Karnataka High Court
Mirza Habib Aga vs Karnataka Board Of Wakfs And Others on 5 December, 1989
Equivalent citations: AIR1990KANT299, ILR1990KAR1702, 1990(1)KARLJ109, AIR 1990 KARNATAKA 299
ORDER
1. Petitioner is one Mirza Habib Aga, who admittedly is the son of 2nd respondent Mrs. Malak Sultana. Petitioner is aggrieved by the order as at Annexure-J passed by the first respondent Karnataka Wakf Board. The order is dated 24-4:1989. He has therefore prayed in this writ petition under Article 226 of the Constitution for a Writ of Certiorari quashing the order at Annexure-J as well as an earlier order at Annexure-G.
2. At this stage itself I may mention the prayers are in contradiction with each other. If Annexure-G is quashed, then there was no need for the proceedings resulting in Annexure-J. This fact should be borne in mind while disposing of the case of the petitioner.
3. The facts may be stated briefly and which are not in dispute are as follows :--
By an application dated 12-12-1980 the 2nd respondent Mrs. Malak Sultana moved the first respondent Wakf Board to treat property bearing No. 5 (Old No. 1), Kingston Road, Richmond Town, Bangalore, as wakf property belonging to Aga Abdul Hussain Akbarabad Shia Wakf. By an order dated 10-3-1988 her application was allowed and the property aforementioned was treated as wakf property and it was directed to be entered in the Register of Wakfs as such. On 25-1-1989 one Govindaram K. Kukreja and others, who are respondents 3 to 8 herein, moved the Wakf Board praying for recalling the order dated 10-3-1988 directing registration of premises No. 1, Kingston Road, Richmond Town, Bangalore, as a wakf property inter alia on the ground that the said order was passed without notice to all the aggrieved parties and on the misrepresentation of facts ignoring undisputed facts of the property in question having vested in the Central Government in as far back as 1949 under the provisions of the Evacuee Properties Act. That application has come to be allowed by the Wakf Board resulting in Annexure-J the order complained of. Annexure-G was an application made by the petitioner to implead himself in the proceedings commenced by the application of Govindaram and others. By that order the first respondent rejected the impleading application.
4. It is convenient to dispose of the prayer for quashing Annexure-G first at this stage. The person who got the property in question as wakf was the mother of the petitioner who was already on record in the proceedings commenced by Govindaram and others. Therefore, when the party who initiated the earlier proceedings in 1981 for treating the property bearing old No. 1, New No. 5, Kingston Road, Richmond Town, Bangalore, as a wakf property was on record, her son (petitioner) could not claim any independent status in regard to the matter in controversy to contest the same and implead himself as he was not an applicant in 1981 for seeking registration of the property as a wakf. Therefore, his application for impleading was correctly rejected by the first respondent Wakf Board as he had no independent status to question the same.
5. However, Mr. Savanur, learned counsel appearing for the petitioner argued that petitioner's mother was only a person in name and she was not in a position to contest the proceedings. This submission appears to be not well founded because a perusal of Annexure-J at para-2 indicates that notice was served on Mrs. Malak Sultana and she remained absent at the first hearing and her son Habib Aga represented her but later he dissociated himself from her and sought to get himself impleaded in his personal capacity. It was that application which came to be rejected, which I have already dealt within the earlier paragraph of this order. Therefore, to say that there was anything wrong with Annexure-G would be incorrect. The writ petitioner was free to engage the services of a counsel to represent his mother to put forth his case. Not having done so, he cannot now contend that the rejection of his application for impleading was improper.
6. In regard to Annexure-J, Mr. Savanur, learned counsel for the petitioner has advanced four contentions to have the same quashed as the Said order is untenable in law. He contends that once the order under Section 25 of the Wakf Act 1954 (hereinafter referred to as 'the Act') was passed, without an express provision to review or recall such order, the Board could not have commenced any proceedings on the application of Govindaram and others, namely respondents 3 to 8, and could not in effect review the order passed under Sec. 25 of the Act on 10-3-1988. Secondly, it was contended that having regard to Section 6 of the Act, any dispute regarding wakf property should be decided only by the competent Civil Court having jurisdiction and Wakf Board was therefore without jurisdiction in passing the order at Annexure-J. He next contends that even on merit the matter should have been deferred awaiting decision of the Civil Court in O. S. No. 176/81 pending in the Court of the II Additional City Civil Judge, Bangalore, wherein the vesting of the property bearing old No. 1, Kingston Road, in the Custodian of the Evacuee Property was questioned. Fourthly, he contends that even if respondents 3 to 8 were aggrieved, they should have moved the Civil Court to establish their right to the wakf property and ought not to have moved the Wakf Board under Section 27 of the Act. The last argument is founded on the assumption that Section 25 of the Act controls Section 27.
7. A perusal of the order at Annexure-J clearly indicates and the same is not disputed before the wakf authorities that the property had vested in the Deputy Custodian (General) of Evacuee Property soon after the original owners of the property had left for Pakistan on the partition of the country in 1947. At paragraph 4 of the order the following is stated :--
"There are on records besides the petition the following documents :--
"(1) Copy of the order dated 25-8-1950 in E. P. No. 171/50-51; (2) Copy of order of the Deputy Custodian General dated 18-2-1961 in No. Bangalore/ Records/ K. Spl. 375/61; (3) Certified copy of sale deed dated 19-9-1962;
(4) Copy of Wakf Deed dated 31-1-1919."
From the above, certain questions arose for determination which he set out at paragraph 5 of his order and resolved the same in the light of the admitted facts. It is unnecessary for this Court under Article 226 to go into the question of facts, particularly relating to title, as that can be investigated by the powers vested in the Civil Court while adjudicating the disputed facts. In any event this Court exercising jurisdiction under Article 226 rarely investigates question of title by receiving and recording evidence and therefore does not act as a further Court of Appeal on findings of facts already recorded by the subordinate authority, in the instant case the Wakf Board acting through its Secretary.
8. Even otherwise, this Court should not lose sight of the fact that O.S. No. 176/81 is pending and title to the property is one of the issues raised therein and all parties concerned in the suit will have to abide by the decision in the suit when it reaches its finality.
9. Even otherwise, the contentions advanced, if seen in the light of the provisions made in the Wakf Act, they must fail. Section 5 of the Act provides for publication of wakfs and the procedure for such wakf properties being officially gazetted. Section 6 of the Act provides for disputes regarding wakfs and is as follows :--
"6. Disputes regarding wakfs :-- (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 mutawalli 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 :
X X X X "
Sub-section (1) of Section 6 which is extracted above clearly indicates that the dispute and the Civil Court contemplated to resolve such disputes is with reference to the list published as wakfs in the gazette and does not necessarily cover what is outside the list published.
10. Section 25 of the Act specifically enables the Wakf to be registered when an application is made by the Mutawalli or others as provided in the proviso to subsection (2) of Section 25. In 1981 Mrs. Malak Sultana, the mother of the petitioner made an application under Section 25 resulting in order as at Annexure-C recognizing property bearing old No. 1, Kingston Road, Richmond Town, Bangalore, as awakf property. It is not disputed by any person. In fact, the dispute arose because that application was made and respondents 3 to 8 moved the Wakf Board in adjudication in terms of Section 27 of the Act. Section 27 of the Act 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 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."
The provisions made in Section 27 leaves no doubt that the Wakf Board is competent in appropriate cases to initiate and enquiry into whether a wakf is a Shia wakf or Sunni wakf or whether any property is wakf property or not, and adjudicate upon the same. This power conferred by Section 27 of the Act is clearly a power conferred on the Board without reference to or being contracted by Section 6 of the Act. If, in a given case the Wakf Board gives a decision affecting the title of any other person to the property in accordance with sub-section (2), such party may move the Civil Court and the decision of the Civil Court will bring about necessary modification of the decision rendered under subsection (1). If, in the process of determining the question under sub-section (1) of Section 27 the Wakf Board decides that some property has been registered as wakf property incorrectly it does not amount to reviewing the earlier order hut it merely acts as correcting the register of wakfs in the light of its investigation or inquiry under Section 27 (1) of the Act though it may look like review of an earlier order. One should not lose sight of the fact that the earlier order on 10-3-1988 as at Annexure-C was passed without notice to respondents 3 to 8 who claim to be the owners of the property. Therefore, if they had approached this Court challenging the order at Annexure-C, this Court would not have hesitation to remit the matter back to the Wakf Board to determine the question in the light of the objections raised by respondents 3 to 8. Having regard to the purpose Section 27 is required to serve, it cannot be controlled by or inhibited by any limitations by virtue of the order passed under Section 25 of the Act. Both the sections must be given free play. Therefore, all the four contentions advanced by Mr. Savanur are liable to be rejected and they are accordingly rejected.
11. Petition is dismissed without prejudice to the outcome of the suit said to be pending where the petitioner is the second plaintiff.
12. Petition dismissed.