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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.)

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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.

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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)

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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,

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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

S E A L

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

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(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:

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In the name of Allah the compassionate the Merciful

S E A L

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,

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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

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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

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(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

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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

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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

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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/-