Patna High Court
Abdul Jaiwale And Ors. vs The Bihar State Sunni Wakf Board And Ors. on 27 May, 1988
Equivalent citations: AIR1988PAT324, 1989(37)BLJR204, AIR 1988 PATNA 324
Author: Satya Brata Sinha
Bench: Satya Brata Sinha
ORDER Satya Brata Sinha, J.
1. This writ application is directed against the order dt. 5-4-1983, passed by the Chairman, Bihar State Sunni Wakf Board and as contained in Annexure 5 to the writ application and also a registration certificate dt. 17-4-1982, issued by the Secretary of the Bihar State Sunni Wakf and as contained in Annexurc 6 to the writ application.
2. The facts of the case lie in a very narrow compass. The petitioners allegedly purchased 12 kathas, 11 dhurs and 11 Dhurkies of lands in plot Nos. 6510, 6523 and 6524 appertaining to Khata No. 942 Touji No. 30 situated in Mohalla Oburpul Milki Police Station Arrah within the Arrah Municipality.
3. According to the petitioners the aforementioned purchase was made in the farji name of Kaji Mohamnmd Ishaque who allegedly by a deed of disclaimer dt. 1-8-1938, declared the farji character of the aforementioned transaction. The said documents are contained in Annexures 1 and 2 of the writ application. The petitioner has asserted that since the aforementioned purchase, he has been in possession of the said land and also made certain construction thereon. The petitioner has further asserted that he being greatly interested in Arabic teaching, started a private Madrasa in a portion of the said land and other portions thereof were lei out to the various tenants. According to the petitioner, the said Madarsa ceased to exist and the entire premises are in occupation of the petitioner's tenants. The petitioner has further asserted in the writ application that the said properties are his personal properties and are not wakf properties.
3-A. In the year 1923, the legislature of Bihar enacted an Act known as The Mussalman Wakf Act, 1923 being Act No. XLII of 1923. The legislature of Bihar has also enacted another Act known as Bihar Wakf Act of 1947. However, the Parliament enacted the Wakf Act, 1954 which was made applicable to the Muslims of the State of Bihar on 12th April. 1973, i.e. when the Wakf Board was constituted. It appears that an application was filed purported to be an application for registration of the Wakf, which the petitioner was allegedly managing. Upon the said application, a show cause notice dt. 7-6-1981 was issued to the petitioner. The petitioner in response to the aforementioned show cause notice filed a show cause on 13th July, 1981. In relation to the said matter an enquiry was also held by the Secretary of the Bihar Stale Sunni Wakf Board, who submitted a report wherein he opined after taking into consideration the facts and circumstances of the case that the wakf in question should be registered under Section 25 of the Wakf Act and a Managing Committee in respect thereof comprising of the local people may be constituted. The said report is contained in Annexure 4 to the writ application. It may be mentioned here that the Wakf Board issued notice upon the petitioner as aforementioned, purported to be in terms of Section 25(7) of the Wakf Act.
4. By the impugned order dt. 5-4-1982, the Chairman Bihar State Wakf Board, Patna after considering the documents produced on behalf of the petitioner and the report of the Inspector came to the conclusion that the property in question was purchased for the purpose of running a Madarsa therein and the petitioner was the founder President thereof. In the said order, it was further held that the Madarsa was actually being run in the building in question from 1931 to 1940, but the same was converted into the property for a private house by the petitioner thereafter. Pursuant to the aforementioned order, a registration certificate dt. 17-4-1982 contained in Annexure 6 to the writ application was issued.
5. In this case, a counter-affidavit has been filed on behalf of respondents 4 to 12. in the said counter-affidavit it has been asserted that one Haji Md. Ishaque purchased the lands in question for establishing the Madarsa. It is contended that the purported deed of Farjinama was executed by the said Haji Mohammad Ishaque in order to give full powers to the petitioners for carrying on day to day transactions of the said Madarsa including the payment of Municipal and other taxes. The said respondents have further asserted that the Madarsa in question was functioning smoothly and only with that end in view, i.e. continuous smooth functioning thereof; the aforesaid document was executed in favour of the petitioner. The said deed, according to the respondents was not intended to be a Farjinama as alleged by the petitioners. It has further been asserted that the petitioner was the Head Madarsi in respect of the Madarsa in question
6. The petitioner has filed a rejoinder to the said counter-affidavit wherein he denied and disputed the aforementioned contentions and re-iterated the statements made in the writ application.
7. Mr. S.S. Asgar Hussain, the learned counsel appearing on behalf of the petitioner has raised a short question. The learned counsel submitted that the Board had no jurisdiction to pass the impugned order, inasmuch as whenever a question arises before the Board during the process of the collection of the informations regarding any property, which it has no reason to believe to be a wakf property, to the effect as to whether the said property is wakf property or not, the Board has statutory obligation to refer such question to a Civil Court of competent jurisdiction.
8. The learned counsel in this connection has drawn my attention to Section 9 of the said Act and submitted that in terms of Sub-section (1A) of Section 9 thereof, the amendment made under Section 27 of the Act shall apply if the two Boards of wakf namely Sunni Wakf and Shia Wakf are established by the State Government. Mr. S.S. Asghar Hussain in this connection relied upon the case of Radhakishan v. State of Rajasthan, AIR 1967 Raj 1 ; and in the case of Abdul Rab Shah Khadri v. Court of District Judge, Mandya, AIR 1972 Mys 96 and in the case of Subrat Shanker Bhaduri v. The Bihar State Sunni Wakf Board, 1976 BBCJ 274 as also in the case of the Board of Muslim Wakfs Rajasthan v. Radha Kishan, AIR 1979 SC 289.
9. The learned counsel appearing on behalf of the respondents on the other hand submitted that in the facts and circumstances of the case, Chapter IV of the Wakf Act, 1954 applies in this case. The learned counsel submitted that so far as the instant case is concerned, the Board proceeded on the footing that Section 25 applies in this case and only in this view of the matter, a notice was issued upon the petitioner under Sub-section (7) of Section 25 thereof and the impugned order as contained in Annexure 5 has been passed after giving an opportunity to the petitioner to file his show cause as also after giving him an opportunity of being heard in the matter. The learned counsel further submitted that in the instant case, the wakf having already been registered as is evident from Annexure 6 to the writ application, the only remedy open to the petitioner, if any, was to file a civil suit and this Court has no jurisdiction in relation thereto. The learned counsel has in this connection relied upon the case of Patre S. Rudra Murthy v. Karnataka Board of Wakfs, AIR 1977 Kant 147.
10. The Wakf Act. 1954 (Act No. 29 of 1954) was enacted to provide for better administration and supervision of wakf. It is admitted that in terms of Sub-section (3) of Section 1 of the said Act the same was made applicable in the State of Bihar on and from 12th April, 1973. The said Act applies to all wakfs whether created before or after the commencement thereof. Before proceeding further, the following definitions as contained in different sub-sections of Section 3 of the Act may be noticed : --
(c) "Board" means a Board of Wakfs established under Sub-section (1), or as the case may be under Sub-section (1-A) of Section 9.
(f) "mutwalli" 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 mutwalli of a wakf and includes any naib-mutwali, khadim. mujawar. saiiadanashin, amin or other person appointed by a mutwalli to perform the duties of a mutwalli and. save as otherwise provided in this Act. any person or committee for the time being managing or administering any wakf property as such;
(h) 'Person interested in a wakf means any person who is entitled to receive any pecuniary or other benefits from the wakf and includes the persons mentioned therein : --
(1) "Wakf means the permanent dedication by a person professing Islam of any moveable or immoveable 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-ui-khidmat) for any purpose recognized by the Muslim law as pious, religious or charitable; and
(iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable;
and wakif means any person making such dedication.
(m) "wakf deed" means any deed or instrument by which a wakf has been created and includes any valid subsequent deed or instrument by which any of the terms of the original dedication have been varied.
11. It appears from the impugned order as contained in Annexure 5 to the writ application that no list of wakfs has yet been published in terms of Chap. II of the said Act. Chapter III of the said Act provides for establishment of Boards and their functions. In this connection Section 9 of the Act may be noticed which reads as follows : --
"With effect from such date as the State Government may, by notification in the official Gazette, appoint in this behalf, there shall be established a Board of Wakfs under such name as may be specified in the notification.
(1-A) Notwithstanding anything contained in Sub-section (1), if the Shia Wakfs in any State constitute in number more than fifteen per cent of all the wakfs in the State or if the income of the properties of the Shia Wakfs in the State constitute more than fifteen per cent of the total income of the properties of all the wakfs in the State, the State Government may by notification in the official Gazette, establish a Board of Wakfs each for Sunni Wakfs and for Shia Wakfs under such names as may be specified in the notification and in such a case, the provisions of this Act shall in their application to the State have effect as if the amendments specified in the schedule had been made.
(2) (The Board) shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued."
In terms of Sub-section (3) of Section 15 of the said Act any person interested in the wakf affected by any settlement or direction made by the Board in terms thereof is entitled to institute a suit in the Civil Court of competent jurisdiction. Chapter IV of the Act deals with registration of the wakf. For the purposes of registration of wakfs, in application for registration has to be made by a Mutwalli or by the Wakifs or his decendents or the beneficiary of the wakf or any Muslim belonging to the sect to which the wakf belongs.
11. Although from a perusal of the impugned order as contained in Annexure 5 to the writ application, it appears that an application was filed and pursuant thereto a notice purported to be one under Sub-section (7) of Section 25 thereof was issued to the petitioner but it does not appear as to who filed the said application or whether in filing such an application other provisions contained in Section 25 were complied with. From Para 7 of the counter-affidavit, however, it appears that local people took steps to get the property registered as wakf property as allegedly the petitioner started selling the same.
12. Section 26 of the Act provides for maintenance of the register of wakf. Section 27 reads as follows : --
"27(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 or any question under Sub-section (1) shall, unices revoked or modified by a Civil Court of competent jurisdiction, be final."
13. As noticed herein before that by reason of Section 9(1-A) of the said Act the provisions of Section 27 of the Act as amended and as mentioned in schedule appended to the said Act shall apply. The amended Section 27 reads as follows : --
"27. Decision if a property is wakf property : --
(1) The Board may itself collect information regarding any property which it has reason to believe to be wakf propetty 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 shall refer the question to a Civil Court of competent jurisdiction.
(2) The decision of the Civil Court on any question referred to it under Sub-section (1) shall be final."
It is not disputed that in the State of Bihar two Boards of wakf namely Sunni and Shia wakfs have been constituted by the State of Bihar. In the case of Radhakishan v. State of Rajasthan, AIR 1967 Raj 1 (supra) a Division Bench of the Rajasthan High Court while interpreting various provisions contained in Chap. II of the Act held that the Wakf Commissioner has no jurisdiction to adjudicate whether particular property was wakf property or not. The said decision was reversed by the Supreme Court which case is reported in AIR 1279 SC 289 (supra), wherein the Supreme Court categorically held that the Commissioner of Wakf appointed under Sub-section (1) of Section 4 of the Act has the jurisdiction to make an enquiry as to whether certain properties are wakf properties or not. However, it was held therein that in respect of strangers to the property, in spite of the fart that the same was included in the list of wakf published by the Board, the same being not final and conclusive in terms of Sub-section (4) of Section 6 of the Act and as such, such persons are entitled to bring a suit for the establishment of their right and title in respect of the property in question. In the said decision it was clearly held that the list published under Sub-section (2) of Section 5 of the Act would not bind a stranger who is in possession of the property merely because he happens to be a person affected by the publication of the list of wakfs.
14. Section 6 of the Act reads as follows : --
"6(1) If any question arises (whether a particular property specified as wakf property in a list of wakfs published under Sub-section (2) of Section 5 is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf) the Board or the mutwalli of the wafk 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 further that in the case of the list of wakf relating to any part of the State and published or purporting to have been published before the commencement of the Wakf (Amendment) Act, 1969 (38 of 1969) such suit may he entertained by the Civil Court within the period of one year from such commencement.
(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 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.
(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."
In the instant case, however we are not concerned with a list within the meaning of Chap. II of the Act. In Subrat Shanker Bhaduri v. Bihar State Sunni Wakf Board. 1976 BBCJ 274, M. M. Prasad J. on difference between Shambhu Pd. Singh and S. Ali Ahmad, J.I, upon consideration of Sections 26 and 36(B) of the Act held that the Board had no jurisdiction to act under Section 36-A or 36(B) of the Act, if the same is not entered into register maintained under Section 26 of the Act. In Abdul Rab Shah Khadri v. Court of the District Judge (AIR 1972 Mys 96) (supra) it was held that before a property is held to be a wakf property, when there is a dispute in relation thereto a notice has to be issued to the person, who was in possession of the property in question and who had lodged a claim in relation thereto.
15. However, the counsel for both the parties conceded that there is no direct decision in respect of a case falling under Section 27 of the said Act as amended.
16. In the instant case as noticed hereinbefore, there is no denial of the fact that there exists two Boards of Wakf namely Sunni Wakf and Shia Wakf. It, therefore, goes without saying that in terms of Section 9(1-A) of the Act, the provisions of the said Act shall in their application to this state shall have effect as if the amendments specified in schedule had been made.
17. If unamended provisions of the Act were to apply in this case, there was absolutely no doubt that the Wakf Commissioner in exercise of its power conferred upon him under Section 4 of the Act or the Board in exercise of its power conferred upon it under Section 27 thereof would have the necessary jurisdiction to decide a question as to whether the property in question is a wakf property or not. Such a power of determination of the list is evident from Section 4 of the Act as also Sub-section (1) of Section 27 thereof. In terms of Sub-section (2) of Section 27 of the said Act, the decision of the Board of any question under Sub-section (1) is final unless revoked or modified by a Civil Court of competent jurisdiction. Once a property is held to be wakf property and the same is registered in the register of wakf various consequences in respect thereof follows as provided for in Chap. V thereof. The Act, therefore, postulates various situations where the lis as to whether the property is a wakf property or not can be determined by the various authorities and their decisions are final subject of course to the revocation or modification thereof by a Civil Court of competent jurisdiction.
18. In view of the provisions contained in Section 6 of the said Act read with Sub-section (2) of Section 27 of the Act, there cannot be any manner of doubt that ultimately the correctness of the wakfs list is required to be determined by a Civil Court of competent jurisdiction.
19. However, the matter would be completely different if the amended provisions of Section 27 apply in a given case. In terms of the said amended provisions of Section 27 whether the Board has been empowered to collect information regarding any property which it has reason t o he believed to be wakf property or not but if any question arises as to whether a particular property is a wakf property or not, in such an event, it is evident that it has no jurisdiction to decide the question itself as to whether the property is a wakf property or not. Whenever, such a question arises, a statutory mandate has been cast upon the Board to refer the said question to a Civil Court of competent jurisdiction.
20. Plainly enough in such a case, the jurisdiction of the Board to decide such a question is clearly ousted. In this connection, the differences in phraseology used in Chapter II and Chap. IV of the Act, as unamended may be noticed. In a case falling under Chap. II, Commissioner has the necessary power cither expressly and/or by necessary implication to decide as to whether a particular property is a wakf property or not. Section 6 of the said Act however enables a person, who is interested in the wakf and who does not agree with the decision of the Board in that regard to file a suit in a Civil Court of competent jurisdiction and the decision of the Civil Court in respect of such matters is to be final.
21. By reason of the provisos appended to Sub-section (1) of Section 6 of the Act, the period of limitation for institution of such suit and other matters have been provided therein. In a case where Chap. IV of the Act applies, as noticed hereinbefore, the Board has expressly been empowered to decide the question whether a particular property is a wakf property or not and the decision of the Board of such question is final unless revoked by or modified by a Civil Court of competent jurisdiction.
22. On the other hand as noticed hereinbefore the phraseology used in Section 27 as amended is entirely different. Taking into consideration the various provisions of the Act as mentioned hereinbefore I am of the view that in a case where two Boards have been constituted under the terms of Sub-section (1-A) of Section 9 thereof, the same shall have effect as if the amendments in the schedule has been made. In this view of the matter, there cannot be any doubt that in the instant case Section 27 as amended by Act No. 34 of 1964 shall apply in the instant case.
23. From a perusal of the said provisions of Section 27 as amended, it is evident that language used therein is absolutely plain and unambiguous and in my opinion two meaning thereto cannot be assigned. Section 27 as amended has to be read independent of Section 25 of the said Act while determining the question as to whether a property is a wakf property or not. The Board even while purporting to act under Chapter IV thereof can exercise its power in terms of Section 27, but Section 27 as amended by Act No. 34 of 1964 changes the entire situation inasmuch as thereby the jurisdiction of the Board is expressly ousted and in such a case the Board ceases to have any jurisdiction to decide such a question and it is under statutory obligation to refer such a question to the Civil Court of competent jurisdiction.
24. In this view of the matter I am of the opinion that the Board had no jurisdiction to pass the impugned order as contained in Annexure 5 to the writ application as the wakf has been registered in the register of wakfs pursuant to the order as contained in Annexure 5 to the writ application and as such the certificate as contained in Annexure 6 to the writ application also cannot be sustained. In view of my findings aforementioned the decision of the Karnataka High Court in Patre S. Rudra Murthy v. Karnataka Board of Wakfs, AIR 1977 Kant 147 has no application in the facts and circumstances of the present case. Further in the said decision, the Karnataka High Court was considering Clause (3) of Article 226 of the Constitution as introduced by Constitution 42nd amendment Act which barred the maintainability of the writ application as an alternative remedy by way of civil suit was available. However by reason of Constitution 44th Amendment Act, 1978 the said bar has been removed. Further as has been held hereinbefore, the impugned order passed by the Board is wholly without jurisdiction and in view of the amended provisions of Section 27 of the said Act a statutory mandate was imposed upon the Board to refer the dispute to Civil Court. In this view of the matter I am of the opinion that the writ application is maintainable.
25, In the result this writ application is allowed and the orders as contained in Annexures 5 and 6 are hereby quashed. In the circumstances of the case the respondent Board is also directed to refer the dispute to the Civil Court of competent jurisdiction in terms of Section 27 of the said Act as amended by Act No. 34 of 1964. However, there will be no order as to costs.