Permissibility of resort to remedy under Article 226.

In these two petitions the prayer is for the issue of a writ of mandamus under Article 226 of the Constitution restraining the respondent, Secretary of the State Wakf Board, Madras to forbear from taking any action under the Muslim Wakf Act (XXIX of 1954), in regard to the levy of contribution under the aforesaid Act for the properties mentioned in the schedule to the petitions.

The petitioners contend that in Naduhalli Village, Dharmapuri Taluk, Salem District there is a certain extent of land which has been entered in the village accounts as Kairathi Personal Inam. This property had been enjoyed by the petitioners and their predecessors-in-title for over hundred years as their personal property. The properties are not attached to any mosque or religious or charitable Muslim institution ; nor was there at any time a dedication in respect of them permanently or otherwise by any person. Nevertheless, the respondent Secretary of the Wakf Board, called upon the petitioners to render accounts on the footing that the properties are wakf properties and had been so registered under the Wakf Act and contributions are liable to be paid in respect of them to the Wakf Board. The petitioner in Writ Petition No. 833 of 1964 alleged that he was not aware of any enquiry by the Board before they declared the properties to be wakf properties. On the other hand the petitioner in Writ Petition No. 1048 of 1965 stated that he had made certain representations in writing to the respondent Board pointing out that the properties were not wakf properties and that he was not the Muthavalli of any such wakf. Both the petitioners urged that the properties have never been in the nature of wakf and that the respondent Board, acted entirely without jurisdiction in proceeding to demand contribution under the Wakf Act from the petitioners.

In the counter-affidavit filed by the respondent, Secretary of the Wakf Board, it is alleged that there was a detailed enquiry as prescribed in section 4 of the Wakf Act conducted by the Assistant Commissioner of Wakfs, Salem. During that enquiry the petitioner in Writ Petition No. 1048 of 1965 represented that the land was granted by Nawab Tippu Sultan and that it was to be used for feeding Fakirs at the time of Meela-de-Nabi and Giarween Urs, that he and the other beneficiaries were doing so every year spending about Rs. 400 for the purpose ; that they had divided the lands into 17 parts and were enjoying the same and that the annual income ordinarily from the lands would be Rs. 5,000. On the basis of the Assistant Commissioner’s report the lands were included in the list of wakfs and the list was published in the Fort St. George on 29th April, 1959. It is alleged in the counter-affidavit that if the petitioners were aggrieved by such a declaration in the notification, they should have agitated the matter by filling a suit within the time prescribed in section 6 of the Central Wakf Act, and having failed to do so, it is not open to them in these writ proceedings to contend that the properties are not wakf properties and that they were not liable to meet the demand for contribution.

Learned Counsel Sri T. R. Srinivasan appearing for the petitioners urged as a question of fact that the available data in the case will serve to establish that the properties are not wakf properties at all, as defined in section 3 (1) of the Act. According to the definition in section 3 (1) wakf means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes a wakf by user. Learned Counsel refers to the entries in the inam settlement register for the lands in these cases wherein it is recorded that no one was able to give the particulars of the name of the grantor or the purpose for which the inam was granted. But, however, the Inam Commissioner was prepared to confirm the inam as Kairathi. The word ‘Kairathi’ accordi