Karnataka High Court
Karnataka Board Of Wakf, Bangalore vs Land Tribunal, Sira Taluk, Tumkur ... on 31 March, 1999
Equivalent citations: AIR2000KANT141, ILR1999KAR3319, 1999(5)KARLJ617, AIR 2000 KARNATAKA 141, 1999 (6) KANTLD 16, (1999) ILR (KANT) 3319, (1999) 5 KANT LJ 617
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
ORDER
1. The revision is by Wakf Board being aggrieved of the orders of the Land Reforms Appellate Authority, Tumkur in LRA No. 329 of 1987, dismissing the appeal by confirming the grant of occupancy right.
2. The brief facts of the case are as follows:
The land in Sy. No. 361 measuring 2 acres 32 guntas situated at Sira Village is a wakf property under the management of mutawalli namely Razak Baig. The said lands have also been notified in the Gazette as wakf property. In respect of the said lands mutawalli's son namely An-war Baig claimed re-grant under Section 6-A of Karnataka Inams Abolition Act, 1955. The Land Tribunal, Sira by its order dated 27-2-1982 granted occupancy in favour of Anwar Baig. Being aggrieved by the order of Land Tribunal, Wakf Board preferred Writ Petition No. 10732 of 1985. On the establishment of the Land Reforms Appellate Authority, the matter was transferred and numbered as LRA. 329 of 1987. The Wakf Board relying on the provisions of Mysore Religious and Charitable Inams Abolition Act, 1955, dismissed the appeal. Hence, this revision.
3. Learned Counsel for the revision petitioner contended that, one Razak Baig was the mutawalli and he was entrusted to manage the properties in question. Under the Wakf Act, mutawalli is not entitled for registration of occupancy right and that he is only entitled to maintain the property, to supervise and to have the benefit out of it. In case if there were to be any dispute, the matter has to be adjudicated under the Wakf Act. Therefore, the order of the Land Tribunal as well as the orders of the Land Reforms Appellate Authority are erroneous and not sustainable.
The tenant though served, remained absent.
4. The learned Government Pleader contended that, there is no bar for grant of occupancy right under the Land Reforms Act. The lands held by the Wakf are not excluded under Section 107 of the Land Reforms Act, and therefore, justify the order of the Land Reforms Appellate Authority as well as the Land Tribunal granting occupancy right.
5. In the light of the submissions, the points for consideration that arise are.--
1. Whether the mutawalli can be construed as a tenant in respect of the lands described as wakf property?
2. If so, the mutawalli is entitled for registration of occupancy right?
3. What orders?
6. It is not in dispute that the lands in Sy. No. 361 measuring 2 acres 32 guntas situated at Sira Village are the Wakf lands as per the Gazette Notification dated 15-2-1968. Item 191 in the Gazette Notification discloses that, Abdul Razak was the mutawalli. It is in respect of the said land, after the death of Abdul Razak, his son Razak Baig filed Form No. 1 for registration of occupancy right under Section 6-A of the Mysore Religious and Charitable Inam's Abolition Act, 1955. The Land Tribunal granted occupancy right holding that mutawalli's son Razak Baig was a tenant in respect of the said land. It is vehemently contended that, mutawalli is only a person who is entitled to supervise and to administer the property of the Wakf and he cannot claim the property as tenant.
7. In that view or the matter, it has to be examined whether a mutawalli can claim the right of tenancy in respect of the property entrusted to him for administration or for management under the provisions of the Wakf Act. Before dealing with the provisions of the Wakf Act it is necessary to examine certain provisions of the Karnataka Land Reforms Act, 1961, as to who are the persons entitled to claim the right of tenancy. Section 4 of the Land Reforms Act thus reads:
"Section 4. Persons to be deemed tenants.--A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not.--
(a) a member of the owner's family, or (b) a servant or a hired labourer on wages payable in cash or kind but not in crop share cultivating the land under the personal supervision of the owner or any member of owner's family, or (c) a mortgagee in possession".
It is clear that a person cultivating the land of another person as on the appointed day is held to be a deemed tenant.
8. All those lands which are under the cultivation of the tenant are deemed to be vested with the State Government as provided under Section 44 of the Land Reforms Act.
9. Section 45 provides for registration of occupancy of land on certain conditions. If the Tribunal were to find that, a person cultivating the land as tenant as on the appointed day, he entitled for occupancy right. The grant of occupancy right is subject to the provisions of Section 107 of the Land Reforms Act. Section 107 of the Land Reforms Act thus reads:
"Section 107. Act not to apply to certain lands.--(1) Subject to the provisions of Section 110, nothing in this Act, except Section 8, shall apply to lands:
(i) belonging to Government; (ii) xxx xxx xxx; (iii) belonging to or held on lease by or from local authority, an Agricultural Produce Marketing Committee constituted under the Karnataka Agricultural Produce Marketing Regulation Act, 1966 (Karnataka Act 27 of 1966), a University established by law in India, a research institution owned or controlled by the State Government or the Central Government or both an Agricultural Research Institution recog- nised by the State Government or the Central Government the Karnataka Bhoodhan Yagna Board established under the Karnataka Bhoodhan Yagna Act, 1963 (Karnataka Act 34 of 1963); (iv) given as a gallantry award; (iv-a) granted by the State Government to a Research Institution affiliated to a University established by law in India; (v) used for such stud farms as are in existence on the 24th day of January, 1971 and approved by the State Government, subject to such rules as may be prescribed; (vi) used for the cultivation of linaloe; (vii) held by the Coffee Board constituted under the Coffee Act, 1942 (Central Act 7 of 1942), for purposes of research, development or propaganda;
(viii) held by any corporation owned or controlled by the State Government or the Central Government of both:
Provided that in the case of lands belonging to or held on lease from the Karnataka Bhoodhan Yagna Board, the exemption under this section shall not be applicable if such lands were in the possession of tenants on the date of donation to the said Board:
Provided further that notwithstanding anything contained in this sub-section, the extent of land leased to a local authority, a committee, a University, an institution, or a Board referred to in clause (iii) shall count for the purpose of determining the surplus land to be surrendered by the owner thereof.
(2) Notwithstanding anything in sub-section (1), no person shall, after the date of commencement of the Amendment Act acquire in any manner for the cultivation of linaloe, land of an extent which together with the land cultivated by linaloe, if any, already held by him exceeds ten units.
(3) In respect of every acquisition contrary to sub-section (2) the provisions of Sections 66 to 76 shall mutatis mutandis apply".
10. In respect of the lands classified under Section 107 of the Land Reforms Act, the question of granting occupancy rights does not arise. However, Section 107 of the Land Reforms Act is an exception for grant of occupancy rights provided notifications are issued by the Government as per rules and regulations. In the absence of any such notification, the question of granting occupancy right in respect of the lands classified under Section 107 does not arise.
11. In the case on hand, admittedly the property in question is notified as wakf property as per Gazette Notification dated 15-2-1968.
12. The definition of Mutawalli under the old Wakf Act, 1954 and under the Wakf Act, 1995 which reads thus:
Old Wakf Act, 1954 New Wakf Act, 1995 Section 3(f). "Mutawalli" means any person appointed either verbally or under any deed or instrument by which a wakf has been created or by a competent authority to be the mutawalli of a wakf and includes any naib-mutawalli, khadim, mujawar, sajjadanishin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and, save as otherwise provided in this Act, any person or Committee for the time being managing or administering any wakf property as such.
Section 3(i). "Mutawalli" means any person appointed, either verbally or under any deed or instrument by which a wakf has been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any wakf or wakf property.
By reading of both the provisions makes clear that, the duty of the mutawalli is to manage and administer wakf property entrusted to him. It is an admitted fact that Abdul Razak was the mutawalli who was appointed for the management and administration of the wakf property. The person managing or administering the property under a statute cannot claim the status of tenant, and therefore, the person holding the office of mutawalli also cannot be construed as a deemed tenant within the meaning of Section 4 of the Land Reforms Act. It is no doubt true even in case of wakf landed properties, if a person were to be found cultivating the land as tenant entitled to claim occupancy right by filing Form No. 7. But, the person managing and administering the property of the wakf cannot be construed as a tenant in respect of the said property. Section 3(k) of the Wakf Act, 1995 defines a person interested in a wakf, which thus reads:
"Section 3(k).--"Person interested in a wakf means any person who is entitled to receive any pecuniary or other benefits from the wakf and includes:
(i) any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khan-gah, maqbara, graveyard or any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf;
(ii) the wakf and any descendant of the wakf and the mutawalli".
The plain reading of the provision makes clear, the person interested or the descendant of wakif and mutawalli are entitled to receive the monetary benefits or as the case may be determined under the Wakf Act.
Section 50 of the Wakf Act describes the duties of mutawalli, which thus reads:
"Section 50. Duties of mutawalli.--It shall be the duty of every mutawalli:
(a) to carry out the directions of the Board in accordance with the provisions of this Act or of any rule or order made thereunder;
(b) to furnish such returns and supply such information or particulars as may from time to time be required by the Board in accordance with the provisions of this Act or of any rule or order made thereunder;
(c) to allow inspection of wakf properties, accounts and records or deeds and documents relating thereto;
(d) to discharge all public dues; and (e) to do any other act which he is lawfully required to do by or under this Act".
It makes clear that the mutawalli has to discharge his duties in accordance with the directions issued by the Wakf Board in managing the property by maintaining true accounts. In that view of the matter also, a mutawalli is not entitled to claim the properties as tenant. That in case of dispute between the Wakf Board and the mutawalli the matters have to be adjudicated by a Tribunal constituted under Section 83 of the Wakf Act.
Sub-sections (2) and (7) of Section 83 of the Wakf Act, 1995, which thus reads.--
"Section 83(2).--Any mutawalli person interested in a Wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf.
Section 83(7).--The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a Civil Court".
Sub-section (2) of Section 83 enables a mutawalli to approach the Tribunal for settlement of dispute or the matters relating to the Wakf and also in respect of the claim of mutawalli is concerned.
Sub-section (7) of Section 83 makes clear, the decision of the Tribunal is final and binding on the mutawalli, in view of the specific provisions of the Wakf Act. It is not open for the mutawalli to claim occupancy right as he cannot be construed as tenant within the definition of Section 4 of the Land Reforms Act. Further, in view of the specific provisions of the Wakf Act, the provisions of the Mysore Religious and Charitable Inam's Abolition Act, 1955 cannot be made applicable to the facts of this case.
13. It is manifest the person in possession of the land in the capacity of the mutawalli'cannot be construed as a tenant as ho is only a caretaker of the property and therefore, not entitled for grant of occupancy right in respect of wakf properties. But there is no bar for a person other than the mutawalli to claim occupancy right even in respect of the wakf property, if he is cultivating such land as a tenant under the lease obtained from the competent authority. In that view of the matter, the grant of occupancy right by the Land Tribunal is not sustainable.
14. For the foregoing reasons, the revision is allowed by setting aside the grant of occupancy right.
15. The parties shall bear their own costs.