MP High Court Quashes Waqf Board Order Expanding Waqf Land, Says Chairman Alone Lacked Jurisdiction Without Board Approval

The Madhya Pradesh High Court has quashed the order of the Waqf Board expanding land under Section 41 of the Waqf Act, noting that the Chairman alone lacked jurisdiction to pass an order to such effect without the approval of the members of the Board.

The bench of Justice Deepak Khot observed; 

"the Board consist of several members which have been prescribed in the composition of Board, therefore, the order communicating the dictate of the Chairman of the Board cannot be said to be an order passed by the Board. The order has been said to be passed by the Chairman which has been communicated by the Chief Executive Officer". 

The petition was filed challenging the order of March 7, 2012, passed by the Chief Execution Officer, MP Waqf Board of Bhopal. The counsel for the petitioner conteded that the land which was part of the said dispute was purchased by the petitioner through a registered sale deed of December 20, 2010. 

The counsel argued that the waqf order was passed with respect to Survey No.290 for an area of 0.20 hectares and Kabristan village Mohammadpura in Khasra No.292, having an area of 0.10 hectares and the rest of the area of the above survey numbers was recorded in the name of the predecessor in title and based on which the petitioner purchased the said land through a registered sale deed. 

The counsel argued that the CEO, per the impugned order, communicated the decision of the Chairman of the Board, who, by invoking Section 41, stated that the remaining land purchased by the petitioner was already included in the Waqf. The counsel argued that Section 41 empowers the Board, and since the order was not passed by the Board, it was without jurisdiction. 

The counsel for the Board conteded that the order was passed on the dictate of the Chairman and therefore should be treated as an order passed by the Board. 

The court held that the Waqf was recorded by notification in 1989 for two separate numbers, but for a limited area. For the rest of the area, the court noted that no notification had been issued to date. 

The court noted that per Section 41, the Board may direct Mutawalli to apply for registration of Waqf or may itself cause the Waqf to be registered or may at any time amend the register of Auqaf. The court noted that the primacy issue for consideration related to the validity of the order passed under Section 41, not passed by the Board but by the chairman. 

For context, Section 41 of the Waqf Act empowers the Board to direct the Mutawali to apply for registration, or may itself cause the Waqf to be registered or may at any time amend the register of Waqf.

The bench observed that the Board consists of several members which has been prescribed in the composition of the Board. Therefore, the order communicating the dictate of the Chairman cannot be said to have been passed by the Board. 

The bench held that the impugned order passed upon the dictates of the Chairman did not align with the provisions of Section 41 of the Act and therefore is without jurisdiction. 

The court further mephasized, "the notification was issued only in respect of the survey numbers containing smaller area of the land, then, such notification can be amended by subsequent notification, that too, by applying the principle of Section 4 within the time prescribed in the Act. If such notification has not been issued by the State Government, then the Board cannot adopt a different method by invoking powers under Section 41 to declare or register the land to be a Waqf property. Therefore, in the light of Section 4 also, the order impugned is without jurisdiction". 

Therefore, the bench set aside the impugned order and allowed the petition. 

Case Title: Smt Khalida Bee v MP Wakf Boards, WP-5788-2012

For Petitioner: Advocates Himanshu Mishra and Bhanu Pratap Singh 

For Respondent no 1: Advocates Utkarsh Agrawal and Atul Khare

Click here to read/download the Order