Amar Nath @ Bunti vs State Of Bihar And Ors

Ajay Kumar Tripathi, J

Heard learned counsel for the parties.

Appellant was the petitioner before the writ Court. He assailed the decision or the order, dated 05.04.2007, issued by the Chief Executive Officer,

Bihar State Sunni Wakf Board, Patna, directing the appellant and others to remove encroachment from the Wakf property and hand-over possession

thereof to the Muttawalli of Wakf Estate No. 373, Mohalla â€" Sarkari Bazar, Karim Chak, Post â€" Chapra, District â€" Saran. The communication,

dated 05.04.2007 was issued under the purported exercise of power under Section 54 of the Wakf Act, 1995, read with Rule 46 (3) of the Wakf

Rules, 2002.

Since the Learned Single Judge dismissed the writ application and permitted the appellant to move the Wakf Tribunal against the said decision, the

appeal has been preferred against the said order.

Submission of the counsel for the appellant is that there are enough materials and evidence on record to show that the Wakf property was settled in

favour of the appellant or their ancestors by a conscious decision taken under the provisions of 1947 Wakf Act. The conscious decision was taken by

the Majlis on the recommendation of the Mutawalli and alienation of immovable property was permissible under the 1947 Act and in this regard

attention of the Court has been drawn to Section 27(2)(j).

The decision of the Majlis is available on record. Even a civil dispute arising out of such a decision culminated in favour of the appellant or his fore-

fathers. If that be so, then by no argument can it be said that the appellant happens to be an encroacher of the Wakf property. His continuance or

occupation is under a settlement, which has been in existence since 1938.

Another matter of significance is that the Bihar Wakf Act, 1947 was followed by Bihar Wakf (Amending and Validating) Act, 1950, wherein the

validation of the establishment of Majlis and all acts and decisions taken by them under the previous enactment and provision was deemed to be as

good and effectual as if such orders, bye-laws, powers, duties, acts or things had been issued, made, exercised, performed or done by a Majlis, validly

established under the said Act.

Obviously, this aspect of law seems to have been missed out by the Learned Single Judge and, therefore, holding that the Chief Executive Officer had

due powers to throw out any person or every person in occupation of Wakf property seems to be a misplaced reasoning.

The Court reaffirms that the status of the present petitioner is not that of an encroacher, therefore, the decision and the order impugned in the writ

application, dated 05.04.2007, issued by the Chief Executive Officer of the Sunni Wakf Board, deserves to be quashed and is quashed. As a

consequence thereof, the order of the Learned Single Judge, dated 08.01.2015, dismissing the writ application and relegating the appellant to the Wakf

Board Tribunal is also set aside and the appeal is allowed.

Before parting, however, the Court is of the opinion that the Chief Executive Officer, does not, obviously, seem to be well versed with law and he has

enough powers under the Statute, but then a wrong exercise of power can never be given indulgence to.