Civil Appeal No 166 of 1969
From the Judgment and order dated 4 5 1966 of the Rajasthan High Court in DB Civil Misc
Writ No 74 of 1965
M N Phadke M Qamaruddin Mrs M Qamaruddin and V M Phadke for the Appellant
section section Ray section M Jain D D Patodia and section K Jain for Respondents 1 and 2
151 Appeal set down Ex parte against RR
3 and 4
The Judgment of the Court was delivered by SEN J
This appeal by certificate is directed against the judgment of the Rajasthan High Court dated May 4 1966 holding that inclusion of the disputed property in the list of wakfs published by the Board of Muslim Wakfs Rajasthan under sub section
2 of section 5 of title is not binding on the respondents No6 1 and 2 the mortgagee purchasers and restraining the Board from taking only sleeps under section 36B of the Act for evicting them from the same
The subject matter in dispute is a two storeyed building knows as Dharamshala or Musafirkhana situate on Mirza Ismail Road at Jaipur
The building was constructed by the late Haji Mohammad Ali Khan a Sessions Judge of the erstwhile Princely State of Jaipur who owned a considerable estate on a plot of land admeasuring 5 bighas and 3 biswas obtained from the Mehakma Mensa Aliya Council with the approval of the Ruler of Jaipur under a Patta dated February 23 1886 for construction of a Haveli and Dharamshala
It appears that Haji Mohammad Ali Khan before his death in the year 1912 had executed two wills one on February 17 191 O and the other on July 1 1911 by which after making several bequests he acknowledged that he had dedicated the said property in wakf for its use as a Dharammshala and appointed his son Ehsen Ali Khan as its Mutawalli
After the death of Haji Mohammad Ali Khan there was a suit for partition of the property brought by his son Faiyaz Ali Khan against his brother Ehsari Ali Khan being original Suit No 128 of 1930 and the building was left out of partition being wakf property
It however appears that the mutawalli Ehsan Ali Khan mortgaged the property with possession with Seth Bijaylal father of respondent No 2 and Bhuramal father of respondent No 1 for Rs 7999  and executed a mortgage deed dated July 30 1944 in Their favour for the purpose or purchasing a strip of land in front of the building from the Municipal Council Jaipur and thereafter constructed verandahs on the ground floor and the first floor
For making this construction he raised a further loan of Rs 9999 by effecting a second mortgage by executing the mortgage deed dated July 7 1945 in favour of the said mortgagees
the respondents Nos 1 and 2 purchased the ground floor of the building from Ehsan Ali Khan for Rs 19999 by means of a registered sale dead dated November 23 1954
The consideration was applied towards satisfaction of the two previous mortgages
Thereafter they purchased the first floor of the said building from him for Rs 13999 by means of a registered sale deed dated July 31 1956
152 The wakf Act 1954 was extended to the State of Rajasthan on February 1 1955
The Board of Muslim wakfs Rajashthan was constituted by the State Government on August 6 1962 in accordance with section 9 and thereafter the Government appointed a Commissioner of Wakfs under sub s1 of s4 for the purpose of making survey of wakf properties existing in the State at the date of the commencement of the Act
On August 30 1962 one Shauket Ali Khan the respondent No 3 applied to the Commissioner of Wakfs alleging that the aforesaid property was wakf property and therefore its transfer by Ehsan Ali Khan who was its mutawalli in favour of the respondents Nos 1 and 2 was invalid and consequently prayed that the property be declared to be Wakf property and possession of the same be handed over to the wakf Committee
The Commissioner of Wakfs accordingly issued notice to the respondents
Nos 1 and 2 the mortgagee purchasers
In response to the notice the respondents Nos 1 and 2 appeared before the Commissioner of Wakfs on September 19 1962 and raised a preliminary objection as to the jurisdiction denying that the disputed property was wakf property and contended that the Commissioner of Wakfs had no jurisdiction to make an enquiry as to whether a particular property is wakf property or not
The Commissioner of Wakfs by his order Dated September 19 1962 over ruled the objection
Thereupon the respondents Nos 1 and 2 filled a writ petition before the Rajasthan High Court but the High Court by its order dated October 11 1962 dismissals the petition liming observing that the Commissioner had obviously no jurisdiction j to decide any question relating to the title of the respondents Nos 1 and 2 or to eject them from the property without taking recourse to a civil suit
The Commissioner of Wakfs however felt that he was not bound by these observations of the High Court since he was not served with a notice and accordingly decided to proceed with the enquiry
consequence thereof the respondents Nos 1 and 2 had to participate in the proceedings
On October 19 1962 they filed their reply before the Commissioner of Wakfs and joined issue on the question as to whether the disputed property was wakf property or not
In their reply they pleaded inter alia that the property was not a wakf and that the wills had indeed been cancelled in a suit
The Commissioner of Wakfs by his report dated December is 1964 on the basis of the evidence led before him held the disputed property to be wakf property recommended that it be recorded as such and accordingly forwarded a report to that effect to the State Government as required under sub s3 of s4
On receipt of the report of the Commissioner of Wakfs forwarded to it by the State Government under sub section
1 of section S the Board of Muslim 153 Wakfs published a notification for inclusion of the property in dispute A in the list of Wakfs existing in the State in the Rajasthan Rajpatra dated December 2 1965
Thereafter the respondents Nos  and 2 filed a writ petition in the High Court challenging the legality and validity of the proceedings taken by the Commissioner of Wakfs
It was contended that on the basis of such report the Board of Muslim Wakfs was not entitled to include their property in the list of wakfs published under sub s2 of s5
In allowing the petition the High Court held that the entire scheme or the  indicates that the Board of Wakfs jurisdiction is confined to matters of administration of the wakfs and not to adjudication of questions of title
In view it was evident that the Act did not invest the Board of Wakfs or the Commissioner of Wakfs with the power to decide the question whether a property belonged to a wakf or not and more so where a person claiming title is a stranger to the wakf
It accordingly held that a Commissioner of Wakfs appointed under sub s1 of s4 of the Act has no jurisdiction under sub s3 of section 4 to enquire whether or not a certain property is wakf property when such a dispute is raised by such a person
It further held that the object of section 6 is to narrow down the dispute between the Board of Wakfs the mutawalli and the person interested in the wakf as defined in section 3
Consequently the High Court held that the failure of a stranger to the wakf to institute a suit in a court of competent jurisdiction for a decision of such question namely whether a particular property is a wakf property or not cannot make the inclusion of such property in the list of wakfs published by the Board under sub section
2 of section 5 of the Act final and conclusive under sub section
4 of section 6 of the Act
It also held that the Board is not invested with jurisdiction to enquire into and decide the questions of title to or possession of the properties belonging to third parties under section 27 of the Act
It is argued for the appellant firstly that the words for the purpose of making a survey of wakf properties  are wide enough and confer ample power on the Commissioner to investigate and adjudicate  upon the question whether a certain property is wakf property or not during the course of his survey of
wakf properties in the State of Rajasthan and secondly the failure of the respondents Nos
l and 2 to file a suit within the time allowed by sub section
1 of section 6 of the Act makes the inclusion of the disputed property in the list of wakfs published by the Board of Wakfs under sub s2 of s5 final and conclusive
Tn support of the contentions it is urged that the word therein  in the expression any per son interested therein  appearing in sub s1 of s6 qualify title words wakf property  and therefore the expression any person interested 817SCI78 154 therein  cannot in the context in which it appears mean person interested in a wakf  as defined in section 3h of the Act as wrongly assumed by the High Court
It is therefore urged that the right of suit given under section 61 of the Act can be availed of by a person affected by the publication of the list of wakfs under sub s2 of s5 ie it includes even a stranger
In reply it is submitted on behalf of the respondents Nos 1 and 2 that the scope of section 6 is to narrow down the dispute between the Board of Wakfs the mutawalli and any person interested in the wakf as defined in section 3h
It is urged that the High Court was therefore right in holding that 6 refers only to such a dispute and cannot affect the right and title of a stranger to the wakf particularly of a person belonging to another religious denomination
The submission is that the word therein  in sub section
1 of section 6 in the context and setting in which it appears does not fit in with the words wakf property  in the collocation of words but qualifies the words the wakf  immediately presiding it
It is said that the word therein  has been used to avoid repetition of the words the wakf  and not to extend the ambit of the section to persons who fall outside the scope of the expression person interested in a wakf  as defined in s3h
It is therefore urged that the respondents Nos 1 and 2 are wholly outside the purview of s61 and therefore they must necessarily fall outside the scope of the enquiry under s41 as the provisions contained in s4 5 and 6 form part of an integrated scheme
It is pointed out that on the terms of s4 the Commissioner of Wakfs has no power  to enquire whether or not a certain property is wakf property when such dispute is raised by a stranger to the wakf
In support of the contention the language of section 4 is contrasted with that of s27 and it is said that while the Board of Wakfs has the power to hold an enquiry as to whether a particular property is wakf property or not under s27 the Commissioner of Wakfs has no power to hold such an enquiry
In order to appreciate the implications of the rival contentions it Is necessary not only to examine the scheme of the Act but also the purpose and object of the legislation
The  the Act as the preamble shows was enacted to provide for the better administration and supervision of wakfs 
The avowed object and purpose of the Act was to bring the management of Wakfs though it vests immediately in a mutawalli subject to the supervision the State
It was enacted to replace the Mussalman Wakf Act 1923 which merely provided for the submission of audited accounts by mutawallis and was found to be wanting in 155 several respects and really not of much practical value
It was found k that proceedings could be successfully defeated simply on the plea taken by the mutawalli that there was no wakf
To remove the lacunae the Mussalman Wakf Bombay Amendment Act 1935 amended the Act
The Bengal Wakf Act 1934 was enacted to create a machinery for the supervision of wakfs in Bengal
The United Provinces followed suit and the United Provinces Muslim Wakf Act 1936 was passed creating a Central Wakf Board
Similarly Bihar also passed a legislation almost on the same lines
The working of these Acts brought out the necessity for one uniform and consolidated legislation by the Center
It was with this view that the was enacted
The scheme of the Act may be briefly indicated
Section 2 makes the Act applicable to all wakfs in India except to Durgah Khawaja Saheb Ajmer
Section 3 defines certain terms and the term wakf  and the expression person interested in a wakf  have been defined as follows 3h person interested in a wakf  means any person who is entitled to receive any pecuniary or other benefits from the wakf and includes i any person who has a right to worship or to perform any religious rite in a mosque idgah imambara dargah Khangah maqbara graveyard or any other Religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf ii the wakif and any descendant of the wakif and the mutawalli
1 wakf  means the permanent dedication by a person professing Islam of any movable or irremovable property for any purpose recognised by the Muslim law as pious religious or charitable and includes i a wakf by user ii grants including mashrut ul khidmat for any purpose recognised by the Muslim law as pious religious or charitable and iiia wakf alal aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious religious or charitable and wakif  means any person making such dedication  156 The Act consists of several chapters and can conveniently be divided into three parts
The first part relates to the survey of wakfs
Chapter II is headed Survey of Wakfs 
Sub section 1 of section 4 empowers the State Government to appoint for the State by a notification a Commission of Wakfs for the purpose of making survey of wakf properties existing at the time of the commencement of the Act
Sub section 3 enjoins the Commissioner to submit his report to the State Government after making such enquiry as he may consider necessary and the report is to contain the following particulars namely a the number of wakfs in the State or as the case may be any part thereof showing the Shia Wakfs and Sunni Wakfs separately b the nature and objects of each wakf c the gross income of the property comprised in each wakf d the amount of land revenue cesses rates and taxes payable in respect of such property e the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each wakf and f such other particulars relating to each wakf as may be prescribed
 Sub section 4 enjoins that the Commissioner while making such enquiry shall have certain powers as are vested in a civil court under the Code of Civil Procedure 1908 namely summoning and examining any witness requiring the discovery and production of any document re questioning any public record from any court or office issuing commissions for the examination of any witness or accounts making any local inspection or local inspection etc
Sub section 5 of s4 runs thus 5 If during any such inquiry any dispute arises as to whether a particular wakf is a Shia wakf or Sunni wakf and there are clear indications in the deed of wakf as to its nature the dispute shall be decided on the basis of such deed
 Section 5 provides for publication of a list of wakfs and is as follows 51 on receipt of a report under sub section 3 of Section 4 the State Government shall forward a copy of the same to the Board
157 2 The Board shall examine the report forwarded to it under sub section 1 and publish in the official Gazette a list of wakfs existing in the State or as the case may be the part of the State to which the report relates and containing such particulars as may be prescribed
 Section 6 which relates to adjudication of dispute regarding wakfs B so far as material reads 61 If any question arises whether a particular property specified as wakf property in a list of wakfs published under sub section 2 of the section 5 is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be
final Provided that no such suit shall be entertained by the civil court after the expire of one year from the date of the public cation of the list of wakfs under  sub section 2 of section 5
    4 The list of wakfs published under sub section 2 of section S shall unless it is modified in pursuance of a decision of the civil court under sub section 1 be final and conclusive Chapter IIA is about the constitution of the Central Wakf Council with which we are not concerned
Chapter III provides for establishment of a Board of Wakfs and defines the nature of its duties powers and functions
This chapter also provides for certain incidental matters
Sub section 1 of section 15 provides that the general superintendence of all wakfs in a State shall vest in the Board so established for the State and it shall be the duty of the Board to ensure that the wakfs under its superintendence are properly maintained controlled and administered and the income thereof is duly applied to the objects and for the purpose for which such wakfs were created or intended
Sub section 2 enumerates the various functions of the Board
The next stage is that of registration of wakfs
That subject is dealt with in Chapter IV
Section 25 lays down that every wakf whether created before or after the commencement of the Act shall be registered at the office of the Board
Section 26 requires the Board to maintain a register of wakfs
Under section 27 the Board is invested 158 with the power to decide whether a certain property is wakf property and reads as follows 27
1 The Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not or whether a wakf is a Sunni wakf or a Shia Wakf it may after making such inquiry as it may deem fit decide the question
2 The decision of the Board on any question under sub section 1 shall unless revoked or modified by a civil court of competent jurisdiction be final
 Section 28 empowers the Board to direct a mutawalli to apply for the registration of a wakf or to supply any information regarding a wakf and the Board may itself cause the wakf to be registered or May at any time amend the register of wakfs
The third stage then arises
After completing the survey and finalising the registration of wakfs the Board which is an administrative body is empowered to supervise and administer wakf property
Chapter V deals with mutawallis and wakf accounts
This chapter provides in detail as to how mutawalli shall submit budget and tho accounts and in what manner the Board will be exercising its control over the wakf properties
Section 36A relates to transfer of immovable property of wakfs
According to this section no transfer of the wakf property is valid without the previous sanction of the Board
Section 36B empowers the Board to recover certain wakf properties transferred without the previous sanction of the Board by sending a requisition to the Collector
Chapter VI relates to the finance of tho Board
Chapter VII to judicial proceedings and Chapter VIII to miscellaneous matters
It would thus appear that the Act is a complete code dealing with the better administration and supervision of wakfs
The High Court in its considered opinion in the light of the historical background and precedents observed  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 wakf property or not if such a dispute is raised by a person who is a stranger to wakf
 There is a considerable body of authority interpreting section 10 of the Mussalman Wakf Act 1923 in favour of the view that where 159 the existence of a wakf was itself in dispute the District Judge had no jurisdiction to inquire into its existence and the matter could be settled only by instituting a regular suit
The question came up for consideration before several High Courts in India as will appear from Nasrulla Khan vs Wajid Ali 1 Wahid Hasan vs Abdul Rahman2 Syed Ali Mohammed vs Collector ff Bhagalpur3 Mohammad Baqar vs Mohammed Qasim4 Nanha Shah vs Abdul Hasan5 and Abdul Hussain vs Mohmmad Ebrahim Rizax The general trend of opinion was that the District Judge in dealing with in application under section 10 of that Act had in the absence of a clear provision in that behalf no jurisdiction to try an issue as to whether certain property was wakf property
It was pointed out that if the legislature had the intention to confer such power there would have been a provision like section S of Charitable and Religious Trusts Act 1920
In Abdul Hussain vs Mohmmad Riza supra it was observed Considering the terms of the enactment and the scope and purpose of the Act is clear that the legislature intended of income of wakf properties for the purpose of providing some control on the management of properties which are admittedly wakf
It could not have intended to include hl its scope the enquiry into the vital questions whether the disputed property is wakf property and the person in possession of it is a mutwalli which are questions of fundamental character such as could be the subject matter of a suit alone Though sub section
3 of section 4 of the Act is rather unhappily worded of the 
The does in our opinion furnish a complete machinery for the better administration and supervision of wakfs
Though sub section
3 of section 4 of the Act is rather unhappily worded it is not a sound principle of construction to interpret expressions used in one Act with reference to their use in another Act and decisions rendered with reference to construction of one Act cannot apply with reference to the provisions of another Act unless the two Acts are in pari materia
Further when there is no ambiguity in the 1 ILR 52 All 167
2 ILR 57 All
3 AIR 1927 Pat
4 ILR 7 Luck
601 FB 5 AIR 1938 Pat
6 ILR 160 statute it may not be permissible to refer to for purposes of its construction any previous legislation or decisions rendered therein
The questions that fall for determination upon the appeal are two first whether a Commissioner of Wakfs appointed under sub section
1 of section 4 of the  has the jurisdiction under sub section 3 of section 4 to enquire whether a certain property is wakf property or not when such a dispute raised by a stranger to the wakf and second if so whether the failure of such a person to institute a suit in a civil court of competent jurisdiction for decision of such question within a period of one year as provided for under sub section
1 of section 6 makes the inclusion of such property in the list of wakfs published by the Board under sub s2 of section 5 of the Act final and conclusive under sub section 4 of section 6 It is needless to stress that the whole purpose of the survey of wakfs by the Commissioner of Wakfs under sub section
1 of section 4 is to inform the Board of Wakfs as to the existence of the existing wakfs in a State in order that all such wakfs should be brought under the supervision and control of the Board of Wakfs
While the High Court was in our view right in determining the scope of sub section
1 of section 6 of the Act it was clearly in error in cur tailing the ambit and scope of an enquiry by the Commissioner of Wakfs under sub section
3 of section 4 and that by the Board of Wakfs under section 27 of the
Act In dealing with the scope of enquiry by the Commissioner of Wakfs under sub section
3 of section 4 the High Court adverts to the
heading of Chapter II and the marginal note of sub section
1 of section 4
It observes The heading of section 4 with which this chapter started was Preliminary survey of wakfs 
The use of the word Preliminary  in the heading is one of significance
The weight of authority is in favour of the view that the marginal note upended to a section cannot be used for construing the section
Lord Macnaghten in Balraj Kunwar vs Jagatpal Singh1 considered it well settled that marginal notes cannot be referred to for the purposes of construction
This Court after referring to the above case with approval said in Commissioner of Income Tax vs Ahmedbhai Umedbhai Umarbhai  Co2 Marginal notes in an Indian statute as in an Act of Parliament cannot be referred to for the purpose of construe the statute 1 ILR 26 All
393 PC 2  161 As explained by Lord Macnaghten in the Privy Council marginal notes A are not part of an Act of Parliament
The very heading of Chapter II and the caption to section 4 no doubt suggest that the Commissioner makes only a preliminary survey regarding existing wakfs and the list of wakfs prepared by him is published by the Board and neither the Commissioner nor the Board is required to make any enquiry regarding the character of the property
That is to say the making of survey is only an administrative act and not a quasi judicial act
But on a closer examination it is clear that while making a survey of the existing wakfs in a State under sub section
1 of 5 4 the Commissioner is required by sub section
3 to submit a report to the State Government in regard to the serval matters referred to in cls
a to f thereof
There may be a dispute as between the Board the mutawalli or a person interested in the wakf as regards a the existence of a wakf ie whether a particular property is wakf property b whether it is a Shia wakf or a Sunni wakf c extent of the property attached to the wakf d the nature and object of the wakf etc
While making such an enquiry the Commissioner is invested by sub section
4 with the powers vested in a civil court under the Code of Civil Procedure 1908 in respect of the summoning and examining of any witness requiring the discovery and production of any document requisitioning any public record from any court or office issuing commissions for the examination of any witness or accounts making any local inspection or local investigation etc
In view of these comprehensive provisions it is not disputed before us that the enquiry that the Commissioner makes for the purpose of submission of his report under sub section
3 while making a survey of existing wakfs in the Estate under sub section 1 is not purely of an administration nature but partakes of a quasi judicial in character in respect of the persons falling within the scope of sub section
1 of section 6
It would be illogical to hold that while making a survey of wakf properties existing in the State a Commissioner of Wakfs appointed by the State Government under sub section
1 of section 4 should have no power to enquire whether a particular property is wakf property or not
If we may refer to sub section
1 of section 4 so far as material it reads The State Government may by notification in the official Gazette appoint for the State a Commissioner of Wakfs for the purpose of making a survey of wakf properties existing in the State at the date of the commencement of this Act
 It will be clear that the words for the purpose of making a survey of wakf properties is a key to the construction of the section The 162 ordinary meaning of the word survey as given in the Random House Dictionary of English Language is to take a general or comprehensive view of or appraise as a situation 
If the Commissioner of Wakfs has the power to make a survey it is but implicit that in the exercise of such power he should enquire whether a wakf exists
The making o such an enquiry is a necessary concomitant of the power to survey
The High Court was clearly in error in observing Except sub section 5 there is nothing in section 4 or in the rules made by the State to show that the Commissioner is empowered to adjudicate on a question if one arises whether a particular property is a wakf property or not
 We are of the opinion that the power of the Commissioner to survey wakf properties under sub section
1 or to enquire and investigate into the several matters set out in cls
e to f of sub section
3 cannot be curtailed by taking recourse to Sub 5
The High Court was wholly wrong in understanding the true implication of sub section
5 of section 4
It only lays down that if during any such enquiry any dispute arises as to whether a particular wakf is a Shia wakf or a Sunni wakf and there are clear indications in the deed of wakf as to its nature the dispute shall be decided on the basis of such deed
It therefore makes the wakf deed conclusive as to the nature of the wakf ie whether it is a Shia or a Sunni wakf
In our view sub s5 of section 4 cannot be projected into sub section
1 for determining the question whether a certain property is a wakf property or not
Nor does it enter into an enquiry as to several of the matters adverted into some of the clause of sub section 3
The matter can also be viewed from another angle
If sections 4 5 and 6 are parts of an integrated scheme as asserted then it follows as a necessary corollary that the enquiry envisaged by sub sections 1 and 3 of section 4 must cover the field defined by sub section
1 of section 6
The opening words of the section are If any question arises whether a particular property specified as wakf property in a list of wakfs published under sub section 2 of section 5 is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf   They clearly envisage that the enquiry by the Commissioner is not con fined to the question as to whether a particular wakf is Shia wakf or Sunni wakf
It may also embrace within itself a dispute as to whether a wakf exists
This is a conduction which sub section
1 of s4 must in its context and setting bear
Any other construction would indeed make the Act unworkable
163 While it is true that under the guise of judicial interpretation the court cannot supply casus omissus it is equally true that the courts in construing an Act of Parliament must always try to give effect to the intention of the legislature
In Crawford vs Spooner1 the Judicial Committee said We cannot aid the legislature s defective phrasing of an Act we cannot add and mend and by construction make up deficiencies which are left there To do so would be to usurp the function of the legislation
At the same time it is well settled that in construing the provisions of a statute the course should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective
Thus an attempt must always be made to reconcile the relevant provisions so as to advance the remedy intended by the statute
It would certainly have been better if the legislature had inserted a provision like section 6 C incorporated in the Mussalman Wakf Act 1923 by the Mussalman Wakf Bombay Amendment Act 1935 which was in force in the States of Maharashtra and Gujarat namely 6 C Power of the Court to enquire 1 The court may either on its own motion or upon the application of any person claiming to have an interest in a wakf hold an enquiry in the prescribed manner act any time to ascertain i whether a wakf exists
 Failure to insert such a provision in sub
3 of section 4 however is of little consequence
As already indicated the power of the Commissioner to make a survey of existing wakf properties carries with it by necessary implication the power to enquire as to the existence of a wakf
Perhaps the legislature thought it to be a superfluity
That leaves us with the question as to the scope of sub section
1 of section 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 section
2 of 5 5 would be final and conclusive against them under section 64 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 section 36B without filing a suit in a civil court of competent jurisdiction does not arise for our consideration 1 1846 6 Moors PC 1
164 In the present case the respondents Nos 1 and 2 who are non Muslims contended that they are outside the scope of sub section
1 of section 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 section
2 of S
5 cannot be final and conclusive against them under sub section
4 of section 6 it was urged that respondents Nos 1 and 2 were wholly outside the purview of sub section
1 of section 6 and they must therefore necessarily fall outside the scope of the enquiry envisaged by sub section
1 of section 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 section
1 of section 6 of the Act and whether the list published under subs
2 of section S declaring certain property to be wakf property would bind a person who is neither a mutawalli nor a person interested in the wakf
The answer to these questions must turn on the true meaning and construction of the word therein  in the expression any person interest ted therein  appearing in sub section
1 of section 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 pre cedes it
It cannot refer to the wakf property 
Sub section 1 of section 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
In dealing with the question the High Court observes In our opinion the words any person interested therein appearing in sub section 1 of section 6 mean no more than a person interested in a wakf as defined in clause h of section 3 of the Act It is urged by learned counsel for the petitioners that the legislature has not used in section 61 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 inte 165 rested 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
We are fortified in That view by the decision of this Court in Sirajul Hag Khan  ors
vs The Sunni Central Board of Wakf UP  ors While construing section 52 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 section
1 of section 6 of the Act is based in sub section
2 of section 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 provision 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
The two provisions are practically similar in content except that the language of the main enacting part has been altered in sub section
1 of section 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 section
1 of section 6 must therefore mean any person interested in a waker  as defined in section 3h
The object of sub section
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 section 3 h 1 166 In this context the scope of section 6 was examined by the High Court and it observed The purpose of sec
6 is to confine the dispute between the Wakf Board the mutawalli and a person interested in the wakf
In other words if there is a dispute whether a particular property is a wakf property or not or whether a wakf is a Shia wakf or a Sunni wakf then the Board or the mutawalli of the wakf or a person interested in the wakf as defined in sec
3 may institute suit in a civil court of competent jurisdiction for the decision of the question
They can file such a suit within one year of the date of the publication of the list of wakfs and if no such suit is filed the list would be final and conclusive between them
The very object of the Wakf Act is to provide for better administration and supervision of wakfs and the Board has been given powers of superintendence over all wakfs which vest in the Board
This provision seems to have been made in order to avoid prolongation of triangular disputes between the Wakf Board the mutawalli and a person interested in the wakf who would be a person of the same community
It could never have been the intention of the legislature to cast a cloud on the right title or interest of persons who are not Muslims
That is if a person who is non Muslim whether he be a Christian a Hindu a Sikh a Parsi or of any other re ligneous denomination and if he is in possession of a certain property his right title and interest cannot be put in jeopardy simply because that property is included in the list published under sub sec
2 of Sec 5
The Legislature could not have meant that he should be driven to file a suit in a Civil Court for declaration of his title simply because the property in his possession is included in the list
Singularly the legislature could not have meant to curtail the period of limitation available to him under the Limitation Act and to provide that he must file a suit within a year or the list would be final and conclusive against him
In our opinion sub section 4 makes the list final and conclusive only between the Wakf Board the mutawalli and the person interested in the wakf as defined in Section 3 and to no other person
 We are in agreement with this reasoning of the High Court
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 167 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 section 1 of section 6 is not applicable to him
In other words the list published by the Board of Wakfs under sub section
2 of section S 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
Incidentally the High Court also dealt with section 27 of the Act and observed
section 27 does not seem to suggest that it empowers the Board to decide the question whether a particular property is wakf property or not if that challenge comes from a stranger who is neither mutawalli nor a person interested in the wakf but who belongs to another religious denomination and who claims a valid title and lawful possession over that property
To ac kept the respondents argument would mean that the Board would be given the powers of the Civil Court to decide such disputes between itself and strangers and thus to make the Board s decision final unless it is changed by a Civil Court of competent jurisdiction
If a dispute is raised by a non Muslim the Board cannot by simply entering the property in the register of wakfs drive him to take recourse to a Civil Court In our judgment the High Court was clearly in error in dealing with section 27 or section 36B of the Act
It appears from the writ petition field the High Court that no relief was as sought in respect of any action under section 27
The observations of the High Court were therefore strictly not called for in regard to section 27
It should have left the question open
The question may arise if and when action under section 27 is taken
We therefore refrain from expressing any opinion as to the scope of section 27 of the Act
Likewise the High Court went on to consider the impact of section 36B and observed In our opinion this section cannot apply in the case of a property which is in the hands of a stranger over whom the Board has no control under the Act simply because the Board happens to enter the property in its register
In a case like the present one where the petitioners claim their possession over the property as mortgagees from the year 1944 and fur their claim their title and possession as vendees over the same property from the year 1954 the Board of Wakfs cannot by 168 simply entering the property in the list of wakfs or registering it in the register of wakfs drive them to file a suit to establish their title or retain their possession
It cannot also seek to dispossess them from the property by resorting to section 36B
It is for the Board to file a civil suit for a declaration that the property in dispute is a wakf property and to obtain its possession
 It was really not necessary for the High Court to decide whether section 36B of the Act was attracted or not in the facts and circumstances of the case
We must accordingly held that the Commissioner of Wakfs acted within jurisdiction in holding the disputed property to be wakf property
It must therefore follow that the Board of Muslim Wakfs Rajasthan was justified in including the property in the list of wakfs published under sub section
2 of section S of the Act
We must also hold on a construction of sub section
1 of section 6 that the list of wakfs so published by the Board was not final and conclusive under sub s 4 of section 6 against the respondents Nos
l and 2 due to their failure to bring a suit within one year as contemplated by sub section 1 of section 6
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
Accordingly the order of the High Court allowing the writ petition and declaring that the inclusion of the property in dispute in the list of wakf published by the Board bf Muslim Wakfs Rajasthan under sub section
2 of section 5 of the was not binding on the respondents Nos 1 and 2 is upheld but its direct restraining the Board of Muslim Wakfs from entering the disputed property in the register of wakfs and from dispossessing the respondents Nos 1 and 2 except by way of a suit in a civil court of competent jurisdiction is set aside as it proceeds on the assumption that sections 27 and 36B of the Act are not applicable which question did not arise for its consideration
The parties are left to take recourse to their remedies according to law with advertence to the observations made above Subject to this modification the appeal fails and is dismissed
There shall he no order as to costs
PBR Appeal Dismissed


Summary:
To provide for the better administration and supervision of Wakfs the Wakfs Act 1954 sought to bring the management of wakfs under the supervision of the State
The Act envisages the appointment of a Commissioner of Wakfs for the purpose of survey of wakf properties existing at the time of the commencement of the Act
The Commissioner is enjoined to submit his report to the State Government after making such enquiries as he may consider necessary
While making enquiries the Commissioner is invested with powers as are vested in a Civil Court under the Code of Civil Procedure
Section 6 of the Act provides that if any question arises as to whether a particular property specified in the list of wakfs published under section 52 was wakf property or not and such other related matters the Board of Muslim Wakfs or the Mutawalli of the wakf or any person interested therein may institute a suit in a Civil Court for decision of the question
Respondents 1 and 2 were mortgagee purchasers of the property in dispute which was claimed to be wakf property
Respondent
No 3 in his application to the Commissioner of Wakfs alleged that the property in dispute being wakf property its transfer by the mutawalli to the respondents was invalid and prayed that the property be taken over by the wakf committee
While denying that the property in dispute was wakf property respondents 1 and 2 contended before the Commissioner that he had no jurisdiction to make an enquiry whether a particular property was wakf property or not
The Commissioner rejected these contentions and submitted a report to the State Government
On receipt of the Commissioner s report the Board of Muslim Wakfs included the property in the list of wakfs in the Stat
In the respondents  Writ Petition the High Court held i that the jurisdiction of the Board of Wakfs was confined to matters of administration of the wakfs and not to adjudication of questions of title and that the Act did not invest either the Board or the Commissioner with power to decide the question whether a property belonged to a wakf or not and therefore the Commissioner had no jurisdiction under section 43 of the Act to enquire whether or not the property was wakf property and ii that the failure of a stranger to the wakf to institute a suit in a court of competent jurisdiction within a period of one year on the question whether a particular property was wakf property or not could not make the inclusion of such property in the list of wakfs final and conclusive
149 In appeal to this Court it was contended on behalf of the appellants that i the words for the purpose of making a survey of wakf properties are wide enough to confer power on the Commissioner to investigate and adjudicate upon the question whether a particular property was or was not wakf property and ii failure of the respondents to file a suit within the time allowed by s 61 made the inclusion of the property in the list of wakfs final and conclusive
The word therein occurring in any person interested therein in section 6  1  qualifies the words wakf property and not person interested in the wakfs as wrongly assumed by the High Court
Dismissing the appeal to this Court  HELD While the High Court was right in determining the scope of section 61 it was clearly in error in curtailing the ambit and scope of enquiry by the Commissioner under section 43  
160 E 1
a The Commissioner of wakfs acted within his jurisdiction in holding the disputed property to be wakf property
168 C b The whole purpose of the survey of the wakfs by the Commissioner under section 41 is to inform the Board of Wakfs as to existence of the wakfs in the State in order that all such wakfs should be brought under the supervision and control of the Board
160 D c The words for the purpose of making a survey are the key to the construction of the section
If the Commissioner has the power to make a survey it is but implicit that in the exercise of such power he should enquire whether or not a wakf exists
The making of such an enquiry is a necessary concomitant of the power to survey
The High Court was therefore wrong in holding to the contrary
162 A Bl d It would be illogical to hold that while making a survey of wakf properties existing in the State the Commissioner of wakfs should have no power to enquire whether a particular property was wakf property or not
After making the survey the Commissioner is required to submit a report to the State Government in regard to the several matters referred to in clauses a to f thereof
There may be a dispute as between the Board the mutawalli or a person interested in the wakf as regards the existence of wakf ie whether a particular property is wakf property whether it is a Shia wakf or a Sunni wakf the extent of the property attached to the wakf the nature and object of the wakf and so on
While making such an enquiry the Commissioner is invested with the powers vested in a Civil Court under the Code of Civil Procedure 1908
In view of the comprehensive provisions contained in the Act the enquiry which the Commissioner makes is not purely of an administrative nature but partakes of a quasi judicial character in respect of persons falling within the scope of section 61
161 F C E e The power of the Commissioner to survey wakf properties or to enquire and investigate into the several matters set out in sub section 3 cannot be curtailed by taking recourse to section 4S
Sub section S only lays down that if during an enquiry any dispute arises as to whether a particular wakf is a Shia wakf or Sunni wakf and if there are clear indications in the deed of wakf as to its nature the dispute shall be decided on the basis of 150 such deed
It therefore makes the wakf deed conclusive as to the nature of the wakf Sub section 5 cannot be projected into sub section 1 determining the question whether a certain property is a wakf property or not
Nor does it enter into an enquiry as to several of the matters adverted to in some of the clauses of sub section 3
162 D E f Moreover section 6 and section 61 clearly envisage that the enquiry by the Commissioner was not confined to the question as to whether a particular wakf was a Shia Wakf or Sunni Wakf
It might also embrace a dispute is to whether a wakf existed or not
162 H 2
a Where a stranger is a non Muslim and is in possession of certain property his right
title and interest therein cannot be put in jeopardy merely because the property is included in the list of wakfs
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 section 61 is not applicable to him
In other words the list published by the Board of Wakfs under section 52 can 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
h 167 A B b The word therein occurring in section 61 after the words any person interested therein must necessarily refer to the Wakf which immediately precedes it
It cannot refer to the wakf property
Section 6  1  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 wakfs are listed
Its provisions empower only those who are interested in the wakfs to institute suits
164 E Fl Sirajul Hag Khan  Ors
vs The Sunni Central Board of Wakf UP Ors  referred to
c The word therein in section 61 must mean any person interested in a wakf as defined in section 3h
The object of the section is to narrow down the dispute between the Board of Wakfs the Mutawalli and the person interested in the wakf as defined in section 3h
165 H d The right of the respondents 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
168 E