MARKAZ CONSTRUCTIONS Vs. SUGRA HUMAYUN MIRZA WAKF

JUDGEMENT

(1.) These writ appeals arise from the common order of S. V. Maruthi J., setting aside G.O.Ms.No. 29, Minorities Welfare (wakf) Department, dated 30-6-1994 and granting consequential reliefs. The crux of the case was that the mutawalli of Sugra Humayun Mirza Wakf sent up a proposal by Sri Vallabh Leasing and Finance Private Limited (for short 'Vallabh finance') for developing its property, for the approval of the wakf board, but another offer given by M/s. Markaz construction was entertained by the wakfboard and sanctioned with the permission of the Government granted in the said G.O. The mutawalli filed writ petition No. 12845 of 1994 questioning the power of the wakf board to entertain and sanction a different proposal than that given by the mutawalli, while Vallabh Finance also filed writ petition No. 13566 of 1994 challenging the power of the Government to approve that proposal. The learned single Judge held that the wakf board had no p ower to deal with the property of the wakf directly and hence, the impugned order was required to be quashed and, consequently, the writ petition filed by Vallabh Finance was allowed. Thereupon, Markaz Construction filed two writ appeals No. 1020 and 1021 of 1995 against the common order in the two writ petitions while the wakfboard filed two writ appeals No. 1265 and 1266 of 1995 against the same common order.

(2.) All the appeals were heard together. The learned counsel for the appellant-Markaz Construction submitted that the power of supervision granted under Section 15 of the Wakf Act, 1954 (for short 'the Act') read with Rule 12 of the Rules was wide enough to show that in the interests of public the wakf property is developed to the good of the institution and where the mutawalli had not advertised the proposal, the wakfboard was entitled to advertise and entertain a better offer. It was submitted that even though the order was not happily worded, properly understood it only meant that sanction was given to Mutawalli to enter into agreement with Markaz Construction on better terms than with that of Vallabh Finance, particularly when Markaz Construction had, in anticipation, obtained possession of the property from a recalcitrant tenant. It was also argued that Vallabh Finance had retired from the race and, therefore, the learned single Judge was in error in assuming that Vallabh Finance was denied an opportunity to contest the matter. The learned counsel for Markaz Construction, therefore, submitted that on a proper construction of the provisions of the Act and aproperreading of the impugned GO., considering that any technical defect was curable, there was no necessity for quashing the order and hence, the order of the learned single Judge should be set aside.

(3.) The learned counsel for the wakf board submitted that the mutawalli was subject to the directions given by the wakf board in all matters, and the functions of the wakf board were subject to the approval of the Government under a circular dated 22-10-1980 and hence, the impugned G.O., was made within the statutory norms and they are not liable to be interfered with. It was also submitted that one of the objects of wakfs being the provision of sustenance to the members of the muslim community, the grant of the contract to Markaz Contraction in preference to Vallabh Finance was in furtherance of the objects of the wakf. The learned counsel for the mutawalli submitted that the wakf board had completely sidelined the mutawalli inspite of the fact that the property had vested in the said mutawalli and the wakf board had only a supervisory role, It was further submitted that since the mutawalli had to deal with the contractor even if the wakf board had no power to entertain counter-offers, the sanctioning of such an offer without notice to the mutawalli was vitiated by the failure to follow the principles of natural justice, even if it were not to be considered to be in excess of the powers of supervision. Thelearned counsel also challenged the validity of the circular providing for approval by the Government, on the ground that the wakf board was exercising its statutory functions, which could not be subject to the Government control. The learned counsel submitted that the entire proceedings show that there was non-application of mind inasmuch as even the description of the property was inaccurate and the wakf board functioned as if it was granting a contract instead of sanctioning the contract proposed by the mutawalli. The learned counsel appearing for Vallabh Finance submitted that it was also entitled to an opportunity to meet any bid made by Markaz Construction even if such a bid could be entertained by the wakf board directly superseding the mutawalli and hence, it was submitted that once the sanction given to Markaz Construction is set aside by the learned single Judge, it followed that the proposal of the mutawalli for giving the contract to Vallabh Finance became worthy of approval.