ORDER
Anand Byrareddy, J.
1. The counsel for the petitioners and the respondents were heard.
The petition concerns land in survey No. 528/1 of Balaganoor village, Sindanur taluk, Raichur district, measuring about 5.31 acres. It is claimed that the same, along with other properties, was dedicated to petitioner No. 2 and has been duly notified as wakf property in terms of the Wakf Act, 1954, under a Gazette Notification, dated 17-1-1974, of the State Government of Karnataka.
2. The second respondent claiming as the wife of one Nagalingappa is said to have, filed an application under Section 5 of the Karnataka Certain Inams Abolition Act, 1977, before the Land Tribunal, Sindanur, and claimed that in terms of an agreement dated 9-3-1963, executed by one Abdul Khadersab, the erstwhile Mutawalli of the second petitioner, in favour of her husband, she ought to be conferred occupancy rights. The claim was contested by the first petitioner and it was primarily contended that the land could not have been leased out by the Mutawalli, in violation of the Wakf Act, 1954, which prohibited the lease of Wakf property, for any term exceeding three years, without prior permission or sanction of the Karnataka State Wakf Board and that the transaction, in any event would not bind the petitioners. The Tribunal having granted occupancy rights as claimed, notwithstanding the above objection as well as other contentions urged, the present petition is filed challenging the above order.
3. The counsel for the petitioner contends that in terms of Section 5 of the KCIA Act, where the inamdar is a religious institution, it is only the person who is rendering religious services and who also satisfies other conditions prescribed therein, who could be registered as an occupant-in the instant case the applicant did not qualify and therefore the very application was not retainable.
4. It is contended that it is settled law that a mutawalli had no right to register himself as an occupant of the land. Hence, it follows that any person claiming under him cannot also be registered as an occupant. It is further contended that the impugned order is bad in law for the reason that the Tribunal has overlooked the tact that the property is wakf property and a wakf once created is in perpetuity and is not capable of being nullified. The Tribunal has, in having conferred occupancy rights in favour of respondent No. 2, m effect, nullified the wakf which was wholly impermissible. The counsel for the petitioner would therefore urge that the following questions would arise for consideration in the present petition.
1. Whether the provisions of the Karnataka Certain Inams Abolitions Act, 1977 can be made applicable to the properties which have been declared as 'wakf properties'?
2. Whether the provision of the Karnataka Certain Inams Abolitions Act, 1977 is inconsistent with the personal law of Mohammedans relating to wakfs?
3. Whether provisions of the Karnataka Certain Inams Abolitions Act, 1977 are in violation of the fundamental rights guaranteed to religious denominations under Articles 25 and 26 of the Constitution of India?
Elaborating further, it is contended by the counsel for the petitioner that, 'Wakf' means a permanent dedication by a person professing Islam, of any moveable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable. The consequence flowing from creation of wakf is:
a) That the property stands vested with the Almighty;
b) That the wakf/dedicator has relinquished all his rights to intermeddle with the property;
c) The property which is vested with the Almighty is perpetual and permanent;
d) It is only the usufructs of the corpus which can be utilized for religious or charitable purposes as the case may be;
e) It is further well settled that a curator whether called Muthuwali or Sajjadanashin or by any other name, person holding the property would not be owner of the same but would only be the Superintendent or Manager thereof.
5. The Counsel for the petitioner contends that the Tribunal having proceeded to opine that the provisions of the Karnataka Certain Inams Abolitions Act, 1977 would prevail over that of the Wakf Act on the footing that the objects of the Karnataka Land Reforms Act, 1961 and that of the Karnataka Certain Inams Abolitions Act, 1977 being the same, notwithstanding the absence of any provision akin to Section 138 of the Karnataka Land Reforms Act, 1961, the same ought to be read into the Karnataka Certain Inams Abolitions Act, 1977 and therefore, proceeding to hold that the provisions of the Karnataka Certain Inams Abolitions Act, 1977 would take precedence, is erroneous and bad in law. The Counsel seeks to point out that there is no presumption warranted to read Section 138 of the Karnataka Land Reforms Act, 1961 into the Karnataka Certain Inams Abolitions Act, 1977.
6. On facts the Tribunal has found that the name of Nagalingappa is shown as the cultivator in the revenue records, on the appointed date and therefore, stands established and has held that he is entitled for grant of occupancy rights.
7. On the other hand, the Counsel for respondent No. 2 seeks to justify the impugned order.
8. In this background, it is to be seen that there is no dispute that the land in question is Wakf property, duly notified as such, as on 7.1.1974, under the provisions of the Wakf Act, 1954. It is also not in dispute that the claimant was in occupation and in cultivation of the same, claming as an occupant under Section 5 of the Karnataka Certain Inams Abolitions Act, 1977, as on 16.61978, the appointed date under the Act.
9. The right to be registered as an occupant under Section 5 of the Act is that of any of the inamdar or holder of a minor inam And ''Inamdar' under the Karnataka, Certain Inams Abolitions Act, 1977 is defined (in the case of a religious or charitable inam) as the institution owning an inam.
10. In the instant case the claimant was claiming under an agreement executed in the year 1963, by an erstwhile mutawalli in respect of the property. The claim therefore, ought to have been made against the owner of the property. Assuming that the Karnataka State Wakf Board was competent to represent as the owner of the property, it was necessary to consider the effect of the provisions of the Wakf Act, 1954, vis-a-vis the claim under the Karnataka Certain Inams Abolitions Act, 1977. The reasoning of the Tribunal that in the light of Section 138 of the Karnataka Land Reforms Act, 1961, the provisions of Karnataka Certain Inams Abolitions Act, 1977 could be deemed to over ride the provisions of the Wakf Act, 1954 cannot be accepted.
11. The impugned order having been passed in the year 2002 and the application having been filed in the year 1979, notwithstanding whether the provisions of the Wakf Act, 1954 or the provisions of the Wakf Act, 1995 are applied, the validity of the tenancy agreement is subject to the provisions of the Wakf Act. This question has not been addressed nor answered. It is only if the tenancy agreement is held to be valid and lawful that the consideration of a claim for occupation under the provision of the Karnataka Certain Inams Abolitions Act, 1977 would arise.
12. To answer the questions that are raised in the present petition.
a) There is no prohibition to apply the provisions of the Karnataka Certain Inams Abolitions Act, 1977 to properties which are declared as Wakf properties.
13. The provisions of the Karnataka Certain Inams Abolitions Act, 1977 being inconsistent with the personal law of Mohammedans relating to Wakfs is not relevant for the purposes of this case.
14. As the possibility of a lease in respect of Wakf property is contemplated even under the Wakf Act, 1995, the attraction of the provisions of the Karnataka Certain Inams Abolitions Act, 1977 cannot be questioned as being in violation of the Fundamental rights guaranteed to religious denominations under Articles 25 & 26 of the Constitution of India.
15. In the result, on the facts and circumstances of the case, the writ petition is allowed. The order at Annexure 'A' is quashed. The matter is remanded to the Tribunal for a re-consideration on the primary question whether the induction in the first instance and possession of the land by the occupant, was valid and lawful, as on the appointed date. And thereafter to consider the claim for registration as an occupant.