Research › Browse › Judgment

Patna High Court · body

1996 DIGILAW 790 (PAT)

Azimuddin v. Arshad Kamal

1996-12-04

B.P.SINGH

body1996
JUDGMENT B.P. Singh, J. The petitioner herein has impugned the order issued by the Secretary, Bihar State Sunni Wakf Board, Patna, dated 23.4.1984 (Annexure-12) whereby plot no. 819 measuring 0.17 acre has been deregistered/amended as per direction of the Chairman dated 19.4.1984 under Section 28 of the Waqf Act. What is really meant by the said order is that under the orders of the Chairman the land measuring 0.17 acre out of plot no. 819 is not to be considered to be waqf property. 2. The facts of the case are that, by the order dated 6.3.1973 in exercise of power under Section 78 of the Bihar Waqfs Act, 1948, the Special Officer of the Bihar Sunni Majlis-e-Awqaf, Patna, declared the properties mentioned therein, including the plot in dispute, as forming the Waqf estate of Waqf No. 1488. By the same order, a Managing Committee has been appointed Annexure IV, therefore, discloses that a waqf was recognised and registered and its properties included Khesra No. 819 having an area of 17 decimals, which is the plot in dispute. The properties were, accordingly, mutated in the revenue record in favour of the Waqf. It appears that on 10.4.1976 respondents 1 and 2 obtained a sale deed in respect of Khesra No. 819 measuring 17 decimals from the then Mutwali. This gave rise to a proceeding under Section 145 of the Code of Criminal Procedure and. in that proceeding, even a report was received that the plot in question was Waqf property. However, by order dated 14.11.1977 the Special Officer of the Board ordered deregistration of the plot in question from the waqf register. This gave rise to a protest, and an application was filed for recall of the order dated 14.11.1977. The said matter was heard. An order was thereafter passed on 28.6.1979 (Annexure-V) by the Special Officer holding that the property in dispute was waqf property, and its registration was proper. He, therefore, recalled the order dated 14.11.1977. 3. This question was raised before the Law Department as well, but the Law Department in its communication addressed to the Secretary, Bihar State Sunni Waqf Board, observed that, if any one raised a dispute with regard to property declared as waqf property, it was open to him under Section 27 of the Act to move the Civil Court. 4. 3. This question was raised before the Law Department as well, but the Law Department in its communication addressed to the Secretary, Bihar State Sunni Waqf Board, observed that, if any one raised a dispute with regard to property declared as waqf property, it was open to him under Section 27 of the Act to move the Civil Court. 4. It would, thus, appear that even the Law Department took the view that the property having been declared to be waqf property, the same could not be deregistered as was sought to be done unless, there was a proper adjudication by a Civil Court. 5. In the above circumstances, respondents 1 and 2 filed Title Suit No. 114 of 1982 before the Subordinate Judge, Patna, for declaration of their title to the plot in question on the basis that the said plot purchased by them was not waqf property. In that suit, the petitioners filed an application under Order 39, rules 1 and 2 of the Civil Procedure Code, for injunction. After hearing the parties, the injunction matter was disposed of on the basis of respondent nos. 1 and 2 as also respondent no. 3, the Waqf Board, giving an undertaking that till disposal of the suit, the property will not be deregistered. While the suit was pending, the private respondents, it is alleged by the petitioners, approached the Minister concerned who put pressure on the Board to release the plot in question from the waqf estate. It appears from Annexure-X that the Secretary of the Bihar State Sunni Waqf Board wrote to the plaintiffs of the suit to withdraw Title Suit No. 114 of 1982 to enable the Board to take further action in the matter. Accordingly, the suit was withdrawn and thereafter the impugned order was passed. From the impugned order, it is apparent that the order was being passed in view of the specific order repeatedly issued by the State Government and reference is made to six such orders issued by the State Government. The order further state that since the suit had been withdrawn, plot no. 819 measuring 0.17 acre was being deregistered/amended as per the direction of the Chairman dated 19.4.1984 under Section 28 of the Act. 6. I fail to understand how such an order can be justified. The order further state that since the suit had been withdrawn, plot no. 819 measuring 0.17 acre was being deregistered/amended as per the direction of the Chairman dated 19.4.1984 under Section 28 of the Act. 6. I fail to understand how such an order can be justified. It is not in dispute that the plot in question belonged to the waqf which was registered as waqf no. 1488. If respondents 1 and 2 disputed the fact that the property belonged to the waqf, they could have filed an application under Section 27 of the Act which authorises the Board to decide any question as to whether a particular property is or is not a waqf property . This power can be exercised by the Board itself after following the procedure and hearing the parties. The decision given by the Board in such a case is final unless the party aggrieved obtains a favourable order from a Civil Court. I find nothing in the Act which gives the Board power to release a particular plot of land and declare that the same shall not be treated as a Waqf property. Section 28 of the Act which relates to amendment of Register only provides that the Waqf Commissioner may direct a Mutawali to apply for registration of the waqf, or to supply any information regarding the waqf, or may himself cause the waqf to be registered or may at any time amend the Register of waqf. The amendment of the Register of waqf is necessitated when any change is made by adding any new Waqf or by any other order passed by the Waqf Commissioner. No power is given under Section 28 to declare that a property recognised as waqf property is deleted from the register of waqf property. If any person is interested in claiming that a particular property is not waqf property, he must first raise that dispute under Section 27 of the Act, and only thereafter, such property may be declared to be not waqf property, if the Board so decides. If, on the other hand, the Board decides that the property is waqf property, that decision has to be challenged before a Civil Court of competent jurisdiction. 7. If, on the other hand, the Board decides that the property is waqf property, that decision has to be challenged before a Civil Court of competent jurisdiction. 7. In the instant case, the impugned order (Annexure XII) dated 23.4.1984 is a cryptic order and has been passed on irrelevant considerations, such as, pressure of the Government upon the Board to release the land in question. Even if the power could be exercised suo motu, it is not shown that the order has been passed for the benefit of the waqf. In fact, it is to the contrary, and waqf property is sought to be released to a private person who claims to have purchased the same. No reasons have been mentioned in Annexure XII as to why the Chairman considered it necessary to release the land and treat the same as non-waqf property. The only reason shown is the issuance of repeated orders by the State Government. There is nothing in law which vests power in the State Government to direct the Board to treat waqf property as non-waqf property. The Chairman has, therefore, acted on wholly extraneous considerations, and the impugned order, therefore, is vitiated by malice in law, if not malice in fact, though the action may be said to be mala fide in fact also having regard to the submission that the order has been issued by the concerned Minister to favour respondent no. 1. However, it is not necessary for me to hold that the order is vitiated by mala fide in fact, but the same is certainly mala fide in law. Moreover, the power under Section 27 of the Act can be exercised by the Board, and not by the Chairman and, therefore the impugned order cannot even be considered to be an exercise of power under Section 27 of the Act. In these circumstances, the impugned order (Annexure-XII) dated 23.4.1984 issued by the Secretary. Bihar State Sunni Waqf Board, Patna, is quashed. 8. This application is, accordingly, allowed. There shall be no order as to costs.