Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 72 (PAT)

Wahidul Haque Wakf Estate v. State Of Bihar

2003-01-20

P.N.YADAV, S.N.JHA

body2003
Judgment S.N.Jha, J. 1. This writ petition has been filed for quashing the order of the State Government communicated by letter No. 1742/Ra. dated 18-9-1990 of the Revenue & Land Reforms Department rejecting the claim of the petitioner for exemption under sec. 29 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (in short the Act). 2. The case of the petitioner is that it is a Wakf created for religious and charitable object comprising of several religious institutions situated at village Bhadaur, Barh, in the District of Patna. It is registered with the Bihar State Sunni Wakf Board as Wakf No. 273. It is managed by a motwalli entitled to 4 annas share from the wakf property. The present incumbent is Syed Reyaz Ahsan through whom the petitioner has been filed. The wakf was created by one Wahidul Haque by registered instrument dated 20-1-1931 for the maintenance and upkeep of two mosques one situated at village Bhadaur and the other at village Gorhiari, and a Madarsa, besides certain other religious and charitable objects out of the income of the wakf properties comprising 59.37 acres of class IV lands of khata Nos. 30, 33 and 43 at village Pitaunjia and khata No. 115 of village Andauli in the District of Patna. The first motwalli was the Wakif himself. After his death his daughter Bibi Noor Jahan became the motwalli.a according to the terms of the Wakf deed. After her death, Bibi Zainab, the issuless widow of Wahidul Heque, became the motwallia and thereafter, the present incumbent i.e. Syed Reyaz Ahsan was appointed in 1977. 3. The further case of the petitioner is that during Motwalliship of Bibi Zainab a proceeding being Ceiling Case No. 46 of 1975-76 was initiated before the Deputy Collector Land Reforms (DCLR) Barh, in which on 29-5-1976 vide Draft statement u/s. 10 (2) of the Act, 29.18 acres (elsewhere mentioned as 29.37 acres) of Class IV land was declared surplus allowing one unit i.e. equivalent to 30 acres of Class IV land to the landholder. No objection was filed to the Draft statement and in the circumstances on 20-7-1976 the Collector confirmed the Draft. In 1977 when Syed Reyaz Ahsan was appointed Motwalli by the Wakf Board. No objection was filed to the Draft statement and in the circumstances on 20-7-1976 the Collector confirmed the Draft. In 1977 when Syed Reyaz Ahsan was appointed Motwalli by the Wakf Board. Having come to know about the above said proceeding and the orders passed therein he got a revision filed by the Wakf Board being Case No. 402 of 1978 in the Board of Revenue: By order dated 26-12-1979 the revision was allowed and the matter was remitted back to the DCLR for fresh inquiry in the light of the observations made therein. The case of the petitioner is that on remand the DCLR Barh recommended exemption of land in terms of sec. 29 (2) of the Act. The Collector, Patna forwarded the recommendation to the State Government. On 10-1-1986 the Revenue Department returned the proposal on the ground that there was no recommendation by the Collector of the district. Thereafter, the Collector, Patna got an inquiry made by the Additional Collector on 2-8-1989. The Additional Collector too recommended the petitioners case for exemption. The Collector concurred in the recommendation. However, the State Government rejected the proposal by the impugned letter dated 18-9-1990 referred to above. 4. Shri S.S. Asghar Hussain, learned Counsel for the petitioner, submitted that the Wakf having been created for the benefit of educational institutions, amongst others, the Ceiling Act itself was not applicable in view of the provisions of sec. 29 (1)(b)(v) of the Act. He placed reliance on Rampur Catholic Mission V/s. State of Bihar and Ors., 2000 (4) PLJR 155. Alternatively, he submitted, if sec. 29 (1)(b)(v) is held to be not applicable, additional units should be granted to the petitioner in respect of the mosque, Madarsa and the like. Shri Hemendra Prasad Singh, learned Counsel for the respondents, submitted that the consistent case of the petitioner is that it is a wakf property person no less than the landholder i.e. Bibi Zainab had said so in the return submitted by her pursuant to notice u/s. 6. of the Act. In this view of the matter the DCLR held that the property was not of Bibi Zainab, it belonged to wakf. As a matter of fact, it was Bihar State Sunni Wakf Board which preferred the revision and, in the circumstances, the claim for additional units does not arise. of the Act. In this view of the matter the DCLR held that the property was not of Bibi Zainab, it belonged to wakf. As a matter of fact, it was Bihar State Sunni Wakf Board which preferred the revision and, in the circumstances, the claim for additional units does not arise. He submitted that while determining the ceiling area under the Act the Collector has merely to identify the landholder within the meaning of the Act and to allow units for him. Inasmuch as no land stood recorded in the names of the mosque or the Madarsa they could not be granted unit. Nor for the same reason any land would be outside the purview.of the Act by reason of Sec. 29 (1)(b)(v). Counsel submitted that the remand was made to consider the plea of exemption u/s. 29 (2) of the Act. The same having been deleted with retrospective effect by Bihar Act 8/97 (replacing the Ordinance of 1995) the petitioners claim for exemption has to be rejected out of hand. It was pointed out that it is a settled legal position that mosque is not a juristic person, and particularly when no land is recorded in its name there is no question of granting any exemption or unit to it. Counsel placed reliance on a decision of the Supreme Court in State of Bihar V/s. K.M. Zuberi and Ors., (1996)9 SCC 171 . 5. Shri Asghar Hussain, in reply did not, and rightly, controvert the plea of the Counsel for the State that the claim for exemption was no more maintainable as sec. 29 (2)(a)(ii) of the Act stands deleted with retrospective effect. He, however, emphasised that the wakf having been created for benefit of Mdarsa, amongst others, the Court should hold that the land stands out of the purview of the Act and therefore, the authorities had no jurisdiction to initiate proceeding much less declare any land as surplus. 6. Before adverting to the question of entitlement to the petitioner it would be appropriate to examine the question of applicability of the Act itself, for if the submission of the Counsel for the petitioner is accepted and it is held that the land in question stands out of the Act, the other question will become irrelevant and in that situation the entire proceeding will have to be held as without jurisdiction. Clause (b) of sec. Clause (b) of sec. 29 (1), item (v) of which is relied upon on behalf of the petitioner, is a part of the section captioned, "exemptions". However, it would appear that there is distinction between two sub-sections of sec. 29. While Sub-sec. (1) makes the Act as a whole inapplicable to certain types of land, and the provisions of Secs. 5 and 28 inapplicable to lands covered by the items mentioned in are part of Clause (b), Sub-sec. (2) empowers the State Government to exempt from the operation of Sec. 5 extent of land, as determined in the prescribed manner to sugar factories and, earlier, religious institutions of public nature. Thus while the State Government could grant "exemption" with respect to sugar factories or religious institutions of public nature, so far as lands mentioned in Sub-sec. (1) are concerned, the very Act was not applicable. The question of "exemption", therefore, did not arise. Apparently it is for this reason that in view of the deletion of the exemption clause viz. Clause (a)(ii) of sec. 29 (2) with retrospective effect, that attempt is now made to bring the case within the ambit of sec. 29 (1)(b)(v) which makes the provisions of Secs. 5 and 28 inapplicable to "such extent of land held on the-date of commencement of this Act by such public or charitable bodies other than religious institutions of public nature, running educational institutional, hospitals, maternity homes and Orphanages as may be notified by the State Government in this behalf, so long as they continue as such". Now the wakf is said to be of public nature but what is excluded is public or charitable body "other than religious institutions of public nature". Emphasis has bene placed on the words/clause "running education institutions" but there is no dispute that the entire land stands recorded in the name of the Wakf none in the name of Madarsa or mosque. As such, it cannot claim exemption within the meaning of sec. 29 (1)(b) of the Act. The claim in this regard has to be rejected. The decision in Rampur Catholic Mission (supra) was rendered on completely different facts. Therein the lands stood recorded in the name of Rampur Catholic Mission, an organisation engaged in activities coming within the ambit of sec. 29 (1)(b) of the Act. The claim in this regard has to be rejected. The decision in Rampur Catholic Mission (supra) was rendered on completely different facts. Therein the lands stood recorded in the name of Rampur Catholic Mission, an organisation engaged in activities coming within the ambit of sec. 29 (1)(b) and this Court accordingly directed the authorities to determine the extent of land held on the date of commencement of the Act. The Court clarified that the inquiry was permissible only to extent of determining how much land was held by it on the date of commencement of the Act. The decision is of no help to the petitioner. 7. We find substance in the contention of the Counsel for the State that in a proceeding under the Ceiling Act the Collector is primarily concerned with the identification of the landholder for the purpose of allowing units to them. The term landholder has been defined u/s. 2 (g) of the Act to mean, "a family as defined in Clause (ee) holder land as raiyat or as under-raiyat or a mortgage of land in possession or holding land permanently settled by Government or lessee of land not resumable by Government". The term family has been defined u/s. 2 (ee) to mean and include "a person, his or her spouse and minor children". As per the explanation the term further includes any company, institution, trust, association or body of individuals whether incorporated or not. The personal law, however, is not relevant or to be taken into consideration in determining the composition of the family for the purposes of the Act. 8. From bare definition of the term "landholder" read with definition of the term "family" it is obvious that unless a person including company, institution, trust, association etc. holds land as raiyat or as under-raiyat or a mortgagee of land in possession or a permanent settled of Government etc., he cannot be treated as a landholder and thus cannot be allowed any unit. In State of Bihar v. K.M. Zuberi, (1996) 9 SCC 171 , the Supreme Court clarified that statutory definition of family u/s. 2 (ee) does not permit applicability of a personal law of any person. Under the Act the ceiling area is required to be determined of a family as defined in sec. 2 (ee). In State of Bihar v. K.M. Zuberi, (1996) 9 SCC 171 , the Supreme Court clarified that statutory definition of family u/s. 2 (ee) does not permit applicability of a personal law of any person. Under the Act the ceiling area is required to be determined of a family as defined in sec. 2 (ee). Thus the lands in question being recorded in the name of the petitioner wakf, one unit equivalent to 30 acres of class IV land having already been allowed, it is not entitled to any further unit. 9. In the result, we do not find any merit in this writ petition, which is accordingly dismissed, but without any order as to costs.