Managing Committee, Quabristan ... vs Delhi Walf Board
1995 Latest Caselaw 173 Del

ORDER

D.P. Wadhwa, J.

1. This petition under Art. 226 of the Constitution has been filed by the petitioner, a Managing Committee of Qabristan Punj Peeran, which Committee was constituted by the Chairman of the Delhi Walf Board ("the Board" for short) under the authority conferred upon him by Resolution No. 7 dt. 14 Nov.. 1993 of the Board. Twelve members constitute the petitioner-Committee. The petitioner prays for writ of certiorari or any other appropriate writ, order or direction forgetting aside the notice dt. 15th Nov., 1994 issued by the Board and for a declaration that the contract entered into between the Board and Saaz Advertising Company, Okhla, New Delhi, is null and void. Further prayer is for directing the Board to act in accordance with law and not to encroach upon the power and functions of the petitioner including the right of the petitioner to collect charges/rent from the advertising companies whose holdings are installed on the premises of the Qabristan Punj Peeran. We issued notice to show cause as to why rule nisi be not issued on the averment of the petitioner that it was a mutawalli of the Qabristan duly appointed under the Walf Act, 1954, and its duties among others include managing and/or administering the walf land and furnishing of returns, etc., to the Board and to discharge public dues. It was stated that the impugned action of the Board infringed upon the statutory duties of the petitioner. During the pendency of this writ petition certain interim orders had been made but those are not relevant for the purpose of decision of this petition. It is not disputed that the petitioner is a mutawalli as defined in Cl.(f) of S.3 of the Walf Act. As per this definition, "mutawalli" means any person appointed either verbally or under any deed or instrument by which a walf has been created or by a competent authority to be the mutawalli of a Walf and includes any naib mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and, save as otherwise provided in this Act, any person or Committee for the time being managing or administering any Walf property as such. "Walf" is also defined in Cl.(1) of S. 3 which, in relevant part, means "the permanent dedication by a person professing Islam of any moveable or immoveable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes....." Section 15 of the Act tells us the functions of the Board. The Board has the general superintendence of all Walfs in a State and it shall be the duty of the Board to exercise its powers under the Act as to ensure that the Walfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to objects and for the purposes for which such Walfs were created or intended. Functions of the Board also include maintenance of record containing information relating to the origin, income, object and beneficiaries of every Walfs; to give directions for the administration of Walfs; to settle scheme of management for a Walf; to appoint and remove mutawallis in accordance with the provisions of this Act; to institute and defend suits and proceedings in a Court of law relating to Walfs; to call for such returns, statistics, accounts and other information from the mutawallis with respect to the Walf property as the Board may, from time to time require; and generally do all such acts as may be necessary for the due control, maintenance and administration of Walfs. We have mentioned some of these functions to show the extent of authority which the Board exercises over the Walfs in the State. Section 36 provides for duties of mutawallis and this section is as under:--

"36. Duties of mutawallis. It shall be the duty of every mutawalli

(a) to carry out the directions of the Board;

(b) to furnish shall (such) returns and supply such information or particulars as may from time to time be required by the Board;

(c) to allow inspection of Walf properties, accounts or records or deeds and documents relating thereto;

(d) to discharge all public dues; and

(e) to any other act which he is lawfully required to do by or under this Act."

Chapter VI of the Act contains provisions for finance. Section 46 which falls under this Chapter provides for annual contributions payable to the Board by the mutawalli of every Walf. The mutawalli of every Walf shall pay annually to the Board such contribution not exceeding six per cent, of the net annual income accruing in the State to the Walf as the Board may, subject to the sanction of the State Government, from time to time, determine. This provision, however, does not apply where net annual income does not exceed Rs. 100/-.

2. Petitioner says it has carried out various works of improvement in the qabristan and since it was not having sufficient income and means to generate funds for the maintenance and upkeep of qabristan it allowed advertising agencies to put up their hoardings on the qabristan land. Petitioner says it is entitled to do so and appropriate the income for the purpose of proper administration of the qabristan land and that the Board is entitled to only a part of the income as mentioned in the Act. Petitioner has objected to the letter of the Board to various advertising agencies not to pay any money to the petitioner and the immediate cause of action for filing this pe'tition has been a letter/notice dt, 15th November, 1994 addressed by the Board to M/s. Saaz Advertising Company authorising it to display the hoardings at the qabristan and stating that the petitioner or any other authority had no right to claim anything from M/s. Saaz Advertising Company. In support of his submission that action of the Board is illegal, Mr. Malhotra has referred to two decisions -- one of the Madras High Court and the other of the Gujarat High Court. In T. E. Mohammed Shareef v. Superintendent (Walfs), Central Zone, , the mutawalli had challenged a letter of the Superintendent of Walfs to the tenants of the properties not to pay any rent to the mutawalli. The Court held that the Superintendent of Walfs had no power to issue any such notice under the Act. The Court also held that even the Walf Board had no jurisdiction under the provisions of the Act to issue notice in question either on the ground that action to remove the petitioner from the office of mutawalli was being taken or on the ground that the petitioner had failed to submit his accounts to the Walf Board or failed to pay the contribution to the Walf Board. In Syed Khersha Sajayshah Muta-walli, Bhuj Kutch v. Bhuj Municipality, , the question was whether the mutawalli had no right to file the suit for declaration that the defendant had no right to make use of the suit qabristan which was owned and was in possession of the plaintiff as mutawalli and for permanent injunction restraining the defendants from making use of the qabristan or from making any construction on it and to restrain the defendant from obstructing the plaintiff from making use of it. The Court after examining various provisions of the Act came to the conclusion that the suit was maintainable.

3. We do not think either of the two decisions are of any help to the petitioner in the present case. The Act was enacted to provide for the better administration and supervision of Walfs. The Board is constituted under S. 9 of the Act and is a body corporate having perpetual succession and a common seal with power to acquire and hold property and transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued. The Board is entrusted with various tasks as provided under the Act. Before the present Board was constituted, the earlier Board passed Resolution No. 7 dt. 14th Nov., 1993 authorising the Chairman of the Board and Khwaja Hasan Sani Nizami to approve the names of the Managing Committee as its members and to forward the same to the Board. The resolution said that "the Managing Committee is constituted for the management of the graveyard, the burial of dead bodies and to protest it from any kind of encroachment and as per directions issued by the Board and with specific directions that the Committee will not enter into any agreement with any party whatsoever in respect of display of hoardings at the Walf land. On the authority df this resolution the Chairman of the Board in consultation with Khwaja Hasan Sani Nizami constituted a Managing Committee (i.e., the petitioner) consisting of twelve members for a period of five years. The order dt. 17th Feb., 1994 constituting the Managing Committee (i.e., the petitioner) also records as under:--

"This Committee will manage the graveyard only and will have no link with the mosque or the Madarsan going on there. The Committee will not put up any hoarding at the site which will be the sole responsibility of the Delhi Walf Board. The Managing Committee will have no authority to lease out any land in the Qabristan Punj Peeran."

4. The respondents have challenged the very constitution of the Committee itself. On Jan, 6, 1994 the Deputy Commissioner, Delhi, informed the Board that Chief Minister had desired that pending reconstitution of the Delhi Walf Board in early March, 1994, no major policy decision be taken and that the present Board should not give out Walf properties on lease, rent, etc. "which could create legal complications for the successor Board." This letter was within the knowledge of the Chairman who constituted the Managing Committee (i.e., the petitioner) on 17th Feb., 1994. Respondent, therefore, contends that the Chairman of the Board should have waited and not constituted the Managing Committee. It appears to us that a controversy was raised when new Board was constituted. Some of the employees of the Board filed a Writ Petition (CWP No. 3544/ 94) praying for a direction that a resolution passed by earlier Board may not be rescinded by the newly constituted Board. It appears, the earlier Board gave certain benefits to the employees and also some other acts were performed which ultimately have been rescinded by the new Board. This petition was dismissed on 25th Oct., 1994 with the following observations:--

"We have heard Mr. Jaitley. According to him, a public announcement was made on 1-7-1994 about reconstitution of the Waqf Board. Due to public announcement, every member of the Walk Board must have known it that the Waqf Board is being reconstituted. Despite this knowledge, they proceeded to pass resolution dt. 4-7-1994 whereby various acts were done without their being in (any) proper agenda of the Board. It is these acts which are sought to be made enforceable in these proceedings.

We are not inclined to entertain this petition. All interim orders made are vacated.

Dismissed."

5. The Committee which had been constituted by the Chairman of the Board in pursuance to resolution dt. 14th Nov., 1993 "for the management of the graveyard, the burial of dead bodies and to protect it from any kind of encroachment" was not a Committee of the Board as constituted under S. 16 of the Act which provides that the Board may, whenever it considers necessary, establish either generally or for a particular purpose or for any specified area or areas Committee for the supervision of Walfs, The Committee which comes within the definition of mutawalli as contained in Cl. (f) of S. 3 of the Act and constituted by virtue of resolution dt. 14th Nov., 1993 was specifically directed not to enter into any agreement with any party whatsover in respect of display of hoardings at the Walf land. The petitioner, therefore, could not go beyond its powers conferred on it by the Board. Even the order dt. 17th Feb., 1994 constituting the petitioner-Committee also specifically provided that the Committee would manage the graveyard only and would have no link with the mosque or the madarsan going on there. It was also barred from putting up any hoarding at the site which would be the sole responsibility of the Board and further that the petitioner-Committee would have no authority to lease out any land in the qabristan in question. The Committee is, thus, a creation of the statute constituted under resolution of the Board and has to exercise powers within the limits imposed by the Board constituting it. It cannot spread its wings to contend that in spite of limitations imposed on it, it still has the powers to enter into contract with advertising companies for putting up the hoardings and getting the income therefrom to the exclusion of the Board. Section 36 of the Act prescribes duties of the mutawalli and one of such duty is to carry out the directions of the Board. Under S. 41, if a mutawalli fails to carry out the directions of the Board, he is liable to penalty as well, as prescribed therein. Under sub-sec. (2) of S.43s, a mutawalli can also be removed, and this sub-section is as under:--

"Where a Committee is appointed by the Board or any person or authority not being a Court of law to act as a mutawalli for managing or administering any Walf property and the Committee, in the opinion of the Board, is unable to perform, or has persistently made default in the performance of, the duty imposed on it by or under this Act or has exceeded or abused its powers, the Board may supersede the Committee and appoint any other person or Committee to act as the mutawalli of the Walf property."

6. During the course of hearing it was also pointed out to us that some members of the petitioner resigned but then it was asserted that out of them some withdrew their resignations.

7. We do not think the rights of mutawallis are all pervasive under the Act. In this case right of the petitioner was restricted not only by the resolution of the Board dt. 14th Nov., 1993 but also by the order dt. 17th Feb., 1994. The petitioner, therefore, could not enter into any agreement with any advertising company to put up hoardings at the qabristan and that only the Board could enter into any such agreements. An Application (C.M. No. 9339/94) was also filed by Saaz Advertising Company under 0.1, R. 10 and S. 151 of the Civil P.C. seeking to be added as a party in these proceedings. The Act does not prohibit the Board to keep to it some of the powers relating to management of the Walf property. The petitioner in the present case is a creation of the statute and has to exercise powers under the Act. This petition, therefore, fails and is dismissed. There will be no order as to costs.

8. Petition dismissed.