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Wakf Board, Hyderabad and anr. Vs. Parvathi Bai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 421 of 1969
Judge
Reported inAIR1972AP333
ActsWakf Act, 1954 - Sections 44, 45 and 56
AppellantWakf Board, Hyderabad and anr.
RespondentParvathi Bai and anr.
Appellant AdvocateM. Imtiaz, Adv.
Respondent AdvocateR. Venkata Subbarao, Adv.
Excerpt:
.....proposed to sell her shop building - southern wall of mosque was shown as northern wall of shop - wakf board contended that she cannot sell wall belonging to mosque - administrator of wakf board issued injunction restraining respondent from selling 'muglis' showing mosque wall as part of her property - court observed that board had no power to decide disputed question of title - held, order of wakf board liable to be quashed. - - the avowed or declared purpose of the act is to prove for the better administration and supervision of wakfs. we are, therefore, satisfied that even when the board commences a suo motu inquiry under section 45, the inquiry must necessarily be confined to matters relating to the administration of the wakf and cannot travel beyond that scope. his orders both..........auctioning the mulgies adjacent to the mosque or doing any act which would cause damage to the wakf property till the dispute about the ownership of the southern wall of the mosque is finally decided by that court or till the southern wall is removed from their plan and is shown as belonging to the mosque of hazrath zahid ali shah.6. by an order dated 11-5-1968, the said interim order was made absolute. the administrator of wakfs confirmed the interim injunction order issued against shrimati parvathi bai and restrained her.'from auctioning or otherwise selling the mulgies showing the mosque wall as part of her property and also from doing any act causing any damage to the southern wall of the mosque.'it is this order that was sought to be quashed under article 226 of the constitution.....
Judgment:

Ekbote, J.

1. This is an appeal from the judgment, of our learned brother, Chinnappa Reddy, J., given in W. P. 3551 of 1968, on 4-2-1969 whereby the learned judge allowed the application and quashed the impugned order made by the Administrator of Wakfs, Hyderabad, dated 11-5-1968.

2. The material facts are that the respondent, Shrimathi Parvathi Bai proposed to sell her shop buildings in the Patel Market situated to the south of the Mosque of Zahid Ali Shah on 20-11-1967 by advertising the same in the press. I the plans attached to the advertisement, the Southern wall of the mosque was shown as the northern wall of her shop buildings.

3. One Sardar Ali Khan informed the Regional Officer of the Wakfs Board who inspected the area and reported that the southern Wall of the mosque was the property of the mosque and not that of Smt. Parvathi Bai; she cannot, therefore, sell the wall belonging to the mosque.

4. The property, however, was not sold. Subsequently, Smt. Parvathi Bai applied for permission to construct a third story building on the shops belonging to her. In the plan attached to that application, the southern wall of the mosque was shown as the all belonging to her.

5. On the above said material, the Administrator of Wakfs seems to have initiated proceedings under Section 45 of the Wakf Act 1954, hereinafter called the Act. He issued an interim injunction on 20-11-1967 restraining Shrimati Parvathi Bai from auctioning the mulgies adjacent to the mosque or doing any act which would cause damage to the Wakf property till the dispute about the ownership of the southern wall of the mosque is finally decided by that Court or till the southern wall is removed from their plan and is shown as belonging to the mosque of Hazrath Zahid Ali Shah.

6. By an order dated 11-5-1968, the said interim order was made absolute. The Administrator of Wakfs confirmed the interim injunction order issued against Shrimati Parvathi Bai and restrained her.

'from auctioning or otherwise selling the mulgies showing the mosque wall as part of her property and also from doing any act causing any damage to the southern wall of the mosque.'

It is this order that was sought to be quashed under Article 226 of the Constitution of India.

7. The principal contention of the petitioner Shrimati Parvathi Bai was that the Administrator of Wakfs had no jurisdiction to decide the disputed question of title and, therefore, the impugned order is without jurisdiction and ought to be quashed.

8. The learned Judge expressed the view that the Administrator of Wakfs had no jurisdiction to issue the order of injunction that he did; he consequently quashed the said order. It is this view of the learned Judge that is now questioned in this Writ appeal.

9. The principal contention of Shri Imtiaz, the learned Counsel for the Wakf Board was that the Administrator of Wakfs has full powers to decide questions of title relating to Wakf property under Section 45 of the Act, and therefore, the learned Judge has erred in holding that the Administrator had no such power.

10. In order to appreciate the implications of this contention, it is necessary to bear in mind the aims and objects of the Act and its scheme. The avowed or declared purpose of the Act is to prove for the better administration and supervision of Wakfs. The Act can conveniently be divided into three parts. The first part relates to the survey of the Wakf property and is dealt with in Chapter II of the Act. Sections 4 to 8 (both inclusive) deal with the question of survey of wakfs. Section 6 enjoins that if any question arises whether a particular property is Wakf property or not, the Board or the mutawalli of the Wakf or any person interested therein may institute a suit in a Civil Court for the decision of the question and such decision of the Civil Court shall be final. The period fixed for such a suit is one year. This section appears immediately after Section 5 which relates to publication of a list of wakfs. The list is published after the survey is carried on and the procedure laid down relating thereto is followed. After the list is published, it is only then that if any person is aggrieved because of the entry in the list, he is entitled to file a suit within one year to get the entry set aside or modified.

11. The next stage is that of registration of Wakfs. That subject is dealt with in Chapter IV of the Act. Sections 25 to 30 (both inclusive) deal with that topic. Section 27 empowers the Board to collect information regarding any matter it has reason to believe to be Wakf ;property. The section also empowers the Board to decide nay question arising as to whether a particular property is a Wakf property or not. Sub-section (2) of that section states that such a decision of the Board shall be final unless of course revoked or modified by a Civil Court of competent jurisdiction.

12. The third stage then arrives. After completing the survey and finalising the registration of wakfs, the Board which is an administrative body then is empowered to supervise and administer the Wakf property. chapter V deals with Muthawallis and Wakf Accounts. It is in this chapter that Section 45 appears. Section 45 in so far as it is material reads as under:

'(1) The Board may, either on an application received under Section 44 or on its own motion.

(a) hold an inquiry in such manner as may be prescribed; or

(b) authorises any person in this behalf to hold an inquiry into any matter relating to a Wakf and take such action it thinks fit.' Sub-sec. (2) of Section 45 directs: 'For the purpose of any inquiry under this Act, the Board or any person authorised by it in this behalf shall have the same powers as are vested in a Civil Courts under the Code of Civil Procedure, 1908 for enforcing the attendance of witnesses and production of documents.'

It is pertinent to note that in this section no provision is made for declaring that the order passed by Board under that section shall b final unless it is revoked or cancelled by a Civil Court in a suit. In fact, Section 45 does not speak of any order at all. It relates to inquiry by the Board. It is, of course, assumed that after the inquiry is closed, some order will be made. But it is plain that the section does not speak of the finality of any such order.

13. From this broad survey of the Act, it becomes clear that both at the time of survey and at the time of registering of wakfs in the relevant register, the Board or the surveying authority is empowered to decide incidentally the question as to whether a particular property is a Wakf property. Such a decision is, however, not final. It is open to be challenged in a Civil Court and would be subject to the result of the decision given in such an action by the Civil Court. Once the survey is completed and the register of wakfs is finalised, then what remains is the supervision or the administration of wakfs and Wakf property and it is that part of the Act with which we are concerned in this case. We do not, therefore, propose to express any opinion with regard to Sec. 6 or Sec. 27 although that ground also was traversed before us. Reliance was placed in this connection on Radhakishan v. State. which is a decision under Sec. 27 of the Act but it does not refer to Sec. 45 and, therefore, we will not comment upon this decision. We will confine our consideration of the question whether the proceedings during the pendency of which the Administrator of Wakfs had issued the interim injunction and concluded the proceedings by confirming it, was a proceeding which the Administrator was competent to conduct.

14. A reading of Section 45 does create at first flush an impression that that section confers powers of wide amplitude on the Board to make inquiries into any matter relating to a Wakf and also take such action as the Board thinks fit. But on a closer examination of that section, it would be plain that that section is not that wide as it might look superficially. The first part of that section refers to Section 44 of the Act. When it says that 'the Board may, either on an application received under Section 44 or on its own motion.' it only means that whatever may be the cope or extent of an inquiry under Section 44, it can be carried on even without an application and on its own motion by the Board. In other words, the inquiry into the matters mentioned in Section 44 can either be carried on, the Board can suo motu conduct the inquiry. Section 44 in an unambiguous language confines the enquiry only to the administration of the Wakf. The material words of that section are 'to institute an inquiry only to the administration of the Wakf.' What must, therefore necessarily follow is, when it is said that the Board is empowered to make an inquiry on an application under the said section, it must mean inquiry relating to the administration of the Wakf. The Board suo motu also can conduct an inquiry but it must relate to the administration of the Wakf and nothing more. It is true that in Section 44 the words 'relating to the administration of the Wakf.' appear whereas in Section 45 the words 'any matter relating to a Wakf' appear. While the language of Section 44 in that behalf is restricted, the language of Section 45 looks some what wider, but one need not be misled on account of that because Section 45 is structurally and contextual connected with Section 44 and, therefore the scope of an inquiry under Section 45 made suo motu by the Board cannot be allowed to be spread over a larger area than what Section 44 delimits. We are, therefore, satisfied that even when the Board commences a suo motu inquiry under Section 45, the inquiry must necessarily be confined to matters relating to the administration of the Wakf and cannot travel beyond that scope. In other words, the Board has no power to decide anything apart from matters relating to the administration of the wakfs.

15. It is, however, relevant to point out in this connection , that the order itself makes it manifestly clear that one Sardar All khan interested in the Wakf property in question has reported the matter to the Administrator of wakfs and it is only upon his application that the administrator took cognizance of the case and made an inquiry. It was a case, therefore, which squarely fell under Section 44 and not under Section 45 of the Act. It was not a suo motu inquiry initiated by the Administrator of wakfs himself. It was commenced only on the report of Sardar Ali Khan and that report was nothing but an application to take action because Shrimathi Parvathi Bai was attempting to sell the wall which belonged to the mosque. Even from that point of view, under Section 44, the Administrator could not have travelled beyond matters relating to the administration of the Wakf property.

16. The question then naturally arises as to whether a decision on the question whether the wall belongs to the mosque or is owned by Shrimati Parvati Bai, is related to the administration of the Wakf. In fairness it must be said that it was not argued before us that such a question is really a question relating to the administration of the Wakf property. What must necessarily follow is that whether the proceedings were conducted suo motu under Section 45 or on an application given by Sardar Ali Khan under Section 44, in either case, the Administrator who enjoys the powers of a Board, has no power or jurisdiction to decide the disputed question of title. His orders both interim as well as final, therefore, were made without any jurisdiction and are liable to be quashed. The learned Judge, in our opinion, in conclusion was right in issuing a writ of Certiorari to quash the said order, although we reach that conclusion by altogether a different route.

17. We are not at all impressed by the argument of Shri Imthiaz, the learned Counsel for the Board that the question before the Administrator was whether there are two walls or the mosque. Even assuming that it is so, it can hardly be doubted that in the ultimate analysis, the administrator arrogated to himself the power to decide not only the question whether there was one wall or whether there were two walls but also to decide as to who the owner of that wall is. Such dispute does not lie within the scope of Section 44 read with Section 45 of the Act.

18. We are also not persuaded to agree with the contention of Shri Imthiaz that under Section 56 relates only to the notice of suits by parties against the Board and it does not relate to any right of suit of any litigant.

19. In the view we have taken, we consider it unnecessary to determine as to whether the impugned order was discriminatory in character inviting the wrath of Article 14 of the Constitution.

20. For the reasons given above, the writ appeal fails and is dismissed. There will be no order as to costs. Advocate's fee Rs. 100/-.

21. Appeal dismissed.


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