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CASE NO.: Appeal (civil)  3329 of 2008

PETITIONER: Mohammedia Coop. Building Society Ltd

RESPONDENT: Lakshmi S. Coop. Building Society Ltd. & Ors

DATE OF JUDGMENT: 06/05/2008

BENCH: S.B. Sinha & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO.        3329          OF 2008 (Arising out of SLP (C) No.5606 of 2007) With Civil Appeals Nos.   3337-3338 & 3339  of 2008  (Arising out of SLP (C) Nos.14626-14627 and 14168 of 2007)

S.B. Sinha, J.

1.      Leave granted. 2.      Application of the Wakf Act, 1954 and the Rules framed by the State  of Andhra Pradesh as regards a suit for specific performance of contract is in  question in this appeal which arises out of a judgment and order dated  25.1.2007 passed by a Division Bench of the High Court of Judicature at  Andhra Pradesh at Hyderabad in AS No.686 of 2005, 743/05 and 125/06.   3.      The property in question indisputably is a wakf property.  It  admeasures Ac.35.20 cents pertaining to Survey No.63 of village  Bhavanipuram in the town of Vijaywada.  Vijaywada is one of the biggest  commercial hubs in the State of Andhra Pradesh.  There exists a Dargah  known as Dargah of Hazrat Galib shaheed.  Inter alia, on finding that the  Mutwallis appointed for the said Dargah had not been performing their  duties in a proper and efficient manner, the Andhra Pradesh Wakf Board  appointed respondent Nos.2 to 9 as ’Mujavars’ by an order dated 27.7.1973,  stating : "According to the enquiry report first cited, it is  noted that the Dargah Hazrata Ghalab Shaheed at  Bhavanipuram village, Talaq, Krishna District; is a  notified Wakf in the A.P. Gazette Part II dated  28.6.1962.  On page 710 and 711 at Serial No.747.   The total extent of land notified in the Gazette is  116 acres 11 cents.  The notified Mutavallies are  (1) Sri Abdul Khuddus (2) Sri Abdur Rahman and  (3) Sri Abdul Hakeem\005 Among them the first Mutavalli was residing in  Guntur.  The second died and the third was  seriously laid down with paralysis and not in a  position to move out.  None of them were  performing legitimate duties under Section 36 and  rendering services to the said Dargah.  Therefore,  it was proposed to initiate enquiry under Section  45 and to take action under Section 43 against the  two living Mutavallies No.(1) and (3). As per latest report of the I.A. fifth cited it is noted  that the living Mutavallies also died.   Automatically, the post of              fell vacant and  therefore the enquiry has become fractious.  In the

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circumstances, in view of the Resolution of  D.W.C. Krishna third cited and recommendation  of the president D.W.C. Krishna sixth cited, I, the  Secretary, A.P. Wakf Board in exercise of the  Powers conferred on me through Resolution  No.14/69 of the Wakf Board vide A.P. Gazette  notification Part II dated 24.2.1972 on page 205,  under Section 43(2) of Wakf Act, hereby appoint  the Managing Committee for managementof  affairs of the said Dargah consisting of the  following persons with immediate effect :- 1.      Sri Shaik Ibrahim                       President 2.      Sri Gulam Ali Akbar             Secretary 3.      Sri Mohd. Ibranhim              Treasurer 4.      Sri Abdul Jaleel                        Member 5.      Sri Mahd. Haneef                        Member 6.      Sri Abdus Salam                 Member 7.      Sri Abdul Waheed                        Member"

4.      First respondent is a co-operative society.  On or about 2.8.1982, the  respondent Nos.2 to 9 allegedly entered into an agreement for sale with the  first respondent herein agreeing to transfer the said 35 acres 20 cents of land  at a price of Rs.70,000/- per acre.  5.      Allegedly, a sum of Rs.4,00,000/- in cash was paid as advance, a  receipt wherefor is said to have been issued. 6.      It is also not in dispute that the authority, if any, on the part of the  Mujavars to sell the said lands, were subject to permission granted by the  Wakf Board.   7.      On or about 25.2.1982, a notification was issued inviting objections  within one month from the date of the said notification subject to  confirmation by the Government which reads as under : "M/s. Srinivasa Cooperative Building Society  (G.No.2705) Vijayawada, have offered to purchase  an extent of Acres 35.20 cents of the land bearing  Sy.No.63 situated Bhavanipuram Village  Vijayawada Taluk, Krishna District, belonging to  Dargah of Galib Shaheed Rs.70,000/- per acre. The full particulars of the land are shown below:- I)      Nature and purpose of the       Sale for the          Proposed transaction    construction of                          the houses. II)     Amount of consideration 1) a) Price in case of sale     Rs.24,64,000/-     b)   Rental in case of lease III)    Current Description of Properties : 1)      Agriculture Lands: a)      Rs. No. 63 b)      Area : Acres 35.20 cents. c)      Land Revenue Assessment         Rs.226.70 d)      Boundaries : i)      North : Galib Shaheed Dargah                         and Mujawars Houses. ii)     Area  : Housing Board Colony. iii)    East   :        Brahmin Ashram. iv)     West  : Bhawanipuram village                         Vijayawada Taluk IV)     Any encumbrances to which the properties  relating to the proposed transaction are  subject to NIL V)      This sale will be subject to the following  conditions : 1)      That the sale is subject to the  confirmation by the Government. 2)      That the sale proceeds should be  invested in a Scheduled or

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Nationalized Bank in interest yielding  deposit. 3)      That the sale deed should be executed  at the expenses of the purchaser or  purchasee. 4)      That the sale proceeds should be  utilized for the 1 objects of Wakf and  for re-building the corpus affected by  the transfer. 5)      That the sale proceeds shall not be  utilized for raising loans. Any person having any interest in or  objection to the proposed transfer of Wakf  property may file his or her representation to the  Secretary.  Andhra Pradesh Wakf Board within  one month from the date of publication of this  Notification in the State/District Gazette.  No  representation received after the expiry of the  prescribed date will be entertained."

8.      Allegedly, upon publication of the said advertisement, several co- operative societies made their respective offers.  The offer made by the first  respondent was said to have been accepted.  It was communicated to the first  respondent by a letter dated 20.6.1982 purported to have been written by  Shaik Syed Hussain, IAS which is in the following terms : "After careful consideration of the subject, the  Board has been pleased to grant permission to the  Mujavars Association Dargah of Hazrath Galib  Shaheed Bhavanipuram, Vijayawada to enter into  an agreement in written to sell the land of an extent  of Ac.35-20 cents in R.S. No.63 situated at  Bhavanipuram, Vijayawada to the Lakshmi  Srinivas Cooperative Building Society Ltd. G.  No.2705 at Vijayawada at Rs.70,000/- per acre  after taking an earnest money of not less than  Rs.4,00,000/-.  The building Society may be  addressed to come forth to enter into a written  agreement on making payment of earnest money  of Rs.4,00,000/- within a month.  The agreement  may be got drafted with usual terms and conditions  of sale of wakf property.  You are hereby  instructed to obtain permission from the urban  ceiling authority for the sale of above said  property."

9.      Only thereafter, the said agreement for sale dated 2.8.1982 was  executed.  It was, however, contended by the appellant as also the  respondent Nos.2 to 9 that the said agreement was a forged document.  It  was furthermore contended that the said letter dated 30.6.1982 is also a  forged document.  Shaik Syed Hussain, IAS Officer examined himself  before the learned Trial Judge as DW-6 the denied his signatures. 10.     It, however, appears that the Wakf Board purported to have resolved  in a meeting held on 19.8.1982 that the offer of Rs.70,000/- was too low.  It  intended to secure better offer, at least to the extent of Rs.100,000/- per acre  in the following terms :

"Item : F.No.9134/H1/LA/KST/81 Proposal for the  acquisition position of the  Dargah land in R.S. No.10  Bhavanipuram for the  purpose of class I  employees and Harijans of  Vijaywada Corporation-

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Reg. Resolution No.120/82 The proposal for the sale  of land belonging to  Dargah Hazrat Ghalib  Shaheed, at  Bhavanipuram,  Vijaywada to Srinivasa  Co-operative House  Building Society,  Vijayawada and  Mohammadia Co- operative House  Building Society,  Vijaywada @  Rs.70,000/- per acre was  discussed Janab Sultan  Saheb, Hon’ble Member  informed the Board that  the offer of Rs.70,000/-  per acre was too low and  that he was sure of  getting better offer of not  less than Rs.1,00,000/-  per acre. RESOLVED to request  Janab R. Sultan Saheb,  Hon’ble Member of the  Board to visit  Vijayawada to secure  better offer as promised  by him and place the  same in the next Board  meeting for  consideration in respect  of Sy.No.63 and  Sy.No.10 of the land  belonging to Dargah  Hazarath Ghalib  Shaheed Rn.  Vijaywada."

11.     One Noor Housing Society, made an offer at Rs.1,26,000/- per acre.   Some correspondences had allegedly passed between the first respondent  (plaintiff) and the Wakf Board whereby and whereunder the first respondent  is said to have raised its offer from Rs.70,000/- to Rs.1,00,000/- by a letter  dated 16.8.1982 and then to Rs.1,26,000/- by a letter dated 23.10.1982,  stating : "Our Society has given an offer  to purchase the  land belonging to Dargah Hazarat Ghalib Shaheed,  Bhawanipuram, Vijayawada, O.S. No.63 to the  extent of 35.20 acres at the rate of Rs.1,00,000/-  (Rupees one lakh only) per acre.  We also assure  you that while allotting the plots to the members of  our Society, we will give preference to Muslims. In this connection, I would like to submit that we  are hereby revising our offer that is to say that our  offer and make it Rs.1,26,000/- (Rupees one lakh  twenty six thousand only) per acre.  And,  therefore, request you to please treat our offer as  Rs.1,26,000/- (Rupees one lakh twenty six  thousand) per acre. This offer is made without prejudices to our rights. Be pleased to consider."

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12.     Appellant herein also said to have initially made an offer of  Rs.1,26,000/-.  A bid was conducted wherein the appellant offered the  highest bid of Rs.1,28,000/-.   13.     At this stage, the State of Andhra Pradesh intervened.  It issued a  Government Order bearing No.773 on or about 4.5.1983 which reads as  under : "In the circumstances stated by the A.P. Wakf  Board in the letters read above, Government have  examined the matter carefully and they hereby  accord permission to A.P. Wakf Board to sell the  land Ac.35-20 cents belonging to Dargah Hazrath  Galib Shaheed in S.No.63 of Bhavanipuram (v),  Vijayawada Taluk, Krishna District to M/s.  Mohammadia Co-operative Building Society,  Vijayawada at Rs.1,28,000/- (Rupees one lakh  twenty eight thousand only) per acre which is the  highest bidder, subject to the following condition : (1)     That the sale proceeds should be invested  through the Secretary, Wakf Board in a scheduled  or estimalised Bank in interest yielding deposit; (2)     That the sale deed should be executed at the  expense of the purchaser or purchasers. (3)     That the sale proceeds should be utilized  exclusively for the subjects of said Wakf  institution and also for re-building the corpus  effected by the transfer."

14.     A notification pursuant thereto was purported to have been issued on  26.5.1983.  Allegedly, however, no advertisement was issued prior thereto  and, thus, no offer was called for.  Yet, a purported sanction was granted.   First Respondent questioned the said Government Order No.773 dated  4.5.1983 by filing a writ petition.  The said writ petition was dismissed  having become infructuous.   15.     The Government, however,  in the mean time, purported to have  accorded sanction by issuing G.O. 773 dated 4.5.1983 to sell the said land in  favour of the appellant society. 16.     A deed of sale was thereafter executed by the respondents 2 to 9 as  also the Wakf Board in favour of the appellant society.   First Respondent contended that pursuant to the said purported  agreement for sale dated 2.8.1982, it had been put in possession but it was  threatened to be dispossessed.  It, on the said premise, filed a suit for  permanent injunction which was marked as O.S. No.200 of 1983.   Allegedly, it was dispossessed.  It filed a suit for specific performance of the  contract.  The said suit was marked as suit No.449 of 1984; the prayers made  wherein were: "a)     For specific performance of the suit contract  of sale dated 2.8.1982 against the defendant  1 to 9 and 13 directing them all or these  when the Court finds necessary and proper  to execute and register sale deed or deeds in  favour of the plaintiff or its nominees at  their expense for the plaint schedule  property in whole or in parts as they choose,  or in the alternative, if the defendant 1 to 9  and 13 refuse to do so, for a direction that  the Court or any officer of the Court as  directed by the Court do so execute and  register the sale deed or sale deeds. b)      In the alternative for recovery of possession  of the plaint schedule property, if the  plaintiff is found not to be in possession  Added as per order in I.A.6980/91 dated  24.6.1992. c)      For a permanent injunction contesting the  defendants 1 to 10 and 13 interfering with

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the plaint schedule property and plaintiff  possession thereof; and For costs of the suit and such other orders as  are deemed jut and necessary."   

17.     Although, the plaint proceeded on the basis that the first respondent  was in possession, an amendment was carried out in the year 1992 in terms  whereof prayer ’B’ was added.  Both the suits were consolidated." 18.     Writ petition filed by Respondent No.1 was dismissed by a learned  Single Judge by an order dated 28.8.1984.  A writ appeal was preferred  thereagainst wherein it was held that the issues were required to be decided  by the Civil Court and, thus, it was not necessary to decide the same. 19.     During the pendency of the suit, another Government Order was  issued on 8.3.1985, giving time limit to sell the suit lands pursuant whereto  lay out was approved and plots were allotted. 20.     The learned Trial Judge by a judgment and order dated 19.10.2005  decreed the said OS No.449 of 1984, stating : "In the result, the suit is decreed with costs holding  that the plaintiff is entitled for the relief of the  Specific Performance sale deed, dated 2.8.1982 on  its depositing the balance sale consideration of  Rs.20,64,000/- within ONE MONTH from this day  and on such deposit D.10 to D.12 are directed to  issue the necessary orders for execution of sale  deed in favour of the plaintiff required under the  Wakf Act and ULC Act within 30 days after the  plaintiff depositing the balance sale consideration  and on receipt of such orders from the defendants  10 to 12, the defendant No.1 represneted by its  Mujavars and D.13 to execute regular sale deed in  favour of the plaintiff within ONE MONTH  thereafter and deliver possession of the plaint  schedule property to plaintiff and in default the  plaintiff is at liberty to get the sale deed executed  through the process of the Court.  The D.1 and its  Mujavars with permission of D.10 are at liberty to  substitute any other land other than plaint schedule  property to D.13 society."

       OS No.200 of 1983 was dismissed holding that the same was not  maintainable as the plaintiff had already prayed for grant of relief for  recovery of possession along with a decree for specific performance of the  contract. 21.     Three appeals were preferred before the High Court thereagainst.   They have been dismissed by reason of the impugned judgment.   22.     Before us, not only three separate appeals have been filed; one by the  society, the second by Dargah of Hazarth Galib Shaheed and the third by the  Wakf Board but also a large number of applications have been filed for  intervention and impleadment on behalf of the allottees.   We may place on record that at one point of time, the first respondent  filed an application for impleadment of the allottees who were about four  hundred in number in the suit but the same was however, not pressed.  Some  of the allottees have allegedly purchased the land before 24.4.1984, i.e.,  prior to institution of the suit.  Most of the applicants, however, have  purchased thereafter, namely, during the pendency of the suit.  Appellant  society also allotted lands in favour of Mujjavardars and/or their relatives. 23.     The State of Andhra Pradesh, however, itself issued G.O. No.343 on  or about 25th October, 1986 stating that there had been no advertisement and  as such the requirements of law as envisaged under the Act had not been  complied with on the basis of the purported complaints received by it from  various quarters.  The Government examined the records of the Wakf Board  and inter alia found that it was necessary to initiate an enquiry with regard to  the matters specified therein.  It also took notice of the fact that an enquiry  had been pending before the Special Officer and the Competent Authority,

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Urban Land Ceilings, Vijayawada as also the fact that the interim orders had  been passed by the High Court in writ appeal No.3191 of 1984.  It was  directed : "4.     Pending further enquiries into the above  irregularities noticed and the allegations,  Government after careful consideration hereby  order that all further proceedings in pursuance of  the G.O.Ms. No.773, Revenue (Wakf) Department,  at 4.5.1983 and G.O.Ms. No.250 Revenue (UC-1)  Department, dated 8.3.1985 are be and hereby  stayed. 5.      The Secretary, A.P. Wakf Board and the  Secretary Jammat-e-Mujavars Association of  Hazrath Galib Shaheed Dargah, Vijayawada are  directed to take immediate follow up action not to  proceed further in pursuance of the above  Government orders cited at 2nd and 3rd above,  pending enquiry by the approrpaite authorities into  the irregularities and the allegations mentioned  above, they will acknowledge the receipt of this  memorandum by return of the post."

24.     However, the Government by a communication dated 17.11.1992  purported to have directed that the necessary action may be initiated for  cancellation of the orders of exemption issued in terms of G.O. No.250 dated  8.3.1985 stating that transactions are null and void in terms of the provisions  of the Urban Land (Ceiling and Acquisition) Act, 1976.  However, as  noticed hereinbefore, admittedly, in the meantime, a deed of sale was  executed on 20.4.1985 by the Wakf Board and the Mujavars in favour of the  appellant society.  Indisputably, the respondent No.1 herein in the said O.S.  No.449 of 1984 although proceeded on the basis that it was in possession of  the lands in question, a prayer for amendment was made in the year 1992  whereby and whereunder a decree for recovery of possession of the plaint  schedule property was prayed for and allowed by order dated 24.6.1992. 25.     The High Court in its judgment, inter alia, opined that as the fact that  some of the Mujavars with their family members became members of the  appellant society by itself indicates strong circumstances to hold that the  majority of the Mujavars, the then Chairman of the Wakf Board and the  President of the District Wakf Property have substantial interest in the plaint  schedule property having been allotted plots not only for themselves but also  for their family members and only for the said purpose the defendants tilted  towards the appellants (defendant No.13 \026 society).  It was furthermore held  that the Mujavars were parties to the agreements although they made  attempts to deny or dispute the same.   The contention that the permission granted by the Government stood  cancelled upon taking into consideration GOMs No.343 staying the  operation of GOMs No.773 wherein a large number of irregularities were  recorded including the one that the Wakf Board did not follow the procedure  laid down under Rule 12 of the Rules read with Section 36A of the Act was  accepted.  Deed of sale executed by the appellant society in favour of the  allottees was also held to be hit by the doctrine of lis pendens.  The sale  transactions effected in favour of the appellant society were declared to be  null and void and on the said premise, the contention that all transactions  having already been completed, no further direction should be issued, was  furthermore rejected.   The High Court also took into consideration that exemptions had been  granted in terms of Section 20 of the Urban Land (Ceiling and Regulations)  Act, 1976 to come to the conclusion : "It is well known principle of law that the suit  relief can be moulded appropriately in order to do  complete and efficacious justice in appropriate  cases.  No doubt, as a general principle, the Courts  shall not grant the relief, which was not  specifically sought for. But, in peculiar and

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exceptional facts and circumstances, like the  present case, it is justified and absolutely  appropriate for the courts in order to do so  substantial justice, while granting the required  relief, to mould the relief appropriately, in the  interest of justice."

       The said appeals were dismissed on the aforementioned findings. 26.     Learned counsel for the appellants in all the three appeals, inter alia,  would submit : (i)     The agreement of sale deed 2.8.1982 (Exh.A-31) was wholly illegal as  Mujavars had no right, title or interest to execute the same in terms of  the provisions of the Wakf Act, 1954 or otherwise.   (ii)    The extended definition of ’Mujavars’ as contained in Section 3(4)  was not applicable in the instant case as the same had been brought  into force by way of amendment in the year 1986 and, thus, they  being not Mutwallis, could not have exercised the same power under  the Act.   (iii)   Section 36A of the Act postulates compliance of the requirements of  obtaining previous sanction of the Board as regards the sale of wakf  property, inter alia, on its satisfaction that : i)      It is necessary or beneficial to the wakf;  ii)     The sale is consistent with the objects of the wakf; and  iii)    The consideration is reasonable and adequate and the said  requirements having not been complied with, the same was  illegal. (iv)    Section 36A of the Act and Rule 12 of the Wakf Rules being  imperative in character, no deed of sale could have been  executed in violation thereof and in that view of the matter, the  impugned judgment cannot be sustained.   (v)     The purported letter dated 30.6.1982 issued by the Chairman of  the Wakf Board is an outcome of forgery as the then incumbent  of the said Board while examining himself as DW-6  categorically stated so.  (vi)    The purported order dated 30.6.1982 (Exhibit A-49) is  fabricated document and was not in existence on the date of the  agreement of sale dated 2.8.1982, as : (1)     no reference thereto was made in the agreement for sale;  (2)     The stamp papers were purchased on 2.12.1981, i.e.,  eight months prior to entering into the said agreement  from Vyyuru, although the parties were residents of  Vijayawada. (vii)   Both the courts below have committed a serious illegality  insofar as they failed to take into consideration the question as  regards the validity of agreement (Exh.A-13), inter alia, in the  light of Section 17 of the Specific Relief Act, 1963   (viii)  The courts below should have held that the agreement was  executed under suspicious circumstances and in that view of the  matter the relief of specific performance being a discretionary  relief should not have been granted.   (ix)    From various correspondences passed between the parties, it  was evident that the plaintiff society also offered a bid of  Rs.1,26,000/- per acre and on the said premise the courts below  should have held that the first respondent was estopped and  precluded from contending contra.   (x)     No action having been taken pursuant to the purported  notification dated 25.10.1986 as regards the irregularities in the  proceedings of Wakf Board; the same could not have been  formed the basis for passing the impugned judgments, as G.O.  No.773 was passed on wrong premises.  (xi)    In view of the resolution of the Wakf Board dated 19.8.1982  that the offer of Rs.70,000/- was too low and bid was invited to  secure a better offer, the High Court should have allowed the  application for adduction of additional evidence.  

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(xii)   As the allottees were not parties to the suit, no decree for  specific performance against them could have been granted.   (xii)   There are intrinsic evidences on record to show that the  purported agreement for sale was a forged document and no  advance for a sum of Rs.4,00,000/- have been or could have  been paid by the plaintiff. 27.     Mr. Andhyarujina, learned senior counsel appearing on behalf of the  plaintiff-respondent, on the other hand, urged : (1)     The property being belonging to a Dargah, the Mujavars had the  requisite authority to negotiate with the plaintiff for the purpose of  entering into an agreement to sell which met the approval of the Wakf  Board.  It is only after the agreement of sale dated 2.8.1982 was  executed, the Mujavars and the Wakf Board took side with the  appellant society; and the Mujavars started negotiating with appellant.   (2)     The Government of Andhra Pradesh having no jurisdiction to pass any  order under the Wakf Act could not have passed the order dated  4.5.1983 as contained in G.O. 773 and, thus, the same was per se  illegal. (3)     The purported notification dated 25.6.1983 having been issued  without any advertisement and without inviting any objection therefor  but despite such illegalities, a sale deed was executed on 2.8.1982 by  the Mujavars in favour of the appellant society and only in that view  of the matter when the same having come to the notice of the  Government; GO No.343 dated 25.10.1986 was issued in terms  whereof not only the notification dated 26.5.1984 was found to be bad  in law but also the order of exemption from the operation of the Urban  Land Ceiling Act the order granting sanction was cancelled; the  purported deed of sale in favour of the appellant is bad in law.   (4)     OS No.200 of 1983 was filed only when attempts were made by the  appellant to dispossess the plaintiff but after issuance of the  notification dated 26.5.1983, the plaintiff had no other option but to  file a suit for specific performance of contract as also a writ petition  questioning the validity thereof and, thus, the same was maintainable. 28.     The property is a Wakf property.  Its control and management in  terms of the provisions of the Wakf Act, 1954 (the Act) vested in the Wakf  Board.  The administration of the property, indisputably, was required to be  made in terms of the provisions thereof, in view of the fact that the Act was  enacted to provide for the better administration and supervision of the wakf.   The term ’Mutwalli’ is defined in Section 3(f) of the Act as under : "3. Definitions :\027 In this Act, unless the context  orhtewise requires\027 (f)     ’mutawalli’ means any person appointed  either verbally or under any deed or instrument by  which a wakf has been created or by a competent  authority to be the mutawalli of a wakf and  includes any person who is a mutawalli or a wakf  by virtue of any custom or who is a 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 or Corporation for the time being  managing or administering any wakf or wakf  property;         Provided that no member of a Committee or  Corporation shall be deemed to be mutawalli  unless such member is an office bearer of such  Committee or Corporation."

29.     However, Mujavars also have been brought within the purview of the  said definition of Section 3 of Act 69 of 1984. A Mutawalli, however, must  be appointed to perform the duties as prescribed which includes, as would  appear from the said definition, a person or a Committee appointed for the  time being managing or administering any wakf or wakf property.

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Whether the office of Mujavars, as per the said definition, stood on a  different footing from the office of Mutawalli and Sajjadnashin and merely a  person whose main duty was to take care of the shrine could act as a  Mutawalli, is the question.         The Legislature, however, is entitled to expand the definition.   Mujavars or a person or the Committee was included in the definition of  Mutawalli only by reason of Act 69 of 1984.  Mujavars, by reason of the  said provisions, therefore, could not have, on the terms of their appointment,  been held to be entitled to enter into an agreement for sale in favour of a  third party.           Section 36 of the Act provides for the duties of Mutawalli, which are  as under : "36. Duties of mutwallis :\027It shall be the duty of  mutawalli\027 (a)     to carry out the directions made by\027 (i)     the Board; or (ii)    the Wakf Commissioner : In accordance with the provisions of this Act or of  any rule or order made thereunder’ shall be  substituted; (b)     To furnish such returns and supply such  information or particulars as may from time to  time be required by the Board or the Wakf  Commissioner, as the case may be, in accordance  with the provisions of this Act or of any rule or  orders made thereunder. (c)     to allow inspection of wakf properties,  accounts or records or deeds and documents  relating thereto; (d)     to discharge all public dues; and (e)     to do any other act which he is lawfully  required to do by or under this Act."

30.     Section 36A which was inserted by Act 34 of 1964 provided for prior  sanction of the Board before a wakf property is transferred.   By Act 69 of 1984 such alienations are to be void.  When an  application for grant of sanction to transfer the Wakf property is filed by a  Mutawalli, it is required to publish the particulars relating to transaction in  the official Gazette and invite objections and suggestions in regard thereto  and on receipt of such objections and suggestions, as also upon  consideration thereof only, sanction could be accorded upon formation of the  opinion that such transactions fulfill the criteria as laid down  in clauses (i)  to (iii) of sub-section (2) of Section 36 of the Wakf Act.   It is only when a sanction is granted, the sale is to be held by public  auction.  Such public auction shall also be subject to confirmation by the  Board.   We are, however, not oblivious of the fact that the Board for reasons  to be recorded in writing may permit sale otherwise than by public auction if  it is of the opinion that it is necessary so to do in the interest of the wakf.   A Mutawalli may have personal interest in the property.  His power of  transfer of the Wakf property would depend upon the terms of appointment.   Once, however, the intervention of the Board becomes necessary in terms of  the provisions of the Act, no sale transaction can take place unless the  statutory requirements are complied with.   There appears to be something more than which meets the eye in the  matter of grant of sanction for the agreement for sale dated 2.8.1982.  The  agreement for sale is titled ’Sale Deed cum Handed Over Possession  Agreement’.  We will assume that the said title to the transaction was  thought of as purported possession was to be handed over in favour of the  plaintiff society.  It, however, appears that the name of Mujavars and, in  particular, the name of Mujavar Gulam Ali Akbar  is not the same as  described in the cause title of the plaint.  The number of Mujavars who were  parties to the agreement and number of mujavars-defendants are different. 31.     The witnesses examined on behalf of the Mujavars, Gulam Ali Akbar

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categorically denied and disputed that the agreement of sale was entered into  after obtaining permission of the Wakf Board or possession of the major  portion of the property was handed over to the plaintiff society.  ’Mujavars’  appeared to have received the entire consideration in cash.  Why in a  transaction which was governed by a statute, such a huge amount was  handed over in cash gives rise to a suspicion.  There are documents on  record to show that all the members of the plaintiff society deposited a huge  amount by cash only on a single date, namely 2.8.1982.  The stamp paper for  agreement for sale was purchased from Vyyuru on 2.12.1981 in favour of  the President of the Plaintiff society.   The agreement refers to an application filed by the Committee before  the Board dated 2.5.1981 and the rate offered by the plaintiff having been  found to be the highest, statutory formalities were stated to have been gone  through and the Wakf Board purported to have accorded permission to sell  the properties described in the schedule appended thereto, in favour of the  plaintiff-society.   32.     The State of Andhra Pradesh, admittedly, framed Rules in exercise of  its power conferred upon it under Section 67 of the Act.   Rule 12 provides for the conditions and restrictions subject to which  the Board may transfer a wakf property.  Sub-rule (1) provides for an  application by the Mutawalli before the Board in terms of Section 36A o the  Act stating the particulars as specified therein.  Clause (6) of sub-rule (1) of Rule 12 of the Rules provides that "if the  proposal is for sale or lease, the probable price or the rental as the case may  be, that is expected" should be disclosed.  Sub-rule (2) of Rule 12 provides  for publication of the proposed transaction in the Andhra Pradesh Gazette as  also the District Gazette in which the property is situated.   The notice in terms of sub-rule (2) of Rule 12 was to contain  sufficient details of the transaction and furthermore a reasonable time not  being less than 30 days is to be specified from the date of publication of  notice within which objections, claims or suggestions may be sent.  Only  upon receipt of such suggestions and, objections, an order sanctioning an  exchange, sale or mortgage or lease for a term exceeding three years, in  addition should be communicated to the person(s) concerned.  The same is  required to be published in the manner laid down in sub-rule (2) meaning  thereby in the Andhra Pradesh Gazette as also the District Gazette.   33.     It is beyond any doubt or dispute that the purported sanction has not  been published in the Andhra Pradesh Gazette or the District Gazette.  The  purported order of sanction is in the form of a letter purported to have been  issued by the then Chairman of the Wakf Board.  Ex facie, the said letter  does not satisfy the statutory requirements.   34.     Mr. Andhayarujina, however, submitted that publication of the order  of sanction in the Gazette is not mandatory but only directory.  We are  unable to agree.  By reason of the provisions of Section 36A of the Act, a  prior sanction is imperative for effecting a sale transaction.  Furthermore,  Rule 12 specifies the manner in which such sanction is to be granted.   Keeping in view the nature and purport for which the said provisions have  been made, clearly goes to show that the Rules are imperative in character.   35.     A mutwalli is a manager or trustee of the property.  Mujavars were not  even that.  Mujavars, prior to the amendment of the Act, were not even  authorized to enter into the agreement for sale.  That was not the purpose for  which they were appointed.  They were appointed as the Dargah in question  was not being properly looked after and the then surviving Mutawallis failed  and/or neglected to perform their statutory duties.   The functions of the Mutwalli and/or Mujavars in the light of the  provisions of the Wakf Act and the Rules framed thereunder must be viewed  in the context of the statute and on the basis of the common concept.   Mutwallis have no ownership right or estate in the Wakf property unless the  deed of wakf says so.  [See Bibi Saddiqa Fatima v. Saiyed Mohammad  Mahmood Hasan [(1978) 3 SCC 299] and Nawab Zain Yar Jung (since  deceased) & Ors. v. Director of Endowments & Anr. [AIR 1963 SC 985].         Furthermore, when a procedure is laid down for performance of a  statutory function, the same must be done in the manner laid down therein.   Sub-rule (3) of Rule 12 lays down that minimum 30 days time should be  given for receipt of objection.  

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36.     The learned trial judge as also the High Court, thus, committed a  serious error in holding that as within a period of 30 days, objections had not  been received the notification issued under sub-rule (2) of Rule 12 became  final.  Furthermore, the then Chairman of the Wakf Board, Sheikh Sayed  Hussain examined himself as DW-6.  He, in no uncertain terms, stated that  he was not the author of the letter dated 30.6.1982 (Exhibit A-49).         The issue required serious considerations at the hands of the courts  below keeping in view the fact that the suit filed by the plaintiffs was one for  specific performance of contract.  In any event, as the said purported letter  dated 30.6.1982 was neither published in the Gazette nor was issued upon  receipt of objections and offers from the other societies, the same could not  have been treated to be a final order as envisaged under sub-rule (4) Rule 12  of the Rules.  Furthermore, there are some intrinsic evidences to suggest that  the said purported letter dated 30.6.1982 was not in existence when the  agreement for sale dated 2.8.1982 was entered into.   In ordinary course when the said letter had been issued, there was  absolutely no reason as to why the mention of the same would not be made  in the agreement of sale dated 2.8.1982.  Even at an interlocutory stage of  the proceeding before the learned trial judge, the Chairman, Wakf Board  affirmed an affidavit to that effect, which was marked as Exhibit B-6.  No  sufficient explanation has been offered by the first respondent as to why the  stamp papers were purchased on 2.12.1981 when the agreement for sale was  not even under contemplation. 37.     The High Court, furthermore, committed a serious error in premising  its judgment on the basis of statement of DW 4, which read thus : "\005.It is true to suggest that after obtaining  permission from the Wakf Board, we entered  agreement with plaintiff under Ex.A31 to sell the  property.  It contains our signatures\005"

       We have been taken through the deposition of Gulam Ali Akbar, DW- 4.  His statement before the trial court reads as under : "It is not true to suggest that after obtaining the  permission from the Wakf Board, we entered into  an agreement with the plaintiff under Exhibit A.31  to sell the property.  It contains our signatures."

38.     It is possible, as contended by the learned counsel, that the words ’it  contained our signatures’ were in continuation of the suggestion.  The entire  paragraph deals with suggestions only and, thus, it might not have been  correct for the High Court to opine that there was an admission on the part of  DW-4 that the agreement contained his and other Mujavars’ signatures.   39.     It is also of some significance to note that the plaintiff society filed a  writ petition before the Andhra Pradesh High Court for issuance of a writ of  or in the nature of mandamus directing the Wakf Board not to accord any  sanction to the Dargah Jamat-e-Mujavar of the Dargah-e-Shareef of Hazrath  Galib Saheed Dargah for sale of the land in favour of the respondent.         First respondent was, thus, aware of the provisions of the Act and the  Rules and effect of non-compliance thereof.  It would, therefore, not be  correct in the aforementioned situation to opine that the said purported letter  dated 30.6.1982 meet the requirements of law. 40.     Section 17 of the Specific Relief Act, 1963 reads as under : "17. Contract to sell or let property by one who  has no title, not specifically enforceable.\027(1) A  contract to sell or let any immovable property  cannot be specifically enforced in favour of a  vendor or lessor\027 (a)     who, knowing not to have any title to the  property, has contracted to sell or let the  property; (b)     who, though he entered into the contract  believing that he had a good title to the  property, cannot at the time fixed by the

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parties or by the court for the completion of  the sale or letting, give the purchaser or  lessee a title free from reasonable doubt. (2)     The provisions of sub-section (1) shall also  apply as far as may be, to contracts for the sale or  hire of movable property."

41.     If Mujavars have no authority to sell the property, the agreement of  sale could not have been directed to be specifically performed.  In any event,  as no permission had been granted by the Wakf Board, the Courts below had  committed a serious error in passing the impugned judgment.   42.     We may, at this stage, also notice the reliefs prayed for in the plaint : "a)     for specific performance of the suit contract  of sale dated 2.8.1982 against the defendant  1 to 9 and 13 directing them all or these  when the Court finds necessary and proper  to execute and register sale deed or deeds in  favour of the plaintiff or its nominees at  their expense for the plaint schedule  property in whole or in parts as they choose,  or in the alternative, if the defendant 1 to 9  and 13 refuse to do so, for a direction that  the Court or any officer of the Court as  directed by the Court do so executed and  register the sale deed or sale deeds. b)      In the alternative of the plaint schedule  property, if the plaintiff is found not to be in  possession Added as per order in IA  6980/91 dated 24.6.1992. c)      For a permanent injunction contesting the  defendants 1 to 10 and 13 interfering with  the plaint schedule property and plaintiff  possession thereof."

43.     However, the learned trial Judge in its judgment directed the  defendant Nos. 10 to 12 to execute the deed of sale.   There is a serious doubt as to whether the agreement dated 2.8.1982 as  also the purported order dated 30.6.1986 or the agreement were the genuine  documents.  In that view of the matter, the suit for specific performance of  contract should not have been decreed. In the suit, GOMs dated 26.5.1982 and 4.5.1983 were not under  challenge.  They might have been brought under animated suspension by  GOMs No.343 dated 25.10.1986 but prior thereto, the suit had already been  filed.   Furthermore, it is neither in doubt nor in dispute that rightly or  wrongly allotments have been made in favour of a large number of allottees.   Some of the allottees may be the Mujavars themselves or their nominees but  it is stated that at least eight deeds of sale were executed prior to the  institution of the Civil Suit, namely, 24.4.1984.  All deeds of sale, therefore,  were not hit by the doctrine of lis pendens.  Even otherwise while exercising  a discretionary jurisdiction as envisaged under Section 20 of the Specific  Relief Act, the same fact should have been taken into consideration. Grant of a decree for specific performance of contract is a  discretionary relief.  There cannot be any doubt whatsoever that the  discretion has to be exercised judiciously and not arbitrarily.  But for the  said purpose, the conduct of the plaintiff plays an important role.  The  Courts ordinarily would not grant any relief in favour of the person who  approaches the court with a pair of dirty hands.   It was also not a matter of total insignificance that the plaintiff society  offered a bid of Rs.1,26,000/-.  It was proved by Exhibit B-I dated  23.10.1982.  The said bid by the plaintiff, in absence of any finding that the  same were forged and fabricated documents, could not have been ignored  particularly when the difference between the rate offered by the plaintiff and  that of the appellant was substantial.  

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       Keeping in view the peculiar facts and circumstances of the case, we  are of the opinion that the impugned judgment cannot be sustained.  They  are set aside accordingly. 44.     We, however, would be failing in our duties if we do not make any  observations in regard to the manner in which the Government and the Wakf  Board as also the Mujavars acted.  The Government of Andhra Pradesh had  issued GOMs No.343 as also the memo dated 25.10.1986.  On what basis  and under what provisions of law, it interfered with the functioning of the   Wakf Board is not known. The manner in which the purported transactions  were entered into by and between the Mujavars and the plaintiff society,  depict a sordid state of affairs.   More reprehensive is the conduct of the State as, despite issuance of  GOMs No.343 and memo dated 25.10.1986, no action has yet been taken.   The State’s jurisdiction in the matter is supervisory in nature.  The AP Wakf  Board is a statutory body.  It is the duty of the State to oversee its functions.   The property belonging to a wakf cannot be permitted to be withered away  at the instance of the office bearers of the Board or those in charge of the  wakf.  They being the trustees should act like trustees.  Why for 22 years, no  enquiry was conducted and why no action had been taken pursuant to the  said GOMs dated 25.10.1986 is a matter of serious concern to all concerned  including the general public.  Arguments had been advanced before us that  the said notification was illegal.  We do not and cannot go into the said  question.  Our jurisdiction in this behalf is limited but the very fact that not  only the trial Court but also the Division Bench of the High Court had  adverse comments to offer as regards the Government Andhra Pradesh, A.P.  Wakf Board as also Dargah are not matters which should be allowed to be  given a decent burial.  The Government should have taken the purport of its  orders and memos issued by it to their logical conclusion.  They failed to do  so.  We, therefore, are of the opinion that the Government of Andhra  Pradesh would be well advised to cause an enquiry to be made into the entire  affairs of the Andhra Pradesh Wakf Board and others concerned vis-‘-vis the  transactions carried out in the matter, albeit after giving an opportunity of  hearing to the parties.  We expect that the Government of Andhra Pradesh  would initiate appropriate proceedings and take such action or actions  against all concerned including its own officers as also those of the Board  and Dargah as also the allottees in the event they are found guilty.  45.     In view of the findings aforementioned, it is not necessary to pass any  separate orders on the IAs for impleadment filed by the allottees.   46.     Appeals are, thus, allowed with no order as to costs.