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2018 Supreme(Pat) 1176
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Dr. Mahrukh Khan - Appellant
Versus
State of Bihar - Respondent
Civil Writ Jurisdiction Case No. 10760 of 2018
Decided On : 12-07-2018
For the Petitioners:Mahesh Narayan Parbat, Sr. Advocate Mr. Renu Jha, Advocate.
For the Respondents:Chittaranjan Sinha, PAAG-2 and Mr. Shailendra Kumar, Helal Ahmad, Advocate.
Disputes related to waqf property should be raised before the Waqf Tribunal as it has the statutory authority to adjudicate such disputes.
Headnote:
Waqf Property Dispute - Waqf Act - Section 6, 7, 32, 40, 54, 83, 84
Fact of the Case:
The petitioners challenged orders related to the appointment of mutawalli and opening of locks on two rooms, claiming that the rooms were on their private land. The court was asked to decide on the jurisdiction of the Board and the legality of the orders.
Finding of the Court:
The court found that the dispute related to waqf property and should be raised before the Waqf Tribunal as it has the statutory authority to adjudicate such disputes.
Issues: Jurisdiction of the Board, legality of orders, availability of alternative statutory remedy
Ratio Decidendi: The Waqf Tribunal has the authority to decide disputes related to waqf property, and matters should be filed before the Tribunal in the first instance.
Final Decision: The writ petition was dismissed with liberty for the petitioners to approach the Waqf Tribunal for redressal of their grievances.
ASHWANI KUMAR SINGH, J.
1. Heard Mr. Mahesh Narayan Parbat, learned senior advocate for the petitioners and Mr. Helal Ahmad, learned advocate for respondent Bihar State Sunni Waqf Board.
2. In the instant writ petition, the petitioners have challenged the order dated 27.03.2018 as contained in Annexure-14 issued by the Chief Executive Officer of the Bihar State Sunni Waqf Board, Patna (for short 'the Board') by which the application filed by the petitioners in terms of direction of this Court given in CWJC No. 5368 of 2014 has been rejected with further direction to the petitioners to open locks of two rooms said to be the waqf property. The petitioners have further prayed for quashing the office order dated 20.12.2013 as contained in Annexure-10 issued by the Chief Executive Officer of the Board by which they have been asked to open locks of two rooms. A further prayer has been made by the petitioners for quashing Resolution No. 2 dated 04.06.2013 by which a decision has been taken to appoint respondent no. 9 Md. Tarique Anis Khan as mutawalli of Raja Yakub Khan Waqf Estate No. 726.
3. The brief facts giving rise to this writ petition are that one Raja Yakub Khan was landlord of then Parsauni Estate covered under Tauzi No. 5077 and other Tauzies. The said Raja Yakub Khan had three wives, namely, Bibi Kulsum Nesa, who gave birth to a son, namely, Babu Salahuddin Haider Khan, Bibi Rahman Bandi, who gave birth to a son, namely, Babu Nasariddin Haider Khan and Bibi Safarun Nesa, who was issueless. On 27.10.1993, said Raja Yakub Khan created a waqf-alal-aulad of portion of his properties as detailed in the waqf deed, which were situated in different villages of Parsauni Estate in the district of Sitamarhi and he got it registered on 27.01.1934 vide Waqf Deed No. 246. The waqf was registered with Board vide Waqf Estate No. 726. At the time of execution of the deed of waqf, the wakif became the first mutawalli of the waqf estate and after his death, his eldest son Babu Salahuddin Haider was appointed as mutawalli of the waqf estate, who continued as mutawalli till his death. At the time of his death, his son, namely, Najmuddin Haider Khan was in the womb of his mother. After six months of death, his birth took place. In the said circumstances, second son of wakif, late Raja Yakub Khan started looking after the affairs of the waqf estate as caretaker and in his absence Anisuddin Haider Khan used to look after the affairs of the waqf estate as caretaker till Najmuddin Haider Khan attained the age of majority. In the year 1960, a case was registered by the Board against said Raja Nasruddin Haider Khan for non-deposit of return of income and expenditure of the waqf properties and then, a return was filed by him along with his application with request to withdraw the case, which was accepted by the then Chairman of the Board on 20.02.1960 with directions to deposit due amounts, which was deposited on 01.03.1960. In the year 1960 itself, revisional survey was conducted in the area and names of heirs of late Raja Yakub Khan were recorded in the records of right, which was finally published in the year 1967. In terms of waqf deed, said Dr. Najmuddin Haider Khan being the eldest son of Babu Salahudqin Haider Khan was only the competent person to be appointed mutawalli of the waqf estate and, thus, after attaining majority, he filed an application before the Chairman of the Board for granting permission to act as full-fledged mutawalli of the waqf estate. Subsequently, vide order dated 24.06. 1982, the Chairman of the Board directed to mutate the name of Dr. Najmuddin Haider Khan as full-fledged mutawalli of Waqf Estate No. 726 and also requested Mr. Nasiruddin Haider Khan to make over charge of all the papers/documents and waqf properties to Dr. Najmuddin Haider Khan. Dr. Najmuddin Haider Khan died on 27th October, 2011 leaving behind his wife Dr. Mrs. Mahrukh Khan (petitioner no. 1) and a daughter, namely, Miss. Dr. Farheen Khan (pet
