HIGH COuRT OF CHHATTIsGARH. BIL $PUR Writ Petition No. 3443 of 2003 lntazmiya Committee, Jama Masjid (Wald) Bilha Versus sate of Chhattisgarh & others & Connected two Writ PeWons NO. 3081/20m & 4289/2004. Post fot: 30.07.2007 Sd/- Sunil Kumar Sinha Judge 5’0 . [JJ HIGH COURT OF CHHATTISGARH, BILAsPUR Writ Petition No. 3443 of 2003‘ PETITIONER lntazmiya Committee, Jama Masjid (Wakt) " Bilhalhrough Firoz Ahmed (amember) aged about 40 years son of Abdul Karim. msident of Talapava, Bilaspur, Tah. &Distt Bilaspur, (C.G.) Versus 1 Shte of Chhattisgarh Through : Colioctor. Biiaspu Collector. Bibspur (C.G;) 3 SuperiMendent ofPoIice, Biiaspur (C.G‘.) 4 shri Abdul Manna Khan aged 35 “years 8/0 late Abdulla Khan. resident of Village Satgaon, Dish; Bilaspur (C.G.) 5 Kumari Rana Parveen aged ‘37‘yeats, Dlo late Abdulla Khan, resident of Junl Line, Opposite Santosh Bhojnalaya, Bilaspur. Tah. & Dish. Bilaspur 6 Shri Rahul Kumar Bajpayee. aged about 44 years Slo Rohinl Kumar Bajbayee, resident of ldgah Chawk. Bilaspur, Tah. & Distl. Bilaspur (C.G.) Writ Petilion No. 3081 of 2003 N ABDUL HALEEM KHAN. Sic Late Ahdul Hakeem Khan, Aged : 49 years. R/o 9, Akbar Khan Chawl; Opp: Mission Hospital, Bilespur, Dist: Biiaspur (C.G.) Versus PETITIONER RESPONDENTS 1 Slate of Chhalh’sgarh. Through Secreury (Tourism, Cuiiure & Religious Trusts), Mantralaya, D,K.'s; Bhawan, Raipur (C.G.) 2 Abdul Mannan _ man'i‘sm Abdulla Khan. Aged about: .35 years, Rio Village : sargaon, Tehsil : Mungeii, District : Bilaspur (C.G.) 3 Ku. Rana Parveen. Dlo Abdulla Khan. Aged ‘x about: 37 years, Occ: Teacher, Rlo Juni Line. Near Santosh Bhoianalaya. Bhspur (c.G.) r 2 Writ Petitions No..3443/2003#3081/2003 & 4289/2004 4 Rahul Bajpayee. S/o Shri Rohini Kumar Bajpayee, Aged about z 44 years, Rio ldgah Chowk, Teh. & Dist: : Bllaspur (C.G.) 5 Ratique Ahmed Khan. S/o Masood Khan, Aged about:70years samir Ahmed Khan, S/o Rafique Ahmed“ Khan, Aged about : 38 yeana, R-5£. $ Rio Juni Line. Bilaspur. Pfasenlly (residing at : Flat No. 113, “Utmrsh Nirman" Mangalwari Bazar,-sadar, Nagpur (Maharashira) The Collector, BilaspurDistt : Bilaspur (C.G:') The Sub-Registm (Registtation), Composite Building, Opp: Collectorate, Biiaspur (C.G.) Q Writ Petition No. 4289 of 2004 lntazamiya Committee, Jama Masjid (Wald) Biiha. through Waheedullah Km (a member), aged about 45 years; Slo late Ahmeduliah Khan, resident of Talapata, vk PETITIONER Bilapsur, Tah. & Disu. Biiaspur (C.G.) Versus State of Chhattisgarh, Through :Coliedor, Biiasput (C.G.)‘, 2 Collector, Bilaspur (C.G.) 3 SubaRegistrar (Registration) Biiaspuncm 4 President. Chmrh Education Society Clo Chhattisgarh. H.S,. 8chooi Chltapara, Biiaspur (C.G.) 5 Janab Raiq Ahmed, aged about 75 years Slo' late Janab Masood Khan, Fiat No, 113,, o Utkarsh Nirman, MangaimrauBazar, Sadar Nagpur (Maharashtra) Appearance; 5hri Saifuddin Rajas, Advocoie for me‘pedhoner in W.P. No. 3443/2003 & W.P. No. 4289/2004. Shri Arun Sao, Govt. Advocate for the Stab &,.other State respondents in aii the Writ petitions. Shri U.N. Awasthy. Sr. Advocate and Dr. N.K. 'Shulda, Sr. Advocate with Shri Dilip Dubey, Advocah for Rahul Kumer Bajpeyee ' 7 ‘1 3 Writ Patitiom No. 3443/2003, 308'1/2603’& 4289/2004 Shri Gauiam Bhaduri & Ku. Solia KhanyMwcata for the pewoner in W.P. No. 308112003 and also hr the intewenet‘ in WP. No. 4289/2004. Shri K.A. Ansal'i, Sr. Advocate with Smt. Meera Ansari. Adwcate for Rafique Ahmed Khan. Shri B.L. Dembra, Advocate for the intervener- Wakf Board; ORDER (30.072007) sunil Kumar $inhai J. (1) Since these 3 petitions involve “common questions for considemtion, they are being dispoeed of by this common ordet. The facts ofmese eases are as foilows: Writ Petition No. 3081/2003 wa iiied on 23.9.2003 by Abdui Haleem Khan for (he relief that respondent State be commanded to hold a high levelinquiry into illegai alienation of the Wakf property by the sate-deed dawd 13.12.2002 executed by Abdui Mannan Khan and Ku. Rana Parveen (respendenB No. 2 & 3) in favour o! respondent No. 4, Rahul Bajpayee. As an interim measute, he prayed that-respondents No. 2, 3 a. 4 be restrained from dispossessing the beneficiary d Wald in question by using force or by any other means and-M’mr,wma restrained from demolishing the supper structure existinqover thesaid property. The petitioner contended thatthe plotbearing sheet No.14, plot No.19. area 0.245 hedaree.(26392osq.ft.) simated in New! area of township of Bilaspur (hereinafter referred team tirefwsputed property) was a Wakf property. He pleaded that Haji Mohd. Akbar Khan and Haji Mohd. Masood Khan had executed a Wal¢Alal~Aubdnama dated 20.4.1937, in which, this property was declared as a-Wakf property described at serial No. 1 8. 2 of Para-11 of the Wald-deed andthe same was being managed by its Muivalli. Ratique Ahmed Khan (respondent No.5). Awarding to the petitioner. me Wakf was for the benefit ofthe descendants and 1/3" portion of the proceeds of theoWakf property was . to be distribumd among the Gqieredars (benehciaries) but’the aforesaid portion of the said property was sold by the said seliers to respondent No.4 in collusion with Mutvalli, therefore, the same was illegai, which / needs an inquiry as above and also an ’mterim protection, as prayed for. ’ @ r . i 4 Writ Petitions No. 3443/2003 3081/2003.& 4289/2004 (2) Writ Peu‘tions No. 3443/2003 & 4289l2m4 have been tied by lntazmiya Commiltee. Jama Masjid (Wam Bilha on 17.10.2003 and 24.09.2004. The former petition was tiled for rmaining the purchaser from carrying out any building operatidn at making construction on the spot as also for issuance of mandamus directing me State-respondents to intervene in the matter and perform their duties under section 28. 52, 54. 55, 85 & 88 of Wakf Act 1995 and extend appropriate help to the petitioner in protection of Wakf property. The later petition was tiled for issuance of directions to the State respondents to mutate the Nazul records as also Patwari records and enter the name of the petitioner Committee with respect to property, which have been ‘registered as Wakf property by the Wakf Board and notitied in the iinal Gazette at serial No. 106 pages 2014 to 2017 with a direction to respondent No.2 (Collector) to make an inquiry into illegal sale of the Wakf property and to take appropriate action in this regard as also to restrdn theprivate respondens not to enter lnto any transaction‘periaining to the Wakf property and nu to deal with die said property; The pleadings and grounds in these two'vpetttions are almost simian According to the petitioner’Committee, they, have been constituted by MP. Wakf Board, Bhopai and are to look after the maintenance and-management of he property dedicated to the above Wakf institution. They pleaded that the disputed property was a Wakf property as it was registered as the Wakf property along with many other properties in the year 1967 by the Wakf Board M.P., Bhopal in the wakf-register (Register-Aukat) and the factur'nof legistration was also notified under the provisions of Wakf Act by Gazette Notihcation in the MP. Gazette Part lll (1) dated 25.8.1989 vide page Nos. 2014 to 201 7. They contended that‘since this property was a Wakf property, therefore, alienation of the property was not possible. However, the sellers, who are two of the successors of the executants of Wakf, did not take care of the law and the purchaser, taking undue advantage that the mutation was not affected. purchased the disputed property and started action of demolition and the acts of, construction over the portion of it. lt is in this situation, these petitions were tiled for above relief(s). é ggs 5 Writ Petitions No. 3443/2003 3081/2003 & 4289/2004 (3) The State and m authorities have mken stand that in the revenue records, mainmined by them. i.e. the Nazul maintenance Khasra, the disputed ptopetty was on the name of sellets and the same was not belonging to Wakf Board. therefore, they would not be responsible for any transaction of such properly. Apart from the above, they have also taken preliminary objection regarding maintainability of the writ petition as almost similar Writ Petition No. 1716/2003 was disposed of vide order dated 27.6.2003 as also disputed question of facts are involved in this case. which would require evidence. both oral and documentary and the‘appreciation thereof, which cannot be undertaken by this Court while exercising writ jurisdiction under Article 226 of Constitution of lndia. (4) The purchaser took stand that this property was not a Wakf property as the alleged wakf-deed dated 20.4.1937 was never acted upon and it appears to be only a piece of paper for want of implementation by executants and their descendents for long 56 years. The names of Akbar Khan and his descendants have been continued in revenue records as lessee of the said land, who have time to time sold the portion of said property to different persons but the same were never challenged by the petitioner. Vide Para-5 of'the reply in Writ Petition No. 3081/2003, he specincally pleaded that me said Haji Mohd. Akbar Khan and Haji Mohd. Masood Khan have never bequeathed any property as alleged. He also denied the execution of Wakf-Alal— Aulagnama on 20.4.1937 or any other date. According to his pleadings. the saidproperty was through out treated as their own property and not as a Wakf property by‘Haji Mohd. Akbar Khan, Haji Mohd. Masood Khan and their heirs' respondents No. 5 & 6. The said properties were managed by them as their personal property and they have never managed it as the Mutvallis’ as alleged. He'iurther pleaded that the portions of such property were sold to many persens as follows: 1. shri Mahendra Pradhan Vide sale-deed dated 12.2.1980. Annexure R-4/6; 2. Shrimati Baljit Kaur Vide saie~deed dated 29.6.1981 , Annexure R-4I7: 3. Shri Mohammad Mazahul Haq vide sale. deed dated 10.5.1999, Anexure R—4I8; 6 §$ Writ Petitions No. 3443/2003 3081/2003 &-4289/2004 4. Shri Abdul Karim Khan vide saledeed dated 8.6.1999, Annexure R-4/9. Basing on many factual aspects, this respondent has denied about nature of property to be the Wakf ptoperty and according to his contention. the property was a personal property and its sale was valid and perfect in aii means, execution of which was followed by delivery of possession. (5) Ranque Ahmed Khan and samir Ahmed Khan>(respondenls No. 5 & 6 in W.P. No. 3081/2003) have also filed their retum in this Writ Petition. Their preliminary objection is that aner dismissal of the earlier Writ Petition No. 171 6/2003. this subsequent Writ Petition'would not be ' maintainable. According to them, the question whether a property. notified as a Wakl' property was a Wakf property or not can only be decided by way of a civil suit and respondent No. 5 has already instituted proceedings before the M.P. Wakf Tribunal vide case No. 1381/96. They specifically pleaded that earlier an applicabon No. 478 was nled by the then, Secretary of District Wakf Committee, Bilaspur Shri Mohammed Sharif on 28.1.1983 before the M.P. Wald Board for ~ registration of immovable properties of respondent No.5 as Wakf property in accordance with the alleged Wakf Deeds of 20.4.1927 at 21.4.37. This application was considered in meeting No.33 dated 4/5- 12-83, by the M.P. Wakf Board and it was decided by the Board that as the purport and the purpose of the execution of the deeds was oniy to secure the properties and there was no dedication of the same for any pious. charitable or religious purpose recognized by Muslim law. therefore. the immoveable properties cannot be registered as Wakf property. They have nbd the order dated 31.12.83 through which me above decision of'the M.P. Wakf Board was communicated to the authorities and persons concemed as Annexure R/5-6I2 and in view of the above, awarding to these respondenB.“ the ' notification dated 25.8.1989 becomes questionable. That is to say that they have also disputed the nature of property to be‘the Wakf property either Wakf: Alal-Aulamama or the absolute Wakf. (6) The Chhattisgarh Wakf Board has filed intervention application. Their contention is that the property in question. is a property covered 9? Writ Pewons No. 3443/2003 3081/2003 & 4289/2004 under the Wakf deed dated 20.4.1937, which ls a Wakf-‘Ahl- Aulawama, therefore. it cannot be treated as a public Wakf propeny' and lntazmiya Committee, Jama Masjid. Bilha cannot claim any right over this property. It has contended that whatever right has been acquired by Inhzmiya Committee, it has been aequired by the Wakf deed dated 19.8.1940. in which. Jama Masiid. ldaah and eenain other properties were included. So far as sate in question is eoncerned, me Board has speciticaily pleaded that since it was a property of Wald-Maia Auladnama. which is meant for mnem. maintenance and welfare o! the Wekr'fs deecendents. it cannot be alienated to third party. Therefore, transaction of such a property was illegal and void. Referring to many Sections of Wakf Act, the Board has contended that since the property is Wakf propetty. the parties may approach to the appropriate forum and the appropriate authority under the Wald Act. That means. the Board is supporting the pieadings of petition of Abdul Haleem Khan. but for its maintainability, and is opposing the petition tiled by lrrtazmiya Committee. (7) During the course of arguments, teamed counsel for the petitioner— Abdul Haleem Khan. argued that according Mohammedan Law, a Wakf-Alal-Aufed is valid and well recognized. Creation of a Wakf for. the purposes of maintenance of the members of the WakrT’s family and their descendents is also a charitabie purpose. His submission was that as soon as the property is declared as a Wakf property. right of Wakif is extinguished and ownership is transfered to almighty, therefore, after creation of Wakif, neither the Wekif nor his descendants would have any right to alienate the property. He referredto AIR 1981 SC 798 (RedhakantaDeb and another --Vs- The Commissloner of Hindu Religious Endowments. om).- ArR 1978 scmz (Biol Siddique Fatima -Vs- $aired Mohammad Mahmoud Hasan) d AIR 1$71 SC 1691 (Ahmed G.H. Ariif—Vs- The cornmfsslorrerof Wealth Tax Calcutta. (8) On the contrary. teamed counsel for lntazmiya Committee argued that since an entry was made in Wakif register and a notitication was also published by the Government. the property became absolute Wekr‘f property and descendents of the Wakiffamity wilt have no right or S M, x §QQ 8 Writ Petitions No. 3443/2003 3031/2003 & 4289/2004 interest over that property as everything attains 0mlity after such declaration entry and publication according to Wald Act. 1995. He referred to various rovisions of the Act. (9) Leamed Sr. Counsel appearing for purchaser argued that many disputed questions of facs have been raised in writ petition. which require evidence and due appreciation, therefore, this Court will not be able to adjudicate the same. Firstly. the validity and contents of Wald deed itself is denied by the respondent as also the setters and it has been contended by them thatthe disputed property was never treated to be the Wakf property by the Wakif or his family members, therefore, for recognition and declaration of private rights‘ writ Court will have no jurisdiction to entertain such questions. He referred to the decision rendered in the matter of Odssa ro ndustries n L d. and others —Vs- Bharati Industties and others. AIR 2006 SC 198. (10) Leamed counsel appearing for Radque Ahmed Khan as atso intervener- Wakf Board almost argued similar points, which they have raised in their counter afhdavit and intervention application. (11) The controversy, which appears to have been raised by the purchaser is as to whether a Wakf deed was executed by Wakif and was acted upon, in relation to the disputed property ?, and the inter-se controversy between two sets of petitioners is as to whether it was a Wakf-Alal-Aulad or it was an absolute Wakf, that is to say about the nature of Wakf, though they have contended that it was a Wakf property ? Therefore, the question would be whether such matters can be gone into in a writ petition for want of evidence and their appreciation ? , Whether the writ court would be the appropriate forum to make such declaration and to issue a direct command to the private or Government respondents in this regard .?, and further, whether according to legal character of the petitioners, such exercise is realty required by this Court or on the basis of admiued position regarding existence of a Wakf as per pleadings in the writ petitions, the petitioners' forum lies somewhere else ? (1 2) lf we look into the provisions of Wakf Act, 1995. $ections 6, 7, 51 & 52 are the Sections, which deal with disputes regarding wakfs, power p 9 Writ Petitions No‘ 3443/2003 3081/2003 & 4289/2004 of Tribuna! to determine the disputes regarding wakfs- and alienation of wakf pmpeny as also regarding reoovery thereot. Sections 6, 7, 51 8. 52 are quoted as under: "6. Disputes regarding wakfs.-(1) if any question arises whether a particuiar property specined as wakf property in the list of wakis is wakf property or not or whether a wakf specitied in such list is a Shia wakf or sunni wakt, the Board or the mutawalli of the walcf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shail be final: Provided that no such suit shat! be entertained by the Tribunal otter the expiry of one year from the date of the publication of the list of wakfs.. Explanation- For the purposes of this section and section 7. the expression "any person interested therein," shall. in relauon to any property specified as wakf property in the list of wakfs published after the commencement of this Act, shall include aiso every person who. though not interested in the wakf‘ conoemed, is interested. in- such property and to whom a reasonable opportunity had been afforded to representhis case by notice served on him in that behalf during the course of the relevant inquir under section 4. (2) Notwithstanding anything contained in sub- section (1). no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit; (3) The Survey Commissioner shall not be made a party to any suit under subsection (1) and no suit. prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder. (4) The list of wakfs shall, unless it is modilied in pursuance of a decision or the Tribunal under sub- section (1), be final and conclusive. a (5) 0n and from the commencement of this Act in a State. no suit o: ether iegai proceeding shall be instituted or commenced in a court in that sate in relation to any question referred to in sub-section (1)- 7. Power of Tribunal to determine disputes regarding wakfs..(1) if, after me commencement of this Act, any question arises. whether a particular 9 y " 11 gay} gé Writ Petitions N0. 3443/2003 308 1/2003 & 4289/2004 51. Atienau'on of wakf property Mthout sanction of Board to be void.-(1) Notwithshnding anything contained in the wakf dwd, any gin, saie or exchange rummage of. any, immovabie property which is wakf property, shall be void uniass such gm. saie. exchange o’r mortgage is effected with the prior sanction of the Board: Provided that no mosque, dargah or Khangah shall be gifted, ‘sold, exchanged or mortgaged except in accordance with any law for the time being in force. (2) The Board may, after publishing in the 0mial Gazette, the particulars relating to the transaction referred to in sub-section (1) and inviting any objections and suggestionswith respect thereto and considering all objections and suggestions. if any, that may be received by it from the ooncemed mutawalli or any other person interested in me wakf, accord sanction to such transaction if it is of opinion that such transaction is - (I) necessary or benencial to the wakf; (Ii) consistent with the objects of the wakf; (iii) the consideration thereof is reasonable and adequate: Provided that the sale of any property sanctioned by the Board shall be effected bypublic auction and shall be subject to confirmation by the Board within such time as may be prescribed: Provided further that the Tribunal may, on the application of the aggrieved muhwalli or other person. for reasons to be recorded by it in writing. permit such sale to be made otherwise than by public aucdon. if it is of opinion that it is necessary so to do in the interest of the wakf. (3) The utilization or investment of the amount realized by the sale or exchange mortgage of any property shall‘ be made by the mutawaiti subject to the approval of the Board, and where any amount has been raised by mortgage of any such property, the mutawaili or other person shall make repayment of me mortgage-debt and obtain a discharge of the mortgage-debt from the mortgage within such reasonable time as-me Board may specify. (4) Every approval given by the Board under sub- section (3) shall be communicated to the-mutawaili and shall also be published in the manner prescribed. (5) The mutawalli or any other person having an interest in the wakf who is aggrieved by the decision given under subsection (3), may, within ninety days EU) 12 Writ Petiticms No. 3443/2003 3081/2003 & 4289/2004 from the date of communication to him of such decision or the publication of the decision, as the case may be, prefer an appeal to the Tribunal against such decision, and thereupon, the Tribunai may, after giving the appellant and. the Board. a reasonable opportunily of being heard; conhrm, modify or set aside such decision. 52. Recovery of wakf property transferred in contravention of section 51.-(1) If the Board is satisfred, after making any inquiry in such manner as may be prescribed, that any immovable property of a wakf entered as such in the register of wakf maintained under section 36, has been transferred without me previous sanction of the Board in contravention of the provisions of section 51, 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 thirtydays from the date of the service of the order. (3) Every order passed under sub-section (2) shall beserved- (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 amxing the order on some conspicuous part of his iast 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 amxed 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 the 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 appealto theeTribunal within whose jurisdiction the property is situate and the decision of the Tribunal on such appeal shall be final. (5) Where an order passed under sub-section (2) has riot been complied with and the time for appealing against such order has expired without an appeal having been preferred or the appeai, if any, ff” {Q§ 13 Writ Petitions No. 3443/2003 3081/2003 & 4289/2004 preferred within that u'me has been dismissed. the Coliector shall obhin possession of me 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