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Rajasthan High Court
Tyagi & Kan Singh, JJ.
Mohammad Abdul Baqi Khan - Appellant
Versus
The Rajasthan Board of Muslim Wakfs, Jaipur - Respondents
D.B. Civil Writ Petition No. 312 of 1967
Decided On : March 12, 1968
The pointed question before us in the present matter is whether in a case where the Wakf Board had embarked on an inquiry with jurisdication under sec 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. The matter can be looked at in two ways.
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 sec 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-sec. (4) of sec. 6 of the Act. What is final under sub-sec. (4) of sec. 6 is the list of wakfs published under sub-sec. (2) of sec. 5. If there has been no publication whatsoever one way or he other in respect of any particular wakf, then it cannot be said that qua that property anything has become final.
Another aspect of the matter is to ask one self 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 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 soma wakfs.
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 see. 27 that the Board stands divested of its jurisdiction to conclude the inquiry. (Paras 15, 16, 17, 18, and 20)
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 he a Muafi land. Semetime 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 Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. After the resumption of the Jagirs the petitioner applied for declaring the Jagar House as his personal property and according to him under sec. 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 sec 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 could 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 sec. 27 of the Act saying that there was reason to believe that the Jagar House with its appartenant 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, 1966, a list of all the Wakfs existing in the State of Rajasthan was published. This list did not include the disputed property the Jagar House. After the dismissal of the writ petition, the Board commenced the inquiry and t
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