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TMI Blog2006 (10) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... 1954 (for short "the 1954 Act"). One Munna Bai filed an application for getting her name mutated in respect of the property in question. It was dismissed on 4.2.1967. She thereafter filed an application under Section 25 of the 1954 Act for registering the Dargah as a Wakf. A notice was issued to Subhan Shah and others who were the heirs of the said Hazrat Sha Walli (hereinafter referred to as "the private parties"). They filed their show cause denying and disputing that the property in question was a Wakf property. It was contended that Munna Bai filed the aforementioned application as she was denied her claim to occupy the post of a Mujjawarship. It was further contended: "That there has been 50 Bighas land under the Sanad but when we were minors and Mahboobsha the husband of the lady was the person in charge of the office of Mujjawarship, the Jahagirdar has snatched away about 40 Bighas, but since ours taking charge of it we are most aptly managing the property and property looking after the Dargah. It is wrong to say that there is a managing committee for this Dargah." 3. On or about 18.3.1968, the properties were declared as Wakf property and the Dargah was registered as Wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. "Wakf" has been defined in Section 3(l) of the 1954 Act to mean "the permanent dedication by a person professing Islam or any other person of any movable or immovable property for any purpose recognized by the Muslam law as pious, religious or charitable". Section 4 provides for survey of Wakfs. According to the private parties, upon survey the Dargah was not found to be a Wakf property. Only when a property is found to be a Wakf property, a registration thereof can be made. Section 5 of the 1954 Act, reads, thus: "5. Publication of list of wakfs - (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 in the State, or as the case may be, the part of the State, whether in existence at the commencement of this Act or coming into existence thereafter to which the report relates, and containing such particulars as may be prescribed." 10. Under Section 5 of the 1954 Act, a civil suit in regard to the dispute as to whether a particular property specified as Wakf property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty. In determining the respective contentions of the parties to the suit, the Tribunal framed the following issues: "1. Whether Mazar Nahar Shah Ali Baba is the property of plaintiffs of Siranam and the order of defendant No. 1 of dated 24.4.68 and 13.4.68 are illegal and of no consequences? 2. Whether plaintiffs are entitled to regain the business on the disputed Mazar." 15. The issues framed were not wholly apposite to the rival contentions of the parties. They do not reflect the requisite issues before the parties in the light of their pleadings. The Tribunal moreover did not analyse the evidences adduced by the parties before it. Applicability or otherwise of the notification issued in the year 1984 was also not considered. It declared the property to be a Wakf property stating: "Defendant No. 1 Wakf Board led no evidence in its favour, but Madhya Pradesh Wakf Board has produced the copy of Madhya Pradesh Gazette and Register of Registration of Wakf in which disputed Majar has been depicted as the property of Wakf and year of (billing) cultivation. The plaintiffs have not objected to this. The most important this is that the plaintiffs have admitted in evidence that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o exercise that power to the appellant and given him an opportunity to show cause against the exercise of suo moto power as well as against the grounds on which it wanted to exercise its power. Quite clearly the Central Government had not given him that opportunity. The High Court thought that as the Central Government had not only intimated to the appellant the grounds mentioned in the application made by the 5th respondent but also the comments of the State Government, the appellant had adequate opportunity to put forward his case. This conclusion in our judgment is untenable. At no stage the appellant was informed that the Central Government proposed to exercise its suo moto power and asked him to show cause against the exercise of such a power. Failure of the Central Government to do so, in our opinion, vitiates the impugned order." 20. If the proceeding was initiated by the Board for which it had no jurisdiction whatsoever, its order would be 'coram non judice'. [See Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 and MD, Army Welfare Housing Organisation v. Sumangal Services (P) Ltd., (2004) 9 SCC 619] Unfortunately, the attention of the Tribunal or the High Court was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder registering the property as a Wakf property was invalid in law, the matter might have ended there. But, the Tribunal has gone a step further and directed framing of scheme. 26. The Wakf Act is a self-contained code. Section 32 of the 1995 Act provides for powers and functions of the Board. Sub-section (2) of Section 32 of the 1995 Act enumerates the functions of the Board without prejudice to the generality of the power contained in Sub-section (1) thereof. Clauses (d) and (e) of sub-section (2) of Section 32 of the 1995 Act reads as under: "(d) to settle schemes of management for a wakf: Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard; (e) to direct (i) the utilisation of the surplus income of a wakf consistent with the objects of a wakf; (ii) in what manner the income of a wakf, the object of which are not evident from any written instrument, shall be utilized; (iii) in any case where any object of wakf has ceased to exist or has become incapable of achievement, that so much of the income of the wakf as was previously applied to that object shall be applied to any other object, which shall be simil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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