NAMIRA CONSTRUCTION PVT.LTD. Vs. STATE OF BIHAR

JUDGEMENT

(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 fin short 'the Wkaf 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 Mutawalii 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 Mutawalii 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. Thereafter Mr. Faiz Murtaza Ali (intervenor -respondent) was appointed as Mutawalli at the 18/4/2014 Page 21 R.B.S.Construction Pvt.Ltd. Versus State Of Bihar 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 stores and the rest of the built up area will be the builder 'sshare 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.

(3.) 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 per cent of the built -up area, the balance fifty five per cent 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 -l/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.