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The Wakf Act, 1995
The Charitable Endowments Act, 1890
Section 3 in The Wakf Act, 1995
Section 4(1) in The Wakf Act, 1995
Section 5(2) in The Wakf Act, 1995

Karnataka High Court
Karnataka State Board Of Wakfs vs State Of Karnataka on 5 November, 2012
Author: N.Kumar And Rao

1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 05TH DAY OF NOVEMBER 2012 PRESENT

THE HON'BLE MR.JUSTICE N KUMAR

AND

THE HON'BLE MR.JUSTICE V.SURI APPA RAO WRIT APPEAL NO.5591 OF 2011 (GM-WAKF) AND

WRIT APPEAL NO.379 OF 2012 (GM-WAKF) BETWEEN:

1. KARNATAKA STATE BOARD OF WAKFS "DARUL AWKAF"

NO.6, CUNNINGHAM ROAD,

BANGALORE - 560052.

REP. BY ITS

CHIEF EXECUTIVE OFFICER.

2. HAZARATH MANICK SHA DARGAH

II FLOOR, NO.6, HAZARATH HAMEED SHAH COMPLEX, CUBBONPET MAIN ROAD,

BANGALORE - 560002.

REP. BY MR.UBAIDULLA SHARIEFF

THE PRESIDENT OF

MANAGING COMMITTEE. ...APPELLANTS (BY SRI PADMANABHA MAHALE, SR. COUNSEL FOR KAMAL AND BHANU, ADV.)

2

AND:

1. STATE OF KARNATAKA

VIDHANA SOUDHA,

DR.AMBEDKAR VEEDHI,

BANGALORE - 560001.

REP. BY ITS CHIEF SECRETARY.

2. DEPARTMENT OF REVENUE

GOVERNMENT OF KARNATAKA,

M.S.BUILDING,

BANGALORE - 560001.

REP. BY ITS PRINCIPAL SECRETARY.

3. DEPARTMENT OF MINORITY AFFAIRS MINISTRY OF HAJ AND WAKFS

GOVERNMENT OF KARNATAKA,

VIKASA SOUDHA,

BANGALORE - 560001.

REP. BY ITS SECRETARY.

4. THE DEPUTY COMMISSIONER, REVENUE BANGALORE URBAN DISTRICT,

BANGALORE.

5. THE ASSISTANT COMMISSIONER

BANGALORE NORTH TALUK,

VISHVESHWARAIAH TOWER,

DR.AMBEDKAR VEEDHI,

BANGALORE - 560001.

6. THE TAHSILDAR,

BANGALORE NORTH TALUK,

YELAHANKA NEW TOWN,

BANGALORE.

7. THE SUB-REGISTRAR OF ASSURANCES YELAHANKA NEW TOWN,

BANGALORE.

3

8. MR.NASEER SUBHAN

S/o LATE B.ABDUL SUBHAN,

AGED ABOUT 60 YEARS,

R/at No.39 (PORTION)

BELLAHALLI VILLAGE,

BANGALORE NORTH TALUK.

9. MR.SYED GULZAR ALI

S/o LATE SYED MURTUZA SAB,

AGED ABOUT 66 YEARS,

R/at OLD No.49 (NEW No.38)

BELLAHALLI VILLAGE, YELAHANKA POST, BANGALORE NORTH TALUK.

10. MR.SYED AKBAR ALI

S/o LATE SYED MURTUZA SAB,

AGED ABOUT 65 YEARS,

R/at OLD No.49 (NEW No.38)

BELLAHALLI VILLAGE, YELAHANKA POST, BANGALORE NORTH TALUK.

11. MR.SYED HYDER ALI

S/o LATE SYED MURTUZA SAB,

AGED ABOUT 63 YEARS,

R/at OLD No.49 (NEW No.38)

BELLAHALLI VILLAGE, YELAHANKA POST, BANGALORE NORTH TALUK.

12. MR.SYED HUSSAIN ALI

S/o LATE SYED MURTUZA SAB,

AGED ABOUT 60 YEARS,

R/at OLD No.49 (NEW No.38)

BELLAHALLI VILLAGE, YELAHANKA POST, BANGALORE NORTH TALUK.

13.MR.SYED AZHEER ALI

S/o LATE SYED MURTUZA SAB,

AGED ABOUT 58 YEARS,

R/at OLD No.49 (NEW No.38)

4

BELLAHALLI VILLAGE, YELAHANKA POST, BANGALORE NORTH TALUK.

14. MR.SYED WAZEER ALI

S/o LATE SYED MURTUZA SAB,

AGED ABOUT 56 YEARS,

R/at OLD No.49 (NEW No.38)

BELLAHALLI VILLAGE, YELAHANKA POST, BANGALORE NORTH TALUK.

15. MR.SYED BASHEER ALI

S/o LATE SYED MURTUZA SAB,

AGED ABOUT 54 YEARS,

R/at OLD No.49 (NEW No.38)

BELLAHALLI VILLAGE, YELAHANKA POST, BANGALORE NORTH TALUK.

16. MR.SYED MAHABOOB ALI

S/o LATE SYED MURTUZA SAB,

AGED ABOUT 51 YEARS,

R/at OLD No.49 (NEW No.38)

BELLAHALLI VILLAGE, YELAHANKA POST, BANGALORE NORTH TALUK.

17. MRS.SALMA BEGUM

W/o LATE SYED MURTUZA SAB,

AGED ABOUT 51 YEARS,

R/at OLD No.49 (NEW No.38)

BELLAHALLI VILLAGE, YELAHANKA POST, BANGALORE NORTH TALUK.

18. MRS.GAWAR BANU

D/o LATE SYED MURTUZA SAB,

AGED ABOUT 49 YEARS,

R/at No.11/2,

BELLAHALLI VILLAGE, YELAHANKA POST, BANGALORE NORTH TALUK.

19. MRS.BELKIS BEGUM

D/o LATE SYED MURTUZA SAB,

5

AGED ABOUT 49 YEARS,

R/at No.11/2,

BELLAHALLI VILLAGE, YELAHANKA POST, BANGALORE NORTH TALUK.

20. MRS.MARIAM HUSSAN

(SINCE DEAD BY Lrs)

20(A) MR.ZAHED HUSSAIN

S/o LATE BAGUIR HUSSAIN,

AGED ABOUT 75 YEARS,

R/at No.7/11, AGA ABDULLAH STREET, RICHMOND TOWN,

BANGALORE - 560025.

21. MRS.FAHIMARY TAJ

D/o MARIAM HUSSAIN,

AGED ABOUT 48 YEARS,

R/at No.7/1,

AGA ABDULLA STREET,

RICHMOND TOWN,

BANGALORE - 560025.

22. MR.AGA ABBAS ALI SHIRAZI

S/o LATE AGA MOHAMMED HUSSAIN SAB AGED ABOUT 60 YEARS,

RESIDING AT No.73

AGA ABDULLA STREET,

RICHMOND TOWN,

BANGALORE - 560025.

REP. BY HIS POWER OF ATTORNEY HOLDER MR.MOHSIN ALI SHIRAZI,

AGED ABOUT 31 YEARS,

RESIDING AT No.7/1, AGA ABDULLA STREET, RICHMOND TOWN,

BANGALORE - 560025. ...RESPONDENTS (BY SRI NAVEED AHMED, ADV. FOR A1 SRI K.KRISHNA, AGA FOR R1 TO R7

6

SRI ASHOK HARANAHALLI, SR. COUNSEL FOR MAN MOHAN P.N., ADV. FOR R20, 20A AND R21 SRI JAYKUMAR S PATIL, SR.COUNSEL FOR MAN MOHAN P.N., ADV. FOR R22

M/s HOLLA AND HOLLA, ADV. FOR R8

SRI G.R.LAKSHMIPATHI REDDY, ADV. FOR R9 TO R19) THESE APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN WRIT PETITION No.21376- 77/2010 (GM-WAKF) DATED 05.04.2011. THESE WRIT APPEALS COMING ON FOR PRELIMINARY HEARING THIS DAY, N KUMAR J., DELIVERED THE FOLLOWING:

JUDGMENT

These appeals are preferred by the Karnataka State Board of Wakfs and Hazarath Manick Sha Dargah, challenging the order passed by the learned Single Judge who declined to entertain the writ petitions filed by them, where they were seeking a declaration that the Mysore (Religious and Charitable) Inams Abolition Act, 1955, does not apply to wakf lands and more particularly to the lands in question, namely, the entire village of Bellahalli, Yelahanka Hobli, Bangalore North Taluk comprising 602 acres and 29 guntas of land 7

which are wakf properties and for other consequential reliefs. For the purpose of convenience, the parties are referred to as they are referred to in the writ petitions.

2. The case of the petitioners is that more than two centuries back, late Hazrath Tippu Sultan, the ruler of the then princely State of Mysore dedicated the land in question to meet the expenses of the annual performance of 'Urs' and various other rituals of the 17th century Muslim saint Hazrath Manick Sha as evidenced by the 'SANADNAMA'. Dedication of the property for pious, religious and charitable purposes constitutes a 'WAKF' in terms of the Muslim Personal Laws. The consequences in law is that immediately on dedication the ownership and title of the property automatically stands transferred and vests absolutely in 'ALMIGHTY GOD' and gets indisputably impressed with the character of 'WAKF' and continues as such till eternity. 8

3. The meaning of the word "Wakf" has been enlarged over a period of time. Section 3(r) of the Wakf Act, 1995 (hereinafter referred to as 'the Act' for short) defines what a Wakf is. The subject matter of the aforesaid dedication are the entire villages of (1)Bellahalli Yelahanka Hobli comprising 602 acres and 29 guntas of land (2) Bhoopasandra Village comprising 196 acres and 19 guntas. All the aforesaid lands are situated in Bangalore North Taluk, Bangalore. The petitioners have restricted their claim in the writ petitions only to the lands in the Village of Bellahalli Yelahanka Hobli, Bangalore North Taluk i.e., 602 acres and 29 guntas of land. Their further case is, prior to the year 1954 the lands in question had been notified in the Register maintained by the Department of Muzrai, Government of Karnataka as "Devadaya Inams". The name of the second petitioner was shown therein as the holder of the land. The entries in the quit-rent register of the said Village even as in the year 1897 discloses 9

only the name of the second petitioner as the Inamdar of the entire Village of Bellahalli. The quit-rent register evidences that the lands have been classified as uncultivable, dry, wet and garden. The final title deed bearing No.281 dated 19.05.1915 was granted in favour of Manick Sha Dargah on behalf of His Highness, the Maharaja of Mysore. The Superintendent of Inams Settlement Mysore, Bangalore, further confirms the title of the lands in question in favour of the second petitioner. By a notification dated 07.06.1965 under Section 5(2) of the Act, the lands in question were notified at Sl.No.286 as wakf property. By virtue of the second notification, the lands in question came within the control and administration of the first petitioner. The effect of such notification is tht the character of property belonging to a Wakf became final and conclusive and more particularly when not challenged within a period of one year from the date of publication 10

of the said notification. Till today the said notification is not challenged.

4. The Mysore (Religious and Charitable) Inams Abolition Act, 1955 (for short referred to as 'the Inams Abolition Act') was enacted providing for the abolition of certain Inams of specified land holdings. Consequently, the State issued a notification under Section 1(4) of the Inams Abolition Act dated 04.01.1960 appointing the First day of February 1960 as the date on which the provisions of the said Act shall come into force in respect of various inam villages specified in the schedule thereto. In terms of the provisions thereof, the lands to which the said Act were made applicable were consequently purported to vest in the State. The lands in question in Bellahalli Village were also fallaciously included in the said schedule. The Department of Muzrai did not take any steps to set right the anomaly. The purported vesting of the land in question in the 11

State was neither legal nor proper, inasmuch as the said lands were purely Wakf in nature and are indisputable property, the title of which vests in God Almighty. The property which is Wakf cannot be classified as inam lands and on that fallacious assumption, they were brought within the sweep of the Mysore Inams Abolition Act. In any event, the property which has once been dedicated for Religious, Charitable and Pious purposes automatically vests in God Almighty and is impressed with the character of Wakf and continues to remain as wakf till eternity. The Wakf Act is an enactment which is pith and substance applies to the Wakf, whilst the Inams Abolition Act is a legislation relating essentially to land and land reforms. Hence its provisions cannot override the provisions of the Wakf Act. Thereafter they have referred to various correspondence between the second petitioner and the Government as well as the first petitioner. They have referred to the orders passed by the Addl. Special 12

Deputy Commissioner for Inams Abolition granting occupancy rights in respect of the lands in question in Sy.Nos.1 to 54 and 56 to 72 of Bellahalli Village and consequent mutation entries made in favour of those grantees. The appeal filed by the petitioners challenging those mutation entries also came to be rejected. They have also referred to the several orders passed by the Committee constituted for regularisation of unauthorised occupation granting the land to various unauthorised occupants who were in possession of portions of the said land. When their request to restore the said land did not yield any result, they have chosen to prefer these writ petitions seeking the aforesaid reliefs.

5. Respondent Nos.20, 21 and 22 have filed statement of objections contesting the claim of the petitioners. They contend that the writ petitions filed after lapse of fifty years with no proper explanation for 13

the inordinate delay in filing the writ petitions is a good ground to dismiss the petitions on the ground of delay only. They also contend, Annexure 'A' the grant certificate on which reliance is placed is not a genuine document. It is a fabricated for the purpose of the case. A portion of Annexure 'A' is a Farsi (Persian) language whereas in the second page, these respondents are given to understand that the language used is old Kannada and Marathi. There is variation in the handwriting in Annexure 'A'. The respondents have also obtained translation of the said document. They have made available a copy of the same. They contend the name of Gulam Hyder is not found in Annexure 'A'. As per Annexure 'A' the inam order was passed in 1221 of hijri calendar. According to its conversion to Gregorian calendar, the year is 1806. The document further states that the inam has been for the long life of the king. The fact of the matter is Tippu Sultan died in the month of May 1799. The automatic conversion of the 14

dates is made in the website calendarhome.com and when the year 1221 of hijri calendar is converted to Gregorian calendar, the year was displayed as 1806. They have produced extracts of the information obtained from the internet. It shows that Annexure 'A' has come into existence after the death of Tippu Sultan.

6. The petitioners have not sought for regrant under the Inams Abolition Act and hence they have lost their right if any in the property in question. The notification extending the Act to the land in question has been acted upon and several grant orders and regrant orders have been passed. Third party rights have been created over the properties in question. The petitioners have been indolent and slept over the matter for about fifty years. Therefore the petitioners are not entitled to any relief under Articles 226 and 227 of the Constitution.

15

7. The contention of the petitioners that the Act is not applicable to the wakf land is unsustainable. Firstly, the lands in question are not wakf lands by any stretch of imagination. Even assuming for the sake of argument without conceding that the property is a wakf, even then by virtue of non-obstante clause in Section 3 of the Act, the land vests with the Government. The petitioners have not questioned the validity of the Act, but are questioning only the notification issued under the Act and hence the petitions are not maintainable. Then they have referred to regrant orders passed, the correspondence between the petitioners and the Government and they have set out their title and several alienations and the mutation entries in their name and they contend the petitions are liable to be dismissed.

8. The learned Single Judge who heard this matter after referring to the various documents relied on by the parties and after referring to the provisions of the law 16

on which reliance is placed and also taking note of the judgments cited in support of their contentions has held that the aforesaid material discloses and as admitted by the petitioners at para-7 of the petition, petitioner No.2 is the Inamdar. The land in question is a Devadaya Inam, showing the petitioner No.2 as the holder of the lands. Section 3 of the Inams Abolition Act deals with vesting of the land. Once by a notification the said Act is made applicable to a village/land, the land vests with the Government. In the instant case by virtue of the notification dated 04.01.1960 appointing 01.02.1960 as the appointed date, the provisions of the Act applied to the land in question. From that day the land vests in the government. Free from all encumbrances, subject to the right of Inamdar to seek regrant or compensation. If any notification issued by the Wakf Board notifying the very same land as wakf property, it has no value. Therefore, relying on the said notification issued by the Wakf Board, it cannot be said that the property in question is a Wakf property. 17

Even otherwise, after the notification under the Inams Abolition Act and also after the notification under the Wakf Act for nearly 50 years the petitioners have slept over the matter. In the meanwhile, the land has been granted to the tenants who were in occupation of the land on the date of vesting. Similarly, persons who were in unauthorised occupation have been granted the land by regularisation of their unauthorised occupation. The mutation entries have been made on the basis of the said grant, who in turn, have sold the property and the purchasers' name is entered in the mutation records and they are put in possession. Therefore at this length of time, the petitioners who lost their right nearly 50 years back have no right to maintain the writ petitions. Therefore, the learned Single Judge dismissed the writ petitions both on merits as well as on the ground of limitation. Aggrieved by the said order, the present appeals are filed.

18

9. Sri Padmanabha Mahale, the learned Senior Counsel appearing for the appellants-petitioners contended that the land in question is not an inam land. The land was dedicated to God and even otherwise, when the land is given for a pious, religious or charitable purposes it constitutes a wakf and therefore neither the God nor the wakf is an inamdar. Certainly the second petitioner is not an inamdar of the land and therefore the provisions of the Inams Abolition Act is not attracted to the lands in question. In 1965 after conducting a survey, the Government called upon the Wakf Board to issue a notification to notify the said land as a wakf land and accordingly notification has been issued. Till today no one challenged the validity of the said notification and therefore it constitutes a wakf property and the Government had no jurisdiction either to grant the land to the so-called tenants who were in occupation of the land prior to the date of vesting or grant the land to the unauthorised occupants of the 19

land by regularising their unauthorised occupation. Therefore, he submitted that the learned Single Judge without properly appreciating the facts and the law on the point committed an error in dismissing the writ petitions.

10. Sri Ashok Haranahalli, learned Senior Counsel appearing for some of the respondents contended the translation given by the petitioners about the Sanad is not correct. They have produced the correct translation. The said document shows there is no dedication. On the contrary it clearly shows the land in question is inam to the second petitioner for the purpose of carrying out religious activities i.e., by collecting the revenue from the said lands from the occupants of the land and therefore, it is not a case of dedication. It is not a case of transfer of interest of immovable property in favour of either the second petitioner or God as sought to be made out by the petitioners. As is clear from both the 20

translations, it is an inam land. Therefore it is not in dispute that the land in question is an inam land. It is a Devadaya Inam land. In para-7 of the petition the petitioners have described second petitioner as the Inamdar and therefore the Inams Abolition Act is applicable to the land in question which is a land granted as an inam to a religious institution which stood vested with the Government from the appointed date. Therefore, whatever right that was conferred in the land in favour of the second petitioner stood extinguished and the land vested with the Government free from all encumbrances. In terms of the provisions of the Inams Abolition Act persons who were in occupation of the land as tenants can apply for grant and it has been granted to them. Persons who were in unauthorised occupation of the said land applied for regularisation of their occupation and accordingly, their occupation was regularised and land was granted to them. The petitioners till today have not challenged any 21

of those orders. Acting on the orders, mutation entries were made. After the expiry of the prohibition period, grantees have sold the property and third parties have come into possession of the property. Mutation entries were made in their names. They have developed the property. In the meanwhile 50 long years have lapsed. Therefore these petitions filed seeking a declaration that the land in question is not an inam land, and that it is not vested with the Government under the Inams Abolition Act is not maintainable. In the absence of the validity or the vires of the Act itself not being challenged, mere challenge to the notification which is in the nature of delegated legislation is not maintainable.

11. Sri Jaykumar S.Patil, learned Senior Counsel appearing for some of the respondents contend the Sanad on which reliance is placed is of the hijri year 1221 which corresponds to Gregorian year 1806. The 22

said Sanad is said to be issued by Tippu Sultan, the King of Ghazi. He died on 04.05.1799 and therefore the said Sanad which has come into existence after his death in his name do not confer any right on the petitioners. Even otherwise, as is clear from the recitals therein, it is not a dedication of the land either to God or to the second petitioner. It is an inam given to Dargah of Manick Sha for the purpose of carrying out their expenses. As is clear from the recitals, the revenue from the said lands be spent for wedding and other expenses of the Dargah. Therefore it is a case of inam, pure and simple. The second petitioner is the inamdar of the Religious and Charitable Institution to whom this land was given as inam. The Inams Abolition Act squarely applies to the lands. By the application of the said Act by issue of a notification, the said land vested with the Government free from all encumbrances. Admittedly the petitioners have not filed till today any application for regrant of the land. The 23

petitioners have not challenged any of the orders passed, subsequent to the said vesting in favour of the third parties. In fact, all of them are not made parties and therefore it is too late in the day for the petitioners to contend that it is a wakf property and the Inams Abolition Act is not applicable and therefore the said lands have to be restored to them.

12. Sri G.R.Lakshmipathi Reddy, learned Counsel for respondent Nos.9 to 19 also supported the said submissions.

13. The learned Government Advocate submitted that the land in question is an inam land. The second petitioner is inamdar. By issue of a notification under Section 4(1), the Inams Abolition Act was made applicable to the land in question. Therefore the lands vested with the Government free from all encumbrances. Thereafter the lands are granted to the tenants. The petitioners have no right. Even the 24

notification issued under Section 4(5) of the Wakf Act has no value, as it is not a wakf property at all and therefore he submits no case for interference is made out.

14. In the light of the aforesaid facts and the rival contentions, the points that arise for our consideration are :

(i) Whether the lands in question is an inam land or the wakf ?

(ii) Whether the Inams Abolition Act is applicable to the land in question ?

Point No.1:

15. The English translation of the Persian document Annexure 'A' reads as under:

In the name of Allah, the most Benevolent and the Merciful

SEAL

ORDER of the shadow of Allah-His Majesty Tippu Sultan, the Ghazi King

25

(Addressed) TO : the Present and Future Officers, Deshmukhs, Deshpandes and other Agriculture Officers of Bangalore Taluk in the Kingdom. ------

WHEREAS, the Village of Bellahalli with its four corners and Revenue derived from fifty Rahathas AND the village of Bhoopasandra with its four corners and Revenue derived from fifteen Rahathas (these two villages) located in Yelahanka be dedicated to meet the expenses of the Dargah Hazrath Manick Shah (RA). This is conferred as Inam.

WHEREAS, the two villages since the beginning of the month of in the Hijri year 1221 be entrusted to the Mujawars of the above mentioned Dargah so that the income derived be spent for the Urs and other requirements of the Dargah. Prayers be made for the long life of the King and the Government.

Every year fresh Sanad (in this regard) shall not be demanded. Copy of the same be retained. Written on the 22nd day of the month of Jakhi in the year abovesaid.

By Orders

Written by

Syed Ghulam Hyder

(Signature)

16. The translation given by the respondents is as under:

26

In the name of Allah the compassionate the Merciful

SEAL

The shadow of Allah, the king of heavens, Tippu Sultan, the King of Ghazi

The present and future subjects, deshmukhs and deshpandes and farmers of Bangalore. The bellahalli locality with all it's surroundings totally worth 50 rahathas and the bhoopsandra locality with all it's surroundings totally worth of 15 rahathas, both localities located in yelahanka next to town of bangalore is given as An'am to dargah of manik shah.

From the beginning of the Ahmadi (Ramazan) month of hijri year 1221 both the localities should be entrusted to the mujawars so that the revenue from that be spend for the wedding and other expenses of the dargah. May they make duas for the long life of the king and the government.

Every year new sanad should not be demanded.

retain a copy.

Translated by Somayeh Besharatri

Private Translator (Persian - English) Satko Palm Trees,

27

Martahalli, Bangalore.

17. In the translation given by the respondents, the word 'Dedicated' is conspicuously missing. In this place what we find is An'am to dargah of manik. But in the document produced by the petitioners, after the words 'dedicated', to meet the expenses of Dargah Hazrath Manick Shah, it is categorically stated 'this is conferred as inam'. In the second para of the translation given by the petitioners, it is clearly mentioned that 'the two villages since beginning of the month of in the Hijri year 1221 be entrusted to the Mujawars of the above mentioned Dargah so that the income derived be spent for Urs and other requirements of the Dargah', whereas in the translation given by the respondents, it is mentioned as 'from the beginning of Ahmadi after (Ramzan) month of hijri year 1221 both the localities should be entrusted to the Mujawars so that the revenue from 28

that be spent for the wedding and other expenses of the dargah'.

18. It is in the background of these recitals, we have to look at the definition of Wakf as contained in the Wakf Act, 1995 on which reliance is placed. It reads as under:

"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 -

(i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;

(ii) "grants", including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and

29

(iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable,

and "wakf" means any person granting such dedication;"

19. Explaining the meaning of the Wakf as defined in the Wakf Act, Mulla in his principles of Mahomedan Law has explained the meaning of Wakf. "The term Wakf literally means detention. Wakf signifies the extinction of the appropriator's ownership in the thing dedicated and the detention of the thing in the implied ownership of God, in such a manner that its profits may revert to or be applied for the benefit of the mankind. A wakf extinguishes the right of the wakf or dedicator and transfers ownership to God. The mutawalli is the manager of the wakf, but the property does not vest in him, as it would in a trustee in English law. A dedication to a pious or charitable purpose is meant, the right of wakf is extinguished and the 30

ownership is transferred to the Almightly. It must be a permanent dedication. If the dedication is not permanent, wakf is invalid.

20. From a reading of the entire document, it is clear the intention of the wakeef was not to give these lands as a permanent dedication. What is given is the right to collect the revenue and spend the same towards expenses of the Dargah. Therefore, it is clear from the aforesaid translated copy, there was no intention on the part of the Wakeef to dedicate the property to God. What is given under the said document is only right to collect the revenue from the land and spend it towards meeting the expenses of the Dargah. In the translation provided by the petitioners, the word used is 'this is conferred as Inam'. When the document expressly states as inam, which is also supported by the recitals read as a whole, it is not possible to accept the contention of the petitioners that it is not an inam, but 31

it is a wakf. Therefore, the land in question is an inam land and not a wakf property.

Point No.2 :

21. The Inams Abolition Act was enacted by the state legislature in public interest to provide for the abolition of Religious Charitable Inams in the Mysore area. It applies to religious inams including the Sringeri Jahgir and charitable inams. The explanation to sub- section (3) of Section 1 provides/extends the meaning of 'Religious inam' or 'charitable inam'. It means a grant of a village, portion of a village or land entered in the register of imams, quit-rent register, alienation register, or any revenue account maintained by or under the authority of Government as Devadaya inam or Dharmadaya inam, as the case may be. 'Inamdar' means a religious or charitable institution owning an inam. Section 3 of the Act provides for consequences of vesting for an inam in the State. It provides when the notification under sub-section (4) of Section 14 in 32

respect of any inam has been published in the Mysore Gazette, then, notwithstanding anything contained in any contract, grant or other instrument or in any other law for the time being in force, with effect on and from the date of vesting, and save as otherwise expressly provided in this Act. The consequences which follow are enumerated. Clause (b) provides all rights, title and interest vesting in the inamdar including those in all communal lands, cultivated lands, uncultivated lands, whether assessed or not, waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries, shall cease and be vested absolutely in the State of Mysore, free from all encumbrances and persons who are entitled to be registered as occupants are given an opportunity to make an application and in the absence of any such claims from the occupants, the inamdar has been given a right to seek for regrant of the land for which 33

there are no claims or claim compensation in respect of the lands which cannot be regranted.

22. From the material on record, it is clear both from the Sanad and also the entries in the quit-rent register it is clear the land in question is entered as an inam land. In para-7 of the petition, second petitioner claims to be an Inamdar of the land. The land in question is given as an inam to the second petitioner which is a Religious and Charitable Institution. Therefore, Section 3 of the Inams Abolition Act is attracted. When a notification was issued extending the provisions of the Act to the land in question, the said land vested with the State Government free from all encumbrances. Neither the validity of the Act nor the notification extending the application of the Act to the land was challenged by the petitioners for nearly 50 long years. Even now, what is challenged is the notification and not the validity of the Act. The notification is issued in pursuance of the Act. If the Act is applicable the notification only extends the 34

application of the Act. When the Act is not challenged, the notification cannot be challenged. Even otherwise, as is clear from the statutory provision the land in question being an inam land and the second petitioner being the inamdar, the said land vested with the Government free from all encumbrances. Therefore, the Inam Abolition Act is applicable to the land in question, and the lands vested with the Government free from all encumbrances.

23. It is on record for the last fifty years, tenants who were cultivating the land applied under the provisions of the Inams Abolition Act for grant of land and have been granted occupancy rights. Persons who were in occupation of the land unauthorisedly applied for regularisation of their occupation. Accordingly they have also been granted lands. Mutation entries are made in their favour. The appeal filed challenging those mutation entries by the petitioners have been dismissed. After expiry of the prohibited period these grantees have sold the land, in turn to the third parties. The third parties 35

have got mutation entries in their name. They have developed the property and have got into possession.

24. Under these circumstances, the petitioners being silent spectators for all these developmental activities having not challenged those orders, have chosen to file these writ petitions nearly after fifty years. We do not see any merit in these appeals. The finding of the learned Single Judge that the petitions are liable to be dismissed both on grounds of merit as well as on the ground of delay and laches is fully justified and no case for interference is made out.

Hence, the appeals are dismissed. Parties to bear their own costs.

Sd/-

JUDGE

Sd/-

JUDGE

JT/-