1. In these two petitions the prayer is for the issue of a writ of Mandamus under Article 226 of the Constitution restraining the respondent, Secretary of the State Wakf Board, Madras, to forbear (?) from taking any action under the Muslim Wakf Act (Central Act 29 of 1954) in regard to the levy of contribution under the aforesaid Act for the properties mentioned in the schedule to the petitions.
2. The petitioners contend that in Naduhalli village, Dharmapuri Taluk, Salem, District there is a certain extent of land which has been entered in the village accounts as Kairathi personal inam. This property had been enjoyed by the petitioners and their predecessors-in-title for over 100 years as their personal property. The properties are not attached to any mosque or religious or charitable muslim institution, nor was there at any time a dedication in respect of them permanently or otherwise by any person. Nevertheless, the respondent Secretary of the Wakf Board, called upon the petitioners to render accounts on the footing that the properties are wakf properties and had been so registered under the Wakf Act and contributions are liable to be paid in respect of them to the Wakf Board. The petitioner in W. P. No. 833 of 1964 alleged that he was not aware of any enquiry by the Board before they declared the properties to be wakf properties. On the other hand, the petitioner in W. P. No. 1043 pf 1965 stated that he had made certain representations in writing to the respondent Board pointing out that the properties were not wakf properties and that he was not the Mutavalli of any such wakf. Both the petitioners urged that the properties have never been in the nature of wakf and that the respondent Board, acted entirely without jurisdiction in proceeding to demand contribution Under the Wakf Act from the petitioners,
3. In the counter-affidavit filed by the respondent. Secretary of the Wakf Board, it is alleged that there was a detailed enquiry as prescribed in Section 4 of the Wakf Act conducted by the Assistant Commissioner of Wakfs, Salem. During that enquiry, the petitioner in W. P. 1048 of 1965 represented that the land was granted by Nawab Tippu Sultan and that it was to be used for feeding fakirs at the time of Meelade-nabi and Giarween Urs, that he and the other beneficiaries were doing so every year spending about Rs. 400 for the purpose, that they had divided the lands into 17 parts and were enjoying the same and that the annual income ordinarily from the lands would be Rs. 5000. On the basis of the Assistant Commissioner's report the lands were included in the list of wakfs and the list was published in the Fort St. George Gazette on 29-4-1959. It is alleged in the counter-affidavit that if the petitioners were aggrieved by such a declaration in the notification, they should have agitated the matter by filing a suit within the time prescribed in Section 6 of the Central Wakf Act, and having failed to do so, it is not open to the them in these writ proceedings to contend that the properties are not wakf properties and that they were not liabla to meet the demand for contribution.
4. Learned Counsel Sri T. R. Srinivasan appearing for the petitioners urged as a question of fact that the available data in the case will serve to establish that the properties are not wakf properties at alt as defined in Section 3 (1) of the Act. According to the definition in Section 3 (1) wakf means the permanent dedication by a person professing Islam of any moveable or immoveable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes a wakf by user. Learned Counsel refers to the entries in the Inam settlement register for the lands in these cases wherein it is recorded that no one was able to give the particulars of the name of the grantor or the purposes for which the inam was granted. But, however, the Inam Commissioners were prepared to confer the inam of Kairathi The word 'Kairathi' according to the Wilson's Glossary, can have any one of the following meanings: 'alms, charity, lands given as charitable endowments the term is more especially applicable to grants or alms given by or to Mohammadans. Kairathi Zamin means the lands given in charity',
5. It is clear that the word Kairathi used by the Inam Commissioner can also include lands given as charitable endowments to or by Mohammadans. The concerned file of the Wakf Board dealing with the enquiry under Section 4 of the Wakf Act, was produced before me by the learned advocate for the Wakf Board, at the time of the hearing of the writ petitions. The file shows that in 1955 both the village karnam as well as Syed Sahib Peeran the petitioner in W. P. 1048 of 1965 gave statements which clearly show (1) that according to the tradition, the lands were granted by Tippu Sultan to a number of Mohammedan families; but no documents were available with them (2) that the lands were enjoyed without any alienation by the aforesaid Mohamedan families for several years (3) that one of the conditions under which they held the lands was the feeding of Fakirs or Muslim Bairagis during certain Muslim festivals (4) that the amount they spent on this feeding was about Rs, 400 as against the estimated income of about Rs. 5000. These particulars elicited at the time of the enquiry will certainly be consistent with the properties being wakf properties. No doubt the persons in enjoyment were not able to produce the deed of dedication but they knew of a clear tradition that the grantor was Tippu Sultan, that the properties never left the hands of the grantees and their descendants at any time, and that one of the objects which they had consistently followed was the feeding of a certain number of Muslim Bairagis during the time of certain muslim festivals. That they were prepared to spend only a small proportion of the total income will not have any significance in the absence of the express terms of the grant, because by process of negligence they might have spent less on feeding Bairagis with the passage of time than what they were expected to spend originally. So, no argument can be pressed, to infer the nature of the grant from the fact that at the present moment the enjoyers are spending only a small proportion out of the total income for the performance of a charity for which the properties might have been originally granted. Therefore, one cannot hold on prima facie grounds in the face of the data made available at the enquiry by the Wakf Board, that the properties on these cases, are so totally unconnected with an endorsement in the nature of a wakf, that the wakf Board acted entirely without jurisdiction in the proceeding to treat them as wakf properties, and including them in the list of wakfs published in the Gazette under the provisions of the Act.
6. The further argument stressed by the learned Counsel for the petitioner is this. He refers to Section 6 (1) of the Act, which gives a right to a party, where a dispute arises, whether a particular property is a wakf property or not, to file a suit in a civil Court of competent jurisdiction. The section also states that decision of the civil court in such a matter shall be final. The proviso to this section gives one year time limit for filing such a suit from the date of the publication of the list of wakfs under Section 5 (2). Section 6 (4) says that the list of wakfs published under Subsection (2) of Section 5 shall, unless it is modified in pursuance of a decision of the Civil Court under Sub-section (1) be final and conclusive. When the respondent relied upon these provisions of the Wakf Act, for negativing the right of the petitioners to obtain relief in the present writ proceedings, the learned Counsel for the petitioner urged that this being a case of there being no wakf at all, the remedy under Article 226 of the Constitution will be available to the petitioners. But as mentioned above on the data made available in the case it cannot be held conclusively that there is no prima facie or arguable case, about the wakf nature of the properties. On the other hand, there is considerable evidence including the statement of the petitioner in W. P. No, 1048 of 1965 as well as the village karnam which would support the view that the properties are wakf properties, and that out of the income from those properties only a small amount of Rs. 400/- was spent on feeding of Fakirs at the time of certain muslim festivals.
7. The decision cited pay the petitioner Zain Yar Jung v. Director of Endowments, : 1SCR469 lays stress on the trust character of a wakf. But as mentioned already, it cannot be held on the data made available in this case that such a test must totally fail in this case. Learned Counsel for the respondent refers to a series of decisions of this Court which have held that where an aggrieved party fails to resort to the provisions of Section 6 of the Wakf Act, for settling a dispute about the wakf character of the property, by filing a civil suit, he will be precluded from agitating the same question over again in writ proceedings. It is sufficient to refer to a recent decision of Venkatadri, J., in W. P. No. 1402 of 1963 (Mad) and a decision of a Bench of this Court to (which I was a party) in W. A. No. 144 of 1966 (Mad).
8. Two other authorities referred to bv the learned Counsel for the petitioners Pyx Granite Co. Ltd, v. Ministry of Housing and Local Government, 1960 AC 260 and Nundolal Bose v. Corporation for the Town of Calcutta, I.L.R.(1885) Cal 275 have no application to the circumstances of this case. Thus In 1960 AC 260 under the Town and Country Planning Act of 1947 in England there was a provision enabling a person who wants to carry out certain operations on the land to apply to the local planning authority to determine the question. There was a provision also for attaching finality to the decision of a minister in appeal, against the decision of the local planning authority. It was held that these provisions would not whittle down the subjects' rights to have recourse to the ordinary Court. But in the present case in Section 6, the statute specifically gives the remedy to the aggrieved party to contest the decision of the Wakf Board in the Civil Court, and also provides that in the absence of such a decision the list of Wakfs published under the Act will become final. This is a case, therefore, where the statute itself provides for the appropriate remedy for relief by resort to the ordinary Courts of the land, within a specific period of limitation prescribed for that purpose, and also provides that in the event of failure to resort to these steps, the decision of the Wakf Board shall be final. I am of the opinion therefore that the respondent's contention that the petitioners having failed to avail themselves of the remedies under the Act within the time allowed under the statute cannot be permitted to agitate the same issue over again in writ proceedings has to be accepted.
9. There was a final argument of thelearned Counsel' for the petitioners, thatsince the petitioners do not satisfy thedefinition of Mutavalli under the Actthey cannot be compelled to pay contribution. But this overlooks the fact thatthe definition of 'mutavalli' in Section 3(f) of the Act, will include a person whofor the time being manages or administers wakf property as such. The petitioners are admittedly managing thewakf properties and performing the service of feeding poor fakirs. That theyhave not admitted the wakf nature ofthe properties will be a different question, which may lead to other steps to betaken under the Act. But that will not bea ground under which they can challengethe demand for contribution now madeagainst them. The writ petitions are dismissed with costs. Advocate's fee Rs.150 one set.