SHAZDAH BEGUM SHUSHTARY Vs. KARNATAKA BOARD OF WAKFS

JUDGEMENT

(1.) Appellants before us the original complainants before the Wakf Board -- Respondent No. 1 herein are invoking the provisions under the Wakf Act 1954, Wakf Board is a necessary or proper party. This contention is not accepted by the enquiry officer appointed by the Board under Section 45(1)(b) and his order is confirmed by the learned single Judge in the writ petition filed by the appellants against his order. That is how the appellants have filed this appeal. The appellants approached the Wakf Board under Section 44 of the Act, for enquiry into the alleged transaction which respondent No. 3 wanted to enter into by way of lease in favour of respondent No. 5. Section 44 of the Act, lays down that any person interested in a wakf may make an application to the Board supported by an affidavit to institute an inquiry relating to the administration of the wakf and if the Board is satisfied that there are reasonable grounds for believing that the affairs of the wakf are being mismanaged, it shall take such action thereon as it thinks fit. Further, Section 45 lays down that : (1) the Board may, either on an application, received under Section 44 or on its own motion - (a) hold an inquiry, in such manner as may be prescribed; or (b) authorise any person in this behalf to hold an inquiry into any matter relating to a wakf and take such action as it thinks fit; and that (2) for the purpose of any inquiry under this Act, the Board or any person authorised by it in this behalf shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), for enforcing the attendance of witnesses production of documents.

(2.) Mere look at these sections show that the Board itself may hold an inquiry or under Section 45(1)(b) the Board may authorise any person to hold an enquiry in the matter and take such action as it may think fit. It is obvious that the Wakf Board may have to hold an inquiry on the application of the appellant. Instead, it followed the second course under Section 45(1)(b) of the Act. The authorised person in this case is none other than the number of the Wakf Committee who will have to hold an enquiry on behalf of the Board and submit his report so that the Board can take action as it thinks fit exercising powers under Section 45(1)(b) of the Act. That stage still has not yet reached. The dispute is between the original complainants and the respondent 3 Committee. The application of the appellants was rejected by the Enquiry Officer after hearing both sides holding that the Wakf Board was neither a necessary nor a proper party to the enquiry proceedings. That order of the Enquiry Officer was challenged in a writ petition. The learned single Judge rejected that writ petition holding that the Enquiry Officer is an authorised agent of the Board and thus the Board is neither a necessary nor a proper party to the enquiry proceedings. Learned counsel for the petitioners/ appellants submitted that the learned single Judge has not appreciated Sections 57 and 59 of the Act. Sections 57 and 59 of the Act read as under:

(3.) It was one of the grievances made by the appellants that the observation made by the Enquiry Officer that the objections were invited to the proposal and the Board has not yet exercised its powers under Section 36A of the Wakf Act, is beyond the scope of the enquiry. It is difficult to countenance this submission made by the learned Counsel. It is obvious that the issues framed in enquiry under Section 45, will have to be decided in the light of the evidence that they may be let in by the contesting parties before the Enquiry Officer and he will have to answer the issues and submit his report to the Board; and then the Board will take action in the matter. The stage under Section 36A has not been submitted to the Board under Section 36A, cannot at this stage, form subject matter of the enquiry being made under Section 45 by an authorised officer of the Board.