 topic remain the same. Good evening friends and today it gives us quite a feeling to the heart that someone from the east we have connected. I was talking to before going to this webinar live that we had Justice Moshmi Bhattacharya who had shared her topics from the Calcutta High Court. We always thought to connect with the persons from the east also so that the pan in the audience of knowledge sharing continues. And in that endeavor and pursuit Justice Sayedullah Moshi a former judge from Calcutta High Court has been kind enough to accede to our request and we all know that his judgments have always had a pan India impression and indivible mark in the minds of a common man and a professional. But today's topic is slightly different from we normally are taking but it's in the legal perspective only. And we were always looking forward to embark into this journey of legal sharing where we discussed regarding the Vakar fact prospects of the present Vakar fact 1995 and the amendments is the topic for the day and to enjoy it on a weekend with a person who is always resourceful and a subtle way of hammering the points in the right manner in the right way is what creates a different nature of justice Moshi. Without taking much time we will request sir to share his insights and thank you to all those participants who are watching us live on the Facebook and YouTube and those who have not subscribed to our channel can watch our previous webinars by subscribing it and also to activate the notification part. Over to you sir. Yes a very good evening to all of you present virtually today's topic you have just heard. So before going to the topic some introduction is necessary some introduction. Am I audible? Some introduction is necessary because Muhammadan law is the source of the subject Vaf. Vaf is a branch of Muhammadan law. Therefore a brief introduction. Lightly the camera it has tilted downside only up till the naked is visible sorry. Yeah perfect. So this is a branch from Muhammadan law in general. That's why originally the Vaf had its origin in the Muhammadan law. Law of Vaf is most important branch of Muhammadan law. Its existence is evident for the last 14 centuries and is being cherished and valued by all Muslim countries over the world where Islam is recognized and practiced as an integral and essential part of their religious system. The institution of Vaf is historically traceable to certain sayings of the Prophet. It is said that Omar one of the caliph of Islam after demise of Prophet Muhammad he became the caliph but during his lifetime while Prophet was alive he sought advice from the Prophet as how to one can make a good use past use of a piece of land which he had at that point of time. In reply the Prophet said and declared that tie up the proper that is the corpus and devote the use of fact to human beings and it is not to be sold or made the subject of gift or inheritance devote its produce to your children your kindred and poor in the way of God. That is the very first object of creating a Vaf. Many people many generous people I say they have dedicated their properties valuable properties as Vaf in the need of humanity and for the service of human beings. Vaf literally means the detention stopping or tying up and the legal meaning of the Vaf according to the accepted doctrine of unoffice school in the extinction of the proprietors ownership in the thing dedicated and its retention in such a manner that the prophets may reward to and be applied for the benefit of ultimately for the mankind. And this proposition long time back has been discussed in a decision in Indian court in 1973 Madras 191 as I have already told that Vaf had its origin in the Mahamanan law and for the last 14 centuries the practice in relation to the Vaf is going on. Time to time government felt it is necessary to have some control statutory control rather on the Vaf properties and Vaf institutions and that is why the appropriate government decided to enact laws for the control over the Vaf institutions and Vaf properties throughout India. Various enactments have come in India before and after independence the whole purpose whole and sole purpose is to see that the beneficiaries attached to the Vaf are benefited. Object and purpose of the Vaf are maintained and institutions maintained under the Vaf income does not lose its character. Such enactments were made at different point of times. First such amendment enactment came in 1913 when Muslim Vaf validation act came into force. Previously a dispute arose if a Vaf is created for the members of the family of a person who dedicates the property to constitute as a Vaf whether that Vaf is a valid Vaf or not even if it is for the benefit of one's family only family members only. A decision in Abul Fatah Mahmoh's case it was decided that when this type of charity is only for the private purpose and for the family members only this cannot be the Vaf and Vaf will lose its character. So in order to resolve the dispute at that time various disputes came and in the Muslim community also it was seriously taken that this decision cannot have any binding effect on the Vaf so that the character of the Vaf would be lost. So at that time the government enacted this act of 1913 to validate the Vaf even if it is for a remote purpose an ultimate benefit is for the charity then the Vaf is a valid Vaf and it cannot lose its character. Similar way different acts came at different point of time and India, Indian states were governed by different acts. There was no uniformity of the application of law or governance of the Vaf institutions and Vaf properties like Bihar and Orissa Muslim Vakapak 1926 which was applicable in Bihar and Orissa Dengol Vakapak 1934 which was applicable only in respect of the province of Dengol. Bombay Muslim Vakapak 1935 it was restricted it's in use in a particular state. United Muslim Vakapak 1936 UP Muslim Vakapak had its application only in UP Uttar Pradesh Delhi Muslim Vakapak 1943 Bombay Muslim Vakapak Amendment Act 1945 subsequently came Bihar Vakapak 1947 Vakapak 1954 that is the only central Vakapak which was sought to be introduced to bring an uniformity among the Indian states Indian people. 1954 act in some way can be said to be similar with that of the provisions of 1995 act. 1995 act has been reformed in a better way amending various provisions deleting and adding some more provisions in the 1954 act. More or less the object of 1954 act and 1995 act remains the same. Now how a Vakapak is created how a Vakapak is created after this 1995 act the definition has to some extent changed regarding Vakapak almost from 1913 to 1995 and even after 1995 there has been a thorough amendment in the Vakapak 1995 by the amendment act of 2013. The poor definition remains the same the object is same what is Vakapak according to the Vakapak Vakapak is a permanent dedication by any person of any movement or immovable property for any purpose recognized by Muslim law as pious religious or charitable and includes some other things which is considered to be Vakapak sometimes some disputes arose whether any person means any person whether Hindu, Muslim, Buddhist, Jain or any other religion they can create a Vakapak for now. Judicial decisions came on this issue and ultimately any person means any person can create a Vakapak if the charity is there mentioned. So to constitute a valid Vakapak it is thus necessary that there must be dedication of property and next it must be permanent in character it means that once a Vakapak is created relating to any property whether movable property or immovable property it remains a Vakapak forever. And in fact the honorable Supreme Court in recent past in 1998 as decided in a case in the case of Swyadali versus Andhra Bodhisattva Vakapak that once a Vakapak is created it continues to be so it retains its character nothing can be demolished nothing can be destroyed in the in that context the Supreme Court said Vakapak which was earlier created subsequently the Tausila in a show mode of proceeding tried to change the nature and character of the property and in a separate suit subsequently taking the plea that subsequently when it was decided that the property has lost its character under the Inam Grants Act the property was settled to some somebody else and it was held in the suit that the property lost its character it is no more Vakapak ultimately when the decision of the High Court was challenged before the Supreme Court Supreme Court in that context held that no the Vakapak cannot be lost once the Vakapak was created and if it is the established fact that Vakapak was created by observing the rules under the Muhammad Allah and it as followed the principles of creation of Vakapak then the Vakapak once become complete cannot lose its character and by no order the Vakapak character can be destroyed therefore 1998 Supreme Court decided that once a Vakapak always a Vakapak once a Vakapak is created it continues to carry its character it cannot be lost the present Vakapak law in brief I will summarize the aspects of the present law present Vakapak 1995 1995 act has introduced certain new things and in brief point was if I say what are the characters of the present Vakapak then I will go to the amendments and the object of the amendments and its practical aspect of this act Vakapak present Vakapak law contains the following features namely one Vakapak boards for the states and the union territory of Delhi and it shall have not less than seven and not more than 13 members of which the majority will comprise of such persons all are to be elected from amongst Muslim members of parliament, Muslim members of the state legislatures, Muslim members of the bar council in the state and mutwallis of Vakapak in the state having income not less than one lakh rupees that means the income must be more than one lakh then the mutwallis of those Vakapak state will be eligible to participate in the voting process and one among the those mutwalli members will be elected or two will be elected to constitute part of the Vakapak board the nominated members will be from Muslim organizations of the state eminent recognized scholars in Muslim theology and representative of the state government not below the rank of deputy secretary in a state where there are Sia Vakaps but no principal Sia Vakapak board then it has introduced that at least one member shall be Sia Muslim and that member will be part of the Vakapak board he will participate in the hearing of the Vakapak board number two second feature is that the distribution of powers between the Vakapak board and the Vakapak commissioner now there is no Vakapak commissioner at present under the 1995 act which is now de-recognized and and and this this Vakapak commissioner has taken the place of chief executive officer rather the chief executive officer has taken the place of Vakapak commissioner in the earlier act now this chief executive officer he is according to the provisions of the provisions of section 23 and 26 he acts as the secretary of the board he has got enormous power under the Vakapak and if the chief executive officer wants that any decision of the Vakapak board may not be implemented he can give a veto if it is against the public interest or public policy or there is a communal disturbance if that decision is to be implemented then with that apprehension the chief executive officer can withhold the decision he may not implement the same because ultimately the chief executive officer being the secretary of the Vakapak board he is the authority to execute the decisions of the board it is not the board to execute its order it is the secretary it is the chief executive officer to execute the decision of the board so he is the implementing authority that's why under section 26 some powers some veto power has been given to the chief executive officer he can exercise that power he is free to do it next provisions are also being made for appointment of a chief officer inside the Vakapak states where the Vakapak state has got income more than 5 lakhs and if the board is of the opinion that the income is not properly utilized according to the wishes of the Vakip or according to the object of the Vakip or according to the creation of the Vakapak then in that case if there is any mismanagement male and administration misappropriation of fund of Vak then in that case board has got both board has been authorized to appoint executive officer in respect of individual Vakapak states where the income exceeds to be 5 lakhs next to strengthen the finance of the Vakapak board one of the measures being taken and in the recent past this has been introduced previously it was 6 percent contribution from out of the income of the Vakapak states now it has been raised to 7 percent so that the board can smoothly organize its functions and they can give proper assistance to the Mothwallis at large it is also intended to put certain restriction on the powers of the Mothwallis in the interest of better management of the Vakap properties an important provision in the bill before 1995 act came into force was made the Vakap tribunals according to that concept has been set up in the states in different states different Vakap tribunals have been state established and even there are more than one Vakap tribunals can be established in a particular state depending upon the tendency of the litigations relating to Vakap properties and Vakap institutions in a particular state it is also to be pointed out that despite all precautions taken Vakap properties at times are seen to have been misused Vakap beneficiaries are seen to have been deprived of their properties of their interest from the Vakap states and in the 1995 act government as a precautionary measure have taken certain drastic decisions to restrict the power of the Mothwalli from granting lease sale or even tenancy on long term basis those restrictions have been imposed to guard the Mothwalli so that income is properly utilized and it is not misused and that the beneficiaries do not suffer in every state as I have already pointed out that there is a provision for Vakap tribunal what is the function of this tribunal I will deal with elaborately because section 83 of the Vakap act indicates establishment of an independent tribunal to discharge its function to attribute upon the disputes relating to Vakap and section 85 of the Vakap act has made it clear that if any dispute arises in relation to any Vakap or Vakap property or Vakap institution then such disputes are amenable to the jurisdiction of the Vakap tribunal constituted under section 83 section 83 clearly says that the disputes for which provisions have been made in the act and which are required to be decided by the tribunal are to be decided in the tribunal section 85 creates a bar in respect of the institution of suits or other proceedings relating to Vakap before the civil court from the inception of 1995 act and even after the amendment of 2013 which brought about first amendments in the 1995 act but the dispute is still going on whether civil court jurisdiction in relation to the Vakap or Vakap properties are an absolute bar or no these disputes have been set at rest by the apex court and ultimately held that no if it is a Vakap or Vakap related dispute there is no other alternative which has to go before the tribunal only because tribunal has got all the tests of civil court section 83 lays down that the tribunal while deciding while trying a suit or executing a decree shall be deemed to be a civil court then if that is the language of the section section 83 subsection or a file says that it shall be deemed to be civil court then again question arises why not the civil procedure court should be directly applicable made applicable in respect of the proceedings pending before the tribunal why it shall be deemed why there shall be a deemed decree why shall be a why shall there be a deemed order so these questions have been discussed by the courts Indian courts high courts and supreme at different point of times and ultimately now it has been set at rest by the apex court in the current decision where the supreme court says if it is Vakap property or Vakap related dispute then it has to go before the tribunal because tribunal is the only forum which can decide the specialized forum which can decide the this kind of disputes therefore it has to go before the tribunal first at times question also came whether repetition if there is an allegation of inaction either on the part of the tribunal or on the part of the Vakap bowl or which effective officer which part of the statue if there is any inaction on their part or the election of duty on their part whether read petition can be filed read code can be entered different citations are there different judgments are there which clarifies that no even in these cases read code cannot be approached because of the simple reason that the forum which has been specially created by a specialist statue and if that special statue is seen to have all the provisions if it is a self-contained code then question of filing read petition or alternative remedy cannot be involved therefore the in our judiciary at different point of time these questions were discussed and it has been held that alternative remedy should be avoided before going to the decisions of the supreme court I will only give the short questions which came before the courts at different point of times from 2001 to latest in 2021 this dispute about jurisdiction of civil court vis-a-vis the jurisdiction of tribunal has been raised and discussed by the judiciary in 2001 in Sayed Munir versus chief AGG officer Andhra Pradesh state Vakaport Hyderabad and others the then chief justice SB Sinha as his lordship then was first a similar problem whether the read petition should be the question arose whether the read petition should be entertained despite the fact that an alternative remedy is available under section 83 of the work fact 1995 on the ground that the work in question is not a registered one previously there was a provision that if the work of is not registered then no relief can be sought but subsequently by amendment that has been deleted even if it is not registered and because of the ratio of that judgment in Sayed Ali versus Andhra Pradesh Vakaport 1998 Supreme Court once a work always a work once dedication is complete work becomes complete character of work will continue then whether it is registered with the Vakaport or not that cannot deprive the beneficiaries or mutualies or any persons attached to the work from its legitimate claim or keeping that in mind the legislature amended the provision deleted that rather deleted that provision by amendment in this decision of Justice Sinha regarding alternative remedy by the read petition his lordship held that in a given fact in the division bench presented over by Justice Sinha held that learned single judge cannot be said to have committed any error in directing the appellant could take a request to alternate remedy available to him in law meaning thereby that the read petition held and which was affirmed by the division bench holding that it is the tribunal which is to be approached if the dispute relates to the work of property next decision in the same line in again 2001 and again by Justice Sinha where a single bench two decisions came in in appeal where the chief issue officer of the Vakaport declared that the Vakaport was illegal and the decision on this was held to be illegal because question of jurisdiction came in when the Vakaport was not in existence similarly in that decision also the division bench of Andhra Buddha's hypo held that section 83 of the Vakaport and its subsection five says the tribunal constituted under subsection one of section 83 shall be deemed to be a civil code and shall have the same powers as maybe exercised by a civil code under the code of civil procedure while trying a suit or executing a decree or order therefore the jurisdiction of the civil code specifically barred under section 85 of the act in that on specters their lordships in the division bench held that tribunal has been conferred with the power to determine any dispute question or other matters relating to a Vakaport or Vakaport property under the act and acts as a civil code for all purposes therefore their lordships held that as a constitutional court this court cannot permit a party to bypass such authority or statutory remedy and assign itself the role of statutory authority or tribunal by dealing with the disputed question of fact or title therefore the decision by the single judge that tribunal it is not the tribunal but the read code can decide that was set aside this trend is going on since 2001 then again in 2003 sometimes some with some difference some judgments have come but ultimately if we go through all the decisions I will not place all the decisions if we go through the decision 2003 2004 2004 there was a difference there a judgment an order was passed under order 7 rule 10 returning the plant holding that it is not the civil code but the tribunal should decide the matter there of course the high court held that the Vakap tribunal is the only forum for the determination of a dispute question or other matter relating to Vakaport Vakaport property including the suits for perpetual injunction and the civil court has no jurisdiction to entertain any suit for determination of a dispute relating to Vakaport Vakaport property this has been decided reversing the high court decision inhibition which was held otherwise in 2005 Justice Kaju while Chief Justice of Madras High Court also held that it is only the provisions of 83 is to be involved and civil court cannot be approached then in 2010 this trend is still going on there also jurisdiction of civil court to entertain suit or proceeding in relation to any Vakaport property falling within four corners of the tribunal's power held does not stand but therefore civil court's jurisdiction is but this this was held in the decision of Ramesh Bhavindram versus Sugra Humayun made the Vakaport state but some distinction is there while other courts before this judgment held that tribunal is the only forum where all the disputes are to be resolved but this judgment made certain exceptions it said that the provisions which have been made in the Vakaport 1995 for determination of the disputes can only be less before the tribunal therefore taking advantage of those sections where it says about determination of disputes by the tribunal only can be decided by the tribunal not others therefore whether absolute bar has been created under section 85 or not this judgment has bypassed the issue and the rather it says that the bar is not an absolute bar this is tribunal's power is restricted only in respect of certain provisions of the Vakaport and particularly since section 83 says the tribunals have decided which are required to be decided by the tribunal under the act therefore where express provision has been made in the act in different sections which requires that these are the disputes to be decided by the tribunal then tribunal will decide only those provisions only those disputes those matters not otherwise and not the entire Vakaport matters therefore this decision of Ramesh Govindram in 2010 says exclusion of civil force jurisdiction is dealt with by section 65 and section 85 of the act to interpret section 83 as a provision that excludes the jurisdiction of the civil court is not therefore legally correct for that provision deals with constitution of tribunals the procedure which the tribunals would follow and matters relating that to according to the court so long as the dispute of question raised before the civil court does not fall within the four corners of the powers vested in the tribunal the jurisdiction of the former to entertain a suit or proceeding in relation to any such question cannot be said to be barred here I join issue although although we have seen these decisions more or less says that bar created under section 85 is an absolute bar but if few provisions from the Vakaport act we visualize then it will be clear that there is some ambiguity in the enactment itself so for section 6 section 7 there the jurisdiction has been directly given to the tribunal under the Vakaport act these these these jurisdiction is not pertaining to 83 it under 83 tribunal is constituted no doubt but independent jurisdiction has been informed upon the tribunal under section 6 and 7 which specifically says about the disputes relating to Vakaport if we consider section 68 of the Vakaport act where a provision has been made that in a case where a removed Mutuali six charged from a removed Mutuali new newly appointed Mutuali where six charged from the removed Mutuali and if such removed Mutuali refuses to hand over charge of the Vakaport state then what are the consequences and what are the remedial measures to be taken by the newly appointed Mutuali or commodity Mutuali that has been illustrated under section 68 of the Vakaport now section 68 is all right it gives power to magistrate it gives power to the Chief Officer everything but there is a lacuna in that section where we find that ultimately the act says section 68 says that the decision where the magistrate arrives at directing the removed Mutuali to hand over charge to the newly appointed Mutuali then the agreed person can approve the civil code if I just draw your attention if I draw your attention to the provisions of section 68 it will be very clear and why I am taking you to this provision because the ambiguity is there and if in future any amendment is proposed this should be born in mind that provisions of section 68 should be amended taking a positive view that is the dispute if courts have already announced or pronounced that it's section 85 creates an absolute bar whether this is absolute or not that is to be clarified and if necessary the provisions of 68 and some other provisions also are required to be amended section 68 subsection 6 now that I am reading from subsection 4 whenever any removed Mutuali or any member of the removed committee omits or fails to comply with the orders made by any magistrate under subsection 2 the magistrate may authorize the successor Mutuali or committee to take charge and position of such records accounts properties including cash and may authorize such person to take such police assistance as maybe necessary for the purpose then subsection 5 no order of appointment of the successor Mutuali or committee shall be called in question in proceeding before any magistrate under this section now the crucial subsection 6 portion nothing contained in the section cell bar the institution of any suit in a competent civil court the provision is very very clear competent civil court by any person agreed by any order made under this section to establish that he has right title and interest in the properties specified in the order made by any magistrate under subsection 2 the question will arise while the authorities under section 68 deals with the property undoubtedly the property is a walkup property because the authorities exercise can be exercised only when it pertains to walk the state and if that is so because Mutuali is a removal of Mutuali is in question magistrate is empowered to ask the removed Mutuali to handover charge all these things will come in only when the property is a walk property and is a registered walk and is within the jurisdiction and authority of the walkup board then if that be so then subsection 6 really creates a trouble whether the bar under section 85 is an absolute bar or not when this specifically says that the agreed person can go to the civil court and approach the civil court to establish his right title and interest in the walkup property had there been any such provision that section 85 would stand as an absolute bar in respectable walkup property and more so when the walkup property is registered with the walkup board and exercising authorities over it this decision can be amenable before the civil court here the civil court obviously does not mean the court within the meaning of section 85 of the walkup act here it is very specific that the civil court even jurisdiction can be approached for right title and interest for declaration of one's right title interest and what what is the right title interest relates to relates to a property which is a registered walk therefore this portion this is gray area of the walk fact section 68 which directly contradicts with the provisions of section 85 and even if section 83 authorizes the tribunal to decide matters pertaining to walkup estates walkup properties and walkup institutions even then entire relief may not be available before the walkup tribunal parties may be at liberty they can opt for declaration before the civil court similarly there are other provisions also which have not taken care of even during the amendment was brought in 19 in 2013 if I draw the attention of the audience you will find that there is a provision made in the walk fact where the walkup board can approach even the civil court the language is very clear section 85 creates a bar no suit or other legal proceedings shall lie in any civil court revenue court and any other authority in respect of any dispute this provision has been amended where revenue court is barred civil court is barred by way of amendment this is civil court has been introduced but even then if you see there has been no amendment in the next provision 86 which says a comment of a receiver in certain cases notwithstanding anything content in the court of civil procedure or in any other law for the timing in force where any suit or other legal proceeding is instituted or commenced by or on behalf of the board to set aside the sale of an immobile property which is walkup property in execution of a decree or order of a civil court so and so to recover possession of the property by a monopoly to recover possession of immobile property which is walkup property etc etc then the court may on the application of the plaintive appointed receiver of such property and direct such receiver to pay from time to time the plaintiff out of the income etc the court may consider to be necessary for the purpose of prosecuting of the suit here also section 86 if it is deeply considered does not speak of section 83 of the walkup act it speaks of very well about the jurisdiction of the civil court which only can exercise the power to appoint receiver and this is the only provision which specifically mentions that where the walkup board in respect of a suit the suit is bending can pray for appointment of receiver in three situations this can happen if where any suit or other legal proceeding is instituted or commenced therefore these provisions are also required to be amended thoroughly otherwise the purpose and object for which bar has been created under section 85 will be of zero effect because people will go both before the tribunal and also before the walkup also before the district courts so that is not the if that is not the object of the act that the civil court should entertain disputes related to walkup then the provisions should be made very clear and all ambiguity should be removed now in 2013 various amendments have been made in the walkup act or instance time is very short we cannot in detail go to the amendments today in section six and section seven some amendments have been brought similarly there are other provisions since the time is very short the very important provisions only I will discuss on the context of amendment of 2013 the very important provisions in the walkup act is and it is a very prominent problem before the persons managing the walkup properties nowadays the walkup properties are being encroached upon by persons against the interests of the walk and for that provision has already been made in the 1995 act for removal of encroachment but enclosure who is enclosure has not been defined in the act in the 1995 act subsequently by amendment this has been introduced recently in 2013 and now after section three subsection e e e has been introduced by way of amendment in 2013 now enclosure means according to act according to the amendment introduced in 2013 is enclosure means any person or institution public or private occupying walkup property in whole or part without the authority of law and includes a person whose tendency needs your license as expired or has been terminated by Motwali or the board therefore the definition is a vast definition having enlarged scope to catch hold of a person who is in occupation of a walkup property without any authority under the law therefore any person who has no authority to occupy and is in occupation of the walkup property can be said to be an enclosure what are the remedies available in the walk fact 1995 that we will discuss now 54 is specifically mentioned in the act for removal of encroachment there are other provisions like section 52 which deals with recovery of walkup property there is a distinction between the two provisions one is encroachment and the other is recovery of walkup property recovery means the property which has been destroyed by the Motwali or by the Motwali or by the beneficiary of the Motwali or any person interested in a walk in connection with or in collusion with the Motwali or any other institution attached to the walkup then the property can be said to be an illegal transfer and that illegal transfer can be set aside by the provisions by implication of section 52 52 says recovery of walkup property transferred in contravention of section 51 now before leading section 52 we have to read section 51 then we can understand what is meant by recovery of walkup property section 51 says about alienation of walkup property without sanction of the board and if it is done without sanction of the board that should be termed as void of initial so for transfer of any walkup property you have to take permission from the walkup board and in absence of any such permission of the board if any Motwali or any person attached to the walkup institution transfers any property of the walkup that will be void of any show and if that happens without permission without legal authority if anything has been done then this property can be recovered without records to other legal proceedings section 52 is an independent proceeding by which these type of transfers can be set aside and board can take over position section 52 says if the board is satisfied after making any inquiry in such manner as may be prescribed that may move that any removal property of the walkup entered as such in the register maintained under section 36 has been transferred without previous sanction of the board in contravention of the provisions of section 51 or 56 it may send a requisition to the collector within which jurisdiction the property is situated to obtain and deliver position of the property to it so straight away if the board is of the opinion that the property has been transformed in violation of sections 51 or 56 of the act then the transaction can be declared illegal void and it can send requisition to the collector of the district concerned where the property situates to deliver position of the property to the Motwali now this permission has been made how far this is practicable how far this is practicable the moment this order is passed this will be subjected to the other proceedings this will be challenged before the other forum even before the tribunal and if this ambiguity whether civil court has jurisdiction or not even one can approach the civil court also various things will come in whether the property which has been transferred by the Motwali is recorded as a walkup or not only in 1995 walkup act has introduced the provisions of section 456 etc by investigation by survey commission whether a property is a walkup property or not whether a property is enrolled as a walkup or not whether a property has been registered recorded in the record of rights revenue records or not all these things are to be detected during the survey the survey concept has been introduced only in the 1995 enactment so if anything happened before 1995 before the survey took place then what is the fate of those properties and if anything is done by the walkup board declaring that this property is illegally sold out or illegally transferred section 51 and 56 means what section 51 and 56 of the walkup act 1995 but the provision of 952 in my opinion is silent as to what will be the fate of those properties which were transferred or sold or leased out without permission of the walkup board before this act came into force therefore this provision is not sufficient although we say that the walkup act is self-sufficient code of conduct or self-sufficient code every provisions has been made every remedy has been prescribed but that is not so therefore these sections are yet to be amended and full-fledged provisions has to be introduced positive approach has to be made so that the walkup properties can be recovered if illegally sold illegally transferred means are to be prescribed so that this can be easily taken back and necessarily how the walkup board will recover these properties walkup board is to depend on the other authorities if no liaison is maintained between the walkup board and other authorities that is very difficult yet the walkup board can take a decision and approach the collector to take position of the property under section 52 but I am humbly submitting that this is theoretically possible while in fact but in practice it is a far cry this is impossible next to impossible so no mortally can be benefited out of this now in section 51 51 imposes certain restrictions and if 51 and 56 are taken together then we see that certain provisions have been made whereby the restrictions have been imposed in such a fashion in state of benefiting the walkup it will delegate the interest of the walk properties or walk estates how I am just giving one instance by way of amendment the proviso has been introduced in section 56 regarding lease of walkup properties previously lease was permitted under the walkup act in 1934 act in Bengal walkup act there it was said that if under the provisions of the walkup act any lease is permitted then the mortally can be permitted to grant lease although board's permission is required board is to monitor and is to verify whether such permission is granted or not subsequently the amendment has been made saying that notwithstanding anything contained in the deed of walkup all lease transfer etc etc will be void ultimately by way of amendment this provision proviso has been added proviso first proviso to section 56 says firstly the restriction is very strict restriction regarding transfer of walkup property by way of lease a lease for any period exceeding 30 years of any immobile property which is walkup property sell notwithstanding anything contained in the deed or instrument of walkup or in any other law for the timing in force we void and of no effect this restriction is an unlimited restriction and ultimately it has made grant of lease impossible in respect of any walkup properties neither the leasing will be interested to take lease not the mortally lesser will show any interest to create lease because all leases are to be made to fetch larger interest for the beneficiaries of the walkup state if the property is leased out the enjoyment of the property is tied up with the third party with the consent and permission of the board for the to endure the benefit of the walkup state for example today a walkup state is a tenant property say it fetches income of 100 rupees and mortally is to discharge his duties and other directions in the walkup did have to be followed then this 100 rupees income is insufficient even to maintain the walk promise to pay off the tax and other liabilities it is impossible then in that case what the mortally can do the mortally can develop the property there is in of course there is provision under section 32 if the mortally wants to develop a property it can develop the property it can obtain loan from the walkup council central work council and board can assist the mortally but the provisions are so harsh the provisions have been made in such a fashion that it will not any owe to the benefit of the walkup state ultimately because no one has taken the practical view these are all theoretical approaches even property the today's provision the proviso 256 although these have been permitted but it is in such a fashion that firstly it cannot be beyond 30 years it's all right 30 years is sufficient period of time one can understand but why this restriction only for commercial activities education or health purposes and no other thing if a lease is to be created in respect of only these three purposes commercial activities education purposes or health purposes it means that if a lease is to be created the lesser who is to give the lease and lessing means to take the lease that relates to a bigger properties not small properties because commercial activities cannot be done in a short span or small properties so in walkup state having small properties those cannot be developed and nobody no one can show interest to take lease because of this provision and it's impossible that will be void and illegal so that cannot be done then these properties the walkup state where the shape of the property or extent of the property is too small those cannot be developed and income of those properties cannot be enhanced so therefore this approach is a negative approach in my view if a property can be leased out for 30 years for development purpose and for commercial purpose why not for some other purpose what is the logic behind it it cannot be understood if you lease out this property walkup property after development education institution this education institution will take not five cutters ten cutters they require bigger area so only these villages are restricted for the bigger areas not for the four walkway states so beneficiaries of the walkway state four walkway states are not benefited by this amendment at all by the restrictions at all you have imposed restrictions in public you are saying that we are protecting walkup properties it's all right object is very biased but we benefited out of it nobody the purpose for which the walk has been created ultimately the beneficiaries have to get the benefit out of the walkway state there are hundreds thousands of beneficiaries of walkway states they get monetary benefit from the walkway state they get stipend for the for their education expenses where from the Muthwallis will give these things if the properties are not developed if income are not enhanced but these provisions are caused in such a fashion that it will not for the benefit of the Muthwallis it is not for the benefit of the walkway state and its beneficiaries therefore in my humble opinion there are other aspects of amendments also but time is short I cannot go beyond my limited time in future if I get any opportunity I will definitely enlighten you with the other provisions of 2013 act those are very important to be discussed may I take leave then I will just take two questions I've come across okay say then what says now it is clear that the civil courts that's not a question it is clear that the civil courts don't have any jurisdiction only walkup tribulations have for the jurisdiction now that ambiguity is gone this is by dns mootee how the board of a walkup board decided is there any election or a nomination no no there are provisions for election and nomination but it is it is mentioned that always the elected members will be more than the nominated members there are there is provision for nomination of few members and there are elect elected members like parliament members two MP two MLAs two Muthwallis they are elected from the respective polygons and there are certain provisions for nomination like theologies Islamic theologies and one member from the bar counts bar council also elected member in the other provisions is made section 14 prescribes that but it is specific that the nominated members shall be less than the elected members this is by a show if the chief executive officer uses his veto power which are not beneficial for the walkup targets and mootalvi adopts legal course can mootalvi recover legal charges from the walk of income can mootwalli recover the legal charges from the walk of income legal charges there is a separate provision in the act itself that the mootwalli is entitled to legal charges legal charges means not for the lawyer's fees as a certain miscellaneous expenses which are entered by the mootwalli to maintain the walk of state that can be taken from the walk of fund and even the board board can contribute something to the mootwalli for the purpose of maintaining the walk of states there are provisions in the walk itself last question for today uh walk of nama stipulates multi way to be appointed or removed by mootwallis can board take decision of appointment or removal in such cases no once the board has to exercise jurisdiction it exercises jurisdiction only where board has appointed mootwalli board's power this this little elaboration is necessary board's power is restricted but when mootwalli actually mootwalli is appointed under the walk of deed definition of mootwalli you see mootwalli means mootwalli is a person appointed under the deed of walk by which the walk is traded board cannot appoint a mootwalli board appoint mootwalli when when there is a vacancy and there is no one available from the deed of walk up or from the uh family of the walkie then the board appoints a person as a temporary mootwalli under section 63 mootwalli is appointed under the walk of deed and in that deed if anybody is appointed the board's duty is to record his name as a mootwalli only board is to bring his name on record nothing else it cannot attribute it upon he had it is compulsion it has to record this person's name if he is if he is in terms of the walk of deed when there is no person available according to the terms of the walk deed or from the uh walkie family then the board exercises this power of section 63 for a period of five years only they can appoint a person so board exercises power to remove mootwalli when there is a recorded mootwalli and appointed mootwalli board under section 64 if there are mismanagement by the mootwalli then the walk up board can exercise power under 64 there are instances mentioned when the mootwalli can be removed if that situation arises then the mootwalli then the walk up board can assume jurisdiction to be removed again ask could you throw some light on section 51 permission from the walk up board 51 51 51 there is again there is some ambiguity in 51 even after amendment of this provision this creates a bar that no property can be leased out can be transferred by way of lease if permission of the walk up board is not taken i am i am reading the provision notwithstanding anything contained in the walk deed any lease of any movable property which is a walk up property shall be void unless such lease is affected with the prior sanction of the board provided that no mootwalli etc or imambara shall be leased out that there is an absolute bar for these type of properties one a which has been amended which has been introduced by web amendment any sale gift exchange mortgage or transfer of walk up property shall be void averaged these are absolute restriction next the provision provided that in case the board is satisfied that any walk up property may be developed for the purpose of the act it may after recording reasons in writing take up the development of such property through such agency and in such manner as the board may determine and move a resolution containing recommendation of development of such walk up property which shall be passed by majority of two-thirds of the total membership of the board provided further that nothing contained in the subsection shall affect any acquisition of this is different now one thing it is clear that section 51 the heading of section is alienation of walk up property without sanction of board to be void and the subject of section 51 is totally different from that of the heading of the section any property transferred without permission of the board shall be void that everybody knows and the restriction which has been made regarding mosque dargah etc etc no necessary to provide these because these mosques cannot be transferred dargah cannot be transferred these walk up properties cannot be transferred when board cannot give permission by way of sale lease or give this section mainly deals with only one provision that is the development of the walk up property and if that is to be done by way of a resolution by the board of two-third majority board can pass this now when this development can come then if section 51 second proviso if you take into consideration regarding development then you have to take into consideration of section 32 32 which gives the power to the board in general power of the board and then section 32 4 has to be taken into consideration if you read section subsection 4 of section 32 along with section 51 then thing will be clear so section 51 although imposes a restriction on transfer it is really trans transfer is void all right without boards permission it cannot be transferred but only provision has been made under section 51 is the development of walk up property that to buy a this is two-third majority decision of the walk up board and this is to be read with subsection 4 of section 32 which says when the board is satisfied that any walk up land which is walk up property has the potential for development as an educational institution shopping center market housing or residential flats and the like market housing flats and like it may serve upon the mutuali of the concern walkway notice requiring him within the time but not less than 60 days as maybe specified in the notice to convey its decision whether he is willing to execute the development works specified in the notice now i'm taking five minutes more now if this is not amended section 32 subsection 4 is not amended this gives vast scope for development of the walk up properties and suppose taking advantage of section subsection 4 a mutuali approaches the board or the board it is the duty of the board it is the rather obligation of the board to ask the mutuali to develop the property what the mutuali will do after the development of the walk up property if section 51 creates an absolute bar for transfer and section 56 thereafter creates gives a provision only for these of the walk up property for 30 years that too in respect of commercial purpose educational purpose and health purpose then 56 51 and 34 32 4 if all these provisions are read together this creates a mess altogether and no purpose is served by this is it clear now yes sir perfect and the way you interplay with the section and the way you are telling the lacuna shows the immense knowledge and while i was just watching on the google reading on the google i found that one of your specialization is in the muslim law and the walk of act so that knowledge sharing with you will keep on bothering you because as they say the more you learn from a person who is resourceful is always enriching for the mind as well as for the heart and thank you friends for staying connected with us and we are grateful to just as much he said the law who has taken out his time despite the visit you we are thankful and tomorrow friends you will be having a session on the excluding of the hearsay evidence and its exceptions under the indian evidence act by bg herindra nath a former district judge from kerala and a former law secretary kerala so do stay connected with us tomorrow at 6 p.m and thank you just as much she thank you just next thing we are just waiting that we can meet physically but virtually we will keep on bothering you and meeting you thank you everyone