ORDER
Ramesh Kumar Datta, J.
1. 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 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.
2. 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 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.
3. 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 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.
4. 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 the developer to the Mutawalli.
5. 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 sought from the Department of Minority Welfare, Government of Bihar but no reply had been received.
6. 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.
7. Thereafter on the basis of the impugned letter dated 25.10.2007(Annexure-7) issued by the Chief Executive Officer of the 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.
8. 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 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.
9. 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.
10. It is also the contention of learned Counsel that there is no statutory requirement of submitting the development agreement for 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.
11. 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 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.
12. 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.
13. 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 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.
14. 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 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.
15. 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.
16. It is further submitted by learned Counsel referring to a letter dated 6.3.2008 of the Chief Executive Officer of the Board to 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.
17. It is urged by learned Counsel for the petitioners that in view of the clear stand taken by the Chief Executive Officer of the 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.
18. 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 v. State of Bihar and 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 tantamount to settlement of property as the same is not even covered by transactions of the nature mentioned in Section 51.
19. 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 wakf in the records of the Wakf Board also.
20. It is urged by learned Counsel that the property in question belongs to the wakf and it is not the property of the Wakf Board, the jurisdiction of which is limited to supervising the wakf. The Wakf Board can interfere only if there is any malfunctioning in the wakf or misuse of its property and not on mere hyper-technical reasons as has been sought to be done in the present matter.
21. In support of his stand that construction of a building over a land does not necessarily involve the transfer of property in the land, learned Counsel for the petitioners relies upon a decision of this Court in the case of Emarat Co-operative Housing Society Ltd. v. The State of Bihar and Ors. 2008(2) PLJR 793, in paras 15 and 16 of which it has been held as follows:
15. There appears to be a common misconception carried by the people. The common law 'English Law' was that anything attached to the earth/soil would form part of the earth/soil. Meaning thereby that the property (title) in the construction made over land would vest with the landlord, whosoever may have constructed the same. This is not a position in India. In India we are governed not by common law or the common law principle but by statute law made in India on the subject. The subject in India is covered by the provisions of Transfer of Property Act, 1882. In the T.P. Act there are provisions which clearly suggests a departure from the English Law on this subject. By way of illustration Section 100(h) of T.P. Act clearly recognize the right of a lessee to have the right over the construction made by him on the lessor's land. This is contrary to the English Law in this regard. This distinction was first noted and decided authoritatively in the case of Narayan Das Khettry v. Jatindra Nath Roy Chowdhry and Ors. since reported in : AIR 1927 Privy Council 135, wherein it was held that the maxim quicquid plantatur solo, solo cedit which means that building so constructed vests in the owner of the land has no application to India.
16. In the case of Laxmipat Singhania v. Larsen and Toubro Ltd. since reported in AIR 1951 Bom 2005, a similar question arose and their Lordships held referring to the decision of the Privy Council (supra) that the said decision was clearly an authority for the proposition that a building can be owned by one man and the land by another in India and that in a case where a lessee puts up a building on a vacant plot of land taken on lease by him although the lessor may be the owner of land, the building belongs to the lessee and not to the lessor (para 3 of the report). The matter came up again before the Apex Court. In the case of Bishan Das and Ors. v. State of Punjab and Ors. since reported in : AIR 1961 SC 1570, the Constitution Bench speaking through S.K. Das, J. held after referring to the decision of the Privy Council (supra) 'these decisions show that a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vests in the owner of the land by the application of the maxim quicquid plantatur solo, solo credit.' The facts before the Apex Court was that the land belonged to the State, with the permission of the State Ramji Das, on behalf of the joint family firm of Faquir Chand Bhagwan Das, built the dharamsala, temple and shops and managed the same during his life time. After his death the petitioners, other members of the joint family, continued the management. On the admitted position the petitioners were held to be not to be trespassers in respect of the dharamsala, temple and shops nor could it be held that the dharamsala, temple and shops belonged to the State. It was held that it was now well settled that the maxim what is annexed to the soil goes with the soil, has not been accepted as an absolute rule of law of this country.
22. Learned Counsel for the intervenor-Mutawalli who has come out in support of the petitioners while adopting the submissions made by learned Counsel for the petitioners submits that the Mutawalli and the petitioners have at all times been anxious to look into any objections made by the Board in the agreement dated 9.9.2002. They have placed their draft agreement on 8.9.2008 before the Board removing all the objections that had till then been raised by the Board either in its counter affidavit or in the course of the submissions before this Court. It is submitted that the same has been rejected by the Board for wholly non est reasons of being barred by the Scheme of Management as the resolution of the Board dated 2.1.2001 is itself barred by the Scheme of Management and further as being contrary to the provisions of Section 51 of the Act. It is contended that Section 51 of the Act speaks of necessity of prior sanction of the Board only with respect to four modes of transfer of property, namely, gift, sale, exchange and mortgage. Even lease is not included therein. It is submitted that the modes of transfer of property referred to in Section 51 have not been defined in the Act but have been dealt with in the Transfer of Property Act, 1882 which gives the definition of each of the said modes of transfer of property. It is submitted that 'gift' has been defined by Section 122 of the Transfer of Property Act as a transfer without consideration; 'sale' has been defined in Section 54 of the said Act as transfer of ownership in exchange for a price paid or promised or part-paid and part-promised; 'exchange' has been defined in Section 118 as when two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only; 'mortgage' has been defined under Section 58 as a transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, etc. It is thus argued that when the Legislature has created specific categories of alienation of property excluding a specific category, namely, lease also mentioned in the Transfer of Property Act, then the intention was to cover only those four forms of transfer recognized in the Transfer of Property Act. It is therefore urged that Section 51 which is the only enactment requiring prior sanction for a transfer of property in the four modes mentioned therein cannot apply to a transaction by way of agreement on conversion by development as the same is not one of the modes of transfer covered by Section 51 of the Act.
23. Learned Counsel for the Mutawalli also supports the present transaction and resolution of the Board on the basis of the provisions of Section 32(4) of the Act. It is submitted that once Section 51 of the Act is not involved at all, there was no need even to approach the Board and to obtain its sanction or approval whether prior or subsequent to entering into the development contract on conversion basis. It was only a matter of courtesy extended to the Board by taking it in confidence and obtaining approval of the development work.
24. With regard to para-9 of the Scheme of Management, it is submitted that the same only prohibits the sale of property or a lease beyond a period of three years. For the same reasons, as with respect to Section 51, it is submitted that the development agreement is not covered by the said prohibition contained in the Scheme of Management.
25. It is further submitted by learned Counsel for the Mutawalli that the huge estate running into 34 kathas situated at a commercial location at Frazer Road, Patna had been encroached upon and the decision to get the development carried out on the property on conversion basis is out and out for the benefit of and for the fulfillment of the objects and purposes of the wakf and the development agreement dated 9.9.2002 was thus in furtherance of the development of the wakf estate. It is urged that duty of the Wakf Board is to carry on the powers of superintendence over the wakf estate so that the objects of the wakf are met and the funds are not misused. Learned Counsel also contends that the Mutawalli has not committed any misconduct and there was never any dishonest conduct on his part or collusion with the petitioners in entering into the development agreement which has itself been done after obtaining prior approval of the Wakf Board. It is further submitted that even on the amount of Rs. 50 lacs received on the basis of the development agreement, the statutory cess has been paid to the Wakf Board.
26. Learned Counsel for the Wakf Board, on the other hand, submits that the entire action of the petitioners and the Mutawalli have been collusive to the detriment of the wakf estate and the Wakf Board. It is firstly claimed that the petitioners being the builders do not have any legal right to make a claim against the Wakf Board and their claim can only be considered on the basis of the development agreement dated 9.9.2002 which has never been approved by the Board. Since the builders have limited contractual rights hence they cannot be permitted to maintain a writ petition seeking relief against the Wakf Board and the writ petition ought to be dismissed on this sole ground.
27. It is the further objection of learned Counsel for the Board that the Mutawalli himself has not come to this Court, rather he has only entered the legal arena by filing intervention petition, all of which shows the conduct and mala fide approach of the builder and the Mutawalli.
28. Learned Counsel also refers to the various disputes regarding the development agreement between the Mutawalli and the petitioner and the cancellation of the agreement and subsequent agreement with another builder with respect to which Title Suit is also pending. He further points out that the Wakf Board had been regularly objecting to the constructions being carried out by the petitioners and through several letters it asked them not to continue with the illegal constructions. It is also pointed out that from the very beginning when the sanction was granted by the PRDA on 22.7.2004 the Wakf Board had been requesting to stop the construction and had also written to the Mutawalli, the District Magistrate and the Superintendent of Police in the same year.
29. It is further submitted by learned Counsel that by the development agreement dated 9.9.2002 the spirit and object of the Wakf Act has been violated. The main contention of learned Counsel, however, is that in para-9 of the Scheme of Management dated 29.11.1970 the Mutawalli has been prohibited from sale of the property. In that view of the matter, even the Wakf Board has no power to approve the sale of the property. In this regard he refers to Section 207 of Mulla's Principles of Mahomedan law which states that the Mutawalli has no power to mortgage, sell or exchange the wakf property.
30. Learned Counsel submits that the provisions of Section 32(4), (5) and (6) lay down the power of the Wakf Board to get developed or develop the wakf property from the finances of the wakf or on the security of the said property, whereas in the present case in the garb of development the wakf property has been sold away which is not permissible. It is stated that 55% of the property having come to the share of the developer in terms of the development agreement amounts to a sale of the same which is impermissible as per the Scheme of Management. It is also the contention of learned Counsel that the procedure prescribed by Rule 49 of the Bihar Wakf Rules, 2002 for leasing out of the Wakf property for shops, building etc. under Sub-section (3) of Section 56 have not been complied with in the present matter.
31. Learned Counsel also raises serious objection to para-7 of the development agreement which provides that with respect to 45% share of the wakf in the property to be developed, a consideration of Rs. 5.5 crores may be taken which is wholly objectionable and amounts to alienation of the property of the wakf.
32. It is lastly submitted by learned Counsel that the Wakf board has inherent right to approve or disapprove the agreement and any construction carried on without getting the agreement approved by the Wakf Board is illegal and further since the Wakf Board has been repeatedly from 2.9.2004 itself asking the petitioners to stop the construction and by not doing so it is the petitioners who had taken the risk in carrying out the construction and on the basis of such illegal construction and under void agreement no relief can be sought in the writ petition.
33. Learned Counsels for the other intervenor-respondents have also supported the stand of the Wakf Board referring to various provisions of the Act and Mulla's Principles of Mahomedan Law that no alienation can be made on wakf property which is what has been done through the development agreement. They have also raised pleas regarding Wakf Board being incompetent to pass resolution dated 2.1.2001 in view of the same being illegally constituted and the prohibition in the interim order dated 23.3.1999 on the Wakf Board to make any settlement of the property. Reliance has also been placed on the decision of the Supreme Court in the case of Markaz Construction v. Sugra Humayun Mirza Wakf and Ors. : AIR 1996 SC 2763.
34. Learned Counsels for the intervenors have also pointed out that under Section 51(2) of the Act before according sanction there must be a Gazette publication of the proposal and only after receipt of objections and suggestions the same has to be considered and then only the Board may accord sanction.
35. I have considered the rival submissions of the parties.
36. So far as the right of the petitioners to maintain the writ petition is concerned, this Court does not find any force in the objections raised by learned Counsel for the respondent-Wakf Board. The. petitioners have not filed the present writ petition for the enforcement of their claims under the development agreement vis--vis the Mutawalli and the wakf and by extension may be the Wakf Board. Rather the petitioners have approached this Court against what according to them is an illegal and unjustified exercise of statutory powers conferred upon the Wakf Board by the Wakf Act, 1995. The petitioners in terms of a development agreement with the Mutawalli having undertaken and invested a huge amount in making the constructions which are practically complete and sold out so far as the builders share of the constructions are concerned, the action of the Wakf Board in getting the construction stopped by invoking their powers and with the aid of authorities of the State can be certainly open to challenge before this Court as the same has nothing to do with the contractual rights of the petitioners vis--vis the Mutawalli or the Board but with the legal justification of the exercise by the Wakf Board of its statutory powers with the aid of the State authorities. Hence, the writ petition is definitely maintainable at the instance of the builders-petitioners.
37. For the reasons stated above, the objection that the Mutawalli alone could have approached this Court and not the builder in the facts and circumstances of the case also cannot have any legs to stand upon as in such circumstances, the builder would have independent right to challenge the action of the Board apart from the right of the Mutawalli to approach the Court.
38. The key issue in the present matter, however, is the objection raised by the respondents regarding the applicability of Section 51 of the Act which requires prior sanction of the Board before any alienation of a property by way of gift, sale, exchange or mortgage and of Clause 9 of the Scheme of Management which prohibits any sale of any wakf property or lease of the same beyond a period of three years. Section 51(1) and (2) which has been relied upon by the learned Counsel is quoted below.
51 Alienation of wakf property without sanction of Board to be void,-(1) Notwithstanding anything contained in the wakf deed, any gift, sale or exchange mortgage of any immovable property which is wakf property, shall be void unless such gift, sale, exchange or mortgage is effected with the prior sanction of the Board:
Provided that no mosque, dargah or khanqah 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 Official Gazette, the particulars relating to the transaction referred to in Sub-section (1) and inviting any objections and suggestions with respect thereto and considering all objections and suggestions, if any, that may be received by it from the concerned mutawalli or any other person interested in the wakf, accord sanction to such transaction if it is of opinion that such transaction is -
(i) necessary or beneficial 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 by public 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 mutawalli or other person, for reasons to be recorded by it in writing, permit such sale to be made otherwise than by public auction, if it is of opinion that it is necessary so to do in the interest of the wakf.
39. Clause 9 of the Scheme of Management of the wakf dated 29.11.1970 is in the following terms:
Neither the Mutawalli nor the Committee shall have the power to sell any property of the Wakf nor to lease out any portion of the land or premises for more than three years but in special circumstances it may be for five years. The Shiya Majlis-E-Awqaf and its members will respect the wishes of the wakifs not to sell the wakf property.
40. Under the Mohammedan law of Wakfs earlier it is provided in Sections 207 and 208 of the Mulla's Principles of Mahomedan Law as follows:
207. Power of Mutawalli to sell or mortgage.- A mutawalli has no power, without the permission of the Court, to mortgage, sell or exchange wakf property or any part thereof, unless he is expressly empowered by the deed of wakf to do so.
208. Power of mutawalli to grant leases.- A mutawalli has no power to grant a lease of wakf property, if it be agricultural, for a term exceeding three years, and, if non-agricultural, for a term exceeding one year-
(a) unless he has been expressly authorized by the deed of wakf to do so;
(b) or, where he has no such authority, unless he has obtained the leave of the Court to do so; such leave may be granted even if the founder has expressly prohibited a lease for a longer term.
41. It is thus evident from the aforesaid that even under the general Mohammedan law the Mutawalli has no power to alienate the wakf property or to grant lease beyond the limited period unless expressly authorized for the same as contained in the deed of wakf. In the said circumstances, any provision in the deed of wakf prohibiting the Mutawalli to make sale of wakf property really amounts to reiteration of what is already prohibited by Mohammedan Law and does not really alter the legal situation and what really matters in a deed of wakf under the general Mohammedan Law is an express empowerment by the deed to the Mutawalli to alienate, mortgage or grant lease of wakf property. Prior to the coming into force of the Wakf Act, it was recognized that the Court exercises the same powers as a Kazi under the Mohammedan Law and by the permission of the Court the Mutawalli may sell, mortgage or lease the wakf property. The Sections of Mulla's Principles of Mahomedan Law quoted above also make it clear that even if the founder expressly prohibited lease for a longer term the Court may grant leave to do so. Thus, the prohibition in the deed of lease is only with respect to the powers of the Mutawalli and did not affect the powers of the Court. Under the Wakf Act, 1954 and now under the present Wakf Act, 1995 the powers of the Court in this regard have been vested in the Wakf Board and therefore even if the deed of wakf prohibits the Mutawalli from making the sale, etc. of wakf property it would be open to the Wakf Board to grant approval for the sale or other forms of alienation. In fact, the overriding statutory powers of the Wakf Board in this regard have been made clear by the opening phrase 'notwithstanding anything contained in the wakf deed' in Section 51 of the Act. It is, thus, evident that the entire submissions of learned Counsels for the respondents that even the Wakf Board has no power to approve the sale of the property since the same is prohibited by para-9 of the Scheme of Management and, therefore, the sanction granted by the Wakf Board by its resolution dated 2.1.2001 is illegal and void being beyond the powers of the Board, is contrary to the legal provisions conferring specific powers upon the Board to grant such approval notwithstanding anything contained in the deed of Wakf. It is true that the Board in granting such approval will consider the wishes of the wakif(s) in this regard but the same does not and cannot act as an absolute prohibition upon the powers of the Board to accord such sanction if it finds such alienation of property to be necessary or beneficial to the wakf. It is accordingly held that a deed of wakf or a Scheme of Management cannot fetter the statutory powers conferred upon the Board by the Parliament to grant such sanction for alienation of wakf property under Section 51 of the Act.
42. The next important issue is whether at the relevant time, i.e., on 2.1.2001 when the sanction for development on conversion basis was granted by the Board, such a development agreement had the effect of a sale, exchange, gift or mortgage of wakf property so as to attract the provisions of Section 51 of the Act and require not only the sanction by the Wakf Board but a sanction in accordance with the procedure laid down in Section 51 since admittedly the procedure laid down under Section 51 was not followed while granting sanction on 2.1.2001. In this regard, it is important to bear in mind the principle applicable under the property laws in India that a building may be owned by one man and land by another, as per the Privy Council decision in Narayan Das Khettry's case (supra) as cited with approval by the Supreme Court in Bishan Das's case (supra) wherein it was held that a building constructed bona fide on the land belonging to others with their permission would not vest in the owner of the land. Thus, permission by the Board to the Mutawalli to get the property developed by a builder on conversion basis so that at least 30000 sq.ft. of the constructed area would be handed over to the wakf for its purposes and the remaining kept by the builder would not ipso facto amount to a sale or transfer of interest in the land of the Wakf to the builder; hence, there being no alienation of land of the nature provided in Section 51 of the Act, there would be no occasion for the application of Section 51 of the Act regarding detailed procedure laid down therein. This Court is, therefore, in agreement with the submission of learned Counsel for the petitioners that the development agreement may not per se amount to a sale, exchange, gift or mortgage of land as it would not necessarily be covered by any of those expressions as defined in the Transfer of Property Act. Thus, the approval granted by the Board on 2.1.2001 for development of the land on conversion basis is not hit by the provisions of Section 51 of the Act and would not, therefore, attract the detailed procedure for such sanction as laid down in Section 51 and cannot therefore be held to be bad for the said reason.
That being the position could it be said, as has been argued by learned Counsels for the petitioners and for the Mutawalli, that the approval of the Board was superfluous and since the transaction was not covered by the provisions of Section 51 of the Act or the prohibition of sale under the Scheme of Management, there was no need of even seeking an approval of the Board before entering into the development agreement or for getting the draft agreement approved by the Board. I do not think that the arguments of the learned Counsels can be permitted to be carried to such length in view of the clear enunciation of Section 32(1) of the Act which vests the general superintendence of wakf estates in the Board whose duty is to so exercise its powers under the Act as to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and purposes for which such wakfs were created or intended. A development agreement with respect to land belonging to a wakf has far reaching consequences on the property and income of the wakf and involves decision of a financial nature of such proportions that if carried out without due superintendence of the Wakf Board may lead to gross misuse and misappropriation of the properties of the wakf by the Mutawalli in collusion with others. Therefore, even if a development agreement would not necessarily come under the purview of the Wakf Act, as was the position at the relevant time when the approval was sought and given, in view of the serious financial consequences involved for the concerned wakf, a proposal for development of a property on conversion basis must be carried out under the superintendence of the Board which would generally mean an approval of the terms and conditions for such development on conversion basis and the ensuring by the Board that the terms and conditions of the development agreement are just, fair and beneficial to the wakf. Thus, this Court is not inclined to accept the submissions of learned Counsels for the petitioners and the Mutawalli that the Board did not have the power to approve the development agreement between the Mutawalli and the petitioners merely because Section 51 of the Act was not attracted.
43. Since I have held that the Board can insist upon approving the terms and conditions of the development agreement and the admitted fact is that the development agreement dated 9.9.2002 was not submitted to the Board immediately and the construction work was undertaken on the basis of the same after getting the plan approved by the PRDA and much later on 23.9.2005 the same was submitted to the Board for approval, can it be said that for the said reason the development agreement itself in its entirety would be a nullity and illegal in the eye of law as argued by learned Counsels for the Wakf Board and the intervenor-respondents, or that it is a mere irregularity and not illegality and, therefore, it can be cured by subsequent approval as argued by learned Counsels for the petitioners and the Mutawalli. Prior to the coming into force of the Wakf Act, 1954 it was the generally accepted proposition by the Courts in India that an alienation of wakf property made without the previous sanction of the Court may be retrospectively confirmed by the Court. It is only under the Wakf Act, 1954 after the insertion of Section 36A by the Amendment Act 34 of 1964 that for the first time with respect to alienations of the nature mentioned in Section 51 the prior approval of the Wakf Board was made a statutory condition. Since the present matter is not covered by Section 51 and furthermore there was already prior approval by the Wakf Board to the Mutawalli to enter into development agreement on conversion basis, it cannot be held that merely because there was no prior approval of the terms and conditions of the development agreement it would be illegal and void ab initio. In the present matter since the basic term laid down in the resolution of approval dated 2.1.2001 was that at least 30,000 sq.ft. of built up area should be allotted to the wakf and it appears from the materials on the record that the 45% share of the wakf in the total built up area exceeds the 30,000 sq.ft. stipulated in the order of approval, there is no basic violation in the development agreement of the terms of the resolution dated 2.1.2001 of the Board. That being so, the other terms and conditions could easily be settled and approved by the Board even subsequently when the agreement dated 9.9.2002 was submitted to it on 23.9.2005. In fact, that appears to have been the view of the Chief Executive Officer of the Board even after the writ petition was filed in his letter dated 6.3.2008 in which he had stated that the Chief Executive Officer of the Board and the Secretary, Minority Welfare Department were competent to approve the redrafted agreement in the interest of wakf in anticipation of approval of the Board which is a mere formality. That also is the correct legal position and not what has been strenuously argued by learned Counsel for the Wakf Board. This Court, therefore, holds that the terms and conditions of the development agreement are open to be approved by the Board and it may do so even now keeping in view the Board's resolution dated 2.1.2001 and the interest of the wakf. At this stage it may also be made clear that the submissions of learned Counsel for the Board that the Wakf Board has inherent right to approve or disapprove the agreement cannot be taken literally as the Wakf Board being a creature of statute has to act in a fair and reasonable manner and its action while approving or disapproving any terms and conditions must not be arbitrary so as to violate the basic postulate of Article 14 of the Constitution.
44. At this stage, it must also be borne in mind that the right of the Wakf Board to approve or disapprove does not extend to the right to choose the builder which appears to be one of the unstated grievance of the Wakf Board considering the vehement argument made on its behalf in Court. It appears from the decision of the Apex Court in Markaz Construction case (supra) cited on behalf of the intervenor-respondents that the choice of contractor should depend more upon the wishes of the Mutawalli and not so much on that of the Wakf Board even in a case where prior approval of the Board for granting long term lease of the property under a development agreement was in issue.
45. It is also clear from the said decision that a development of property through a private builder cannot possibly be held to be not beneficial to the wakf. Even otherwise development agreements with private builders generally have the effect of enhancing the value of the properties in question when the owner himself is not in a position financially or otherwise to undertake the construction, which, is evident from the fact that practically every owner of land in good commercial locations goes for its development on conversion basis as the same has the effect of unlocking the potential of the property in every respect. In the case of a wakf like the present one it would definitely have the effect of increasing its available space and income manifold as compared to what it would be otherwise.
47. This Court also finds substantial force in the submission of learned Counsel for the petitioners with respect to applicability of Section 26 of the Wakf Act. Section 26 is in the following terms:
26. Powers of Chief Executive Officer in respect of orders or resolutions of Board.- Where the Chief Executive Officer considers that an order of resolution passed by the Board-
(a) has not been passed in accordance with the law; or
(b) is in excess of or is an abuse of the powers conferred on the Board by or under this Act or by any other law; or
(c) if implemented, is likely to -
(i) cause financial loss to the Board or to the concerned wakf or to the wakfs generally; or
(ii) lead to a riot or breach of peace; or
(iii) cause danger to human life, health or safety; or
(d) is not beneficial to the Board or to any wakf or to wakfs generally,
he may, before implementing such 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 his objections to the order or resolution, and the decision of the State Government thereon shall be final.
48. It is evident from the said provision that it is not open to She Chief Executive Officer to take a stand contrary to the resolution of the Board or even to have submissions made on his behalf in the Court that any order or resolution of the Board is illegal, null or void when for years together no action has been taken by any Chief Executive Officer of the Board to have such a resolution dealt with in the manner prescribed by Section 26 by placing it before the Board for its reconsideration and if the same is not confirmed by a majority of the members present after such reconsideration to refer the matter to the State Government along with his objections to the order or resolution so that final decision may be rendered by the State Government thereon. It is not the case of the Chief Executive Officer that the said resolution was ever placed before the Board for reconsideration by any Chief Executive Officer of the Board and yet the stand has been taken that the Mutawalli and the builder have acted without any approval of the Board and therefore their actions are illegal and null and void and as a matter of fact, the resolution itself has been vehemently argued as being illegal, null and void by learned Counsel for the Board. The statutory authorities are expected to act in terms of the statute and not guided by every change in the wind, more so, when in the present matter as late as on 6.3.2008 the Chief Executive Officer of the Board was writing to the Mutawalli that the development agreement can be redrafted in consultation with the Board counsel and approved.
49. So far as the arguments of learned Counsel for the respondents on the basis of Rule 49 read with Section 56(3) of the Act is concerned, the same has no application to the facts of the present case as those provisions relate to lease of property of the wakf and the present matter does not at all relate to such transaction.
50. Another submission which needs to be noticed to be rejected is the contention on behalf of the intervenor Mrs. Shahida Hasan that the property in question is part of Hasan Imam Wakf Estate of which she is the Mutawalli. Except for a reference to an inadvertent typographical error made in para 4 of the writ petition, which was subsequently corrected by a supplementary affidavit stating that Fazal Imam Public Charitable and Religious Trust was a part of a wakf created by Mr. Syed Hasan Imam, Bar-at-Law, whereas it is evident from the Scheme of Management and other documents of the Wakf Board and the entire case of the writ petitioners that the wakf in question was created by Mr. Mehdi Imam and is not at all connected with the Hasan Imam Wakf Estate. Apart from relying upon such inadvertent typographical error which has been subsequently corrected by affidavit, no material has been brought on the record by the interveners in support of such contention. It is evident from the records of the Wakf Board that the present wakf is registered separately. Thus there is no force in the submission of the intervenor-respondents and the same can therefore have no relevance for the decision in the present writ petition. The contention is accordingly rejected.
51. Learned Counsels for the respondents have also contended that the resolution of the wakf Board dated 2.1.2001 is of no-consequence in view of the order dated 10.3.1999 passed in CWJC No. 814/98 which was set aside by order dated 23.3.1999 passed in LPA No. 315/99 which contained the statement that the stay will not entitle the appellant to settle the wakf property in favour of any one. So far as the order dated 10.3.1999 is concerned, it relates to constitution of the Board which was held to be without jurisdiction but having been stayed by order dated 23.3.1999 the Board would continue to have legal validity in the eye of law. The Board thus continued to be validly constituted in the eye of law until the LPA was dismissed on 11.9.2007. So far as the present transaction is concerned, this Court is in agreement with the submission of learned Counsel for the petitioners that the same does not amount to a settlement of wakf property in favour of any one, rather it relates to development of property on conversion basis which cannot be considered to be a settlement of property.
52. This Court however, does not accept the contention of learned Counsels for the petitioners and Mutawalli that the development agreement is justified by the provisions of Section 32(4) of the Act. The said provision operates in an entirely different context and empowers the Wakf Board to ascertain from the Mutawalli whether he can execute the development work and on his being found unwilling or incapable of executing the development works, to execute the same with the prior approval of the Government by developing the property from the wakf funds or from the finances which may be raised on the security of the properties of the wakf concerned. The same, therefore, does not at all relate to development on conversion basis under which no capability of the Mutawalli is required at all as in such case it is the third party builder who carries on the development work from his funds and resources on the basis of assured percentage of the built up area in lieu of the trouble and expenses involved in making the constructions. However, it can be said that Section 32(4) of the Act also expects that the property of the wakf which has a feasible potential for development of shopping centre, market, housing flats and the like ought to be developed; but the existence of such a provision of law does not imply that development through third party on conversion basis is prohibited, as there is no such express prohibition in the Act.
53. I must here point out that the issues in this case have been decided on the basis of the law as it existed on the date when the permission was granted by the Board by its resolution dated 2.1.2001 for carrying on the development work on conversion basis and when the development agreement was entered into between the Mutawalli and the petitioners on 2.9.2002 and 9.9.2002. The legal position may not be the same today after the enactment of the Bihar Apartment Ownership Act, 2004 which was brought into force by publication of the Government notification being S.O. 163 dated 25.5.2005 in the official Gazette in the whole of the State of Bihar, as replaced by the repealing and reenacting law, namely, the Bihar Apartment Ownership Act, 2006. Under the said Act it is provided that every person to whom any apartment is allotted, sold or otherwise transferred by the promoter whether before or after the commencement of the Act would become entitled to exclusive ownership or possession of the Apartment and shall also be entitled to such percentage of undivided interest in the common areas and facilities which shall be computed by taking as a basic the value of the Apartment in relation to the value of the property. 'Common areas and facilities' has been defined to mean inter alia, the land on which such building is located. Thus, after the enactment of Bihar Apartment Ownership Act the right to an Apartment in a multi-storied building includes the right to a proportionate share in the land on which such building is located and therefore the development agreement for such land would by operation of law operate at the very least as a sale of that proportion of the land in so far as the area allotted to the builder is concerned. In that view of the matter, now a development agreement on conversion basis in the State of Bihar would in all cases result in alienation of land and thus in relation to a wakf it would be covered by Section 51 of the Act requiring prior approval of the Wakf Board by following the procedure prescribed in the said Section. Even with respect to the present wakf property so far as the Builder's Area is concerned, it appears that under the provisions of the Apartment Ownership Act the right to a proportionate 55% share of the land would now pass on to the owners of the apartments belonging to the builders' share. However, the same cannot affect and make illegal a transaction which was legal at the time when it was entered into and did not involve the invocation of Section 51 of the Act at that time as in the present matter.
54. Any other view of the matter would work grave injustice upon anyone who had entered into a transaction which was valid in law at the time when it was entered and had made huge investment pursuant thereto. It would be highly improper to declare such a transaction illegal on account of the subsequent measures taken by the State Legislature as a welfare measure to protect the interest of the owners of the Apartments.
55. Thus, in the light of what has been discussed and held above, the letter No. 215 dated 25.10.2007 issued by the Chief Executive Officer, Bihar, State Shia Wakf Board, the letters dated 7.11.2007 and 8.11.2007 issued by the Sub-Divisional Officer, Sadar, Patna and the Circle Officer, Sadar, Patna respectively are quashed and the respondents are restrained from interfering with the construction work being completed by the petitioners. The respondents are directed to hand over possession of the building to the petitioners within a period of two weeks from the date of receipt/production of a copy of this order.
56. It is however, made clear that the development agreement dated 9.9.2002 and the fresh draft of the said agreement handed over by the petitioners/Mutawalli to the Wakf Board pursuant to this Court's direction dated 10.9.2008 shall be considered by the competent authorities of the Board