1. The Petitioner in the above Writ Petition is a person in possession of an extent of 2 acres and 31 guntas of land in Survey No. 226 of Bommuragrahara Village, Sri rangapatna Taluk. He has filed the above petition for quashing the Order dated 24-11-1969 in No. DVS II PR 31/ 69-70 on the file of the Deputy Commissioner, Mandya District (Exhibit 'C') and the Order dated 10-2-1970 in Misc. (Wakf Act) Appeal No. 272 of 1969 on the file of the District Judge. Mandya (Exhibit 'E'). He has also sought for 'the issue of a direction to the Mysore State Board of Wakfs, respondent 3 herein, to delete the land referred to above from its Register of Wakfs.
2. The facts leading to the above Writ Petition are as follows: On an application made under Section 25 of the Wakf Act, 1954 (Central Act 29 of 1954) (hereinafter referred to as the Act) by one Ibrahim Khan bin Yusuf Khan, Muthavalli of Peer Alia Shah Wali Makan, the Mysore State Board of Wakfs (hereinafter referred to as the Board) issued a certificate of registration under Section 27 of the Act bearing No- MWB Regn. 90/69-70 dated 16/22-10-1969 registering an extent of 2 acres and 31 guntas of land in Survey No, 226 of the Bommuragrahara which was in the possession of the petitioner, as a Wakf Property. Thereafter the said certificate of registration was forwarded to the Deputy Commissioner, Mandva, within whose jurisdiction the land in question was situated for taking action under Section 36-B of the Act On receipt of the said certificate of registration, the Deputy Commissioner passed an order bearing No. DVS II PR 31/69-70 dated 24-11-1969 calling upon the petitioner to deliver the above property to the Board within a period of thirty days from the date of service of the said order on him, failing which action would be taken against him under Sub-section (5) of Section 36-B of the Act. Aggrieved by the said order of the Deputy Commissioner, the petitioner preferred an appeal in Misc. '(Wakf Act) Appeal No. 272 of 1969 before the District Judge, Mandya, under Sub-section (4) of Section 36-B of the Act. That appeal was dismissed by the District Judge by his order dated 10-2-1970. Aggrieved by the orders of the learned District Judge, the Deputy Commissioner and the Board, referred to above, the petitioner has filed this writ petition.
3. Shri Venkatachalaiah, the learned counsel for the petitioner, contended that the impugned orders were all without jurisdiction and were liable to be set aside. It was urged on behalf of the petitioner that even before the Board issued the certificate of registration under Section 27 of the Act, the petitioner has intimated the Board that he was in possession of the property in his own right, and, therefore, the same could not be registered as Wakf Property. It was also stated that the petitioner had to the knowledge of the Board, denied the fact that the property in question was Wakf property. Shri [Venkatachalaiah further contended that without following the procedure prescribed by law, the Board straightway proceeded to issue a certificate of registration in respect of the property in question and called upon the Deputy Commissioner to take action under Section 36-B of the Act. It was further urged that Section 36-B of the Act itself was inapplicable to the facts of the case since no action in violation of Section 36-A of the Act had been taken by anybody. Under those circumstances, the action of the Deputy Commissioner under Section 36-B of the Act was without jurisdiction. If that be so, the order passed by the District Judge In appeal also should fall to the ground.
4. It may be necessary at this stage to refer to the relevant provisions of the Act:
'25. Registration-- (1) Every Wakf whether created before or after the commencement of this Act shall be registered at the office of the Board.
(2) Application for registration shall be made by the muthawalli;
Provided that such applications may be made by the wakf or his descendants or a beneficiary of the wakf or any Muslim belonging to the sect to which the wakf belongs.
(Sub-sections (3) to (8) are not necessary for the purposes of this case)
'27. Decision if a property is wakf property.-- (1) 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.
(2) 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.
Sections 36-A and 36-B:
'36-A. Transfer of immovable property of wakfs.-- Notwithstanding anything contained in the wakf deed, no transfer of any immovable property of a wakf 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 a period exceeding one year in the case of non-agricultural land or building, shall be valid without the previous sanction of the Board.
'36-B. Recovery of Wakf Property transferred in contravention of Section 36-A.-
(1) If the Board is satisfied, after making an inquiry in such manner as may be prescribed, that any immovable property of a wakf entered as such in the register of wakfs maintained under Section 26, has been transferred without the previous sanction of the Board in contravention of the provisions of Section 36-A, it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it.
(2) On receipt of a requisition under Sub-section (1), the Collector shall pass an order directing 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.
(3) Every order passed under subsection (2) shall be served--(a) by giving or tendering the order or by sending it by post to the person for whom it is intended; or (b) if such person cannot be found, by affixing the order on some conspicuous part of his last known place or abode or business, or by giving or tendering the order to some adult male member or servant of his family or by causing it to be affixed on some conspicuous part of the property to which it relates:--
Provided that where the person on whom the order is to be served is a minor, service upon his guardian or upon any adult male member or servant of his family shall be deemed to be service upon the minor.
(4) Any person aggrieved by the order of the Collector under Sub-section (2) may. within a period of thirty days from the date of the service of the order, prefer an appeal to the district court within whose jurisdiction the property is situate and the decision of the district court on such appeal shall be final.
Explanation: In this Sub-section 'District Court' means, in any area for which there is a city civil court, that court, and. in any other area, the principal civil court of original jurisdiction.
(5) Where an order passed under Subsection (2) has not been complied with and the time for appealing against such order has expired without an appeal having been preferred or the appeal, if any. preferred within that time has been dismissed, the Collector shall obtain possession of the property in respect of which the order has been made, using such force, if any. as may be necessary for the purpose and deliver it to the Board.
(6) In exercising functions under this section, the Collector shall be guided by such rules as may be made in this behalf by the State Government.'
5. In the case on hand, the application under Section 25 of the Act was received sometime prior to 22-10-1969 onwhich date the certificate of registrationwas issued under Section 27 of the Act, and it is not disputed that the Board knew that the petitioner was in possession of the land in question and had as-sorted his own title to it. When oncethe 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 in to 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 Sub-section (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. Even if the property was considered as wakf property, action under Section 36-B could be taken only when the Board was satisfied that there had been contravention of the provisions of Section 36-A, which prohibited the transfer of any immovable property of a wakf by way of sale. gift, mortgage or exchange or lease for the periods specified in that section without the previous sanction of the Board. In this case, we do not have any materialto come to the conclusion that Section 36-A of the Act had been contravened at all. Hence, the action of the Board in sending the requisition to the Deputy Commissioner under Sub-section (1) of Section 36-B of the Act was wholly without jurisdiction. It. therefore, follows that the action of the Deputy Commissioner in passing an order under Sub-section (2) of Section 36-B of the Act calling upon the petitioner to deliver possession of the property to the Board within a specified period was also one without jurisdiction. The learned District Judge who heard the appeal preferred by the petitioner under Sub-section (4) of Section 36-B of the Act. did not examine the question in the light of the provisions referred to above. He proceeded to dispose of the case on the basis that on the issue of a certificate of registration by the Board, the matter was beyond question, and therefore, the actions taken by the Board under subsection (1) of Section 36-B of the Act and by the Deputy Commissioner under Subsection (2) of Section 36-B of the Act. were in order. We are. therefore, of the opinion that the order of the District Judge, which is impugned in this petition is again an erroneous one.
6. In the result (1) the registration of an extent of 2 acres and 31 guntas of land in Survey No. 226 of Bommuragrahara village which is in possession of the petitioner as a wakf property in the Register of Wakfs maintained by the Board; (2) the certificate of registration issued by the Board under Section 27 of the Act; (3) the order of the Deputy Commissioner Mandya, dated 24-11-1969 made under Sub-section (2) of Section 36-B of the Act; and (4) the order dated 10-2-1970 of the District Judge Mandya in Mise. (Wakf Act) Appeal No. 272 of 1969. are all quashed. We, however, make it clear that it is open to the Board to take such action as may be permissible in law against the petitioner in respect of the property in question.
7. In the result. the writ petition is allowed, but without any order as to costs.