Subrata Shankar Bhaduri v. State of Bihar — 1983 DIGILAW 69 (PAT)

P.S. Mishra, J. The petitioners have moved this Court under Articles 226 and 227 of the Constitution of India, praying for a writ and a direction to the respondents to forbear from interfering and dispossessing them from their raiyati lands and to produce the order as contained in letter no. 101/76, 3634-J dated 20-7-77, from the Deputy Secretary, Department of Law, Government of Bihar, to the Additional Collector, Santhal Praganas, Dumka, and on production of the said letter to quash the same. 2. Properties in dispute originally formed part of a Sunni Waqf Estate known as Kotal Pukhar Waqf Estate. One Mohd. Ishmail Choudhary had two sons Sajjad Ahmad Choudhary and Johad Ahmad Choudhary, Mohd. Ishmail Choudhary and his Sons created a Waqf in respect of several properties under a registered Waqfnama dated 28.12.1972. Under the terms of the Waqfnama Sajjad and Johad acted as mutwallis. Sajjad died in August, 1928. Mohd. Ishmail Choudhary and Johad executed a deed on 12.10.1928 confirming the Waqfnama dated 28.12.1922. Johad died in July, 1929. After Johad's death his son Humayun Raza Choudhary became mutwalli under the terms of 1922 Waqfnama. There is a long history of litigations, inheritance and other allied matters. There were some disputes on account of entries made in the record of rights finally published between 18th January, 1927 and 15th July, 1927, resulting in institution of a suit. The matter came to this Court in an appeal being Appeal from the Original decree No. 68 of 1939 which was disposed of on 19.11.1943 (Reported in A.I.R. (31) 1944 Patna 234). A Division Bench of this Court held that the Waqfnama was acted upon and the estate of Mohd. Ishmail Choudhary, which included zamindari as well as pathi interest, was held by the sons of Johad, namely, Humayun Raza and Murtaza Raza as mutawallis. Humayun Raza Choudhary died in 1946. His son Irfan Raza Choudhary became mutawalli in his place along with Murtuza Raza Choudhary. Murtuza Raza Choudhary and Irfan Raza Choudhary emigrated to Pakistan. One of the beneficiaries also emigrated. Their properties were declared evacuee and the custodian of evacuee properties took possession of the Waqf Estate in the year 1949. It is admitted on all sides that the Waqfnama admitted certain benefits to the beneficiaries i.e. descendants, both male and female in the line of Mohd. Ishmail Choudhary. One of the beneficiaries also emigrated. Their properties were declared evacuee and the custodian of evacuee properties took possession of the Waqf Estate in the year 1949. It is admitted on all sides that the Waqfnama admitted certain benefits to the beneficiaries i.e. descendants, both male and female in the line of Mohd. Ishmail Choudhary. There were several settlements made by the mutawallis by way of raiyati settlements between 1921 to 1927. By virtue of a notification of Ministry of Rehabilitation, Government of India, dated 9.9.1960, the waqf properties were released by the Managing Officer-cum-Assistant Custodian by his order dated 14.12.1960 in favour of non-evacuee beneficiaries Interest of evacuee beneficiaries were also released in favour of non-evacuee beneficiaries. Bihar State Sunni Waqf Board, however, claimed that the transfers between 1921 to 1927 were made in violation of the provisions as contained in Section 36A of the Waqf Act and sought intervention of the Collector to get possession of the properties under section 36B of the Act. An order to this effect was made by the Sub-divisional Officer on 23.11.1973. 4. After the release of the properties under the orders of the Managing Officer-cum-custodian of the evacuee properties petitioners obtained by exchange certain lands from Gajnafar Raza Choudhary, Kaishar Raza Choudhary and their mother. Lands so transferred in favour of the petitioners were claimed to have been originally settled with those persons by way of raiyati settlement between the years 1923 and 1927. These lands were alleged to be the Bakast lands comprising to Tauzi of which Mohd. Ishmail Choudhary was the proprietor and in respect of which he had created a Waqf. The Sunai Waqf Board treating the property as a Waqf property and treating it as one transferred to the petitioners in violation of the provisions of Section 36A of the Waqf Act asked the Collector in accordance with section 36B to get possession of the property delivered to it. Accordingly, the order dated 23.11.1973 was passed by the Sub-Divisional Officer. The petitioners moved this Court in C.W.J.C. No 1578 of 1973. This writ application was heard by a Bench consisting of Mr. Justice Shambhu Prasad Singh (as he then was) and Mr. Justice S. Ali Ahmad. Accordingly, the order dated 23.11.1973 was passed by the Sub-Divisional Officer. The petitioners moved this Court in C.W.J.C. No 1578 of 1973. This writ application was heard by a Bench consisting of Mr. Justice Shambhu Prasad Singh (as he then was) and Mr. Justice S. Ali Ahmad. While disposing of the application they agreed on the point that the Sub-Divisional Officer had no jurisdiction to pass the impugned order, but on the question whether the properties belonged to the Waqf or not and as such the claim of the Board that the properties were delivered to it by the Managing Officer-cum-Assistant Custodian or not, they differed. S.P. Singh, J. held in favour of the Board. Ahmad, J. rejected the Board's Claim. The application was placed before Mr. Justice Madan Mohan Prasad J. (as he then was). Madan Mohan Prasad, J. agreed with the findings recorded by S.P. Singh J. that the register under section 26 of the Waqf Act is final with respect to the Waqf but not in respect to the other entries, namely, the properties, which can be amended under section 28 of the Act. In the words of Madan Mohan Prasad, J “there is nothing sacrosanct about the Waqf. In fact, it will appear from Section 26 itself that the Register of Waqfs is not required to contain any name of the Waqf, but the class of the Waqf, name of the Mutwalli, rule of succession, particulars of waqf property and title deeds, particulars of scheme of administration, or such other particulars as may be prescribed. Therefore, the mere mention of the name of a waqf is not the requirement of Section 26 and could be meaningless unless the other particulars are also entered in the register, most important of them being the particulars of the waqf properties". Madan Mohan Prasad, J. thereafter recorded as extracted, "in view of the aforesaid, so far as the present case is concerned, it has to be decided on the footing that the lands in question were not entered as such in any Register or Waqfs maintained under section 26 of the Act. In fact, the present Act came to be applied to this State of Bihar in April, 1973. Before that, there was in force the Bihar Waqf Act, 1947. A Register of Waqfs had to be maintained even under section 33 of the said Act. In fact, the present Act came to be applied to this State of Bihar in April, 1973. Before that, there was in force the Bihar Waqf Act, 1947. A Register of Waqfs had to be maintained even under section 33 of the said Act. Under section 57 of that Act the Mutwalli was required to furnish particulars of Waqf in a prescribed form. The Bihar Waqf Rules, 1956, framed under the rule-making power of the State Government under section 79 of that Act provide in Rule 11 that the particulars to be given shall be contained in Form 1 (which is to be found as a schedule to the rules). This form also requires details of property held by Waqf. "It will thus appear that the details of the present disputed property must be deemed to have been given under the law as it obtained in this State at the relevant time. Thus the powers of the Board under section 36B could not be exercised in respect of the lands in dispute in the present case. The order of the Board must, therefore, be held to be without jurisdiction”. For this reason and other reasons particularly the provision contained in rule 19 of the Rules framed under the Waqf Act which were published in the Bihar Gazette on the 2nd of November, 1974, which required notice to the person who claimed an interest in the property in his own right and a decision by the Waqf Board as to whether the property belongs to a Waqf and has been illegally transferred to the claimants, it could not but be exercising a quasi judicial function. Madan Mohan. J., held, "the minimum necessity therefore was to give notice to the petitioner and to give them proper hearing before exercising the power of requisition”. S. Altaf Ahmad Choudhary claiming to be the Mutwalli of the Waqf Estate and the Bihar Subai Sunni Majlishe Waqf, also filed Title Suit No. 1 of 1968/64 of 1968 before the Subordinate Judge, Dumka, for setting aside the transfers or alienation described in schedule-I of the plaint including the property claimed by the petitioners. It was alleged in the plaint that the transfers made by Gajnafar Raza Choudhary, Kaishar Raza Choudhary and their mother in favour of the defendants were illegal and void. It was alleged in the plaint that the transfers made by Gajnafar Raza Choudhary, Kaishar Raza Choudhary and their mother in favour of the defendants were illegal and void. The plaint contained the allegation that Gajnafar Raza Choudhary and Kaishar Raza Choudhary sons of Humayun Raza Choudhary were appointed joint Mutwallis in place of their father and they functioned in the said capacity until 5.4.1964 when both went to Pakistan. Thereafter Altaf Ahmad Choudhary, s/o Sajjad Ahmad Choudhary was appointed Mutwalli of Waqf Estate. He discovered the transfers made in favour of the petitioners and took step to challenge the Same. Proceedings were taken in the suit for appointment of a receiver. The learned Subordinate Judge at the first instance appointed a receiver to take charge of the entire properties in possession of the petitioner as also other properties involved in the suit. Petitioners moved this Court in Misc. Appeal No. 338 of 1968. By judgment and order dated 25.2.1969, the order of the learned Subordinate Judge was set aside by this Court and the case was remanded back for reconsideration in accordance with law. After the remand the learned Subordinate Judge found, for the purposes of appointment of the Receiver, that the properties were not Waqf properties to which the Waqfs Act could be applied and declined to appoint a Receiver. The Bihar Subai Sunni Majlishe Waqf filed Civil Revision No. 239 of 1970 in this Court. This revision application was dismissed. The plaintiffs, namely, Altaf Ahmad Choudhary, the Mutwalli and the Bihar Subai Sunni Majlishe Waqf allowed the title suit to be ultimately dismissed for default on 31.7.1972. The Bihar Subai Sunni Majlishe Waqf filed an application for restoration on 16.8.1972, but also filed another application on 25.7.1973 seeking permission to withdraw the said restoration application. By his order dated 30.7.73 the learned Subordinate Judge allowed the Bihar Subai Sunni Majlishe Waqf to withdraw the suit and dismissed the petition for restoration. The Sunni Waqf Board is the successor of the Bihar Subai Sunni Majlishe Waqf. 6. It has been alleged by the petitioners that on the 3rd of September, 1966, they were informed by their advocate that some actions had been taken to dispossess them. The petitioners contacted the Addl. Deputed Commissioner. Santhal Pargana (the Additional Collector under the land Reforms Act, Sahebganj) for making enquiries about the steps taken. 6. It has been alleged by the petitioners that on the 3rd of September, 1966, they were informed by their advocate that some actions had been taken to dispossess them. The petitioners contacted the Addl. Deputed Commissioner. Santhal Pargana (the Additional Collector under the land Reforms Act, Sahebganj) for making enquiries about the steps taken. The Additional Collector is said to have told them that they would be dispossessed by force without any further proceeding. It is also alleged by the petitioners that the Additional Collector refused to give any order and when their advocate personally approached him to make enquiries he was informed that there had been a direction issued by the State Government for the delivery of possession of the property to the Mutwalli of the Waqf on the 9th September, 1977. When the learned advocate made a prayer for copies of the order of the State Government and/or any other authority the Additional Collector refused his request. The learned Advocate, however, inspected the records and learnt that the Deputy Secretary, Government of Bihar, Department of Law, has issued a letter bearing No. 101/76, 3634-1 to the Additional Collector, Santhal Praganas, Dumka, dated the 20th July, 1977. An english translation of the said communication in Hindi has been extracted in paragraph 10 of the writ application. The Additional Collector in pursuance of the order, as contained in the communication of the Deputy Secretary, Government of Bihar, Department of law, dated the 20th July 1977 directed the Sub-divisional Officer to take immediate steps. The petitioner apprehending their dispossession came to this court and filed the present application. 7. A copy of the communication of the Deputy Secretary, Government of Bihar. 'Department of Law, dated the 20th July, 1977, has been filed with the supplementary affidavit on behalf of the State of Bihar. Another communication dated the 23rd of May, 1977 from the Deputy Secretary to the Government, Department of Law (Judicial) has also been filed on behalf of the State. The letter dated the 23rd May, 1977, is addressed to the Deputy Commissioner, Dumka, by name and is sent in reply to a communication of the Additional Collector's letter dated 7.2.1977 to the Custodian, Bihar, Now Delhi, regarding delivery of possession of tanks. The letter dated the 23rd May, 1977, is addressed to the Deputy Commissioner, Dumka, by name and is sent in reply to a communication of the Additional Collector's letter dated 7.2.1977 to the Custodian, Bihar, Now Delhi, regarding delivery of possession of tanks. It was stated in the said letter that in forwarding copies of marginal noted letters of the Law Department and the Additional Collector, Dumka, he directed the delivery of possession of the relinquished evacuee waqf property in the possession of Collector, Dumka, to the Mutuwili of the Kotal Pukhar Waqf Estate was not expeditiously done as it should have been that there were 105 tanks belonging to the Wakf Estate, a number of which vested in the State in the year 1953 along with the intermediary interest and rest of them which were khas Raiyati Tanks, did not vest as they were retained in possession of the Custodian and were managed on his behalf by the local staff of the Deputy Collector Land Reforms. the rent and cess being paid as raiyati holding the details as to their holding number, rent, cess area etc. were duly recorded in register No. 3 maintained in the office of the Circle Officer, Sahebganj and Barharwa, the Custodian had already ordered that the released properties of the Waqf Estate be settled to the Mutwalli the Law Department had also impressed this point a number of times as would appear from the letters of the Department to the Additional Collector, Dumka, and it was further asserted in the said letter that since the responsibility devolved on the State Government in the Law Department under the Waqfs Act, 1954, for proper maintenance of the Waqf properties, it was felt necessary to bring this fact to the notice of the Deputy Commissioner so that, by going through the entire matter, if possible, he could direct the Sub-divisional Officer, Sahebganj, or the Additional collector-in-charge, Sahebganj and Godda to deliver possession of the properties to the legally appointed Mutwalli. The respondent No.3 has been named as the legally appointed Mutwalli. The respondent No.3 has been named as the legally appointed Mutwalli. The letter, dated the 20th of July, 1977, states that the attention of the Deputy Commissioner is drawn to the discussion which he had in his office room with the Deputy Secretary, Department of Law (Justice), Government of Bihar and he is directed to take steps in accordance with the directions contained in the letter dated the 23rd May, 1977. It is further stated in this letter that the Deputy Commissioner had assured that after the Assembly election he would give personal attention but the action has been inordinately delayed. The Deputy Secretary requested the Deputy Commissioner to give personal attention and ensure delivery of possession of the entire properties of the Waqf Estate to the legally appointed Mutwalli Shri Altaf Ahmad Choudhary. 8. Facts are generally not disputed. But the State of Bihar has maintained that there is no threat of dispossession of the petitioners. Delivery of possession is contemplated in respect of the properties which are in the control of the State Government on behalf of the Custodian of the evacuee properties which have not been delivered to any body earlier. The Bihar State Sunni Waqf Board (the respondent no. 4) and the Mutwalli (the respondent no. 5) have also maintained that the properties in question were waqf properties in the hands of the Custodian which were never released in favour of any person and the waqf is legally entitled to hold these properties. There is some controversy as to the fact as to whether there has been any order releasing the properties in favour of the non-evacuee beneficiaries as claimed by the petitioners on 14.12.1960 or not. In one of the rejoinders filed on behalf of the Respondent no. 3. It has been stated that the Assistant Custodian of an evacuee properties on 14.12.60 released the Waqf Estate provisionally in favour of Gajnafar Raza Choudhary and Kaishar Raza Choudhary not as their personal property but as the waqf interest. He released these properties only provisionally subject to the confirmation of the Custodian, Bihar, because he was not empowered to release the same. There has been no confirmation of the release by the Custodian and as such it never became final. He released these properties only provisionally subject to the confirmation of the Custodian, Bihar, because he was not empowered to release the same. There has been no confirmation of the release by the Custodian and as such it never became final. In short, therefore, both the Waqf Board and the Mutwalli have asserted that the release order, as per the directions of the Deputy Secretary, Department of Law, Government of Bihar, dated 23.5.1977 and 20.7.77, is of the properties which do not in any way concern the petitioners. The petitioners on the other hand maintain that in the absence of a valid adjudication, it is not possible to say that the properties proposed to be delivered by the State to the Mutwalli are not the properties in which the petitioners have their raiyati interests and which are not in their possession. In more than one affidavits, it has been stated on behalf of the petitioners that the Custodian of evacuee properties released the entire properties on 14.12.1960 in favour of non evacuee beneficiaries of Kotal Pukhar Waqf Estate, namely, Gajnafar Raza and Kaishar Raza, who were holding Estate as Raiyats in their personal capacity and they became tenants under the State Government and started paying rent to the State. The petitioners had extensive properties in the erstwhile East Pakistan, (now Bangladesh), and in the year 1965, they exchanged some of the lands with Gajnafar Raza Choudhary and Kaishar Raza Choudhary and others, who were holding them as raiyats. After the exchange the petitioners came in possession of the land and they became tenants under the State and accordingly paid rent to the Government of Bihar. After the release in favour of the non-evacuee beneficiaries no property remained in possession of the Custodian of evacuee properties. The claim of the State that the Waqf properties released by the Custodian are in possession of the Deputy Commissioner, Land Reforms, is not true. It was in this very back ground of the facts that when the so-called release of the Waqf Estate in favour of the Mutwalli was asserted by the Waqf Board and the properties were claimed as Waqf properties and the Sub-divisional Officer, Sahebganj ordered for delivery of symbolical possession of the properties to the Mutwalli, Civil Writ Jurisdiction Case No. 1578 of 1973 was filed in this Court. This Court has already held that the properties claimed by the petitioners are not included in list of the properties of the Waqf as provided under the Waqfs Act and the Rules. The respondents have never provided any list of the properties to show that the properties in question and/or the properties which are sought to be released in favour of the respondent no. 3 are not those as claimed by the petitioners as their raiyati properties. As held by this Court the petitioners are entitled to a notice if the Waqf Board proceeds to claim the properties as the Waqf properties. The Mutwalli cannot recover the properties which are n possession of the petitioners without getting a valid declaration in accordance with law from a competent authority or the court that the properties are Waqf properties. Even the State Government is not-clear as to which properties have vested in the State and which have remained in possession of the Custodian. The expression, 'Khas Raiyati Tanks did not vest and were retained in the possession of the Custodian', is misleading and is in the teeth of the finding of this Court in C.W.J.C. No. 1578/73. 9. There is no dispute that the Kotal Pokhar Waqf Estate was declared an evacuee property. It is admitted on all sides that there were settlements made by the Mutwalli between 1922-1927 creating Raiyati rights in favour of the settlees. Transferors of the petitioners are admitted to be included in the list of such settlees. A challenge to the valility of the settlement by filing a civil suit ended with the withdrawal of the suit by the respondent no. 3 and the predecessor in office of the respondent no. 4. On the release of the properties by the custodian, it was claimed that the properties reverted to the Waqf and an order to this effect was passed by the Sub-divisional Officer. The matter, thereafter came to this Court in C.W.J.C. No. 1578/73. This Court has already held that the claim of the petitioners of their raiyati interest in the lands claimed by the respondent nos. 3 and 4 cannot be denied to them unless they are served with notice by the Waqf Board and heard and the decision is taken that the transfers claimed by them are invalid. It is doubtful, in view of the provisions under Order 23 of the Civil. 3 and 4 cannot be denied to them unless they are served with notice by the Waqf Board and heard and the decision is taken that the transfers claimed by them are invalid. It is doubtful, in view of the provisions under Order 23 of the Civil. Procedure Code that after the withdrawal of the suit raising such a dispute it can again be permitted to be raised on behalf of the respondent nos. 3 and 4. True, the State of Bihar was not a party to the suit, and there has been no adjudication so as to bind the State Government even by this Court in C.W.J.C. No. 1578/73, but the State actions must conform to the rules of law and the rules of natural justice. It cannot assume jurisdiction to deliver possession (even symbolic) of properties claimed by the petitioners so as to create a right in the respondent nos. 3 and 4 who have failed more than once. 10. Mr. Tara Kant Jha, learned advocate appearing for the petitioners, has contended that the question of release of the properties of the Waqf Estate in favour of the Mutwalli is inextricably linked with the question as to whether there has been a settlement of the properties of the Waqf in favour of the transferors of the petitioners between the year 1923 and 1927 or not and whether the transferors bad acquired raiyati rights which they could transfer in favour of the petitioners in the year 1965 or not. In the absence of a valid adjudication of these questions and the proceedings uptil now having been decided against the respondent nos. 3 and 4, if the State Government shall be allowed to Proceed with the proposed delivery of possession in favour of the Mutwalli, the petitioners' rights shall be put to a serious jeopardy. He has questioned the authority of the State Government to decide such a dispute and they asserted that the respondent-State cannot claim ignorance of the fact that the petitioners are raiyats and that such a delivery of possession to the Mutwalli shall prejudicially affect their raiyati rights. He has contended that confusion is writ large in that communications and the State and its officers are themselves not sure at to what properties have vested in the State of Bihar and what properties, according to them, are the properties of the Waqf. He has contended that confusion is writ large in that communications and the State and its officers are themselves not sure at to what properties have vested in the State of Bihar and what properties, according to them, are the properties of the Waqf. According to him, the State and its Officers are obliged to take notice of the claims of the petitioners and thereafter to take a decision in the matter. He has submitted that the State and its Officers should not be permitted to proceed in the matter without avoiding the petitioners' rights in accordance with law. 11. The learned counsel for the State and its Officers as also the learned counsel appearing for the respondents 3 and 4 have not been able to show that the properties sought to be delivered to the Mutwalli as Waqf properties are not those claimed by the petitioners. They have also not been able to show as to how they maintain that the petitioners are not In possession or the properties claimed by them and/or that the petitioners claims are such that can be ignored in this manner. 12. There is considerable force in the contentions of the learned counsel for the petitioners. Petitioners have fully demonstrated that they have been claiming possession through the settlees who in their turn, were holding the properties as raiyats Although, their claims were disputed, but the title suit ended in its withdrawal and when the Mutwalli and the predecessor in interest of the Waqf Board claimed the properties as Waqf properties this Court noticed that there were no materials for such a conclusions and that the mandatory provisions of law had not been complied with. It is not understandable as to on what material the respondent-State and its Officers accepted the claim of the Mutwalli that the properties in question are Waqf properties and that he is entitled to get possession of the same. It is not known as to whether the facts that a title suit had been filed and later withdrawn and that the Mutwalli and the predecessor in interest of the Waqf Board lost their claim before this Court were brought to the notice. of the State and its Officers. If they have proceeded in the matter without the knowledge of these facts, their actions suffer on account of non-consideration of the material facts. of the State and its Officers. If they have proceeded in the matter without the knowledge of these facts, their actions suffer on account of non-consideration of the material facts. If they have proceeded despite the knowledge of these facts to deliver possession of the properties to the Mutwalli, their actions suffer on account of non-compliance with the requirements of the rules of natural justice of affording opportunity of hearing to interested persons like the petitioners and also for not disclosing the reasons and the authority of law under which they have chosen to act. It is now a settled law that a person whose rights are likely to be affected by any State action is entitled to hearing and a notice to represent his cause and place his case for consideration. It is also a settled law that the State action must confirm to the rules of law and natural justice. Every action of the State adversely affecting a right of a person must be supported by reasons of adjudications and should not in any manner be fanciful, arbitrarily and exparte. 13. I have given my anxious consideration and I have no manner of doubt that the proposed action of the State shall result in serious prejudice to the claims of the petitioners. The petitioners are entitled to a notice and the consideration of their Cases before the State takes any action. The petitioners are also entitled to know under what authority the State and its Officers are acting. The proposed action of the State is evidently not in conformity with the principles of natural justice. No provision of law or authority has been shown to as to justify the proposed action. The State and its Officers therefore have not proceeded in the matter in accordance with law. It will thus be improper to allow the respondents to conclude the proposed actions. For these reasons this application must succeed. 14. In the result, this application is allowed. The orders contained in the letter of the Deputy Secretary, Department of Law (Judicial) dated the 23rd of May, 1977, to the Deputy Commissioner, Dumka, and the letter dated 20.7.1977 of the Deputy Secretary, Government of Bihar, Department of Law (Judicial) to the Additional Deputy Collector, Santhal Pragarans, and the Additional Collector under the Land Reforms Sahebganj, are hereby quashed. Let a writ of certiorari accordingly issue. The respondent nos. Let a writ of certiorari accordingly issue. The respondent nos. 2 and 4 are restrained from taking any action to dispossesses the petitioners and/or any action which may have the effect or dispossessing the petitioners except in accordance with law after giving a notice to them and affording opportunity of hearing to them. On the facts and in the circumstances of the case, the petitioners are entitled to costs payable by the respondent no. 3. Hearing fee Rs. 250/-. I agree. Application allowed.