Case: Board Of Muslim Wakfs, Rajasthan Vs. Radha Krishna &amp; Ors

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 wakfhowever, 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. 7, 999, - 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. 9, 999/- by effecting a second mortgage by executing the mortgage de ed 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. 19, 999/- 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. 13, 999/- by means of a registered sale deed dated July 31, 1956.The wakf Act, 1954 was extended to the State of Rajasthan on February 1, 1955. The Board of Muslim wakfs, Rajasthan was constituted by the State Government on August 6, 1962 in accordance with s. 9 and thereafter the Government appointed a Commissioner o f Wakfs under sub-s.(1) of s.4 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 ha d 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 respondent s 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. In . 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-s. (3) of s.4.On receipt of the report of the Commissioner of Wakfs forwarded to it by the State Government under sub-s. (1) of s. S, the Board of Muslim 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-s.(2) ofallowing the petition, the High Court held that the ent ire scheme orthe Wakf Act, 1954, 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 o f Wakfs appointed under sub-s.(1) of s.(4) of the Act has no jurisdiction under sub-s.(3) of s. 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 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. 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-s. (2) of s. 5 of the Act final and conclusive under sub-s. (4) of s. 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 s. 27 of the Act

Reasoning: It was really not necessary for the High Court to decide whether s. 36B of the Act was attracted or not, in the facts and circumstances of themust 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-s. (2) of s. S of the Act. We must also hold, on a construction of sub-s. (1) of s. 6 that the list of wakfs so published by the Board was not final and conclusive under sub s (4) of s. 6 against the respondents Nos. l and 2 due to their failure to bring a suit within one year as contemplated by sub s. (1) of s.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 s. 27, the Board is invested with the power to decide whether a certain property is wakf property and reads asthird 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 the 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 the 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 wakfsHigh Court, in its considered opinion, in the light of the historical background and precedents,present Act No. 29 of 1954 is, no doubt an improvement onthe 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 tois a considerable body of authority interpreting s. 10 of the Mussalman Wakf Act 1923, in favour of the view that where 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 v. Wajid Ali, (I.L.R. 52 All. 167.) Wahid Hasan v. Abdul Rahman, (I.L.R. 57 All. 754.) Syed Ali Mohammed v. Collector ff Bhagalpur, (A.I.R. 1927 Pat. 189  .) Mohammad Baqar v. Mohammed Qasim, (I.L.R. 7 Luck. 601 (F.B.)) Nanha Shah v. Abdul Hasan, (A.I.R. 1938 Pat. 137  .) and Abdul Hussain v. Mohmmad Ebrahim Riza.(I.L.R. (1 939) Nag. 564.) The general trend of opinion was that the District Judge in dealing with in application under s. 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 s. S of Charitable and Religious Trusts Act, 1920. In Abdul Hussain v. Mohmmad Riza (supra) it wasthe 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 theof a suit. (3) of s. 4 of the Act is rather unhappily worded, ofthe Wakf Act, 1954.The Wakf Act, 1954 does, in our opinion, furnish a complete machinery for the better administration and supervision of wakfs. Though(3) of s. 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 statute, it may not be permissible to refer to, for purposes of its construction, any previous legislation or decisions renderedis needless to stress that the whole purpose of the survey of wakfs by the Commissioner of Wakfs under subs. (1) of s. 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(1) of s. 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(3) of s. 4 and that by the Board of Wakfs under s. 27 of the ActIn dealing with the scope of enquiry by the Commissioner of Wakfs: under(3) of s. 4, the High Court adverts to the, . heading of Chapter II and the marginal note of(1) of s. 4. Itheading of section 4 with which this chapter started was Preliminary survey of wakfs. The use of the word Preliminary in the heading is one ofweight of authority is in favour of the view that the margin al note upended to a section cannot be used for construing the section. Lord Macnaghten in Balraj Kunwar v. Jagatpal Singh(ILR 26 All. 393 (P.C.)) 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 ofv. Ahmedbhai Umedbhai Umarbhai &Co.([1950]; S.C.R.notes in an Indian statute, as in an Act of Parliament, cannot be referred to for the purpose of construe theexplained by Lord Macnaghten in the Privy Council, marginal notes A are not part of an Act ofvery heading of Chapter II and the caption to s. 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 aact. But, on a closer examination, it is, clear that while making a survey of the existing wakfs in a State under(1) of 5. 4, the Commissioner is required by(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, i.e. 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(4) with the powers vested in a civil court under theCode 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(3)? while making a survey of existing wakfs in the Estate under(1), is not purely of an administration nature but partakes of ain character, in respect of the persons falling within the scope of(1) of s. 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(1) of s. 4, should have no power to enquire whether a particular property is wakf property or not. If we may refer to(1) of s. 4, so far as material, itState 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 thiswill 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 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 en quire 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 inn (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 orare of the opinion that the power of the Commissioner to survey wakf properties under(1) or to enquire and investigate into the several matters set out in cls. (e) to (f) of(3) cannot be curtailed by taking recourse to(5). The High Court was wholly wrong in understa nding the true implication of(5) of s. 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 th ere are clear indications in the deed of wakf as to its natur e, 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, i.e. whether it is a Shia or a Sunni wakf. In our view, sub s.(5) of s. 4 cannot be projected into(1) f or 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 s. (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(1) and (3) of s. 4 must cover the field defined by(1) of s. 6. The opening words of the sectionany 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 ....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(1) of s.4 must, in its context and setting, bear. Any other construction would, indeed, make the Actit 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. InCrawford v. Spooner([1846] 6 Moors P.C. 1.)the Judicial Committeecannot aid the legislatures defective phrasing of an Act, we cannot add and mend, and, by construction, make up deficiencies which are leftdo so would be to usurp the function of the legislation. At th e 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 theinserted a provision like sectionhe Mussalman Wakf Act, 1923 by the Mussalman Wakf ( Bombay Amendment) Act, 1935, which was in force in the States of Maharashtra and Gujarat,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 towhether a wakfthe present case, the respondents Nos. 1 and 2 who are non Muslims, contended that they are outside the scope of(1) of s. 6, and consequently, they have no right t o file the suit contemplated by thatand, therefore, the list of wakfs published by the Board of Wakfs undersubs. (2) ofS!. 5 cannot be final and conclusive against them under(4) of s.6, it was urged that respondents N os, . 1 and 2 were wholly outside the purview of(1) of s. 6 and they must, therefore, necessarily fall outside the scope of the enquiry envisaged by(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(1) of s. 6 of the Act, and whether the list published undersubs. (2) ofS 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(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 wo rd therein must necessarily refer to the wakf which immediately pre cedes it. It cannot refer to the wakf property.(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 instituten dealing with the question, the High Courtour opinion, the words "any person interested therein" appearing in(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 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 thein our opinion, is the rightare fortified in That view by the decision of this Court in Sirajul Hag Khan &ors. v. The Sunni Central Board of Wakf , U.P. &ors([1959] S. C.R. 1287.) 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(1) of s. 6 of the Act is based insubs. (2) ofs. 5 of the United Provinces Muslims Wakf Act, 1936, which runsmutawalli of a wakf or an y 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 belong 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 thisprovision to that section prescribed the period of one years limitation, as here, to a suit by a mutawalli or a person interested in thetwo provisions are practically similar in content except that the language of the main enacting part has been altered in(1) of s. 6 of the present Act and put in a proper form. In redrafting the section, the sequence, of t he 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(1) of s. 6 must, therefore, me an any person interested in a waker as defined in s. 3(h). The object of(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)In this context, the scope of s. 6 was examined by the High Court and itpurpose 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, orwhether a wakfis a Shia wakf or a Sunni wakf, then the Board or the mutawa lli 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 s uit 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 ove r 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 iswhether 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,(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 otherare in agreement with this reasoning of the Highfollows that where a stranger who is aand 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 undersubs. (2) ofs. 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 s. 27 of the Act, and observed.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 Boards decision final unless it is changed by a Civil Co urt 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 CourtIn our judgment, the High Court was clear ly in error in dealing with s. 27 or s. 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 s. 27. The observations of the High Court were, therefore, strictly n ot called for in regard to s. 27. It should have left the question open. The question may arise if and when, action under s. 27 is taken. We, therefore, refrain from expressing any opinion as to the scope of s. 27 of the Act.Likewise, the Hi gh Court went on to consider the impact of s. 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, sim ply 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