Case: Sirajul Haq Khan &amp; Others Vs. The Sunni Central Board Of Waqf,U. P. &amp; Others

have already noticed that Civil Suit No. 1 of 1940 had been instituted against the appellants with the sanction of the Advocate-General for their removal and for the settlement of a fresh scheme. The appellants were ordered to be removed by the learned trial Judge on October 16, 1941; but on appeal the decree of the trial court was set aside on March 7, 1946. It is the period between October 16, 1941, and March 7, 1946, that is sought to be excluded by the appellants under S. 15 of the Limitation Act. Mr. Dar contends that the order passed by the trial Judge on October 16, 1941, made it impossible for the appellants to file the present suit until the final decision of the appeal. By this order the appellants were told that they should not in any way interfere with the affairs of the Darga Sharif as members of the committee and should comply with the decree of the court by which they were removed from the office. It is obvious that this order cannot be construed as an order or an injunction staying the institution of the present suit. In fact the present suit is the result of the notification issued by respondent 1 on February 26, 1944, and the subsequent steps taken by it in the purported exercise of its authority under the Act. The cause of action for the suit has thus arisen subsequent to the making of the order on which Mr. Dar relies; and on the plain construction of the order it is impossible to hold that it is an order which can attract the application of S. 15 of the Limitation Act. We have already held that the relevant words used in S. 15 must be strictly construed without any consideration of equity, and so construed, we have no. doubt that the order on which Mr. Dar has placed reliance before us is wholly outside S. 51 of the Limitation Act. We would, however, like to add that this order did not even in substance create any difficulty against the institution of the present suit. The claim made by the appellants in the present suit that the properties in suit do not constitute a waqf and the declaration and injunction for which they have prayed do not infringe the earlier order even indirectly or remotely. We must, accordingly, hold that the High Court was right in taking the view that S. 15 did not apply to the present suit and that it was therefore filed beyond the period of one year prescribed by S. 5 (2) of the Act.25. That takes us to the consideration of the next preliminary objection against the competence of the suit under S. 53 of the Act. Section 53 provides that"no suit shall be instituted against a Central Board in respect of any act purporting to be done by such Central Board under colour of this Act or for any relief in respect of any waqf until the expiration of two months next after notice in writing has been delivered to the Secretary, or left at the office of such Central Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left".This section is similar to S. 80 of the Civil Procedure Code. It is conceded by Mr. Dar that if S. 53 applies to the present suit the decision of the High Court cannot be successfully challenged because the notice required by S. 53 has not been given by the appellants before the institution of the present suit. His argument, however, is that the notification issued by respondent 1 on February 26, 1944 did not refer to the Darga and offerings made by the devotees before the Darga and he contends that the present suit in respect of these properties is outside the provisions of S. 53 and cannot be held to be barred on the ground that the requisite notice had not been given by the appellants. We are not impressed by this argument. Column 1 of the notification in question sets out the name of the creator of the waqf as Shahan-e-Mughalia and the name of the waqf as Syed Salar. Mahsood Ghazi. In col. 2 the name of the mutawalli is mentioned while col. 3 describes the properties attached to the waqf. The tomb of Syed Salar Mahsood Ghazi which is the object of charity in the present case is expressly, mentioned in col. 1 and so it is futile to suggest that the tomb or Darga had not been notified as a waqf by respondent 1 under S. 5(1). In regard to the offerings we do not see how offerings could have been mentioned in the notification. They are made from time to time by the devotees who visit the Darga and by their very nature they constitute the income of the Darga. It is unreasonable to assume that offerings which would be made from year to year by the devotees should be specified in the notification issued under S. 5 (1). We must, therefore, reject the argument that any of the suit properties have not been dully notified by respondent 1. under S. 5(1) of the Act. If that be so, it was incumbent upon the appellants to have given the requisite notice under S. 53 before instituting the present suit. The requirement as to notice applies to suits against a Central Board in respect of their acts as well as to suits for any relief in respect of any waqf. It is not denied that the present suit would attract the provisions of S. 53 if the argument that the Darga and the offerings are not notified is rejected. The result is that the suit is not maintainable as a result of the appellants failure to comply with the requirements of S. 5

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Since we have reached the conclusion that the High Court was right in holding that the suit was barred under S. 5(2) and was also incompetent under S. 53 of the Act, we do not propose to decide the question as to whether the properties in dispute are waqf within the meaning of the Act. The plea of limitation under S. 5(2) as well as the plea of the bar under S. 53 are in substance preliminary objections to the maintainability or competence of the suit and we propose to deal with these objections on the basis that the properties in dispute are outside the purview of the Act as alleged by the appellants.Thus there can be no. doubt that if the one years limitation prescribed by S. 5(2) applies to the present suit it would be barred by time unless the appellants are able to invoke the assistance of S. 15 of the Limitationis 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,(2) and as such it would be barred by time unless it is saved under S. 15 of the Limitationon the pleadings there can be no. doubt that the appellants case was that the Darga and its properties no. doubt constituted a waqf under the Act, but they did not fall within the purview of the Act because they belong to the category of waqfs which are excepted by S. 2 (ii) (a) and (c). The argument based on the application of S. 2 has not been raised before us and so on a consideration of the pleadings of the appellants it would be open to respondent 1 to contend that the appellants are admittedly interested in the waqf and their suit falls within the mischief of S. 5 even if the words "any person interested in a waqf" are literally and strictly construed.We have already held that the relevant words used in S. 15 must be strictly construed without any consideration of equity, and so construed, we have no. doubt that the order on which Mr. Dar has placed reliance before us is wholly outside S. 51 of the Limitation Act. We would, however, like to add that this order did not even in substance create any difficulty against the institution of the present suit. The claim made by the appellants in the present suit that the properties in suit do not constitute a waqf and the declaration and injunction for which they have prayed do not infringe the earlier order even indirectly or remotely. We must, accordingly, hold that the High Court was right in taking the view that S. 15 did not apply to the present suit and that it was therefore filed beyond the period of one year prescribed by S. 5 (2) of theare not impressed by this argument. Column 1 of the notification in question sets out the name of the creator of the waqf as Shahan-e-Mughalia and the name of the waqf as Syed Salar. Mahsood Ghazi. In col. 2 the name of the mutawalli is mentioned while col. 3 describes the properties attached to the waqf. The tomb of Syed Salar Mahsood Ghazi which is the object of charity in the present case is expressly, mentioned in col. 1 and so it is futile to suggest that the tomb or Darga had not been notified as a waqf by respondent 1 under S. 5(1). In regard to the offerings we do not see how offerings could have been mentioned in the notification. They are made from time to time by the devotees who visit the Darga and by their very nature they constitute the income of the Darga. It is unreasonable to assume that offerings which would be made from year to year by the devotees should be specified in the notification issued under S. 5 (1). We must, therefore, reject the argument that any of the suit properties have not been dully notified by respondent 1. under S. 5(1) of the Act. If that be so, it was incumbent upon the appellants to have given the requisite notice under S. 53 before instituting the present suit. The requirement as to notice applies to suits against a Central Board in respect of their acts as well as to suits for any relief in respect of any waqf. It is not denied that the present suit would attract the provisions of S. 53 if the argument that the Darga and the offerings are not notified is rejected. The result is that the suit is not maintainable as a result of the appellants failure to comply with the requirements of S. 5