Bihar State Shia Waqf Board v. Sheonandan Prasad — 1984 DIGILAW 410 (PAT)

Judgment B.P.Jha, J. 1. I shall dispose of these three civil revision petitions by a common judgment as a common point of law arises for consideration in these petitions. 2. These matters relate to a property of the Bihar State Shia Waqf Board (hereinafter referred to as the Board). In the present case, the Board (petitioner) sent a requisition to the Collector for a direction to obtain and deliver possession of the property to it under Sec.36B(1) of the Wakf Act, 1954 (29 of 1954) (hereinafter referred to as the Act). The Collector under Sec.36B (2) of the Act directed the opposite party to deliver the property in question to the Board within a period of thirty days. 3. Opposite party No. 1, being aggrieved by the order of the Collector preferred an appeal before the District Judge. The Third Additional District Judge, Patna. set aside the order of the Collector on the ground that the land was transferred to opposite party No. 1 after obtaining prior sanction of the Board. 4. Sec.36A of the Act forbids transfer of any immovable property of a waqf by way of sale, gift, etc. without the prior permission of the Board It is relevant to quote Sec.36 A of the Act which runs as follows: Notwithstanding anything contained in the waqf deed, no transfer of any immovable property of a waqf by way of- (i) sale, gift, mortgage or exchange ; or (ii) lease for a period exceeding three years in the case of agricultural land, or for period exceeding one year in the case of non-agricultural land or building, shall be valid without the previous sanction of the Board. 5. On a persual of this Section, it is clear that no transfer of a waqf by way of sale or gift or mortgage or exchange or lease for a period exceeding three years in the case of agricultural land or for a period exceeding one year in the case of non-agricultural land or building shall be valid without the previous sanction of the Board. 6. In the present case, it is an admitted position that the property belongs to the Board. Sec.36B(1) provides that if any transfer has been made without the previous sanction of the Board, the Board will send a requisition to the Collector for taking necessary action under Sec.36B(2) of the Act. 6. In the present case, it is an admitted position that the property belongs to the Board. Sec.36B(1) provides that if any transfer has been made without the previous sanction of the Board, the Board will send a requisition to the Collector for taking necessary action under Sec.36B(2) of the Act. On receipt of a requisition under Sec.36B(1) of the Act, the Collector shall direct the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order. In the present case, the Collector issued such a direction as envisaged under Sec.36B(2) of the Act. Opposite party No. 1, being aggrieved by the order of the Collector, preferred an appeal to the district Court under Sub-section (4) of Sec.36B of the Act. The district Court set aside the order of the Collector. Hence, the Board has moved these civil revision petitions against the appellate Courts order. 7. On a perusal of appellate Courts order, it is clear that opposite party No. 2 (Mutawalli) sought permission of the Board to sell the immovable property in question. The Board considered the letter of the Mutawalli and granted permission to sell the immovable property by resolution No. 27 (v) dated 24th February, 1974. The Board also communicated the resolution to the Mutawalli (opposite party No. 2). It is also clear from the finding of the appellate Court that a notice of the intended sale was published in the Gazette by the Mutawalli. It is also clear from the finding of the appellate Court that a letter dated 20th January, 1975 was sent by the Mutawalli to the Board stating there in that all the directions given by the Board had been complied with by the Mutawalli. In view of these findings, the appellate Court set aside the order of the Collector issued under Sec.36B (2) of the Act. 8. In my opinion, the Board ought not to have requisition under Sec.36(B)(i) of the Act to the Collector for the. simple reason that the transfer had been made with the perior sanction of the Board, Hence, the requisition sent under Sec.36 (1) of the Act was illegal and the order of the Collector under Sec.36B (2) of the Act was equally illegal. 9. simple reason that the transfer had been made with the perior sanction of the Board, Hence, the requisition sent under Sec.36 (1) of the Act was illegal and the order of the Collector under Sec.36B (2) of the Act was equally illegal. 9. learned Counsel for the petitioner also contends that the sale was contrary to Rule 3 of the Bihar Waqf Rules, 1973 (hereinafter referred to as the Rules). It is relevant at this stage to quota rule 3(1) which runs as follows; The Board shall not accord sanction to any mortgage or exchange of Waqf property or to any lease thereof for more than three years unless such mortgage, exchange or lease is for an evident advantage of the Waqf concerned or is extremely unavoidable. 10. Under rule 3(1) of the Rules, the Board shall not grant sanction to any mortgage or exchange or to any lease of the Waqf property for more than three years unless such mortgage, exchange or lease is for the benefit of the Waqf concerned or is extremely unavoidable. Rule 3 is limited three classes of transfers, namely, mortgage or exchange or lease for more than three years. Rule 3 does not apply to a sale. Hence, I reject the contention of the learned Counsel for the petitioner. 11. In my opinion, the appellant Court has not committed any jurisdictional error and, as such, I am unable to interfere with the order in question for the reasons mentioned above. 12. In these circumstances, I uphold the order passed by the appellate court. These there petitioners are dismissed, but without any cost.