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TMI Blog2008 (5) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Mutwallis appointed for the said Dargah had not been performing their duties in a proper and efficient manner, the Andhra Pradesh Wakf Board appointed respondent Nos.2 to 9 as 'Mujavars' by an order dated 27.7.1973, stating : According to the enquiry report first cited, it is noted that the Dargah Hazrata Ghalab Shaheed at Bhavanipuram village, Talaq, Krishna District; is a notified Wakf in the A.P. Gazette Part II dated 28.6.1962. On page 710 and 711 at Serial No.747. The total extent of land notified in the Gazette is 116 acres 11 cents. The notified Mutavallies are (1) Sri Abdul Khuddus (2) Sri Abdur Rahman and (3) Sri Abdul Hakeem Among them the first Mutavalli was residing in Guntur. The second died and the third was seriously laid down with paralysis and not in a position to move out. None of them were performing legitimate duties under Section 36 and rendering services to the said Dargah. Therefore, it was proposed to initiate enquiry under Section 45 and to take action under Section 43 against the two living Mutavallies No.(1) and (3). As per latest report of the I.A. fifth cited it is noted that the living Mutavallies also died. Automatically, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) West : Bhawanipuram village Vijayawada Taluk IV) Any encumbrances to which the properties relating to the proposed transaction are subject to NIL V) This sale will be subject to the following conditions : 1) That the sale is subject to the confirmation by the Government. 2) That the sale proceeds should be invested in a Scheduled or Nationalized Bank in interest yielding deposit. 3) That the sale deed should be executed at the expenses of the purchaser or purchasee. 4) That the sale proceeds should be utilized for the 1 objects of Wakf and for re-building the corpus affected by the transfer. 5) That the sale proceeds shall not be utilized for raising loans. Any person having any interest in or objection to the proposed transfer of Wakf property may file his or her representation to the Secretary. Andhra Pradesh Wakf Board within one month from the date of publication of this Notification in the State/District Gazette. No representation received after the expiry of the prescribed date will be entertained. 8. Allegedly, upon publication of the said advertisement, several co- operative societies made their respective offers. The offer made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.1,00,000/-per acre. RESOLVED to request Janab R. Sultan Saheb, Hon'ble Member of the Board to visit Vijayawada to secure better offer as promised by him and place the same in the next Board meeting for consideration in respect of Sy.No.63 and Sy.No.10 of the land belonging to Dargah Hazarath Ghalib Shaheed Rn. Vijaywada. 11. One Noor Housing Society, made an offer at Rs.1,26,000/- per acre. Some correspondences had allegedly passed between the first respondent (plaintiff) and the Wakf Board whereby and whereunder the first respondent is said to have raised its offer from Rs.70,000/- to Rs.1,00,000/- by a letter dated 16.8.1982 and then to Rs.1,26,000/- by a letter dated 23.10.1982, stating : Our Society has given an offer to purchase the land belonging to Dargah Hazarat Ghalib Shaheed, Bhawanipuram, Vijayawada, O.S. No.63 to the extent of 35.20 acres at the rate of Rs.1,00,000/- (Rupees one lakh only) per acre. We also assure you that while allotting the plots to the members of our Society, we will give preference to Muslims. In this connection, I would like to submit that we are hereby revising our offer that is to say that our offer and make it Rs.1,26,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a suit for permanent injunction which was marked as O.S. No.200 of 1983. Allegedly, it was dispossessed. It filed a suit for specific performance of the contract. The said suit was marked as suit No.449 of 1984; the prayers made wherein were: a) For specific performance of the suit contract of sale dated 2.8.1982 against the defendant 1 to 9 and 13 directing them all or these when the Court finds necessary and proper to execute and register sale deed or deeds in favour of the plaintiff or its nominees at their expense for the plaint schedule property in whole or in parts as they choose, or in the alternative, if the defendant 1 to 9 and 13 refuse to do so, for a direction that the Court or any officer of the Court as directed by the Court do so execute and register the sale deed or sale deeds. b) In the alternative for recovery of possession of the plaint schedule property, if the plaintiff is found not to be in possession Added as per order in I.A.6980/91 dated 24.6.1992. c) For a permanent injunction contesting the defendants 1 to 10 and 13 interfering with the plaint schedule property and plaintiff possession thereof; and For costs of the suit and such other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wakf Board but also a large number of applications have been filed for intervention and impleadment on behalf of the allottees. We may place on record that at one point of time, the first respondent filed an application for impleadment of the allottees who were about four hundred in number in the suit but the same was however, not pressed. Some of the allottees have allegedly purchased the land before 24.4.1984, i.e., prior to institution of the suit. Most of the applicants, however, have purchased thereafter, namely, during the pendency of the suit. Appellant society also allotted lands in favour of Mujjavardars and/or their relatives. 23. The State of Andhra Pradesh, however, itself issued G.O. No.343 on or about 25th October, 1986 stating that there had been no advertisement and as such the requirements of law as envisaged under the Act had not been complied with on the basis of the purported complaints received by it from various quarters. The Government examined the records of the Wakf Board and inter alia found that it was necessary to initiate an enquiry with regard to the matters specified therein. It also took notice of the fact that an enquiry had been pending before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts tilted towards the appellants (defendant No.13 society). It was furthermore held that the Mujavars were parties to the agreements although they made attempts to deny or dispute the same. The contention that the permission granted by the Government stood cancelled upon taking into consideration GOMs No.343 staying the operation of GOMs No.773 wherein a large number of irregularities were recorded including the one that the Wakf Board did not follow the procedure laid down under Rule 12 of the Rules read with Section 36A of the Act was accepted. Deed of sale executed by the appellant society in favour of the allottees was also held to be hit by the doctrine of lis pendens. The sale transactions effected in favour of the appellant society were declared to be null and void and on the said premise, the contention that all transactions having already been completed, no further direction should be issued, was furthermore rejected. The High Court also took into consideration that exemptions had been granted in terms of Section 20 of the Urban Land (Ceiling and Regulations) Act, 1976 to come to the conclusion : It is well known principle of law that the suit relief can be mou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were residents of Vijayawada. (vii) Both the courts below have committed a serious illegality insofar as they failed to take into consideration the question as regards the validity of agreement (Exh.A-13), inter alia, in the light of Section 17 of the Specific Relief Act, 1963 (viii) The courts below should have held that the agreement was executed under suspicious circumstances and in that view of the matter the relief of specific performance being a discretionary relief should not have been granted. (ix) From various correspondences passed between the parties, it was evident that the plaintiff society also offered a bid of Rs.1,26,000/- per acre and on the said premise the courts below should have held that the first respondent was estopped and precluded from contending contra. (x) No action having been taken pursuant to the purported notification dated 25.10.1986 as regards the irregularities in the proceedings of Wakf Board; the same could not have been formed the basis for passing the impugned judgments, as G.O. No.773 was passed on wrong premises. (xi) In view of the resolution of the Wakf Board dated 19.8.1982 that the offer of Rs.70,000/- was too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e administration of the property, indisputably, was required to be made in terms of the provisions thereof, in view of the fact that the Act was enacted to provide for the better administration and supervision of the wakf. The term 'Mutwalli' is defined in Section 3(f) of the Act as under : 3. Definitions : In this Act, unless the context orhtewise requires (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 person who is a mutawalli or a wakf by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and, save as otherwise provided in this Act, any person or Committee or Corporation for the time being managing or administering any wakf or wakf property; Provided that no member of a Committee or Corporation shall be deemed to be mutawalli unless such member is an office bearer of such Committee or Corporation. 29. However, Mujavars also have been brought within the purview of the said definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn in clauses (i) to (iii) of sub-section (2) of Section 36 of the Wakf Act. It is only when a sanction is granted, the sale is to be held by public auction. Such public auction shall also be subject to confirmation by the Board. We are, however, not oblivious of the fact that the Board for reasons to be recorded in writing may permit sale otherwise than by public auction if it is of the opinion that it is necessary so to do in the interest of the wakf. A Mutawalli may have personal interest in the property. His power of transfer of the Wakf property would depend upon the terms of appointment. Once, however, the intervention of the Board becomes necessary in terms of the provisions of the Act, no sale transaction can take place unless the statutory requirements are complied with. There appears to be something more than which meets the eye in the matter of grant of sanction for the agreement for sale dated 2.8.1982. The agreement for sale is titled 'Sale Deed cum Handed Over Possession Agreement'. We will assume that the said title to the transaction was thought of as purported possession was to be handed over in favour of the plaintiff society. It, however, appears that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e within which objections, claims or suggestions may be sent. Only upon receipt of such suggestions and, objections, an order sanctioning an exchange, sale or mortgage or lease for a term exceeding three years, in addition should be communicated to the person(s) concerned. The same is required to be published in the manner laid down in sub-rule (2) meaning thereby in the Andhra Pradesh Gazette as also the District Gazette. 33. It is beyond any doubt or dispute that the purported sanction has not been published in the Andhra Pradesh Gazette or the District Gazette. The purported order of sanction is in the form of a letter purported to have been issued by the then Chairman of the Wakf Board. Ex facie, the said letter does not satisfy the statutory requirements. 34. Mr. Andhayarujina, however, submitted that publication of the order of sanction in the Gazette is not mandatory but only directory. We are unable to agree. By reason of the provisions of Section 36A of the Act, a prior sanction is imperative for effecting a sale transaction. Furthermore, Rule 12 specifies the manner in which such sanction is to be granted. Keeping in view the nature and purport for which the said pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was absolutely no reason as to why the mention of the same would not be made in the agreement of sale dated 2.8.1982. Even at an interlocutory stage of the proceeding before the learned trial judge, the Chairman, Wakf Board affirmed an affidavit to that effect, which was marked as Exhibit B-6. No sufficient explanation has been offered by the first respondent as to why the stamp papers were purchased on 2.12.1981 when the agreement for sale was not even under contemplation. 37. The High Court, furthermore, committed a serious error in premising its judgment on the basis of statement of DW 4, which read thus : It is true to suggest that after obtaining permission from the Wakf Board, we entered agreement with plaintiff under Ex.A31 to sell the property. It contains our signatures We have been taken through the deposition of Gulam Ali Akbar, DW- 4. His statement before the trial court reads as under : It is not true to suggest that after obtaining the permission from the Wakf Board, we entered into an agreement with the plaintiff under Exhibit A.31 to sell the property. It contains our signatures. 38. It is possible, as contended by the learned counsel, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpense for the plaint schedule property in whole or in parts as they choose, or in the alternative, if the defendant 1 to 9 and 13 refuse to do so, for a direction that the Court or any officer of the Court as directed by the Court do so executed and register the sale deed or sale deeds. b) In the alternative of the plaint schedule property, if the plaintiff is found not to be in possession Added as per order in IA 6980/91 dated 24.6.1992. c) For a permanent injunction contesting the defendants 1 to 10 and 13 interfering with the plaint schedule property and plaintiff possession thereof. 43. However, the learned trial Judge in its judgment directed the defendant Nos. 10 to 12 to execute the deed of sale. There is a serious doubt as to whether the agreement dated 2.8.1982 as also the purported order dated 30.6.1986 or the agreement were the genuine documents. In that view of the matter, the suit for specific performance of contract should not have been decreed. In the suit, GOMs dated 26.5.1982 and 4.5.1983 were not under challenge. They might have been brought under animated suspension by GOMs No.343 dated 25.10.1986 but prior thereto, the suit had already been fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o oversee its functions. The property belonging to a wakf cannot be permitted to be withered away at the instance of the office bearers of the Board or those in charge of the wakf. They being the trustees should act like trustees. Why for 22 years, no enquiry was conducted and why no action had been taken pursuant to the said GOMs dated 25.10.1986 is a matter of serious concern to all concerned including the general public. Arguments had been advanced before us that the said notification was illegal. We do not and cannot go into the said question. Our jurisdiction in this behalf is limited but the very fact that not only the trial Court but also the Division Bench of the High Court had adverse comments to offer as regards the Government Andhra Pradesh, A.P. Wakf Board as also Dargah are not matters which should be allowed to be given a decent burial. The Government should have taken the purport of its orders and memos issued by it to their logical conclusion. They failed to do so. We, therefore, are of the opinion that the Government of Andhra Pradesh would be well advised to cause an enquiry to be made into the entire affairs of the Andhra Pradesh Wakf Board and others concerned v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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