KADIYAM MULLAYYA Vs. DISTRICT JUDGE WEST GODAVARI

JUDGEMENT

(1.) The petitioners are admittedly in possession of the lands, the subjectmatter of the writ petition. The petitioners claim that their predecessors-in- title have been inducted in possession prior to the Wakf Act XXIX of 1954, for short, "The Act", and they have been in possession in their own right as cultivating tenants represented by the landlords. While so, they received a notice from the Collector to handover possession of the land to the Wakf Board. Assailing the legality thereof, the petitioners filed an appeal to the District Judge. Therein it is contended that no prior notice was issued to them so as to enable them to set up their right and that the Collector before issuing an order ought to have given a notice and determine their rights and pass appropriate orders. The failure to follow the above procedure is violative of the right to property. The District Judge did not accept the contention and dismissed the appeal. Against that, the present writ petition has bean filed,

(2.) Sri T. Veerabhadrayya, learned counsel for the petitioners contended that under Section 36-A of the Act, if the lease is granted exceeding three years without previous sanction of the Wakf Board, then the transfer is illegal. The right to recover possession so transferred has been provided under Sec, 36-B of the Act read with Rule 21 of the A.P. Wakf Rules, 1974, for short "The Rules". In this case, there is no order passed by any competent authority declaring it to be Wakf Property. No opportunity was given at any point of time to the petitioners, The order initially passed by the Board which is purported to be implemented by the Collector is illegal. Therefore, the Collector before taking action ought to have issued a notice so that the petitioners could have put forward their independent right. So it is violative of the principles of natural justice or fair procedure affecting the right to property. Sri Syed Sadatullah Hussaini, learned Standing Counsel for the Wakf Board contended that the subject matter of the property has been registered in the register of Wakf as Wakf property. The lease to the petitioners is without sanction of the Wakf Board. Therefore the lease is illagal. As a result, the Wakf Board sent a requisition to the Collector to recover the possession. The Collector issued notice. There is no Rule under which Wakf Board has to issue, notice and there is no need to issue. Therefore, the action taken by the Wakf Board and the Collector are perfectly legal. Under those circumstances, the learned Dist. Judge is correct in holding that the Collector need not issue notice before implementing the requisition issued by the Wakf Board.

(3.) In view of the rival contention, the question for consideration is whether the Wakf Board is justified in Law in sending the requisition to Collector without issuing prior notice to the petitioners and hearing their objections, consideration there of and then pass orders in accordance with law. To appreciate this question it is relevant to extract the relevant provisions. Section 36-A of the Act reads thus: - "Transfer of Immovable property of Wakfs; Notwithstanding anything contained in the Wakf deed, no transfer of any immovable property f a wakf by way of- (i) Sale, gift, mortgage or exchange; or (ii) release for a period exceeding three years in the case of agricultural land, or for a period exceeding one year in the case of non-agricultural land or building, shall be valid without the previous sanction of the Board." Section 36-B reads thus: - "Recovery af Wakf property transferred in contravention of Section 36 A;- (1) If the Board is satisfied, after making an inquiry in such manner as may be prescribed that any immovable property of a Wakf entered as such in the register of wakfs maintained under Section 26, has been transferred witfout the previous sanction of the Board in contravention of the provisions of Sec. 36-A, it may issue a requisition to the Collector within whose jurisdiction the property is situate to obtain and delivery possession of the property to it......... (2) On receipt of a requisition under sub-section (1), the Collector shall pass an order directing the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order. (3) Every order passed under subsection (2) shall be served- (a) by giving or tendering the order or by sending it by post to the person for whom it is intended; or (b) If such person cannot be found by affixing the order on some conspicious part of his last known place of abode or business or by giving or tendering the order to some adult male member or servant of his family or by causing it to be affixed on some conspicuous part of the property to which it relates; Provided that where the person on whom the! order is to Be served is a minor, service upon his guardian or upon any adult male member or servant ef his family shall be deemed to be service upon the minor. (4) Any person aggrieved by the order of the Collector under sub-section (2) may within a period pf thirty days from the date of the service of the order, prefer an appeal to the District Court within wnose jurisdiction the property is situate and the decision of the District Court on such appeal shall be final. Explanation:- In this sub-section, "District Court" means, in any area for which there is a City, Civil Court, that Court, and, in any other area, the principal Civil Court of original jurisdiction. (5) Where an order passed under sub-Section (2) has not been complied with and the time for appealing against such order has expired without an appeal having been preferred or the appeal, if any, preferred within that time has been dismissed, the Collector shall obtain possession of the property in respect of which the order has been made, using such force, if any, as may be necessary for the purpose and deliver it to the Board. (6) In exercising his functions under this Section, the Collector shall be guided by such rules as may be made in this behalf by the State Government.'' Rule 21 of the Rules provides thus: - "Recovery under Sec. 36-B of the Wakf Property transferred in contravention of Sec 36-A :- (a) If the Board is informed by any person by means of an application supported by an affidavit or by any of its subordinate Officer that any immovable property of a Wakf entered as such in the registe of wakf has been transferred in contravention of Sec 36-A or has been unauthorisedly occupied or encroached, the Board shall cause a notice to be issued by registered post to the person occupying the property to hand it over to the Board or to any officer authorised by it within fifteen days from the date of service of the notice. A copy of the notice shall bd affixed on the Notice Board of the Office of the Board and also in any conspicious place in which the property is situate. Such affixture shall be deemed to be sufficient service to all concerned. The Board shall also issue a notice in the manner stated above to the person who has wrongfully alienated the Wakf property in question, (b) The notice issued under sub-rule (a) shall contain sufficient details of the said property and shall allow a week's time within which objections, if any, may be filed. (c) Any objections filed within the time allowed shall be inquired into by the Board. (d) If the Board is satisfied after such inquiry that the property is illegally occupied, the Board shall issue a requisition to the Collector concerned in Form VI to obtain and deliver possession of the property to it. (e) The Collector shall in the manner provided in sub-sections (2), (3) and (5) of Section 36-B obtain the possession of the property and deliver it to the Board or any officer authorised by it in this behalf. (f) ...... (Emphasis supplied) A reading of these provisions clearly indicates that notwithstanding anything contained in the Wakf deed, transfer of immovable property of a wakf by way of lease for a period exceeding three years in the case of agricultural land or one year in the case of non- agricultural land or building without previous sanction of the Beard shall be void as provided in Section 36-A. Procedure has been provided under Section 36-B (1), for recovery of possession of immovable property transferred in contravention of Section 36-A and Rule 21 provides that the information is to be laid by any person, by way of application supported by an affidavit or by any subordinate officer that the immovable property belongs to the VVakf and entered in the Register of Wakf, has been transferred in contravention of Section 30-A or the person is unauthorisedly occupied the land or eneroached upon the same. Then the Board shall cause a notice to be issued by registered post to the person in occupation of the property. Such a notice shall contain necessary material particulars giving one week s time for objections. Rule 21 (c) gives a right to file objections within the time allowed or as may be extended if so required and the Board "shall enquire into the objections and to be satisfied that the person is in illegal occupation, etc". It is thus clear that it is mandatory that the Board shall enquiry into the objection before sending the requisition to the Collector to take possession of the Land pursuant to Section 36-B. The person in occupation may set up his independent right, title or interest in the immovable property de hors the Wakf or Board. Though there is no express provision provided either under Rule 21 or under Sec 36-B (1) to pass an order by the Board after considering the objections in regard to the nature of the right or objection involved or the effect thereof, it is implicit in a reading of all the provisions that an order need to be passed by the Board after considering the objections. If personal hearing is requested, it may also be given. No doubt, the order is not conclusive. It is subject to the right of a civil suit. But before the order is passed, the Board must disclose its reasons for coming to the conclusion that either the property belongs to the wakf or properly entered in the register of wakf or that the person in occupation has been in lawful possession or an encroacher or lease was in contravention of Section 36-A. The consideration of the objections could be discerned from the reasons assigned by the Board. Therefore, passing of a reasoned order is a pre-condition and communication thereof to the effected person is also must before sending the requisition to the District Collector to take possession of the property belonging to the wakf. No doubt the mere sending to the Collector is in the nature of execution to recover possession of the immovable property belonging to the Wakf. But when a notice was given by she Collector under Rule 21 (f), thai the person in possession is bound by the action of the Collector and when there is a right ot appeal provided under Section 36-B(4) to the District Court against an order passed by the Collector under Section 36-B(2), it is also pre supposes that the District Collector also should pass necessary orders, if any objections are raised at the time of execution so that the aggrieved person could assail the correctness thereof by way of an appeal and persuade the District Judge that the order of the Dist Collector is not warranted on facts or may seek some more time to deliver possession pleading extenuating circumstances. The right of appeal is a substantive right and it is not an empty formality. Unless reasons are assigned it is not possible to assail its correctness Unless notice is issued to the person in possession with particulars mentioned in Section 36-B, it is not possible for the person in occupation to object to the action of the District Collector. If the Board conducts enquiry and passes order the scope of objection before the District Collector would be limited to delivery of possession. Therefore the District Collector should issue notice before taking possession; consider the objections, if any and pass appropriate orders. Such an order would be liable to bs corrected by way appeal to the District Court. Otherwise it would be unreasonable, unjust and unfair procedure subversive of fair play in action Under these circumstances, the District Collector has to pass necessary orders before taking possession of the land from the person in occupation. In this case, neither of these two procedures are adopted by either the Board or the District Collector. It is stated by Sri Sadatullah Hussaini that notice was issued to Mutavalli, thereby admitting no notice was issued to the petitioners. Under those circumstances, the orders are clearly illegal. Therefore, the impugned orders are set aside The Wakf Board is directed to issue a notice with material particulars to the petitioners calling upon them to file objections and after issue of notice, the petitioners are at liberty to file objections setting up thair rights and the Board shall consider the same and dispose of the same by an appropriate order. Thereafter the necessary procedure contemplated under Section 36 B(2) and Rule 21 shall follow. The writ petition is accordingly allowed. No costs. Advocate's fee: 350/-.