Holding

The sale agreement executed by the Mujawars without prior Board sanction and without compliance with Rule 12 is void; consequently, specific performance of the contract cannot be ordered.

Summary

The dispute concerned a 35‑acre wakf land in Vijayawada. The Wakf Board had appointed eight ‘Mujawars’ to manage the Dargah, and they entered into a sale agreement on 2 August 1982 with Mohammedia Co‑op Building Society Ltd. The sale required prior sanction of the State Wakf Board and publication of the proposed transaction under Rule 12 of the Andhra Pradesh Wakf Rules, 1974, which did not occur; the alleged sanction letter dated 30 June 1982 was later found to be forged. The trial court and the Andhra Pradesh High Court decreed specific performance of the sale, but the Supreme Court held that the Mujawars, not being Mutawallis, had no authority to sell wakf property without the statutory sanction, making the agreement void and rendering specific performance impermissible under the Specific Relief Act, 1963. Consequently, the appellate judgments were set aside.

Issues considered

The statutory authority of Mujawars/Mutawallis to sell wakf property under the Wakf Act, 1954.
Whether the sale agreement is void for lack of prior sanction under Section 36A and non‑compliance with Rule 12 of the Andhra Pradesh Wakf Rules, 1974.
Whether specific performance can be granted under Section 17 of the Specific Relief Act, 1963 when the seller lacks title.
The mandatory nature of Gazette publication of the proposed transaction.
The authenticity of the alleged sanction letter dated 30 June 1982.
The effect of State Government orders (G.O. 343, 1986) on the validity of the transaction.

Legislation cited

Specific Relief Act, 1963s. 17, s. 20
Urban Land (Ceiling and Regulations) Act, 1976s. 20
Wakf Act, 1954s. 36, s. 36A, s. 3(f)

Subjects

Wakf propertyMujawarsMutawalliSpecific performanceContract validitySection 36ARule 12Statutory complianceForgeryState supervisory jurisdictionAdministrative law

Judgment

(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)
MAY 6, 2008
B
(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, 1974- 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
sale dated 2.8.1982.
G
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 ""· .
Act, 1954 only by way 01 /\et 69 of 1984. A 'Mutawalli' is a
H
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.
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]
B 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. A-
49) 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 D
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 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]
3.6 Grant of a decree for specific performance of
0
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 circums-
H 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]
c
5.2 More reprehensive is the conduct of the State as,
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
conclusion. They failed to do so. The State Government E
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]
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3329 of 2008 .
••
_.J From the final Judgment and Order dated 25.1 2007 of
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
S.B. SINHA, J. 1. Leave granted.
0
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.
It admeasures Ac.35.20 cents pertaining to Survey No.63 of
F 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
G 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
H
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. Sri Shaik Ibrahim President
2 Sri Gulam Ali Akbar Secretary
3. Sri Mohd. lbranhim Treasurer G

, .
~
4.
5.
Sri Abdul Jaleel
Sri Mahd. Haneef
Sri Abdus Salam
Member
Member
Member
6.
7 Sri Abdul Waheed Member" H
772 SUPREME COURi REPORTS [2008] 7 S.C.R.

A 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.
B 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.

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 :
D
"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
E acre.

The full particulars of the land are shown below:-
I) Nature and purpose of the Sale for the
Proposed transaction construction of
F the houses.
II) Amount of consideration -+-
1) a) Price in case of sale Rs.24,64.000/-
b) Rental in case of lease
G Ill) Current Description of Properties :
1)
a)
b)
Agriculture Lands:
Rs. No. 63
Area : Acres 35.20 cents.
....
' .
H 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.
E
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. 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 :

"After careful consideration of the subject, the Board has
been pleased to grant permission to the Mujavars
Association Dargah of Hazrath Galib Shaheed

c
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
D 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
E 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
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:
H
•
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S. 775
COOP. BUILDING SOC. LTD. & ORS. [S.S. SINHA, J.]

"Item: Resolution No.120/82
F.No.9134/H1/LA/ The proposal for the sale of
KST/81 land belonging to Dargah
Proposal for the Hazrat Ghalib Shaheed, at
acquisition position of the Bhavanipuram, Vijaywada E
Dargah land in R.S. No.10 to Srinivasa Co-operative
Bhavanipuram for the House Building Society,
purpose of class I Vijayawada and
employees and Harijans of Mohammadia Co-operative
Vijaywada Corporation- House Building Society, c
Reg. Vijaywada @ Rs.70,000/-
per acre was discussed
Janab Sultan Saheb,
Hon'ble Member informed
the Board that the offer of D
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. E

RESOLVED to request
Janab R. Sultan Saheb,
Hon'ble Member of the
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
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
c 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
D
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.
E
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/-.
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 :
G
"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),
H
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.
F
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 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) 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
B 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
c 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 l.A.6980/91
D
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;
E 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
are at liberty to substitute any other land other than plaint E
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.
G
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
; I
.I
of applications have been filed for intervention and impleadment
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.
5. The Secretary, A.P. Wakf Board and the Secretary
G
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
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.
G
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
t i
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
general principle, the Courts shall not grant the relief, which
D
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
required relief, to mould the relief appropriately, in the
E 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
of the Wakf Act, 1954 or otherwise.
G
(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. SINHA, J.]

...J. power under the Act. A

(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 :
B
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 c
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 D
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
E
outcome of forgery as the then incumbent of
the said Board while examining himself as OW-
6 categorically stated so.
(vi) The purported order dated 30.6.1982 (Exhibit
A-49) is fabricated document and was not in F
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;
G
(2) The stamp papers were purchased on
2.12.1981, i.e., eight months prior to
' ; entering into the said agreement from
_j Vyyuru, although the parties were residents
of Vijayawada.
H
784 SUPREME COURT REPORTS [2008] 7 S.C.R.

A (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
B
(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.
c
(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
D
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;
E 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
F and bid was invited to secure a better offer, the High
Court should have allowed the application for ~
adduction of additional evidence.
(xii) As the allottees were not parties to the suit, no decree
for specific performance against them could have
G
been granted.
(xiii) 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/
H - have been or could have been paid by the plaintiff.
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S. 785
..... COOP. BUILDING SOC. LTD. & ORS. [S.B. SINHA, J.]

27. Mr. Andhyarujina, learned senior counsel appearing p.
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
_,.k agreement to sell which met the approval of the Wakf B
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.
c
(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.
>
D
(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 E
. 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 F
-> 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 G
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. H
786 SUPREME COURT REPORTS [2008] 7 S.C.R.

A 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
B 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:

c "3. Definitions:- In this Act, unless the context orhtewise
requires-
(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
D 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
E person or Committee or Cotporation 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."
F
~-4,,
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
G
managing or administering any wakf or wakf property.
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
H care of the shrine could act as a Mutawalli, is the question.
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S. 787
COOP. BUILDING SOC. LTD. & ORS. [S.B. SINHA, J.]

The Legislature, however, is entitled to expand the A
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. B

Section 36 of the Act provides for the duties of Mutawalli,
which are as under:

"36. Duties of mutwallis :-It shall be the duty of
mutawalli- c
(a) to carry out the directions made by-

(i) the Board; or
(ii) the Wakf Commissioner :
D
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 E
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;
F
(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 G
provided for prior sanction of the Board before a wakf property
; .
_J.
is transferred.
By Act 69 of 1984 such alienations are to be void. When
an a·pplication for grant of sanction to transfer the Wakf property
is filed by a Mutawalli, it is required to publish the particulars H
788 SUPREME COURT REPORTS [2008] 7 S C.R.
~

A 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
B (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.

c 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
D 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.
E 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
F 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
G mujavars-defendants are different.

31. The witnesses examined on behalf of the Mujavars,
~
''
Gulam Ali Akbar 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
H
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. LS. 789
COOP. BUILDING SOC. LTD. & ORS. [S.B. SINHA, J.]

property was handed over to the plaintiff society. 'Mujavars' A
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
__.i.. the plaintiff society deposited a huge amount by cash only on a B
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 c
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
-i the properties described in the schedule appended thereto, in
> favour of the plaintiff-society. D
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 E
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 F
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 theAndhra Pradesh Gazette as also
the District Gazette in which the property is situated. G

J' The notice in terms of sub-rule (2) of Rule 12 was to contain
J
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
/ H
_..
790 SUPREME COURT REPORTS [2008] 7 S. C.R.
.....
A 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
B (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 theAndhra Pradesh Gazette
or the District Gazette. The purported order of sanction is in the
c 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 I.II
of the order of sanction in the Gazette is not mandatory but only
D ~
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
E made, clearly goes to show that the Rules are imperative in J=
character.
'I'"
35. A mutwalli is a manager or trustee of the property.
Mujavars were not even that. Mujavars, prior to the amendment
F 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.
G The functions of the Mutwalli and/or Mujavars in the light of
the provisions of the Wakf Act and the Rules framed thereunder
• "II._
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.
H [See Bibi Saddiqa Fatima v. Saiyed Mohammad Mahmood
;.
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. LS. 791
COOP. BUILDING SOC. LTD. & ORS. [S.B. SINHA, J.]
--', '
Hasan [(1978) 3 SCC 299] and Nawab Zain Yar Jung (since A
deceased) & Ors. v. Director of Endowments & Anr. [AIR 1963
SC 985].
Furthermore, whert 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 B
that minimum 30 days time should be given for receipt of
objection.
36. The learned trial judge as also the High Court, thus,
committed a serious error in holding that as within a period of c
30 days, objections had not been received the notification issued
under sub-rule (2) of Rule 12 b(JGame 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
Di
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 E
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 F
..,...._ 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 G
2.8.1982. Even at an interlocutory stage of the proceeding
before the learned trial judge, the Chairman, Wakf Board
.II! f
~ 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 stamf-1 papers were purchased on ii

' -
792 SUPREME COURT REPORTS [2008] 7 S.C.R.

A 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 :
B
".... It is true to suggest that after obtai:iing permission
from fl!e WakJ Board, we entered aareernerit with plaintiff
under Ex.A31 1:0 se:1 ;i-,"" vroperty. it contains our
signatures ... "
c 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
D
the plaintiff under ExhibitA.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
E of the sum1et>tion. 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
F 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.
G
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
H requirements of law.
.. \

MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S. 793
COOP. BUILDING SOC. LTD. & ORS. [S.B. SINHA, J.]

40. Section 17 of the Specific Relief Act, 1963 reads as A
under:
"17. Contract to sell or let property by one who has
no title, not specifically enforceable.-(1) A contract to
sell or let any immovable property cannot be specifically
enforced in favour of a vendor or lessor- 8

(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 ha.cl a good title to the property, cannot at the C
time fixed by the 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 D
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 E
granted by the Wakf Board, the Courts below had commi~<ta .
serious error in passing the impugned judgment ·' ·· · · .-

42. We may, at this stage, also notice the reliefs prayed
for in the plaint :
F
"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 G
at their expense for the plaint schedule property in
> I
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 H
794 SUPREME COURT REPORTS [2008] 7 S.C.R.

A the sale deed or sale deeds.
b) In the alternative of the pl lint schedule property, if tho
plaintiff is found not to be in possession Added as
per order in IA 6980/91 dated 24.6.1992.
B 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
C 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
0
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 GO Ms No.343 dated 25.10.1986 but prior
E 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
F 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
G been taken into consideration.
Grant of a decree for specific performance of contract is a
discretionary relief. There cannot be any doubt whatsoever that
•'.. 't the discretion has to be exercised judiciously and not arbitrarily.
H But for the said purpose, the conduct of the plaintiff plays an
MOHAMMEDIA COOP. BUILDING SOC. LTD. v. L.S. 795
CQOP. BUILDING SOC. LTD. & ORS. [S.B. SINHA, J.]

~
important role. The Courts ordinarily would not grant any relief A
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-1 dated 23.10.1982. The said bid by the plaintiff, in B
absence of any finding that the same were forged and fabricated
documents, could not have been ignored particularly when the
difference between the rate o~ered by the plaintiff and that of
the appellant was substantial.
c
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 D
Government and the Wakf Board as also the Mujavars acted.
-°l" 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 interfer?d with the functioning of the
Wakf Board is not known. The manner in which the purported E
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 F
is supervisory in nature. The AP Wakf Board is a statutory body.
~ It is the duty of the State to oversee its function's. 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. G
Why for 22 years, no enquiry was conducted and why no action
had been taken pursuant to the said GO Ms 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 H
796 SUPREME COURT REPORTS [2008] 7 S.C.R.

A 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
B 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 opiniorrthat the
Government of Andhra Pradesh would be well advised to cause
an enquiry to be made into the entire affairs of the Andhra
C Pradesh 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. 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
0
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
E impleadment filed by the allottees.
46 Appeals are, thus, allowed with no order as to costs.
R.P. Appeals allowed