Andhra HC (Pre-Telangana)
Best India Tobacco Company, Rep. By ... vs Andhra Pradesh Wakf Board Rep. By Its ... on 8 July, 1993
Equivalent citations: 1993(2)ALT603
ORDER M.N. Rao, J.
1. In this Letters Patent Appeal, the only question that arises for consideration is whether the plaint schedule property is 'wakf property'.
2. The appellant is the first defendant in the suit. The respondent herein -Andhra Pradesh Wakf Board - has instituted the suit, O.S.No. 232 of 1973 for recovery of possession of the plaint schedule property ad measuring Acs.3-00 in S.No. 26 comprised in patta dakhal No. 764 in Tadikonda village within the Panchayat area of Tadikonda on the averments that the same is wakf property endowed for the maintenance and up-keep of the Ashurkhana at Tadikonda and for performance of Moharram festival every year, that the Mutawallies are performing the Moharram festival annually and that the Muslim public at large is treating the same as wakf property. After the Wakf Act (Act 29 of 1954) came into force, the State Government appointed a Commissioner to survey the Wakf properties and the Wakf Board published a list of wakf properties in the Andhra Pradesh Gazette Part II dated 28-6-1962 in which the suit property was shown as wakf property. Alleging that the Mutawallies alienated the suit property in favour of the 1st defendant - Partnership Firm - by way of written lease for a period of 25 years on 26-9-1990 far in excess of the statutorily prescribed period of three years without there being any legal necessity or beneficial use to the Ashurkhana, it was averred, the same is illegal and void. The first defendant in turn had leased out the said property in favour of the second defendant, which is void under law and the land has been put to non-agricultural purposes by the first defendant.
3. Resisting the suit, the first defendant contended in the written statement that they have taken on lease the suit property on an annual rental of Rs. 345/- for twenty five years from Sk. Hussan Bibi, wife of Sk. Munumaka Bazeed Saheb and her undivided sons Kaza Saheb, Shasuddin and Himayuddin on 26-9-1960 by a registered lease deed and that the same is the personal private property of the lessors, but not wakf property, as pleaded in the plaint. As the lease was long prior to the constitution of the Wakf Board and also the Gazette Notification listing the plaint schedule property as wakf property, the same would not in any manner affect their rights. The second defendant in his written statement has stated that he obtained lease for 8 years from 1-1-1966 to 31-12-1973 of the godown and vacant site from the first defendant, vacated the same and delivered possession after the lease period was over. He has been a bone fide lessee under the first defendant and was not aware of the nature of the plaint schedule property.
4. On the pleadings, the learned trial Judge framed as many as six issues, out of which issue No. 1 is "whether the suit property is wakf property".
5. During the course of the arguments, a contention was raised before the learned Judge that the first defendant was entitled to remain in possession of the suit schedule property by virtue of the provisions of the Andhra Pradesh (Andhra Area) Tenancy Act, but the same was rejected by the learned Judge on the ground that the said plea was not taken in the written statement. After considering the evidence -both oral and documentary - the learned Judge held that the suit property is wakf property. He has examined the entries in Ex.A-1 - the certified copy of the Inam Fair Register - and Ex. A-2 - the certified copy of the report of the Wakf Commissioner - and concluded that the Mutawallies are holding the office as hereditary trustees rendering all the necessary services for the administration of wakf which involved celebration of Moharram, meeting the expenses thereof and therefore, what was originally granted was an inam in favour of an institution, but not in favour of an individual. As the names of the original grantor and grantee are not found in the Inam Fair Register (Ex.A-1), the learned Judge expressed the view that, if for any reason it is to be held that the property is not wakf property, it became the wakf property at any rate, by user. The learned Judge, after considering the income from the suit property and other details, granted the decree attaching a condition to the effect that, if the first defendant does not enter into a contract with the plaintiff within one month from the date of the decree, agreeing to pay the rent of Rs. 400/- per annum towards the rent for the remaining period of the lease, the plaintiff will be entitled for future profits from the date of suit at that rate. Against the second defendant, the suit was, however, dismissed without costs.
6. On appeal, a learned single Judge of this Court affirmed the view of the learned trial Judge that the suit property is wakf property. Dealing with the question as to the nature of the land and the purpose for which the lease was obtained, the learned Judge expressed the opinion that "the lease is mainly for non-agricultural purposes of constructing shops for ginning mill and for the tobacco godowns etc. The recitals in the lease also mention permission for construction of shops. Under these circumstances, I hold that the A.P. (Andhra Area) Tenancy Act, has no application to the facts of this case."
7. As already mentioned at the threshhold, the only question that arises for consideration is whether the suit property is wakf property.
8. Sri Venkateswarlu, learned counsel for the appellant, has contended that, from the recitals of Ex.A-1 - Inam Fair Register, the conclusion inevitably follows that the property is not wakf property but it is an inam burdened with service. Alternatively, he contends that the suit property is the personal property of the ancestors of the lessors. If for any reason it is to be held that the suit property is wakf property, even then, the appellant cannot be thrown out of the land since they became tenants by virtue of the application of the provisions of the A.P. (Andhra Area) Tenancy Act.
9. Controverting these contentions, Sri S. Satyanarayana Prasad, learned counsel for the respondent - Wakf Board - urges that the appellant has no locus standi to question the nature of the property, whether it is wakf or personal property, when the inamdars themselves did not raise that plea. The documentary evidence considered by the trial Court clearly shows that the Mutawallies, the lessors of the appellant, have been rendering services to the institution and remitting amounts to the "Wakf Fund" and therefore, there is no manner of doubt that the property is wakf property. In accordance with the statutory requirements of the Wakf Act, survey was conducted and a list of the wakfs was prepared and published in the Gazette and that list includes the wakf property. The validity of such a list cannot be questioned after the expiry of one year from the date of its publication, which in this case is 28-6-1962. He also submits that it is not open to the appellant to raise the contention as regards the applicability of the provisions of the A.P. Tenancy Act since that plea was not taken in the written statement. It is not a pure question of law. An enquiry into that aspect necessitates taking of evidence and consideration of various aspects. Even if such a plea were to be taken by the appellant in the written statement, there would be very little chance to succeed for the obvious reason that the very lease was for commercial purposes and not for agricultural purposes, in which event alone, the Act applies.
10. We shall now consider the foundation on which the case of the appellant rests - Ex.A-1 - the certified copy of the Inam Fair Register. In column No. 2 which bears the heading 'General Class to which line inam belongs', it is noted 'Religious Endowment'. Under column No. 8 which deals with 'description of inam and the nature of service', it is mentioned: "For celebration of the Peerlu festival which is said to be regularly performed". Column Nos. 10 and 11 deal with "Description, tenure and document in support of the hereditary nature and by whom the inam was granted. Under both these entries, it is noted: "Not known". Under Column No. 12 which pertains to 'details regarding documents', it is mentioned: "No documents". The name of the original grantor is "not known" as can be seen from Column No. 13. In the Columns relating to 'particulars regarding present owner' it is mentioned: "Peerlu at Tadikonda. Worshippers: Pedda Shaik Bajid and China Bajid". In the remarks column No. 21, it is stated: "to be confirmed and continued so long as the service is regularly performed". From the entries in the Inam Fair Register, what is beyond dispute is that it is not the personal property of the ancestors of the appellant's lessors. The purpose for which the inam was granted was for celebration of Peerlu festival at Tadikonda. At the time when the Inam Fair Register was issued on 30-7-1861, there was no manager or mutawalli for the property. That is why in column No. 16, the names of the two worshippers are mentioned, presumably thereby implying that the two persons were performing the celebration of Peerlu festival. The remarks in column No. 21 show that the inam is to be confirmed and continued so long as service is regularly performed. From a combined reading of the relevant entries in the Inam Fair Register, we are of the view that the inam was neither a personal grant nor a grant burdened with service, but it is a grant in favour of an institution.
11. A Division Bench of this Court in Vallabharaya Swami Varu v. D. Hanumacharyulu, AIR 1969 A.P. 397, after reviewing the entire case law on the subject and while observing that the description of the inam of "Devadayam" is not conclusive of the fact that it was not granted to the Deity, but it merely indicates that the inam is for a religious purpose, held:
"Unless the grant is made in favour of the Deity or the Manager for the time being, as representing the temple, it cannot be considered as a grant to the Deity. The mere fact that the column 22 of the Inam Fair Register does not mention the name of the individual in whose favour the inam is to be confirmed does not conclude the matter in view of the fact that column 21 of the Inam Fair Register contains a clear recommendation that the inam should be confirmed to an individual...............The recital in the inam title deed that it is granted "to you and your successors" so long as the service is performed places the matter beyond any doubt in arriving at the conclusion that the grant is one to an individual burdened with service.
The reliance on the aforesaid observations of the Division Bench is of no assistance to the appellant in the case on hand. The persons who are required to perform the service are not mentioned in the Inam Fair Register unlike the aforesaid Division Bench case in which there are specific recitals that the inam was granted "to you and your successors so long as the service is performed."
12. Another Division Bench of this Court in Md. Imdad Ali Sahib v. Md. Aziz Mohiddin Sahib, 1970 (2) APLJ 396 held:
"Where the grant is made to a person in the capacity of a Manager, Dharmakarta or Mutavalli or a servant of a temple or a mosque and where it does not appear that there was some other trustee on the date of the grant, it may be regarded as a grant in favour of the religious institution itself."
Posing the question as to what would have been the nature of the recitals if the inam was intended to be in favour of an individual, the Division Bench expressed the opinion:
"If the grant was in favour of the individual, the Revenue authorities would have employed different nomenclature, namely, "confirmed to the individual hereditary" or "from generation to generation".
13. The Wakf Act came into force in the State of Andhra Pradesh on 4-3-1961. Clause (1) of Section 3 defines "wakf" as the permanent dedication by a person professing Islam (or any other person) - inserted by Act 69 of 1984 - of any moveable or immoveable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes-
(i) a wakf by user;
(ii) grants......"
Section 4 confers power on the State Government to appoint a Commissioner to conduct survey or wakf properties existing in the State on the commencement of this Act. After making enquiry, the Commissioner is required to submit his report under Sub-section (3) to the State Government containing the particulars specified in Sub-section (3). The Commissioner exercises the powers of the Civil Court while conducting the survey (vide Sub-section (4)). On receipt of the report under Sub-section (3) of Section 4, the State Govenrment is obliged to forward a copy of the report to the Wakf Board by Section 5(1). The Wakf Board is required by Sub-section (2) of Section 5 to examine the report 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". Any question whether a particular property specified in the list is wakf property or not, can be challenged in a Civil Court of competent jurisdiction by the Wakf Board or the mutawalli of the wakf or any person interested in the wakf, but the same can be done only within a period of one year from the date of the publication of the list. (vide Section 6(1). Subject to the decision of the Civil Court, Sub-section (4) of Section 6 says that the list of wakfs published shall be final and conclusive.
14. From these statutory provisions, it is clear that when a list of wakfs is published in the Gazette, there can be no challenge to that list after the expiry of the period of one year from the date of such publication. Ex.A-2 is the Commissioner's report pertaining to the suit property specifying it as 'wakf' constituted with the object of "celebration of Moharram annually". The beneficiaries of the wakf are the Muslim public as mentioned in column 9 of Ex.A-2. Column 22 contains the declaration of the Mutawalli that the particulars mentioned are correct to the best of his knowledge and belief and it also contains his signature.
15. There is no basis even remotely leading to the inference that, for the first time when survey is conducted, wakfs come into being. From the specific language of Section 4(1) of the Act, it is clear that the survey is confined to "wakf properties existing in the State" which necessarily means that, prior to the survey, the "wakfs" have been in existence in the State. The survey is intended only for the purpose of ascertaining the number and details of the wakfs. When the Mutawalli has signed on Ex.A-2 and no one has questioned the nature of the suit property within the statutorily prescribed period, it is not open to the appellant- 1st defendant for the first time to raise the contention that the suit property is not wakf property.
16. It is an admitted fact that there was no pleading in the written statement as to the applicability of the provisions of the A.P. (A.A.) Tenancy Act. It is, therefore, not open to the appellant to raise the plea that, by virtue of the application of the said Act, he would continue to be the tenant holding-over. Even if such a plea were to be taken, in our opinion, there was no possibility for the appellant to succeed. The title of the Act viz., the A.P. (A. A.) Tenancy Act, 1956 itself indicates that it is an enactment to provide for "the payment of fair rent by cultivating tenants and for regulating the relations of landlords and cultivating tenants of agricultural lands and for matters connected therewith". Ex.B-3, the lease deed clearly mentions that "the 2nd party (appellant herein) has been carrying on tobacco and other business in the said land and they should construct buildings thereon which they wanted to build and carry on necessary cultivation and raise all crops therein.....". In his evidence as D.W.4, T. Venkateswara Rao, one of the partners of the appellant-firm has stated in the chief-examination that "the lease is for both commercial and agricultural purposes. The said land is near a hill and it is rocky soil. Jonna cattle fodder alone will be raised. Cotton or Mirchi cannot be grown........ Because the land is useful for constructing godowns, we gave higher rent". Therefore, it is not possible to draw the inference, in the light of this evidence, that the appellant-firm is a cultivating tenant and that the suit land is an agricultural land. The A.P. (Andhra Area) Tenancy Act, therefore, has no application.
17. Under Section 36-A of the Wakf Act, the lease in excess of three years in the case of agricultural land or one year in the case of non-agricultural land, is forbidden, unless the same is effected with the previous sanction of the Wakf Board. It is true that before the Act came into force in the State, the lease in question was executed. After the expiry of the 25 years' period on 26-9-1985, permission of the Wakf Board under Section 36-A is a mandatory requirement for leasing out the land. In any event of the matter, it is impossible to accede to the contention that the appellant has right to remain in possession of the land.
18. The last submission made by the learned counsel for the appellant is that, as the appellant-firm have been in possession of the suit land for over a long period of time and put up structures on it, it would be inequitable if they were to be thrown out. He, therefore, pleads that his clients are willing to offer a different site, which is double the extent of the plaint schedule land. Mr. Prasad, learned Standing Counsel for the Wakf Board, is not agreeable to this suggestion. He says that the land is very valuable and if it is leased out now in accordance with the provisions of the Act and the Rules, it will fetch very high amount. In view of the submission of the learned counsel for the Respondent-Board, we cannot make any suggestion as to whether the Wakf Board should accept a different site offered by the appellant.
19. For the foregoing reasons, the Letters Patent Appeal fails and accordingly it is dismissed with costs.
20. The appellant is given three months' time from today for removal of the structures put up by it on the suit schedule land.