BOARD OF MUSLIM WAKFS Vs. HADI BEGUM

JUDGEMENT

(1.) In the year 1869, the ruler of the former State of Jaipur made grant of land measuring 25 bighas Kham in the City of Jaipur to late Nawab Zainul Abdin Khan alias Nawab Kallan Khan. Some time later, Nawab Kallan Khan acquired some more land measuring 8 bighas Kham and the entire land measuring 33 bighas Kham was knawn as Bagh Nawab Kallan Khan. A makbara to perpetuate the memory of his wife was constructed by Nawab Kallan Khan in the said Bagh and the late Nawab and his three sons were also buried by the side of the said makbara. A mosque was also constructed in the Bagh. The makbara and the mosque cover an area of 1 bigha and 17 biswas. In 1944, proceedings for acquisition of the land comprised in Bagh Nawab Kallan Khan were initiated under the provisions of Jaipur Land Acquisition Act, 1943. In those. proceedings, the Land Acquisition Officer submitted a report dated October 11, 1944 to the Secretary to the Public Works Department of the former State of Jaipur wherein compensation was proposed in respect of certain constructions existing on the land as regards the rest of the land, it was stated that the question of granting land in exchange to Sahibzada Zafar Jang Khan, the grandson of Nawab Kallan Khan, would be considered after the decision of the Matmi case which was pending in the Revenue Department. It appears that nothing further happened in the matter till 1955 when the Urban Improvement Board, Jaipur started proceedings to sell the land by dividing it in small plots., Sahibzada Zafar Jang Khan filed a Writ Petition (D.D. Civil Writ Petition No. 115 of 1955) in the High Court wherein he claimed that he was in possession of the land in dispute and that the State was threatening to disturb his possession. The said writ petition was contested by the State who claimed that the possession over land in dispute had been taken as far, back as in the year 1945 and the land had vested in the State according to law in view of the acquisition proceedings and that the Urban Improvement Board, Jaipur, was justified in taking steps to sell the land. The said writ petition was decided by the High Court by its judgment dated March 11, 1957. The High Court did not go into the disputed question of fact as to whether the possession of the land had been taken over by the State in the year 1945 as alleged and proceeded to deal with the matter on the assumption that the State had taken possession of the land in dispute on 1945. The High Court was of the view that under the provisions of the Jaipur Land Acquisition Act, the land could vest in the State only under Ss. 16 and 17 and that it was not the case of the State that any action under S. 17 was taken in the case and therefore the only section which could be invoked was S. 16 and that under S. 16 mere taking of possession by the State did not vest the land in the State and it was necessary that the said possession must be taken after an award under S.11. The High Court, therefore, considered the question whether there was an award under S.11. After examining the report of the Land Acquisition Officer dated October 11, 1944, the High Court held that the said report could not be treated as an award under S.11 because it showed that no compensation in the shape of cash or in the shape of land to be given in exchange for the land in dispute was fixed and all that the Land Acquisition Officer did in October, 1944 was to postpone making of the award. The High Court, therefore, held that in spite of the proceedings under the Jaipur Land Acquisition Act, 1943, the land could not be said to have been vested in the State under S. 16. While considering the matter of granting of relief to Sahibzada Zafar Jang Khan, the petitioner in the said writ petition, the High Court observed that the remedy of quashing the proceedings and prohibiting the State from depriving him of the possession of the land could not be granted and all that the petitioner could ask was that the postponed compensation should now be worked out and paid to him. The High Court, therefore, while allowing the writ petition, directed the Collector of Jaipur to work out the compensation under the law and award the same subject to whatever be the result of the Matmi proceedings.

(2.) In the meanwhile, in 1954, the Wakf Act, 1954 (hereinafter referred to as 'the Act') was enacted by Parliament with a view to provide for the better administration and supervision of Wakfs. S. 9 of the Act maices provision for establishment of the Board of Wakfs (hereinafter referred to as the Board) in a State by the State Government. Chapter 11, (comprising Ss. 4 to 8), makes provisions for survey of wakfs. S. 4 provides for preliminary survey of wakfs. Sub-sec. (1) of S. 4 provides for appointment of a Commissioner of Wakfs and Additional or Assistant Commissioner of Wakfs for the purpose of making a survey of wakf properties existing in the State at the date of commencement of the Act. In sub-s. (3) of S. 4, it was provided that the Commissioner shall, after making such enquiry as he may consider necessary, submit his report to the State Government containing the particulars mentioned in Cls. (a) to (f) which, inter alia, include particulars with regard to the gross income of the property comprised in each wakf. Sub-s. (4) of S. 4 provided that the Commissioner shall, while making any inquiry, have the same powers as are vested in a Civil Court under the Code of Civil Procedure in respect of matters specified in Cls. (a) to (f). S. 5 provided for publication of list of wakfs. Under sub-s. (1), the State Government was required to forward the report submitted by the Commissioner under sub-s. (3) of S. 4 to the Board. Sub-s. (2) of S. 5 provided that the Board shall examine the report forwarded to it under sub-s. (1) and publish, in the Official Gazette, a list of wakfs existing in the State. S. 6 deals with disputes regarding wakfs. In sub-s. (1) of S. 6, it was provided that if any question arises whether a particular property is a wakf property or not or 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 rerpect of such matter shall be final. In the proviso to sub-s. (1), it was 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-s. (2) of S. 5. Sub-s. (4) of S. 6 provided that the list of wakfs published in sub-s. (2) of S. 5 shall, unless it is modified in pursuance of a decision of the Civil Court under sub-s. (1), be final and conclusive.

(3.) In 1957, some persons styling themselves as members of the Wakf Committee made an application to the Commissioner of Wakfs stating that the mosque, makbara and the land belonging to Sahibzada Zafar Jang Khan were wakf property. On the said application, the Commissioner of Wakfs summoned Sahibzada Zafar Jang Khan and recorded his statement in which he denied that the property was wakf property and on the strength of the said statement, the Assistant Commissioner of Wakfs came to the conclusion that the said property was not wakf property and the papers were filed on May 19, 1958. Sahibzada Zafar Jang Khan died on October 29, 1959 and after his death the same persons who called themselves the members of the Wakf Committee, again moved the Commissioner of Wakfs to reopen the matter. A notice of that application was served on Smt. Hadi Begum, widow of Sahibzada Zafar Jang Khan and an application was submitted on behalf of the widow before the Commissioner that the property was not wakf property. The Commissioner of Wakfs passed an order requiring the Chairman of the so-called Wakf Committee to produce evidence of the property being wakf property. It appears that an enquiry was conducted by the Commissioner of Wakfs on the question whether the property was wakf property and during the pendency of the said enquiry, the Assistant Commissioner, Devasthan-cum-wakfs, Jaipur Division was appointed as an officer to protect, supervise and manage the properties and to collect the rents and other income accruing therefrom. In pursuance of the said order, the Assistant Commissioner informed all the tenants not to pay the rent to the heirs of Sahibzada Zafar Jang Khan. Feeling aggrieved by the said order of the Assistant Commissioner, the widow and other legal representatives of Shibzada Zafar Jang Khan (hereinafter referred to as' the petitioners') filed a writ petition No. 528 of 1961) in the High Court. During the pendency of the said writ petition, the Commissioner of Wakfs passed an order dated July 9, 1962 holding that the disputed property known as Makbara or Bagh Nawab Kallan Khan comprising 33 Bighas of land and consisting of Mosque, Makbara and graveyard is a wakf property. A second writ petition (No. 334 of 1962) was filed by the petitioners to challenge the validity of the said order dated July 9, 1962. While both these writ petitions were pending, the Board, appellant herein, issued a list of wakf properties in the State under S. 5(2) of the Act on December 2, 1965 wherein the mosque and the Makbara in Bagh Nawab Kallan Khan were shown as wakf property as items Nos. 360 and 361 of the said list. By way of corrigendum the Board issued another list on June 29, 1967 whereby corrections were made in items Nos. 360 and 361 and the words "with land 33 bighas" were added in item No. 361. There upon Writ Petition No. 334 of 1962 was amended by the petitioners and the Board was impleaded as a respondent and in the reliefs, para (ii-A) was added and it was prayed that a writ, direction or order be issued against the respondents ordering them to get the petitioners property ipentioned at Nos. 360 and 361 in the list of wakfs published in the Rajasthan Rajpatra be expunged and deleted therefrom by getting a corrigendum issued in the Rajasthan Rajpatra and it be also declared that the inclusion in the list of wakfs by the respondent and published in theRajasthan Rajpatra dated December 2, 1965 is totally void and ineffective.