Shia Central Board Of Waqfs & Anr vs Vii A.D.J.Meerut & Ors
2013 Latest Caselaw 6921 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
Reserved on 23/10/2013
 
Delivered on 08/11/2013.
 

 
Court No. - 37
 

 
Case :- WRIT - C No.- 18047 of 1990
 

 
Petitioner :- Shia Central Board of Waqfs & Anr
 
Respondent :- VII A.D.J.Meerut & Ors
 
Counsel for Petitioner :- M.A. Zaidi,R.H. Zaidi,S.F.A.Naqvi,V.M. Zaidi
 
Counsel for Respondent :- Subodh Kumar,A. Saeed,A.K.Sharma,Irshad Hussain,M. Islam,P.K. Pandey,S.C.,Sanjeev Singh,Sarvajeet Singh
 

 
With 
 
Case :- SECOND APPEAL No. - 2066 of 1986
 

 
Appellant :- Syed Ahmad
 
Respondent :- Allah Mehar
 
Counsel for Appellant :- Haider Hussain,Pramod Kr Pandey,S.F.A.Naqvi
 
Counsel for Respondent :- S.C.,A.K. Sharma,Ahmad Sayeed,M. Islam,S. Kumar,S.S. Tyagi,Sanjeev Singh
 

 
Hon'ble Ashok Bhushan,J.

Hon'ble Vipin Sinha,J.

(Delivered by Ashok Bhushan,J)

This Bench has been constituted to answer following two questions of law referred by the learned Single Judge vide his order dated 28/1/2011:

"(a) Whether for proceedings being initiated under Section 8 of the Act, 1960, it is necessary that there must be a determination by the Commissioner under Section 6 of Act, 1960 out of several matters which are mentioned in the said Section to be decided by the Commissioner or not?

(b) Whether the law laid down by the Hon'ble Single Judge in the case of Mukhtar Husain (Supra), specifically paragraph-18 is the correct law or not?"

The facts of the case for answering the above two questions need to be noted: The Writ Petition No.18047 of 1990 Shia Central Board of Waqfs & Anr Vs. VII A.D.J. Meerut & Ors is connected with Second Appeal No. 2066/1986, Syed Ahmad Vs. Allah Mehar.

Background facts giving rise to these two proceedings are; a Suit No.346/1977 was filed by Sri Allah Mehar and 3 others against Syed Ahmad and others praying for a decree for permanent injunction in favour of the plaintiff as the representative of the Sunni Community of town Abdullahpur claiming right of possession of the entire premises of the Mosque No. 307 and the defendants were asked to be restrained as the representative of the Shia community from interfering in the right of the possession and taking out procession called "Duldul". In the said suit Shia Central Board was not a party. The suit was decreed by the trial court vide its judgment and order dated 09/5/1984. The defendants filed an appeal against the judgment and order dated 09/5/1984 in which an interim injunction was granted, however the appeal was dismissed on 11/8/1986. The Second Appeal No.- 2066 of 1986 has been filed by the defendants which is pending in this Court. Initially, an interim order was granted in the second appeal by this Court which was subsequently vacated. The Shia Central Waqf Board filed a Suit No.157/1988, for restraining the defendants from interfering in the possession of the plaintiff with the suit property. It was claimed that one Smt. Rahmatul Nisha, wife of Dildar Ali, r/o village Abdullahpur belonging to Shia community has created the waqf. The waqf has also been registered on 27/11/1987 with the Shia Central Waqf Board. It was pleaded in the plaint that in Suit No. 346/1977, decree was obtained without impleading the Shia Central Waqf Board and no notice was issued to the Shia Central Waqf Board, hence the decree is a nullity. An application for interim injunction under order 39 rule 1 C.P.C. was filed by the Shia Central Waqf Board in Suit No.157/1988. The defendants of the suit filed an application under Section 10 of the C.P.C. praying that proceedings of Suit No.157/1988 be stayed since the same issues are pending adjudication in the Second Appeal No.2066 of 1986, arising out of Suit No.346/1977. The trial court vide judgment and order dated 26/8/1988, rejected the application for temporary injunction and by another order of the same date proceedings of Suit No.157/1988, were stayed till the pendency of the second appeal arising out of Suit No. 346/1977. Against these two orders, a miscellaneous appeal as well as the civil revision was filed by the Shia Central Waqf Board. Both the appeal and the revision were dismissed by order dated 11/4/1990 by VIIth ADJ. The Writ Petition No.18047/1990 has been filed challenging the orders passed by the trial court and the appellate court. A mandamus has also been sought commanding the respondents not to interfere in the possession, control and management and administration of the petitioner over the waqf in question.

The learned Single Judge vide order dated 25/7/1990, passed in the present writ petition granted an interim order directing the parties to maintain status quo on the site only for the performance of religious functions. The said interim order has been extended by order dated 09/6/1992 until further orders. Further interim orders have been passed on 05/1/2009, 15/12/2009 and lastly on 01/11/2012 enabling the petitioner to take out religious procession on the seventh day of Moharrum subject to deposit of Rs. 50,000/- with the Collector concerned.

This writ petition along with the connected second appeal was heard by the learned Single Judge by whose order dated 28/1/2011, two questions as noted above, have been referred to be answered by the larger bench. The learned Single Judge doubted the correctness of an earlier judgment of a learned Single Judge in Mukhtar Husain & Ors Vs. Fattu & Ors., 1975 AWC 462.

Before we proceed to answer the questions referred to above, it is relevant to note the scheme of U.P. Muslim Waqfs Act, 1960 "hereinafter referred to as the "Act, 1960". The Act, 1960 has been enacted to provide for better governance, administration and supervision of certain classes of waqfs in U.P. The Act, 1960 consists of various Chapters. Chapter I relates to "Survey of Waqfs". Chapter III relates to "Registration of Waqfs". Chapter VIII relates to "Certain suits or proceedings relating to waqf by or against, the Board or by others" Chapter IX relates to "Tribunals-Their constitution, powers and functions."

Chapter I consists of 6 sections. Section 4 provides that the State Government may, from time to time, by notification in the Official Gazette, appoint a Commissioner of waqfs and as many Additional Commissioners of waqfs or Assistant Commissioners of waqfs as may be necessary for the purposes of making a survey of all waqfs properties in the State or any specific areas thereof whether the waqfs be subject to this Act or not. Section 5 provides that Additional Commissioner of waqf or an Assistant Commissioner of a waqf shall exercise all the powers and perform all the duties which under this Act have been conferred or enjoined upon the Commissioner. Section 6 provides for Survey of waqfs. Section 6 which is relevant in the present case is quoted below:

"6. Survey of wakfs.----(1) The Commissioner shall apportion the work of survey of waqfs between himself and the Additional and Assistant Commissioners in such manner as he may think proper, and shall generally supervise and control their work.

(2) The Commissioner of Wakfs shall, after making such inquiries as he may consider necessary, ascertain and determine-----

(a) the number of all wakfs in the area showing the Shia wakfs and Sunni wakfs separately;

(b) the nature and objects of each wakf;

(c) the gross income of the property comprised in each wakf;

(d) the amount of revenue, cesses, rates, taxes and surcharge payable to the Government or the local authority in respect of each wakf property;

(e) expenses incurred in the realization of the income and the pay or other remuneration of the mutawalli of each wakf;

(f) (omitted by U.P. Act 28 of 1971.)

(g) such other particulars relating to each wakf as may be prescribed:

Provided that where there is a dispute as to whether a particular wakf is a Shia wakf or Sunni wakf and there are clear indications in the recitals of the deed of wakf as to the sect to which it pertains, such dispute shall be decided on the basis of such recitals.

(3) The Commissioner shall, while making any inquiry have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of the following matters namely-----

(a) summoning and examining any witness;

(b) requiring the discovery and production of any document;

(c) requisitioning any public record from any court or office;

(d) issuing commissions for the examination of accounts and witnesses;

(e) making any local inspection or local investigation;

(f) any other matter which may be prescribed by the State Government.

(4) The Commissioner, the Additional Commissioner of Wakfs or Assistant Commissioner of Wakfs shall submit his report of enquiry, containing the particulars mentioned in sub-section (2) above, to each of the Boards and the State Government and the State Government shall, as soon as possible, notify in the Official Gazette the wakfs relating to particular sect, to which, according to such report, the provisions of this Act apply."

Section 7 relates to Recovery of costs of survey. Section 8 which is relevant in the present case is quoted below:

"8.(1)If any dispute arises whether a particular property is waqf property or not or whether a waqf is a Shia waqf or Sunni waqf, the Board concerned or the mutwalli of the waqf or any persons interested therein may, in accordance with the provisions of this Act, refer the dispute the adjudication to the Tribunal:

Provided that no such dispute shall be entertained by a Tribunal after the expiry of one year from the date of the publication of the list of waqfs under sub-section (4) of Section 6.

(2)The Commissioner, Additional Commissioner of waqfs and Assistant Commissioner of waqfs shall not be made a party to any proceeding under sub-section (1)."

Chapter III relates to Registration of Waqf. Section 29 provides for Registration which is quoted below:

"29. Registration.----(1) Every other waqf, whether subject to this Act or not and whether crated before or after the commencement of this Act, shall be registered at the office of the Board of the sect to which the waqf belongs.

(2) Application for registration shall be made by the mutawalli within three months of his entering into possession of the waqf property:

Provided that such applications may be made by the waqf or his descendants or a beneficiary of the waqf or any Muslim belonging to the sect to which the waqf belongs.

(3) The application for registration shall be made in such form and manner and at such place as the Board may prescribe and shall contain the following particulars, as far as possible-----

(a) a description of the waqf properties sufficient for the identification thereof;

(b)the gross annual income from such properties;

(c) the amount of land revenue, cesses, and rates and taxes annually payable in respect of the waqf properties;

(d) an estimate of the expenses annually incurred in the realization of the income of the waqf properties;

(e) the amount set apart under the waqf for---

(i) the salary of the mutawalli and allowances to individuals ;

(ii) purely religious purposes;

(iii) charitable purposes; and

(iv)any other purpose; and

(f) any other particulars prescribed by the Board.

(4) Every such application shall be accompanied by a copy of the Wakf Deed or, if no such deed has been executed or a copy thereof cannot be obtained, shall contain full particulars, as far as they are known to the applicant, of the origin, nature and objects of the wakf.

(5) Every application made under sub-section (2) shall be signed and verified by the applicant in the manner provided in the Code of Civil Procedure, 1908 (Act V of 1908), for the signing and verification of pleadings.

(6) The Board may require the applicant to supply such other particulars or information as it may consider necessary.

(7) On receipt of an application for registration, the Board may, before the registration of the waqf, make such inquiries as it thinks fit in respect of the genuineness and validity of the application and the correctness of any particular therein, and, when the application is made by any person other than the person administering the waqf property, the Board shall, before registering the waqf, give notice of the application to the person administering the waqf property and shall, after affording him a reasonable opportunity of being heard, pass such orders as it may deem fit.

(8) Any person aggrieved by an order of the Board under sub-section (7) may, by application within 90 days from the date of that order, refer the dispute to the Tribunal which shall give its decision thereon."

Section 33 contemplates decision if a property is waqf property. Section 33 is quoted below:

"33. Decision if a property is wakf property.-----(1) The Board may collect or cause to be collected information regarding any property which it has reason to believe to be a wakf property and if any question arises whether a particular property is wakf property or not, it may, after making such inquiry as it may deem fit, decide the question.

(2) Any person aggrieved by the decision of the Board under sub-section (1) may by application within 90 days from the date of such decision refer the dispute to the Tribunal which shall give its

decision thereon."

Now, the judgment of the learned Single Judge in Mukhtar Husain's case (supra) whose correctness has been doubted in the referring order needs to be noted. In the said case, an application under Section 8 of the Act, 1960 was filed by the applicant praying that the waqf as well as the trees and land be declared as a shia waqf. The opposite parties in the said case filed a written statement denying the allegations of the plaintiff and pleaded that waqf was a sunni waqf. One of the issues which was framed by the tribunal, was the Issue No.6 which was to the following effect:

"Whether the petition is maintainable under Section 8 of the Act and whether the act envisages the adjudication of a shia waqf."

The tribunal held that the petition is maintainable under Section 8 which also envisaged the adjudication of the question as to whether the waqf is a shia waqf or sunni waqf.

Against the order of the tribunal, revision was filed in this Court. A preliminary objection was raised that the petition under Section 8 was not maintainable. In paragraphs 10 and 11, the learned Single Judge noted the case of the parties which was to the following effect:

"10.Shri Basheer Ahmad raised a preliminary objection to the maintainability of the petition under Section 8 of the said Act. Counsel invited attention to the averment in paragaph 11 of the petition where it has been said that there had been no proceedings or notification in the Official Gazette under Section 6 of the said Act. Paragraph 11 of the petition has been reproduced above. In view of the said averment, Shri Basheer Ahmad contended that the petition was not maintainable under Section 8 of the said Act. Counsel placed reliance on an unreported decision of a Division Bench of this Court in Hafiz Mohammad Zaffar Ahmad Vs. U.P. Sunni Central Board of Waqf (Sp.A. No.604 of 1964 D/-25th March, 1966 (Alld)).

11. Sri B.L. Gupta in reply asserted that Section 8 was wide enough to justify the maintainability of the petition and the said provision was, in no way, connected with or dependent upon the issuance of any notification under Section 6 of the said Act. Section 8 was an independent provision and was purposely phrased in such a manner that its ambit was large. Next, it was contended by the learned counsel for the applicants that the preliminary objection which was sought to be raised was never raised before the Tribunal and it did not find a place in the written statement filed before the Tribunal and hence it was not open to the opposite parties to raise the said objection."

The learned Single Judge after noticing certain provisions of the Act, 1960 as well as the earlier enactment namely:U.P. Muslim Waqf Act 1936, laid down following in paragraphs 16, 17 and 18 which are quoted below:

"16. Looking to the said provisions, it will be noticed that there was no ambiguity or scope for dispute in respect of the said provisions. Section 5 (2) made it clear that the cause of action to bring a suit in a civil court of competent jurisdiction was dependent upon the determination by the Commissioner of Waqfs. Therefore, Section 5 in the Act of 1936 was dependent for its working on Section 4 where under the Commissioner of waqfs acted and gave his decision. The short point for consideration in the instant revision is whether the position as it subsisted under the Act of 1936 is still in subsistence or due to the change in the language of Section 8 of the new Act, the Law has undergone a change. It is not disputed that there is nothing in Section 8 itself which would show that its working is dependent upon Section 6 of the said Act. However, that cannot be held to be conclusive inasmuch as in accordance with the well known rules of interpretation, a provision of law has to be read in its context. Now, Section 8 occurs in the Chapter, which deals with the survey of waqfs. That undoubtedly supports the contention that this provision is not a self contained or independent provision but has a relationship or nexus with the survey of waqfs conducted by the Commissioner under Chapter I. Further, Section 8 is preceeded by Section 6 which lays down in its sub-Section (2) that the Commissioner of Waqfs shall, after making such enquiries as he may consider necessary, ascertain and determine the various details and particulars which are quoted in the various clauses of the said sub-section. The fact that Section 8 follows Section 6 lends a strong support to the contention that 'dispute' referred to in sub-Section (1) of Section 8 is a dispute which arises in consequence of the determination made by the Commissioner under Section 6 (2) of the said Act. Lastly, the proviso to Section 8 (1) again suggests that the dispute has to come before the Tribunal only after the notification in the Official Gazette under Section 6 (4) of the said Act. In other words, the notification is the starting point of limitation and provides the cause of action for the reference to the Tribunal under Section 8. Learned counsel for the applicants contended that the proviso to Section 8(1) has limited application insofar as it lays down that whenever there is a notification under Section 6(4), then the dispute must be brought before the Tribunal with in one year from the date of the notification. However, the proviso, according to him, cannot be interpreted to lay down that whenever there has been no notification under Section 6(4), the dispute between the parties cannot be referred to the Tribunal under Section 8(1). In my opinion such a contention is not tenable in view of the totality of the circumstances in which the provisions of Section 8 have to be construed. I have already referred to the relevant circumstances in this connection and, in my opinion, the proviso to Section 8(1) not only lays down the rule of limitation but it, by implication, also provides that the cause of action for a reference to the Tribunal is provided by the notification under Section 6 (4) of the said Act.

17. It should be noticed that the Tribunal constituted under the U.P. Muslim Waqf Act is a Tribunal of a limited jurisdiction. It can entertain only such disputes or question or matter which under the said Act can be referred to it. Section 75 bars a Civil Court from entertaining any suit or other proceeding with respect to any dispute or question or matter which is required or permitted under the said Act to be referred to the Tribunal for adjudication. The award of the Tribunal has been made final and conclusive and binding upon the parties concerned and the same cannot be questioned in any court of law. No appeal lies against the said award though a revision is provided for under the proviso to Section 76. In this connection the following observations of the aforesaid decision of the Division Bench relied upon by the learned counsel for the opposite parties are material:---

"Under Section 4 of the Act provision is made for appointment of Commissioners and Additional or Assistant Commissioners of Waqfs for the purpose of survey of Waqfs properties and under Section 6 it is laid down that the Commissioner, after making such enquiries as he may consider necessary, must ascertain and determine various matters relating to each waqf. One of the matters to be determined is whether the waqf is one of those exempted from the application of the Act under Section 2. Two other matters which require determination are as to which particular properties are Waqf properties and whether the Waqf is a Shia Waqf or Sunni Waqf. This determination is to be reported to the Government by the Commissioner and is thereafter to be notified in the official Gazette. Section 8 of the Act lays down that on such notification being made if any dispute arises, whether a particular property is Waqf property or not or whether a Waqf is a Shia Waqf or Sunni Waqf the Board or the Mutwalli of the Waqf or any persons interested therein, can refer the dispute for adjudication to the Tribunal. It is significant to note that under Section 8 (1), the disputes that can be referred to the Tribunal are limited only to two questions one question is whether a particular property is Waqf property or not and the second question is whether a Waqf is a Shia Waqf or Sunni Waqf. The further question whether the Waqf is one to which under Section 2 the provisions of the Act do or do not apply, is not one about which, if a dispute arises, a reference can be made to the Tribunal. It thus appears that the determination made by the Commissioner under Section 6 that a particular waqf is one of those exempted from the application of the Act or not has not been made subject matter of a dispute to be referred and decided under Section 8. Apart from this point, under Section 6 a Commissioner is required to report on many other matters relating to each Waqf such as the nature and object of each Waqf, the gross income of the property comprised in each Waqf, the amount of revenue etc. payable and the expenses incurred in the realization of the income and the pay and other remuneration of the mutwalli of each Waqf. These are all matters which have to be determined but no dispute with regard to any such matter is referable under Section 8 to the Tribunal. The reference under Section 8 is confined to only two questions mentioned by us above. The intention of the legislature in these circumstances appears to be clear, that on these two matters the determination made by the Commissioner should have finality and not be open to challenge before any other court except by means of the reference to the Tribunal under Section 8 (1). This is clear from the provisions of Section 76 which lays down that the award of a Tribunal shall be final and conclusive and binding upon the parties concerned and the award shall have the force of decree and it shall neither be questioned nor appealed against in any court of law, subject of course to the provision that a revision is provided against an award to the High Court. On matters other than those referable under Section 8, the Legislature, by omitting to provide for a reference, indicated that no finality is to be attached to those matters determined under Section 6."

18. In my opinion, the aforesaid observations are clear on the point that Section 8 is not an independent provision but is linked up with Section 6 of the said Act. In other words, the disputes which can be referred to the Tribunal under Section 8 (1) are to be determined by the Commissioner under Section 6 out of several matters which are mentioned in the said section to be decided by the Commissioner."

Ultimately, the learned Single Judge held that the petition under Section 8 was not maintainable before the tribunal. The learned Single Judge in the above case held that the dispute under Section 8 can be raised only when there is a determination by the Commissioner under Section 6.

Shri V.M. Zaidi, learned Senior Counsel appearing for the petitioner submits that Section 8 is a general provision which empowers any dispute regarding the nature of waqf to be referred to the Tribunal. It is submitted that the provisions cannot be confined to or dependent on any proceedings taken by the Commissioner under Section 6 of the Act, 1960. He submits that proviso to Section 8 of the Act, does not control the main provision. He submits that proviso to Section 8 of the Act may be applicable when there is a publication of the list of waqf under sub-section 4 of Section 6 of the Act, whereas the main provision of Section 8 is independent to the proviso and can be availed by anyone raising a dispute or doubt regarding the nature or character of the waqf. It is submitted that the operation of Section 8 sub-section (1) cannot be confined to the proceedings taken under Section 6 nor is dependent on Section 6. He submits that the judgment and order of the learned Single Judge in Mukhtar Husain's case (supra) does not lay down the correct law. He has placed reliance on two judgments of the Supreme Court namely: A.N. Sehgal Vs. Raje Ram Sheoran, AIR 1991 SC 1406 and Tribhovandas Haribhai Tamboli Vs. Gujrat Revenue Tribunal, AIR 1991 SC 1538, on the principles of statutory interpretation, while interpreting a proviso.

Shri M.A. Qadeer, learned Senior Counsel appearing for the legal heirs of the respondent no.3 submitted that the judgment of Mukhtar Husain's case supra lays down the correct law. He submits that Section 8 of the Act, 1960 has to be read along with Section 6 which is the scheme of the enactment and section 8 cannot be read independently to any proceedings under Section 6 of the Act. He further submits that the issue is already covered by a Division Bench judgment of this Court in Special Appeal No. 604/1964, Hafiz Mohammad Zafar Ahmad Vs. The U.P. Sunni Central Board of Waqf, Lucknow & Anr decided on 25/3/1966 which judgment could not be placed before the learned Single Judge while making the reference.

We have considered the submissions of the learned counsel for the parties and have perused the record.

Learned counsel for the parties have also placed reliance on various judgments of this Court as well of the Apex Court which shall be referred to while considering their submissions in detail.

Whether any dispute relating to a waqf being a Shia Waqf or Sunni Waqf can be referred to the Tribunal for adjudication under Section 8 of the Act, 1960 despite there being no proceedings under Section 6 of the Act is the question to be answered.

Section 6 of the Act, 1960 provides for Survey of Waqfs for the purposes of notifying the waqfs in the Official Gazette for public information and for better management of the waqfs. In the survey, the Commissioner after making the inquiry is to ascertain the number of all waqfs in the area showing the Shia waqfs and Sunni waqfs separately. The Commissioner after making the enquiry and determining the various matters as enumerated in sub-section (2) of Section 6 of the Act, shall submit his report containing the particulars mentioned in sub-section (2) of Section 6 to each of the Boards and the State Government. The State Government, thereafter is required to notify the same in the Official Gazette the waqfs in particular sects.

Section 8 of the Act, 1960 follows Section 6. The key words in Section 8 are "if any dispute arises whether a particular property is waqf property or not or whether a waqf property is a Shia waqf or Sunni waqf, the dispute can be referred to the Tribunal for adjudication." The right to make a reference has been given to respective Board, mutwalli of the waqf or any person interested therein. The proviso to Section 8 sub-section (1) contains a limitation that no such dispute shall be entertained by a Tribunal after the expiry of one year from the date of the publication of the list of waqfs under sub-section (4) of Section 6. Section 9 of the Act which is the last section of Chapter 1 is also relevant which provides as follows:

"9.(1) The provisions of this chapter shall not apply to the proceedings of any survey of waqf properties started before the commencement of this Act, and such survey shall be completed in accordance with the provisions of the U.P. Muslim Waqfs Act, 1936 (U.P. Act XIII of 1936).

(2) Nothing in this chapter shall affect the finality of the decisions of the Chief State Commissioner of waqfs or of any State Commissioner of waqfs or Commissioner of waqfs in cases in which prior to the commencement of this Act the report of such Commissioner has become final."

Sections 4 to 9 of the Act, 1960 delineates an integrated scheme and various sections of Chapter 1 which forms part of one integral scheme. The question may be asked to as in a case where no proceedings under Section 6 has been held, whether any dispute regarding the nature or character of a waqf can be raised by any interested person. As noted above, there is Chapter III which provides for registration of waqfs. Section 29 of the Act gives right to any person to submit an application for registration of waqfs to the Board of the Sect to which the waqf belongs. The Board is required to make inquiry and thereafter to take a decision on the application. Sub-section (8) of Section 29 of the Act gives a right to any person aggrieved by the order of the Board to make a reference to the tribunal within 90 days. Further, Section 33 of the Act empowers the Board itself to collect the information regarding any property and take a decision as to whether a particular property is waqf property or not, any person aggrieved by the decision has been given a right to make a reference to the tribunal. The Tribunal has been constituted under Section 70 of the Act and reference is to be made to the tribunal under Section 71. Section 75 of the Act contains a bar to suits in matters to be decided by Tribunals.

The Division Bench judgment relied on by Shri M.A.Qadeer, learned Senior Counsel in Hafiz Mohammad Zafar Ahmad's case (supra) had also occasion to consider the provisions of U.P. Muslims Act, 1960. The Division Bench while noticing Section 8 has observed that after notification is made if any dispute arises whether a particular property is Waqf property or not or whether a Waqf is a Shia Waqf or Sunni Waqf, the Board or the mutwalli of the Waqf or any person interested therein, can refer the dispute for adjudication to the Tribunal. It is useful to quote the following observations of the Division Bench which are as under:

"Under the Act of 1960 it is laid down that the Act is to apply to all Waqfs if any part of the property comprised in the Waqf is situated in U.P. with the exception of those Waqfs which are covered by sub-section (3) of section 2 of the Act. Under the Act itself there is no specific provision for any reference to any Tribunal for the purpose of deciding to which Waqfs the provisions of the Act apply. Under section 4 of the Act provision is made for appointment of Commissioners and Additional or Assistant Commissioners of Waqfs for the purpose of survey of Waqfs properties and under section 6 it is laid down that the Commissioner, after making such enquiries as he may consider necessary, must ascertain and determine various matters relating to each Waqf. One of the matters to be determined is whether the Waqf is one of those exempted from the application of the Act under section 2. Two other matters which require determination are as to which particular properties are Waqf properties and whether the Waqf is a Shia Waqf or Suni Waqf. This determination is to be reported to the Government by the Commissioner and is thereafter to be notified in the Official Gazette. Section 8 of the Act lays down that on such notification being made if any dispute arises whether a particular property is Waqf property or not or whether a Waqf is a Shia Waqf or Sunni Waqf, the Board or the mutwalli of the Waqf or any person interested therein, can refer the dispute for adjudication to the Tribunal...."

Shri V.M. Zaidi, learned Senior Counsel appearing for the petitioner relying on the two judgments of Supreme Court contended that the proviso to Section 8 sub-section (1) cannot be interpreted in a manner to control Section 8 sub-section(1). He has relied on paragraphs 14 and 15 of A.N. Sehgal's case (supra) which are to the following effect:

"14.It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a cause which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms.

15.The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it he used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect."

The same proposition was laid by the Apex Court in Tribhovandas Haribhai Tamboli's case (supra). The proposition as noted above, clearly lays down that proviso to a particular provision of a statute only embraces the field which is covered by the main provision. The proviso to Section 8 sub-section (1) only contains a rule of limitation for raising the dispute.

The Apex Court in Hindustan Ideal Insurance Co. Ltd. Vs. Life Insurance Corporation of India, AIR 1963 SC 1083, has laid down that proviso can be looked into to ascertain the meaning and scope of the main provision. Following was laid down in the above case:

"There is no doubt that where the main provision is clear its effect cannot be cut down by the proviso. But where it is not clear, the proviso, which cannot be presumed to be surplusage can properly be looked into to ascertain the meaning and scope of the main provision."

Section 8 sub-section (2) further provides that the Commissioner, Additional Commissioner of waqfs and Assistant Commissioner of waqfs shall not be made a party to any proceedings under sub-section (1). It is a cardinal rule of interpretation of statute that every clause of a statute should be construed with reference to the context and other clauses of the Act. In M.Pentiah Vs. Veeramallappa Muddala, AIR 1961 SC 1107 following was laid down:

"Every clause of a statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter."

Section 8 of the Act, 1960 thus cannot be interpreted divorced from Section 6 and other sections of Chapter 1.

The dispute which is contemplated in sub-section (1) of Section 8 has to be read in context of the report submitted by the Commissioner of waqf and the notification published in the Official Gazette of waqfs relating to a particular sect. Section 8 cannot be interpreted to mean as a general provision which can be resorted to by any person at any time. The proviso to Section 8 which contains a rule of limitation cannot be ignored nor the said proviso can be treated to be a superflage.

Reference is made to the judgment of the Apex Court in Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan & Ors, (1979) 2 SCC 468 in which case the Apex Court had occasion to consider Section 6 sub-section (1) and proviso of the Waqf Act, 1954. Section 6 of the Waqf Act, 1954 was also contained in Chapter II of the Act, 1954 in which Section 4 provided for preliminary survey of waqf. Proviso to Section 5 provided for publication of list of waqfs and Section 6 provided for disputes regarding wakfs. Section 6 sub-section (1) is quoted below:

"6. Disputes regarding wakfs. (1) If any question arises a[whether a particular property specified as wakf property in a list of wakfs published under sub- section (2) of section 5 is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf], the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be final:

Provided that no such suit shall be entertained by the civil court after the expiry of one year from the date of the publication of the list of wakfs under sub- section (2) of section 5:

Provided further that in the case of the list of wakfs relating to any part of the State and published or purporting to have been published before the commencement of the Wakf (Amendment) Act, 1969, such suit may be entertained by the civil court within the period of one year from such commencement.]"

Section 6A was also inserted in the Waqf Act, 1954 by the Waqf (Amendment) Act, 1984 which provided as follows:

"6A. Power of Tribunal to determine disputes regarding wakfs.- (1) If, after the commencement of the Wakf (Amendment) Act, 1984, any question arises whether a particular property specified as wakf property in a list of wakfs published under sub-section (2) of S. 5 is wakf property or not, or whether a wakf specified in such list is a Shia Wakf or a Sunni Wakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal in respect of such matter shall be final:

Provided that -

(a) in the case of the list of wakfs relating to any part of the State and published or purporting to have been published after the commencement of the Wakf (Amendment) Act, 1984, no such application shall be entertained after the expiry of one year from the date of publication of the list of wakfs under sub-section (2) of section 5; and

(b) in the case of list of wakfs relating to any part of the State and published or purporting to have been published at anytime within a period of one year immediately preceding the commencement of the Wakf (Amendment) Act, 1984, such an application may be entertained by the Tribunal within the period of one year from such commencement:

Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not reopen such question.

(2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5) no proceeding under this section in respect of any wakf shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or of any appeal or other proceeding arising out of any such suit, application, appeal or other proceeding.

(3) The Wakf Commissioner shall not be made a party to any application under sub-section (1).

(4) The list of wakfs published under sub-section (2) of section 5, and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final.

(5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of section 6, before the commencement of the Wakf (Amendment) Act, 1984, or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be."

The Apex Court in the case of Board of Muslim Waqf (supra) had occasion to consider Section 6 of the Act, 1954. The interpretation put by the High Court was noticed in the said judgment and the interpretation put by the High Court was approved by the Apex Court. It is useful to quote paragraphs 37 and 38 of the said judgments which are to the following effect:

"37. In this context, the scope of Section 6 was examined by the High Court and it observed:

The purpose of Section 6 is to confine the dispute between the Wakf Board, the mutawalli and a person interested in the wakf. In other words, if there is a dispute whether a particular property is a wakf property or not, or whether a wakf is a Shia wakf or a Sunni wakf, then the Board or the mutawalli of the wakf or a person interested in the wakf as defined in Section 3 may institute suit in a civil court of competent jurisdiction for the decision of the question. They can file such a suit within one year of the date of the publication of the list of wakfs and if no such suit is filed, the list would be final and conclusive between them.

The very object of the Wakf Act is to provide for better administration and supervision of wakfs and the Board has been given powers of superintendence over all wakfs which vest in the Board. This provision seems to have been made in order to avoid prolongation of triangular disputes between the Wakf Board, the mutawalli and a person interested in the wakf who would be a person of the same community. ........"

38. We are in agreement with this reasoning of the High Court."

The learned Single Judge in his referring order has relied on and referred to two Division Bench judgements i.e. Waqf Dargah Shah Modh. & Ors Vs. U.P. Sunni Central Board of Waqf Lucknow & Ors, 2003 (52) ALR 57 and Najma Khatoon Vs. U.P. Sunni Central Board of Waqf & Ors, 2003 (21) LCD 266.

In Waqf Dargah Shah Modh. (supra) the Division Bench had occasion to interpret Section 83 of the Waqf Act, 1995. Section 83 of the Waqf Act, 1995 delineates a different scheme as compared to Section 71 of the Act, 1960. It is useful to quote Section 71 of the Act, 1960 and Section 83 of the Waqfs Act, 1995.

"71. Reference of disputes etc., to Tribunals.---Any dispute, question or matter, which may under this Act be referred to a Tribunal, shall be referred to a Tribunal having jurisdiction over the area in which the property to which such dispute, question or matter relates is situate or if such property is situate in areas under the jurisdiction of more than one Tribunal, then to any of them, and the Tribunal of competent jurisdiction shall adjudicate upon such dispute, question or matter in accordance with the provisions of this Act:

Provided that no proceedings under this Act in respect of any wakf shall be stayed or suspended merely by reason of the pendency of any such dispute, question or matter before a Tribunal."

"83. Appointment, powers and jurisdiction of Tribunals (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals, as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.

(2) Any mutawalli of a wakf person interested in a wakf or any other person aggrieved by any order made under this Act, or any rules or order made thereunder, may make an application within the time specified in this Act or where no such time has been specified, with such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf.

(3) Where any application made under sub- section (1) relates to any wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made as to the Tribunal within the local limits of whose jurisdiction the mutawalli or any one of the mutawallis of the wakf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter. Provided that the State Government may, if it is of opinion that it is expedient in the interest of the wakf or any other person interested in the wakf or the wakf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such wakf or wakf property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh.

(4) Every Tribunal shall consist of one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, and the appointment of every such person may be made either by name or by designation.

(5) The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908, (5 of 1908.), while trying a suit, or executing a decree or order.

(6) Notwithstanding anything contained in the Code of Civil Procedure, 1908 , (5 of 1908), the Tribunal shall follow such procedure as may be prescribed.

(7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court.

(8) The Execution of any decision of the Tribunal shall be made by the civil court to which such decision is sent for execution in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908 ).

(9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal:

Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit."

Section 83 of the Act, 1995 is couched in a very wide language. It provides for constitution of Tribunals for the determination of any dispute, question or other matter relating to a waqf or waqf property whereas Section 71 of the Act, 1960 provides for reference of a dispute to the tribunal which may under the Act be referred to a Tribunal. Thus, the judgment interpreting Section 83 of the Act, 1995 is not relevant while interpreting Section 8 of the Act, 1960.

In Najma Khatoon's case (supra) also the Division Bench has interpreted Section 83 which ratio cannot be applied while interpreting Section 8 of the Act, 1960.

The judgment of the Apex Court relied on by Shri M.A. Qadeer, learned Senior Counsel in the case of Board of Waqf of West Bengal & Anr Vs. Anis Fatma Begum, 2011 (84) ALR 238, was again a judgment interpreting Section 83 of the Waqf Act, 1995 which is not applicable while interpreting Section 8 of the Act, 1960.

In view of the foregoing discussions, we are of the view that the judgment of the learned Single Judge in Mukhtar Husain's case (supra) lays down the correct law.

The question (a) as framed by the learned Single Judge in the referring order dated 28/1/2011, is as to whether for proceedings being initiated under Section 8 of the Act, 1960, it is necessary that there must be a determination by the Commissioner under Section 6 of Act, 1960 out of several matters which are mentioned in the said Section to be decided by the Commissioner or not? The operation of Section 8 cannot be held to be confined only when a determination is made by the Commissioner under Section 6 of several matters as mentioned in Section 6 of the Act, 1960. After survey when a report is submitted and a notification is issued by the State Government, whether there is a determination or no determination, a dispute can be raised under Section 8 of the Act, 1960. Section 8 of the Act, 1960 entitles any person interested including the Board, and mutwalli to object classification of any Waqf as a Shia Waqf or Sunni Waqf.

When the Commissioner after inquiry determines a particular waqf as a Shia Waqf or Sunni Waqf and submit a report to the State Government which notifies the Waqf as Shia Waqf or Sunni Waqf, obviously dispute can be raised.

The dispute under Section 8(1) of the Act, 1960 can be raised when particulars as mentioned in sub-section 2 of Section 6 are notified by the State Government. For illustration; the Survey Commissioner may have omitted to include any property as a Waqf Property or in the list notified by the State Government a particular property is mentioned as a waqf property. Section 8(1) of the Act, can be resorted by a person claiming that a property not notified is a waqf property, thus, the dispute under Section 8(1) of the Act is related to the survey made by the Commissioner, but it is not mandatory that the Commissioner should have specifically determined the factors as noted in sub-section 2 of Section 6 of the Act. Thus, our answer to questions (a) and (b) are as follows:

(a) For proceeding under Section 8(1) of the Act, 1960, it is necessary that proceedings are taken by the Commissioner under Section 6, but it is not necessary that there should be specific determination of all the matters which are mentioned in Section 6 (2) of the Act, 1960.

(b) The judgment in Mukhtar Husain's case (supra) specifically, paragraph 18 lays down the correct law.

Let our answers be placed before the appropriate bench hearing the writ petition along with the connected Second Appeal.

The interim order dated 25/7/1990 as extended from time to time lastly by order dated 01/11/2012, enabling the petitioner to take out the religious procession on the seventh day of Moharram subject to condition of depositing Rs. 50,000/- with the Collector shall remain in operation.

Order Date :- 08.11.2013

SB