M D Ashraf Vs Union of India

UNION OF INDIA MINISTRY OF MINORITY AFFAIRS 11TH FLOOR, PANDIT DEENDAYAL ANTYODAYA BHAVAN C.G.O. COMPLEX LODHI ROAD, NEW DELHI-110 003 REPRESENTED BY ITS JOINT SECRETARY

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THE KARNATAKA STATE BOARD OF AUQAF NO.6, CUNNINGHAM ROAD BANGALORE-560 052 REP BY ITS CHIEF EXECUTIVE OFFICER

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HAZARATH TAWAKKAL MASTAN SHAH DARGAH MOSQUE & GHOUSIA SARAI NO.512, O.T.C. ROAD, COTTONPET, BANGALORE-560 053 REPRESETED BY ITS SECRETARY

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…RESPONDENTS (BY SRI. GOWTHAM DEV C. ULLAL ADVOCATE FOR FOR R1;

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SMT. SABAHATH SULTANA, ADVOCATE FOR R2; NOTICE TO R3 SERVED)

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THIS W.P. IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION ISSUED BY THE R-1 IN SO FAR AS SUB RULE (4) OF RULE 4 AND SECOND PROVISO TO RULE 5 OF THE WAQF PROPERTIES LEASE RULES, 2014 BY DELETING THE PORTION '

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INCLUDING THEIR SPOUSE, PARENTS, CHILDREN, BROTHERS, SISTERS, SPOUSES OF BROTHERS AND SISTERS OR CHILDREN OF BROTHERS AND SISTERS, SHALL NOT BE ELIGIBLE TO APPLY FOR LEASE UNDER THIS RULE' VIDE ANNEX-A.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD

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ORAL ORDER

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The petitioners assert that they hail from the Nadaf Community [a Muslim community]. The third respondent is a Waqf constituted for the benefit of the persons from this Community. The petitioners assert that the subject property [ a Waqf property ] has 40 residential and 25 non-residential premises, which the third respondent has granted on lease, and that such lease is a short-term lease or a long-term lease with the short-term lease being a lease for a period less than a year and the long-term lease being for a period between a year and thirty years.

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The petitioners have called in question

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Sub-rule (4) of Rule 4 and second proviso to Rule 5 of the Waqf property Lease Rules 2014 [for short, ' the Lease Rules' ], which is notified by the first respondent vide the Notification dated 03.06.2014. The petitioners pitch their cause against the impugned provisions contending that their right to apply for the lease of one of sixty-five premises as aforesaid is seriously impaired, notwithstanding the third respondent's bye-law and the prevailing custom, only because they could be related to the Mutawalli as a spouse, a parent, a child, a brother, a sister, or the spouse or a brother or a sister or a child of the Mutawalli’s brother or sister.

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This Court has granted interim order on

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26.04.2017, stating that the tenancy of the petitioners shall not be terminated by operating the Rules 4 and 5 of the Lease Rules and it is not disputed that the petitioners have continued in

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possession as could be others without due publication of the invitation as is stipulated under third proviso to Section 56(1) of the Waqf Act, 1995 [for short, ' the Waqf Act' ]. Resultantly, the petitioners and others have continued in possession of certain premises within the third respondent’s property over years without due compliance.

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Mr. Naveed Ahmed, the learned counsel for the petitioners, is categorical in stating that the petitioners are not aggrieved howsoever by the Scheme nor do they seek annulment of Sub-rule (4) of Rule 4 or second proviso to Rule 5 of the Lease Rules and that the petitioners' grievance would be addressed in terms of the third respondent's bye-laws and the custom, if they may participate in the process for grant of lease on reasonable terms. The learned counsel elaborates thus.

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[a] The offers must be invited from all the

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members of the Nadaf Community and

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even from those who will not be from

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the Community for each of the 65 premises.

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[b] If there are two or more applicants for a particular premises within a Community, preference may be given to those who are not howsoever related to the Mutawalli subject to the bid offered.

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[c] If there is no applicant from the Community for a particular premises, the others may be granted lease.

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Mr. Naveed Ahmed emphasizes that this

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would enable not only the petitioners and those who could be related to the Mutawalli in terms of Sub-rule 4 of Rule 4 or the second proviso to Rule 5 of the Lease Rules to participate but also ensure transparency in the process of grant of lease in terms of the object for which the Lease Rules have been

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notified by the first respondent, and the learned counsel underscores that if the impugned Sub-rule and the proviso are implemented, notwithstanding the bye-law and the customs, the limited opportunities to those from the Community would be denied only because of the relationship with the Mutawalli.

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Mr. Gowtham Dev C. Ullal, the learned

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Standing counsel for the Central Government, submits that these Rules have been notified as is contemplated in exercise of the powers conferred under Section 56(1) of the Waqf Act, and that the Rules ensure there is transparency and objectivity in granting lease of Waqf properties in a manner that would not undermine the Waqf that is constituted. The learned Standing counsel submits that the stipulation in the impugned Sub-rule and the second proviso that a spouse, parents, children, siblings and the immediate family members of the siblings of the

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concerned Mutawalli or a Member of the Board or a Managing Committee shall not eligible to apply for a lease , is to sub-serve these objects, and that therefore, the impugned Sub-rule and the second proviso cannot be termed ultra-vires the Act.

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In the circumstances of the case and the

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rival submissions, the question for consideration is:

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Whether this Court must dispose of this petition observing that, in the peculiarities to the Community, even those who could be related to Mutawalli or the Members of the Board or the Managing Committee of the third respondent could participate in the tender for grant of lease of the 65 premises , and if indeed they could be permitted, the terms upon which such permission must be .

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The Section 56(1) of the Waqf Act details the terms upon which the lease of a Waqf property could be granted, and the details are thus.

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8.1 The Section 56(1) of the Waqf Act . This

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Section declares that every lease of an immovable

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Waqf property exceeding thirty years is void notwithstanding anything in the deed or the instrument of Waqf, and that a lease for any period upto thirty years, for the purposes as mentioned in the first proviso to Section 56(1) of the Waqf Act, may be granted with approval of the State Government and as specified in the Rules by the Central Government.

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8.2 The second proviso to this Section states

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that the lease of any immovable Waqf property, which is an agricultural land, for a period exceeding three years, notwithstanding anything in the deed or instrument of Waqf shall be void and have no effect . The third proviso to this Section is categorical in stipulating that the Board must publish the details of the lease and invite bids to grant lease in at-least one leading national and one regional newspaper.

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8.3 The Section 56(2) of the Waqf Act . A

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lease of Waqf immovable property for a period of one year but not exceeding thirty years, again notwithstanding anything in the deed or instrument in the Waqf or in any other law shall be void and have no effect unless it is made with the previous sanction of the Board.

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8.4 The Section 56(3) of the Waqf Act . The

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Board shall, in granting sanction for lease or renewal thereof, review the terms and conditions on which the lease is proposed to be granted or renewed and make its approval subject to the revision of such terms and conditions in such manner as it may deem fit. The proviso to Section 56(3) stipulates intimation to the State Government about the lease granted for any period exceeding three years and the lease is for any period exceeding three years will be affected only after

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the expiry of forty-five days from the date on which the Board intimates the State Government.

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These provisions are categorical in stating that a Waqf property cannot be granted on lease for over thirty years, and that the lease of such properties even for any period up to thirty years must be by the Board with the approval of the State Government and subject to the Board reviewing the terms of the lease. Crucially, the Board must ensure that the details of the lease are published inviting bids in at-least one leading national and one regional newspaper. These provisions ensure transparency and prevent hegemony. This Court must observe that the Central Government, in terms of the first proviso to Section 56(1) of the Waqf Act, is conferred with the powers to notify the Rules, and the Lease Rules are notified in exercise of such power detailing the procedure to be followed and the terms of lease.

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The first stipulation in the Lease Rules is that no Mutawalli or Board shall grant the lease of a mosque, dargah, Khanqah, graveyard or imambarah ,

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but this restriction will not apply to the land/construction outside the major premises of the afore. A Mutawalli or Board can grant the lease of the premises for short duration or long duration but not exceeding thirty years which would be in consonance with Section 56(1) of the Waqf Act. However, such lease must be granted on publication of invitation calling for bids and the bids cannot be less than 5% of the market value of the property.

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The Rules provide for [i] the payment of the security deposit, [ii] registration of the lease, [iii] the annual increase in the agreed rent, and [iv] both the Mutawalli and the Board must finalize the decision within thirty days from the date of receipt of the orders by the prospective lessee on the publication of the invitation to offer bids. If a

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Mutawalli starts the process for grant of lease, it must furnish the details as stipulated under Rule 15 of the Lease Rules in the prescribed form to the Board. The Rules also stipulate the rights and obligations of the lessor and the lessee and the consequences that must be if there is an unforeseen damage or destruction or default while securing the rights of the Successor and assigns of the duly inducted tenants. Lastly, the Rules provide for the surrender of the leased property on expiration or termination of the lease.

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The impugned Rules 4 and 5 of the Lease Rules impugned by the petitioner read as under:

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" 4. Procedure as to short duration

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lease of less than one year. (1) A mutawalli or Board may give on lease waqf property, for any period of less than one year, on such terms and conditions as agreed upon by the parties.

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(2) The mutawalli or Board shall invite applications from persons desiring to take the

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property on lease under sub-rule (1) by publishing a notice in the surrounding vicinity, distributing leaflets, pamphlets or beating of drums and pasting the said notice on any conspicuous place like mosque or any other public place.

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(3) The mutawalli or Board shall execute the lease of the property in favour of a person offering to pay higher lease rent.

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(4) The mutawalli, Board or any member of the managing committee of a waqf, including their spouse, parents, children, brothers, sisters, spouses of brothers and sisters or children of brothers and sisters, shall not be eligible to apply for lease under this rule.

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The impugned provision is underlined by this Court

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5. Procedure for lease other than short

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duration lease. - Save as provided in rule 4 above relating to short duration lease, the mutawali or Board, as the case may be, shall in all cases where lease of waqf property is required to be given for a period of more than one year but not exceeding thirty years, publish the invitation of bids in

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at least one leading national (Hindi, Urdu or English) newspaper and one regional or local newspaper containing the following details, namely:-

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(i) exact area or description and location of the waqf property;

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(ii) the purpose or object for which the property is required to be leased;

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(iii) the period for which the property is required to be leased;

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(iv) the minimum reserve price per square feet:

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Provided that no such advertisement in newspaper shall be required for lease of waqf property whose lease rental income is less than Rs.1000/-(Rupees One Thousand) per month and the mutawalli or Board shall invite applications from persons desiring to take the property on lease and execute the lease by following the procedure specified in sub-rules (2) and (3) of rule 4:

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Provided further that the mutawalli, Board or any member of the managing committee of a waqf, including their spouse, parents, children, brothers, sisters, spouses of brothers and sisters or children of

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brothers and sisters, shall not be eligible

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to apply for lease under this rule."

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The impugned provision is underlined by this Court

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The Section 56 of the Waqf Act, in

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bringing in the rigour on the manner in which bids are received for grant of lease and the need for the Board’s approval for the grant of lease, serves the cause of transparency and better management of the Waqf assets. The stipulation that a spouse, parents, children, siblings and immediate family members of the siblings of the Mutawalli or a Member of the Board or a Managing Committee will not be eligible to apply for lease under this Rule is to ensure that there is transparency in the grant and management of the lease. Therefore, per se no exemption can be taken with these stipulations.

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However, if indeed the bye-laws of the Waqf stipulate or a custom is followed in grant of lease to the members of a particular Community, every member of the community and those outside the community must be permitted to participate in the process to secure the lease. Crucially, the grant of lease to even the members related to the Mutavalli will be reasonable if none from the Community or from outside offer bid for a particular premises. The finalization of the lease based on the highest bid offered in compliance with the procedure, and the final approval from the Board, under the Rules will ensure transparency even if those related to the Mutavalli participate.

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The exclusion of a particular member only because he/she is related to a Mutawalli or a Member of the Board or the Managing Committee, notwithstanding the afore would be an iniquitous denial of a right and a waste of resources. As such, in

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these circumstances viz ., the bye-laws/customs permitting lease to even those related to the Muttavallis when none from the Community or outside the Community apply for a particular premises or when they make the highest bid, they must be permitted to granted lease but then the decision, subject to the other provisions of the Waqf Act, must be by the Board. The Board must consider all the circumstances such as whether there are applications from those outside the Community for a particular premises and the bids offered. If there is no application by a person from within/outside the Community or when they offer the highest bid, to deny the benefit to a Member of the Community only because he/she is thus related would not sub-serve the purpose of the Waqf Act.

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As such, this Court is of the view that the petition must be disposed of calling upon the second respondent to call for the details of the premises with

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the third respondent that must be granted on lease and cause publication of the invitation to make an offer as contemplated under third proviso to Section 56(1) of the Waqf Act within a certain timeline and grant approval of the lease based on the highest offer made even if such offer is from a person who is related to either Mutawalli or a Member of the Board/Managing Committee and subject to the byelaws and custom as is evolved so long as there is no bid from any other person from within the community or from outside. In the light of the afore, the following:

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ORDER

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[a] The petition stands disposed of directing the Karnataka State Board of Auqaf [ the second respondent ] to call for details of the premises to be leased from the Hazrath Tawakkal Mastan Shah

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Dargah [ the third respondent ] and publish invitation for bids.

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[b] The second respondent shall call for the details and publish the invitation as aforesaid within sixty [60] days from the date of receipt of a certified copy of this order.

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[c] The second respondent is called upon to consider even the application by those who could be related to the third respondent's Muthawalli or a Member of the Managing Committee/Board provided:

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[i] There is no other application from the other members of the community, or from those outside the community.

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