Mrs. Shazdah Begum Shushtary and Others Vs. the Karnataka Board of Wakfs, Bangalore and Others - Court Judgment

Excerpt:
- constitution of india article 226; [anand byrareddy, j] establishment of petrol bunk prescription of distance of 300 meters between two adjacent fuel stations held, the prescription is in respect of fuel filling stations situated adjacent to each other and not to stations which are on opposite sides of road. there is no minimum distance between such stations on opposite sides of road, prescribed. proposed fuel station of respondent and existing fuel station of petitioner were on either side of a high way. prohibition of distance between two adjoining stations would not apply. - 5. section 44 of the act, lays down that any person interested in a wakf may make an application to the board supported by an affidavit to institute an inquiry relating to the administration of the wakf and if the board is satisfied that there are reasonable grounds for believing that the affairs of the wakf are being mismanaged, it shall take such action thereon as it thinks fit.orders. b. majmudar, c. j.1. appellants before us the original complainants before the wakf board -- respondent no. i herein are invoking the provisions under the wakf act 1954, wakf board is a necessary or proper party. this contention is not accepted by the enquiry officer appointed by the board under section 45( 1 )(b) and his order is confirmed by the learned single judge in the writ petition filed by the appellants against his order. that is how the appellants have filed this appeal. the appellants approached the wakf board under section 44 of the act, for enquiry into the alleged transaction which respondent no. 3 wanted to enter into by way of lease in favor of respondent no. 5. section 44 of the act, lays down that any person interested in a wakf may make an application to the board supported by an affidavit to institute an inquiry relating to the administration of the wakf and if the board is satisfied that there are reasonable grounds for believing that the affairs of the wakf are being mismanaged, it shall take such action thereon as it thinks fit. further, section 45 lays down that : (1) the board may, either on an application, received under section 44 or on its own motion -- (a) hold an inquiry, in such manner as may be prescribed; or (b) authorise any person in this behalf to hold an inquiry into any matter relating to a wakf and take such action as it thinks fit; and that (2) for the purpose of any inquiry under this act, the board or any person authorised by it in this behalf shall have the same powers as are vested in a civil court under the code of civil procedure, 1908 (5 of 1908), for enforcing the attendance of witnesses production of documents.2. mere look at these sections show that the board itself may hold an inquiry or under section 45(1)(b) the board may authorise any person to hold an enquiry in the matter and take such action as it may think fit. it is obvious that the wakf board may have to hold an inquiry on the application of the appellant. instead, it followed the second course under section 45(1)(b) of the act. the authorised person in this case is none other than the number of the wakf committee who will have to hold an enquiry on behalf of the board and submit his report so that the board can take action as it thinks fit exercising powers under section 45(1)(b) of the act. that stage still has not yet reached. the dispute is between the original complainants and the respondent 3 committee. the application of the appellants was rejected by the enquiry officer after hearing both sides holding that the wakf board was neither a necessary nor a proper party to the enquiry proceedings. that order of the enquiry officer was challenged in a writ petition. the learned single judge rejected that writ petition holding that the enquiry officer is an authorised agent of the board and thus the board is neither a necessary nor a proper party to the enquiry proceedings. learned counsel for the petitioners/appellants submitted that the learned single judge has not appreciated sections 57 and 59 of the act. sections 57 ana 59 of me act read as under: '57. notice of suits, etc. by courts. --(1) in every suit or proceeding relating to a title to wakf property or the right of a mutawalli, the court shall issue notice to the board at the cost of the party instituting such suit or proceeding.(2) whenever any wakf property is notified for sale in execution of a decree or a civil court or for recovery of any revenue, cess, rates or taxes due to the government or any local authority, notice shall be given to the board by the court, collector or other person under whose order the sale is notified.(3) in the absence of a notice under sub-section(1), any decree or order passed in the suit or proceeding shall be declared void, if the board, within one month of its coming to know of such suit or proceeding, applies to the court in this behalf.(4) in the absence of a notice under subsection (2), the sale shall be declared void, if the board, within one month of its coming to know of the sale, applies in this behalf of the court or other authority under whose order the sale was held.''59. board to be made a party to a suit or proceeding regarding a wakf on its application. - - in any suit or proceeding in respect of a wakf or any wakf property by or against a stranger to the wakf or any other persons, the board may appear and plead as a party to the suit or proceeding.'the learned counsel tor the appellants also invited our attention to a decision of this court rendered in writ appeals nos. 335 and 354 of 1979 decided on 17th april, 1985.the provisions governing that case have no application to the facts and circumstances of the 'present case. in proceedings under section 92 of the code of civil procedure, if an order is to be passed against the board, the board has to be heard as contemplated under section 57 of the wakf act. even if any other proceeding in respect of wakf property by or against a stranger to the wakf, the board is a proper party. such a situation has not arisen here. these are neither the proceedings under section 92 of the code of civil procedure where section 57 of the wakf act get attracted nor are they directed against the board nor the board has come forward to be joined in the enquiry which is ordered by itself and which is conducted by its authorised officer as its agent. in the circumstances, the aforesaid decision in connection with section 59 of the act has no relevance to the present case. the learned judge has rightly rejected the writ petition.3. it was one of the grievances made by the appellants that the observation made by the enquiry officer that the objections were invited to the proposal and the board has not yet exercised its powers under section 36a of the wakf act, is beyond the scope of the enquiry. it is difficult to countenance this submission made by the learned counsel. lt is obvious that the issues framed in enquiry under section 45, will have to be decided in the light of the evidence that they may be let in by the contesting parties before the enquiry officer and he will have to answer the issues and submit his report to the board; and then the board will take action in the matter. the stage under section 36a has not been submitted to the board under section 36a, cannot at this stage, form subject matter of the enquiry being made under section 45 by an authorised officer of the board.4. hence, there is no substance in the appeal and it is dismissed accordingly.5. appeal dismissed.

Judgment:
ORDER

S. B. Majmudar, C. J.

1. Appellants before us the original complainants before the Wakf Board -- Respondent No. I herein are invoking the provisions under the Wakf Act 1954, Wakf Board is a necessary or proper party. This contention is not accepted by the enquiry officer appointed by the Board under Section 45( 1 )(b) and his order is confirmed by the learned single Judge in the writ petition filed by the appellants against his order. That is how the appellants have filed this appeal. The appellants approached the Wakf Board under Section 44 of the Act, for enquiry into the alleged transaction which respondent No. 3 wanted to enter into by way of lease in favor of respondent No. 5. Section 44 of the Act, lays down that any person interested in a wakf may make an application to the Board supported by an affidavit to institute an inquiry relating to the administration of the wakf and if the Board is satisfied that there are reasonable grounds for believing that the affairs of the wakf are being mismanaged, it shall take such action thereon as it thinks fit. Further, Section 45 lays down that : (1) the Board may, either on an application, received under Section 44 or on its own motion -- (a) hold an inquiry, in such manner as may be prescribed; or (b) authorise any person in this behalf to hold an inquiry into any matter relating to a wakf and take such action as it thinks fit; and that (2) for the purpose of any inquiry under this Act, the Board or any person authorised by it in this behalf shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), for enforcing the attendance of witnesses production of documents.

2. Mere look at these sections show that the Board itself may hold an inquiry or under Section 45(1)(b) the Board may authorise any person to hold an enquiry in the matter and take such action as it may think fit. It is obvious that the Wakf Board may have to hold an inquiry on the application of the appellant. Instead, it followed the second course under Section 45(1)(b) of the Act. The authorised person in this case is none other than the number of the Wakf Committee who will have to hold an enquiry on behalf of the Board and submit his report so that the Board can take action as it thinks fit exercising powers under Section 45(1)(b) of the Act. That stage still has not yet reached. The dispute is between the original complainants and the respondent 3 Committee. The application of the appellants was rejected by the Enquiry Officer after hearing both sides holding that the Wakf Board was neither a necessary nor a proper party to the enquiry proceedings. That order of the Enquiry Officer was challenged in a writ petition. The learned single Judge rejected that writ petition holding that the Enquiry Officer is an authorised agent of the Board and thus the Board is neither a necessary nor a proper party to the enquiry proceedings. Learned counsel for the petitioners/appellants submitted that the learned single Judge has not appreciated Sections 57 and 59 of the Act. Sections 57 ana 59 of me Act read as under:

'57. Notice of suits, etc. by courts. --(1) In every suit or proceeding relating to a title to wakf property or the right of a mutawalli, the court shall issue notice to the Board at the cost of the party instituting such suit or proceeding.

(2) Whenever any wakf property is notified for sale in execution of a decree or a civil court or for recovery of any revenue, cess, rates or taxes due to the Government or any local authority, notice shall be given to the Board by the Court, Collector or other person under whose order the sale is notified.

(3) In the absence of a notice under sub-section(1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the court in this behalf.

(4) In the absence of a notice under subsection (2), the sale shall be declared void, if the Board, within one month of its coming to know of the sale, applies in this behalf of the court or other authority under whose order the sale was held.'

'59. Board to be made a party to a suit or proceeding regarding a wakf on its application. - - In any suit or proceeding in respect of a wakf or any wakf property by or against a stranger to the wakf or any other persons, the Board may appear and plead as a party to the suit or proceeding.'

The learned counsel Tor the appellants also invited our attention to a decision of this Court rendered in Writ Appeals Nos. 335 and 354 of 1979 decided on 17th April, 1985.

The provisions governing that case have no application to the facts and circumstances of the 'present case. In proceedings under Section 92 of the Code of Civil Procedure, if an order is to be passed against the Board, the Board has to be heard as contemplated under Section 57 of the Wakf Act. Even if any other proceeding in respect of wakf property by or against a stranger to the wakf, the Board is a proper party. Such a situation has not arisen here. These are neither the proceedings under Section 92 of the Code of Civil Procedure where Section 57 of the Wakf Act get attracted nor are they directed against the Board nor the Board has come forward to be joined in the enquiry which is ordered by itself and which is conducted by its authorised officer as its agent. In the circumstances, the aforesaid decision in connection with Section 59 of the Act has no relevance to the present case. The learned Judge has rightly rejected the writ petition.

3. It was one of the grievances made by the appellants that the observation made by the Enquiry Officer that the objections were invited to the proposal and the Board has not yet exercised its powers under Section 36A of the Wakf Act, is beyond the scope of the enquiry. It is difficult to countenance this submission made by the learned Counsel. lt is obvious that the issues framed in enquiry under Section 45, will have to be decided in the light of the evidence that they may be let in by the contesting parties before the Enquiry Officer and he will have to answer the issues and submit his report to the Board; and then the Board will take action in the matter. The stage under Section 36A has not been submitted to the Board under Section 36A, cannot at this stage, form subject matter of the enquiry being made under Section 45 by an authorised officer of the Board.

4. Hence, there is no substance in the appeal and it is dismissed accordingly.

5. Appeal dismissed.