Karnataka High Court
Karnataka Board Of Wakfs vs Hazrath Attulla Shah Dhargah on 14 January, 1992
Equivalent citations: ILR1992KAR586, 1992(2)KARLJ36
Bench: Chief Justice, Shivaraj Patil
JUDGMENT S.P. Bharucha, C.J.
1. These are. Appeals filed by Karnataka Board of Wakfs against the Judgment and order of the learned Single Judge dated 15th December 1989 in several connected Writ Petitions, including Writ Petitions Nos. 5141 & 5142 of 1982 filed by the Board.
2. This dispute relates to land ad-measuring 325 feet by 125 feet in R.S.Nos.1 and 2 of Annipura village, Kasaba Hobli, Bangalore North Taluk. The land was Devadaya Inam Land that belonged to the Hazarath Attulla Shah Dargah. It is the case of second and third respondents to these Appeals that a number of alienations of the said land had taken place and it was not longer Inam land. The second respondent had purchased the said land from one Ghouse Bi under a registered Sale Deed dated 4th December 1946 and on 13th September 1947 a half portion of the said land had been sold by the second respondent to the third respondent for valuable consideration.
3. On 28th July 1947 the Sajjada of the Dargah made a petition under Section 10 of the Mysore Religious and Charitable Institution Act, 1927, to declare that the said land belonged to the Dargah and alienations in favour of the second and third respondents were void. He also sought restoration of the said land to the Dargah. These proceedings continued until the matter was pending in or about the year 1974 before the Special Deputy Commissioner in Muzrai appeal No. 72/67-68; that these proceedings had taken so long was due to the fact that there had been several appeals and several orders of remand. By his order dated 23rd August 1974 the Special Deputy Commissioner, required the said land to be restored to the second and third respondents. Thereagainst the Dargah filed an apeal before the Commissioner for Religious and Charitable Endowments. By this time the Wakf Act, 1954, had come into force in the State of Karnataka (with effect from 15th January 1955) and the Wakf Board had issued a Notification under Section 5 thereof notifying the Wakfs in the State, The Notification showed the said land as belonging to the Dargah. Consequently, the Wakf Board made an application to be impleaded in the appeal aforementioned filed by the Dargah before the Commissioner of Religious and Charitable Endowments. Upon being impleaded it took the contention that the said land belonged to the Wakf Board and the question of its title should have been referred tc a Civil Court having regard to the provisions of Section 6 of the Wakf Act. The appeal was dismissed, the Wakf Board being held to have no locus-standi. Appeals there against were filed by the Wakf Board as also by the Dargah before the Karnataka Appellate Tribunal. These were also dismissed.
4. Thereupon Writ Petitons Nos 5141 and 5142/1982 were filed by the Wakf Board impugning the order of the Tribunal. The second and third respondents also filed Writ Petitions impugning the order of the Tribunal to an extent with which we are not here concerned. The learned Single Judge rejected the stand of the Wakf Board. He said he could not accept the contention that it had abolished by one stroke the interest of the second and third respondents in the said land.
5. Section 4 of the Wakf Act empowers the State Government to appoint a Commissioner of Wakfs to make a survey of Wakf properties existing in the State on the dates of commencement of the Act and to make a report thereon. Under Section 5(1) the State Government is required, upon receipt of report made by the Commissioner, to forward a copy of the scheme to the Wakf Board constituted under the Wakf Act. Section 5(2) states that "the Board shall examine the report forwarded to it under Section (1) and publish in the Official Gazette a list of Wakfs existing in the State ....containing such particulars as may be prescribed." The relevant portion of Section 6 reads thus:
"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 a list is a Shia Wakf or Sunni Wakf the Board of 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;
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.
xx xx (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."
Section 3(1) defines a 'Wakf' to mean "the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable." The expression "person interested in-a Wakf" is defined by Section 3(h) to mean 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, khangah, . maqbara, graveyard or any other religious institution connected with the Wakf or to participate in any religious or charitable institution under the Wakf,"
6. In THE BOARD OF MUSLIM WAKFS, RAJASTHAN v. RADHA KISHAN AND ORS., the construction of the words 'any person interested therein' in Section 6(1) was considered. Certain property which was Wakf property was claimed by two persons who were not Muslims. They contended that the Wakf Board was not entitled to include their property in the list of Wakfs published under Section 5(2). The Rajasthan High Court made the Writ Petition absolute. In its view the Wakf Act did not invest the Wakf Board or the Wakf Commissioner with power to decide the question whether a property belonged to a Wakf or not, more so where the person claiming title was a stranger to the Wakf, Consequently, the failure of a stranger to the Wakf to institute a suit in a Court of Competent jurisdiction to decide whether a particular property was Wakf property or not could not. make the inclusion of such property in the list of Wakfs published by the Wakf Board under Section 5(2) final and conclusive under Section 6(4). Having examined the scheme of the Wakf Act, the Supreme Court held that it was a complete code dealing with the better administration and supervision of Wakfs. It then considered the scope of Section 6(1). It found that the claimants to the property were non-Muslims and, consequently, had no right to file the suit contemplated by the sub-section; therefore, the list of Wakfs published by the Wakf Board under Section 5(2) could not be final and conclusive against them under Section 6(4). The question that arose for consideration, therefore, was: who are the parties that could be taken to be concerned in a proceeding under Section 6(1)and whether the list published under Section 5(2) declaring certain property to be Wakf property would bind a person who was neither a mutawalli nor a person interested in the Wakf. The Supreme Court said:
"33. The answer to these questions must turn on the true meaning and construction of the word 'therein' in the expression 'any person interested therein' appearing in Sub-section(1) of Section 6. In order to understand the meaning of the word 'therein' in our view, it is necessary to refer to the preceding words 'the Board or the Mutawalli of the Wakf'. The word 'therein' must necessarily refer to the 'Wakf which immediately precedes it. It cannot refer to the 'Wakf property'. Sub-section (1) of Section 6 enumerates the persons who can file suits and also the questions in respect of which such suits can be filed. In enumerating the persons who are empowered to file suits under this provision, only the Board, the mutawalli of the Wakf, and 'any person interested therein', thereby necessarily meaning any person interested in the Wakf, are listed.'It should be borne in mind thai the Act deals with Wakfs, its institutions and its properties. It would, therefore, be logical and reasonable to infer that its provisions empower only those who are interested in the Wakf, to institute suits".
The Supreme Court approved the finding of the Rajasthan High Court that "it could never have been the intention of the legislature to cast a cloud on the right, title or interest of persons who are not Muslims. That is, if a person who is non-Muslim whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other religious denomination and if he is in possession of a certain property his right, title and interest cannot be put in jeopardy simply because that property is included in the list published under Sub-section(2) of Section 5". The Supreme Court said that "it follows that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list. Such a person is not required to file a suit for declaration of his title within a period of one year. The special rule of limitation laid down in proviso to Sub-section (1) of Section 6 is not applicable to him. In other words, the list published by the Board of Wakfs under Sub-section(2) of Section 5 can be challenged by him by filing a suit for declaration of title even after expiry of the period of one year, if the necessity of filing such suit arises."
7. Now the second and third respondents, who lay claim to the said land, are Muslims. The question is: Does the special rule of limitation laid down in the first proviso to Section 6(1) apply to them. It will be noted that Section 6(1) says that 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, 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. The proviso to Section 6(1) states that no such suit shall be entertained by the Civil Court after expiry of one year from the date of the publication of the list of Wakfs under Sub-section(2) of Section 5. Clearly, therefore, this special Rule of Limitation is applicable to a suit filed by "any person interested therein".
8. The Supreme Court held that the word 'therein' refers to the Wakf and not to Wakf property (see paragraph 33 quoted above). What we may consider, therefore, is whether the second and third respondents are persons interested in the Wakf. By reason of Section 3(h) a person is interested in a Wakf if he has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, maqhara, graveyard or in any religious or charitable institution under the Wakf. Every person who professes Islam has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, maqbara, graveyard or any other religious institution connected with the Wakf or to participate in any religious or charitable institution under the Wakf. It is not the case of the second or third respondent that they are not Muslims or are not so entitled. It must, therefore, be held that, upon a plain reading of the relevant provisions of the Wakf Act, that the second and third respondents are persons interested in the Wakf and to them the special period of limitation prescribed by the first proviso to Section 6(1) is applicable.
9. This view is reinforced by the aforementioned Judgment of the Supreme Court. The Supreme Court has clearly stated that it followed from the concerned provisions of the Wakf Act that "where a stranger, who is a non-Muslim and is in possession of a certain property, his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list issued by the Wakf Board under Sub-section(2) of Section 5".
10. Our attention was drawn by Mr. M.S. Gopal, learned Counsel for the second and third respondents to the Judgment of a learned Single Judge of this Court in ANJUMAN-E-ISLAMIA, KOLLEGAL v. SAKEENABI AND ORS., . The learned Judge observed that Section 6 only enabled the Board or Mutawalli of a Wakf or any persons interested in a Wakf to institute a suit. It did not require of a person who disputed the Wakf itself to file a suit. "Any person interested" did not mean that each and every Muslim was included. The words 'any person interested' would connote that the person must be interested in maintaining that particular property as Wakf property. If any. person disputed the Wakf itself he did not come within the phrase "any person interested therein". In the case before the learned Judge, the defendants contended that the particular property was not Wakf property. Therefore, the defendants could not, in his view, be considered to be 'persons interested' in the Wakf property within the meaning of Section 6.
11. This Judgment is no longer good law in view of the Decision of Supreme Court aforementioned. The word 'therein' in the phrase 'any person interested therein' has been interpreted by the Supreme Court to mean interested in the Wakf and not interested in the Wakf property".
12. Our attention was drawn to the Judgment of a Division Bench of the Andhra Pradesh High Court in CHEEDELLA MOTAIAH v. WAKF BOARD, ANDHRA PRADESH, HYDERABAD AND' ORS., . The alienee of property which was listed by the Wakf Board under Section 5(2) was a non-Muslim. Interpreting Section 6 read with Section 3(h), the Division Bench held that the right to file a suit was confined only to the Wakf Board or the Mutawalli or persons interested in the Wakf. As a consequence, the finality of the list of Wakfs published would only be as against such persons who were entitled to file a suit. Section 6 had, therefore, no application to an absolute stranger to Wakf, being a non-Muslim.
13. Lastly, our attention was drawn to the Judgment of a Division Bench of this Court in CORPORATION OF THE CITY OF BANGALORE v. MYSORE STATE BOARD OF WAKFS AND ORS., 1973(1) Mys.LJ. 103. The petitioner, as will be seen, was the Corporation of the City of Bangalore. Its case was that several lands belonging to it had been listed as Wakf property in the list published under Section 5(2). It was held that the Corporation's right in respect of such properties, if it had such right, remained unaffected by the notification of the list of Wakfs. Any dispute between the Wakf Board on the one hand and the Corporation of the City of Bangalore on the other had to be decided by a competent Civil Court.
14. It is difficult to see how the aforementioned two Judgments carry the matter before us, any further.
15. It was submitted by Mr. Gopal that the Tribunal had held that the said land had ceased to be Inam land as far as back in 1973 and that its purchasers at that time had been non-Muslims. The Tribunal had also held that the Dargah had no interest in the said land. Having regard to the provisions of the Wakfs Act, it appears to us clear that the question of title of properties which are included as Wakf properties in the list published by the Wakf Board under Section 5(2) must be decided by as Civil Court, except where the dispute is raised by the Board or Mutawalli of a Wakf or any person interested in the Wakf, in which event the suit can be filed only within the period of one year from the date of publication of the list. In the present case that Notification was published on 11th July 1965. The suit ought, therefore, to have been filed by the second and/or third respondents on or before 11th July 1966. They cannot file such suit now, nor can the fact that other authorities had held that the said land had ceased to be Inam land or that the Dargah has no interest therein make a difference to the statutory postion created by the Wakf Act.
16. In this view of the matter, these Appeals are allowed and the Judgment and Order under Appeal is set aside. The order of the Karnataka Appellate Tribunal (Annexure V) dated 1st August 1981 and the order of the Commissioner for Religious and Charitable Endowments, Karnataka, Bangalore (Annexure 'J') dated 5th December 1977 are set aside.
There shall be no order as to costs.