ORDER
1. This application has been placed before me on a difference having arisen between two learned Judges of this Court in respect of the relief claimed by the petitioners by way of quashing an order passed by the Bihar State Sunni Waqf Board (hereinafter referred to as ‘the Board’) under Section 36-B of the Waqf Act of 1954 (hereinafter referred to as ‘the Act’).
2. It is not necessary to state at any length the facts giving rise to the present application, for, they have been set out in the judgment of my learned brother, Ali Ahmad, J. It will be sufficient to state that the petitioners claim
certain lands to have been transferred to them by exchange in the year 1965 by some persons, viz., Ghazanfar Raza Choudhary, Qaiser Raza Choudhary and their mother. These lands are said to have been originally settled with those persons by way of raiyati settlement between the years 1923 and 1927. These lands are alleged to have been the bakasht lands comprised in the tauzi of which the grandfather of the aforesaid Ghazanafar and Quaiser, was the proprietor and in respect of which he had created a Waqf. The Board treating the property as a waqf property and treating it as one transferred to, the petitioners in violation of the provisions of Section 36-A of the Act, asked the Collector in accordance with Section 36-B to get possession of the property delivered to it (Annexure ‘7’). Accordingly the Sub-Divisional Officer issued an order to that effect (Annexure ‘8’).
3. It appears that both the learned Judges who heard this application,
namely, Mr. Justice Shambhu Prasad Singh and Mr. Justice S. Ali Ahmad, were agreed on the point that the Sub-Divisional Officer had no jurisdiction to issue the order aforesaid and as such they directed issuance of a writ quashing that order. In respect of the order of the Board (Annexure-7), however, the two learned Judges, as stated earlier, came to different conclusions. Ahmad, J., rejected the prayer for quashing this, whereas S.P. Singh, J., allowed the prayer.
4. I will do well to state first the findings, which are relevant now, arrived at by the learned two judges. The point urged firstly was that Section 36-B had no application to cases where the property is in the hands of strangers. Ahmad, J., repelled this argument on the ground that the petitioners being transferees from the Mutawallis could not be said to be ‘strangers’. The next question agitated was whether these lands were waqf properties. Ahmad, J., held that it was not possible to decide this issue of fact in this writ proceeding. It was next contended before the learned Judges that the Civil court in a suit filed by the Board in respect of this very property, during the hearing of a receivership application, had held that the lands were not Waqf Properties at all and, therefore, the matter should have been referred under Section 27 (as amended by the schedule to the Act) to the Civil Court. This argument was also repelled by Ahmad, J. He further held that it was
open to the Board to make an enquiry under Section 36-B and in the present case the Board, seemed to be satisfied after making enquiry in the prescribed manner that the properties were waqf properties and as such action under Section 36-B of the Act was not bad on that account. Shambhu Prasad Singh, J., did not give any specific findings on these points.
5. The contention in respect of which there was a clear difference of opinion between the two learned Judges was that unless a property was entered as a waqf property in the Register of Waqfs maintained under Section 26 of the Act, an order could not be passed under Section 36-B of the Act in respect of it. Ahmad, J., repelled this argument whereas Shambhu Prasad Singh, J., accepted it. The learned Judges, however, proceeded on the footing that in the present case the lands in question were not specifically entered in the register as required under Section 26 of the Act. Ahmad, J., held that if the waqf is registered as such, it should be enough to attract the operation of Section 36-B. The reasons which he has given for coming to that conclusion are as follows. Firstly, that the intention of the Legislature being to preserve the properties of & waqf and to make its recovery easy without going through the complicated process of civil suits, the wordings of Section 36-B must be so interpreted as to mean that the requirement thereof was only the registration of the waqf in the register under Section 26 and not the entry therein, of the property as waqf property. Secondly, he has said that the registration of waqf is mandatory and final, but not so thereof the entries in that register which can be amended in view of the provisions of Section 28.
6. Shambhu Prasad Singh, J., however, came to the conclusion that the wordings of Section 36-B clearly pointed that the property must be mentioned as waqf property in the Register of Waqfs maintained under Section 26 and a mere registration of the waqf would not be enough to attract the operation of Section 36-B of the Act. He relied on the wordings of Section 26 requiring the particulars of waqf properties and Section 27 (1) (as in the schedule to the Act), for coming to this conclusion. He further found that Section 28 of the Act could not be relied on for corning to the conclusion to which brother Ahmad came. In his opinion further there being no provision for
any appeal against the order of the Board under Section 36-B the Legislature could not have intended to allow this order to go unchallenged, which would be the result if the interpretation put by Ahmed, J., on Section 36-B were to be accepted. He held that once there is a dispute in respect of the question whether the property is a waqf property and it is not entered as waqf property in the register under Section 26 of the Act, the Board has no jurisdiction to issue a requisition to the Collector under Section 36-B of the Act.
7. It is not necessary for me to
quote the relevant sections, for, they have all been reproduced in the judgment of brother Shambhu Prasad Singh. In order, however, to find out, the correct interpretation of Section 36-B I would like to begin with the definition of “waqf” which is to be found in Section 3 (1) of the Act, according to which “waqf” means “the permanent dedication by a person professing Islam of any moveable or immoveable property for any purpose recognised by the Muslim law as pious, religious or charitable………” It is thus
to be borne in mind that the true meaning of the word “waqf” is ‘dedication of property’. It is not to be confused with an organisation or institution bearing the name of “waqf”. The conception of “waqf’ is, therefore, inextricably allied with a property. There is thus no waqf without a property. Next we find that the Act according to its preamble is an Act to provide for the better administration and supervision of waqf. Obviously it can mean nothing other than the better administration and supervision of properties which are the subject-matter of permanent dedication. I will now do well to examine the scheme of the Act. The definition of a Mutawalli given in Section 3 (f) includes any person or committee for the time being Managing or administering any waqf property as such. Next we find that in Chapter II of the Act, relating to survey of Waqfs, Section 4 provides for “a survey of waqf properties existing in the State”. Sub-section (3) of this section requires the Commissioner to submit a report amongst other things in respect of the gross income of the property comprised in each waqf (Clause C) and the amount of land revenue, cesses, rates and taxes payable in respect of such property (Clause d). The next section, Section 5 provides for a publication of list of waqfs existing in the State “containing such particulars
as may be prescribed”. Section 6 provides for a case where there is dispute regarding waqf. It lays down that “if any question arises whether a particular property specified as waqf property in a list of waqfs published under Sub-section (2) of Section 5 is a waqf property or not or whether a waqf specified in such list is a Shia Waqf or Sunni Waqf, the Board or the Mutwalli of the Waqf 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 respect of such matter shall be final ………”
A reading of Sections 5 and 6 together would show that the list of waqfs published under Sub-section (2) of Section 5 should contain a list of the properties of the waqfs and if any dispute arises as to whether a particular property specified therein is a waqf property or not, the question has to be decided by a civil court.
8. We may now turn to Chap. III.
According to Section 9 (1-A) if the Shia Wakfs in any State constitute in number more than 15% of all the waqfs in the State or “if the income of the properties of the Shia Waqfs in the State constitutes more than 15% of the total income of the properties of all the waqfs in the State, the State Government may establish a Board of Waqfs, each for Sunni Waqfs and for Shia Waqfs and in such a case the provisions of the Act shall have effect as if the amendments specified in the schedule have been made”. The amendment in the schedule includes a substituted Section 27. I will now come to the provisions which deal with establishment of Boards and their functions. The functions of the Board which are enumerated in Section 15 of the Act include “to ensure that the income and other property of waqfs are applied to the objects and for the purpose for which such waqf was created (Clause (b) of Sub-section (2)), to take measures for the recovery of lost properties of any waqf (Clause (h) of Sub-section (2)), to sanction in accordance with the Muslim law any transfer of immovable property of a Waqf (Clause (j)), to call for returns etc., with respect to the waqf property (Clause (1)) and to inspect or cause inspection of waqf properties (Clause (n)).”
9. We now turn to Chapter IV dealing with registration of waqfs. Section 25 requires registration of waqf at the office of the Board. Sub-section (2)
thereof provides for application to be made by the Mutwalli and other persons mentioned therein. Sub-section (3) provides that an application shall contain certain particulars including (a) the description of the waqf properties sufficient for the identification thereof and the gross annual income from such properties (Clause (b)). Sub-section (7) provides that the Board may make enquiries regarding the genuineness and validity of the application and the correctness of the particulars. Then comes Section 26 which says that the Board shall maintain a Register of Waqfs which shall contain amongst other things particulars of all waqf properties and all title deeds and documents relating thereto (Clause (d)). Reading these two sections it is obvious that the result of an application made under Section 25 and the registration of a waqf thereunder leads to the result that a Register of Waqfs is prepared which must contain, in view of Clause (d), the particulars of all waqf properties. Next, Section 27 (unamended) provides that the Board may itself collect information regarding any property which it has reason to believe to be waqf property and if any question arises whether a particular property is a waqf property or not or whether a waqf is a Sunni Waqf or a Shia Waqf, it may after making such enquiries as it may deem fit, decide the question and the decision of the Board on such a question would be final unless revoked or modified by a civil court. Section 28 next provides that the “Board” may direct the Mutawalli to apply for the registration of a waqf or to supply any information regarding a waqf or may itself cause the waqf to be registered or may at any time amend the Register of Waqfs. Again, reading Sections 25 to 28 together it is further obvious that apart from the informations given by the Mutwalli or other persons regarding properties of a Waqf the Board can itself collect information regarding such properties and if there is a dispute whether such a property is a waqf property, it can decide the matter subject to the decision of the Civil Court. In the State of Bihar, however, it is the amended Section 27 which has application. According to that section which is to be found in the schedule of the Act, if such a dispute arises the Board has to refer the question to a civil court of a competent jurisdiction. In other words, the Board has no jurisdiction to decide the matter which it would have had the amended Section 27 not
been applicable to this state. According to Section 28 again, the Board may direct a Mutwalli of Waqf to apply for registration. As I have said earlier, registration of a waqf includes, in view of Section 26, the registration of properties of a waqf. Thus, when Section 28 allows the Board to amend the Register of Waqfs the amendment may be either in respect of the nature of the waqf whether it is Shia or Sunni, it may be in respect of the name of the waqf, for instance, whether it is an Idgah or a Khanquah or a mosque or it may be in respect of the properties of the waqf.
10. Chapter V of the Act deals with Mutwallis and Waqf accounts. Section 36-A provides that no transfer of any immoveable property of a waqf by way of sale, gift, mortgage or exchange or lease 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. Then comes Section 36-B. Without going into the question at the present moment whether it requires the property to be included in the register or not, it may be said that it provides that if the Board is satisfied after making any enquiry in such manner as may be prescribed that any immoveable property of a waqf has been transferred without the previous sanction of the Board in contravention of the provisions of Section 36-A, it may send a requisition to the Collector to obtain and deliver possession of the property to it. The Collector has then to pass an order directing the person in possession of the property to deliver the property to the Board. Under Sub-section (4) the persons aggrieved by the order of the Collector many prefer an appeal.
11. It will thus appear from the provisions of the Act apart from what I have said in respect of the definition of the term “Waqf”, that the Legislature has at all relevant points of time required the specification of the property of a waqf. This is required at the time of preliminary survey of waqfs under Section 4, publication of the waqf under Section 5, the establishment of a Board under Section 9, application for registration of a waqf under Section 25, the preparation of the Register of Waqfs under Section 26 and the decision of the dispute relating to a property under Section 27. In this background Section 36-B has to be interpreted.
12. Before I do so it will be relevant to point out the wordings of Section 36-A. This section invalidates transfer “of any immoveable property of a waqf” (underlining (here into quotation) mine). Section 36-B also relates to “any immoveable property of a waqf”. These words are, however, followed by the words “entered as such in the Register of Waqfs maintained under Section 26”. The point of difference between the two learned Judges is on the interpretation of the words “entered as such” and whether these words qualify the words “immovable property” or the word “waqf”. In my view, the question can best be answered by finding out what has to be maintained under Section 26, because the words “entered as such” are further qualified by the words “in the register of waqfs maintained under Section 26”. Therefore, the pertinent question is to ask one as to what is the nature of the register maintained under Section 26. As I have said earlier, the answer is obvious. Section 26 provides a Register of Waqfs which contains particulars of the properties of the waqfs. To my mind “Register of Waqfs”, in view of the definition of the word “waqf”, can only mean a register of properties permanently dedicated for religious or charitable purpose. As I have said earlier, a waqf is not an organisation nor is it an institution. It is a dedication of property for pious and charitable purposes. Can one imagine mentioning a ‘waqf without mentioning the property which itself is the subject-matter of dedication ? Can one speak of dedication without speaking of the property which is the subject-matter of dedication? The Register of Waqfs maintained under Section 26 is as explicitly required must contain the particulars of all waqf properties. I regret that I am unable to agree with brother Ahmad that the requirement of Section 36-B is that the name of the waqf should be mentioned in the register and not the property. With great respect, as I have pointed out, the words “entered as such” are qualified by the words “Register of Waqfs maintained under Section 26.” The Register maintained, under Section 26, therefore, is not to contain the name of the waqf but the property of the waqf. If Section 36-B were to be construed in this background it would be apparent that the immoveable property of the waqf must be entered as such and not that the waqf should be entered as such.
I find myself in respectful agreement with brother Shambhu Prasad Singh that there would be no point in the Legislature saying that the waqf should be “entered as such”. The register under Section 26 is the Register of waqfs. It will not contain any thing other than waqfs. Therefore, there is no question of any thing being entered therein except as a waqf. Therefore, the words “entered as such” could not qualify the word “waqf”. They could only qualify the words “immoveable property” and this interpretation is meaningful. The other interpretation, with very great respect, will not give meaning to the provision of Section 36-B. Surely, the Board does not have to requisition any property other than a waqf property under Section 36-B, because that must be a property of the waqf which has been transferred in violation of Section 36-A. That is the requirement of both Sections 36-A and 36-B. Therefore, the Board could act only if it found that such an immoveable property was entered as such in the Register of Waqfs. If the property is not entered as such, then there would be no guarantee that the Board was asking for a delivery of a property belonging to the waqf. A summary method of recovery of property has been provided for. The Legislature must be deemed to have taken due caution in granting this power. Could it be that the Legislature intended that the Board could requisition delivery of any property about which it may have a suspicion that it might be a property of the waqf ? If that were so, there would be no provision like Section 27. It seems to me that where the properties are not enumerated as properties of the waqf under Section 26 the Board has been given the right to collect information under Section 27 and to come to a decision and if it comes to the decision that it is waqf property it has power to amend the register under Section 28. It will be only after this stage is reached, in other words, when the property is mentioned as a waqf property in the register after the amendment under Section 28, that the Board may exercise the power given under Section 36-B and not till then. If the amended Section 27 applies, as it does in this state, once the Board collects information and if there is a dispute with regard to the property being a waqf property, it has got to refer it to the civil court and not until the decision is given by the civil court, can it be treated to be a property of the waqf and, therefore, the provision of Section 36-B
cannot be utilised by the Board till then. It seems to me, therefore, clear that the words “entered as such” qualify the words immovable property and not the word “waqf”. I would, therefore, come to the conclusion that the property in respect of which the requisition may be issued by the Board must be a property entered in the register maintained under Section 26 and in the absence thereof the Board has no jurisdiction to issue a requisition under Section 36-B.
13. With very great respect I am unable to agree with the two reasons given by brother Ahmad for coming to his conclusion. As I have pointed out, firstly he has said that the register under Section 26 is final with respect of the “Waqf” but not in respect of other entries, namely, the properties which can be amended under Section 28 of the Act. In my view, Section 28 not merely enables the Board to make an amendment in respect of properties alone but it gives the Board the Power to amend it in respect of any other particular. It may be in respect of the nature of the waqf, the name of the waqf or in respect of the property of the waqf. The words of Section 28 are too general and, inter alia, it lays down that the Board may direct a Mutwalli to supply any information regarding a waqf and may at any time amend the Register of Waqfs. Therefore, there is nothing sacrosanct about “the waqf”. In fact, it will appear from Section 26 itself that the Register of Waqfs is not required to contain any name of the waqf, but the class of the waqf, name of the Mutawalli, rule of succession particulars of waqf property and title deeds, particulars of scheme of administration, or such other particulars as may be prescribed. Therefore, the mere mention of the name of a waqf is not the requirement of Section 26 and would be meaningless unless the other particulars are also entered in the register, most important of them being the particulars of the waqf properties. I am, therefore, unable to find anything in Section 28 which would lend support to the interpretation put upon Section 36-B by brother Ahmad.
14. In view of what I have said it is not necessary for me to go into the question as brother Shambhu Prasad Singh has done, whether or not the appeal provided for under Sub-section (4) of Section 36-B is against the order of the Collector with a limited scope or not.
15. In view of the aforesaid, so far as the present case is concerned, it has to be decided on the footing that the lands in question were not entered as such in any Register of Waqfs maintained under Section 26 of the Act. In fact, the present Act came to be applied to this State of Bihar in April, 1973. Before that, there was in force the Bihar Waqfs Act, 1947. A Register of Waqfs had to be maintained even under Section 33 of the said Act. Under Section 57 of that Act the Mutwalli was required to furnish particulars of Waqf in a prescribed form. The Bihar Waqf Rules, 1956, framed under the rule-making power of the State Government under Section 79 of that Act provide in Rule 11 that the particulars to be given shall be contained in Form 1 (which is to be found as a schedule to the rules). This form also requires “details of property held by waqf”. It will thus appear that the details of the present -disputed property must be deemed not to have been given even under the law as it obtained in this State at the relevant time. Thus, the powers of the Board under Section 36-B could not be exercised in respect of the lands in dispute in the present case. The order of the Board must, therefore, be held to be without jurisdiction.
16. I would, however, like to add a few more reasons for coming to this conclusion. The first one is that Section 36-B requires the Board to make an enquiry in such manner as may be prescribed. It is well known that “prescribed” means prescribed by rules and the word is so defined in Section 3 (1) of the Act. It appears that the Rules framed under Section 36-B were themselves published in the gazette on the 2nd November, 1974. These Rules were to come into force with effect from the date of their publication in the Bihar Gazette. Thus, they would be deemed to have come in force on the 2nd of November, 1974. It appears, however, that the impugned order (Annexure ‘7’) was passed on the 23rd of August, 1973, obviously, much before the coming into force of the Rules prescribing the manner of enquiry under Section 36-B. It is obvious that the enquiry is a condition precedent to the satisfaction of the Board with regard to the property having been transferred in contravention of Section 36-A, By no stretch of imagination can it be argued that without holding such an enquiry the Board could have exercised the power under Section 36-B nor can it be urged
that there could have been an enquiry as envisaged under Section 36-B unless it were in accordance with the rules. The rules not having been framed or come into force at the relevant date, obviously there was no enquiry by the Board as required under Section 36-B. It seems that this aspect of the matter was not drawn attention to. On this ground alone apart from any other, the order of the Board contained in Annexure 7 has got to be quashed.
17. There is another aspect of the matter, viz., whether there has been any enquiry worth the name in this case before the Board purported to exercise its power under Section 36-B. Admittedly no notice was issued to the petitioners even though the fact was known to the Board that they had raised a dispute to the effect that the lands in question were not waqf properties. This fact had come to light when the petitioners had raised the point during the pendency of the title suit and the civil court had in the interlocutory proceeding regarding receivership, held it to be a property not belonging to the waqf. There is no escape from the conclusion thus that the petitioners were not given a chance of hearing, deliberately, even though they had laid their claim to the property in question. It appears from the order itself that enquiries were made from all and sundry and not from the person who claims an interest in the property in his own right. Even though the rules in respect of enquiry under Section 36-B came to be in force subsequently, it can be looked into for the purpose of finding out whether the rule-making authority could have desired an arbitrary exercise of the powers under Section 36-B by the Board. Rule 19 of the Rules which came into force on the 2nd. November, 1974 requires notice to the person concerned, enquiry, evidence and report to the Board. Apart from the requirement of these Rules, when any Tribunal is exercising judicial or quasi-judicial functions it has to conform to the elementary rules of natural justice. When the Board was deciding the question as to whether the property belongs to a waqf and has been illegally transferred, it could not but be exercising a quasi-judicial function. The minimum necessity therefor was to give notice to the petitioners and to give them a proper hearing before exercising the power of requisition. The order under Section 36-B is, therefore, in clear violation of the elementary principles of
natural justice. No authority is needed for the proposition that these principles have an application in the domain of quasi-judicial functions. Recent decisions of the Supreme Court have extended their application even to the domain of administrative orders. In the present case, therefore, it is crystal clear that the impugned order was passed in violation of the rules of natural justice and on that ground also it has to be quashed.
18. It is not necessary for me in view of what I have said above to go into the various other questions raised by Mr. J.C. Sinha appearing for the petitioners. In fairness to him, however, I would do well to mention them. Firstly, he laid great stress on the point that Sections 36-A and 36-B of the Act came to be applied to Bihar in April, 1973, but in the present case the transfer at the initial stage had been made by the Mutwalli in favour of the original settlees, the vendors of the petitioners, and subsequently to the petitioners in the year 1965 when Section 36-A was not on the statute book. It has been said that this provision creates an absolute bar to the right of transfer without the permission of the Board and the law obtaining in the year 1965 was the Bihar Waqf Act of 1947, Section 43 of which enabled a transfer by the Mutwallis without previous sanction in case the waqf deed itself granted an express power of such transfer. It has been urged by him that in the present case the right to settle bakasht and waste lands with the tenant is expressly given by the document creating the waqf which is to be found in Annexure ‘1’. He relied on the decision in the case of Radhakishan v. State of Rajasthan, (AIR 1967 Raj 1) for the proposition that the provision is not retrospective. Secondly, he urged that once the property had come into the hands of the stranger to the waqf, Section 36-B would have no application because the Act can control only the persons who are parties to the waqf or interested therein. For this proposition also he relied on the decision in AIR 1967 Raj 1 (supra) and the Corporation of the City of Bangalore v. Mysore State Board of Waqfs, (AIR 1973 Mys 189). Thirdly, he urged that the vendors of these petitioners were not in fact Mutawallis at the relevant time.
19. In the result, I find myself in respectful agreement with the view of brother Shambhu Prasad Singh that the
order of the Board in Annexure ‘7’ has got to be quashed. I would order accordingly. Let a writ be issued quashing the order aforesaid.