IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No 120 of 1979 For Approval and Signature: Hon'ble MR.JUSTICE R.BALIA. ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- KACHCHH WAKF BOARD Versus KACHCHH MEMON JAMAT -------------------------------------------------------------- Appearance: MR S.M. SHAH FOR MR CH VORA for Petitioners MR P.C. KAVINA FOR MR PM THAKKAR for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE R.BALIA. Date of decision: /12/97 JUDGEMENT 1. This Second Appeal is by two of the defendants Nos. 1 and 2 in original Civil Suit No. 237 of 1970, in the Court of Joint Civil Judge, Bhuj Kutch, against the judgment and decree dated 15.10.1978 passed by Extra Assistant Judge, Kutch in Civil Regular Appeal No. 176 of 1974 affirming the judgment and decree passed by Joint Civil Judge Bhuj-Kutchchh, on 18.11.1974. The appellants are Kutch Wakf Board through its Secretary, Kutch Muslim and Education Welfare Society, a Wakf registered under the Wakf Act, 1954. 2. The facts leading to the present appeal are that respondents Nos. 2 and 3 - Sadhu Nandram Govindram and Thacker Purshottam Ganesh filed a suit as the representative suit under Order I, Rule 8 for the following reliefs: "(i) That it be declared that above mentioned suit property bearing Survey No. 917 of Bhuj shown as Karimdina alia Kamu Suleman Musafarkhana mentioned in the supplementary list of Wakfs of Kutch at Serial No. 2 in the Gujarat Government Gazette dated 6.5.1965 at page 614, is not a Wakf property and ordered to be deleted from the list of Wakfs as published on 6.5.1965 and further: (ii) To restrain def. Nos. 1 to 3 or their agents or servants from damaging, demolishing, constructing or altering the structure on the disputed land and also to restrain the defendants or their agents or servants from prohibiting plaintiffs or member of general public of any community, caste or creed from using the said property or land as Dharmashala lead to grant a perpetual injunction in legal form for the same and further: (iii) To declare that the said transfer by defendant No.3 to defendant No.2 by way of gift deed dated 16.9.1968 is not legal and void." 2. According to the assertions in the plaint, the original land bearing survey No. 917 was granted by then Maharao of Kutch, the Ex-Ruler, a Native State of Kutch under the Chhapa Lekh of Samvat year 1930 corresponding to March 1874 to one Memon Shaikh Karim bin S. Nani for the purpose of construction and to use the same as Darmashala for the use and benefit of public by and large without any reservation of any cast, creed or colour. On some of the portion of this land, some building structure was constructed and was used as Dharmashala by the general public at large without any reservation of caste, creed or colour. From the very beginning the nature of the property is the public trust property and from its inception it was not intended to be Wakf property and the provisions of Wakf Act, 1954 do not apply to this property. Under the provisions of Wakf Act, the Kutch Wakf Board published in the Government Gazette the list of Wakf properties as were existing on the commencement of the Act, 1954 in the district of Kutch on 16.7.1964. In the said list, the aforesaid property was not shown as Wakf property. However, afterwards supplementary list of Wakf properties was published on 6.5.1965 in Government Gazette in which it was shown as Haji Karim dina @ Kalu Suleman Musafir Khana as the Wakf property belonging to the defendant No.3 Kachhi Memon Zamat. The property was since inception was being used as Dharmashala but subsequently defendants Nos. 1 to 3 in collusion have changed the use of the said property and have illegally and fraudulently got suit property listed in the Wakf property. It was also pleaded that the defendant No.3 Kachhi Memon Zamat, a registered Wakf has transferred the suit property to defendant No.2 - Kutch Muslim Education and Welfare Society, another registered Wakf by a gift document dated 16.9.1968, which is illegal, void, fraudulent and without any authority. it was also pleaded that defendant No.2 is trying to demolish the building, structure of Dharmashala and wants to construct Muslim hostel for the exclusive use of Muslim students on the suit land which they have no right to use. In the aforesaid circumstances, plaintiffs averred that if defendants are allowed to change the user, plaintiffs' right to have access to the building Dharmashala for accommodation as a citizen would be infringed. Therefore, the plaintiffs had to file the suit for a declaration that the above mentioned property is not a Wakf property for the grant of permanent injunction restraining the defendants Nos. 1 to 3 or their agents or servants from damaging or constructing or changing or altering any construction on the suit property and also restraining the defendants or public at large to use the disputed property and the premises as Dharmashala. 3. Written statement was filed by defendant No.2 and present appellant No. 2 which was adopted by defendant Appellant No.1, the Kutch Wakf Board. According to the written statement the suit land was of the exclusive ownership of Shaikh Karim Din Suleman but the plea about the building or the property being used as Dharmashala was denied. It was asserted that the property was exclusively used by Muslims as Musafirkhana and was not available to be used by members of public at large. It was also denied that the property in question is a public trust property. It was asserted that property has rightly been declared as a Wakf property. It was pleaded that the property was dedicated as a Wakf property by Shaikh Karim after receiving grant from State which has been constructed by Shaikh Karim and since its construction being used by Muslims as Musafirkhana. It is not used as a public utility open for all public. Apart from denying the plaintiff's claim on merit, the defendants also pleaded that the plaintiff has no locus standi to bring this suit because plaintiffs are not Muslims and have no interest in the property in question which is a Wakf property and it was also pleaded that the plaint squarely raises a question whether the suit property is a public trust or a Wakf property, a question exclusively triable by authorities under the Bombay Public Trust Act and Civil Court has no jurisdiction to try the issue, without which plaintiffs' right to relief cannot be determined. As many as sixteen issues have been framed. Two additional issues have also been framed. The issues framed are as under: "1. Whether this Court has jurisdiction to hear this suit? 2. Whether the suit is on proper court fee stamp? 3. Whether the suit is in time? 4. Whether the plffs. have no right to file this suit? 4A. Whether the application of the Wakf Act, 1954 to the District of Kutch is discriminatory, invalid, unconstitutional and ultravires after the application of the Bombay Public Trust Act, 1950 to the District of Kutch on 1.8.1961 and as such whether it creates discrimination and inequality before the law and violates the provisions of Art. 14 and 19 of the Constitution of India? 5. Whether the suit is bad for non joinder of necessary parties as contended? 6. Whether the State Government is necessary party to this suit as contended? If yes, what is the effect of nonjoinder? 7. Whether the plaintiffs prove that the suit property was granted by Maharao of Kutch to Karimdina Suleman for the purpose of construction of Dharmshala as alleged? 8. If yes, whether the plaintiffs prove that the Dharmshala was for benefit and was to be used by public at large without any reservation of any caste, creed or colour as alleged? 9. Whether the plaintiffs prove that the suit property is a public trust property as alleged? 9A. Whether defendant No.2 proves that Seth Karimuddin Suleman had any legal right to create Wakf as contended by him? 10. Whether the defendant Nos. 1 and 2 prove that the suit property is a Wakf property as contended? 11. Whether the plaintiffs prove that the supplementary list of Wakf properties dated 6.565 is invalid, inoperative, and without jurisdiction as alleged? 12. Whether the plaintiffs prove that the transfer of the suit property by the defendant NO.3 to the defendant No.2 is illegal, invalid, fraudulent and without authority as alleged.? 13. Whether the defendant No.2 proves that he has right to change the use of the suit property as contended? 14. Whether the plaintiffs are entitled to declaration as prayed for? 15. Whether the plaintiffs are entitled to permanent injunction as prayed for?" Except Issues Nos. 4A, 9, 9A and 11, all issues were decided in favour of the plaintiff. Issue No.4A was decided against the plaintiff. Issue No. 9 was not decided as civil court had no jurisdiction to decide it. Issues No. 9A and 11 were decided against the plaintiff. The court came to the conclusion that the plaintiff has locus standi to maintain the suit and the court has jurisdiction to try the suit. In view of its findings that plaintiff has proved that suit property was granted by Maharao of Kutch for the purpose of construction of Dharmashala and the building was used by public by and large as Dharmashala without any reservation of any caste, colour or creed; defendants have failed to prove that Karim Suleman had any legal right as prayed and contended by him, defendants have failed to prove that suit property are Wakf properties as contended; and as a consequence thereof, the transfer of suit property between defendant No. 2 and 3 and change of user of property by defendant No. 2 is also illegal, decree as prayed for by the plaintiff was granted. On appeal, the appellate court affirmed the decree. Hence this appeal. 4. The following questions of law were framed at the time of admitting the appeal by this Court: "1. Whether `Lekh' Exh. 96 executed by Kutch State in favour of Karimuddin in 1874 granted the land to the grantee absolutely or whether it was a grant only for a public purpose. 2. Whether Government Notification Exh.133 is invalid and without authority. 3. Whether the transfer by defendant No.3 to defendant No.2 is valid. 4. Whether from the facts and circumstances proved in the case, Wakf by user is established. 5. Whether the State of Gujarat was a necessary party to the suit" 6. During the pendency of this appeal one of the original plaintiff respondent No.2 had died. However, both the learned counsel state that since suit was filed by two plaintiffs as representative suit under Order I, Rule 8, with the leave of Court, heirs of the estate of deceased are not required to be brought on record, and so long as one of the plaintiff is on record, the death of the other suitor shall not affect the present appeal, and fresh public notice inviting representation is not required to be issued. The appeal be heard and decided on merit. 7. In the first instance it was urged that the suit has been filed under Section 6 of the Wakf Act, 1954. The plaintiffs, who deny the existence of Wakf itself cannot be treated as persons interested in Wakf, which is necessary for locus standi of plaintiffs to maintain the suit. Thus the suit at the instance of plaintiffs is not maintainable. Reliance was placed on Board of Muslim Wakfs, Rajasthan vs. Radhakishan AIR 1979 SC 289. (Herein after referred to as Radhakishan's case). 8. To appreciate the contention it will be apposite to notice the provisions of Section 6 more particularly subsection (1) of the Act of 1954. "Disputes regarding wakfs. - (1) 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 whether a wakf specified in such list is a Shia wakf or Sunni wakf the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be final: Provided that no such suit shall be entertained by the civil court after the expiry of one year from the date of the publication of the list of wakfs under sub-section (2) of Section 5: Provided further that in the case of the list of wakfs relating to any part of the State and published or purporting to have been published before the commencement of the Wakf (Amendment) Act, 1969 (38 of 1969), such suit may be entertained by the civil court within the period of one year from such commencement. Explanation. - For the purposes of this section and Section 6-A, the expression "any person interested therein", occurring in sub-section (1) of this section and in sub-section (1) of Section 6-A, shall, in relation to any property specified as wakf property in a list of wakfs published, under sub-section (2) of Section 5, after the commencement of the Wakf (Amendment) Act, 1984, shall include also every person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4. (2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit. (3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules made thereunder. (4) The list of wakfs published under sub-section 5 shall, unless it is modified in pursuance of a decision of the civil court under sub-section (1) be final and conclusive. (5) On and from the commencement of the Wakf (Amendment) Act, 1984 in a State, no suit or other legal proceeding shall be instituted or commenced in a civil court in that State in relation to any question referred to in sub-section (1)." 9. The contention of appellants points out that modus and locus to challenge any entry in the list of Wakf properties published by the Board under Section 5(2) is prescribed by Section 6 and a suit to challenge such entry by an alien to class of suitors envisaged under Section 6 is not maintainable. On these premise the argument flourishes on the theme that locus to institute a suit for challenging entry in list published under Section 5(2) is conferred on Board or Mutawalli or `a person interested therein'. The plaintiffs in the present lis do not unquestionably fall in first two classes. In order to maintain their suit under Section 6, they must conform to genre of ` person interested therein', the key expression`therein' according to "therein' according to learned counsel refers to interest in the `Wakf' and not to interest in the property of Wakf as held in Radha Kishan's case (supra). The Explanation which was brought to get over the effect of said decision vide Wakf (Amendment) Act 1984 does not alter the position as that amendment was never brought into enforcement. Read in the background of provision and in the light of apex court pronouncement leaves no room for doubt that Section 6 is not exhaustive providing complete code of remedies to affected interest in all circumstances. It rather confines the maintainability of suit by three classes of persons mentioned in the provision to be within specified period of limitation for the one year and not beyond. But interests of other than those classes of persons, if adversely affected by such publication, their remedies remain untrammelled and uncurtailed as are available under general law. The provision prescribes mode and period of limitation for the Board, Mutawalli or person interested in Wakf to challenge correctness of such entries, by way of instituting civil suit within a period of one year from the date of publication of such list of Wakf properties or within one year of commencement of Wakfs (Amendment) Act, 1969, if such list is published prior to that. 10. While declaring that `person interested therein' in Section 6(1) must refer to Wakf, the word that immediately precedes it and not to `Wakf property', the apex court also clarified the confines within which Section 6(1) and conclusiveness of list published under Section 5(2) operates under Section 6(4) of the Act. The true ambit and scope of Section 6 was thus stated by the Court: "The word `therein' must necessarily refer to the `Wakf' which immediately precedes it. It cannot refer to the `Wakf property'. Sub section (1) of Section 6 enumerates the persons who can file suits and also the question in respect of which such suits can be filed. In enumerating the persons who can file suits under this provision, only the Board, the Mutwalli 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 provision empowers only those who are interested in the Wakf to institute suits." 11. Having explained thus far, the principle on which learned counsel for the appellant relies, the apex court spoke further about the confines of the provision keeping intact the protection of law to those who fell outside such confines: "The words `any person interested therein appear soon after `the Mutwalli of the Wakf' and therefore the words `therein' has been used to avoid repetition of words `interested in the Wakf'. The purpose of Section 6 is to confine the dispute between the Wakf Board, the Mutwalli and a person interested in the Wakf." 12. The Court went on to approve the following reasoning of High Court: "The very object of the Wakf Act is to provide 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 Mutwalli and a person interested in the Wakf who should be person of same community. It could never have been 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 is, he be a Christian, a Hindu, a Sikh, a Parsi or any other religious 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 subsection (2) of Section 5. ......................... Similarly, 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 one year or the list would be final and conclusive against him. In our opinion, subsection (4) makes the list final and conclusive only between the Wakf Board, the Mutwalli and the person interested in the Wakf as defined in Section 3 and no other person" 13. Approving the above reasoning of Rajasthan High Court in AIR 1967 Raj 1, the Court concluded: "It follows that where a stranger who is 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 a year. The special rule of limitation laid down in proviso to subsection (1) of Section 6 is not applicable to him. In other words the list published by Board of Wakfs under subsection (2) of Section 5 can be challenged by him by filing a suit for declaration of his title even after the expiry of the period of one year, if necessity of filing such suit arises." 14. The above declaration of law by the apex court put it beyond pale of doubt that a suit by a non Muslim to protect his rights in any property from being affected by publication of list of Wakfs under Section 5(2) is not hit by Section 6(1) either on the issue of locus or special period of limitation, nor finality and conclusiveness of such publication under Section 6(4) clouds his rights. 15. Viewed in this perspective, I have no hesitation in rejecting the first contention of appellants. The maintainability of representative suit by two non muslims to seek protection of their rights as member of public in the said property denying the existence of Wakf is not affected by Section 6, subject of course to other provisions of law. Even otherwise assuming the appellants to be governed by Section 6 for the sake of argument, the present suit having been filed within one year of commencement of Wakfs (Amendment) Act 1969 in respect of list published under Section 5(2) prior to such commencement, the suit is not barred even by special rule of limitation provided in proviso to Section 6(1). 16. This leads to next contention raised by Mr. Shah, learned counsel for the appellants. It was urged that since the foundation of plaintiffs claim is existence of a Dharmshala as a public Trust, to which every member of public has a right to free access to seek abode raises a question between the parties whether there exist a public charitable trust. It is not in dispute that the said property is not registered as public Trust under Bombay Public Trust Act that is to say no enquiry to that effect has been held by authorities under Bombay Public Trusts Act, 1950 (hereinafter called as Act of 1950). Under Section 80 of the Act of 1950, jurisdiction of civil court is barred to decide or deal with any question which is by or under the Act of 1950 is to be decided or dealt with by any officer or authority under the Act or in respect of which the decision or order of such officer or authority has been made final and conclusive. Under Section 79, question whether there exist a trust or not, and whether such Trust is a public trust or a property is of such public trust is to be decided by the Deputy or Asst. Charity Commissioner or the Charity Commissioner in appeal as provided by the Act. The decision of Deputy Commissioner or Asst. Charity Commissioner or Charity Commissioner in appeal as the case may be is final and conclusive unless such finding is set aside by a civil court on application or by High Court in appeal. 17. In fact issue No. 9 was framed to that effect whether the plaintiff proves that the suit property is a public trust property as alleged. The issue was left undecided by courts below on the anvil that it fell beyond its jurisdiction with reference