IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15617 of 2007 1. M/S Namira Construction Private Limited having its office at 305, Sukriti apartment S.P.Verma Road, town and district Patna though Director Seraj Anwar 2. Seraj Anwar S/o Late Sirajuddin Ahamad resident of B-186, Police Colony, Anisabad, P.S. Gardanibagh, Town and District- Patna …………. Petitioners Versus 1. The State of Bihar through its Secretary, Department of Minority Welfare, Patna 2. Bihar State Shia Wakf Board, Abedin House Fraser Road, Patna through its Secretary 3. Chief Executive Officer, Bihar State Shia Wakf Board, Abedin House, Fraser Road, Patna 4. The Superintendent of Police (City) Patna 5. The Sub-Divisional Officer, Sadar, Patna 6. The Circle Officer, Sadar, Patna 7. The Officer Incharge, Kotwali Police Station, Patna ………………… Respondents ----------- For the petitioners: M/s Sanjay Singh, Rajesh Mohan and Sanjeev Kr. Singh, Advocates For the Wakf Board: Mr. Shabbir Ahmad, Advocate For the Mutawalli: M/S K.D.Chatterjee, Umakant Prasad and A.K.Verma, Advocates For Intervenors in I.A.No.665/07 : M/S Y.V.Giri, Sr. Advocate, Raju Giri, For Intervenors in I.A. No. 7178/2008: M/S. S.A.Nasar Warsi and Raj Nandan Prasad ------------ O R D E R 20. 05.08.2009 The petitioners have filed the present writ application for quashing of the letter no. 215 dated 25.10.2007 issued by the Chief Executive Officer, Bihar State Shia Wakf Board, Abedin House, Fraser Road, Patna (in short „the Wakf Board‟) to the Superintendent of Police (Town) Patna stating that the Wakf Board had not sanctioned and approved any development agreement with regard to the Wakf property in question, namely, Hasan Manzil situated at Fraser Road, Patna either through its Mutawalli or by Wakf Board - 2 - authorizing anyone or builder to construct building over the said property yet construction was going on in the Wakf premises and accordingly requesting for immediate necessary action ensuring safety and security of the said Wakf property; as also for quashing of the letters dated 7.11.2007 and 8.11.2007 issued by respondent no.5, the Sub-Divisional Officer, Sadar, Patna and respondent no.6, the Circle Officer, Sadar, Patna directing the Officer Incharge, Kotwali Police Station to stop the construction work in the said premises; and for a further direction for restraining the respondents not to interfere with the construction work being completed by the petitioner on the said site. The brief facts of this case shorn of unnecessary details are that on 24.8.1970 an oral wakf was made by Mr. Syed Mehdi Imam and Mrs. Mehdi Imam in accordance with the rules applicable for a Shia wakf in the presence of five witnesses to be known as the Fazal Imam Public Charitable and Religious Trust relating to the property of Hasan Manzil , Frazer Road, Patna, Circle No.6, Ward No.2, Holding No.345, Municipal Sheet No. 21 having an area of 1 bigha 14 kathas. Subsequently, on 29.11.1970 the Scheme of Management (Annexure-A) was executed by the Wakifs. Mrs. Sayeda Mehdi Imam was made the Mutawalli of the said Wakf. Later on the Mutawallia Syeda Mehdi Imam decided to enter into an agreement for the development of the said piece of land by way of a memorial complex comprising of a community centre having a charitable hospital, Islamic school, library, marriage hall, etc. and by letter dated - 3 - 1.6.2000 sought permission from the Wakf Board for conversion of the said wakf premises through a builder for construction of a multi- storied building and by its resolution No. 7 dated 16.7.2000 (Annexure-1) the respondent-Wakf Board accepted the proposal and granted permission for the same for construction through a builder of multi-storied building out of which 20,000/- sq. ft. built up area should be handed over to the Wakf Estate and the remaining should be given to the builder on a lease of 99 years. It was also resolved to elaborate certain points in the agreement to be executed in favour of the builder and that the Mutawallia should give the name and particulars of the builder with whom she is negotiating so that necessary enquiry could be made in relation to him and further only 5000 sq. ft should be utilized for the various charitable objects of the scheme and the rest of the area (15000 sq.ft.) should be used for the purpose of rent for permanent resources of income to fulfill the objects of the Wakf. Thereafter Mr. Faiz Murtaza Ali (intervenor- respondent) was appointed as Mutawalli at the request of the original Mutawalli, Mrs. Syeda Mehdi Imam, and by his letter dated 25.10.2000 pointed out that the concerned builder is ready to take up development work on the basis of conversion of the property instead of taking the land on lease basis and therefore under the present proposal the Wakf Estate will receive 30000 sq.ft. land in a separate block as the Wakf share and would therefore be gaining approximately 10000 sq. ft. more which at the present market value would be worth Rs. 2 to 2.5 crores and the rest of the built up area will - 4 - be the builder‟s share by way of consideration for the development of the land and construction over 30000 sq.ft. built up area to be handed over to the Wakf Estate. By resolution No. 28 dated 2.1.2001 (Annexure-2) the Mutawalli was permitted to enter into the agreement on conversion basis with the builder. It was further provided in the resolution that the agreement should be submitted to the Board for approval. It was also resolved that the said resolution should be read with the earlier Resolution No. 7 dated 16.7.2000 in respect of the permission granted to the Mutawalli to enter into an agreement with a builder for the development of the Wakf Estate. Thereafter a development agreement was entered into on 2.9.2002 between Fazal Imam Public Charitable and Religious Trust and the petitioner M/s. Namira Construction Pvt. Ltd. which was superseded by the agreement dated 9.9.2002 (Annexure-3). Under the said agreement the petitioner-developer agreed to deliver and give possession to the Wakifa/Mutawalli forty-five percent of the built-up area, the balance fifty five percent being the Developers Area belonging to the developers-petitioners, the Wakifa/Mutawalli having the right of first selection and the respective areas to be clearly demarcated at the time of approval of the building plans by the Wakifa/Mutawalli at the outset. (It appears from the General Power of Attorney dated 3.8.2004, Annexure-I/S-4, executed by the Mutawalli in favour of Petitioner No. 2, that the built up area pertaining to the share of the Wakf has come to forty seven thousand two hundred fifty square feet.). In addition, a sum of Rs. Fifty lacs was also payable by - 5 - the developer to the Mutawalli. The petitioners, in terms of the development agreement, got possession of the land and claimed to have got it vacated from illegal occupants and removed encroachment and a building plan for construction of multi-storied building was submitted before the Patna Regional Development Authority (PRDA) which was sanctioned on 27.2.2004. The petitioners claim that the Mutawalli always gave the impression that the copy of the agreement had been submitted before the Board and no objection had been raised to the same and accordingly started construction as per the sanctioned map and in terms of the agreement. Thereafter the Chief Executive Officer filed the case in the Court of SDM, Sadar Patna on 1.8.2005/4.8.2005 for initiating proceeding under Section 144 Cr.P.C. against the petitioners alleging that the construction being made over the land of the Wakf was unauthorized but by order dated 30.9.2005 it was held that the petitioners cannot be restrained from making further construction over the land in question and therefore the prohibitory order under Section 144 Cr.P.C. was vacated in favour of the second party, petitioner no.2. Having learnt that the Mutawalli had not submitted the development agreement before the Wakf Board in the course of the said proceedings, the petitioners submitted the development agreement before the Wakf Board on 23.9.2005 for its approval. However, the Chief Executive Officer by his letter dated 30.9.2005 informed that the Wakf Board was not in working condition and therefore no action could be taken by it and a direction had been - 6 - sought from the Department of Minority Welfare, Government of Bihar but no reply had been received. In the meantime another proceedings were initiated under Section 144 Cr.P.C. at the instance of Ali Martaza Gajali claiming to be holding power of attorney on behalf of the Mutawalli, Murtaza Fazal Ali, but the same was also dropped on account of the fact that a substantial construction had been made by the second party- petitioners. It appears that on account of the dispute between the Mutawalli and the petitioner, the Mutawalli had cancelled the agreement and notice of cancellation was also published in the news paper on 19.8.2005. The development agreement dated 3.9.2005 between the Mutawalli and another builder, M/s. Bustana Vision Pvt. Ltd was also sent to the Wakf Board for keeping it on the record. Subsequently, the matter was sought to be resolved between the petitioner and the Mutawalli and an amendment of the development agreement dated 9.9.2002 was executed between them on 16.11.2006 and further to continue with the construction work a carry on business agreement was executed between them under letter dated 2.1.2007 issued to the petitioners. Thereafter the petitioners claim to have completed almost 90% construction and sold all the flats and shops except final finishing only. On account of these developments Title Suit No. 52/2006 has been filed on 20.2.2006 by M/s. Bustana Vision Pvt. Ltd. against the petitioners which is pending. Thereafter on the basis of the impugned letter dated 25.10.2007(Annexure-7) issued by the Chief Executive Officer of the - 7 - Wakf Board, the letter No. 35 dated 1.11.2007 (Annexure-8) was issued by the Secretary, Department of Minority Welfare to the Sub- Divisional Officer, Patna enclosing the letter dated 25.10.2007, and then the letter dated 7.11.2007 (Annexure-9) was issued by the Sub- Divisional Officer to the Circle Officer, whereupon the Circle Officer, Sadar, Patna issued the impugned letter dated 8.11.2007 (Annexure- 10) to the Officer Incharge, Kotwali Police Station, Patna to stop the illegal construction work going on in the Fazal Imam Complex. Aggrieved by the aforesaid action of the authorities the petitioners have come to this Court. Learned counsel for the petitioners submits that the authorities of the respondent-Board have been opposing the construction of the property on the grounds that the development agreement was not submitted to the Board for its approval in accordance with the resolution dated 2.1.2001 of the Wakf Board and therefore, the construction is illegal and further that the development of the property is against the mandate of the Scheme of Management dated 29.11.1970 which prohibits sale of any land of the Wakf Board by the Mutawalli and further the construction is in the teeth of provisions of Section 51 of the Wakf Act. It is contended that none of the said objections are tenable either in law or on the facts of the present case. It is alleged by the petitioners that the respondent- Chief Executive Officer of the Wakf Board is motivated at the instance of certain interested parties and individual persons who for their own selfish and oblique reasons are trying to raise obstruction to the - 8 - development of the said wakf property. It is claimed by learned counsel that the development has been undertaken so as to augment the income from the property so that it can be used by the wakf for the purpose for which it was created. It is also submitted that it was the mandate of the Scheme of Management wherein it was stipulated that the Mutawalli shall develop the property to increase the income of the Wakf and in terms of the said mandate the permission was sought to develop the property through a builder. The Board had also considered the request of the Mutawalli and granted the permission. It is urged that the Board while granting sanction is presumed to have been aware of the provisions of Section 51 of the Act which puts embargo on the alienation of wakf property but the said Section has to be read along with Section 32(4) of the Wakf Act, 1995 under which if the Board is satisfied that any wakf land offers a feasible potential for development as a shopping centre, market, housing flats and the like, then it may get the development works executed in that respect either through the Mutawalli or by itself. It is thus submitted that the development of the wakf property for the said commercial purpose in order to augment the income of the wakf is provided in the Act itself and the action of the Board in granting sanction for carrying on the said development work by its resolution dated 2.1.2001 cannot therefore be held to be contrary to the provisions of the Act. It is also the contention of learned counsel that there is no statutory requirement of submitting the development agreement for - 9 - the approval of the Board once the approval for development through a builder has been granted by the Board itself and any such condition imposed in the resolution has merely been laid down by the Board for the purpose of supervising the handling of the wakf property by the Mutawalli and therefore the non-submission of the agreement for approval by the Board is not an illegality but at best an irregularity which can be cured by subsequent approval of the agreement. In this regard learned counsel also submits that it was not the fault of the petitioner that the agreement was not submitted by the Mutawalli to the Board immediately after its execution and so far as the petitioners are concerned, the moment they came to know about the same on account of the Section 144 Cr.P.C. proceedings initiated by the Chief Executive Officer in August, 2005 they submitted the development agreement before the Wakf Board on 23.9.2005 for its approval. It is submitted that if the development agreement has not been looked into and approved it is only on account of the fact that the Wakf Board itself had remained non-functional for a long number of years and the respondent-Chief Executive Officer instead of taking interest in development of wakf properties had only involved himself in unnecessary litigation and creating impediments in proper development of waste and vacant properties lying unused since decades. It is pointed out that action has been taken belatedly after more than two years of the dismissal of the Section 144 Cr.P.C. proceedings initiated by him when the construction was going on in the Fazal Imam Wakf premises which is located right opposite the - 10 - office of the Board at Frazer Road itself in Abedin House. It is thus urged by learned counsel that the said action itself speaks of the mala fide on the part of the Chief Executive Officer by taking action in the matter after the entire construction was nearly complete on an investment of Rs. 8 to 9 crores (no figures have been mentioned in the writ petition) and the shops, flats etc. having already been sold out. Learned counsel also submits that Section 51 of the Act is not applicable at all in the present matter as the said provision merely prohibits any gift, sale, exchange or mortgage of any immovable property of wakf without the prior sanction of the Board. It is argued that the development work carried out by the petitioners is neither gift nor sale nor exchange nor mortgage of immovable properties as defined under the provisions of the Transfer of Property Act. It is submitted that the development work, as a matter of fact was to enhance the value of the property and manifold increase in the income of the wakf enabling it to carry out the purposes for which it has been created. Thus, the development work on the property on conversion basis not only does not contradict any of the provisions of Section 51 of the Act rather the same is in conformity with the mandate of Section 32(4) for carrying out development works over the valuable lands of the wakf. Learned counsel also refers to Section 26 of the Act which provides that where the Chief Executive Officer considers that an order or resolution passed by the Board has not been passed in accordance with law or is in excess of or is an abuse of the powers - 11 - conferred upon it or if implemented, is likely to cause financial loss to the Board or to the concerned wakf or to the wakfs generally or is not beneficial to the Board then he may before implementing such an order or resolution place the matter before the Board for its reconsideration and if such order or resolution is not confirmed by a majority of vote of the members present and voting after such reconsideration, refer the matter to the State Government along with objections to the order or resolution and the decision of the State Government thereon shall be final. It is submitted that the resolution of the Board permitting development work on conversion basis of the wakf land was passed on 2.1.2001 and yet for years the Chief Executive Officer had not found the same to be contrary to law or causing a financial loss to the Board or the wakf and as not being beneficial to the Board or wakf and only after the construction work was completed, the said issue has been raised. It is urged that the resolution of the Board cannot be permitted to be flouted by its own Chief Executive Officer in the manner as has been done in the present case without acting in terms of the statutory provisions and getting the same rescinded within a reasonable period of time before others have acted upon the said resolution and changed their position to their detriment. In this regard it is pointed out that apart from not being contrary to the provisions of Section 51 of the Act, the development work carried on the wakf land, as a matter of fact, augments the income of the wakf apart from giving it substantial space for the - 12 - purpose of carrying on the social activities entrusted to the wakf in the Scheme of Management which is definitely beneficial to the wakf and the said enhanced income would also be beneficial to the Board which is entitled to collect a fee of 7% on the annual income of the wakf. Learned counsel also strongly objects to the plea of collusion between the petitioner and the Mutawalli in the present matter as raised by the respondent-Chief Executive Officer of the Board and also the intervenor-respondents. It is submitted that the allegations have not been substantiated by any material on the record. It is also submitted that so far as the collusion as claimed with respect to certain terms and conditions in the agreement dated 9.9.2002 is concerned the same was submitted for the approval of the Wakf Board as long back as on 23.9.2005 and till date the authorities of the Board apart from making allegations have not come up with appropriate suggestions in the matter so that all the said provisions could be withdrawn or redrafted in terms of any reasonable directions of the Board in the matter. It is further submitted that the petitioners have already filed their affidavits in Court withdrawing all the objectionable phrases or conditions laid down in the agreement dated 9.9.2002 but instead of appreciating and accepting the changes in the fresh draft submitted, the plea is being taken by the respondent-Wakf Board that its earlier resolution itself is illegal being contrary to the Scheme of Management and Section 51 of the Act. It is further submitted by learned counsel referring to a letter dated 6.3.2008 of the Chief Executive Officer of the Board to - 13 - the Mutawalli of the wakf in which referring to the fact that the development agreement dated 9.9.2002 was placed before the Wakf Board by the petitioners and on careful examination of the same, it appeared to them that the said agreement has also got a number of loopholes; the beginning line of Clause A-I of the agreement states that the property is the exclusive property of Mrs. Saiyeda Mehdi Imam and she has absolute right, title and interest as Waquifa to transfer and convey the same and the further statement that apart from Wakifa/Mutawalli none else is entitled to any share, right, title or interest over the property which goes to show that the Waquifa/Mutawalli were treating the property as personal property completely ousting the jurisdiction of Shia Wakf Board under which it is registered. It is ultimately stated in the said letter, which has been written during the pendency of the present writ petition and after the Board had appeared and filed its counter affidavit, that the development agreement dated 9.9.2002 needed a fresh drafting in consonance with the deed of wakf and unless a redrafted agreement in consultation with the Board‟s Advocate is entered into it is very difficult to approve the same in its present form and that the Chief Executive Officer of the Board and the Secretary, Minority Welfare Department are competent to approve the redrafted agreement in the interest of the wakf in anticipation of the Board‟s approval, which is a mere formality. It is urged by learned counsel for the petitioners that in view of the clear stand taken by the Chief Executive Officer of the - 14 - Board in the aforesaid letter dated 6.3.2008 during the pendency of the writ application, it is evident that the sole aim on his part subsequently is only to somehow or the other prevent the matter reaching a final conclusion so as to put the petitioners in trouble. It is submitted that no such stand was taken in the said letter that there has been any violation of Section 51 of the Act or any illegality committed by the Board in its resolution dated 2.1.2001 and the said plea has been taken in Court with the sole object to somehow or the other defeat the claim of the petitioners. Learned counsel also refers to another objection raised on behalf of one of the respondents and the intervenor that by order dated 10.3.1999 passed in CWJC No. 814/98, Ghulam Mohsin Jafri Vs. State of Bihar & ors. (reported in 1999(1) PLJR 907) this Court had held the constitution of the Board under the 1954 Act, although the 1995 Act had come into force, as wholly misconceived and without jurisdiction. It is contended that the said order of the learned Single Judge was stayed by order dated 23.3.1999 passed in LPA No. 315/99 observing that the operation of the order of learned Single Judge shall remain stayed but it will not entitle the appellant to settle the wakf property in favour of anyone. It is submitted that the order staying the order dated 10.3.1999 continued in operation until the LPA was dismissed on 11.9.2007 and thus it was not open to the respondents to argue that the resolution dated 2.1.2001 has been passed by any incompetent Board. It is further submitted that sanction to carry on development work on conversion basis does not - 15 - tantamount to settlement of property as the same is not even covered by transactions of the nature mentioned in Section 51. Another intervenor, namely, Mrs. Shahida Hasan has raised an objection that the property in question is part of Hasan Imam Wakf Estate of which she is the Mutawalli and which is the subject- matter of Title Suit No. 262/91. It is submitted by learned counsel that nothing has been produced in support of the said plea rather the property in question is not at all subject matter of the Title Suit and it is separately registered as