MRS. KASTURI BHAT v. THE CHIEF EXECUTIVE OFFICER

(BY SRI.SYED SUHAIL ALI, ADVOCATE FOR R1 AND R2; THERE IS NO NEED TO TAKE STEPS IN R/O DECEASED R3 VIDE ORDER DATED 03.03.2016) …RESPONDENTS - 2 - NC: 2024:KHC:30608 WP No. 32808 of 2013 THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS FROM THE 1ST RESPONDENT WHICH ULTIMATELY RESULTED IN PASSING OF THE ORDER VIDE ANNEXURE – A; QUASH THE ORDER DATED 17.9.2012 PASSED BY THE 1ST RESPONDENT VIDE ANNEXURE – A AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR ORAL ORDER The petitioner challenges the order dated 17.09.2012 passed by respondent No.1 under Section 52 of the WAKF Act, 1995, wherein it was held that the immovable property belonging to the WAKF known as The Nizamuddin A. Assain Saheb WAKF of 1920, P.O. Mangalore 1 (Sunni) [also known as “Nizamuddin alias Hassan Sahib WAKF of 1920, P.O. Mangalore I (Sunni)] was transferred in contravention of Section 51 of the WAKF Act, 1995. The order also stated that the Board was entitled to issue a requisition to the Deputy Commissioner, Mangalore, for possession of the property to be delivered to the Board under sub-section (1) of Section 53 of the WAKF Act.

2. The petitioner purchased 1½ cents of Sy.No.1796, T.S.No.115 with D.No.20-12-768/4 from respondent No.3 under a registered sale deed dated 23.01.1982. A suit was filed in O.S.No.372/1995 by a third party claiming that the plaintiff was the Mutawalli of the WAKF property, seeking a declaration that the sale deed executed in favor of the petitioner was null and void, and requesting the delivery of possession. In that suit, respondent - 3 - NC: 2024:KHC:30608 WP No. 32808 of 2013 No.1 was named as defendant No.2. The Trial Court dismissed the suit through its judgment and decree dated 26.02.1997, holding that the suit was barred by limitation.

3. Following the dismissal of the suit, respondent No.1 issued a notice to the petitioner asking why proceedings should not be initiated to recover possession of the property under Section 52 of the WAKF Act. The petitioner submitted objections during the inquiry, but respondent No.1, after conducting the inquiry, passed the impugned order, prompting the petitioner to file this writ petition.

4. Learned counsel Ms. Ananya Rai, representing the petitioner, argued that in the earlier suit, where respondent No.1 was defendant No.2, the Civil Court had categorically held that the suit for recovery of possession was barred by limitation. Therefore, any proceedings initiated by respondent No.1 after the expiration of the statutory limitation period were also barred by limitation. She further contended that although there is no express limitation period provided under the WAKF Act, 1995, proceedings for recovery of possession must be initiated within a reasonable time. Initiating proceedings 29 years after the sale deed was executed in favor of the petitioner is unreasonable and therefore renders the impugned order unsustainable in law. In support of her argument, she relied on the following judgments of the Hon’ble Supreme Court: a. Salem Muslim Burial Ground Protection Committee vs. State of Tamil Nadu & Others 2023 SCC ONLINE SC 656 - 4 - NC: 2024:KHC:30608 WP No. 32808 of 2013 b. The Board of Muslim Wakfs, Rajasthan vs. Radha Kishan & Others reported in AIR 1979 Supreme Court 289 c. Vivek M. Hinduja & Others vs. M. Ashwatha & Others (2020) 14 SCC 288.

5. Learned counsel for respondent No.1 countered the argument by stating that Section 107 of the WAKF Act specifically excludes the application of the Limitation Act, 1963, to proceedings under the WAKF Act. Therefore, the proceedings initiated by respondent No.1 were not barred by limitation. He further argued that the property was declared as WAKF property by way of a Gazette notification dated 04.04.1996 under Section 5 of the WAKF Act, 1954, and the petitioner’s purchase of the property was in contravention of Section 6(1) of the Act. Thus, the impugned order passed by respondent No.1 was in accordance with Section 52 of the Act.

6. After hearing the learned counsel for the parties and examining the records, the following points are noted:

7. It is undisputed that the subject property was declared WAKF property through a Gazette Notification dated 04.04.1968 under Section 5 of the WAKF Act, 1954. The petitioner purchased the property from one Gulab (respondent No.3), who was the then Mutawalli, under a registered sale deed dated 23.01.1982. The Mutawalli had earlier filed a suit in O.S.No.372/1995 to have the sale deed declared null and void and to recover possession. In that suit, respondent No.1 was made defendant No.2. The Trial Court, - 5 - NC: 2024:KHC:30608 WP No. 32808 of 2013 through its judgment dated 26.02.1997, dismissed the suit is barred by limitation, but nonetheless, held that the property was WAKF property. Despite knowing of the sale in 1982 and the suit filed in 1995, respondent No.1 did not take any steps to recover possession from the petitioner, who had purchased the property in violation of Section 6(1) of the Act.

8. Section 107 of the WAKF Act stipulates that the provisions of the Limitation Act, 1963, do not apply to suits for possession of immovable property belonging to a WAKF, or for any interest in such property.

9. When the provisions of the Limitation Act are explicitly excluded from application to certain proceedings, as in the case of the WAKF Act, the absence of a prescribed statutory limitation period does not give an indefinite license to initiate actions at any time. Even in such circumstances, it is a well-established principle of law that legal proceedings must be commenced within a “reasonable time.” Therefore, allowing proceedings to be initiated after an unreasonable lapse of time would result in a miscarriage of justice. It would also unsettle the rights that have been established and relied upon over an extended period.

10. The Supreme Court of India has consistently held that even where no specific limitation period is prescribed by a statute, courts are empowered to assess whether the action was taken within a reasonable time. If legal proceedings are initiated after an inordinate delay without sufficient justification, it would amount to a - 6 - NC: 2024:KHC:30608 WP No. 32808 of 2013 travesty of justice, as it would disturb settled rights, particularly in cases involving immovable property where rights and title may have existed peacefully for many years.

11. The principle of reasonable time serves as a safeguard against the arbitrary reopening of concluded matters, preventing the disruption of legal certainty and the settled expectations of parties. Initiating legal proceedings after a significant delay, without adequate explanation, would not only prejudice the party in possession but also contradict the public policy interest of maintaining finality in legal transactions and ensuring the timely resolution of disputes.

12. The Supreme Court, in Nekkanti Rama Lakshmi vs. State of Karnataka & Another (2020) 14 SCC 232, held that, despite the absence of a specific limitation period, actions under the Act must be initiated within a reasonable time. In that case, a delay of 25 years in initiating proceedings was considered unreasonable. A similar view was taken by the Supreme Court in Vivek M. Hinduja & Others vs. M. Ashwatha (2020) 14 SCC 288.

13. In the present case, the petitioner purchased the property in contravention of Section 51 of the WAKF Act. Respondent No.1 was fully aware of the purchase, as evidenced by the suit in O.S.No.372/1995, in which respondent No.1 was a party.

14. The suit was dismissed on 26.02.1997, and yet the proceedings under Section 52 were not initiated until 29.09.2009. Given the lapse of over 29 years from the date of the sale deed, it - 7 - NC: 2024:KHC:30608 WP No. 32808 of 2013 cannot be said that the proceedings were initiated within a reasonable time. Therefore, the impugned proceedings under Section 52 of the WAKF Act are not legally sustainable. Accordingly, I pass the following: ORDER i. ii. The writ petition is allowed. The impugned order dated 17.09.2012 passed by respondent No.2 at Annexure-A is quashed. iii. Respondent No.1 is restrained from initiating further proceedings in relation to the subject property without adhering to the principles of reasonable time as mandated by law. Sd/- (HEMANT CHANDANGOUDAR) JUDGE RKA