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1989 DIGILAW 414 (KAR)

SUSHEELA v. KARNATAKA BOARD OF WAKFS

1989-11-22

K.A.SWAMI

body1989
SWAMI, J. ( 1 ) IN this writ petition under Articles 226 and 227 of the Constitution, the petitioner has sought for quashing the Order dated 4-10-1989 passed by the first respondent bearing No. KTW/reg/27/bgm/88-89 (Annexure-F ). ( 2 ) THE impugned order is the one passed by the first respondent declaring that the properties bearing CTS Nos. 4208, 4209, 4210, 4211, 4212, 4213, 4214, 4215, 4216 and 4217 as Wakf properties. They are situated at K. C. Road, chikodi. The petitioner claims to be the owner of the properties bearing CTS Nos. 4212, 4213 and 4214. The impugned order is passed by the wakf Board in exercise of its jurisdiction under sections 25 and 26 of the Wakfs Act, 1954 (hereinafter referred to as the 'act' ). Before passing the impugned order a notice was issued to the petitioner and others to show cause as to why the properties in question should not be declared as Wakf-properties. The petitioner and others interested in the properties filed their objections. Objectors were also examined by the chairman, District Wakf Committee, Belgaum in its meeting held on 29-8-1989, Thereafter, the wakf Committee in its meeting held on 4-10-1989 declared the properties in question as wakf- properties. ( 3 ) THE contention of the petitioner is that she being the owner of the properties in question, the same cannot at all be declared as wakf- properties, therefore, the first respondent has acted without jurisdiction in declaring the aforesaid properties as wakf-properties. It is not possible to hold that the Wakf board has no jurisdiction to decide the question as to whether a particular property is wakf- property or not. Section 25 of the Act provides for registration of the Wakf under the Act and also empowers the Wakf Board to decide the question as to the registration. Section 26 of the act relates to the 'register of Wakfs'. It has to be maintained by the Wakf Board and it shall contain the class of the wakf; the name of the mutawalli; the rule of succession to the office of mutawalli under the wakf deed or by custom or by usage; the particulars of all wakf properties and all title deeds and documents relating thereto; particulars of the scheme of administration and the scheme of expenditure at the time of registration; and such other particulars as may be prescribed. Section 27 of the Act specifically provides that 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. Sub-section (2) thereof farther provides that 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. Section 6 of the Act provides for deciding the disputes regarding wakfs. Section 6 empowers the Board to decide as to whether a particular property is a wakf property or not. The Supreme court in The Board of Muslim Wakfs, Rajasthan v Radha Kishan and Others, AIR 1979 SC 289 , has held that an aggrieved person, if he is not a Muslim, can file a suit beyond the period of one year as prescribed under Section 6 of the act, as per the limitation provided under the general law of limitation. The specific period of limitation provided under Section 6 of the Act for filing a suit is not applicable to those who are not Muslims, and, it is applicable only to the mutwalli and persons interested in the wakf. Chapter VII of the Act, which relates to the judicial proceedings, provides for institution of suits either by the Board or by the persons aggrieved by a decision of the Board, against the Board. Again Section 57 of the Act specifically provides for a Civil Court to issue notice, in a suit or a proceeding wherein the question as to whether a particular property is a wakf property or not, to the Board. Sub-section (3) of Section 57 further provides that in the absence of a notice under sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming. to know of such suit or proceeding, applies to the Court in this behalf. Thus, from the aforesaid provisions it is clear that the decision rendered by the Wakf Board as to whether a particular property is a wakf property or not, is open to challenge in a Civil Court. to know of such suit or proceeding, applies to the Court in this behalf. Thus, from the aforesaid provisions it is clear that the decision rendered by the Wakf Board as to whether a particular property is a wakf property or not, is open to challenge in a Civil Court. ( 4 ) IN the instant case, the petitioner claims title to the properties in question, and, it is her specific case that the suit properties are not wakf properties and they are her private properties. It is contended on behalf of the petitioner that in such a case it is for the Wakf Board to go to a Civil Court and not for the petitioner to go to a Civil Court. It is also contended that, in such a case the jurisdiction under Articles 226 and 227 of the Constitution has to be exercised in order to keep the Board within its bounds. 4. 1. The proposition cannot be accepted as an absolute proposition without any exception or flexibility. The most material question is as to whether as a matter of course in-each and every case this Court has to exercise jurisdiction under article 226 or 227 of the Constitution, even when a case involves complicated questions of law and facts, relating to title to an immovable property and the Act provides for an effective and efficatious remedy by way of suit. 4. 2. In support of the plea that the jurisdiction under Articles 226 and 227 of the Constitution can be exercised against the order of the board deciding that a particular property is a wakf property, the learned counsel for the petitioner has placed reliance on the decisions of this Court in Shah Mansur Peer Dargah and another v State of Karnataka and Ors. , reported in air 1980 Kar. 118 ; Anjuman-E-Islamia v sakeenabi, reported in ILR 1985 Kar. 1930; mysore State Board of Wakfs v Dr. M. Channabasavaiah and Others, reported in AIR 1973 mys. 312; and Abdul Rab Shah Khadri v The Court of District Judge, Mandya and Others, reported in AIR 1972 Mys. 96. It is relevant to notice that in Shah Mansur peer Dargah 's case the facts necessary for the purpose of deciding the case were not disputed. In para-9 of the Judgment, it has been specifically observed thus:",. . 312; and Abdul Rab Shah Khadri v The Court of District Judge, Mandya and Others, reported in AIR 1972 Mys. 96. It is relevant to notice that in Shah Mansur peer Dargah 's case the facts necessary for the purpose of deciding the case were not disputed. In para-9 of the Judgment, it has been specifically observed thus:",. . the questions raised in these petitions, do not involve a detailed investigation into the nature of the rights, recording of evidence consideration of such evidence and a decision thereon by this Court. Lastly, the facts necessary to determine the questions that are urged for the petitioners are not even disputed by respondents 2 and 3. In these circumstances, this Court will not be justified in refusing to examine the case of the petitioners and drive them to civil suit. For these reasons, I reject this contention of Sri Murlidhar Rao and proceed to examine the contention of the petitioners on merits. "in Abdul Rab Shah Khadri's case the order was passed without issuing a notice and without holding an enquiry. Therefore, the Court considered it to be a fit case for interference. The relevant portion of the judgment reads as follows:"when once the Board came to know that the property in question was in possession of the petitioner and he had lodged his claim thereto, the Board should have held an enquiry into the question whether the property was wakf property or not as required by Section 27 (1) of the Act. Such enquiry necessarily involved the issue of notice to the petitioner to substantiate his claim. Admittedly no such enquiry was held and no notice was issued to the petitioner to establish his claim before taking a decision under subsection (1) of Section 27 of the Act. It is to be further seen that the Board committed a further mistake in sending a requisition to the Deputy Commissioner for taking action under Section 36-B of the Act. The board can send such a requisition only when it is satisfied after making an enquiry, in the prescribed manner, that any immovable property of a wakf entered as such in the register of wakfs under Section 27 of the act, had been transferred without the previous sanction of the Board in contravention of the provisions of Section 36-A of the Act. As already observed, the registration of the property in question under Section 26 of the act pursuant to the issue of certificate issued under Section 27 of the Act itself was not in order. "again in Mysore State Board of Wakfs v Dr. M. Channabasavaiah and Others, AIR 1973 Mys. 312), it was held that Section 36-B was not applicable to a case where the property was in the hands of a stranger, over whom the Board had no control under the Act. That such a property was entered in the list as Wakf property by the board did not give power to the Board. Therefore, what was challenged in that case was the action taken under Section 36-B of the Act and not a decision as to whether a particular property was a wakf property or not. In Anjuman-E-Isiamia v Sakeenabi, ILR 1985 Karnataka 1930 which arose out of a suit, the defence of defendants was that the suit property was not a wakf property. The plaintiff claimed that the suit property was wakf property and filed an application-I. A. No. 8 to overrule the objections of the defendants that the suit property was not a wakf property. That application was rejected by the trial Court. This Court in a Revision Petition held that rejection of the application was justified because it was open to the defendant to contend that the suit property was not a wakf property. Therefore, it is not possible to hold that the said decision is of any assistance to the petitioner to support his contention that, in a case like the one on hand the exercise of jurisdiction under Articles 226 and 227 of the Constitution is warranted. ( 5 ) IT is necessary to point out that this is not a case in which the Wakf Board has arbitrarily and straight away without notice to the petitioner has held that the suit properties in question are the wakf properties. From the contents of the impugned order it is clear that it has issued notice to the petitioner who has filed objections thereto and thereafter the petitioner has been examined and objections have been enquired into; and taking into consideration the objections and the records collected during the course of enquiry the impugned order has been passed. From the contents of the impugned order it is clear that it has issued notice to the petitioner who has filed objections thereto and thereafter the petitioner has been examined and objections have been enquired into; and taking into consideration the objections and the records collected during the course of enquiry the impugned order has been passed. ( 6 ) THE question for decision is whether in such a situation, exercise of jurisdiction under articles 226 and 227 of the Constitution is called for when the matter relating to title which is in dispute can be decided by a Civil Court and a remedy by way of civil suit is provided under the act. This is not a case in which facts are undisputed. On the contrary, the case pleaded by the petitioner is not accepted by the Board. Therefore, the very case of the petitioner claiming title is in dispute. However, learned counsel for the petitioner has placed reliance on a decision of the Civil Court in O. S. Nos. 196 and 197 of 1984 filed by the Public Trust, Peer Ataulla sha Gachi Maskan and Vaghedisha Basha of chikodi and Another v Smt. Gourabai and two others, relating to the properties in question, in the Court of the Principal Munsiff, Chikodi. According to the aforesaid judgment, the properties are not wakf properties. In this regard, it is relevant to notice that the Wakf Board was neither a party to the suit nor the suit was filed by the Wakf Board. Any decision rendered by a Civil Court in respect of wakf properties deciding the question as to whether a particular property is a wakf property or not without notice to the Wakf Board, cannot have any value in the eye of law and as per the provisions contained in Section 57 of the Act, such a decision on a mere filing an application by the Wakf Board and on proving that it had no notice of the proceedings shall have to be declared as void. Under the circumstances, the decision rendered in O. S. Nos. 196 and 197 of 1984 by the Principal Munssiff, chikodi, cannot be relied upon. Further, it is stated that the aforesaid decree is under appeal. Under the circumstances, the decision rendered in O. S. Nos. 196 and 197 of 1984 by the Principal Munssiff, chikodi, cannot be relied upon. Further, it is stated that the aforesaid decree is under appeal. ( 7 ) IN addition to this, it is relevant to notice that by mere registering the properties in question as wakf properties, the Wakf Board cannot straight' away dispossess the petitioner and take possession of the properties in question except in accordance with law. In Mysore State Board of Wakfs v M. Chennabasavaiah and Others, AIR 1973 Mysore 312, Section 36-B of the Act is not applicable to a case like this. Therefore the wakf Board has to seek possession in the manner laid down in that decision. Therefore, there is ample time for the petitioner to establish her title to the properties in question in a Court of law. ( 8 ) FOR the reasons stated above, in the facts and circumstances of the case I do not see any justification to entertain this petition. All the contentions are left open to enable the petitioner to have them decided in a proper suit by a competent Civil Court. Writ Petition dismissed. --- *** --- .