CIVIL WRIT JURISDICTION CASE No.5337 OF 1991 MD. ISLAMUDDIN. Son of late Md. Qutubuddin Motawalli Rahim Bux Wakf Estate Qutub Manzil, Sabzibagh, P.S. Pirbahore, Town and District – Patna – 4. --------------(Petitioner) Versus 1. The State of Bihar 2. The Minister of Wakf, Government of Bihar, Patna 3. Bihar State Sunni Wakf Board, through its Secretary, having his office at S.P. Verma Road, Patna – 1. 4. The Special Officer, Bihar State Sunni Wakf Board, S.P. Verma Road, Patna – 1 5. Md. Ahsan alias Nanhu Mian son of late Amirul Haque, resident of Mohalla Bagh Kalu Khan, Sadargali, P.S. Khajekalan, Patna City, District – Patna. ----------- Respondents For the Petitioner : Mr. Abbas Haidar, Adv. Mr. Md. Kamil Akhtar Adv. For the Respondent for Wakf Board : Mr. Sadat Ali Khan, Adv. For heirs of Respondent no.5 : Mr. Md. Ataul Haque, Adv. For The State : Mr. Debanjan Chowdhary J.C. to S.C. III P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI ******************** Ajay Kumar Tripathi, J. Heard learned counsel for the petitioner and learned counsel for the State. Interlocutory Application No.4510 of 2007 has been filed to bring the legal heirs indicated in paragraph no.2 to the petition on record on the death of respondent no.5, namely, Md. Ahsan @ Nanhu Mian. Interlocutory Application No. 4510 of 2007 is allowed. Let the legal heirs be brought on record. - 2 - Petitioner is seeking quashing of the order dated 19.04.1991, Bihar State Sunni Waqf Board, respondent no. 4, the order has the effect of the petitioners Waqf property to be de-registered and corresponding amendment in the register of the waqf board to be made under section 28 of the Waqf Act 1954. Submission of learned counsel appearing in support of the writ application is that the action of the respondents in this regard is de hors the power under the Act more so, the provision of Section 27 & 28 of the Waqf Act. Once the property is duly registered as a Waqf property then the nature of the property cannot be altered while exercising power under Section 27 & 28, unless a declaration is issued by a court of competent jurisdiction on a dispute raised by the concerned parties. This is the short and precise submission made on the basis of a decision which had been rendered in the case of C.W.J.C. No. 1193 of 1986 Azimuddin Versus Arshad Kamal and others vide order dated 4th December, 1996, Hon’ble Justice Mr. B. P. Singh dealt with the ambit of not only the Act but also the provision especially section 27 and 28 and came to a considered opinion that the exercise carried out by the respondents based on the power under section 27 and the consequential amendment to the register under section 28 was an illegal exercise and warranted interference by the court, the impugned order of the case was quashed and the writ - 3 - application allowed. Para 6 & 7 of the order is quoted below :- “ I fail to understand how such an order can be justified. It is not in dispute that the plot in question belonged to the waqf which was registered as waqf No. 1488. If respondents 1 and 2 disputed the fact that the property belonged to the waqf, they could have filed an application under section 27 of the Act, which authorizes the Board to decide the question as to whether a particular property is or is not waqf property. This power can be exercised by the Board itself after following the procedure and hearing the parties. The decision given by the Board in such a case is final, unless the party aggrieved obtains a favourable order from a Civil Court. I find nothing in the Act which gives the Board power to release a particular plot of land and declare that the same shall not be treated as waqf property. Section 28 of the Act which relates to amendment of Register only provides that the waqf Commissioner may direct a Mutawali to apply for registration - 4 - of the waqf, or to supply any information regarding the waqf, or may himself cause the waqf to be registered, or may at any time amend the Register of waqf. The amendment of the Register of waqf is necessitated when any change is made by adding any new waqf or by any other order passed by the waqf Commissioner. No power is given under section 28 to declare that a property recognized as waqf property be deleted from the register of waqf property. If any person is interested in claiming that a particular property is not waqf property, he must first raise that dispute under section 27 of the Act, and only thereafter, such property may be declared to be not waqf property, if the Board so decides. If, on the other hand, the Board decides that the property is waqf property, that decision has to be challenged before a Civil Court of competent jurisdiction”. “In the instant case, the impugned order (Annexure – XII) dated 23.04.1984 is a cryptic order and has been - 5 - passed on irrelevant considerations, such as, pressure of the Government upon the Board to release the land in question. Even if the power could be exercised suo motu, it is not shown that the order has been passed for the benefit of the waqf. In fact, it is to the contrary, and waqf property is sought to be released to a private person who claims to have purchased the same. No reasons have been mentioned in Annexure XII as to why the Chairman considered it necessary to release the land and treat the same as non-waqf property. The only reason shown is the issuance of repeated orders by the State Government. There is nothing in law which vests power in the State Government to direct the Board to treat waqf property as non-waqf property. The Chairman has, therefore, acted on wholly extraneous considerations, and the impugned order, therefore, is vitiated by malice in law, if not malice in fact, though the action may be said to be mala fide in fact also, having regard to the submission that the order - 6 - has been issued by the concerned Minister to favour respondent no.1. However, it is not necessary for me to hold that the order is vitiated by mala fide in fact, but the same is certainly mala fide in law. Moreover, the power under section 27 of the Act can be exercised by the Board, and not by the Chairman and, therefore, the impugned order cannot even be considered to be in exercise of power under section 27of the Act. In these circumstances, the impugned order (Annexure – XII) dated 23.04.1984 issued by the Secretary, Bihar State Sunni Waqf Board, Patna, is quashed.”. Since the court has benefit of a decision on the issue, therefore, there is no occasion to go into the details or the nitty- gritty of the various submissions at the bar. The matter is squarely covered. Learned counsel appearing on behalf of the Wakf Board raises a preliminary objection that since a tribunal has been put into place under the new amended Act, the jurisdiction of other courts have been ousted, the matter ought to be referred back to the tribunal. The court has difficulty in accepting the stand - 7 - especially since a question of law has been raised by the petitioner which has been answered by the decision of this court in yet another case where the matter and the issue was identical. No purpose would be served by referring the dispute now in the year 2008 to a tribunal, when the writ application was pending for consideration since 1991. The writ application is allowed and the impugned order dated 19.04.1991 contained in Annexure – 1 is hereby quashed. Patna High Court The 28th November, 2008 NAFR/AFR, Rajeev/ (Ajay Kumar Tripathi, J.)