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High Court Of Rajasthan
Judgename : V.P.Tyagi,Kan Singh
MOHAMMAD ABDUL BAQI KHAN - Appellant
Versus
RAJASTHAN BOARD OF MUSLIM WAKFS, JAIPUR - Respondent
Civil Writ Petn. 312 Of 1967
Decided On : 03/12/1968
WAKF - JURISDICTION OF WAKF BOARD - PUBLICATION OF LIST OF WAKFS - FINALITY - INQUIRY UNDER SECTION 27 OF THE WAKF ACT, 1954 - JURISDICTION OF THE BOARD TO CONCLUDE THE INQUIRY - STATE GRANT - WHETHER INALIENABLE - WHETHER SUBJECT TO RESUMPTION BY THE STATE - WHETHER TRANSFERABLE BY THE JAGIRDAR.
Fact of the Case:
The petitioner, a former Jagirdar, challenged the jurisdiction of the Rajasthan Board of Muslim Wakfs to hold an inquiry under Section 27 of the Wakf Act, 1954, to determine whether his property, known as Jagar House, was wakf property. The petitioner claimed that the property was a State grant and, therefore, could not be the subject of a wakf. He also questioned the appointment of certain members of the Wakf Board as members of the Judicial Committee of the Board and prayed for quashing the various orders passed by the Judicial Committee.
Finding of the Court:
The Court held that the Wakf Board had jurisdiction to hold an inquiry under Section 27 of the Wakf Act, 1954, to determine whether the petitioner's property was wakf property. The Court further held that the publication of the list of wakfs under Section 5(2) of the Act did not divest the Board of its jurisdiction to conclude the inquiry, as the list was not final and conclusive against a person who was a stranger to the wakf. The Court also held that the petitioner's property, being a State grant, was not inalienable and could be the subject of a wakf. However, the Court left it to the Wakf Board to determine whether the property was actually wakf property.
Issues: 1. Whether the Wakf Board had jurisdiction to hold an inquiry under Section 27 of the Wakf Act, 1954, to determine whether the petitioner's property was wakf property? 2. Whether the publication of the list of wakfs under Section 5(2) of the Act divested the Board of its jurisdiction to conclude the inquiry? 3. Whether the petitioner's property, being a State grant, was inalienable and could be the subject of a wakf?
Ratio Decidendi: 1. The Wakf Board had jurisdiction to hold an inquiry under Section 27 of the Wakf Act, 1954, to determine whether the petitioner's property was wakf property, as the Board had reason to believe that the property was wakf property and the petitioner was the mutawalli. 2. The publication of the list of wakfs under Section 5(2) of the Act did not divest the Board of its jurisdiction to conclude the inquiry, as the list was not final and conclusive against a person who was a stranger to the wakf. 3. The petitioner's property, being a State grant, was not inalienable and could be the subject of a wakf, as there was no evidence to show that such properties were liable to resumption by the State according to the usages prevalent in the ex-Jaipur State.
Final Decision: The Court allowed the writ petition in part and quashed the proceedings taken by the Judicial Committee of the Wakf Board after 7-6-1967. The Wakf Board was left free to conclude the proceedings according to law.
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 petitioners 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 petitioners 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 petitioners 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 petitioners 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 th
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