Allahabad High Court
M/S Rameshwar Ram Gopal vs Xth Addl. Disstt. Judge, & Others on 11 January, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - A No. - 16892 of 1995 Petitioner :- M/S Rameshwar Ram Gopal Respondent :- Xth Additional District Judge, Kanpur Nagar & Others Petitioner Counsel :- S.M. Dayal Respondent Counsel :- Rajesh Tandon,M.K. Gupta,S.C. Hon'ble Sudhir Agarwal,J.
1. The writ petition has been restored to its original number vide order of date passed on restoration application. As requested by learned counsel for the parties, I proceed to decide the matter finally at this stage.
2. Heard Sri Somesh Khare, learned counsel for the petitioner and Sri Pankaj Agarwal, learned counsel for the respondent.
3. The writ petition is directed against judgment and order dated 25th May, 1995 passed by Appellate Court i.e. 10th Additional District Judge, Kanpur Nagar allowing rent appeal no.217 of 1992 and setting aside Prescribed Authority's order dated 29th October, 1992, as a result whereof accommodation in dispute has been released in favour of applicant-respondents.
4. The dispute relates to house no.51/3 (New no.51/7) situated at Ramganj Kanpur. The property in dispute is a wakf property i.e. Wakf Nawab Mohammad Muzaffar Ali Khan and its mutwalli was Nawab Mohammad Murtaza Ali Khan, Son of Mushtafa Ali Khan. The applicant-respondents Prahlad Gupta, Rakesh Kumar Gupta and Dinesh Kumar Gupta purchased the property in dispute with alleged permission of Wakf Board vide sale deed dated 6.4.1983. It was pleaded that property is required for personal use by purchaser- landlords and therefore, they sought its release vide application filed under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972").
5. The petitioners contested application and besides other also pleaded that applicants are not owners and landlord of disputed premises, inasmuch as, being a Wakf property, it could not have been sold. There is no valid permission obtained from Wakf Board and alleged sale deed do not confer any right upon applicants to claim ownership on property in dispute. Though applicants' claim that property was sold after obtaining permission from Wakf Board, but, admittedly, no document showing such permission was placed before the Court below.
6. The Trial Court i.e. Prescribed Authority, held that applicants have no claim over property in dispute and alleged permission dated 21.1.1981, (photocopy whereof was filed), was not proved, inasmuch as, original document was not produced. Reference of alleged permission document was not found mention in the sale deed and photocopy of the document was not reliable. The release application of landlord, therefore, was rejected by Prescribed Authority. The Appellate Court, however, referring to a judgment of this court in Ram Dhani Vs. Janki Rai Singh and Ors., AIR 1972 All 553 has said that even if property of Wakf has been transferred by sale without any permission of Board, such transfer is not per se illegal or nullity, and, so long as such transfer is not set aside, it would be valid. Accordingly Appellate Court held applicants owner and landlord of property in dispute and proceeding further, recorded findings, upholding claim of personal need and hardship, and allowed appeal vide judgment dated 25.5.1995.
7. Sri Somesh Khare, learned counsel for the petitioner submitted that transfer of property, which belong to Wakf, by way of sale shall not be valid without previous sanction of Wakf Board notwithstanding anything contained in deed or instrument, if any. He further contended that it is not that any Wakf property can be sold but only such kind of property of Wakf which contains a stipulation in Wakfnama that for the interest of beneficiaries for whom Wakf is created, if necessity arise, property may be alienated by way of sale etc., and only such property can be transferred by sale and not otherwise and that too after a previous permission from Board and not. In respect to other Wakf, once a Wakf is created, it is always a Wakf and therefore, even a Mutwalli has no authority or power to transfer immoveable property constituting a wakf, to any third party. Any such sale is patently illegal and void. He submits that Appellate Court has completely failed to consider the matter on this aspect and therefore the impugned judgment is patently illegal.
8. Sri Pankaj Agarwal, learned counsel appearing for respondents, however, attempted to support judgment in dispute relying on reasons contained therein.
9. In order to determine question in issue, it would be appropriate first to consider as to what a Wakf is and what its nature is, and what is the status and authority of Mutawalli vis a vis an immoveable property constituting wakf.
10. The creation of waqf was held valid and lawful by the Prophet Mohammad. It is said that this rule was laid down by Prophet himself and handed down in succession by Ibn Abu Nafe and Ibn Omar. Omar got piece of land in Khaiber whereupon he came to the Prophet and sought his counsel to make the most pious use of it. The Prophet said "if you like you may make a waqf of it, as it is, and bestow it in benification". Omar thereupon bestowed it in charity on his relatives, the poor and slaves and in the path of God, and travellers in a way that the land itself might not be sold, nor conveyed by gift, nor inherited. It is said that waqf continued in existence for several century until the land became waste. The prophet of Islam not only declared such waqfs to be valid and lawful but also encourage their creation by dedicating his own property, the little that he had, in favour of posterity.
11. A Division Bench of Calcutta High Court in Meer Mahomed Israil Khan Vs. Sashti Churn Ghose and others, 19 ILR (Calcutta) (1892) 412 where Justice Ameer Ali answering the question as to what constitute a lawful waqf under Mussulman law observed that there must be a substantial dedication for charitable or pious purpose. His Lordship said:
"In the Mussulman system law and religion are almost synonymous expressions, and are so intermixed with each other that it is wholly impossible to dissociate the one from the other: in other words, what is religious is lawful; what is lawful is religious. The notions derived from other systems of law or religion form no index to the understanding or administration of the Mussalman law. The words "piety" and "charity" have a much wider signification in Mussalman law and religion than perhaps in any other. Every "good purpose," wujuh-ul-khair (to use the language of the Kiafaya), which God approves, or by which approach (kurbat) is attained to the Deity, is a fitting purpose for a valid and lawful wakf. A provision for one's children, for one's relations, and under the Hanafi Sunni law for one's self, is as good and pious an act as a dedication for the support of the general body of the poor. The principle is founded on the religion of Islam, and derived from the teachings of Prophet."
12. Thereafter Justice Ameer Ali proceeded to quote from "Hedaya" a commentary by "Fath-ul-kadir" said to be frequently quoted in "Fatawa-i- Alamgiri" in great detail and it would be useful to reproduce the same as under:
"I will give here a few passages from some of the best known authorities to show how utterly opposed the view taken in this case is to the Muhammadan law. The Fath-ul-kadir says--" Literally, it (the word wakf) signifies detention, . . . . in law . . . according to the Disciples, the tying up of property in such a manner that the substance (asl=corpus) does not belong to anybody else excepting God, whilst the produce is devoted to human beings, or is spent on whomsoever he [the wakif] likes; and the reason of it is that, though a desire to approach the Deity (kurbat) should form the ultimate motive of all wakfs, yet if, without such an (immediate) desire, a person were to dedicate a property in favour of the affluent (aghnia), the wakf would be valid in the same way as a wakf in favour of the indigent or for the purposes of a mosque: for, in giving to the affluent there is as much kurbat as in giving to the poor or to a mosque, and though the profit may not have been given to the poor on the extinction of the affluent [still] it is wakf and will be treated as wakf even before their extinction. This principle is founded on the reason that the motive in all wakfs is to make one's self beloved by doing good to the living in this world and to approach the Almighty in the next . . . . .
"In wakf Islam is not a condition; consequently if a Zimmi makes a wakf on his children and his posterity and gives it at the end to the indigent, it is lawful [equally with that made by a Moslem]. And it is lawful in such a case to give the usufruct conditioned for the indigent to the poor of both Moselms and Zimmis. The wakif may lawfully condition to give the usufruct solely to the poor of the Zimmis, and in that will be included Jews and Christians and Magians; or he may condition that a special body of them may get the produce . . . . whatever condition the wakif makes if it is not contrary to the Sharaa, will be lawful. And so long as the object is not sinful, the wakif may give to whomsoever he likes . . . According to Abu Yusuf the mention of perpetuity [or dedication to an object of a permanent nature] is not necessary to constitute a valid wakf, for the words wakf and sadakah conjunctively or separately imply perpetuity . . . In the Baramika it is stated that, according to Abu Yusuf, when a wakf is made in favour of specific individuals, on their extinction the profits of the wakf will be applied to the poor . . . Among the wakfs created by the Sahaba [Companions of the Prophet], . . the first is the wakf of Omar (may God be pleased with him) of his land called Samagh [at Khaibar] . . that created by Zobair bin Awwam of his house for the support of his daughter who had been divorced (by her husband); . . that of Arkam Mukhzumi, on his children of his house called Dar-ul-Islam at Safar (near Mecca), where the Prophet used to preach Islam, and where many of the disciples, among them Omar, accepted the Faith . . . Baihaki in his Khilafiat has stated upon the authority of Abu Bakr Obaidulla bin Zubair that [the Caliph] Abu Bakr (may God be pleased with him) had a house in Mecca which he bestowed in charity upon his children, and that it is still in existence . . . And Saad ibn Abi Wakkas bestowed in charity his houses in Medina and Egypt upon his children, and that wakf is still in existence, and [the Caliph] Osman (may God be pleased with him) made a wakf of Ruma, which exists until to-day, and Amr Ibn al-Aas [the Amru of European history], of his lands called Wahat in Tayef and of his houses in Mecca and Medina upon his children, and that [wakf] also is still continuing . . . According to Abu Yusuf the wakif may lawfully retain the governance of the trust, or reserve the profits for himself during his lifetime. This has been fully dealt with by Kuduri in two parts . . The jurists, Ahmed ibn-i-Abi Laila, Ibn Shabarma, Zahri, and others, agree with Abu Yusuf. Mohammed alone holds a contrary opinion . . . Abu Yusuf bases his rule upon the practice and sayings of the Prophet himself who used to eat out of the produce of the lands dedicated by him .... Another proof in support of Abu Yusuf's rule is that the meaning of wakf is to extinguish the right of property in one's self and consign it to the custody of God. Therefore, when a person reserves the whole or a portion of the profits for himself, it does not interfere with the dedication, for that also implies the approval of the Almighty and is lawful . . . For example, if a man were to dedicate a caravanserai and make a condition that he may rest in it, or a cistern and condition that he should take water from it, or a cemetery, and say that he may be buried there, all this would be lawful. [Further] our Prophet (may the blessings of God be with him) has declared that a man's providing for his subsistence is a sadakah [an act of piety or charity]. This Hadis has been substantially handed down by a large number [of people] and is authentic, and Ibn Maja states from Mikdam bin Maadi Karib that the Prophet declared that no gain of a man is so meritorious as that which he earns by the labour of his hands; and that which he provides for the maintenance and support of himself, the people of his household, his children, and his servants, is a sadakah. And Imam Nisai from Balia and he from Buhair has given the same tradition in these words:-'Whatever thou providest for thyself is a sadakah.' Ibn Haban in his Sahih states that Abu Said reports from the Prophet that any one who acquires property in a lawful manner, and provides therewith for his maintenance and for that of the other creatures of God, gives alms in the way of the Lord. . . . And Dar Kutni reports from Jabir that the Prophet (may God's blessing be with him) . . . declared that all good acts are sadakah and that a man providing subsistence for himself and his children and his belongings, and for the maintenance of his position, is giving charity in the way of God. . Tibrani has reported from Abi Imama that the Prophet of God declared that a man making a provision for his own maintenance, or of his wife, or of his kindred, or of his children, is giving sadakah. And in the Sahih of Muslim it is stated from Jabir that the Prophet told a man to make a beginning with himself and give the remainder to his kinsfolk."
13. Justice Ameer Ali further on page 434 of the report observed that the words "charitable" and "religious" must be understood from a Mussulman and not from an English point of view. His view was concurred by Justice O'Kinealy and His Lordship also observed on page 437 of the report that "it must be an endowment for religious or charitable purposes; and if we want to interpret a document of that kind, what we must naturally look to is what is really meant by the words "religious" or "charitable" among Muhammadans. As an example, we know that the words "charitable purpose" in Scotland have quite a different meaning from that in which they are used in England. And so in India, in judging of what is really meant by the words "religious" and "charitable" by a Muhammadan, we must take the view which their law takes, and not what is to be found in the English Dictionary."
14. The term "waqf" literally means "detention". The legal meaning of waqf according to Abu Hanifa, is the detention of a specific thing in the ownership of the wakif or appropriator, and devoting or appropriating of its profits or usufruct "in charity on the poor or other good objects." According to the two disciples, Abu Yusuf and Muhammad, waqf signifies the extinction of appropriator's ownership in the thing dedicated and detention of the thing in the implied ownership of God, in such a manner that its profits may revert to or be applied "for the benefit of mankind". A waqf extinguishes the right of the wakif or dedicator and transfers ownership to God. By dedication and declaration, the property in the wakif is divested and vests in the Almighty.
15. The concept of waqf in India got introduced with the establishment of Muslim rule. It appear that earlier 'Sultan' was supreme authority over the administration of waqf properties and ultimate power vested in him. There was some decentralisation of actual administration, control and supervision of waqf institutions. At the Centre, the Sadar-us-Sadar was entrusted with overall control of waqfs administration in the empire. His main work was to supervise waqfs' administration and its properties. At the provincial level, it was Sadr-e-Subha and in District, Sadre-e-Sarkar used to look after administration of waqfs. At the local level, the waqfs used to be looked after by Qazis who also looked after waqf cases. The administration of individual waqf was the responsibility of Mutawalli, which is still continuing. This kind of arrangement finds mention in detail in Fatwai Alamgiri said to be prepared under the command of Mughal Emperor Aurangzeb.
16. During the reign of Indian sub-continent by East India Company, in the territory under their command so far as it had charitable and religious institutions of Hindus and Mohammedans, they were regulated by British Government exercising visitatorial powers. In exercise of this power, the British Government enacted several laws to prevent fraud and waste, and to secure honest administration of such institutions. The British Government did not interfere with the personal laws of Hindus and Muslim like inheritance, succession, marriage and religious institutions.
17. In 1810, the general superintendence of religious and charitable endowments vested in Board of Revenue and the Board of Commissioners. Vide Bengal Regulations XIX of 1810 (The Bengal Charitable Endowment Public Building and Escheats Regulations, 1810), the Board of Revenue was put in possession of landed and other properties of charitable and religious endowments, of both Muslims and Hindus. The Regulations were obviously applicable to the area under the authority of East India Company. The said Regulations, however it appears, had no application to the area or to properties situated in Oudh for the reason that under the agreement of the East India Company with Nawab of Awadh (Lucknow), the said area of Oudh continued to be ruled by the "Nawabs" till its annexation in 1856.
18. After transfer of power from East India Company to British Government in 1857, a series of legislation came including those which were enacted with an object of proper administration of religious and charitable endowment. The Religious Endowments Act, 1863 (Act 20 of 1863) was passed and the properties relating to religious, charitable and public endowments were placed under the control of trustees, managers or superintendents. Local Committees were appointed which exercise powers of the Board of Revenue or local agents.
19. In respect to the Muslim in Oudh area, Oudh Laws Act XVIII of 1876 was enacted. Vide Section 3 thereof, the laws to be administered in the case of Mohammadans would be the same as in East Panjub. The East Punjab was governed by Punjab Laws Act IV of 1872.
20. In respect to certain specified waqfs in Husainabad area in Lucknow (Oudh), Husainabad Endowment Act, 1878 (Act 15 of 1878) was enacted.
21. In 1908, by enacting new Code of Civil Procedure, Sections 92 and 93 were incorporated for proper administration of trusts. Under these sections two or more persons having any interest in a trust could file a suit with the prior permission of Advocate General in relation to a matter regarding appointment and removal of trustees, matters relating to sale, exchange or mortgage of trust property, etc.
22. Upto 1913 a waqf was valid if the effect of the deed of wqkf was to keep the property in substance to charitable uses. In Abul Fata Mohammad Vs. Rasamaya, 22 IA 76 it was held by Privy Council, that, if the primary object of waqf was the aggrandizement of family and the gift to charity was illusory, whether from its small amount or from its uncertainty and remoteness, the waqf, for the benefit of family was invalid and no effect would be given to it. This decision caused lot of protest and dissatisfaction amongst Muslim community in India since the said decision in particular paralyzed the power of Muslims to make a settlement in favour of family, children and descendants or what is known as waqf-alal-aulad. Consequently, the matter was represented by Indian Muslims before Lord Curzon, the then Viceroy and Governor General of India canvassing that for family settlement by way of waqf from the time of Prophet Mohammad down to the present time an unbroken chain of evidence existed to show that the law of waqf-alal-aulad existed in all countries having Muslim population like Arabia, Central Asia, Persia, Afghanistan and India. It was represented that the precepts of the Prophet support family settlement amongst Muslim by way of waqf. It is said that the following precepts of the Prophet were cited:
"The apostle of God said:
"When a Mussalman bestows on his family and kindered, for the intention of rewards, it becomes alms, although he has not given to the poor, but to his family and children."
The apostle of God said:
"There is one Dinar which you have bestowed in the Road of God, and another in freeing a slave, and another in alms to the poor, and another given to your family and children; that is the greatest Dinar in point of reward which you gave to your family."
The apostle of God said:
"The most excellent Dinar which a man bestows is that which he bestows upon his own family. Omme Salma says, "I said to the Prophet, is there any good thing for me of rewards, for my bestowing on the Sons of Abu Salmas. His sons are no otherwise than mine." The Prophet said: "Then give to them, and for you are rewards of that you bestow upon them"
The apostle of God said:
"Giving alms to the poor has the reward of one alms, but that given to kindered has two rewards; one the reward of alms, the other the reward of relationship. "The Prophet of God declared that a pious offering to ones family (to provide against their getting into want) is more pious than giving alms to beggars."
23. Accepting claim of Muslims in India, Mussalman Waqf Validating Act, 1913 (Act No. 6 of 1913) (hereinafter referred to as the "1913 Act") was enacted to validate the waqf created for the benefit of members of family i.e. waqf-alal-aulad. This Act came into force on 07.03.1913. The preamble of 1913 Act shows that it was enacted to declare the rights of Muslims to make settlements of property by way of waqf in favour of their family, children and decedents. The term "waqf" was defined in Section 2 (1) as under :
"2. .......................
(1) "Waqf" means the permanent dedication by a person professing the Mussalman faith of any property for any purpose, recognized by the Mussalman law as religious, pious or charitable."
24. Section 5 of 1913 Act states that nothing therein shall affect any custom or usage whether local or prevalent among Musalman or any particular class or sect. The definition of 'Waqf' under 1913 Act recognised the concept of waqf as known in Shariyat Law.
25. As already stated, a waqf therefore is an unconditional and permanent dedication of property with implied detention in the ownership of God in such a manner that the property of the owner may be extinguished and its profit may revert to or be applied for the benefit of mankind except for purposes prohibited by Islam.
26. A waqf is distinct from Sadaqah, Hiba and trust. In Islamic Law- Personal by B.R.Verma, first published in 1940 (6th Edition published in 1986) (reprinted in 1991 by M.H.Beg and S.K.Verma) the above distinction is shown on page 630-631 of the book, as under :
Sadaqah Wakf (1)The corpus itself may be consummed.
(2)It is only a donation.
(3)The legal estate and not merely beneficial interest passes to charity to be held by trustees appointed by the donor. The trustee can dispose of the corpus itself.
(1)The income only can be sent.
(2)It is an endowment.
(3)The legal estate is transferred to God. It does not vest in the trustee or mutawalli who cannot deal with the corpus.
27. The distinction between waqf and sadaqah is that in the case of former the income only can be spent while in the case of latter the corpus of the property may be consumed.
Hiba Wakf (1)It relates to absolute interest in the subject of the gift, the donee having a right not only to spend the usufruct but also the property itself.
(2)The donee is a human being.
(3)There are no limitations as to the object for which it can be made.
(4)A hiba to an unborn person is invalid.
(1) It is only the usufruct which can be spent and the corpus cannot be disposed of except under very limited conditions.
(2)The ownership is transferred to God.
(3)It is made for the benefit of mankind.
(4)A wakf may be made in favour of a succession of unborn persons.
Trust Wakf (1)No particular motive is necessary.
(2)The founder may himself be a beneficiary.
(3)It may be for any lawful object.
(4)the property vests in the trustee.
(5)A trustee has got larger power than a mutawalli.
(6)It is not necessary that a trust maybe perpetual, irrevocable or inalienable.
(7)It results for the benefit of the founder when it is incapable of execution and the property has not been exhausted.
(1)It is generally made with a pious, charitable or religious motive.
(2)The wakf cannot reserve any benefit for himself (except to some extent under Hanafi law).
(3)The ultimate object must be some benefit of mankind.
(4)The property vests in God.
(5)A mutawalli is only a manager or superintendent.
(6)A wakf is perpetual, irrevocable and inalienable.
(7)The cypres doctrine is applied and the property may be applied to some other object.
28. Apparently, Islam is not a necessary condition for constitution of a waqf. It may be made by a Muslim or a non Muslim but the necessary condition for creation of a waqf is the object thereof. Ameer Ali in his book on Mohammedan Law (Fourth Edition) Volume I at page 200 has said "Any person of whatever creed may create wakf, but the law requires that the object for which the dedication is made should be lawful according to the creed of the dedicator as well as the Islamic doctrines. Divine approbation being essential in the constitution of a wakf, if the object for which a dedication made is sinful, either according to the laws of Islam or to the creed of dedicator, it would not be valid." Thus a non Muslim may also create a waqf for any purpose which is religious under the Mohammedan Law. But the object of waqf must be lawful, according to the religious creed of the maker as well.
29. Section 3 of 1913 Act empowered any person professing muslim faith to create a waqf in all other respects in accordance with the provisions of Muslim Law for the following among other purposes, i.e., for the maintenance and support, wholly or partially of his family, children and descendants etc.
30. 1913 Act, however, having not given retrospective effect did not remove the hardship in its entirety created by the decision of Privy Council in Abul Fata Mohammad (supra) and in some later cases it was held that 1913 Act can not be construed as validating deeds executed before 07.03.1913.
31. On 05.08.1923 the Mussalman Waqf Act, 1923 (Act No. XLII of 1923 (hereinafter referred to as "1923 Act") was enacted with the object of better management of waqf property and ensuring maintenance of proper accounts and its publication in respect of such properties. The aforesaid Act was applicable to the whole of British India at the relevant time and in 1948 the said words were substituted by the words "all the Provinces of India".
32. Section 3 of 1923 Act placed an obligation on a Mutwalli to furnish certain particulars in respect to waqf property, income and expenses etc. within a period of six months from the date of commencement of the 1923 Act to the Court within the local limits of whose jurisdiction the property of the waqf, for which the said person is mutwalli, is situated. Non compliance of Section 3 was made penal vide Section 10 of the said Act.
33. Section 10 of 1923 Act provided consequences on failure to comply with the provisions of Sections, 3, 4 and 5.
34. A question arose as to whether the Court while exercising power under Section 10 can proceed to look into the question as to whether any property which is denied to be a waqf property can be investigated and looked into so as to find out whether it is a waqf property within the meaning of Section 2(e) of the Act or not. This question came to be considered in (Syed) Ali Mohammad Vs. Collector of Bhagalpur, AIR 1927 Patna 189. The question was, application of 1923 Act in respect to property where there was a dispute whether it was a waqf property or not. The petitioner before the High Court return a notice issued by Collector including petitioner's property in the list of waqf properties stating that he was not incharge of any waqf property as defined in Section 2(e) of 1923 Act whereupon Collector referred the matter to District Judge who held the property, a waqf property. The question raised was, whether order of District Judge was within jurisdiction or not. It was held that there is no provision in the Act authorizing the Court, as defined in the Act, to determine whether any property which if denied to be a waqf property, is waqf property, within the meaning of the Act. The Act neither authorized Court to summon witnesses or to take evidence nor any procedure is prescribed for determining the question whether any property is a waqf property and no provision of appeal or revision existed, if any such decision is made. It held that the Act apply to admitted waqfs and not the properties which are denied to be the waqf properties.
35. However, this view did not find favour with a Full Bench decision of Oudh Chief Court in Mohammad Baqar and another Vs. S. Mohammad Casim and others, AIR 1932 Oudh 210 where it was held that mere denial of a property as constituting a waqf property by a person would not deprive jurisdiction to the Court to consider whether the property is a waqf property under 1923 Act or not, otherwise, it would defeat the very objective of the Act. In the majority decision, the Court said that it is a recalcitrant Mutawalli to whom the Act intends to reach and if the jurisdiction of the Court is ousted as soon as a Mutawalli who has failed to observe the provisions of the Act denies the alleged waqf that would defeat the very objective of the legislature. It was held that the application of 1923 Act does not depend upon the attitude which a Mutawalli may take with regard to origin of an alleged waqf. The Court said:
"From the definition of the word "wakf" in Cl. (e), S. 2 of the Act it is clear that a wakf of the nature described in S. 3, Mussalman Wakf Validating Act, 1913, is excluded from the operation of the Act of 1923. With a view to determine whether an alleged waqf is inside or outside the scope of the Act the Court must make some inquiry. The inquiry may be limited merely to an interpretation of the instrument creating the wakf if there is any or to the scrutinizing of the terms of an oral wakf." (page211)
36. The Court further held:
"It is true that the Act does not lay down any obligation on the Court as to the limits to which it should carry any inquiry which it may wish to make and no party is entitled to compel the Court to carry inquiry up to any particular stage. Indeed the Court may refuse to enter into any inquiry on the ground that the allegations of the parties disclose a controversy fit to be determined in a regular suit, and this, in my judgment, explains the absence of any special rule of procedure. The Court is invested with a discretion but it cannot, in my opinion, refuse to look into the merits of the case and stay its hands on the sole ground that the alleged mutawalli does not admit the alleged wakf." (page 213)
37. The next legislation is Mussalman Waqf Validating Act (XXIII) of 1930 which made 1913 Act applicable to waqfs created before the commencement of 1913 Act with the rider that the transactions already completed in respect to right, title, obligations, liability etc. shall not be affected in any manner.
38. Then came United Provinces Muslim Waqfs Act, 1936. (Act No. 13 of 1936) (hereinafter referred to as "Act, 1936") published in U.P. Gazette dated 20.03.1937. The above enactment was made for the better governance, administration and supervision of certain classes of Muslim waqf in the United Provinces of Agra and Oudh.
39. Section 1(2) of Act, 1936 enforced only Sections 2 to 4 at once and the rest of the Act was to come into force on such date as the local Government by notification in the gazette may appoint in this behalf. Sections 5 to 71 of the said Act came into force on 01.07.1941vide notification dated 20.06.1941 published in Government Gazette of the United Provinces Vol. LXIII, No. XXVI, Part-1, page 311 dated 20.06.1941.
40. The reason for delay in notification giving effect to Sections 5 to 71 of 1936 Act came to be noticed in Badrul Islam Vs. The Sunni Central Board of Waqf, U.P. Lucknow, AIR 1954 Allahabad 459 in para 8 of the judgement as under:
"It is true that the provisions of Ss. 5 to 71 of the Act did not come in force till some time in 1941. This fact has no bearing because it appears that the late enforcement of these provisions was due to the fact that what was provided by these provisions could not have been given effect to till the Central Board had found on investigation through proper agency the waqfs which were subject to the Act. It was no use enforcing these provisions which could not have been given effect to. It was for this reason that these sections were later enforced."
41. It is said that the Commissioner of Waqf made survey under Section 4 and submitted his report. The Boards proceeded further by issuing notifications in respect to Sunni Waqfs on 26.02.1944 and in respect of Shia Waqfs on 15.01.1954 published in the gazette dated 23.01.1954.
42. Section 2 of 1936 Act provided for applicability of the Act to certain category of waqfs and inapplicability to some other category of waqfs. The Schedule referred to in Section 2(2)(iii) of 1936 Act is as under :
1. Waqfs governed by Act XV of 1878.
2. Wazir Begam Trust, Lucknow.
3. Agha Abbu Sahib Trust, Lucknow.
4. Shah Najaf Trust, King's side, Lucknow, and Queen's side, Lucknow.
5. Kazmain Trust, Lucknow.
43. A careful reading of Act, 1936 as also all the earlier enactments make it very clear that neither they create a waqf nor diminish or terminate a waqf nor affect a waqf in any other manner. On the contrary, the provisions have been made only to provide a statutory body for the better governance, administration and supervision of the waqfs to which the said Act apply. Further vide Section 2(1) of Act, 1936 though it applies to all waqfs, whether created before the commencement of the Act or thereafter, if any part of the property of which waqf is situate in the United provinces but by virtue of Sub-section (2) of Section 2 certain classes of waqfs have been excluded. The exclusion under Sub-section (2) of Section 2 of 1936 Act is specific and has been categorized with precision. It would mean that only to the extent the waqfs are excluded by virtue of sub-section (2) of Section 2 all other waqfs, if a waqf validly created, would be governed by 1936 Act.
44. The term 'Waqf' under 1936 Act was also defined as a permanent dedication or grant of any property for any purposes recognized by the Musalman law or usage as religious, pious or charitable including waqf by user where no deed of waqf is traceable.
45. However, a cumulative reading of the entire 1936 Act shows that it does not govern the right of worship of Hindus or Muslims. as the case may be. The object of enactment is to provide better governance and administration in supervision of certain classes of Muslim Waqfs. The Waqfs to which the aforesaid Act applies are to be supervised and maintained by the Central Boards, namely, Shia Central or Sunni Central Board, as the case may be, constituted under Section 6 of the said Act.
46. In 1954, the Parliament enacted Waqf Act, 1954 (Act XXIX of 1954) (hereinafter referred to as '1954 Act'). The aforesaid Act though extended to whole of India except the State of Jammu and Kashmir but proviso to Section 1(3) thereof provides for the State of U.P., Bihar and West Bengal as under :
"Provided that in respect of any of the States of Bihar, Uttar Pradesh and West Bengal, no such notification shall be issued except on the recommendation of the State Government concerned."
47. Consequently, 1954 Act did not apply to the State of U.P. since the State of U.P. had its own Act of 1936.
48. The State legislature enacted U.P. Muslim Waqfs Act 1960 (U.P. Act No.XVI of 1960) (hereinafter referred to '1960 Act'). This U.P. Act, 1960 received assent of the President of India on 27th August, 1960 and was published in U.P. Gazette Extraordinary on 3rd September, 1960. Vide Section 1(3) of 1960 Act, it came into force at once. Section 2 of 1960 Act provides for the application of the Act and sub-section (1) thereof reads as under :
"2. Application of the Act.-(1) Save as herein otherwise specifically stated, this Act shall apply to all waqfs, whether created before or after the commencement of this Act, any part of the property comprised in which it situate in Uttar Pradesh, and to all the waqfs which at the time of the coming into force of this act were the superintendence of the Sunni Central Board or the Shia Central Board constituted under the U.P. Muslim Waqfs Act, 1936 (U.P. Act XIII of 1936)."
49. Vide Section 85 (2) of 1960 Act, 1936 Act as well as Husainabad Endowment Act, 1878 were repealed. Some more enactments were repealed by insertion of Section 11 of U.P. Act No.28 of 1971 whereby the following was inserted in Section 85(2) of 1960 Act :
"The following enactments are also hereby repealed in their application to any waqf to which this Act applies :
(1) the Bengal Charitable Endoments, Public Buildings and Escheats Regulation, 1810 (Act XIX of 1810) ; (2) the Religious Endoments Act, 1863 (Act XX of 1863) ;
(3) the Charitable Endowments Act, 1890 (Act XX of 1890) ;
(4) the Charitable and Religious Trusts Act, 190 (Act XIV of 1920):"
50. Section 3(1), (2), (5), (11) and (12) define "beneficiary", "Board", "Mutawalli", "Wakf" and "Wakf property", and read as under:
"beneficiary" means a person or object for whose benefit a wakf is created and includes religious, pious or charitable objects and any other object of public utility established for the benefit of the Muslim community or any sect thereof."
"Board" means the Sunni Central Board or the Shia Central Board constituted under this Act."
"Mutawalli", means any person appointed either verbally or under any deed or instrument by which a wakf, has been created or by a competent authority to be the mutawalli of a wakf, and includes any naib-mutawalli, khadim, majawar, sajjadannishin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person or Committee for the time being managing or administering any wakf property as such."
"Wakf" means the permanent dedication or grant of any property for any purpose recognized by the Muslim Law or usage as religious, pious or charitable, and includes wakfs-alal-aulad to the extent to which the property is dedicated or granted for any such purpose as aforesaid and wakf by user; and "wakif" means the person who makes such dedication or grant."
"Wakf property" includes offerings made at a shrine or tomb or imambara."
51. At this stage this Court may also look into the authority, power and status of Mutwalli. In Shanker Das Vs. Said Ahmad (1884) P.R. No.153 of 1884 Lahore High Court considered the rights of Mutawalli of a mosque and observed:
"We are of the opinion that though theoretically wakf property belongs to no human owner, nevertheless a mosque, as a concrete example of wakf, is an institution, and its possession is legally maintained by its lawful guardian for the time being: in virtue of his position, the guardian can resist trespass, recover debts, make purchases and mortgages all in virtue of the right which resides in the institution. In the same way we think the mosque, as an institution, might acquire an easement by prescription; and that being so, we cannot think of any rule or principle by which we could deny to the mosque (as an institution) the same right of preventing strangers approaching its walls by the exercise of a right of pre-emption, as other house-holders have. The object of the right of pre-emption is to secure the cohesion of families, and obviate the inconvenience of a mixed or alien neighbourhood among private house-holders. Now it can hardly be denied that exactly the same convenience, which results to a private house from the exercise of the right may result also to a mosque.
"We have no hesitation in deciding, on this principle, that the mosque as an institution has practically proprietary rights exercised through the guardian, and that one of the rights is to claim, on the ground of vicinage a right of pre-emption in the case of sales of adjoining properties."
52. This has been followed in Jindu Ram Vs. Hussain Baksh & Anr. AIR 1914 Lahore 444 where the Court observed:
"......all that is necessary for him to establish is that he is the sole guardian and manager of the mosque and of the property appertaining thereto; that the legal ownership in the mosque and the property attached does not vest in any other person; and that he alone deals and is entitled to deal with the outside world on behalf and for the benefit of the mosque in all its legal relation. It is in this sense that the muttawali of a mosque or the manager of a Hindu religious institution by whatever name he may be called, can be appropriately said to be "a person whose immovable property," though it is not his private property, clothes him with a right of pre-emption regarding property contiguous to the mosque or temple, as the case may be, under clause seventhly of S. 13(1) Punjab Pre-emption Act."
53. In Wahid Ali & another Vs. Mahboob ali Khan AIR 1935 Oudh 425, the Court held that a Muslim Wakf is not a trust and a Mutwalli cannot be said to be trustee. This Court relied on two judgments of Privy Council in Vidya Varuthi Thirtha Vs. Balusami Ayyar AIR 1922 PC 123 and Abdur Rahim Vs. Narayan Das Aurora AIR 1923 PC 44 and also pointed out that contrary and otherwise view taken by the Bombay High Court in Dattagiri Vs. Dattatraya (1904) ILR 27 Bom 236; Allahabad High Court in Behari Lal Vs. Muhammad Muttaki (1898) 20 All 482 and Calcutta High Court in Nilmony Singh Vs. Jagabandhu Roy (1896) 23 Cal 536 wherein the persons holding properties generally for Hindu or Mohammadan religious purposes were treated as trustee were dissented by Privy Council. It held that a Muslim Wakf in which the property is vested in God, the Mutwalli has no power of alienation and he cannot be compared with a Mahant of a Hindu religious endowment.
54. With respect to position of 'Mutawalli' and 'sajjadanashin', also the Apex Court says in Faqruddin (Supra) in para 36:
"It is beyond any doubt or dispute that a Mutawalli is the temporal head. He is the manager of the property. Office of Sajjadanashin, however, is a spiritual office. It has to be held by a wise person. He must be fit for holding the office."
55. With respect to a waqf, the Court considered as to who can file a suit to recover possession of a waqf and in para 55 and 58 held as under:
"55. It may further be true that the land in question were not Wakf lands but `Wakf Aulad'. Indisputably, however, both Wakf land as also the land in question are under the management of Mutawalli. He, apart from the Wakf land, holds the land in suit on behalf of the beneficiaries. The present appellants are also beneficiaries of the Wakf. If the right to recover possession must vest in a Mutawalli and if by reason of his status of `Matmi', Tajuddin did not become a Mutawalli, which declaration in his favour must be held to have been legally made by the High Court, the respondents relying on or on the basis of the purported Wills executed in their favour cannot claim independent right to recover possession."
"58. The said principle was applied in a case of Debendra Nath Mitra Majumdar v. Sheik Safatulla AIR 1927 Cal 130, stating:
"That the right of the plaintiff to hold the properties of the wakf is a right appurtenant to his office as the Mutwalli cannot be disputed : Gnanasambandha Pandara Sannadhi v. Velu Pandara (1899) 23 Mad. 271."
55. The above authorities leave no manner of doubt that a Mutawalli is not owner of the property and has no power of alienation.
57. Section 49-A and 49-B were substituted by U.P. Act 28 of 1971 and relevant part thereof read as under:
"49-A Transfer of immovable property of wakfs.- Notwithstanding anything contained in the deed or instrument, if any, by which the wakf has been created, no transfer by way of-
(i) sale, gift, mortgage or exchange ; or
(ii) lease for a period exceeding three years in the case of agricultural land, or for a period exceeding one year in the case of non-agricultural land or building-
of any immovable property of the wakf shall be valid without the previous sanction of the Board."
49-B. Recovery of wakf property transferred in contravention of Section 49-A.-
(1) If the Board is satisfied after making an inquiry in such manner as may be prescribed that any immovable property entered as property of a wakf in the register of wakfs maintained under Section 30, has been transferred without the previous sanction of the Board in contravention of the provisions of Section 49-A, it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it.
(2)On receipt of a requisition under sub-section (1), the Collector shall pass an order direction the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order.
...."
58. The statute, therefore, lays down a complete embargo on transfer of immovable property of wakf without previous sanction of Board. The power of getting the property back if transferred in contravention of Section 49-A conferred upon Board leaves no manner of doubt that the import of Section 49A is obligatory and mandatory. The violation thereof makes the transaction wholly illegal and unauthorised.
59. A Mutwalli, being not owner hence not competent to alienate a property constituting wakf except of a limited category of wakfs. Generally, a wakif of immoveable property as and when make wakf, it is immediately become the property of almighty of which Wakif ceases to have any authority and that being so, even a Mutwalli cannot have any right or authority to act in a manner so as to change nature of wakf by itself. However, in respect to such category of wakf, where the Wakif has created wakf with certain conditions etc., for example Wakf alal aulad, where wakf is created for benefit of member of family or individual etc., if an stipulation has been made that wakf property, if required for benefit of person for whose purpose aforesaid wakf has been created need to be sell out or otherwise alienated, the same would be permissible but it will not be valid unless a previous permission of Board is obtained.
60. The purpose of previous permission contained in Section 49A is that wakf property may not be misused by Mutwallis. The Board constituted under Uttar Pradesh Muslim Wakfs Act, 1960 is for the purpose of maintenance and management of wakfs in the State and to protect wakf property from mismanagement, misappropriation, misfeasance etc. It is for this reason in respect to such property constituting wakf, which is liable to be transferred in terms of stipulations contained in document creating wakf, a previous permission is mandatory but where wakf property is in-alienable, even previous permission will not permit transfer of such property of wakf.
61. A bare perusal of decision in Ram Dhani Vs. Janki Rai Singh and Ors. AIR 1972 All 553 relied by lower Apellate Court shows that same has no application to the issue which has arisen in the present case and reliance thereon is totally misplaced and misconceived. There was no question of provision of Section 49A, which came to be substituted in Act, 1960 vide U.P. Act No.28 of 1971. The second appeal up for consideration before this Court itself was of 1964. Moreover, observations made by Court in para 7 itself shows that Mutwalli had no right to execute a lease of permanent character unless a permission of wakf board was obtained.
62. Be that as it may, a transfer of wakf property by way of sale, gift etc. would result in abolishing and extinguishing its nature of a wakf and such right is not contemplated by Act, 1960 which itself was enacted only for the purpose of better governance, administration and supervision of certain class of wakf in U.P. and not for extinguishing or abolishing the very nature of the wakf property in one or the other manner.
63. One more aspect is that the Court in Ram Dhani (supra) had no occasion to consider effect of the words "previous permission of the Board". In Section 49A the condition imposed in order to make a transfer of immoveable property of a wakf valid is that the previous permission of the Board is obtained. When a law require something to be done in a particular manner, the same has to be done in that way alone and not otherwise, else every other procedure is void ab initio. The principle was recognized in Nazir Ahmad Vs. King-Emperor AIR 1936 PC 253 and, thereafter it has been reiterated and followed consistently by the Apex Court in a catena of judgements, which we do not propose to refer all but would like to refer a few recent one.
64. In Dhananjaya Reddy Vs. State of Karnataka 2001 (4) SCC 9 in para 23 of the judgment the Court held :
"It is a settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all."
65. In Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala 2002 (1) SCC 633, it was held :
"It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself."
66. The judgments in Anjum M.H. Ghaswala (supra) and Dhananjaya Reddy (supra) laying down the aforesaid principle have been followed in Captain Sube Singh & others Vs. Lt. Governor of Delhi & others 2004 (6) SCC 440.
67. In Competent Authority Vs. Barangore Jute Factory & others 2005 (13) SCC 477, it was held :
"It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning."
68. In State of Jharkhand & others Vs. Ambay Cements & another 2005 (1) SCC 368 in para 26 of the judgment, the Court held :
"It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way."
69. In effect a similar question was considered by Division Bench of this Court [in which I was also a member with Hon'ble S.R. Alam, J., (as His Lordship then was)] in Daya Shankar Singh Vs. State of U.P. and others, 2008(2) ESC 1220 and this Court has observed:
"A modification, amendment etc., therefore, is permissible by exercising the power in the like manner and subject to like sanction and conditions in which the main provision was made initially. Since, Staff Regulations were framed admittedly with the previous sanction of the State Government and by publication in the official Gazette, same can be amended only following the same procedure and not otherwise. Therefore, the proposal/resolution passed by the Board of Directors, UPSWC by no stretch of imagination can be said to have the effect of either amending Regulation 12 of Staff Regulations or to bind UPSWC and its employees to be governed by such resolution/proposal which are inconsistent with the existing provisions contained in Staff Regulations."
70. In the present case, first of all, it was to be necessary to be seen whether wakf was such which permits or contain stipulation alienation of its property. Only if such a condition is provided in the Wakfnama, its transfer could have been permitted and not otherwise. Mutwalli, in absence of any such condition, is wholly incompetent to transfer a property of wakf to anyone else. Having said so, once it finds that property is alienable, only in such case the Court shall proceed to find out whether previous consent or permission of Board has been obtained or not. For the purpose of proving consent or permission by the Board, document granting such sanction by Board is the only evidence and there cannot be any assumption on this aspect. A transfer of property of wakf unless a previous sanction is shown shall be invalid. That is the declaration by law and that too by a provision which commences with non substantive clause. In my view, this provision is mandatory. Its compliance has to be shown without any ambiguity.
71. In the present case, courts below have clearly held that the document granting permission was not proved. Only photocopy was furnished and a photocopy per se is not an admissible 'evidence' unless proved. That being so, it cannot be said that property in dispute stood transferred to respondents-applicants at any point of time in accordance with law so as to confer any right of ownership upon them.
72. In view of the above, it cannot be doubted that if previous permission is not obtained, as contemplated in Section 49-A read in the light of consequences provided in Section 49-B of Act, 1960, the document is void ab initio and nullity in the eyes of law.
73. Since the matter has not been considered by Appellate Court in the light of discussions made above, the impugned judgment cannot sustain and the matter need be remanded to the court below.
74. In the result the writ petition is allowed. The impugned appellate judgment dated 25th May, 1995 passed by 10th Additional District Judge, Kanpur Nagar is set aside. The matter is remanded to the Appellate Court to decide appeal afresh in the light of the observations made above. The Appellate Court is also directed to decide the appeal expeditiously, but in any case, within one year from the date of production of a certified copy of this order before it, subject to other business of the Court.
75. No costs.
Order Date :- 11.1.2013 KA Court No. - 7 Case :- WRIT - A No. - 16892 of 1995 Petitioner :- M/S Rameshwar Ram Gopal Respondent :- Xth Addl. District Judge, & Others Petitioner Counsel :- S.M. Dayal Respondent Counsel :- Rajesh Tandon,M.K. Gupta,S.C. Hon'ble Sudhir Agarwal,J.
1. The writ petition was dismissed for want of prosecution on 05.10.2009 by Hon'ble Shishir Kumar, J., but since His Lordship has retired, this application, seeking recall of order dated 05.10.2009, has come up before this Court.
2. Heard Sri Somesh Khare, learned counsel for the applicant and Sri Pankaj Agarwal, learned counsel for respondent.
3. Reasons shown for non appearance have been explained satisfactorily. The application is allowed. Order dated 05.10.2009 is hereby recalled.
Order Date :- 11.1.2013 KA Court No. - 7 Case :- WRIT - A No. - 16892 of 1995 Petitioner :- M/S Rameshwar Ram Gopal Respondent :- Xth Addl. District Judge, & Others Petitioner Counsel :- S.M. Dayal Respondent Counsel :- Rajesh Tandon,M.K. Gupta,S.C. Hon'ble Sudhir Agarwal,J.
Order dated 05.10.2009 having been recalled vide order of date passed on restoration application, writ petition is restored to its original number.
Heard.
Allowed.
See order for date passed on separate sheets.
Order Date :- 11.1.2013 KA