Karnataka
Wakf Board Vs. State of Karnataka & Anr [2003] Insc 259 (30 April 2003)
S. Rajendra
Babu, K.G. Balakrishnan & G.P. Mathur
With
Civil Appeal No. 16898/1996 K.G. Balakrishnan, J.
Both
these appeals raise common questions of law; hence they were heard jointly and
are being disposed of by a common judgment. Under Section 4 of the Wakf Act,
1954, the Survey Commissioner of the State of Karnataka conducted a survey of Wakf properties existing in the State
of Karnataka. After the survey was over, a list
of properties of Wakf was prepared under Section (5) of the Act and the same
was published in Official Gazette by Notification on 8.7.1976. In the said
notification, property comprising CTS No. 34B in Ward No. VI of Bijapur city
was included as an item of Wakf property. So also, property bearing Survey No.
CTS 34/A2 situated in Ward No. VI in Bijapur city with a building thereon was
included as an item of Wakf property. After this notification, the Department
of Education, represented through Deputy Director of Public Instructions of the
State of Karnataka, filed Original Suit No. 1/1981 on the file of the
Additional Civil Judge, Bijapur, against the present appellant Karnataka Wakf
board and four others, for declaration that the inclusion of the property
bearing CTS No. 34B in Ward No. VI of Bijapur city as Wakf is illegal and void
and also for consequential injunction to restrain the defendants from
obstructing the plaintiff's possession over this property. Plaintiff had prayed
that the notification of the said property as a Wakf property be declared
illegal and void. As an alternative relief, the plaintiff sought for
declaration of title by adverse possession.
As
regards property and the building comprising CTS No. 34/A2 in Ward No. VI of Bijapur
city, the Department of Agriculture, represented through Director of
Agriculture of the State of Karnataka
filed Original Suit No. 4 of 1981 on the file of the Principal Civil Judge, Bijapur
praying for a declaration of the title of the plaintiff over this property and
sought for further declaration that the notification published on 8.7.1976 was
illegal and void. The plaintiff also sought for injunction restraining the
defendants from obstructing the plaintiff's possession over the suit property.
In
both these suits, the Karnataka State Wakf Board was the first defendant. The
other defendants in both the suits are also common. At first, we shall take up
the case relating to property comprised in Survey No. CTS No. 34B situated in
Ward No. VI of Bijapur city, which is claimed by the Education Department of
the Karnataka State. We shall refer to the parties as arrayed in the original
suit. The plaintiff contended that this property originally belonged to the
then Government of Bombay. Then the District Local Board, Bijapur purchased
this property and the value was fixed at Rs.16,325/-. Later on, the District
Local Board handed over this property to the District School Board. In the year
1961, District School Board constructed an office building on that property.
After the re-organisation of the States and coming into existence of the State
of Karnataka, the District School Board merged into the Department of Education
and thus, the property came to belong to the Department of Education,
Government of Karnataka and the plaintiff came to know of the notification
showing this property as a 'Wakf property' and the plaintiff alleged that it
was done at the instance of defendant nos. 2A and 2B and no notice was served
on the plaintiff before the publication of such notification.
The
first defendant, the Karnataka Wakf Board denied the allegations of the
plaintiff. It was contended that the suit property was declared as 'Wakf
property' by the State Government and, therefore, the plaintiff is estopped
from challenging the validity of that notification and that the plaintiff was
given sufficient opportunity to dispute any claim, when the Assistant
Commissioner conducted the survey of Wakf properties. Defendants 2A and 2B in
their first written statement contended that one Arab preacher 'Peer' Mahabare Khandayat
came as a missionary to Deccan area in A.D. 1304 and erected Mecca
Masjid at Bijapur. It is alleged that the whole area is known as 'Arkilla area'
and the suit property has been treated as 'Wakf property' and is being managed
and maintained by 'Sajjadanashin' and defendant nos. 2A and 2B are the 'Sajjadanashins'
and managing 'Mutawalli' in respect of the suit property.
We
heard learned senior counsel, Shri Salman Khursheed who appeared for the
appellant Karnataka Wakf Board and also Mr. Sanjay R. Hegde who appeared for
the respondents. As regards Original Suit No. 1 of 1981 filed by the Department
of Education, there is satisfactory and convincing documentary evidence to show
that this property belongs to the Education Department. Exh. 1 is the certified
copy of the order passed by the Government of Bombay dated 29.5.1941 which
shows that two acres of land in Bijapur was sanctioned by the Government of
Bombay to the District Local Board, Bijapur. The occupancy price was fixed at Rs.
16,325/- and this occupancy price was exempted by the Government. Certain
conditions were imposed on the District Local Board for the user of the said
property. Exh. P2 is a letter addressed by the Collector of Bijapur to the
President of the District Local Board. In both these documents, the property
has been described as CTS No. 34B. Exh. P-3 is also an important document,
which shows that the property was resumed from the District Local Board by the
Government and the same was given to District School Board.
Exh.
P-4, the property register of 1941 also shows that it was described as the
property belonging to the District School Board. These documents are clinching
evidence to prove the title of the plaintiff. The defendants could not bring
any counter evidence to question the credibility of these documents. Though the
defendants had contended that the Arab religious preacher by name 'Peer' Mahabare
Khandayat came to India in A.D. 1304 and occupied the
entire Arkilla area, there are no documents to show that the suit property was
ever in possession of Wakf Board and under the control and management of
defendant nos. 2A and 2B.
It is
true that the suit property was very close to the Arkilla area, but the
defendants 2A and 2B could not produce any documents at least to prove the
possession and enjoyment of this property. The second defendant produced Exh.
D4 to show that in CTS records of the years 1980, the name of the second
defendant was mentioned in respect of the suit property. Except this document,
defendants 2A and 2B could not produce any other document. But that by itself
is not sufficient to establish the possession of the defendants. The plaintiff
by the various documents successfully proved its title and the trial Court
rightly held that the plaintiff has got title to this property.
In
respect of the property comprising CTS No. 34/4A-2 situated in Ward No. VI of Bijapur
city, the State of Karnataka is represented by Deputy Director of Agriculture,
who was the plaintiff. The Plaintiff No. 1 was initially designated as Deputy
Director of Agriculture, Bijapur city. The Government of Karnataka changed the
designation of Plaintiff No. 1 as Principal Agricultural Officer. It was
contended on behalf of the plaintiff that out of the property comprising CTS
34/A- 1, an area admeasuring 1600 square yards had been granted by Deputy
Commissioner Bijapur by Order No. RD-LBP-SR.167-63 dt. 12.4.1965 on the
occupancy price of Rs. 25/- to the District Agricultural Officer. The Plaintiff
No. 1 is the Executive Officer/Convenor of the Farmer's forum of Bijapur
district.
Plaintiff
Nos. 2 and 3 are respectively the President and Secretary of the Farmer's
forum. The office building was constructed on the suit property in 1964- 65 by
spending a huge amount. At the instance of defendants 2A and 2B, this property
was included in the notification dated 21.4.1976 as 'Wakf' property. No notice
was served on the plaintiff before the said notification. Defendants were never
the owners in possession of this property and the inquiry under Section 67 of
the Karnataka Land Revenue Act was not done properly. Plaintiff was given
notice on 27.1.1979 and plaintiff no. 1 appeared and prayed for adjournment to
produce the documents, but the Deputy Commissioner rejected his prayer and
passed an order holding that the suit property was 'Wakf' property. Plaintiff
had issued notice under Section 80 CPC read with Section 56 of the Wakf Act to
the defendants before filing the suit.
In
this case also, the Defendant No. 1 contended that the suit property was 'Wakf
property' and it never belonged to the Department of Agriculture of the State
of Karnataka. It was also contended that the plaintiff was not entitled to
challenge the notification published by the State Government. Defendants 2A and
2B raised similar contention that religious preacher 'Peer' Mahabare Khandayat
came to India in A.D. 1304 and occupied the whole 'Arkilla' area and erected
Mecca Masjid and the entire area, including the suit property thus, became 'Wakf
property' and for the past 7 centuries, it is being treated as 'Wakf property'.
In
Original Suit No. 4 of 1981 the plaintiff relied on P3 document. The Hon.
Secretary of the District Farmer's Forum was examined as PW 1. He deposed that
an extent of land measuring 1680 square yards was granted to District Farmer's
Forum and in the year 1965, the forum constructed a building spending about two
and a half lakhs rupees. Exh. P4 is an important document which shows that a
grant was made in favour of the Farmer's forum for constructing a
training-cum-meeting hall. Exh. P5 is the property register card relating to
the suit property issued by the City Surveyor, Bijapur. This shows that the
property was in the name of the first plaintiff in the year 1965. The
defendants could not produce any satisfactory evidence to prove their title or
possession of this property. The defendants sought to place reliance on a book
written by T.W. Arnold which states about saint 'Peer' Mahabare Khandayat but
the statements made in such books cannot be relied on unless supported by any
contemporaneous records and the trial Court as well as the High Court rightly
declined to take cognizance of the statements made in the said book. As regards
suit property in O.S. No. 4 of 81 also, the plaintiff succeeded in proving the
title and possession.
In
both the appeals, the appellant has raised a common question that these suits
were not maintainable in view of Section 6 of the Wakf Act, 1954 and it was
contended that suits of this nature should have been filed within the period of
one year from the date of publication of the list of Wakf's properties under
sub- section (2) of Section 5. The relevant Section 6 of the Wakf Act 1954
reads as follows:-
"6.
Dispute regarding Wakfs :
(1) If
any question arises [whether a particular property specified as Wakf property
in a list of Wakfs published under sub-section (2) of Section 5 is Wakf
property or not whether a Wakf specified in such list is a Shia Wakf or Sunni Wakf]
the Board or the mutawalli of the Wakf or any person interested therein may
institute a suit in a civil court of competent jurisdiction for the decision of
the question and the decision of the civil court in respect of such matter
shall be final :
Provided
that no such suit shall be entertained by the civil court after the expiry of
one year from the date of the publication of the list of Wakfs under sub-
section (2) of Section 5 :
[Provided
further that in the case of the list of Wakfs relating to any part of the State
and published or purporting to have been published before the commencement of
the Wakf (Amendment) Act, 1969 (38 of 1969), such suit may be entertained by
the civil court within the period of one year from such commencement.]
[Explanation.- For the purposes of this section and Section 6-A, the expression
'any person interested therein', occurring in sub-section (1) of this section
and in sub-section (1) of Section 6-A, shall, in relation to any property
specified as Wakf property in a list of Wakfs published, under sub-section (2)
of Section 5, after the commencement of the Wakf (Amendment) Act, 1984, shall
include also every person who, though not interested in the Wakf concerned, is
interested in such property and to whom a reasonable opportunity had been
afforded to represent his case by notice served on him in that behalf during
the course of the relevant inquiry under Section 4.] (2) x x x x x (3) x x x x x
(4) x x x x x (5) x x x x x" Under Section 6 of the Wakf Act, 1954, it is
stated that if any question arises as to whether a particular property
specified as Wakf property in the list of Wakfs published under sub-section (2)
of Section 5 is Wakf property or not, or whether the Wakf specified therein is
'Shia' Wakf or 'Sunni' Wakf, the Board, or the Muttawalli, or any person
interested therein may institute a suit in a civil court within a period of one
year and the decision of the civil court shall be final.
According
to the appellant's counsel, these suits, having been filed after a period of
one year were not maintainable and they were barred by time. This plea was not
accepted by the High Court, in our view, rightly, as the plaintiff in both
these suits cannot be construed as 'persons interested in the Wakf.' It is
pertinent to note that the Explanation to Section 6(1) was added by Act 69 of
1984. The Explanation is to the effect that the expression 'any person
interested therein', occurring in sub-section (1) of Section 6 and in
sub-section (1) of Section 6-A, shall, in relation to a property specified as Wakf
property in the list of Wakfs published, include every person who, though not
interested in the Wakf concerned, is interested in such property and to whom a
reasonable opportunity had been afforded to represent his case by notice served
on him in that behalf during the course of the relevant inquiry. At the time
when these plaintiffs filed the suits, they were strangers and they were not
interested in the Wakf as such.
The
Explanation added to Section 6(1) can operate against these plaintiffs only
after the insertion of the same in Section 6 of the Act. Prior to the insertion
of the Explanation, a third party claiming independent title over a property,
which is illegally included as Wakf property was entitled to file a suit within
the period provided for under the Law of Limitation. Therefore, the inhibition
provided under Proviso to Section 6 regarding the period of limitation was not
applicable to the plaintiffs at the time when they filed the suits.
Both
the appeals are without any merit and therefore, these are dismissed with
costs.
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