Bihar State Shia Wakf Board vs Sheonandan Prasad and etc.

B.P. Jha, J.—I shall dispose of these three civil revision petitions by a common judgment as a common point of law arises for consideration in these petitions.

These matters relate to a property of the Bihar State Shia Wakf Board (hereinafter referred to as ''the Board''). In the present case, the Board (petitioner) sent a requisition to the Collector for a direction to obtain and deliver possession of the property to it u/s 36B(1) of the Wakf Act 1954 (Act 29 of 1954) (hereinafter referred to as ''the Act''). The Collector u/s 36B(2) of the Act directed the opposite party to deliver the property in question to the Board within a period of thirty days.

Opposite party No. 1, being aggrieved by the order of the Collector preferred an appeal before the District Judge. The Third Additional District Judge, Patna, set aside the order of the Collector on the ground that the land was transferred to opposite party No. 1 after obtaining prior sanction of the Board.

Section 36A of the Act forbids transfer of any immovable property of a wakf by way of sale, gift, etc. without the prior permission of the Board. It is relevant to quote Section 36A of the Act which runs as follows :

"Notwithstanding anything contained in the wakf deed, no transfer of any immovable property of a wakf by way of-

(i) sale, gift, mortgage or exchange; or (ii) lease for a period exceeding three years in the case of agricultural land, or for a period exceeding one year in the case of non-agricultural land or building, shall be valid without the previous sanction of the Board."

On a perusal of this section, it is clear that no transfer of any immovable property of a wakf by way of sale or gift or mortgage or exchange or lease for a period exceeding three years in the case of agricultural land or for a period exceeding one year in the case of non-agricultural land or building shall be valid without the previous sanction of the Board.

In the present case, it is an admitted position that the property belongs to the Board Section 36B(1) provides that if any transfer has been made without the previous sanction of the Board, the Board will send a requisition to the Collector for taking necessary action u/s 36B(2) of the Act. On receipt of a requisition u/s 36B(1) of the Act, the Collector shall direct the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order. In the present case, the Collector issued such a direction as envisaged u/s 36B(2) of the Act. Opposite party No. 1, being aggrieved by the order of the Collector, preferred an appeal to the district court under Sub-section (4) of Section 36B of the Act. The district Court set aside the order of the Collector. Hence, the Board has moved these civil revision petitions against the appellate Court''s order.

On a perusal of the appellate Court''s order, it is clear that opposite party No. 2 (Mutawalli) sought permission of the Board to sell the immovable property in question. The Board considered the letter of the Mutawalli and granted permission to sell the immovable property by resolution no. 27(v) dt. 24th Feb., 1974. The Board also communicated the resolution to the Mutawalli (opposite Party No. 2). It is also clear from the finding of the appellate Court that a notice of the intended sale was published in the Gazette by the Mutawalli. It is also clear from the finding of the appellate Court that a letter dt. 20th Jan., 1975 was sent by the Mutawalli to the Board stating therein that all the directions given by the Board had been complied with by the Mutawalli. In view of these findings, the appellate Court set aside the order of the Collector issued u/s 36B(2) of the Act.

In my opinion, the Board ought not to have sent the requisition u/s 36(B)(i) of the Act to the Collector for the simple reason that the transfer had been made with the prior sanction of the Board. Hence, the requisition sent u/s 36B( 1) of the Act was illegal and the order of the Collector u/s 36B(2) of the Act was equally illegal.

Learned Counsel for the petitioner also contends that the sale was contrary to Rule 3 of the Bihar Wakf Rules, 1973 (hereinafter referred to as ''the Rules''). It is relevant at this state to quote Rule 3(1) which runs as follows :

"The Board shall not accord sanction to any mortgage or exchange of Wakf property or to any lease thereof for more than three years unless such mortgage, exchange or lease is for an evident advantage of the Wakf concerned or is extremely unavoidable."

Under Rule 3(1) of the Rules, the Board shall not grant sanction to any mortgage or exchange or to any lease of the Wakf property for more than three years unless such mortgage, exchange or lease is for the benefit of the Wakf concerned or is extremely unavoidable. Rule 3 is limited to three classes of transfers, namely, mortgages or exchange or lease for more than three years. Rule 3 does not apply to a sale. Hence, I reject the contention of the learned Counsel for the petitioner.

In my opinion, the appellate Court has not committed any jurisdictional error and, as such, I am unable to interfere with the order in question for the reasons mentioned above.

In these circumstances, I uphold the order passed by the appellate Court. These three petitions are dismissed, but without any cost.

S.S. Sandhawalia, C.J.

I agree.