# MOHAMMEDIA COOP. BUILDING SOCIETY LTD v. LAKSHMI S. COOP. BUILDING SOCIETY LTD & ORS

- **Citation:** [2008] 7 S.C.R. 762
- **Court:** Supreme Court of India
- **Decided:** 2008-05-06
- **Case number:** Civil Appeal No. 3329 of 2008
- **Bench:** S.B. Sinha, Lokeshwar Singh Panta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohammedia-coop-building-society-ltd-v-lakshmi-s-coop-building-society-ltd-ors-24580
- **Pages:** 35

## Headnote

Wakf Act, 1954:
ss.3(f). 36(2)and36-Aandr 12ofAP WakfRules. 1974
c - Mutawallis/Mujawars - Functions and duties of - Alienation
of wakf property- Mujawars entering into an agreement of sale
of Wakf property - Later in a public auction property sold to
the highest bidder- Suit by earlier vendee society for specific
performance of contract - Decreed by trial court - Decree
D affirmed by High Court-HELD: Mutawal/is have no ownership
right or estate in Wakf property unless deed of wakf says so -
Agreement of sale by Mujawars without prior sanction of Wc:xf
Board which is imperative, is void - Procedure laid down in
r 12 regarding publication of proposed sale in offic. ...,; gazette
E and receiving objections was not complied v-ith - When a
procedure is laid down for performance of a statutory function,
same must be done in the manner laid down therein - There
is a serious doubt regarding agreement of sale with plaintiff
and the order of sanction -
Therefore, suit for specific
F performance of contract could not have been decreed - Issue
'f-.
required serious consideration at hands of courts below -
Impugned judgments set aside - Administration of justice -
Equity - Andhra Pradesh Wakf Rules, 197 4- r 12.
Specific Relief Act, 1963.·
G
ss. 17 and 20 - Contract to self immovable property -
HELD: "Mujawars of Wakf property having no authority to self
t •
property, agreement of sale couid net have been directed to
>-
be specifically performed - Besides, court ordinarily would not
H
762
""
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S.
763
COOP. BUILDING SOC. LTD. & ORS.
grant any relief in favour of person who does not approach the A
Court with clean hands - Equity
Administrative Law:
Statutory body - Wakf Board - Jurisdiction of State
Government to supervise and oversee functions of Board -
B
Government remaining not vigilant in its role in supervising
transaction of Wakf property - State Government advised to
hold an inquiry into transactions effected by .Wakf Board.,..
Andhra Pradesh Wakf Rules, 1974.
The suit property was a wakf property and c
respondent nos. 2 to 9 were appointed by the Andhra
Pradesh Wakf Board as 'Mujawars' thereof. On 25.2.1982,
a notification was issued inviting objections to proposed
sale of the suit property. Several Co-operative Societies
made their offers and the offer made by respondent no. 1,
D
Co-operative Society was accepted by letter dated
30.6.1982. On 2.8.1982 respondent nos. 2 to 9 allegedly
entered into an agreement of sale with respondent no. 1
to transfer the suit land at a price of Rs.70,000/- per acre.
On 19.8.1982 the Wakf Board in a meeting was stated to
E
have resolved that the offer was too low. Thereafter
respondent no. 1 raised the offer to Rs.1,26,000/- per acre,
The appellant was stated to have offered the highest bid
-
of Rs.1,28,000/- per acre. Government Order No. 773 dated
4.5.1983 was issued according permission to the Wakf F
Board to sell the suit land to the appellant as per its bid. A
Notification pursuant thereto was purported to have been
issued on 26.5.1983. A deed of sale was executed by
respondent nos. 2 to 9 as also the Wakf Board in favour
of the appellant Society.
G
Respondent no. 1 filed Original Suit No. 200 of 1983
~ ~
for permanent injunction contending that pursuant to the
---:I" .... _ ...
agreement of sale dated 2.8.1982 it had been put in
possession. The case of respondent no. 1 was that later
it was dispossessed. Therefore, respondent no. 1 filed
H
764
SUPREME COURT REPORTS
(2008] 7 S.C.R.
A another suit bearing O.S. No. 449 of 1984 claiming specific
performance of the contract. During the pendency of the
suit another G.O. dated 8.3.1985 was Issued and pursuant
thereto layout was approved and plots were allotted. The
trial court by its judgment dated 19.10.2005, decreed Suit
B No. 449 of 1984. Suit No. 200 of 1983 was dismissed as
not maintainable. Three appeals against the decree of the
trial court in Suit no. 449 of 1984 were filed - one by the
appellant Socie

## Text

_Characters 0–38,076 of 63,840. This is a partial read: ask again with offset=38076 for what follows._

(2008] 7 S.C.R 762
)-
A
MOHAMMEDIA COOP. BUILDING SOCIETY LTD.
v.
LAKSHMI S. COOP. BUILDING SOCIETY LTD & ORS.
(Civil Appeal No. 3329 of 2008)
B
MAY 6, 2008
(S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.)
Wakf Act, 1954:
ss.3(f). 36(2)and36-Aandr 12ofAP WakfRules. 1974
c - Mutawallis/Mujawars - Functions and duties of - Alienation
of wakf property- Mujawars entering into an agreement of sale
of Wakf property - Later in a public auction property sold to
the highest bidder- Suit by earlier vendee society for specific
performance of contract - Decreed by trial court - Decree
D affirmed by High Court-HELD: Mutawal/is have no ownership
right or estate in Wakf property unless deed of wakf says so -
Agreement of sale by Mujawars without prior sanction of Wc:xf
Board which is imperative, is void - Procedure laid down in
r 12 regarding publication of proposed sale in offic. ...,; gazette
E and receiving objections was not complied v-ith - When a
procedure is laid down for performance of a statutory function,
same must be done in the manner laid down therein - There
is a serious doubt regarding agreement of sale with plaintiff
and the order of sanction -
Therefore, suit for specific
F performance of contract could not have been decreed - Issue
'f-.
required serious consideration at hands of courts below -
Impugned judgments set aside - Administration of justice -
Equity - Andhra Pradesh Wakf Rules, 197 4- r 12.
Specific Relief Act, 1963.·
G
ss. 17 and 20 - Contract to self immovable property -
HELD: "Mujawars of Wakf property having no authority to self
t •
property, agreement of sale couid net have been directed to
>-
be specifically performed - Besides, court ordinarily would not
H
762
""
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S.
763
COOP. BUILDING SOC. LTD. & ORS.
grant any relief in favour of person who does not approach the A
Court with clean hands - Equity
Administrative Law:
Statutory body - Wakf Board - Jurisdiction of State
Government to supervise and oversee functions of Board -
B
Government remaining not vigilant in its role in supervising
transaction of Wakf property - State Government advised to
hold an inquiry into transactions effected by .Wakf Board.,..
Andhra Pradesh Wakf Rules, 1974.
The suit property was a wakf property and c
respondent nos. 2 to 9 were appointed by the Andhra
Pradesh Wakf Board as 'Mujawars' thereof. On 25.2.1982,
a notification was issued inviting objections to proposed
sale of the suit property. Several Co-operative Societies
made their offers and the offer made by respondent no. 1,
D
Co-operative Society was accepted by letter dated
30.6.1982. On 2.8.1982 respondent nos. 2 to 9 allegedly
entered into an agreement of sale with respondent no. 1
to transfer the suit land at a price of Rs.70,000/- per acre.
On 19.8.1982 the Wakf Board in a meeting was stated to
E
have resolved that the offer was too low. Thereafter
respondent no. 1 raised the offer to Rs.1,26,000/- per acre,
The appellant was stated to have offered the highest bid
-
of Rs.1,28,000/- per acre. Government Order No. 773 dated
4.5.1983 was issued according permission to the Wakf F
Board to sell the suit land to the appellant as per its bid. A
Notification pursuant thereto was purported to have been
issued on 26.5.1983. A deed of sale was executed by
respondent nos. 2 to 9 as also the Wakf Board in favour
of the appellant Society.
G
Respondent no. 1 filed Original Suit No. 200 of 1983
~ ~
for permanent injunction contending that pursuant to the
---:I" .... _ ...
agreement of sale dated 2.8.1982 it had been put in
possession. The case of respondent no. 1 was that later
it was dispossessed. Therefore, respondent no. 1 filed
H
764
SUPREME COURT REPORTS
(2008] 7 S.C.R.
A another suit bearing O.S. No. 449 of 1984 claiming specific
performance of the contract. During the pendency of the
suit another G.O. dated 8.3.1985 was Issued and pursuant
thereto layout was approved and plots were allotted. The
trial court by its judgment dated 19.10.2005, decreed Suit
B No. 449 of 1984. Suit No. 200 of 1983 was dismissed as
not maintainable. Three appeals against the decree of the
trial court in Suit no. 449 of 1984 were filed - one by the
appellant Society, the second by Dargah concerned and
the third by the Wakf Board. The appeals having been
c dismissed, the three appellants in the High Court filed the
instant appeals.
It was contended, inter alia, for the appell~nts that the
agreement of sale deed 2.8.1982 (Exh.A-31) was wholly
illegal as 'Mujawars' had no right, title or iriterest to execute
D the same in terms of the provisions of the Wakf Act, 1954
or otherwise; that the extended definition of 'Mujawars'
{
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
F not Mutawallis, could not have exercised the same power
under the Act. Section 36A of the Act requiring to obtain
previous sanction of the Board as regards sale of Wakf
property, and Rule 12 of the Wakf Rules being imperative
in character, no deed of sale could have been executed
-
F in violation thereof and in that view of the matter, the
impugned judgments could not be sustained; that the
purported letter dated 30.6.1982 issued by the Chairman
of the Wakf Board was a forged and fabricated document
and was not in existence on the date of the agreement of
G sale dated 2.8.1982.
Allowing the appeals, the Court
HELD: 1.1 'Mt..iawars' or a person or a Committee
••
were included in the dP.finition of 'Mutawalli' in the Wakf
""· .
H Act, 1954 only by way 01 /\et 69 of 1984. A 'Mutawalli' is a
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. LS.
765
COOP. BUILDING SOC. LTD. & ORS.
manager or trustee of the property. Mujawars were not A
even that. Mujawars, 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
B
surviving Mutawallis failed and/or neglected to perform
their statutory duties. The functions of the Mutwalli and/
or Mujawars 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 c
concept. Mutwallis have no ownership right or estate in
the Wakf property unless the deed of Wakf says so. [Para
29 and 35] [787-A; 790-F-H]
Bibi Saddiqa Fatima v. Saiyed Mohammad Mahmood
Hasan (1978) 3 SCC 299; and Nawab Zain Yar Jung (since D.
deceased) & Ors. v. Director of Endowments & Anr. AIR 1963
SC 985 - relied on.
1.2 Section 36A which prescribed duties of mutwallis
and was inserted in the Wakf Act, 1954 by Act 34 of 1964
provided for prior sanction of the State Wakf Board before E
a Wakf property is transferred. By Act 69 of 1984,
· alienations without the sanction are to be void. When an
application for grant of sanction to transfer the Wakf
. property is filed by a Mutawalli, the particulars relating to
transaction are required to be published in the official· F
Gazette 'inviting 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 G
clauses (i) to (iii) of sub-section (2) of Section 36 of the
Wakf Act. [para 29 & 30] [787-8-H; 788-A-B]
1.3 It is only when a sanction is granted, the sale is
to be held by public auction. Such public auction shall H
766
SUPREME COURT REPORTS
(2008] 7 S.C R.
A also be subject to confirmation by the State Wakf Board.
B
However, 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. [para 30] [788-8-C]
2.1 Rule 12 of the Andhra Pradesh Wakf Rules, 1974
provides conditions and restrictions subject to which the
Wakf Board may transfer a wakf property. It provides for
publication of the proposed transaction in the State
Gazette as also the District Gazette in which the property
C is situated. It is beyond any doubt or dispute that the
purported sanction has not been published in the State
Gazette or the District Gazette. The purported order of
sanction is in the form of a letter dated 30.6.1982 (Ext. A49) purported to have been issued by the then Chairman
o of the Wakf Board. Ex facie, the said letter does not satisfy
the statutory requirements. [para 32 and 33) [789-E, G;
790-C]
2.2 It cannot be said that publication of the order of
sanction in the Gazette is not mandatory but only directory.
E 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
F been made, it is clear that the Rules are imperative in
character. [para 34) [790-D-E]
2.3 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
G 12 lays down that minimum 30 days time should be given
for receipt of objection. The trial court as also the High
Court committed a serious error in holding that as
objections had not been received within a period of 30
"-.'
days, the notification issued under sub-rule (2) of Rule 12
H became final. [para 35 & 36] [791-B-C]
MOHAMMEDIA COOP BUILDING SOC LTD. v. L.S.
767
COOP. BUILDING SOC. LTD. & ORS.
3.1 The agreement of sale dated 2.8.1982 is titled 'Sale
A
Deed cum Handed Over Possession Agreement'. The
name of one of the Mujawars is not the same as described
in the cause title of the plaint. The number of Mujawars
who were parties to the agreement and number of
mujawars-defendants are different. [para 30] [788-E-G]
B
3.2 The witnesses examined on behalf of the
Mujawars 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
C
society. 'Mujawars' 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
D
on a single date, namely 2.8.1982. The stamp paper for
agreement for sale was purchased on 2.12.1981 in favour
of the President of the plaintiff society. [para 31] [788-H;
789-A-B]
E
3.3 Furthermore, the then Chairman of the Wakf
Board, examined himself as DW-6. He, in no uncertain
terms, stated that he was not the author of the letter
dated 30.6.1982. Besides, there are some intrinsic
evidences on record to suggest that the said purported
Fi
•
letter dated 30.6.1982 was not in existence when the
agreement for sale dated 2.8.1982 was entered into.
[para 36] [791-C, D, F]
3.4 The issues required serious considerations at the
hands of the courts below keeping in view the fact that G
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
:-J
768
SUPREME COURT REPORTS
[2008] 7 S.C.R.
A have been treated to be a final order as envisaged under
sub-rule (4) Rule 12 of the Rules. [para 36] (791-E]
3.5 If Mujawars have no authority to sell the property,
in view of s. 17 of the Specific Relief Act, 1963 the
agreement of sale could not have been directed to be
8 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. There is a serious doubt as to whether the
agreement dated 2.8:1982 as also the purported order
C dated 30.6.1986 were genuine documents. In that view of
the ma.tter, the suit for specific performance of contract
should not have been decreed. [para 41 and 43] (793-E;
794-D]
0
3.6 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
E the person who approaches the court with a pair of dirty
hands. [para 43] (794-H; 795-A]
4.1 It is neither in doubt nor in dispute that rightly or
wrongly allotments have been made in favour of a large
F number of allottees. Some of the allottees may be the
Mujawars themselves or their nominees but it is stated
that at least eight deeds of sale were executed on
24.4.1984, prior to the institution of the r.ivil suit. All deeds
of sale, therefore, were not hit by the doctrine of lis
G 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. [para 43] (794-F-G]
4.2 Keeping in view the peculiar facts and circumsH tances of the case, the impugned judgment cannot be
••
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S.
769
COOP. BUILDING SOC. LTD. & ORS.
~
sustained. They are set aside accordingly. [para 43] [795-C] A
5.1 The manner in which the Government and the
Wakf Board as also the Mujawars acted requires to be
seen. The State Government 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 B
-~
of the Wakf Board is not known. The manner in.which the
purported transactions were entered into by and between
the Mujawars and the plaintiff society, depict a sordid state
of affairs. [para 44] [795-D-E]
5.2 More reprehensive is the conduct of the State as, c
despite issuance of GQMs 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
State Wakf Board is a statutory body. It is the duty of the D
State to oversee its functions. 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. The Government should have taken the
purport of its orders and memos issued by it to their logical E
conclusion. They failed to do so. The State Government
would be well advised to cause an enquiry to be made
into the entire affairs of the State Wakf Board and others
concerned vis-a-vis the transactions carried out in the
matter, albeit after giving an opportunity of hearing to the
parties. The State Government would initiate appropriate
F
-t
proceedings and take appropriate action against all
concerned including its own officers as also those of the
Board and Dargah and the allottees in the event they are
found guilty. [para 44] [795-F-H; 796-A-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
G
3329 of 2008 .
• •
From the final Judgment and Order dated 25.1 2007 of
_.J
the High Court ot l>ndhra Pradesh at Hyderabad in A.S. No.
686 of 2005.
H
770
SUPREME COURT REPORTS
(2008] 7 S.C.R.
A
WITH
Civil Appeals No. 3337-3338 and 3339 of 2008.
M.N. Rao, Jaideep Gupta, TR. Andhyarujina, l.V. Narayana,
Nagendra Rai, TN. Rao, Manleet Kirpoal. Paramjeet Singh, A.
B Ramesh, D. Bharat Kumar, Anand, Aziz H. Laskar, M. lndrani,
Abhijit Sengupta, Pratap Venugopal, Surekha Raman, Dileep
)'
P. (for M/s. K.J. John & Co.) GVR Chaudary, K. Shivraj
Choudhuri, Manoj Saxena, Rajnish Singh, Rahul Singh, Krishnan
Venugopal, Indra Makwana, TV. Ramna, TV. George, Vishal
c Arun, G.V. Chandrasekhar, N.K. Verma, Anjana Chandrashekar,
Ravhavahiah, Javed M. Rao and A. Vinayangam Balan for the
appearing parties.
The Judgment of lhe Court was delivered by
0
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
E 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.
F
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
G
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 "
H
the Dargah Hazrata Ghalab Shaheed at Bhavanipuram
, .
~
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S.
771
COOP BUILDING SOC. LTD. & ORS. (S.B. SINHA, J]
village, Talaq, Krishna District; is a notified 'Nakf in the
A
AP. 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...
B
Among them the first Mutavalli was residing m 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 unaer Section 36 and
rendering services to the said Dargah Tt1erefore, it was
C
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
0
living Mutavallies also died. Automatically. the post of fell
vacant and therefore the enquiry has become fractious. In
the circumstances, in view of the Resolution of D VV.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 vi de 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
F
effect :-
1.
2
3.
4.
5.
6.
7
Sri Shaik Ibrahim
Sri Gulam Ali Akbar
Sri Mohd. lbranhim
Sri Abdul Jaleel
Sri Mahd. Haneef
Sri Abdus Salam
Sri Abdul Waheed
President
Secretary
Treasurer
Member
Member
Member
Member"
G
H
A
B
772
SUPREME COURi REPORTS
[2008] 7 S.C.R.
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
c permission granted by the Wakf Board.
D
E
F
G
H
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 :
I)
II)
"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, Krishrta District,
belonging to Dargah of Galib Shaheed Rs.70,000/- per
acre.
The full particulars of the land are shown below:-
Nature and purpose of the
Sale for the
Proposed transaction
construction of
the houses.
Amount of consideration
1) a) Price in case of sale
Rs.24,64.000/-
b) Rental in case of lease
Ill)
Current Description of Properties :
1)
Agriculture Lands:
a)
Rs. No.
63
b)
Area : Acres 35.20 cents.
c)
Land Revenue Assessment
Rs.226.70
-+-
' .
....
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S.
. 773
~
COOP. BUILDING SOC. LTD. & ORS. [S.B. SINHA, J.]
d)
Boundaries :
A
i)
North:
Galib Shaheed
Dargah and
MujaV;Jars Houses.
~
ii)
Area:
Housing Board Colony.
B
iii) East :
Brahmin Ashram.
iv) West :
Bhawanipuram
village Vijayawada
Taluk
c
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 D
Government.
2)
That the sale proceeds should be invested in a
Scheduled or Nationalized Bank in interest yielding
deposit.
3)
That the sale deed should be executed at the
E
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.
F
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 G
••
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."
H
774
SUPREME COURT REPORTS
(2008] 7 S.C.R.
A
8. Allegedly, upon publication of the said advertisement
several co-operative societies made their respective offers. Th~
offer made by the first respondent was said to have been
accepted. It was communicated to the first respondent by a letter
dated ~0.6.1982 purported to have been written by Shaik Syed
B Hussain, IAS which is in the following terms :
c
D
E
"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
F
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.
G
H
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:
..
)
.~·
' .
•
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S.
775
COOP. BUILDING SOC. LTD. & ORS. [S.S. SINHA, J.]
"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 CorporationReg.
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
E
c
D
E
Board to visit Vijayawada to
F
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
G
Sy.No.10 of the land
belonging
to
Dargah
Hazarath Ghalib Shaheed
Rn. Vijaywada."
H
776
SUPREME •'OUR- ' EPORTS
[2008] 7 S.C.R.
A
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) arid 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
B dated 16.8.1982 and then to Rs.1,26,000/- by a letter dated
c
D
E
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."
12. Appellant herein also said to have initially made an
F
offer of Rs.1,26,000/-. A bid was conducted wherein the appellant
offered the highest bid of Rs.1,28,000/-.
G
H
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 O;:irgah
Hazrath Galib Shaheed in S.No.63 of Bhavanipurarn \v),
••
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S.
777
COOP. BUILDING SOC. LTD. & ORS. [S.B. SINHA, J.]
Vijayawada Taluk, Krishna District to M/s. Mohammadia A
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
B
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.
c
(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 0
been issued on 26.5.1983. Allegedly, however, no advertisement
was issued prior thereto and, thus, no offer was called T~ '(et, 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 E
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.
F
First Respondent contended that pursuant to the said
purported agreement for sale dated 2.8.1982, it had been put G
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.200of1983. 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
H
778
SUPREME COURT REPORTS
[2008] 7 S.C.R.
A wherein were:
"a)
B
c
b)
D
c)
E
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.
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 l.A.6980/91
dated 24.6.1992.
For a permanent injunction contesting the defendants
1 to 10 and 13 interfering with 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
F 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
G 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
H Order was issued on 8.3.1985, giving time limit to sell the suit
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S.
779
COOP. BUILDING SOC. LTD. & ORS. [S.B. SINHA, J.]
....J.
lands pursuant whereto lay out was approved and plots were A
allotted.
20. The learned Trial Judge by a juc;lgment 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 th.at the B
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 0.10 to 0.12 are directed
to issue the necessary orders for execution of sale deed c
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 0.13 to execute regular D
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 0.1 and its Mujavars with permission of 0.10
E
are at liberty to substitute any other land other than plaint
schedule property to 0.13 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 F
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
G
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
; I
of applications have been filed for intervention and impleadment
.I
on behalf of the allottees.
H
780
SUPREME COURT REPORTS
[2008] 7 S.C.R.
A
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
B 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
C 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
D 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, Urban Land
Ceilings, Vijayawada as also the fact that the interim orders
E 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
F
pursuance of the G.0.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.
G
5. The Secretary, A.P. Wakf Board and the Secretary
Jammat-e-Mujavars Association of Hazrath Galib
Shaheed Dargah, Vi~yawada 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
. '
t i
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S.
781
COOP. BUILDING SOC. LTD. & ORS. [S.B. SINHA, J.]
authorities into the irregularities and the allegations A
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
8
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 C
Mujavars in favour of the appellant society. Indisputably, the
respondent No.1 herein in the said O.S. No.449of1984 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
D
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
E
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
F
said purpose the defendants tilted towards the appellants
(defendant No.13 - 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 canceUed upon taking into consideration
GO Ms No.343 staying the operation of GO Ms No. 773 wherein
G
a large number of irregularities were recorded including the one
that the Wakf Board did not follow the procedure laid down under H
782
SUPREME COURT REPORTS
[2008] 7 S.C.R.
A
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
B said premise, the contention that all transactions having already
been completed, no further direction should be issued, was
,J..
furthermore rejected.
The High Court also took into consideration that exemptions
had been granted in terms of Section 20 of the Urban Land
c (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
D
general principle, the Courts shall not grant the relief, which
was not specifically sought for. But, in peculiar and
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
E
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
F 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
G
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
H
not Mutwallis, could not have exercised the same
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S.
783
COOP. BUILDING SOC. LTD. & ORS. [S.B.