1. This petition is directed against the order of the Administrator of the Karnataka Board of Wakfs, Bangalore, dated 24-1-1976 in L. C. C. No. 490 of 1961 exercising functions of the 'Wakfs Board under S. 27 of the Wakf Act of 1954 (hereinafter referred to as the Act) whereby he declared the property that was the subject-matter of the impugned order as the property of the Wakf Board and ordered for the taking of steps for the recovery of the possession thereof.
2. The facts leading to the filing of this petition and a little history of the property deserve to be noticed in the first instance before dealing with the preliminary objection raised on behalf of the respondents to the maintainability of the Writ Petition: It is alleged that one Saukar Mohiddin Sab was the owner of the property in question which is a landed property measuring about 376.09 ,acres. He died in the year 1902 and left a Will in which one T. Abdul Khader was named as the legatee and the settler. The said Abdul Khader, on 2-6-1910, mortgaged the entire aforesaid property. Later on, on 18-9-1914, the mortgage instituted the suit on mortgage (0. S. No. 2/1914-15) in the District Court, Shimoga, which was decreed on 11-8-1915 for Rs. 17,350/-. The said Abdul Khader, legatee, after being permitted to raise the decretal money by a private sale, sold the entire aforesaid property to one Hussain Sab on 6-10-1924. After some years the said Hussain Sab entered into an agreement of sale on 20-12-1940 with one Patre Shivappaiah (father of the petitioner) and also delivered the possession of the entire Property to him on the very date as was also envisaged in the said agreement of sale. The aforesaid agreement of sale was given effect to by the legal heirs of the said Hussain Sab when they executed a sale deed on 14-4-1942 in favour of the said Patre Shivappaiah. The said Patre Shivappaiah, by a sale deed dated 15-12-1943 effected sale of part of the aforesaid property which measured about 184.18 acres located in Old Sv. Nos. 10 11 and 12 (New Sys. Nos. 10/2, 11/2 and 12). In the meantime Patre Shivappaiah died, and on 14-7-1958 his two sons partitioned the property of Patre Shivappaiah between themselves and as a result of the said partition the remaining portion of the property which Patre Shivappaiah had purchased from the heirs of Hussain Sab fell to the share of Patre S. Rudra Murthy (the petitioner) who, in turn, on 20-9-1971, divided the same between himself and his minor son Dayananda,
It is further alleged that when Patre Shivappaiah bought the said property from the heirs of Hussain Sab it was a mere jungle land, and that after effecting the purchase he turned almost 186 acres of 191 acres that he had kept himself after selling 184.18 acres to Ameer Ali Khan, into coffee plantation thereby enhancing the value of the land out of all proportions. Respondents 3 and 4, claim- themselves to be Mythically and Secretary of the Management of Sawkar Mohiddin Mosque, Tarikere, claimed that Mohiddin, by his aforesaid Will, had dedicated 150 acres of his property that formed subject-matter of the Will to the said Mosque. That since in the Notification under S. 5 of the Act published in the Karnataka Gazette on 22nd October, 1964, the said property did not find a place, and their claim to include the said property in the list prepared under S. 5 of the Act having been dismissed by the Wakf Board by its decision dated 26-7-1966, they approached this Court through Writ Petition No. 2397 of 1966 challenging therein the aforesaid order of the Wakf Board wherein the Board rejected their request to include the said property in the list prepared under S. 5 of the Act. However, during the pendency of the said writ petition the Wakf Board by its order dated 13-4-1967 reopened the matter. This led the present petitioner to challenge the latter decision dated 13-4-1967 of the Wakf Board in this Court through Writ Petition No. 1212 of 1968. This Court disposed of W. P. No. 2397 of 1966 with the following observation.
'In this view of the matter, it is not necessary to issue any writ or order in W. P. No. 2397/66, since the prayer of the petitioners in that writ Petition in effect has already been conceded by the Board of Wakfs.'
The other Writ Petition No. 1212 of 1968 was disposed of with the following observations.
'It is to be observed that the petition is premature ... ... ... ... ... ... ... ... It is unnecessary to express any opinion on the contention raised by Mr. Naidu. If and when the Board issues a notice to him under S. 27 or any other provision Of the Act, asking him to show cause against the action they propose to take hereafter, it is open to the petitioner in W. P. No. 1212/68 to appear before the Board Of Wakfs and to raise an objection regarding the jurisdiction of the Board or to resort to such remedy as may be open to him in law.', It was, thereafter that the Administrator exercising functions of Wakf Board rendered on 24-1-1976, the impugned order.
3. Now the stage is set to take note of the preliminary objection advanced on behalf of the respondents which is based on the provisions of Clause (3) of Art. 226 and which is in the following terms
'No -petition for the redress of any injury referred to in sub-clause (b) or sub-clause (c) of Clause (1) shall be entertained, if any other remedy for such redress Is provided for by or under any other law for the time being in force.'
It has been urged on behalf of the respondents that since sub-s. (2) of S. 27 itself envisages an alternative remedy of civil suit and the petition being only competent under Cls. (b) and (c) of Art. 226, provisions of Clause (3) of Art. 226 is a complete bar to the maintainability of the writ petition unless forced alternative remedy is exhausted by the petitioner.
4. The learned Counsel for the petitioners sought to counter the preliminary objection raised on behalf of the respondents by stating that the petition in question falls under the provisions of Clause (a) of Art. 226 as the petitioner seeks to enforce his fundamental right to the property which has been threatened by the impugned order.
4-A. The learned Counsel for the respondents, however, maintained that till such time there is a dispute regarding the title to the property in question, it cannot be said that the property was petitioner's property and the impugned order sought to deprive him of the said Property. At this stage, the learned Counsel for the petitioner submitted that even a right to possession of a corporeal property amounts to property itself, and the order in question sought to deprive him of that right, In this regard he referred to the objection statement filed on behalf of respondent 1 stating therein that the possession of the property in question had been taken two hours before the stay order from this Court was served On the Chairman of the District Wakf Committee on 12-12-1976.
5. The learned Counsel for the respondents has today filed two memos on behalf of respondent 1 and respondents 3 and 4. Memo filed on behalf of respondent 1 reads as follows:
'The first respondent begs to submit that it is a quasi judicial authority and the order impugned in the above writ petition was passed by it. In the said order it has directed that action should be taken to take possession of the Wakf properties. Since it was reported to it that action was taken under the Wakf Act, and possession was taken by the District Wakf Committee, the first respondent filed an application stating that possession was taken. It has now come to know that there is no provision at all at present in the Wakf Act to take possession of the properties declared to be Wakf under S. 27. Hence, it is submitted that possession of the Wakf properties declared in the impugned order will be taken by resorting to a suit or other legal proceedings which may be enacted hereafter.' Memo filed on behalf of respondents 3 and 4 reads as follows:
'These respondents submit that the order impugned in the writ petition is only an order declaring that the properties involved constituted a Wakf. There is only a direction by the Administrator that the concerned Persons. should take steps to take possession of the properties. These respondents submit that the petitioner is still in -possession of the properties and the respondents will take steps to get possession of the Properties only in accordance with law.
These respondents further submit that possession can be taken from the petitioner under S. 36-B read with S. 15 (2) (h) of the Wakf Act, 1954, and if the said sections are not applicable to the facts of the present case, a civil suit will be filed for taking possession and for other relief's to which the respondents are entitled.'
6. The stand taken by the respondents in the aforesaid two memos is that in fact the possession had not been taken from the petitioner and that he still continues to be in possession of the property in question and further that the possession shall be recovered in pursuance of the impugned decision legally under the provisions of S. 15 (2) (h) and S. 36-B of the Act, and if these provisions are not applicable then through Civil Court. The aforesaid two provisions are in the follow- terms:
'15. Functions of the Board.-(l) 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 for 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 Muslim law.
(2) Without prejudice to the generality of the foregoing power. the functions of the Board shall be
(h) to take measures for the recovery of lost properties of any wakf.'
Section 36-B reads as under:
'36-B. Recovery of Wakf property transferred in contravention of S. 36-A
(1) If the Board is satisfied, after making an enquiry in such manner as may be prescribed, that any immoveable property of a wakf entered as such in the register of wakfs maintained under S. 26, has been transferred without the previous sanction of the Board in contravention of the provisions of S. 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-s. (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 sub-s. (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 of 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 a 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-s. (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 situated 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 subs. (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, 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.'
The provision of S. 15 (2) (h) is merely an enabling provision or in fact a provision which casts a duty on the Wakf Board to take measures for the recovery of lost property of any wakf, needless to say in accordance with law. This provision is not a substantive provision providing any -procedure for recovery of the possession of any Wakf property.
7. As for the provision of S. 36-B, it may be observed that when read in the light of S. 36-A it would show that it provides a procedure for the recovery of the possession of any immoveable property of a Wakf alienated by way of sale, gift, mortgage, or exchange or lease for a period exceeding three years in the case of agricultural lands or, for a period of more than one year in the case of nonagricultural land or building without the previous sanction of the Board. Section 36-A which renders such alienations or leases as invalid is in the following terms:
'36-A. TRANSFER OF IMMOVEABLE PROPERTY OF WAKFS-Notwithstanding anything contained in the wakf deed, no transfer of any immoveable 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.'
A combined reading of Ss. 36-A and 36-B would leave no manner of doubt that the provisions of S. 36-B cannot be resorted to for taking possession of the property which is the subject-matter of dispute in the present writ petition, for the properties in question had been alienated, if it ever was a wakf property, long before the Board came into existence, as in the nature of things there was no question of boating prior sanction of the Board for the alienation of such property and thus there can be no question of such alienation be- invalid in terms of S. 36-A of the Act.
8. In view of the above it is clear that in pursuance of the impugned order, the Board could recover possession of the suit property only through the agency of the civil court and thus there is no immediate threat to the possession of the petitioner over the property in question. That being the position, then no question of enforcement of any fundamental right arises in this petition. and accordingly the petition is maintainable only under Cls. (b) and (c) of Art. 226. In that case Clause (3) of Art 226 is a complete bar to the main- of this petition in view of there being alternative remedy of civil suit being available to the -petitioner in terms of sub-s. (2) of S. 27 of the Act. This is so, despite the contention of the learned Counsel for the petitioner that the impugned order was passed by the Board without any jurisdiction under S. 27 of the Act as the dispute is over a Property between the wakf and a stranger to the wakf and his reliance in this regard on the decision of this Court in Corporation of the City of Bangalore v. Mysore State Board of Wakfs, (AIR 1973 Mvs, 189) and Mysore State Board of Wakfs v. Dr. M. Channabasaviah, (AIR 1973 Adys 312) for, in our view so long the court or an authority is competent to pass an order it matters little whether the order is challenged as being merely illegal or without jurisdiction for the purpose of seeing as to whether the provisions of Cl, (3) of Art. 226 are attracted or not, If the petitioner has an alternative remedy available to him to get redress against the order and if the petitioner does not seek to enforce any of the fundamental rights, then the provisions of Clause (3) of Art. 2261 would completely bar such a petition whatever may be the nature of the order.
9. Therefore , without expressing any opinion on the merits of the and on the nature of the order, we hold that, in view of the provisions of Clause (3) of Article 226 and in the light of the clarification made in the aforesaid two memos filed by the respondents, and our observation that possession can be taken only through a civil court, this writ petition is not maintainable and is dismissed as such with no, order as to costs.
10. Petition dismissed.