Rajasthan High Court - Jaipur
Smt. Mohini Devi vs Masjid Committee on 19 September, 1989
Equivalent citations: 1990(1)WLN190
JUDGMENT D.L. Mehta, J.
1. This revision petition is directed against the order dated 30th July 1987, passed by the learned Munsif and Judicial Magistrate (East), Ajmer.
2. Plaintiff moved an application for amendment of the plaint. Defendant wanted to add para-19 which reads as under:
"That the plaintiff has instituted this suit on the basis of the judgment and decree in Civil suit No. 2 of 1951, passed by the learned District Judge, Ajmer. But the plaintiff is not competent to bring the suit on the basis of aforesaid judgment and decree passed by the learned District Judge, Ajmer, after promulgation of the Waqf Act, 1954. Hence, the suit is not maintainable,"
3. The contention of the defendant is that the suit is not maintainable as the Masjid Committee, plaintiff, is having no jurisdiction to file a suitafter coming into force the Waqf Act, 1954. fn para-1 of the plaint it has been mentioned that the plaintiff Masjid Committee was constituted by the decree of the District Judge, Ajmer, passed in Civil Suit No 2, 1951, dated 24-1-1953 for management or mosque and other properties attached to it situated in the City of Ajmer. It was further stated that in pursuance of the said decree the property was handed over to the Committee by the Custodian of Evacuee Property, Ajmer, on 1st November, 1953. The paras Nos. 1 and 2 of the plaintiff have not been denied specifically by the defendant. It has been, mentioned that the defendants are having no knowledge, short question of law is involved in this case. Whether the suit is maintainable in the absence of the Board. The other question involved is whether the Masjid Committee/Matwali can institute a suit without impleading the Waqf Board as a party.
4. Waqf Act of 1954 has been amended from time to time and it is necessary for the jeat determination of the dispute to take into, consideration the provisions of the Act of 1954 as existed at the time of the institution of the suit. Waqf Act came into force on 15th January, 1955, as far as Ajmer is concerned. It is not in dispute that the Board has been constituted by the State the provisions of the Act of 1954. It is also not in dispute that the property in question is a Waqf property.
5. Mr. Samdariya, learned Counsel for the petitioner, has invited my attention to Section-15 of the Waqf Act of 1954. Section-15 has been amended in the year 1984 by the Amending Act No. 69. Section-15 as it stood at the relevant date, provides that the Board will have the general superintendence of all waqfs in a State and the Government property shall vest in the Board established by the State. Section 15 further provides that in Board will exercise the powers under the Act of 1954 to ensure that the Waqfs under the superintendence are properly maintained, controlled of administered and the income thereof is duly applied to the object and for the purpose for which the waqfs were created or intended. Section 15 thus, clearly lays down that the Board will exercise the power of superintendence and ordinarily the waqf property will be maintained, controlled or administered by the Mutawalli or the Committee or any other authority entrusted with the duty of maintaining controlling and admistering the waqf property. Power of superintendence and power of maintaining, controlling and administering are independent of each other. In case the authority to whom the work has been entrusted or the Mutawalli to whom the waqf has been entrusted with maintaining and superintendence the Mutawalli does not perform the duty, then the Board can issue directions for the administration of the waqfs or to settle schemes of the management. The Board can remove the Mutawali and appoint a new one in place of the existing one. This goes to show that the institution of the Mutawali survives even after the creation of the Board, under the Act of 1954. Section-15 further provides that Board can institute and defend the suits and proceedings in a court of law relating to waqfs. Learned Counsel for the non-petitioner submits that it is an enabling provision, but it does not prohibit the Mutawalli to institute a suit. There may be exceptional cases where the Mutawalli in collusion with the defendant may alienate, waste or damage the property and, in such cases, it may become necessary for the Board to become a party to the litigation and the Board may direct the Mutawalli not to institute or defend the suit and, may in such circumstances, institute suit, directly of defend the suit directly.
6. Learned Counsel for the parties agree that and Section 25 of the Act application for the registration of the waqf is made by the Mutawali. This goes to show that the institution of the Mutawalli services and the Mutawalli has to perform such duties which are necessary for the management and presevation of the waqf property. Institution of a suit may be necessary for the safety of the property and preservation of the waqf property. It will not be out of place here to mention that Section-36 of the Act relating to the duties of the Mutawalli only enumerates the duties which have-been imposed on the Mutawalli under the Act of 1954. How ever, it does not take away the right, a vested right, which the Mutawalli had prior to the coming into force of the Act of 1954.
7. Section-55 of the Act of 1954 provides that a suit to obtain any of the reliefs mentioned in Section 92 of the Code of Civil Procedure, 1908, relating to any waqf, may, notwithstanding anything to the contrary contained In that section be instituted by the Board without obtaining consent referred to therein. This Section enables the Board to institute a suit relating to matter referred to in Section 92 CPC.
8. Section 59 of the Act further provides that in any suit or proceedings in respect of a waqf or any waqf property by or against a stranger to the waqf or any other person the (Waqf Commissioner) may appear and plead as party to the suit or proceedings.
9. This, it is not necessary that in every suit the Board should be a party and must be a party.
10. It will not be out of place to mention here the amended provision of the Act of 1954 Section 66E has been inserted in the Act. It provides that not with standing any thing contained in any other law for the time being in force, no suit or other legal proceeding in respect of the administration or management of a waqf, or any other matter or dispute for the determination or decision of which provisions have been made in this Act, shall be instituted in any court or Tribunal except under and in accordance with, the provisions, of this Act. Thus, Section 66-E further provides that the suit relating to the management, administration or any other dispute for the determination ox decision of which the provisions of the Aft of 1954 have been applied, can only be instituted in accordance with the provisions of the Act of 1954.
11. Mr. Samdariya appearing on behalf of the petitioner has cited before me the case of Maulvi Reja Ansari and Ors. v. Shyamlal Sah and Ors. AIR 1963 Patna 299. He has invited my attention to para 10 of the judgment which reads as under:
Mr. Asghar Hussain relled upon a Single Judge decision of the Rajasthan High Court in Shahi Jama Masjid Merta v. Kanhatya Lal Bhagat, 1973 Raj. 322 in support, of his submission that Mutawalli can bring a suit even after coming into operation of the Waqf Act, 1954. That was a suit by the Managing Committee of a mosque seeking a relief of injunction against certain alleged trespassers on the open piece of land when according to the plaintiff belonged to the mosque, There is nothing to indicate in the Rajasthan case that the property in suit was a Waqf property. In my opinion, Rajasthan decision does not help the appellants at all.
12. this Court in the case of Shahi Jama Masjid Merta v. Kanhaiya Lal Bhagat 1973 RLW 456, has held that a suit can be filed by the managing committee of the Mosque for seeking relief of injunction against the certain alleged trespassers on the open piece of land, which according to the plaintiff committee belongs to the mosque. this Court has considered the scope of Sections 55 and 57 of the Act of 1954 and held that these sections are applicable only when the matter relates to the dispute relating to the matters covered by the provisions of Section 92, CPC
13. I have considered the rival contentions of both the parties. I am of the view that the view taken by this Court should be followed, Apart from that I am of the view that the rights of Mutawalii relating to the administration, control and management of the Waqf Property have not been taken away totally/completely by the Act of 1954. If the Mutawatli and the Managing Committee io constituted does not perform the, duty faithfully or alienates, wastes or damages the property or performs or omits to perform any part of the duty which may tentamount defeating the purpose of the waqf, then the Board has a right to remove the Mutawalii and to appoint the new Mutawalii. The Board has a right also to give directions in the matter of management, control and administration of the waqf property. The power of superindence cannot be equated with the powers of manage; merit, control and administration. Where there is a power of superintendence by implication which means that power of "management, control and administration vests in the third party and the Board has a power to superintendence. The very fact that the Board will have the power of superintendence used in Section 15 of the Act of 1954, goes to show that the powers which the Mutawalli had prior to the coming into force of the Act of 1954 have been retained to a great extent. Those powers which are not inconsistent with the Act of 1954 will exist in the Mutawalis and they can exercise the same. How ever, the Board can issue directions under its powers of superintendence.
14. Though, this matter was not necessary to be decided in this revision petition as this revision petition was only relating to the question whether the trial court was justified in rejecting the application for amendment or not. How ever, to avoid the delay and to avoid the controvery, these observations have been made in the judgment. The suit was instituted in the year 1977 and the application was filed at the time of arguments in the year 1987. Thus, I am of the view that this application has been filed at a very belated stage of more than 9 years to delay the disposal of the suit
15. I do not find any force in this revision petition and the game is dismissed.
16. Record of the court below may be sent back immediately for disposal of the suit as early as possible.