U.P. Sunni Central Board Of Waqf vs A.D.J. Court No. 3 Muzaffarnagar & ...
2015 Latest Caselaw 1810 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 34
 

 
Case :- WRIT - C No. - 63106 of 2009
 

 
Petitioner :- U.P. Sunni Central Board Of Waqf
 
Respondent :- A.D.J. Court No. 3 Muzaffar Nagar & Anr.
 
Counsel for Petitioner :- Shamim Ahmad, M.A. Qadeer
 
Counsel for Respondent :- Sumit Daga
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri M.A. Qadeer, learned Senior Advocate, assisted by Sri Shamim Ahmad, learned counsel for petitioner; and, Sri P.K. Jain, learned Senior Advocate, assisted by Sri Sumit Daga, Advocate, for respondents.

2. This writ petition has arisen under Article 226 of the Constitution of India from the judgment and order dated 9.10.2009 passed by Additional District and Sessions Judge, Court No. 3, Muzaffar Nagar in Misc. Appeal No. 93 of 1992 under Section 49-B(4) of U.P. Muslim Wakf Act, 1960 (hereinafter referred to as "U.P. Act, 1960"). The Lower Appellate Court having allowed the appeal has set aside the order passed by Collector, Muzaffar Nagar on 14.01.1992 who had directed the respondent-Town Area Committee, Shahpur to transfer possession of disputed property to appellant-U.P. Sunni Central Board of Wakf (hereinafter referred to as "Board").

3. The Board claimed that Khasra No. 416 (old number 905 and 906) situate in Village Shahpur, Tehsil Budhana, District Muzaffar Nagar is a Qabristan and a Wakf property registered as Wakf with the Board as Wakf No. 299, Muzaffar Nagar on the basis of an application filed by one Mohammad Abdullah on 2.9.1963 under Section 29 of U.P. Act, 1960. Town Area Committee, Shahpur District Muzaffar Nagar (now Nagar Panchayat, Shahpur) illegally encroached over part of the Wakf property. One Turab Uddin, appointed as Administrator by the Board, to look after administration of Wakf, reported encroachment made by Nagar Panchayat, Shahpur whereafter proceedings under Section 57-A of U.P. Act, 1960 were initiated by Board, and, holding that disputed property was a Wakf and has been illegally encroached upon, it sent a requisition to Collector to secure possession of disputed property in favour of Sri Turab Uddin, Administrator of Wakf. Pursuant thereto, Collector passed order dated 11.6.1992 directing Nagar Panchayat, Shahpur to deliver possession of disputed property to Sri Turab Uddin failing which action under Rule 7 of U.P. Muslim Wakfs (Recovery of Property) Rules, 1972 (hereinafter referred to as "Rules, 1972") would be taken.

4. The order of Collector was challenged by Town Area Committee (now Nagar Panchayat, Shahpur) before District Judge, Muzaffar Nagar in Misc. Appeal No. 93 of 1992. The case set up by respondent no. 2 is that neither disputed property belong to Board nor is a Wakf property and the Board or its appointee has no right to administer the said property. It was said that in the list of Wakf of Quasba Shahpur mentioned in the U.P. Gazette Notification dated 5.7.1986 Khasra No. 416 was not shown as Wakf property. It was never a Wakf nor Board has any right, legal or otherwise, in respect thereto. It referred to Original Suit No. 814 of 1984 filed by Zafar and others against Town Area claiming disputed property to be Wakf property but Revenue Suit was dismissed on 12.12.1985. In reference No. 2047 of 1974-75 and three connected references, the Board of Revenue passed an order on 8.9.1988 holding that property comprising of Khasra No. 416 is not a Qabristan, hence, is not a Wakf property and it continued to vest in State. Khasra plot no. 416 being situated within the boundary of village Shahpur on or before 7.7.1949, all rights, interest including the right of ownership in respect of the said plot vested in the State of Uttar Pradesh after enforcement of U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act, No. 1 of 1951) (hereinafter referred to as "Act, 1951"). The right of management of disputed property, therefore, vests with respondent no. 2 by virtue of Section 117-A of Act, 1951.

5. The claim set up by respondent no. 2 has been accepted by Lower Appellate Court and that is how the appeal of respondent no. 2 has been allowed by means of impugned judgment.

6. Sri M.A. Qadeer, learned Senior Advocate, contended that with the enactment of Wakf Act, 1995 (hereinafter referred to as "Central Act, 1995") promulgated by Parliament, which came into force on 1.1.1996, U.P. Act, 1960 stood repealed by virtue of Section 112 of Central Act, 1995. The order passed by Collector under Section 49-B (4) was to be deemed to have been passed under Section 54 of Act, 1995 and the remedy was before the Wakf Tribunal constituted under Section 83 of Act, hence Additional District and Sessions Judge, before whom appeal was transferred by District Judge, had no jurisdiction to hear and decide the said appeal on 9.10.2009.

7. This Court proceed to consider first whether the appeal before Additional District Judge was maintainable after enactment of Central Act, 1995 or ought to have been transferred to Tribunal constituted by State Government in the year 1998 in exercise of power under Section 83(1) of Central Act, 1995.

8. Section 83 empowers State Government to constitute a Tribunal for determination of any dispute, question or other matter relating to a Wakf or Wakf property under Act, 1995. Section 85 bars jurisdiction of Civil Court to entertain any suit or other legal proceedings in respect to any dispute, question or other matter relating to any Wakf or Wakf property or other matter which is required by or under the Central Act, 1995 to be determined by Tribunal.

9. Learned Senior Counsel appearing for Board could not show any provision under which an appeal pending before Additional District Judge under the provisions of U.P. Act, 1960 would stand transferred to a Tribunal constituted under Section 83(1) of Central Act, 1995. Section 85 which bars jurisdiction of Civil Court clearly says that "no proceeding shall lie", meaning thereby this bar is prospective in respect to the proceedings which may commence on and after 1.1.1996 when Central Act, 1995 came into operation and there is nothing to show that the same apply to the pending proceedings also.

10. On the contrary, in respect to a dispute, whether there is a Wakf or not or a property is a Wakf property or not, Section 7 of Central Act, 1995 clearly contemplates that the issue is to be decided by Tribunal, if is raised after commencement of Central Act, 1995. Sub-section (5) of Section 7 makes it very clear that the pending proceedings shall remain ineffective.

11. In Sardar Khan and others Vs. Syed Najmul Hasan (Seth) and others (2007) 10 SCC 727, this question had arisen and answered by Apex Court. Civil Suit No. 271 of 1976 (re-numbered as 29 of 1995) was filed by plaintiff in the Court of 6th Additional District and Sessions Judge, Jaipur which was dismissed on 23.01.1996. Plaintiff preferred an appeal in the High Court taking plea that by virtue of Section 85 of Central Act, 1995, Civil Court ceased to have any jurisdiction in the matter and the matter ought to have been transferred to Tribunal. It is said that the judgment given by Additional District and Sessions Judge, Jaipur was without jurisdiction. The plea found favour of a Single Judge of Rajasthan High Court, who relying upon an earlier decision of Rajasthan High Court in Syed Inamul Haq Shah Vs. State of Rajasthan AIR 2001 Raj. 19 allowed appeal and set aside the judgment of Trial Court. The Apex Court overruled the decision of Rajasthan High Court in Syed Inamul Haq Shah Vs. State of Rajasthan (supra) and after considering Section 85 read with Sections 6 and 7 of Central Act, 1995 said in para 12, 13 and 14 as under:

"12. In exercise of power under Section 83 of the Act, the Wakf Tribunal was constituted on 23.2.1997. By virtue of sub-section (5) of Section 7, it clearly transpires that 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 this Act, i.e., if any suit has been instituted in any Civil Court prior to coming into force of The Wakf Act, 1995, then the Tribunal will have no jurisdiction to decide such matter and it will be continued and concluded as if Act has not come into force.

13. Now coming to the facts of the present case, it is an admitted fact that suit was filed on 19.12.1976 before Addl. District Judge, Jaipur and arguments were heard and judgment was received on 16.12.1995 and the judgment was delivered on 23.12.1996 against which the appeal was filed before the High Court on 1.3.1996. Therefore, from these facts it is clear that the suit was pending since 19.12.1976, i.e., prior to the commencement of the Act, i.e., 1.1.1996. Therefore, by virtue of sub-section (5) of Section 7, the Tribunal will have no jurisdiction to decide the suit or the appeal arising from that suit. In the present case, the appeal which was filed by the respondents (herein) arises out of the Judgment and decree passed by the Addl. District Judge, Jaipur on 23.1.1996 in a suit filed on 19.12.1976. Therefore, the appeal which was filed before the High Court against the judgment and decree passed on 23.1.1996 by the Addl. District Judge, Jaipur, will not be governed by this Act. By sub-section (5) of Section 7, a special provision has been made that on pending suit or proceeding or appeal or review or revision, the Act will not be applicable. In the case of Syed Inamul Hag Shah (supra), the learned Single Judge only considered the effect of Section 85 but did not examine the effect of sub- section (5) of Section 7 and, on the basis of section 85, it was held that all the proceedings which were pending before the Civil Court, the Civil Court will have no jurisdiction. With great respect, perhaps the attention of the learned Single Judge was not drawn to sub-section (5) of Section 7 which specifically provides an exception that this will not be applicable to the pending suits, appeals and revisions. It has purpose behind it that when Act was made prospective, how can it operate retrospectively, therefore, all pending matters were taken out from purview of this Act.

14. On a conjoint reading of sub-section (5) of Section 7 and Section 85, the result would be that the Act will not be applicable to the pending suits or proceedings or appeals or revisions which have commenced prior to 1.1.1996, i.e., coming into force of the Wakf Act, 1995. Therefore, the view taken by the learned Single Judge was not correct in the case of Syed Inamul Hag Shah (supra). Hence, in view of the above discussion, we are of the view that the learned Single Judge has gone wrong in relying on the decision rendered by the Single Judge in the case of Syed Inamul Hag Shah (supra). Consequently, the impugned order passed by the learned Single Judge is set aside and the matter is remitted back to the High Court for deciding the appeal in accordance with law, expeditiously."

12. A similar question has also been considered by this Court (Myself) in Managing Committee Waqf No. 93 through Secretary Vs. U.P. Sunni Central Board of Waqf and others (Civil Misc. Writ Petition No. 14321 of 2005) decided on 24.07.2014 and in para 14, 15 and 16, this Court said as under:

"14. In Mohannakumaran Nair Vs. Vijayakumaran Nair (2007) 14 SCC 426, it has been held that the jurisdiction is required to be determined with reference to the date on which the suit is filed and not with reference to a future date.

15. The dispute relating to wakf is governed by Section 6 and 7 of Central Act, 1995 and in respect to pending proceedings, an otherwise view taken by High Court has been revered by Apex Court in Sardar Khan and others Vs. Syed Najmul Hasan (Seth) and others AIR 2007 SC 1447.

16. In the case in hand, the proceedings commenced in 1995 when Central Act, 1995 was not in operation. The appeal is continuance of original proceedings as held in Delip Vs. Mohd. Azizul Haq and another (2000) 3 SCC 607 wherein the Court said that appeal is continuance of hearing of suit. Therefore, in view of Section 85 read with 83 (1) of Section 7 (5), I am clearly of the opinion that appeal preferred by respondent no. 3 before District Judge under Section 49-B (4) of U.P. Act, 1960 was not illegal or invalid due to pretext of repealed statute vide proviso to Section 112 (3) of Central Act, 1995."

13. In the present case, appeal filed before District Judge which was transferred to Additional District Judge, Court No. 3, Muzaffar Nagar was not against any decree of Civil Court with regard to the question as to whether a particular property was a Wakf or not but in the present case, the petitioner-Board treated the disputed property to be a Wakf property clothing itself with the power to issue a requisition to Collector under Section 49-B/57-A of U.P. Act, 1960 whereafter the Collector passed an order directing the respondent no. 2 to hand over possession to the Board or its appointee. The Board on its own did not attempt to look into the question whether disputed property was a Wakf property or not. The order passed by Collector was challenged by respondent no. 2 in appeal before District Judge claiming that disputed property was not a Wakf, hence neither the Board nor Collector has any jurisdiction to pass the order directing to deliver possession of disputed property. If such a dispute would have been raised after enforcement of Central Act, 1995, the matter could have been decided by Tribunal but in respect to the matter which were pending in appeal, this Court has not been shown any provision under which pending appeals would stand transferred to the Tribunal.

14. The contention that the Appellate Court has no jurisdiction to decide the appeal after enforcement of Act, 1995 and constitution of Tribunal, therefore, is clearly misconceived and rejected.

15. The next submission is that once the Board has registered a property as "Wakf" it was not open to respondent no. 2 or the Appellate Court to look into the question whether disputed property is a Wakf property or not since registration of disputed property as "Wakf" with the Board was conclusive and final.

16. This submission is thoroughly misconceived and erroneous. It has to be seen from different angles.

17. First of all what I find from the record is that at the time of enforcement of Act, 1951 the disputed property vested in State.

18. The disputed land was shown a Qabristan in revenue record. It was not shown to be the property of any individual and also not registered as waqf under the provisions of any of Wakf Acts, holding field when Act, 1951 came into force. Under Act, 1951, which came into force on 26.1.1951, vesting of 'estates' took place with effect from 1.7.1952. Consequences of vesting have been specified in Section 6 of Act, 1951. The 'estate' has been defined under Section 3(8) of the said Act. The land of public utility, such as graveyards, cremation ground, mela land are also parts of the 'estate' and, thus, stood vested in State of U.P. under Section 4 of Act, 1951 with effect from the date of vesting. I am fortified in taking the above view from a Division Bench decision in Mohd. N. Khan Vs. State of U.P. and others 1965 ALJ 609. It was laid down therein that land whether belong to a private person or vested in Almighty had to be mentioned in the register of properties. So even Wakf land will be covered by the definition of "estate" under Section 3(8) of Act, 1951 and would as such stood vested in State of U.P. under Section 4 of Act, 1951. There is no indication, whatsoever, exempting wakf property from operation of Section 4 of the Act, 1951. Therefore, even if at the relevant time land in dispute was a graveyard and ought to have been treated to be a wakf, nonetheless it would not affect the consequence of vesting and shall stand vested in State of U.P. under Section 4 of Act, 1951.

19. Same is the view taken in Khuda Baksh and others Vs. Gram Samaj Barotha 1972 RD 172 and U.P. Sunni Central Board of Waqf, Lucknow Vs. Town Area Committee Shahpur 2009 (106) RD 730.

20. In the subsequent proceedings whereby Board has claimed that on an application moved in 1963 the disputed property was registered as "Wakf" by Board, admittedly respondent no. 2 was not a party. Even otherwise, the proceeding of registration of a Wakf under the Wakf Act is not binding on a non-Muslim or a person not governed by Central Act, 1995. Even registration of Wakf by Board itself is not conclusive in respect to a property that it is a Wakf property. It is always open to a non-Muslim to claim that disputed property is not a Waqf property. In the present case, though Court below has noticed that no notification was issued under U.P. Act, 1960 by State Government showing that disputed property was a Wakf property and, therefore, even this contention of Board was not correct, but I do not propose to go into this question at this stage and suffice is to mention that mere registration of a property as a "Wakf", by Board, is not conclusive and binding upon the entire public at large. It is not the case of petitioner that any Gazette Notification was published by U.P. Government in respect to disputed property declaring it as a Wakf property. That being so, question of challenging the same by filing a suit for declaration within prescribed period by a non-Muslim as held by Apex Court in Sirajul Haq Khan Vs. Sunni Central Board of Wakf AIR 1959 SC 198 does not arise. Even otherwise, the aforesaid decision has no application for the reason that construing definition of "Wakf" read with Section 5 (2) of U.P. Muslim Wakf Act, 1936 (hereinafter referred to as "U.P. Act, 1936") which was under consideration in Sirajul Haq Khan (supra), the Court held that expression "any person interested in a Wakf" must mean "any person interested in what is held to be a Wakf". It is only persons, who are interested in a transaction, which is held to be a wakf, who could sue for declaration that the decision of Commissioner of Wakfs in that behalf is wrong and that the transaction in fact is not a wakf under the Act. The above observations make it clear that persons interested in a property held as wakf by the Wakf Commissioner will be duty bound to bring a suit for declaration within one year from the date of notification against the decision of the Wakf Commissioner if notification had conveyed to them the identity or particulars of the proposed wakf property, and not otherwise.

21. A Wakf has to be created and there is no a self creation of Wakf contemplated under the Islamic scriptures.

22. The creation of waqf was held valid and lawful by the Prophet Mohammad. It is said that this rule was laid down by Prophet himself and handed down in succession by Ibn Abu Nafe and Ibn Omar. Omar got piece of land in Khaiber whereupon he came to Prophet and sought his counsel to make the most pious use of it. The Prophet said "if you like you may make a waqf of it, as it is, and bestow it in benification". Omar thereupon bestowed it in charity on his relatives, the poor and slaves and in the path of God, and travellers, in a way that the land itself might not be sold, nor conveyed by gift, nor inherited. It is said that waqf continued in existence for several century until the land became waste. The prophet of Islam not only declared such work to be valid and lawful but also encourage their creation by dedicating his own property, the little that he had, in favour of posterity.

23. It would be useful to refer as to what constitute a lawful waqf under Muslim Law. A Division Bench decision of Calcutta High Court in Meer Mahomed Israil Khan Vs. Sashti Churn Ghose and others, 19 ILR (Calcutta) (1892) 412 where Justice Ameer Ali answering the question as to what constitute a lawful waqf under Mussulman law, observed, that there must be a substantial dedication for charitable or pious purpose. His Lordship further observed:

"In the Mussulman system law and religion are almost synonymous expressions, and are so intermixed with each other that it is wholly impossible to dissociate the one from the other: in other words, what is religious is lawful; what is lawful is religious. The notions derived from other systems of law or religion form no index to the understanding or administration of the Mussalman law. The words "piety" and "charity" have a much wider signification in Mussalman law and religion than perhaps in any other. Every "good purpose," wujuh-ul-khair (to use the language of the Kiafaya), which God approves, or by which approach (kurbat) is attained to the Deity, is a fitting purpose for a valid and lawful wakf. A provision for one's children, for one's relations, and under the Hanafi Sunni law for one's self, is as good and pious an act as a dedication for the support of the general body of the poor. The principle is founded on the religion of Islam, and derived from the teachings of Prophet."

24. Thereafter Justice Ameer Ali proceeded to quote from "Hedaya", a commentary by "Fath-ul-kadir" said to be frequently quoted in "Fatawa-i- Alamgiri" in great detail, and, it would be useful to reproduce the same as under:

"I will give here a few passages from some of the best known authorities to show how utterly opposed the view taken in this case is to the Muhammadan law. The Fath-ul-kadir says--" Literally, it (the word wakf) signifies detention, . . . . in law . . . according to the Disciples, the tying up of property in such a manner that the substance (asl=corpus) does not belong to anybody else excepting God, whilst the produce is devoted to human beings, or is spent on whomsoever he [the wakif] likes; and the reason of it is that, though a desire to approach the Deity (kurbat) should form the ultimate motive of all wakfs, yet if, without such an (immediate) desire, a person were to dedicate a property in favour of the affluent (aghnia), the wakf would be valid in the same way as a wakf in favour of the indigent or for the purposes of a mosque: for, in giving to the affluent there is as much kurbat as in giving to the poor or to a mosque, and though the profit may not have been given to the poor on the extinction of the affluent [still] it is wakf and will be treated as wakf even before their extinction. This principle is founded on the reason that the motive in all wakfs is to make one's self beloved by doing good to the living in this world and to approach the Almighty in the next . . . . .

"In wakf Islam is not a condition; consequently if a Zimmi makes a wakf on his children and his posterity and gives it at the end to the indigent, it is lawful [equally with that made by a Moslem]. And it is lawful in such a case to give the usufruct conditioned for the indigent to the poor of both Moselms and Zimmis. The wakif may lawfully condition to give the usufruct solely to the poor of the Zimmis, and in that will be included Jews and Christians and Magians; or he may condition that a special body of them may get the produce . . . . whatever condition the wakif makes if it is not contrary to the Sharaa, will be lawful. And so long as the object is not sinful, the wakif may give to whomsoever he likes . . . According to Abu Yusuf the mention of perpetuity [or dedication to an object of a permanent nature] is not necessary to constitute a valid wakf, for the words wakf and sadakah conjunctively or separately imply perpetuity . . . In the Baramika it is stated that, according to Abu Yusuf, when a wakf is made in favour of specific individuals, on their extinction the profits of the wakf will be applied to the poor . . . Among the wakfs created by the Sahaba [Companions of the Prophet], . . the first is the wakf of Omar (may God be pleased with him) of his land called Samagh [at Khaibar] . . that created by Zobair bin Awwam of his house for the support of his daughter who had been divorced (by her husband); . . that of Arkam Mukhzumi, on his children of his house called Dar-ul-Islam at Safar (near Mecca), where the Prophet used to preach Islam, and where many of the disciples, among them Omar, accepted the Faith . . . Baihaki in his Khilafiat has stated upon the authority of Abu Bakr Obaidulla bin Zubair that [the Caliph] Abu Bakr (may God be pleased with him) had a house in Mecca which he bestowed in charity upon his children, and that it is still in existence . . . And Saad ibn Abi Wakkas bestowed in charity his houses in Medina and Egypt upon his children, and that wakf is still in existence, and [the Caliph] Osman (may God be pleased with him) made a wakf of Ruma, which exists until to-day, and Amr Ibn al-Aas [the Amru of European history], of his lands called Wahat in Tayef and of his houses in Mecca and Medina upon his children, and that [wakf] also is still continuing . . . According to Abu Yusuf the wakif may lawfully retain the governance of the trust, or reserve the profits for himself during his lifetime. This has been fully dealt with by Kuduri in two parts . . The jurists, Ahmed ibn-i-Abi Laila, Ibn Shabarma, Zahri, and others, agree with Abu Yusuf. Mohammed alone holds a contrary opinion . . . Abu Yusuf bases his rule upon the practice and sayings of the Prophet himself who used to eat out of the produce of the lands dedicated by him .... Another proof in support of Abu Yusuf's rule is that the meaning of wakf is to extinguish the right of property in one's self and consign it to the custody of God. Therefore, when a person reserves the whole or a portion of the profits for himself, it does not interfere with the dedication, for that also implies the approval of the Almighty and is lawful . . . For example, if a man were to dedicate a caravanserai and make a condition that he may rest in it, or a cistern and condition that he should take water from it, or a cemetery, and say that he may be buried there, all this would be lawful. [Further] our Prophet (may the blessings of God be with him) has declared that a man's providing for his subsistence is a sadakah [an act of piety or charity]. This Hadis has been substantially handed down by a large number [of people] and is authentic, and Ibn Maja states from Mikdam bin Maadi Karib that the Prophet declared that no gain of a man is so meritorious as that which he earns by the labour of his hands; and that which he provides for the maintenance and support of himself, the people of his household, his children, and his servants, is a sadakah. And Imam Nisai from Balia and he from Buhair has given the same tradition in these words:-'Whatever thou providest for thyself is a sadakah.' Ibn Haban in his Sahih states that Abu Said reports from the Prophet that any one who acquires property in a lawful manner, and provides therewith for his maintenance and for that of the other creatures of God, gives alms in the way of the Lord. . . . And Dar Kutni reports from Jabir that the Prophet (may God's blessing be with him) . . . declared that all good acts are sadakah and that a man providing subsistence for himself and his children and his belongings, and for the maintenance of his position, is giving charity in the way of God. . Tibrani has reported from Abi Imama that the Prophet of God declared that a man making a provision for his own maintenance, or of his wife, or of his kindred, or of his children, is giving sadakah. And in the Sahih of Muslim it is stated from Jabir that the Prophet told a man to make a beginning with himself and give the remainder to his kinsfolk."

25. Justice Ameer Ali further on page 434 of the report observed that the words "charitable" and "religious" must be understood from a Mussulman and not from an English point of view. His view was concurred by Justice O'Kinealy and His Lordship also observed on page 437 of the report that "It must be an endowment for religious or charitable purposes; and if we want to interpret a document of that kind, what we must naturally look to is what is really meant by the words "religious" or "charitable" among Muhammadans. As an example, we know that the words "charitable purpose" in Scotland have quite a different meaning from that in which they are used in England. And so in India, in judging of what is really meant by the words "religious" and "charitable" by a Muhammadan, we must take the view which their law takes, and not what is to be found in the English Dictionary."

26. The term "waqf" literally means detention. The legal meaning of waqf according to Abu Hanifa, is detention of a specific thing in the ownership of the wakif or appropriator, and devoting or appropriating of its profits or usufruct "in charity on the poor or other good objects." According to the two disciples, Abu Yusuf and Muhammad, waqf signifies extinction of appropriator's ownership in the thing dedicated and detention of the thing in the implied ownership of God, in such a manner, that, its profits may revert to or be applied "for the benefit of mankind". A waqf extinguishes the right of the wakif or dedicator and transfers ownership to God. By dedication and declaration the property in the wakif is divested and vests in the Almighty.

27. For the present purpose an idea of what constitute waqf in Islam is sufficient and I need not go into further details. With respect to 'waqf' as recognised in Islamic Law, since hereat I am concerned with the relevant legislative aspect of the matter as it operated in India.

28. The concept of waqf in India got introduced with the establishment of Muslim rule. It appear that earlier 'Sultan' was the supreme authority over administration of waqf properties and ultimate power vested in him. There was some decentralisation of actual administration, control and supervision of waqf institutions. At the Centre, Sadar-us-Sadar was entrusted with the overall control of waqfs administration in the Empire. His main work was to supervise waqfs' administration and its properties. At provincial level, it was Sadr-e-Subha and in District, Sadre-e-Sarkar used to look into the administration of waqfs. At local level, waqfs used to be looked after by Qazis who also looked after waqf cases. The administration of individual waqf was the responsibility of Mutawalli, which is still continuing. This kind of arrangement finds mention in detail in Fatwa-i-Alamgiri said to be prepared under the command of Mughal Emperor Aurangzeb.

29. During the reign of Indian sub-continent by East India Company, in the territory under their command, so far as it had charitable and religious institutions of Hindus and Mohammedans, they were regulated by British Government exercising visitatorial powers. In exercise of this power, the British Government enacted several laws to prevent fraud and waste, and to secure honest administration of such institutions. The British Government did not interfere with personal laws of Hindus and Muslim like inheritance, succession, marriage and religious institutions.

30. In 1810, the general superintendence of religious and charitable endowments vested in Board of Revenue and the Board of Commissioners. Vide Bengal Regulations XIX of 1810 (The Bengal Charitable Endowment Public Building and Escheats Regulations, 1810), the Board of Revenue was put in possession of landed and other properties of charitable and religious endowments, of both Muslims and Hindus. The Regulations were obviously applicable to area under the authority of East India Company. The said Regulations, however it appears, had no application to the area or to properties situated in Oudh for the reason that under the agreement of East India Company with Nawab of Awadh (Lucknow), the said area of Oudh continued to be ruled by the "Nawabs" till its annexation in 1856.

31. After transfer of power from East India Company to British Government in 1857, a series of legislation came including those which were enacted with an object of proper administration of religious and charitable endowment. The Religious Endowments Act, 1863 (Act 20 of 1863) was passed and the properties relating to religious, charitable and public endowments were placed under control of trustees, managers or superintendents. Local Committees were appointed which exercise powers of the Board of Revenue or local agents.

32. In respect to the Muslim in Oudh area, Oudh Laws Act XVIII of 1876 was enacted. Vide Section 3 thereof, the laws to be administered in the case of Mohammadans would be the same as in East Panjub. The East Punjab was governed by Punjab Laws Act IV of 1872 and Sections 5 and 6 thereof provide as under:

"5. In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions or any religious usage or institution, the rule of decision shall be--

(1) any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been, by this or any other enactment, altered or abolished, and has not been declared to be void by any competent authority;

(2) the Mahomedan law, in cases where the parties are Mahomedans,.... except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of the Act, or has been modified by any such custom as is above referred to."

"6. In cases not otherwise specially provided for, the Judges shall decide according to justice, equity and good conscience."

33. In respect to certain specified waqfs in Husainabad area in Lucknow (Oudh), Husainabad Endowment Act, 1878 (Act 15 of 1878) was enacted.

34. In 1908, by enacting new Code of Civil Procedure, Sections 92 and 93 were incorporated for proper administration of trusts. Under these sections two or more persons having any interest in a trust could file a suit with the prior permission of Advocate General in relation to a matter regarding appointment and removal of trustees, matters relating to the sale, exchange or mortgage of trust property, etc.

35. Upto 1913 a waqf was valid if the effect of deed of wqkf was to keep the property in substance to charitable uses. In Abul Fata Mohammad Vs. Rasamaya, 22 IA 76 it was held by Privy Council that if primary object of waqf was aggrandizement of family and the gift to charity was illusory, whether from its small amount or from its uncertainty and remoteness, the waqf, for the benefit of the family was invalid and no effect could be given to it. This decision caused lot of protest and dissatisfaction amongst Muslim communities in India since the said decision in particular paralyzed power of Muslims to make a settlement in favour of family, children and descendants or what is known as "waqf-alal-aulad". Consequently, the matter was represented by Indian Muslims before Lord Curzon, the then Viceroy and Governor General of India canvassing that for family settlement by way of waqf from the time of Prophet Mohammad down to the present time an unbroken chain of evidence existed to show that law of "waqf-alal-aulad" existed in all countries having Muslim population like Arabia, Central Asia, Persia, Afghanistan and India. It was represented that the precepts of Prophet support the family settlement amongst Muslim by way of waqf. It is said that the following precepts of the Prophet were cited:

"The apostle of God said:

"When a Mussalman bestows on his family and kindered, for the intention of rewards, it becomes alms, although he has not given to the poor, but to his family and children."

The apostle of God said:

"There is one Dinar which you have bestowed in the Road of God, and another in freeing a slave, and another in alms to the poor, and another given to your family and children; that is the greatest Dinar in point of reward which you gave to your family."

The apostle of God said:

"The most excellent Dinar which a man bestows is that which he bestows upon his own family. Omme Salma says, "I said to the Prophet, is there any good thing for me of rewards, for my bestowing on the Sons of Abu Salmas. His sons are no otherwise than mine." The Prophet said: "Then give to them, and for you are rewards of that you bestow upon them"

The apostle of God said:

"Giving alms to the poor has the reward of one alms, but that given to kindered has two rewards; one the reward of alms, the other the reward of relationship. "The Prophet of God declared that a pious offering to ones family (to provide against their getting into want) is more pious than giving alms to beggars."

36. Accepting claims of Muslims in India, Mussalman Waqf Validating Act, 1913 (Act No. 6 of 1913) (hereinafter referred to as the "Act, 1913") was enacted to validate waqfs created for the benefit of the members of family i.e. "waqf-alal-aulad". This Act came into force on 07.03.1913. The preamble of Act, 1913 shows that it was enacted to declare rights of Muslims to make settlements of property by way of waqf in favour of their family, children and decedents. The term "waqf" was defined in Section 2 (1) as under :

"2. .......................

(1) "Waqf" means the permanent dedication by a person professing the Mussalman faith of any property for any purpose, recognized by the Mussalman law as religious, pious or charitable."

37. Section 5 of Act, 1913 states that nothing therein shall affect any custom or usage whether local or prevalent among Musalman or any particular class or sect. The definition of 'Waqf' under Act, 1913 recognises the concept of waqf as known in Shariyat Law.

38. As already stated, a waqf therefore is an unconditional and permanent dedication of property with implied detention in the ownership of God in such a manner that the property of owner may be extinguished and its profit may revert to or be applied for the benefit of mankind except for purposes prohibited by Islam.

39. A waqf is distinct from Sadaqah, Hiba and trust. In Islamic Law- Personal by B.R.Verma first published in 1940 (6th Edition published in 1986) (reprinted in 1991 by M.H.Beg and S.K.Verma) identify the above distinction on page 630-631 of the book as under :

Sadaqah

Wakf

(1)The corpus itself may be consummed.

(2)It is only a donation.

(3)The legal estate and not merely beneficial interest passes to charity to be held by trustees appointed by the donor. The trustee can dispose of the corpus itself.

(1)The income only can be sent.

(2)It is an endowment.

(3)The legal estate is transferred to God. It does not vest in the trustee or mutawalli who cannot deal with the corpus.

40. The distinction between waqf and sadaqah is that in the case of former the income only can be spent while in the case of latter the corpus of the property may be consumed.

Hiba

Wakf

(1)It relates to absolute interest in the subject of the gift, the donee having a right not only to spend the usufruct but also the property itself.

(2)The donee is a human being.

(3)There are no limitations as to the object for which it can be made.

(4)A hiba to an unborn person is invalid.

(1)It is only the usufruct which can be spent and the corpus cannot be disposed of except under very limited conditions.

(2)The ownership is transferred to God.

(3)It is made for the benefit of mankind.

(4)A wakf may be made in favour of a succession of unborn persons.

Trust

Wakf

(1)No particular motive is necessary.

(2)The founder may himself be a beneficiary.

(3)It may be for any lawful object.

(4)the property vests in the trustee.

(5)A trustee has got larger power than a mutawalli.

(6)It is not necessary that a trust maybe perpetual, irrevocable or inalienable.

(7)It results for the benefit of the founder when it is incapable of execution and the property has not been exhausted.

(1)It is generally made with a pious, charitable or religious motive.

(2)The wakf cannot reserve any benefit for himself (except to some extent under Hanafi law).

(3)The ultimate object must be some benefit of mankind.

(4)The property vests in God.

(5)A mutawalli is only a manager or superintendent.

(6)A wakf is perpetual, irrevocable and inalienable.

(7)The cypres doctrine is applied and the property may be applied to some other object.

41. Apparently, Islam is not a necessary condition for constitution of a waqf. It may be made by a Muslim or a non Muslim but the necessary condition for creation of a waqf is the object thereof. Ameer Ali in his book on Mohammedan Law (Fourth Edition) Volume I at page 200 has said "Any person of whatever creed may create wakf, but the law requires that the object for which the dedication is made should be lawful according to the creed of the dedicator as well as the Islamic doctrines. Divine approbation being the essential in the constitution of a wakf if the object for which a dedication is made is sinful, either according to the laws of Islam or to the creed of the dedicator it would not be valid." Thus a non Muslim may also create a waqf for any purpose which is religious under Mohammedan Law. But the object of waqf must be lawful according to religious creed of the maker as well.

42. Section 3 of Act, 1913 empowers any person professing muslim faith to create a waqf in all other respects in accordance with the provisions of Muslim Law for the following among other purposes, i.e., for the maintenance and support, wholly or partially of his family, children and descendants etc. It would be useful to reproduce Section 3 as under :

"3. It shall be lawful for any person professing the Mussalman faith to create a waqf which in all other respects is in accordance with the provisions of Mussalman law, for the following among other purposes :-

(1)for the maintenance and support wholly or partially of his family, children or descendants, and

(2)where the person creating a waqf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated :

Provided that the ultimate benefit is in such cases expressly or implicitly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character."

43. Act, 1913, however, having not been given retrospective effect did not remove the hardship in its entirety created by decision of Privy Council in Abul Fata Mohammad (supra) and in some later cases it was held that Act, 1913 can not be construed as validating deeds executed before 07.03.1913.

44. On 05.08.1923 the Mussalman Waqf Act, 1923 (Act No. XLII of 1923 (hereinafter referred to as "Act, 1923") was enacted with the object of better management of waqf property and ensuring maintenance of proper accounts and its publication in respect of such properties. The aforesaid Act was applicable to the whole of British India at the relevant time and in 1948 the said words were substituted by the words "all the Provinces of India". The term "benefit", "mutwalli" and "waqf" were defined in Section 2 (a) (c) and (e) of Act, 1923, as under :

"2. In this Act, unless there is anything repugnant in the subject or context,-

(a)"benefit" does not include any benefit which a mutwalli is entitled to claim solely by reason of his being such mutwalli;

(b) ............................................

(c)"mutwalli" means any person appointed either verbally or under any deed or instrument by which a wakf has been created or by a Court of competent jurisdiction to be the mutwalli of a wakf, and includes a naib-mutwalli or other person appointed by a mutwalli to perform the duties of the mutwalli, and, save as otherwise provided in this Act, any person who is for the time being administering any wakf property;

(d).............................................

(e)"wakf" means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable, but does not include any wakf, such as is described in section, 3 of the Mussalman Wakf Validating Act, 1913, under which any benefit is for the time being claimable for himself by the person by whom the wakf was created or by any of his family or descendants."

45. Section 3 of Act, 1923 placed an obligation on a Mutwalli to furnish certain particulars in respect to waqf property, income and expenses etc. within a period of six months from the date of commencement of the Act, 1923 to the Court within the local limits of whose jurisdiction the property of the waqf, for which the said person is mutwalli, is situated. Non compliance of Section 3 was made penal vide Section 10 of the said Act.

46. Section 10 of Act, 1923 provides consequences on failure to comply with the provisions of Sections, 3, 4 and 5 and reads as under:

"10. Penalties.--Any person who is required by or under Sec. 3 or Sec. 4 to furnish statement of particulars or any document relating to a wakf, or who is required by Sec. 5 to furnish a statement of accounts, shall, if he, without reasonable cause the burden of proving which shall lie upon him, fails to furnish such statement or document, as the case may be, in due time, or furnishes a statement which he knows or has reason to believe to be false, misleading or untrue in any material particular, or, in the case of a statement of accounts, furnishes a statement which has not been audited in the manner required by Sec. 6, be punishable with fine which may extend to five hundred rupees, or, in the case of a second or subsequent offence, with fine which may extend to two thousand rupees."

47. A question arose, whether Court while exercising power under Section 10 can proceed to look into the question, whether any property which is denied to be a waqf property, can be investigated and looked into so as to find out whether it is a waqf property within the meaning of Section 2(e) of the Act or not. This question came to be considered before a Hon'ble Single Judge of Patna High Court in (Syed) Ali Mohammad Vs. Collector of Bhagalpur, AIR 1927 Patna 189. The question was that of application of Act, 1923 in respect to property where there was a dispute whether it was a waqf property or not. The petitioner before High Court return a notice issued by Collector including petitioner's property in the list of waqf properties stating that he was not incharge of any waqf property as defined in Section 2(e) of Act, 1923 whereupon Collector referred the matter to District Judge who held the property as a waqf property. The question arose, whether order of District Judge was within jurisdiction or not. It was held by Patna High Court that there is no provision in the Act authorizing Court, as defined in the Act, to determine, whether any property which if denied to be a waqf property, is waqf property, within the meaning of the Act. The Act neither authorizes the Court to summon witnesses or to take evidence nor any procedure is prescribed for determining the question, whether any property is a waqf property and no provision of appeal or revision is made if any such decision is made. It held that the Act applies to admitted waqfs and not to the properties which are denied to be the waqf properties.

48. This view did not find favour with a Full Bench decision of Oudh Chief Court in Mohammad Baqar and another Vs. S. Mohammad Casim and others, AIR 1932 Oudh 210 where it was held that mere denial of a property as constituting a waqf property by a person would not deprive jurisdiction to the Court to consider whether property is a waqf property under Act, 1923 or not, otherwise, it would defeat the very objective of the Act. In majority decision, the Court said that it is a recalcitrant Mutawalli to whom the Act intends to reach. If jurisdiction of Court is ousted as soon as a Mutawalli who has failed to observe provisions of the Act, denies the alleged waqf, that would defeat the very objective of legislature. It was held that application of Act, 1923 does not depend upon the attitude which a Mutawalli may take with regard to origin of an alleged waqf. The Court said:

"From the definition of the word "wakf" in Cl. (e), S. 2 of the Act it is clear that a wakf of the nature described in S. 3, Mussalman Wakf Validating Act, 1913, is excluded from the operation of the Act of 1923. With a view to determine whether an alleged waqf is inside or outside the scope of the Act the Court must make some inquiry. The inquiry may be limited merely to an interpretation of the instrument creating the wakf if there is any or to the scrutinizing of the terms of an oral wakf." (page211) (emphasis added)

49. The Court further held:

"It is true that the Act does not lay down any obligation on the Court as to the limits to which it should carry any inquiry which it may wish to make and no party is entitled to compel the Court to carry inquiry up to any particular stage. Indeed the Court may refuse to enter into any inquiry on the ground that the allegations of the parties disclose a controversy fit to be determined in a regular suit, and this, in my judgment, explains the absence of any special rule of procedure. The Court is invested with a discretion but it cannot, in my opinion, refuse to look into the merits of the case and stay its hands on the sole ground that the alleged mutawalli does not admit the alleged wakf." (page 213) (emphasis added)

50. The next legislation is Mussalman Waqf Validating Act (XXIII) of 1930 which made Act, 1913 applicable to waqfs created before commencement of Act, 1913 with the rider that transactions already completed in respect to right, title, obligations, liability etc. shall not be affected in any manner.

51. Then came the Act, 1936 (Act No. 13 of 1936) published in U.P. Gazette dated 20.03.1937. The above enactment was made for the better governance, administration and supervision of certain classes of Muslim waqf in United Provinces of Agra and Oudh. Section 1 of Act, 1936 provides for the commencement, and extent; and reads as under:

"(1) Short title, commencement and extent.--(1) This Act shall be called "the United Provinces Muslim Waqfs Act, 1936."

(2) This section and sections 2 to 4 shall come into force at once. The rest of the Act shall not come into force until such date as the local Government may, by notification in the Gazette, appoint in this behalf.

(3)It shall extend to the whole of the United Provinces of Agra and Oudh."

52. Section 1(2) enforces only Sections 2 to 4 at once and the rest of the Act was to come into force on such date as the local Government by notification in the gazette may appoint in this behalf. Sections 5 to 71 of the said Act came into force on 01.07.1941vide notification dated 20.06.1941 published in Government Gazette of the United Provinces Vol. LXIII, No. XXVI, Part-1, page 311 dated 20.06.1941 which reads as under:

"In exercise of the powers conferred by sub-section (2) of section 1 of the United Provinces Muslim Waqfs Act, 1936 (U.P. XIII of 1936), the Governor of the United Provinces is pleased to declare that sections 5 to 71 of the said Act shall come into force on the 1st day of July, 1941."

53. The reason for delay in notification giving effect to Sections 5 to 71 of Act, 1936 came to be noticed in Badrul Islam Vs. The Sunni Central Board of Waqf, U.P. Lucknow, AIR 1954 Allahabad 459 in para 8 of the judgement as under:

"It is true that the provisions of Ss. 5 to 71 of the Act did not come in force till some time in 1941. This fact has no bearing because it appears that the late enforcement of these provisions was due to the fact that what was provided by these provisions could not have been given effect to till the Central Board had found on investigation through proper agency the waqfs which were subject to the Act. It was no use enforcing these provisions which could not have been given effect to. It was for this reason that these sections were later enforced."

54. Section 2 of Act, 1936 provides for applicability of the Act to certain category of waqfs and inapplicability to some other category of waqfs and reads as under:

"2. Applicability of the Act.-(1) Save as herein otherwise specifically stated, this Act shall apply to all waqfs, whether created before or after this Act comes into force, any part of the property of which is situated in the United Provinces.

(2) This Act shall not apply to-

(i) a waqf created by a deed, if any, under the terms of which not less than 75 per cent, of the total income after deduction of land revenue and cesses payable to Government of the property covered by the deed of waqf, if any, is for the time being payable for the benefit of the waqif or his descendants or any member of his family.

(ii) a waqf created solely for either of the following purposes :

(a) the maintenance and support of any person other than the waqif or his descendants or any member of his family,

(b) the celebration of religious ceremonies connected with the death anniversaries of the waqif or of any member of his family or any of his ancestors,

(c) the maintenance of private immabaras, tombs and grave yards, or

(d) the maintenance and support of the waqif or for payment of his debts, when the waqif is a Hanafi Musalman; and

(iii) the waqfs mentioned in the schedule : Provided that if the Mutawalli of a waqf to which this Act does not apply wrongfully sells or mortgages, or suffers to be sold in execution of a decree against himself, or otherwise destroys the whole or any part of the waqf property, the Central Board may apply all or any of the provisions of this Act to such waqf for such time as it may think necessary.

Explanation. A waqf which is originally exempt from the operation of this act may, for any reason subsequently, become subject to such operation, for example, by reason of a higher percentage of its income becoming available under the terms of the deed for public charities."

55. The Schedule referred to in Section 2(2)(iii) of Act, 1936 is as under :

1. Waqfs governed by Act XV of 1878.

2. Wazir Begam Trust, Lucknow.

3. Agha Abbu Sahib Trust, Lucknow.

4. Shah Najaf Trust, King's side, Lucknow, and Queen's side, Lucknow.

5. Kazmain Trust, Lucknow.

56. Section 3 contains certain definitions as under:

"3. In this Act, unless there is anything repugnant in the subject or context--

(1) Interpretation clauses.--"Waqf" means the permanent dedication or grant of any property for any purpose recognized by the Musalman law or usage as religious, pious or charitable and, where no deed of waqf is traceable, includes waqf by user, and a waqif means any person who makes such dedication or grant."

(2) "Beneficiary" means the person or object for whose benefit a waqf is created and includes religious, pious or charitable objects, and any other object of public utility established for the benefit of the Muslim community or any particular sect of the Muslim community."

(3) "Mutawalli" means a manager of a waqf or endowment and includes an amin, a sajjadanashin, a khadim, naib mutawalli and a committee of management, and, save as otherwise provided in this Act, any person who is for the time being in charge of or administering, any endowment as such.

(4) "Family" includes--

(a) Parents and grand-parents.

(b) Wife or husband.

(c) Persons related through any ancestor, male or female.

(d) Persons who reside with, and are maintained by, the waqif, whether related to him or not.

(5) Property includes Government securities and bonds, shares in firms and companies, stocks, debentures and other securities and instruments.

(6) "Prescribed" means prescribed by rules made under this Act.

(7) "Court" means, unless otherwise stated either expressly or by implication, the court of the District Judge or any other court empowered by the local Government to exercise jurisdiction under this Act.

(8) "Net income" means the total income minus the land revenue and other cesses payable to Government and to local bodies:

Provided that in the case of land paying land revenue the recorded income shall be deemed to be the total income."

57. Chapter I which has Sections 4 to 24 deals with Survey of Waqfs and Central Board of Waqfs. Section 4 deals with the Survey of Waqfs; Section 5 deals with the Commissioner's report and its publication in the Gazette; and, read as under:

"4. (1) Survey of waqfs.--Within three-months of the commencement of this Act the local Government shall by notification in the Gazette appoint for each district a gazetted officer, either by name or by official designation for the purpose of making a survey of all waqfs in such district, whether subject of this Act or not. Such officer shall be called the Commissioner of waqfs."

(2) The Local Government may, from time to time when necessary cancel any appointment under sub-section (1) or make a new appointment.

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

(a) the number of all Shia and Sunni waqfs in the district;

(b) the nature of each waqf;

(c) the gross income of property comprised in the waqf;

(d) the amount of Government revenue, cesses and taxes payable in respect of waqf property;

(e) expenses incurred in the realization of the income and the pay of the mutawalli of each waqf if the waqf is not exempted under section 2; and

(f) whether the waqf is one of those exempted from the provisions of this Act under section 2:

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

(4) In making such inquiries as aforesaid the Commissioner of waqfs shall exercise all the powers of a civil court for summoning and examining witnesses and documents, making local inspections, appointing commissioners for examination of witnesses, examining of accounts and making local investigations.

(5) The Commissioner of waqfs shall submit his report of inquiry to the local Government.

(6) The total cost of carrying out the provisions of this section shall be borne by the mutawallis of all waqfs to which the Mussalmans Waqfs Act, 1923, applies in proportion to the income of the property of such waqfs situated in the United Provinces.

(7) Notwithstanding anything in the deed or instrument creating any waqf, any mutawalli may pay from the income of the waqf property any sum due from him under sub-section (6).

(8) Any sum due from a mutawalli under sub-section (6) may, on a certificate issued by the local Government, be recovered by the Collector in the manner provided by law for recovery of an arrear of land revenue.

5. Commissioner's report.--

(1) The local Government shall forward a copy of the Commissioner's report to each of the Central Boards constituted under this Act. Each Central Board shall as soon as possible notify in the Gazette the waqfs relating to the particular sect to which, according to such report, the provisions of this Act apply.

(2) The mutawalli of a waqf or any person interested in a waqf or a Central Board may bring a suit in a civil court of competent jurisdiction for a declaration that any transaction held by the Commissioner of waqfs to be a waqf is not a waqf, or any transaction held or assumed by him not to be a waqf is a waqf, or that a waqf held by him to pertain to a particular sect does not belong to that sect, or that any waqf reported by such Commissioner as being subject to the provisions of this Act is exempted under section 2, or that any waqf held by him to be so exempted is subject to this Act:

Provided that no such suit shall be instituted by a Central Board after more than two years of the receipt of the report of Commissioner of waqfs, and by a mutawalli or person interested in a waqf after more than one year of the notification referred to in sub-clause (1):

Provided also that no proceedings under this Act in respect of any waqf shall be stayed or suspended merely by reason of the pendency of any such suit or of any appeal arising out of any such suit.

(3) Subject to the final result of any suit instituted under sub-section (2) the report of the Commissioner of waqfs shall be final and conclusive.

(4) The Commissioner of waqfs shall not be made a defendant to any suit under sub-section (2) and no suit shall be instituted against him for anything done by him in good faith under colour of this Act."

58. Sections 6, 7 and 8 of Act, 1936 show that there shall be two Waqf Board namely, Shia Central Board and Sunni Central Board of Waqf. The constitution etc. thereof is provided from Section 6 to 17. Section 18 deals with the functions of Central Board and reads as under:

"18. Function of the Central Board.- (1) The general superintendence of all waqfs to which this Act applies shall vest in the Central Board. The Central Board shall do all things reasonable and necessary to ensure that waqfs or endowments under its superintendence are properly maintained, controlled and administered and duly appropriated to the purposes for which they were founded or for which they exist.

(2) Without prejudice to the generality of the provisions of sub-section (1) the powers and duties of the Central Board shall be-

(a) to complete and maintain and authentic record of rights containing information relating to the origin, income, object, and beneficiaries of every waqf in each district;

	(b)    to prepare and settle its own budget;
 
(c)   to settle and pass budgets submitted by the mutawallis direct to the Board and any budget submitted to, but not approved by, a District Waqf Committee, provided that it is in accordance with the wishes of the waqif and the terms of the deed of waqf;
 
(d)    to settle and pass the annual budgets of the District Waqf Committees;
 
(e)   to institute and and defend suits and proceedings in a court of law relating to-
 
(i) administration of waqfs,
 
(ii) taking of accounts,
 
(iii) appointment and removal of mutawallis in accordance with the deed of waqf if it is traceable,
 
(iv) putting the mutawallis in possession or removing them from possession,
 
(v) settlement or modification of any scheme of management;
 
(f)  to sanction the institution of suits under section 92 of the Code of Civil Procedure, 1908, relating to waqfs to which this Act applies;
 
(g)   to take measure for the recovery of lost properties;
 

(h) to settle scheme of management and application of waqf funds in accordance with the doctrine of cypres in case of those waqfs, the objects of which are not evident from any written instrument or in cases in which the objects for which they were created have ceased to exist;

(i)    to enter upon and inspect waqf properties;
 
(j)   to investigate into the nature and extent of waqfs and waqf properties and call from time to time for accounts and other returns and information from the mutawallis and give directions for the proper administration of waqfs;
 
(k)   to arrange for the auditing of accounts submitted by the mutawallis;
 
(l)    to direct the deposit of surplus money in the hands of the mutawalli in any approved bank and to utilize it on the objects of waqf;
 
(m)   to supervise and control the District Waqf Committees;
 
(n)   to administer the waqf fund;
 
(o)   to keep regular accounts of receipts and disbursement and submit the same in the matter prescribed;
 
(p)  to institute when necessary an inquiry relating to the administration of a waqf:
 
	Provided that in the appointment of mutawallis or in making any other arrangement for the management of waqf property the Central Board shall be guided as far as possible by the directions of the waqif, if any." 
 

59. Thus, a careful reading of Act, 1936 as also all the earlier enactments make it very clear that neither they create a waqf nor diminish or terminate a waqf nor affect a waqf in any other manner. On the contrary, the provisions have been made only to provide a statutory body for better governance, administration and supervision of waqfs to which the said Act apply. Further vide Section 2(1) of Act, 1936 though it applies to all waqfs, whether created before commencement of Act or thereafter, if any part of property of which waqf is situate in the United provinces, but by virtue of Sub-section (2) of Section 2, certain classes of waqfs were excluded. The exclusion under Sub-section (2) of Section 2 of Act, 1936 is specific and has been categorized with precision. It would mean that except only to the extent waqfs are excluded by virtue of sub-section (2) of Section 2, all other waqfs, if a waqf validly created, would be governed by Act, 1936.

60. The term 'Waqf' under Act, 1936 has also been defined as a permanent dedication or grant of any property for any purposes recognized by the Musalman law or usage as religious, pious or charitable including waqf by user where no deed of waqf is traceable.

61. However a cumulative reading of the entire Act, 1936 shows that it does not govern right of worship of Hindus or Muslims. as the case may be. The object of enactment is to provide better governance and administration in supervision of certain classes of Muslim Waqfs. The Waqfs to which the aforesaid Act applies are to be supervised and maintained by the Central Boards, namely, Shia Central or Sunni Central Board, as the case may be, constituted under Section 6 of the said Act.

62. At this stage it may be pointed out that there was some ambiguity between Section 8(1)(i) and Section 12. Noticing the same, vide U.P. Muslim Waqfs (Amendment) Act 9 of 1953, received assent of President on 26.02.1953, Section 12 was deleted and Section 8-A was inserted which was held valid by this Court in All India Shia Conference Vs. Taqi Hadi and others, AIR 1954 All. 124.

63. In 1954, the Parliament enacted Waqf Act, 1954 (Act XXIX of 1954) (hereinafter referred to as "Act, 1954"). The aforesaid Act though extended to whole of India except the State of Jammu and Kashmir but proviso to Section 1(3) thereof provides for the State of U.P., Bihar and West Bengal as under :

"Provided that in respect of any of the States of Bihar, Uttar Pradesh and West Bengal, no such notification shall be issued except on the recommendation of the State Government concerned."

(emphasis added)

64. Consequently, Act, 1954 did not apply to the State of U.P. since State of U.P. had its own Act of 1936.

65. The State legislature then enacted U.P. Muslim Waqfs Act 1960 (U.P. Act No.XVI of 1960). This U.P. Act, 1960 received assent of President of India on 27th August, 1960 and was published in U.P. Gazette Extraordinary on 3rd September, 1960. Vide Section 1(3) of Act. 1960, it came into force at once. Section 2 of Act, 1960 provides for application of Act and sub-section (1) thereof reads as under :

"2. Application of the Act.-(1) Save as herein otherwise specifically stated, this Act shall apply to all waqfs, whether created before or after the commencement of this Act, any part of the property comprised in which it situate in Uttar Pradesh, and to all the waqfs which at the time of the coming into force of this act were the superintendence of the Sunni Central Board or the Shia Central Board constituted under the U.P. Muslim Waqfs Act, 1936 (U.P. Act XIII of 1936).

66. Vide Section 85 (2) of 1960 Act, 1936 Act as well as Husainabad Endowment Act, 1878 were repealed. Some more enactments were repealed by insertion of Section 11 of U.P. Act No.28 of 1971 whereby following was inserted in Section 85(2) of 1960 Act :

"The following enactments are also hereby repealed in their application to any waqf to which this Act applies :

(1) the Bengal Charitable Endoments, Public Buildings and Escheats Regulation, 1810 (Act XIX of 1810) ;

(2) the Religious Endoments Act, 1863 (Act XX of 1863) ;

(3)the Charitable Endowments Act, 1890 (Act XX of 1890) ;

(4) the Charitable and Religious Trusts Act, 190 (Act XIV of 1920):"

67. There was a saving provisions in Section 85 by way of proviso which read as under :

"Provided that this repeal shall not affect the operation of those Acts in regard to any suit or proceeding pending in any Court or to an appeal or an application in revision against any order that may be passed in such suit or proceeding and subject thereto, anything done or any action taken in exercise of powers conferred by or under those Acts shall unless otherwise expressly required by any provision of this Act, be deemed to have been done or taken in exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken."

68. Besides, Section 28 of Act, 1960 provides saving of waqfs already registered and provides as under :

"Savings U.P. Act XIII of 1986.- A waqf registered before the commencement of this Act under the U.P. Muslim Waqf Act 1936, shall be deemed to have been registered under the provisions of this Act."

69. Act, 1960 now stands repealed by Central Act, 1995 which has come into effect w.e.f. 1st January, 1996.

70. Thus, under various statues dealing with Wakfs as discussed above, it is clear that purpose of registration was only identification, maintenance and administration of Wakf and Wakf property and not to create a Wakf or Wakf property which is not already existing.

71. The general power of superintendence vested in Central Board is to ensure that the waqfs or endowments under its superintendence are maintained, controlled, administered and duly appropriated to the purposes for which they were founded or for which they exist. The very functions of Central Board, as such, do not relate directly to the right of worship of either Hindus or Muslims in any manner. To some extent, however, it may be said that if a religious Waqf is not properly maintained and administered, and, it causes hindrance or obstruction in observance of such religious activities for which Waqf was created, right of people in general who are entitled to use Waqf property for the purposes it is created, to that extent may be protected, but directly it cannot be said that Act, 1936 or U.P. Act, 1960 in any manner deals with the right of worship of any of the member of the community for whose benefit the Waqf is created. It is more so when the question of a member(s) of a community other than Muslim arises since neither his right of worship in any manner is sought to be affected by Act, 1936 or U.P. Act, 1960 nor otherwise it does appear to do so.

72. In respect to Act, 1936 this question came to be considered by Apex Court in Siraj-ul-Haq Khan and others Vs. The Sunni Central Board of Waqf U.P. and others, AIR 1959 SC 198 in an appeal taken against the judgment of this Court in Sunni Central Board of Waqf Vs. Siraj-ul-Haq Khan and others, AIR 1954 All. 88. The matter pertains to Darga Hazarat Syed Salar Mahsood Ghazi situated in the Village Singha Parasi, District Bahraich. The appellants were members of Waqf Committee, Darga Sharif, Bahraich and filed a suit seeking a declaration that properties of suit were not covered by the provisions of Act, 1936. The Court considered the words "the Mutawalli of a waqf or any person interested in a waqf" under Section 5(2) of Act, 1936, and, construing the same, it held that it would mean "any person interested" in what is held to be a waqf and in order to find out so it is open to Commissioner of Waqf to find out whether a property is a waqf or not and if he includes such a property in the list of waqf, the person challenging such decision would be included within the words "any person interested in a waqf" under Section 5(2). It would be appropriate to reproduce the relevant observations in para 16 of the judgment:

"The word 'waqf' as used in this sub-section must be given the meaning attached to it by the definition in S. 3 (1) of the Act and since the appellants totally deny the existence of such a waqf they cannot be said to be interested in the 'waqf'. The argument thus presented appears prima facie to be attractive and plausible; but on a close examination of S. 5(2) it would appear clear that the words "any person interested in a waqf" cannot be construed in their strict literal meaning. If the said words are given their strict literal meaning, suits for a declaration that any transaction held by the Commissioner to be a waqf is not a waqf can never be filed by a mutawalli of a waqf or a person interested in a waqf. The scheme of this sub-section is clear. When the Central Board assumes jurisdiction over any waqf under the Act it proceeds to do so on the decision of three points by the Commissioner of Waqfs. It assumes that the property is a waqf, that it is either a Sunni or a Shia waqf, and that it is not a waqf which falls within the exceptions mentioned in S. 2. It is in respect of each one of these decisions that a suit is contemplated by S. 5, sub-s. (2). If the decision is that the property is not a waqf or that it is a waqf falling within the exceptions mentioned by S. 2, the Central Board may have occasion to bring a suit. Similarly if the decision is that the waqf is Shia and not Sunni, a Sunni Central Board may have occasion to bring a suit and vice versa. Likewise the decision that the property is a waqf may be challenged by a person who disputes the correctness of the said decision. The decision that a property does not fall within the exceptions mentioned by S. 2 may also be challenged by a person who claims that the waqf attracts the provisions of S. 2. If that be the nature of the scheme of suits contemplated by S. 5(2) it would be difficult to imagine how the mutawalli of a waqf or any person interested in a waqf can ever sue for a declaration that the transaction held by the Commissioner of the waqfs to be a waqf is not a waqf. That is why we think that the literal construction of the expression "any person interested in a waqf" would render a part of the sub-section wholly meaningless and ineffective. The legislature has definitely contemplated that the decision of the Commissioner of the Waqfs that a particular transaction is a waqf can be challenged by persons who do not accept the correctness of the said decision, and it is, this class of persons who are obviously intended to be covered by the words "any person interested in a waqf ". It is well-settled that in construing the provisions of a statute courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; an attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. In our opinion, on a reading of the provisions of the relevant sub-section as a whole there can be no doubt that the expression "any person interested in a waqf" must mean "any person interested in what is held to be a waqf ". It is only persons who are interested in a transaction which is held to be a waqf who would sue for a declaration that the decision of the Commissioner of the Waqfs in that behalf is wrong, and that the transaction in fact is not a waqf under the Act. We must accordingly hold that the relevant clause on which Mr. Dar has placed his argument in repelling the application of S. 5(2) to the present suit must not be strictly or literally construed, and that it should be taken to mean any person interested in a transaction which is held to be a waqf. On this construction the appellants are obviously interested in the suit properties which are notified to be waqf by the notification issued by respondent 1, and so the suit instituted by them would be governed by S. 5, sub-s. (2) and as such it would be barred by time unless it is saved under S. 15 of the Limitation Act." (emphasis added)

73. The above decision, however related to a matter where all the parties before the Court were Muslim. There was no question about the rights of non Muslim being affected by a decision of Commissioner of Waqf or Central Board constituted under Section 6 of Act, 1936. In other words the decision noted above covered the persons following the same religion namely, Mohammadan Law but where such a dispute is raised by another party namely a person of different religion like, Hindu, Christian etc. whether Act, 1936 at all will apply in that case or not, was not touched by the above judgment.

74. In my view, since Act, 1936 or U.P. Act, 1960 do not provide or control the right of worship of Hindu or Muslims, the rival dispute between the persons who are not Muslims, in the matter of an immovable property, whether it is waqf or not would not be governed by the provisions of Act, 1936 or U.P. Act, 1960 but it would be open to non-muslim party to stake his claim in common law by filing a civil suit without being affected in any manner by the provisions of Act, 1936 or U.P. Act, 1960.

75. In taking the above view, I find support from a Division Bench decision of Rajasthan High Court in Radhakishan and another Vs. State of Rajasthan and others, AIR 1967 Rajasthan 1. This case had arisen from the Act, 1954 and interpretation of the words "any person interested therein" appearing in Section 6(1) came to be considered. The Court held that it would not empower the Board of Waqfs to decide the question whether a particular property is a waqf property or not if such a dispute is raised by a person who is stranger to waqf. The Division Bench therein referred to Full Bench decision in Mohammad Baqar (supra) and observed that in reference to 1923 Act Patna, Lahore, Bombay and Madras High Court took a view that the District Judge has no jurisdiction to hold an inquiry into the nature of property where the alleged Mutawalli deny existence of waqf though the Allahabad Chief Court of Oudh took a different view.

76. It may be noticed hereat that in the Full Bench judgment of Chief Court of Oudh in Mohammad Baqar (supra) there was no question with respect to jurisdiction of District Judge where existence of alleged waqf is denied by a stranger and not the Mutawalli, therefore, I do not find that the decision in Radhakishan (supra) in any way can be construed as a dissenting view to the decision of Oudh Chief Court in Mohammad Baqar (supra). This is evident from what has been held by Rajasthan High Court in paras 24 and 25 reproduced as under:

"24. The present Act No. 29 of 1954 is, no doubt, an improvement on the Mussalman Wakf Act, 1923, but, in our view, this also does not empower the Board of Wakfs to decide the question whether a particular property is a wakf property or not, if such a dispute is raised by a person who is a stranger to wakf. This view is further confirmed by the provisions of section 59 of the Act which lays down that in any suit or proceeding in respect of a wakf or any wakf property by or against a stranger to the wakf or any other person, the Board may appear and plead as a party to the suit or proceeding.

25. To sum up the position, the Wakf Commissioner, though he is invested with the powers of a civil court in respect of certain matters, is not a civil court empowered to decide a disputed question whether a particular property is a wakf property or not. He has only to make a survey of wakf property existing in the State at the date of commencement of the Act and to make a report of survey to the State Government. When the State Government forwards the report to the Board of Wakfs, it becomes the duty of the Board to examine it. Thereafter the Board should publish, in the official gazette, a list of wakfs existing in the State. The law does not require the Commissioner to make a survey of wakf properties which have already become extinct as such. If he mentions in his report that certain properties were once wakf properties and can still be recovered as such, then the proper course, in our opinion for the Board is to file a suit, get them declared as wakf properties and to recover their possession. If a dispute about existence of a wakf is raised by a person who is stranger to the wakf, then it is neither fair nor proper for the Board to include such properties in the list published in the official gazette. Section 6, in our opinion, refers only to those triangular disputes which exists between the Board of Wakf, the mutawalli and a person interested in the wakf. If there is a dispute between these three on a question whether a particular property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf, it is open to any one of them to institute a suit in a civil court of competent jurisdiction. If a suit is instituted, the decision of the Civil Court will be final. If no such suit is filed by any one of them within a year from the date of publication of the list of wakfs the Court would not entertain the suit thereafter and the list of the wakf shall be final and conclusive between them. The object of Section 6 is to narrow down the dispute between the Board of Wakf, the Mutawalli and the person interested in the wakf as defined in section 3. In our view, it does not concern a dispute if it is raised by a person who is an utter stranger to the wakf. The list cannot be final and conclusive as against a non muslim who is not covered by Section 6(1) of the Act. Again, if a dispute whether a particular property is a wakf property or not, is raised by a non-muslim and a stranger to the wakf, the Board of Wakfs has no jurisdiction to decide the matter in its own favour under Section 27 and enter it in the register. The Board's decision under section 27 would not be binding against such persons. For the same reason, the Board would not be able to recover possession of the property from such persons under Section 36B of the Act."

(emphasis added)

77. The judgment of Rajasthan High Court was taken in appeal before the Apex Court in The Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan and others, AIR 1979 SC 289. Two questions raised in appeal. Firstly, the meaning of the words "any person interested therein" in Section 6(1) and (4) of Act, 1954 and secondly, power of Waqf Commissioner to make survey of waqf properties whether it includes an inquiry about certain property as a waqf property or not. The Apex Court referring to the various judgments considered by Rajasthan High Court held that they would be of no assistance in interpreting the provisions of Act, 1954. However, it was held in para 23 of the judgment that the High Court was right in determining the scope of Section 6(1) of Act, 1954 but fell in error in curtailing the ambit and scope of an inquiry by the Commissioner of Waqf under Section 4(3) and by the Board of Waqfs under Section 27 of the Act.

78. The meaning assigned by Apex Court in Section 6(1) to the words "any person interested therein" may be seen from the observations made in paras 31, 32, 33, 34, 35 and 36 of the judgment reproduced as under:

"31. That leaves us with the question as to the scope of sub-s. (1) of S. 6. All that we have to consider in this appeal is, whether if the Commissioner of Wakfs had jurisdiction to adjudicate and decide against the respondents Nos. l and 2 that the property in dispute was wakf property, the list of wakfs published by the Board of Wakfs under sub-s. (2) of S. 5 would be final and conclusive against them under S. 6(4) in case they had not filed a suit within a year from the publication of the lists. The question as to whether the respondents Nos.1 and 2 can be dispossessed, or their possession can be threatened by the Board of Wakfs by proceeding under S. 36B without filing a suit in a civil court of competent jurisdiction does not arise for our consideration."

"32. In the present case, the respondents Nos. 1 and 2 who are non Muslims, contended that they are outside the scope of sub-s. (1) of S. 6, and consequently, they have no right to file the suit contemplated by that sub-section and, therefore, the list of wakfs published by the Board of Wakfs under sub-s. (2) of S.5 cannot be final and conclusive against them under sub-s. (4) of S. 6, It was urged that respondents Nos. 1 and 2 were wholly outside the purview of sub-s. (1) of S. 6 and they must, therefore, necessarily fall outside the scope of the enquiry envisaged by sub-s. (1) of S. 4, as the provisions contained in Sections 4, 5 and 6 form part of an integrated scheme. The question that arises for consideration, therefore, is as to who are the parties that could be taken to be concerned in a proceeding under sub-s. (1) of S. 6 of the Act, and whether the list published under sub-s. (2) of S. 5 declaring certain property to be wakf property, would bind a person who is neither a mutawalli nor a person interested in the wakf."

"33. The answer to these questions must turn on the true meaning and construction of the word 'therein' in the, expression 'any person interested therein' appearing in sub-s. (1) of S. 6. In order to understand the meaning of the word 'therein' in our view, it is necessary to refer to the preceding words 'the Board or the mutawalli of the wakf'. The word 'therein' must necessarily refer to the 'wakf' which immediately precedes it. It cannot refer to the 'wakf property'. Sub-section (1) of S. 6 enumerates the persons who can file suits and also the questions in respect of which such suits can be filed. In enumerating the persons who are empowered to file suits under this provision, only the Board, the mutawalli of the wakf, and 'any person interested therein', thereby necessarily meaning any person interested in the wakf, are listed. It should be borne in mind that the Act deals with wakfs, its institutions and its properties. It would, therefore., be logical and reasonable to infer that its provisions empower only those who are interested in the wakfs to institute suits."

"34. In dealing with the question, the High Court observes:

"In our opinion, the words "any person interested therein" appearing in sub-section (1) of S. 6 mean no more than a person interested in a wakf as defined in clause (h) of S. 3 of the Act..........

It is urged by learned counsel for the petitioners that the legislature has not used in Section 6(1) the words "any person interested in a wakf" and, therefore, this meaning should not be given to the words "any person interested therein". This argument is not tenable because the words "any person interested therein" appear soon after "the mutawalli of the wakf" A and therefore the word 'therein' has been used to avoid re petition of the words "in the wakf" and not to extend the scope of the section to persons who fall outside the scope of the words "person interested in the wakf". The purpose of section 6 is to confine the dispute between the wakf Board, the mutawalli and a person interested in the wakf."

That, in our opinion, is the right construction.

35. We are fortified in that view by the decision of this Court in Sirajul Haq Khan v. The Sunni Central Board of Wakf, U.P. 1959 SCR 1287:(AIR 1959 SC 198). While construing S. 5(2) of the United Provinces Muslins Wakf Act, 1936, this Court interpreted the expression "any person interested in a wakf" as meaning 'any person interested in what is held to be a wakf', that is, in the dedication of a property for a pious, religious or charitable purpose. It will be noticed that sub-s. (1) of S.6 of the Act is based in sub-s. (2) of S. 5 of the United Provinces Muslims Wakf Act, 1936, which runs thus:

"The mutawalli of a wakf or any person interested in a wakf or a Central Board may bring a suit in a civil court of competent jurisdiction for a declaration that any transaction held by the Commissioner of Wakfs to be a wakf is not a wakf, or any transaction held or assumed by him not to be a wakf, or that a wakf held by him to pertain to a particular sect does not be- long to that sect, or that any wakf reported by such Commissioner as being subject to the provisions of this Act is exempted under section 2, or that any wakf held by him to be so exempted is subject to this Act."

The proviso to that section prescribed the period of one year's limitation, as here, to a suit by a mutawalli or a person interested in the wakf.

36. The two provisions are practically similar in content except that the language of the main enacting part has been altered in sub-s. (1) of S. 6 of the present Act and put in a proper form. In redrafting the section, the sequence, of the different clauses has been changed, therefore, for the expression "any person interested in a wakf" the legislature had to use the expression "any person interested therein". The word 'therein' appearing in sub-s. (1) of S. 6 must, therefore, mean 'any person interested in a waker' as defined in S. 3(h). The object of sub-s. (1) of S. 6 is to narrow down the dispute between the Board of Wakfs, the mutawalli and the person interested in the wakf, as defined in S. 3 (h)." (emphasis added)

79. The Apex Court having said so as noticed above quoted the findings of the Rajasthan High Court with reference to Section 6 in para 37 of the judgment and in para 38 it says that it is in agreement with the reasoning of the High Court. The answer has further been crystallized by Apex Court in paras 39 and 43 of the judgment as under:

"39. It follows that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the List. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to sub s. (1) of S. 6 is not applicable to him. In other words, the list published by the Board of Wakfs under sub-s. (2) of S. 5 scan be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises."

"43. In view of the foregoing, the right of the respondents Nos. 1 and 2 in respect of the disputed property, if at all they have any, will remain unaffected by the impugned notification. They are at liberty to bring a suit for the establishment of their right and title, if any, to the property." (emphasis added)

80. As noticed above the Apex Court also referred to Section 5(2) of Act, 1936 and observed that it is pari materia to Section 6(1) and (4) of Act, 1954.

81. The above decision of the Apex Court in Radhakishan (supra) was followed in Board of Mulim Wakfs Vs. Smt. Hadi Begum and others, AIR 1992 SC 1083 where in para 10 of the judgment, the Court briefly reproduced what was held in Radhakishan (supra) regarding the right, title and interest of a non-muslim with reference to the Waqf Act, 1954 which also contain the provisions, pari materia with Act, 1936, and held:

"The right, title and interest of a person who is non-muslim and is in possession of certain property is not put in jeopardy simply because that property is included in the list published under sub-sec. (2) of S. 5 and he is not required to file a suit in a Civil Court for declaration of his title within the period of one year and the list would not be final and conclusive against him. Sub-sec. (4) of S. 6 makes the list final and conclusive only between the Board, the mutawalli and the person interested in the wakf." (para 10) (emphasis added)

82. To the same effect is a decision of an Hon'ble Single Judge in Marawthwada Wakf Board Vs. Rajaram Ramjivan Manthri and others, AIR 2002 Bom. 144. With reference to Waqf Act, 1954, in para 19 of the judgement, it observed:

"Therefore, from the above, it is extremely clear that the respondent No. 1, who is a non-Muslim, being a Hindu, could not file a suit u/S. 6 of the Wakf Act, 1954, but he cannot be barred from filing a suit especially in view of the fact that his right, title and interest have been jeopardised in view of the notification issued by the Government of Maharashtra aforesaid."

83. Another Hon'ble Single Judge of this Court in U.P. Sunni Central Waqf Board, Lucknow Vs. State of U.P. and others, 2006(6) ADJ 331 considering Act, 1960 which contain similar provisions as that of Act, 1936, in para 9 of the judgment, observed:

"There is no dispute that the respondent No. 3 by virtue of sale deed became the owner of the property is dispute. The respondent No. 3 being non Muslim, the provisions of U.P. Muslim Waqf Act, 1960 was not applicable as held by this Court in the case of Chedda Singh and others Vs. Additional Civil Judge, Moradabad and others."

(emphasis added)

84. A similar view was taken in an earlier decision of this Court in Chedha Singh and others Vs. Additional Civil Judge, Moradabad and others, 1996 Supp. AWC 189 which has been followed in U.P. Sunni Central Waqf Board, Lucknow (supra).

85. An attempt was made to suggest that if no such suit has been filed against the Board seeking a declaration that the disputed property is not a Wakf property, the decision of Board would be final and reliance was placed on the decision of Apex Court in Tamil Nadu Wakf Board Vs. Hathija Ammal, AIR 2002 SC 402. Therein the matter under consideration was in respect to provisions of Act, 1954 and the Court referred to Section 27 thereof. However, as already discussed above, Act, 1954 was not made applicable to the State of U.P. and there is no pari materia provision like Section 27 of Act, 1954 in U.P. Act, 1960. Therefore, the aforesaid decision would not help the petitioner in any manner.

86. The above discussion this Court has made only to find out whether mere registration by Board would be sufficient to deprive a person who otherwise had no occasion to participate in proceedings before the Board for challenging that the property in dispute is not a Wakf property and if such a dispute is raised, Board is bound to have the matter decided in appropriate forum and cannot assume conclusive jurisdiction of treating disputed property as a "Wakf property" to deprive an otherwise contest or claim by any other person.

87. Here, thus, the petitioner has two obstructions. It is an admitted position that no Notification has been published by State Government, at least none was shown to the Court below or to this Court that disputed property was notified to be a Wakf property at any point of time. Secondly, once property in dispute is vested in State under Act, 1951, heavy onus lies upon Board to sustain its claim over such property else right to manage such property would vest in State or the local authority by virtue of Section 117 of Act, 1951. No apparent illegality, therefore, I find in the impugned judgment either factually or legally, hence, in my view, this writ petition deserves to be dismissed.

88. Dismissed, accordingly, with cost which I quantify to Rs. 5,000/-.

Dt. 14.08.2015

PS