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2013 DIGILAW 806 (PAT)

Syed Shah Muzahid Alam Firdosi v. State Of Bihar

2013-07-15

AJAY KUMAR TRIPATHI

body2013
ORAL ORDER Towards the end of 18th of century, to be precise on 21st of September, 1896, a pious lady namely, Musmat Bibi Soghara decided to create a Wakfnama with regard to her estate, which was vast and spread across various districts of this State. That piety in her heart, and goodness and trust in human race probably emboldened her to leave such a large estate for charity, obviously with the object of reaching out to the many unfortunate human beings, who may not have been as well placed in life as she was. May be it was her way of giving back to society what society had given her or her family. 2. The present set of writ applications are now originating from the same Wakf properties, which are in disarray, mismanaged due to ongoing quarrel between various vested interest, who want to become a member of the so called Executive Committee or by those who have been ousted from the Executive Committee. Sadly this Court has to record that none of them have the object in their mind to fulfill the desire of the lady, for which she had left behind her estate. 3. The Court is not going to get into individual litigation or grievance, which have been raised in these writ applications, because if the basic working of this Wakf and the mechanism by which the Wakf Board is trying to delve in the affairs, in the name of supervision are taken care of other things will fall in line. 4. Two historical facts cannot be ignored in adjudications of these cases, one is the Wakfnama itself, which is a very detailed document, laying down the wish and the desire of Bibi Soghara as to how her properties are going to be dealt with and in the manner in which the property is going to be used for various objects of piety. 5. The Wakfnama is on record, which is a translated copy. The English translation is admitted to be authentic since this translation was done at the behest of Calcutta High Court in Appeal Case No. 434 of 1911. 6. In the scheme of things of the Wakfnama there was to be a Mutawalli duly aided and supported by a Naib Awal and a Naib Doem. The English translation is admitted to be authentic since this translation was done at the behest of Calcutta High Court in Appeal Case No. 434 of 1911. 6. In the scheme of things of the Wakfnama there was to be a Mutawalli duly aided and supported by a Naib Awal and a Naib Doem. These are to be the permanent members of the Wakf, duly supported by 21 other elected members from the community of Muslman, having faith in Hanif Sunni faith. The mechanism for election of the 21 members Executive Committee has been laid down in Wakfnama itself. 7. Since Wakfnama relates to the period 1896, its working over a period of time did create problems and even a Title Suit No. 12 of 1919 was filed in relation to the said property. Besides, other things, the Court has the benefit of the scheme, which have been worked out by the erstwhile District Judge at Patna, by which the original object and purpose of the Wakfnama could be practically implemented and made workable. The scheme has reworked the mechanism by which the 21 members Executive Committee had to be put in place. This was done by the erstwhile District Judge, Patna, keeping in mind the impracticality of the earlier procedure in constitution of the Committee as well as in the day to day working of such Committee in the changed circumstances over a period of time. The scheme is of utmost importance in the present litigations for the reason that this is part and parcel of the decision or the judgment rendered in Title Suit No. 12 of 1919. 8. After independence, no doubt a legislation known and Wakf Act came into place and by the said enactment the power of administration and superintendence over Wakf properties was vested in the Wakf Board, created in every State across the country. In furtherance to such power of administration and superintendence the enactment has vested powers in the Wakf Board of various kind. This Court would like to take note of section 32, which is of utmost relevance in the present context and is reproduced below. “32. Powers and function of the Board. In furtherance to such power of administration and superintendence the enactment has vested powers in the Wakf Board of various kind. This Court would like to take note of section 32, which is of utmost relevance in the present context and is reproduced below. “32. Powers and function of the Board. – (1) Subject to any rules that may be made under this Act, the general superintendence of all Wakfs in a State shall vest in the Board established or the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the Wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such Wakfs were created or intended: Provided that in exercising its powers under this Act in respect of any Wakf, the Board shall act in conformity with the directions of the Wakf, the purposes of the Wakf and any usage or custom of the Wakf sanctioned by the school of Muslim law to which the Wakf belongs. Explanation. – For the removal of doubts, it is hereby declared that in this sub-section, “Wakf” includes a Wakf in relation to which any scheme has been made by any Court of law, whether before or after the commencement of this Act. Explanation. – For the removal of doubts, it is hereby declared that in this sub-section, “Wakf” includes a Wakf in relation to which any scheme has been made by any Court of law, whether before or after the commencement of this Act. (emphasis mine) (2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be – (a) to maintain a record containing information relating to the origin, income, object and beneficiaries of every Wakf; (b) to ensure that the income and other property of Wakfs are applied to the objects and for the purposes for which such Wakfs were intended or created; (c) to give directions for the administration of Wakfs; (d) to settle schemes of management for a Wakf; Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard; (e) to direct – (i) the utilization of the surplus income of a Wakf consistent with the objects of Wakf; (ii) in what manner the income of a Wakf, the objects of which are not evident from any written instrument, shall be utilized; (iii) in any case where any object of Wakf has ceased to exist or has become incapable of achievement, that so much of the income or the Wakf as was previously applied to that object shall be applied to any other object, which shall be similar, or nearly similar or to the original object or for the benefit of the poor or for the purpose of promotion of knowledge and learning in the Muslim community: Provided that no direction shall be given under this clause without giving the parties affected an opportunity of being heard. Explanation – For the purposes of this clause, the powers of the Board shall be exercised– (i) in the case of a Sunni Wakf, by the Sunni members of the Board only; and (ii) in the case of a Shia Wakf, by the Shia members of the Board only; Provided that where having regard to the number of the Sunni or Shia members in the Board and other circumstances, it appears to the Board that the power should not be exercised by such members only, it may co-opt such other Muslims being Sunnis or Shias, as the case may be, as it things fit, to be temporary members of the Board for exercising its powers under this clause; (f) to scrutinize and approve the budgets submitted by mutawallis and to arrange for the auditing of account of Wakfs; (g) to appoint and remove mutawallis in accordance with the provisions of this Act; (h) to take measures for the recovery of lost properties of any Wakf; (i) to institute and defend suits and proceedings relating to Wakfs; (j) to sanction any transfer of immovable property of a Wakf by way of sale, gift, mortgage, exchange or lease, in accordance with the provisions of this Act: Provided that no such sanction shall be given unless at least two-thirds of the members of the Board vote in favour of such transaction; (k) to administer the Wakf Fund; (l) to call for such returns statistics, accounts and other information from the mutawallis with respect to the Wakf property as the Board may, from time to time, require; (m) to inspect, or cause inspection of, Wakf properties, accounts records or deeds and documents relating thereto; (n) to investigate and determine the nature and extent of Wakf and Wakf property and to cause, whenever necessary, a survey of such Wakf property; (o) generally do all such acts as may be necessary for the control, maintenance and administration of Wakfs. (3) Where the Board has settled any scheme of management under clause (d) or given any direction under clause (e) of sub-section (2), any person interested in the Wakf or affected by such settlement or direction may institute a suit in a Tribunal for setting aside such settlement or directions and the decision of the Tribunal thereon shall be final. (3) Where the Board has settled any scheme of management under clause (d) or given any direction under clause (e) of sub-section (2), any person interested in the Wakf or affected by such settlement or direction may institute a suit in a Tribunal for setting aside such settlement or directions and the decision of the Tribunal thereon shall be final. (4) Where the Board is satisfied that any Wakf land, which is a Wakf property, offers a feasible potential for development as a shopping centre, market, housing flats and the like, it may serve upon the mutawalli of the concerned Wakf a notice requiring him within such time, but not less than sixty days, as may be specified in the notice, to convey its decision whether he is willing to execute the development works specified in the notice. (5) On consideration of the reply, if any, received to the notice issued under sub-section (4), the Board, if it is satisfied that the mutawalli is not willing or is not capable of executing the works required to be executed in terms of the notice, it may, with the prior approval of the Government, take over the property, clear it of any building or structure thereon, which, in the opinion of the Board is necessary for execution of the works and execute such works from Wakf funds or from the finances which may be raised on the security of the properties of the Wakf concerned, and control and manage the properties till such time as all expenses incurred by the Board under this section, together with interest thereon, the expenditure on maintenance of such works and other legitimate changes incurred on the property are recovered from the income derived from the property: Provided that the Board shall compensate annually the mutawalli of the concerned Wakf to the extent of the average annual net income derived from the property during the three years immediately preceding the taking over of the property by the Board. (6) After all the expenses as enumerated in sub-section (5) have been recouped from the income of the developed properties, the developed properties shall be handed over to mutawalli of the concerned Wakf.” 9. (6) After all the expenses as enumerated in sub-section (5) have been recouped from the income of the developed properties, the developed properties shall be handed over to mutawalli of the concerned Wakf.” 9. A reading of section 32 would show that even the legislature in its wisdom did not lose sight of the fact that the original wish / desire for which the Wakf was created was not to be lost sight of, for after all it is the Wakfnama which has created the Wakf property. The object has to be respected in letter and spirit. It is another thing that over a period of time, the Wakf Board has somehow declared itself to be a kind of defacto owner of these properties as if it is vested in them. 10. With due respect to the Wakf Board, they have very limited role or power under the Act. In the name of administration and superintendence, they cannot usurp or dilute the object of the Wakfnama or the wish of the creator of the Wakf. 11. According to the parties, there have not been too many conflicts and clashes of interests, whenever constitution of the Committee has been done in the past, atleast till the year 2000. The real problem has started when the Wakf Board has started granting patronage to people for other considerations rather than finding persons of unimpeachable character and reputation to adorn the post as a member of the Managing Committee. 12. Creation of the Managing Committee at the level of the Board, is a power which is being exercised by the Board, beyond its competence and due sanction. The Board cannot be unmindful of the Wakfnama created by Bibi Sogra nor can the Board overlook or overreach the judgment and the decree passed in Title Suit No. 12 of 1919. If any list of Managing Committee is notified or is being thrust down on the Sogra Wakf Estate, then it is a case of over reach by the Wakf Board and no Court is going to uphold such a decision of the Wakf Board. 13. If any list of Managing Committee is notified or is being thrust down on the Sogra Wakf Estate, then it is a case of over reach by the Wakf Board and no Court is going to uphold such a decision of the Wakf Board. 13. In some Writ Applications challenge is to the order passed by the Wakf Tribunal, which relates to constitution of a Committee earlier by the Wakf Board in the year 2011 as well as a subsequent constitution in the year 2012, where the number of members of Executive Committee has been expanded to 31. 14. Some of the Writ Applications also questions the removal of Naibs as well as the manner in which it has been done. 15. Counsel for the Wakf Board was directed to assist the Court and file their respective affidavit as to how and why such as cavalier kind of approach is being adopted with regard to a Wakf, which at one point of time was considered one of the biggest and most valuable in the state. What has happened over a period of time is not for this Court to adjudicate upon. The Court has been given an impression that most of the properties has been lost and only some property in and around Biharsharif are the one, which are left to be managed. 16. The Writ Applications are disposed off with a clear direction upon the Wakf Board that no doubt they have power of superintendence and for good governance of Wakf estate, but that power in the present case of Sogra Wakf estate has to be exercised in terms of the scheme of things which had been enumerated in Title Suit No. 12 of 1919 and no deviation from the same is permissible by the Wakf Board in the garb of power under section 32 of the Act. In the original scheme of things there has to be a Mutawalli, a Naib Awal etc. which is evident from the scheme formulated by the learned District Judge, extract of which has been reproduced in some of these Writ Applications. The Board will, therefore, have an obligation to constitute a Managing Committee in terms of the scheme of the Title Suit and no innovation or any kind by deviation is permissible under law. 17. which is evident from the scheme formulated by the learned District Judge, extract of which has been reproduced in some of these Writ Applications. The Board will, therefore, have an obligation to constitute a Managing Committee in terms of the scheme of the Title Suit and no innovation or any kind by deviation is permissible under law. 17. The constitution of the Managing Committee must be carried out in terms of the judgment of the title suit within a period of eight weeks from the date of production / communication of this Order. Till that Committee is constituted and made operational, the interim direction, which was issued by this Court earlier in light of the ongoing war between the various parties, dated 02.01.2012 shall continue. 18. All the Writ Applications stands disposed off with a clear direction upon the Wakf Board to carry out the Order within the time-frame so fixed. 19. Before parting it is ordained that any order passed by the Board contrary to what has been recorded above or any constitution of Committee would be treated to be a nullity and would be deemed to have been quashed.