JUDGMENT
Kan Singh, J.
1. This is a writ petition under Article 226 of the Constitution by one Mohammad Abdul Baqi Khan and by it he seeks to question the jurisdiction of the Rajasthan Board of Muslim Wakfs to take proceedings against him under Section 27 of the Wakf Act, 1954 (No. 29 of 1954 hereinafter to be referred as the Act). He also questions the appointment of certain members of the Wakf Board, respondents Nos. 2 to 4, as members of the Judicial Committee of the Board and he prays for quashing the various orders passed by the aforesaid Judicial Committee.
2. The relevant facts emerging from the writ petition are briefly these: The petitioner claims to be the ex-Jagirdar of
Jagar in the former Jaipur State. According to him, besides the village Jagar, his ancestors were granted two plots of land contiguous to each other in the city of Jaipur. One plot measured 9 Bighas and 14 Biswas and this was said to be Inam land. The other plot measured 11 Bighas and 17 Biswas and it was said to be a Muafi land. Sometime in the year 1942-43 the former Jaipur State acquired some portions of these plots for the Maharani Gayatri Devi Girls Public School and compensation was paid to the petitioner for the lands acquired. The remaining portion of the land together with buildings attached to it is known as Jagar House. According to the petitioner, this property was a State grant and was in continuous possession of the petitioner’s ancestors and the petitioner.
This State grant is said to be subject to the recognition of succession locally known as ‘Matmi’ on the death of each holder of the jagir. According to the petitioner, ‘Matmi’ came to be granted in his favour under Council Resolution No. 10 of 23rd June, 1938 vide Ex. 1. The petitioner’s jagir was resumed with effect from 1st August, 1954 under the Rajas-than Land Reforms and Resumption of Jagirs Act, 1952. After the resumption of the jagir, the petitioner applied for declaring the Jagar House as his personal property and according to him under Section 23 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, this property was declared to be his personal property (vide order of the Jagir Commissioner Ex. 2).
3. The Act came into force In the State of Rajasthan on 1st February, 1955. The Wakf Commissioner then issued a notice under Section 4 of the Act to the petitioner and after an inquiry the Wakf Commissioner came to the conclusion that the Jagar House was a State grant and being inalienable in nature could not be the subject of a Wakf with the result that it would not be included in the list of Wakfs to be prepared by the Wakf Commissioner. The petitioner’s grievance is that in spite of this order of the Wakf Commissioner, the Secretary, Rajasthan Board of Muslims Wakfs served a notice on him on 28th May, 1963, purporting to be one under Section 27 of the Act saying that there was reason to believe that the Jagar House with its appurtenant property namely houses, shops and Bagh, was Wakf property, and it was, therefore, necessary to hold an inquiry.
The petitioner submitted a reply to this notice and in doing so he questioned the jurisdiction of the Board to hold an inquiry. The Chairman of the Board, however, by his order dated 23rd June, 1965, turned down the petitioner’s objection regarding want of jurisdiction in the Board. The petitioner then moved a writ
petition in this Court against the order of the Chairman dated 23rd June, 1965. (Ex. 6). This writ petition having been dismissed in default, the petitioner moved another writ petition after he was not successful in having his earlier writ petition restored. This second writ petition, was summarily rejected by this Court on 22nd October, 1965.
It appears that by that time the list of Wakfs had not been published but on 2nd December, 1965, a list of all the Wakfs existing in the State of Rajasthan was published. This list did not include the disputed property namely the Jagar House. After the dismissal of the writ petition, the Board commenced the in-quiry and the petitioner filed his written statement.
4. The Board then framed four issues which were as follows:–
“(1) Whether the property in question is Wakf and if so, who dedicated it to Wakf, how and when?
(2) Whether the property in question being a State grant was incapable of being dedicated as Wakf?
(3) Whether the property in question
has been declared as personal property
of the opposite party under the Rajasthan
Land Reforms and Resumption of Jagirs
Act on 9-5-59 and what is its effect on
the present proceedings?
(4) What is the effect of the order, dated 7-10-58, of the Wakf Commissioner on the present proceedings?”
The case was then set down for recording the statement of the petitioner as a witness for the Wakf Board. For one reason or the other, however, the case could not make any headway and in the meantime on 26th April, 1967, the Wakf Board constituted a Judicial Committee consisting of respondents Nos. 2 to 4. The petitioner was informed about the Judicial Committee being constituted on 6th June, 1967.
As the petitioner wanted to examine the validity of the constitution of the Committee, he applied for inspection of the resolution under which it came to be appointed but no such inspection was allowed to the petitioner. The so-called Judicial Committee then took up the matter and called upon the petitioner to produce his evidence as the Committee thought that the issues framed by the chairman on 9-11-66 should be deleted.
5. It will be clear from what I am going to say that it is not necessary to deal with the question of the validity of the appointment of respondents Nos. 2 to 4 as members of the so-called Judicial Committee. The main contention of the petitioner is that the Wakf Board respondent No. 1 has now no jurisdiction to continue the proceedings initiated by it under Section 27 of the Act because of the
publication of the list of the existing Wakfs in Rajasthan on 2-12-65 as such a list, according to the petitioner, is final and conclusive under Section 4 of the Act.
6. The writ petition has been opposed On behalf of the Wakf Board. Learned counsel for the respondent however, stat-ed at the bar at the time of arguments that he did not resist the contention of the petitioner about the constituting of the so-called Judicial Committee or regarding the appointment oi respondents Nos. 2 to 4 as members thereof. He inter alia submitted that the tenure of the so-called Judicial Committe had come to an end. He further submitted that he would not oppose the quashing of the proceedings, taken by the so-called Judicial Committee in the matter.
7. As regards the main contention of
the petitioner regarding the jurisdiction
of the Wakf Board to continue the proceedings under Section 27 of the Act, learned
counsel for the respondent submitted that
the mere fact that the list of existing
Wakf properties in the State of Rajasthan
came to be published in the Gazette on
2nd December, 1965, that is during the
pendency of the proceedings, will not preelude the Board from concluding the proceedings.
8. We have heard learned counsel for the parties. Learned counsel for the petitioner made a two-fold submission. In the first instance, he submitted that the Wakf Board had no jurisdiction to continue the proceedings after the list of Wakf properties had been published on 2-12-1965 and specially when the Board failed to file any suit to question the correctness of such a list within a year. In the second place, it was submitted that the Jagar House being a State grant which was subject to Matmi the same could not be the subject-matter of a Wakf. On this basis it was argued that the proceedings were, in the circumstances, futile. Learn-ed counsel in elaboration of his arguments submitted that for the- creation of a valid Wakf, according to Muslim Law, there has to be a permanent dedication of the property and necessarily tha property must belong to the Wakf, that is, the person creating the wakf. In support bf his submission, leaned counsel placed reliance on Amir Ali’s Tagore Law, Lectures Volume One page 34, Fatwa Alam Giri page 946 and Radha Kishan v. State of Rajasthan, AIR 1967 Raj 1. He also argued that a private property cannot be blended with a State grant and he invited out attention to Thakur Devraj Singh v. State of Rajasthan, 1967 Raj LW 199. Mohammed Ismail v. Sabir Ali AIR 1962 SC 1722. Chand Narain v. Chief Secrelary to Government of Rajasthan, (1955) ILR (1955) 5 Raj 984, Gurusami Pandiyan v. Chinnathambiar, AIR 1921 Mad 340. Learned counsel also referred to the Revenue Standing Order No. 12 of the former Jaipur State for showing that according to the usages prevalent it the former Jaipur State a State grant could not be transferred. Learned counsel also maintained that according to Sec 197 of the Rajasthan Land Revenue Act 1956, pre-existing customs and usages relating to succession to estates were preserved in spite of the repeal of the Land Revenue Act of the former Jaipur State.
9. Shri H. M. Parakh on the other hand took the stand that the question regarding the validity or otherwise of the alleged Wakf has yet to be gone into by the Wakfs Board, and, therefore, it will be premature to deal with the matter at this stage. He next contended that the previous order on the writ petition filed by the petitioner should be taken to bar the second writ petition on the principle of res judicata.
10. Before I address myself to the questions argued before us, I may briefly refer to the relevant provisions of the Act. 11. The Act was enacted by the Par liament to provide for the better administration and supervision of the Wakfs It was to come into force in a State to which it was extended by a Notification in the official Gazette and, as I have al ready observed, it came into effect in Rajasthan some time in 1955. 12. Section 3 defines certain terms and the term "Mutawalli" and the term "person interested in a Wakf" have been defined as follows:
“(f) “Mutawalli” means any person appointed either verbally or under any deed or instrument by which a wakf has been created or by a competent authority to be the mutawalli of a wakf and includes any naib-mutawalli, Khadim mujawar, sajjadamshin, amin or other person appointed by a mutawalli to per-form the duties of a mutawalli and save as otherwise provided in this Act, any person or Committee for the time being managing or administering any wakf property as such.’
“(h) ‘person interested In a wakf means any person who is entitled to receive any pecuniary or other benefits from the wakf and includes.-
(i) any person who has a right to worship or to perform any religious rite in a mosque, idgah imambara, dargah, Khan gah, Maqbara, graveyard or any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf.
(ii) the wakif and any descendant of the wakf and the mutawalli.”
The Act is divided in several chapters Chapter 11 is headed as “Survey of
Wakfs”. Section 4 empowers the State Government to appoint for the State by a notification a Commissioner of Wakfs for the purpose of making the survey of wakf properties existing at the time of the commencement of this Act. Sub-section (3) enjoins the Commissioner to submit his report to the State Government after making such inquiry as he may consider necessary and the report is to contain the following particulars namely (a) the number of the wakfs in the State showing the Shia wakfs and Sunni wakfs separately, (b) the nature and objects of! each wakf; (c) the gross income of the property comprised in each wakf; (d) the amount of land revenue, cesses, rates and taxes payable in respect of such property (e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each wakf and (f) such other particulars relating to each wakf as may be prescribed.
The Commissioner has been given powers of a Civil Court for certain limit-ed purposes such as summoning and examining of witnesses, requiring the discovery and production of any document etc. Section 5 provides for publication of list of wakfs and is as follows:–
“5(1) On receipt of a report under Sub-section (3) of Section 4, the State Government shall forward a copy of the same to the Board.
(2) The Board shall examine the report forwarded to it under Sub-section (1) and publish in the Official Gazette, a list of wakfs, existing in the State containing such particulars as may be prescribed.”
Section 6 is about disputes regarding wakfs and I may read that section as well:
“8(1). If any question arises whether a particular property is wakf property or not or whether a wakf is a Shia wakf or Sunni Wakf the Board or the muta-walli of the wakf or any person interest-ed 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:
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-section (2) of Section 5.
(2) Notwithstanding anything contained in Sub-section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit,
(3) The Commissioner shall not be made a party to any suit under Sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules made thereunder,
(4) The list of wakfs published under Sub-section (2) of Section 5 shall, unless it is modified in pursuance of a decision of the Civil Court under Sub-section (1), be final and conclusive.
13. Chapter IIA is about Central Wakf Council. Chapter III provides for establishment of Boards and their functions. This chapter also provides for certain incidental matters. Then there is Chapter IV which provides for registration of Wakfs. Section 25 lays down that every wakf whether created before or after the commencement of this Act shall be regis-tered at the office of the Board. Sub-section (2) provides for making of application by mutawalli and other persons and lays down as follows:
“(2) Application for registration shall be made by the mutawalli: Provided that such applications may be made by the wakif or his descendants or a beneficiary of the wakf or any Muslim belonging to the sect to which the wakf belongs.”
Section 25 further provides that the application for registration has to be signed and verified like pleadings according to the Code of Civil Procedure. The registering authority for wakfs under the section is the Board and under Sub-section (7) it is empowered to make certain enquiries regarding the genuineness and the validity of the application and the correctness of any particulars in the application. The Board is to maintain a register of wakfs according to Section 26, Under Section 27, the Board has been empowered to decide whether a property is wakf property and I may read this, section:
“27. (1) The Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not or whether a wakf is a Sunni wakf or a Shia wakf, it may, after making such inquiry as it may deem fit, decide the question.
(2) The decision of the Board on any question under Sub-section (1) shall unless revoked or modified by a Civil Court of competent jurisdiction, be final.”
Section 28 empowers the Board to direct a mutawalli to apply fur the registration of a wakf or to supply any information regarding a wakf, and the Board may itself cause the wakf to be registered or may at any time amend the register of wakf. This section runs as follows:–
“28. The Board may direct a mutwalli to apply tor the registration of wakf, on to supply any information regarding a wakf or may itself cause the wakf to be registered or may at any time amend the register of wakfs.”
Chapter V relates to mutawallis and Wakf accounts. This chapter provides in detail as to how mutawalli shall submit budget and the accounts and in what manner the Board will be exercising its control over the wakf properties. Section 3GA relates to transfer of immovable property of wakfs and it rumbas follows:
“36A. Notwithstanding anything con-tained in the wakf deed, no transfer of any immovable property of a wakf by way of –
(i) sale, gift, mortgage or exchange; or
(ii) 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 build-
ing shall be valid without the previous
sanction of the Board,”
According to this section, no transfer of the wakf property is valid without the previous sanction of the Board. Section 36B empowers the Board to recover certain wakf properties transferred without the previous sanction of the Board by, sending a requisition to the Collector,
14. To start with, the Board issued a” notice to the petitioner under Section 27 of the Act saying that there was reason to believe that the jagar House and the buildings appurtenant thereto were wakf properties, and, therefore, it was necessary to hold an inquiry under Section 27 of the Act. The petitioner was, therefore, colled upon to appear before the Board and to submit his reply together with documentary proof if any. Against this notice, the petitioner filed detailed objections. It was urged that as the Wakf Commissioner had already decided that the property was not a wakf and as the Wakf Board has not instituted any suit under Section 6 of the Act, the Board could not arrogate to itself the power to reopen the case by holding an inquiry by its order dated 23rd June, 1965. The Board rejected the objections. The Chairman of the Board held that before issuing notice under Section 27 of the Wakf Act, the Board collected sufficient material to form a prima facie opinion that the property wag wakf property and the petitioner was a mutawalli. The relevant observations of the Chairman were as follows:–
“Before issuing notice under Section 27 of the Wakf Act to Shri Nawab Abdul Eaqi Khan the Board collected sufficient material to form a prima facie view that the property in question is a wakf property. Shri Abdul Baqi Khan filed two Civil Suits of eviction dated 29-5-52 and 3-7-53 respectively, wherein the property was shown as wakf property and he himself was mentioned as the Mutawalli of this wakf property. The copies of the plaint are attached with the file. Thus the Board issued notice
Under Section 27 of the Act after complying with the provisions of this section.”
This order of the Chairman was challenged by the petitioner by a writ petition which was D. B. Civil Writ No. 553 of 1965. It was summarily dismissed by a Division Bench of which my learned brother was one of the members. The learned Judges observed as follows:–
“We have heard learned counsel for the petitioner at some length and are not satisfied that the Wakf Board had or has no jurisdiction to make an enquiry in the present case. The language of Section 27 of the Wakf Act No. 29 of 1954 is very comprehensive and it is not possible for us to read it as subject to Section 6 of the Act, for, if that was the intention of the legislature, then there was nothing to prevent it from wording Section 27 in a different manner from how it stands at present. Once we come to that conclusion we do not think that we would be justified in stopping the Board from making an enquiry which it has set out to make in the present case. Apart from that, any decision which the Board arrives at in a case like the present can be tested by the party aggrieved in a Civil Court. That is yet another reason which disinclines us to interfere at this stage.”
There is thus no doubt that the Board had started the proceedings with jurisdiction. From the extract of the Chairman’s order dated 23-6-19(55, it is evident that the petitioner himself had filed certain suits in relation to the disputed property, describing it to be wakf property and giving himself out as a mutawalli thereof. This was, therefore, enough to furnish a basis for the Board to hold an inquiry under Section 27. It has been held by this Court in its order dated 22-30-1965 that the language of Section 27 of the Act is very comprehensive and the same could not be read to be subject to Section 6 of the Act The petitioner is, in my view bound by this order of the Court as he did not file any appeal against, it to the Supreme Court. I nave, therefore, to deal with the matter on the basis of this order. The burden of his argument now is that under Section 6 of the Act, since the list had been published on 2-12-1965 and as no suit had been filed by the Wakf Board, the list has become final and conclusive. Learned counsel placed strong reliance on AIR 1967 Raj 1 (Supra) in support of this submission that it was for the Wakf Board to have filed a suit once the Commissioner came to the conclusion that the property was not a wakf and in the absence of that the Board cannot resort to proceedings under Section 27 of the Act. I was a party to this case, and, therefore, I pro-pose to examine it closely.
15. The point that arose for decision In Radhakishan’s case, AIR 1967 Raj 1 (Supra) was:
“All that we have to consider in this
writ application is, whether the Wakfs
Commissioner had the jurisdiction to ad
judicate and decide against the petitioners”
whether the property in dispute was a
wakf property, whether the list of Wakfs
published by the Board of Wakfs under
Sub-section (2) of Section 5 would be
final and conclusive against the petitioners under Section 6(4) in case the
petitioners do not file a suit within one
year from the publication of the list, and
whether the petitioners can be dispossessed or their possession can be threatened by the Board of Wakfs by proceed
ing under Section 3GB without filing a suit in a
Civil Court.”
In that case, the writ petitioners who
were non-Muslims contended that under
Section 6 of the Act, the Wakfs Board was
not entitled to include their property in
the list of Wakfs or to make any inquiry.
The question that, in the circumstances,
arose for consideration of the court was
as to who were the parties who could
be taken to be concerned in a proceeding
under Section 6 of the Act and whether a
list under that section would bind a person who was neither a mutawalli nor a
person interested in the Wakf. In this con
text, the scope of Section 6 was examined and
It was observed as follows:
“The purpose of sec. 6 is to confine the dispute between the Wakf Board, the mulawalli and a person interested in the wakf. In other words, if there is a dispute whether a particular property is a wakf property or not, or whether a wakf is a Shia wakf or a Sunni wakf, then the Board or the mutawalli of the wakf or a person interested in the wakf as defined in Section 3 may institute suit in a civil Court of competent jurisdiction for the decision of the question. They can file such a suit within one year of the date of the publication of the list of wakfs and if no such suit is filed, the list would be final and conclusive between them.
The very object of the Wakf Act is to provide for better administration and supervision of wakfs and the Board has been given powers of superintendence over all wakfs which vest in the Board. This provision seems to have been made in order to avoid prolongation of triangular disputes between the Wakf Board, the mutawalli and a person interested in the wakf who would be a person of the same community. It could never have been the intention of the right, title or interest of persons who are not Muslims. That is, if a person who is a non-Muslim whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other religious denomination and if he is in possession or a certain property his right, title and interest cannot be put in jeopardy simply because that property is included in the
list published under Sub-section (2) of Section 5.
The Legislature could not have meant that he should be driven to file a suit in a Civil Court for declaration of his title simply because the property in his possession is included in the list. Similarly the legislature could not have meant to curtail the period of limitation available to him under the Limitation Act and to provide that he must file a suit, within a year or the list would be final and conclusive against him. In our opinion, Sub-section (4) makes the list final and conclusive only between the Wakf Board, the mutawalli and the person interested in the wakf as defined in Section 3 and to no other person.”
Section 27 of the Act also came to be
Incidentally dealt with and it was observed as follows:–
“It has already been pointed out that Section 27 appears in Chapter IV which
deals with registration of wakfs. It has
also already been pointed out that accord
ing to Section 25, every wakf created
before or after the commencement of the
Act must be registered at the office of
the Board and that an application for
registration must be made by the mutawalli giving particulars noted in the section. Section 26 enjoins upon the Board
a duty to maintain a register of wakfs
and to enter the particulars mentioned in.
that section. Section 27 has to be read
in that context and, so read, it would
only mean that if the mutawalli fails to
get any wakf registered, then the Board
may suo motu collect information if it
has reason to believe that a particular
property is a wakf property.
If it finds that the property In the
hands of a mutawalli is a wakf property
and he is wrongly denying it to be a
wakf property, it may be registered as
such. Similarly, if there is a dispute as
to whether a wakf is a Sunni wakf or a
Shia wakf, it may decide that matter and:
register the wakf as a Sunni wakf or a
Shia wakf as it considers proper. The
decision of the Board under Sub-section (2) would be final only between the
Board and the mutawalli or a person interested in the wakf, if it is not revoked
or modified by a Civil Court of competent jurisdiction.
Section 27 does not seem to suggest that it empowers the Board to decide the question whether a particular property is wakf property or not, if that challenge comes from a stranger who is neither mutawalli nor a person interested in the wakf, but who belongs to another religious denomination and who claims a valid title and lawful possession over that property. To accept the respondents’ argument would mean that the Board would be given the powers of the Civil Court to decide such disputes between
itself and strangers and thus to make the Board’s decision final unless it is changed by a Civil Court of competent jurisdiction. If a dispute is raised by a non-Muslim, the Board cannot by simply entering the property in the register of wakfs drive him to take recourse to a Civil Court.”
After examining the matter pro and con, the learned Chief Justice who delivered the judgment summarised the position as followes:
“To sum up the position, the Wakf Commissioner, though he is invested with the powers of a Civil Court in respect of certain matters, is not a Civil Court empowered to decide a disputed question whether a particular property is a wakf property or not. He has only to make a survey of wakf property existing in the State at the date of the commencement of the Act and to make a report of survey to the Stale Government. When the State Government forwards the report to the Board of Wakfs, it becomes the duty ol the Board to examine it.
Thereafter the Board should publish, in the official Gazette, a list of wakfs existing tn the Stale. The law does not require the Commissioner to make a survey of wakf properties which have already become extinct as such. If he mentions in his report that certain properties were once wakf properties , and can still be recovered as such, then the proper course, in our opinion, for the Board is to file a suit, get them declared as wakf proper-ties and to recover their possession. If a dispute about the existence of a wakf is raised by a person who is stranger to the wakf, then it is neither fair nor proper for the Board to include such properties in the list published in the official gazette. Section 6, in our opinion, refers only to those triangular disputes which exist between the Board of Wakfs, the mutawalli and a person interested in the wakf.
If there is a dispute between these three on a question whether a particular property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf, it is open to any one of them to institute a suit in a Civil Court of competent jurisdiction. If a suit is instituted the decision of the Civil Court will be final. If no such suit is filed by any one of them within a year from the date of the publication of the list of wakfs the Court would not entertain the suit thereafter and the list of the wakfs shall be final and conclusive between them. The object of Section 6 is to narrow down the dispute between the Board of Wakfs, the Mutawalli and the person interested in the wakf as defined in Section 3.
In our view, it does not concern a dispute if it is raised by a person who is an utter stranger to the wakf. The list
cannot be final and conclusive as against a non-Muslim who is not covered by Section 6(1) of the Act. Again, if a dispute whether a particular property is a wakf property or not, is raised by a non-Muslim and a stranger to the wakf, the Board of Wakfs has no jurisdiction to decide the matter in its own favour under Section 27 and enter it in the register. The Board’s decision under Section 27 would not be binding against such persons. For the same reason, the Board would not be able to recover possession of the property from such persons under Section 36B of the Act.”
The upshot of the observations in Radhakishen’s case was (1) that the Commissioner is not empowered to adjudicate on a question whether a particular property is a wakf property or not; (2) the purpose of Section 6 is to confine the dispute between the wakf Board, the mutawalli and a person interested in the wakf, and if a person who is a non-Muslim and is in possession of a certain property, his right, title and interest therein cannot be put in jeopardy simply because the property is included in the list. Such a person is not required to file a civil suit for a declaration of his title. In other words, the so-called list has no finality against a person who is a stranger; and (3) in the event of a challenge from the stranger, the Wakf Board cannot decide the question, whether a particular property is wakf property or not in exercise of its powers under Section 27 of the Act and by merely entering the property in the register of wakfs, the Wakfs Board cannot drive such a person to a Civil Court.
16. The pointed question before us in the present matter is whether in a case where the Wakfs Board had embarked on an inquiry with jurisdiction under Section 27 of the Act the Board will at once be divested of its jurisdiction once the list of Wakfs comes to be published in the meantime and one year has elapsed thereafter. This was not the question that fell to be considered in Radhakishan v. State (supra). In my view, the matter can be looked at in two ways.
17. First, if before the actual publication of the list, the Board has already started an inquiry and has not reached a final conclusion one way or the other about the disputed property, then it only means that the matter is yet under examination qua the disputed property as contemplated by Section 5(2) of the Act and before the conclusion of the proceedings one way or the other the list cannot be said to acquire finality as contemplated by Sub-section (4) of Section 6 of the Act,
18. What is final under Sub-section (41 of Section 6 is the ‘list of wakfs published under Sub-section (2) of Section 5’. If there has been no publication whatsoever one
way or the other in respect of any particular wakf, then it cannot be said that qua that property anything has become final.
19. Another aspect of the matter Is to ask oneself whether the non-inclusion of a particular property in the list for any reason should be taken to have the effect of changing the character of the wakf property itself merely because a suit was not filed within a year. One cannot lose sight of the fact that the Act was designed to provide for better administration and supervision of wakfs. In this context if the mere fact of non-inclusion of a certain wakf property, if it is really wakf property, is to result in the position that it cannot be taken to be an existing wakf, then in my view, it would go against the basic scheme of the Act and we will be faced with an anomalous position where the Act instead of providing for better administration and supervision of wakfs, by preserving them is taken to result in extinction of some wakfs. Such an irrational result has to be avoided,
20. In the present case, it has already been held by the Division Bench to which my learned brother was a party that Section 27 of the Wakf Act cannot be read subject to Section 6 of the Act. If the petitioner is ultimately found to be a stranger, that it is a person who is neither the mutwalli nor a person interested in the wakf within the meaning of the Act, then on the basis of the view taken in AIR 1967 Raj 1 (supra), the petitioner may not be held bound by the ultimate decision of the Board. But that is another matter.
21. At the moment, it is on the basis of the material collected by the Board and especially on the basis of the suits filed by no less a person than the petitioner himself that the Board had reason to believe that the property in dispute is wakf and the petitioner is the mutwalli thereof. I am unable to accept the position that merely because the list of wakf properties in the State of Rajasthan came to be published on 2-12-65 during the pendency of the inquiry under Section 27 that the Board stands divested of its jurisdiction to conclude the inquiry.
22. I am not persuaded to examine the other contentions of the petitioner that the Jagar House being a State-grant could not be a subject matter of the wakf. It will be for the Wakfs Board to deal with them. It is, therefore, unnecessary to refer to the several cases cited by learned counsel for the petitioner including the passage from Tagore Law Lectures by Amir Ali and Fatwa Alam Giri. It is true that a State-grant as such is inalienable but on the material before me I am unable to hold that the house properties of Jagirdars though standing on
lands originally granted by the State, were liable to resumption by the State according to the usages prevalent in the ex-Jaipur State.
23. A perusal of the order passed by, the Jagir Commissioner on 9th May, 1959, shows that Jagar House consisted of residential accommodation of the Ja-girdar along with an open space of land in the form of a chowk, a part of which on one side being rented to business concerns. The whole property was bounded and no part of it was found to be agricultural land. The serious question that will arise for consideration of the Wakfs Board will be whether such a property was to be resumed by the State on the death of a jagirdar and also whether such a property would be transferable by the jagirdar. For the determination of this question, evidence may have to be recorded. I am, therefore, unable to hold that the inquiry before the Wakf Board is futile as contended for by learned counsel for the petitioner. It will be for the petitioner to urge before the Wakfs Board all these points about the property being not a wakf for the several reasons he wanted to urge before us and I do not wish to express any opinion regarding the merits of the claim. I am satisfied that the proceedings which were commenced with jurisdiction should be allowed to be completed by the, Wakf Board according to law.
24. As regards the so-called Judicial Committee, learned counsel for the respondents has submitted that respondents Nos. 2 to 4 are no longer in office as their term has expired. It is, therefore, not necessary to restrain these respondents Nos. 2 to 4 from functioning as members of the Judicial Committee, the matter against them having become infructuous.’
25. As regards the proceedings taken by respondents Nos, 2 to 4 as members of the Judicial Committee, learned counsel for the respondents has already conceded that all such proceedings should be quashed.
26. In the result I allow the writ petition in part and hereby quash the proceedings taken by respondents Nos. 2 to 4 in the case after 7-6-67. The Wakf Board respondent No, 1 is, however, left free to conclude the proceedings according to law. It shall take up the matter from the stage it was before it came to be entrusted to the so-called Judicial Committee comprising of respondents Nos. 2 to 4. I will leave the parties to bear their own costs.
V.P. Tyagi, J.
27. I agree in the
result with my brother Kan Singh J.
