and as such the respondent Board has no jurisdiction to interfere with the administration and management of the Imam Wakf Estate‖.
19. On analysis of aforesaid judgment, if the Wakf is completely for the benefit of children and descendants only it will not be covered under Wakf Act 1954, but Wakf-alal-aulad in which some properties are meant for family member and descendants and some properties are dedicated for the purpose which is recognized as pious, religious or charitable will be wakf and the properties will be under the control of the Wakf Board.
20. In a judgment reported in AIR 2003 Kerala 366 (A.B.P.Haji v. Cheriyakoya) the Court has examined the provisions of the Wakf Act and the nature of wakf as provided under the Wakf Act 1995. In this case the Court has held that for making a valid wakf, a person should be of sound mind, he should be major person, neither a minor nor a guardian on behalf of 36 Patna High Court CWJC No.1531 of 2012 (14) 36 / 53 minor can make a wakf. The first essential condition for creating a valid wakf is that the declaration of dedication should be made contemporaneously with the act of dedication and the person must divest himself of the ownership of the property. Physical delivery of the property is not essential but such possession as is possible must be given. For a wakf, three essential features are necessary:
i) perpetuity,
ii) irrevocability, and
iii) inalienability.
21. A wakf can also be created through a testament containing the desire of a wakif to take effect after his death. The Court has considered the power of the Wakf Board and the Kerala High Court was of the view that considerable power has been conferred on the Tribunal by entertaining appeal, application to resolve various disputes relating to Wakf and Wakf property. Therefore, when a dispute raised before the Wakf Tribunal or in a civil suit, the Tribunal and the court have to examine whether those disputes are within the 37 Patna High Court CWJC No.1531 of 2012 (14) 37 / 53 jurisdiction of the Tribunal by way of suit, appeal or application. If the civil court finds that it would fall within the jurisdiction of the Tribunal, it would leave to the Tribunal to resolve the dispute. The Tribunal will adjudicate the dispute relating to the Wakf or Wakf property under the Wakf Act as well as any dispute, question or other matter required by or under the Wakf required to be resolved by the Tribunal such dispute would be decided by the Tribunal, not by the civil court. It has been held that under Section 54 of the Wakf Act 1994, the Tribunal has a power to resolve the dispute relating to the encroachment on any land, building, space or other property which is Wakf property. The Court has held that the Wakf Act is complete Code by itself and the intention of legislature is to provide for better administration of Wakf and for matter connected therewith and incidental thereto. This judgment gives a clear idea about the nature of the Wakf and the power of Tribunal in deciding the issue.
22. The Hon'ble Supreme Court has considered the Wakf and the power of Wakif in a 38 Patna High Court CWJC No.1531 of 2012 (14) 38 / 53 judgment reported in (2007)4 SCC 632 (Chhedi Lal Misra v. Civil Judge) and has held that the Wakif stand divested of his right to the property after creation of Wakf vests in the Almighty. It has further been held that in the given case may be a question if it is shown that the Wakif has no intention to create the Wakf but has done so to avoid liability. In the present case, Wakf has been made in the year 1973. The original Wakif did not challenge the registration of the Wakf and once the wakf is created, Wakif stands divested of his title to the property which after the creation of wakf vests in the almighty.
23. In another judgment reported in 1997(1) PLJR 689 (Azimuddin v. Arshad Kamal) this Court was considering the another property of the present Wakf No. 1488. There also the dispute arose with regard to power and effect to delete/deregister the Wakf property. As in that case and the present case also it has been claimed that in 1978, the Special Officer of the Board ordered deregistration of the property in question from the Wakf Register the point was raised about the 39 Patna High Court CWJC No.1531 of 2012 (14) 39 / 53 power to deregister the property from the Register of the Wakf Board. In the present case and also in the case referred above, was alleged by the respondents that the petitioners approached the Minister concerned, put political pressure on the Board to release the property in question and ultimately the property was deregistered/amended exercising the power under Section 28 of the Wakf Act 1954. The Court has considered the purview and ambit of Section 28 and held that the Act has not given any power to release a particular plot of land and declared that the same shall be treated as Wakf property. Section 28 of the Act which relates to amendment of Register only, provides that the Board may direct the Mutwalli to apply for registration of Wakf or to supply any information regarding the Wakf or may himself cause the Wakf to be registered or may at any time amend the Register of the Wakf. The amendment of Register of Wakf is necessitated when a change is made by adding new Wakf or any order passed by the Wakf Board. No power is given under Section 28 to declare that the property recognized as Wakf property be deleted 40 Patna High Court CWJC No.1531 of 2012 (14) 40 / 53 from the Wakf property. If any person is interested in claiming that a particular property is not a Wakf property, he must first raise the dispute under Section 27 and not thereafter, such property may be declared to be not Wakf property if the Board so decides and if the Board on the other hand decided that the property is Wakf property that decision has to be challenged before the Civil Court of competent jurisdiction (now Tribunal) In that case it has been recorded that the reason why the Chairman thought it necessary to release the land and treat the same as non-wakf property was not shown to the court and the court has further held that the Wakf Act does not vest power to the State Government to direct the Board to treat the Wakf property as non-wakf property. The Chairman, therefore, acted wholly on extraneous consideration and the court has held that the order passed by the Chairman is vitiated, as it was found it suffers from malice in fact as well as malice in law and the Court has declared the deletion or deregistration of the property as non-wakf property was illegal and void.
24. This Court in another judgment 41 Patna High Court CWJC No.1531 of 2012 (14) 41 / 53 reported in 1990(1) PLJR 287 Md. Abbas v. A.G.M.Trust has held that once a Wakf property is registered, it is not revocable. Even if there is a condition, the dedication part will be valid, other conditions are void and that may be ignored. The Court has reiterated the well known principle that once a dedication always a dedication. The Court has further held that no actual delivery of possession is very much required. The Wakf is complete and valid and it is not irrevocable. Thus, according to the judgment of this Court (supra) even if the plaintiff has pleaded that the possession of property was not handed over, it cannot be said that the Wakf was not complete. A Wakf inter vivos is completed even by a mere declaration of endowment by the owner.
25. This Court in a judgment reported in 1976 BBCJ 274 (S.S.Bhaduri v Sunni Waqf Board) has held that if the property has not been registered in Wakf Board but the Wakf Board claiming certain property as Wakf property asking the Collector to take possession of the property not entered into the Register is bad as it is required that before claiming the property of the Wakf it 42 Patna High Court CWJC No.1531 of 2012 (14) 42 / 53 is required to give notice to the affected parties. But in this case notice was given to Mahmood Hassan the then Mutawalli, but he did not respond and after registration, neither the heirs and successors of Abdul Rauf has challenged the registration of the property nor Khujista Bano or her son Mahmood Hassan challenged registration of property and later on even the vendor of the petitioners did not challenge the same.
26. On analysis of the aforesaid judgments, it appears that once a property has been declared to be Wakf property, neither the Wakif nor Mutwalli has power and jurisdiction to withdraw the said property from the Wakf. Once a Wakf, always a Wakf as the property is given to the Almighty. The right has been conferred only at a stage of Section 27 of the Wakf Act 1954. There the party can challenge the registration and claiming that the property is not wakf property but Section 28 of the Wakf Act does not confer any power to deregister or delete the property once the property has validly been registered.
27. In view of the aforesaid principles as have been stated hereinabove, let us examine the merit of 43 Patna High Court CWJC No.1531 of 2012 (14) 43 / 53 the case of petitioners. The petitioners basically have submitted that the Board while making registration of the property as a Wakf property has not followed the provisions of Section 25 of the Wakf Act 1954, so much so as the Board did not follow the procedure laid down under Section 25(7) of the Act, as it is the mandate of law that when an application is received for registration, the Board may before registering the property as Wakf property make such inquiries as it thinks fit in respect of the genuineness and validity of the application and the correctness of any particulars therein and when the application is made by any person other than the person administering the wakf property the Board shall, before registering the wakf, give notice of the application to the person administering the wakf property and shall hear him if he desires to be heard.
28. It appears from the records that after receipt of the application for registration, a show cause notice dated 1st February 1973 (Ext.G) was issued to Mahmood Hassan but he did not appear and after due inquiry and after being satisfied that the suit properties 44 Patna High Court CWJC No.1531 of 2012 (14) 44 / 53 are wakf property and declared the same as wakf property dedicated by Abdul Rauf and his wife for the social and religious purpose in the name of Allah. It is very relevant to say that after registration neither Abdul Rauf nor his wife nor his sons and daughter Khujista Bano and her son Mahmood Hussain who at the relevant time was Mutwalli ever challenged the registration of the Wakf which was registered as Regd. No. 1488. It is also relevant to mention here that even thereafter the vendors of the petitioners did not challenge the same. It is well known principle of law that the petitioners cannot get better right and title than to his vendor.
29. The proviso to Section 6(1) of the Wakf Act provides a limitation for one year for challenging the registration of the suit property and it has been specifically stated that no such suit shall be entertained which is compulsorily in a mandatory form. It is admitted fact that after 1973, till date, no one has challenged the registration of the property. Even the petitioners have not challenged the registration before the Tribunal but, they have taken the plea that the properties were deregistered 45 Patna High Court CWJC No.1531 of 2012 (14) 45 / 53 later on. So at this stage, the petitioners cannot be allowed to challenge the registration of the said property as a Wakf property. In this view of the mater, the point raised by the petitioners for non-compliance of Section 25 of the Wakf Act is not tenable as Mahamood Hussain was given notice but he did not challenge the same being not a Wakf property so much so that in a situation when father of plaintiff No.6 had put his signature on the applications of registration and was appointed as Assistant Secretary of Wakf Board and, as such this point raised by the petitioners is rejected.
30. As this Court and the Hon'ble Supreme Court have held that once the property has been given in Wakf, it cannot be withdrawn. The Wakif and Mutwalli do not possess the power to withdraw the same, though it can be challenged and it can be shown that there was no intention to create the Wakf but to avoid the liability. In the present case, it is out and out a Wakf property and once Abdul Rauf had declared the property as Wakf property and that too, when it was registered in the year 1973, no person has a right to revoke or withdraw the 46 Patna High Court CWJC No.1531 of 2012 (14) 46 / 53 Wakf. Once a Wakf, always a Wakf. It is also clear that any alienation by any person even by the Wakif or Mutwalli without approval of the Board is a nullity and no authority has power to deregister the property from the list of the Wakf. This Court in Azimuddin's case (supra) has held that once the property has been registered as Wakf property, even the Board does not have the power to release the particular plot of the land and, as such any transfer made by Mahmood Hassan is completely nullity and it does not confer any right, title to any person.
31. With regard to registration, it has be en submitted that the land in question was the property of Khujista Bano, after her death, of Mahmood Hussain executed the sale-deed in the year 1976. It has further been submitted that while giving boundary, Hassan Imam and others raised the objection that the property in question is a Wakf of Sunni Wakf Board, Patna. Arshad Kamal and Khurshid Kamal filed objection before the Government of Bihar and the Government of Bihar heard under Section 63 of the Wakf Act and gave direction to 47 Patna High Court CWJC No.1531 of 2012 (14) 47 / 53 the Special Officer of the Board vide letter dated 20th September 1977 to enquire into the matter as to whether the property in question is a Wakf Property or not. The Special Officer, after receipt of the order went and enquired at the spot and submitted his report dated 11th November 1977 and the Special Officer after due enquiry vide order dated 12th January 1978 released the property. It has been argued that this order was never challenged before any authority.
32. Counsel for the respondents submitted that after Arshad Kamal and Khurshid Kamal had created the dispute on the basis of aforesaid sale-deed which led to a proceeding under Section 145 Cr.P.C. and the mutation proceeding. It has been further submitted that Title Suit No. 114 of `1982 was filed which is Ext-D for declaration of his title and for declaration that the said properties are not Wakf properties and subsequently the suit was withdrawn and later on the property in question was deregistered under the political pressure. It has been submitted that the deregistration was challenged before this Court in Azimuddin's case (supra) and this Court has 48 Patna High Court CWJC No.1531 of 2012 (14) 48 / 53 held that it was a Wakf property even the Board has no power to recall or withdraw the property from the list of Wakf. The Court while deciding the issue of deregistration has noticed the submission of the respondents about the political approach and has held that the impugned order was a cryptic order passed on irrelevant consideration due to pressure upon the Board to release the land in question and does not show that the release was made in favour of Wakf. There is nothing in the law which vests power in the State Government to direct the Board to treat the Wakf property as non-wakf property and, as such, the Special Officer has acted wholly on extraneous consideration and, as such, his action was declared to be mala fide in law as well as mala fide on facts.
33. In view of the judgment of this Court in Azimuddin's case (supra) there is little scope for this Court to adjudicate the matter, when the issue has already been settled, as it has been held that after giving property in Wakf, no one can withdraw the same and, as such, any transfer will be nullity and this Court in Azimuddin's case 49 Patna High Court CWJC No.1531 of 2012 (14) 49 / 53 (supra) has dealt with the scope of Section 28 of the Act and found that no such power has been conferred either on the Government to give such direction or to the Board to release the property in question. In this view of the matter, the contention of the petitioners that the property has been deregistered has no meaning and it will be deemed that the property was never released from the list of Wakf Board and it remained as Wakf property. The issue that has been raised by the petitioner with regard to deregistration is not sustainable in law and the same is rejected.
34. In this connection, it will also be relevant to state that Mahmood Hassan son of Khujista Bano had filed Title Suit No. 76 of 1981 before the Sub-ordinate Judge, Patna seeking a declaration that his mother was Fuferi sister of Abdul Rauf and after his death, his mother inherited the property of Abdul Rauf. The plaint has been marked as Ext-M. From the plaint it appears that Md. Mahmood Hussain has not sought any decree of declaration with regard to the property in question. It also appears that in the aforesaid title suit, a petition dated 29th 50 Patna High Court CWJC No.1531 of 2012 (14) 50 / 53 April 1987 was filed by Attorney of Abdul Masood son of Abdul Rauf with a prayer to implead him as a party which was allowed on 25th November 1987 which remained unchallenged and ultimately the suit was dismissed for default vide order dated 3rd September 1993. The written statement (Ext-N) also acknowledged that Abdul Rauf has created the Wakf and did not challenge the registration.
35. On analysis of Section (9) of Section 83 of the Wakf Act 1995 the Legislature has conferred the power to the High Court of its own motion or on application by the Board or by any aggrieved person to call for and examine the records and get satisfied about ―the correctness, legality or propriety of such determination‖ and may confirm, reverse or modify such determination or pass such other order as it may deem fit. As In this case the order of Tribunal has been challenged by the petitioner before this Court and this Court has to examine about the correctness, legality and propriety of the order.
36. It appears from the record that 51 Patna High Court CWJC No.1531 of 2012 (14) 51 / 53 altogether eight witnesses have been examined on behalf of petitioners whereas several documents were brought on the record and the same were marked Exhibits. Similarly the defendant 1st set i.e. Wakf Board has also brought on the records various documents and the defendants 2nd set has also brought large number of documents and in addition to the documents, also examined four witnesses to prove the factum of dedication of the property as Wakf Fisabilillah by Abdul Rauf and his wife Bani Fatima and all the witnesses have proved the factum of dedication. The court below has examined threadbare the documents as well as oral statement made by the witnesses and has recorded the finding that the public petition Form No.4 factum of enquiry by the Wakf Board and the order shows that the disputed plots were dedicated as Wakf Fisabilillah of Abdul Rauf and Bani Fatima in presence of various persons of the locality.
37. The court has also considered the issue of deregistration and has held that the material available on the record clearly shows that the order of 52 Patna High Court CWJC No.1531 of 2012 (14) 52 / 53 deregistration was already set aside and the properties were again registered by the Wakf Board. The record is full of facts that political pressure made for deregistration but all failed before the court of law and has further held that once the property is registered, it cannot be deregistered. Only aspect to be considered is whether the registration was in accordance with law and this can be done before the civil court.
38. The learned Tribunal has further held that it is admitted principle of law that once a property is registered, it cannot be deregistered. It is admitted principle of law that when a property is dedicated as Wakf Fisabilillah its ownership goes to the Almighty and not to the Mutwalli. Hence, neither Mahmood Hassan nor his mother Khujista Bano has any right to sell or alienate or transfer the property in question. It is the settled principle that a vendor cannot supply better title than what he has. Accordingly, on the basis of aforesaid finding, the Tribunal has dismissed the petition.
39. This Court has examined the evidence available on the record and does not find any perversity 53 Patna High Court CWJC No.1531 of 2012 (14) 53 / 53 or illegality in the order passed by the learned Tribunal and the petitioner has not been able to shows that the findings recorded by the Tribunal are incorrect or perverse. As this Court has already held that Abdul Rauf and his wife dedicated the property as Wakf Property and the petitioners could not point out that the findings recorded by the Tribunal are in any way, illegal, perverse and not sustainable in law.
40. In this view of the matter, this petition fails as is not sustainable in the eye of law as well as on facts and accordingly, the same is dismissed.
Jay/- (Shivaji Pandey, J)