Karnataka High Court
Syed Shah Muhammad Al Hussaini vs Union Of India And Others on 25 September, 1998
Equivalent citations: AIR1999KANT112, ILR1999KAR8, AIR 1999 KARNATAKA 112, 1999 (2) KANTLD 639, (1999) ILR (KANT) 8, (1999) 1 KANT LJ 331, (1999) 2 CIVLJ 133
Bench: R.P. Sethi, K.R. Prasada Rao
ORDER
1. Alleging violation of Articles 14, 25 and 26 of the Constitution of India, the petitioner who is a Sajjada Nasheena, Mutawalii of a wakf operating in Gulbarga District, has filed this petition to declare Sections 14, 33, 38, 61, 64, 69, 70, 71, 72 and 96 of the Wakf Act, 1995 (hereinafter called 'the Act') as unconstitutional. It is further prayed that the wakf created by the Muslims be allowed to remain dependent upon the wish and desire of the Waquif, being uninfluenced by the offending statute. However, during the arguments, the learned Counsel for the petitioner, restricted his arguments regarding the constitutional validity of Section 14(1)(b) of the Act and did not argue with respect to the validity of other sections prayed in the writ petition to be declared as unconstitutional.
2. It has been contended by the learned Counsel appearing for the petitioner that the scheme of the offending section makes it possible for persons to become the member of the Wakf Board, who are not aware of the personal law of Islam, in particular Shariath, which defeats the very purpose of the wakf as recognised under the Muslim Law. It is contended that a wakf cannot be a creature of the statute, but is a concept of dedication, The purpose of wakf being wholly religious could not be permitted to be made irreligious as is alleged to have been intended in the name of secularism by reason of Section 14, which according to the petitioner jeopardises and destroys the religiosity of the wakf and administration of the wakf properties. The petitioner further contend that the Act violates Sections 25 and 26 of the Constitution which guarantee inalienable rights to the petitioner.
3. We have heard the learned Counsel for the parties at length and perused the record.
4. Islam is based upon the teaching of the Prophet Mohammad, who was not the creator, but a recipient and the communicator of the religion of Islam. The word 'Islam' means "peace and submission". In its religious connotation, it is understood as 'submission to the will of God' and according to Fyzee (Outlines of Mohammedan Law, II Edition) in its secular sense the establishment of peace. The word Muslim in Arabic is the active principle of Aslama, which means acceptance of faith, the noun of which is Islam. Muslim Law is recognised to be based upon a well recognised system of jurisprudence providing many rational and revolutionary concepts, which could not be conceived by the other systems of Law in force at the time of the inception of Islam. Even the Marxist theoretician like Karl Marx has acknowledged that every religion in its inception has been a revolutionary movement based upon the necessities and requirements of the Society. Sir Ameer AH in his book Mohammedan Law, Tagore Law Lecturers, IV Edition, Volume I has observed that the Islamic system, from a historical point of view was the most interesting phenomenon of growth. The small beginnings from which it grew up and the comparatively short space of time within which it attained its wonderful development marked its position as one of the most important judicial system of the civilised world. The concept of Muslim Law is based upon the edifice of shariath. It is therefore violence to the Islamic Law to urge that it was orthodox and did not permit tolerance, which in the present political parlance is termed as secularism. Islamic Law being based upon the requirements of the Society was progressive in thought and revolutionary in approach. However, there is no denial of the fact that such a law deals with only those who believes in the tenets of Islam, the authority of the Prophet and of the supremacy of Quoran. The progressive outlook and wider approach of the Islamic Law can well be appreciated from the fact that it has permitted the Indian Ordinary Courts to interpret the Islamic Law notwithstanding the institution of Qazi and Islamic Courts. Article 372(1) and Article 13 of the Constitution make it clear that Muslim Law as understood under the modern jurisprudence is a law, like all other laws in force immediately before the commencement of the Constitution and thus subject to the provisions of the Constitution.
5. It is well recognised that wakf under the Islamic Law meant dedication of property for purposes recognised by the Muslim Law as pious, religious and charitable. Such purposes cannot be given a narrow concept as has been tried to be done by the petitioner, which if followed would frustrate the purpose for which the property is dedicated by a Muslim. The Act only provides for the better administration of the wakfs and for matters connected therewith or incidental thereto and does not either restrict or control the wakf or the intended purpose or object for which it was created.
6. In the Statement of Objects and Reasons of the Bill, which became the Law as Act No. 29 of 1954, it was declared:
"The management of wakfs though it vests immediately in a Mutawalli is a subject which requires the supervision of the State. The need for supervision has been felt, and in addition to various enactments dealing with the subject of the charitable endowments, the Mussalman Wakf Act, 1923 (No. 42 of 1923), was enacted for the whole of India. This Act merely provides for the submission of audited accounts by the Mutawallis, to the District Judges. This Act did not prove of much practical value. The Mussalman Wakf (Bombay Amendment) Act, 1935 (XVIII of 1935) amended the Mussalman Wakf Act, 1923 (42 of 1923). The Bengal Wakf Act, 1934 (XIII of 1934) was enacted to create a machinery for the supervision of wakfs in Bengal. The U.P. followed suit and the United Provinces Muslim Wakfs Act, 1936 (XIII of 1936) was passed creating a Central Wakf Board. Similarly Bihar also passed a legislation almost on the same lines. The working of these Acts has brought out the necessity of some amendments. Further, many of the States have got no Act for the purpose. It is, therefore, necessary that one uniform and consolidated legislation may be passed by the Centre, which may be adopted as a model Act by the various States. It is with this view that the present Bill is introduced". (Gazette of India 1952, Part II, Section 2, page 285).
Many enactments were in force in various States of the Country before the Wakf Act, 1954 being Act No. 29 of 1954 was passed on 21st of May, 1954.
7. Many amendments were made in the original Act of 1954 in the years 1959, 1964, 1969 and 1984. As the actual working of the aforesaid Act brought out many deficiencies, the 1995 Act was passed. In the Statement of Objects of the Bill, which ultimately became the Act, it was stated:
"Statement of Objects and Reasons.--The actual working of the Wakf Act, 1954 had brought out many deficiencies in it as also in the set up of the Wakf Boards, especially, their powers of superintendence and control over the management of individual wakfs. To clarify some of these matters the Act to be amended three times in 1959, in 1964 and in 1969 within a period of 15 years.
2. Comprehensive amendments to the Wakf Act, were made by the Wakf (Amendment) Act, 1984 which were based largely on the recommendations of the Wakf Inquiry Committee set up in December, 1970 to enquire into administration of wakfs at all levels and in response to a demand made in Parliament by the Members during a discussion on the Wakf (Amendment) Bill, 1969.
3. Only two provisions of 1984 Act could, however, be enforced because of strong opposition to its various provisions from the Muslim Community. The two provisions related to:
(i) increasing the period of limitation for filing suits in respect of wakf properties in adverse possession from 12 years to 30 years; and
(ii) application of the provisions of Wakf Act, 1954, to the Evacuee properties.
4. The main criticism related to provisions concerning the powers of Wakf Commissioner. It was stated that the Wakf Board has been made subordinate to him. The other criticisms were that the Amendment Act, 1984 is a gross interference by the State and the Central Government in the day-to-day management and administration of the wakfs by the trustees and Mutawallis of wakfs.
5. After a careful consideration of the objections to the various provisions of the 1984 Act, and after holding wide ranging discussions with the leaders of the Muslim Community, it has been decided to bring in a new comprehensive Bill on wakf matters incorporating the features of 1954 Act and such provisions of the 1984 Act in respect of which there was a near consensus.
6. Now, the new Wakf Law will have inter alia the following features:
(a) Wakf Boards for the States and for the Union Territory of Delhi shall have not less than 7 and not more than 13 members of which the majority will comprise such persons as are elected from amongst Muslim members of Parliament, Muslim members of State Legislatures, Muslim members of the Bar Council in a State and Mutawallis of wakfs having an annual income of Rs. 1 lakh or more. The nominated members will be from Muslim organisations of State eminence, recognised scholars in Muslim theology and a representative of the State Government not below the rank of Deputy Secretary. In a State where there are Shia wakfs but no separate Shia Wakf Board, at least one of the members shall be a Shia Muslim. A smaller Wakf Board is envisaged for Union Territories other than Delhi.
(b) The other important feature is about distribution of powers between the Wakf Board and the Wakf Commissioner which would now be redesignated as the Chief Executive Officer and would be subordinate to the Wakf Board.
(c) Provisions are also being made for appointment of the Executive Officer, in respect of wakfs whose performance is not satisfactory and whose annual income Rs. 5 lakhs or more.
(d) To strengthen the finances of the Wakf Board, one of the measures being contemplated is to raise the rate of the contribution by a wakf to the Wakf Board from 6 per cent of its annual income to 7 per cent.
(e) It is also intended to put certain restrictions on the powers of Mutawallis in the interest of better management of wakf properties.
(f) An important provision in the proposed Bill relates to setting up of Wakf Tribunals to consider questions and disputes pertaining to wakfs.
(g) There are instances of misuse of wakf properties either with or without the connivance of the Mutawallis. It is now proposed to incorporate in the Bill a provision so that the alienation of wakf properties will not be easy.
(h) At present, the Wakf Act, 1954 is not applicable to Uttar Pradesh, West Bengal, parts of Gujarat, parts of Maharashtra and some of the North-Eastern States. With the enforcement of this legislation, there will be uniformity in respect of wakf administration throughout the country except in Jammu and Kashmir State.
7. The present Bill seeks to achieve the above objects".
8. The object of the Act was intended to be achieved by various provisions made in the Act, the most important being the composition of the Board as envisaged under Section 14 of the Act, which provides:
"14(1) The Board for a State and the Union Territory of Delhi shall consist of.--
(a) a Chairperson;
(b) one and not more than two members, as the State Government may think fit, to be elected from each of the electoral colleges consisting of:
(i) Muslim members of Parliament from the State or, as the case may be, the Union Territory of Delhi;
(ii) Muslim members of the State Legislature;
(iii) Muslim members of the Bar Council of the State; and
(iv) Mutawallis of the wakfs having an annual income of rupees one lakh and above;
(c) one and not more than two members to be nominated by the State Government representing eminent Muslim organisations;
(d) one and not more than two members to be nominated by State Government, each from recognised scholars in Islamic theology;
(e) an officer of the State Government not below the rank of Deputy Secretary.
(2) Election of the members specified in clause (b) of sub-section (1) shall be held in accordance with the system of proportional representation by means of a single transferable vote, in such manner as may be prescribed:
Provided that where the number of Muslim members of Parliament, the State Legislature or the State Bar Council, as the case may be, is only one, such Muslim member shall be declared to have been elected on the Board:
Provided further that where there are no Muslim members in any or the categories mentioned in sub-clauses (i) to (iii) of clause (b) of sub-section (1), the ex-Muslim members of Parliament, the State Legislature or ex-member of the State Bar Council, as the case may be, shall constitute the electoral college".
9. The learned Counsel appearing for the petitioner submits that as under Section 14(1)(b)(i) to (iv) persons not fully conversant with Islam can be appointed as members of the Board, the purpose of the Act is likely to be jeopardised and defeated. It is submitted that the composition of the Board as contemplated under the Act would defeat the very spirit of the wakf as envisaged under Muslim Law. It is stated that as a member of Parliament, member of State Legislature and of the bar council is elected by the whole section of the society including non-Muslims, such an elected person cannot really represent the interests of the Muslims or protect the community or preaching of Islam. The argument though apparently looks glittering, but when examined in depth drowns at the bottom of the well requiring no consideration worth the name. The intention of the composition of the Board and the purpose of the Act is to administer the property and not to give representation to the Muslim jurists or theologists. The elected Muslim members have been sought to be included in the Board upon consideration of their obligation and responsibility to the people in general and Muslims in particular. Responsible elected Members of the Parliament, State Legislature and Bar Council are rightly intended and expected to come to the expectation of the law-makers and contribute positively for providing better administration of wakfs and for matters connected therewith or incidental thereto.
10. The learned Counsel for the petitioner further submitted that as Mutawallis of the wakf having an annual income of rupees one lakh or above are only held eligible to be members of the Board, the provision to that effect is discriminatory and violative of Article 14 of the Constitution. This argument also is more theoretical in concept rather than practical in implementation, When the purpose of the Board is to provide better administration to the wakf property, it has rightly thought to afford only such Mutawallis an opportunity of being the member of the Board, who have some experience in the Management of the wakf property, which has been tried to be ascertained and measured on the yardstick of income of the wakfs.
11. The principles of equality does not mean the universal application of laws for all persons who are not by nature, attainment or circumstances in the same position. The Mutawallis of wakfs having an annual income of more than rupees one lakh constitute a class in themselves and cannot be equated with such Mutawallis, who do not have any annual income from the wakf or any experience of dealing with the management of the property. If a law is shown to be dealing equally with the members of a well defined class, it cannot be held to be discriminatory on the ground of not providing equal protection being allegedly not applicable to the other persons. It cannot be forgotten that the presumption is in favour of constitutionality of a law since it is presumed that the legislature understands and correctly appreciates the needs of the people and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds. The burden to prove the discrimination is always upon the person who alleges it. In this regard, the Supreme Court in Ajoy Kumar Mukherjee v Local Board of Barpeta, held:
"As to that it is well settled that it is for the persons who alleges that equality before law has been infringed to show that such really is the case. It was therefore for the appellant to produce facts and figures from which it can be inferred that the tax imposed in the present case is hit by Article 14 of the Constitution".
To the same effect is the judgment of the Apex Court in M/s. East India Tobacco Company Limited v State of Andhra Pradesh and Another, and in State of Uttar Pradesh v Kartar Singh.
12. The petitioner has not placed anything on record to show that the Act is intended to discriminate or has actually discriminated or that the classifications made was arbitrary and not reasonable. The aforesaid section therefore cannot be held to be violative of the guarantee of equality as enshrined in Articles 14 and 15 of the Constitution of India.
13. Article 25 of the Constitution provides for freedom of conscience and freely to profess, practice and propagation of religion.
14. The Supreme Court in Ratilal Punamckand Gandhi v State of Bombay , held:
"Article 25 of tne Constitution guarantees to every person and not merely to the citizens of India, the freedom of conscience and the right freely to profess, practice and propagate religion. This is subject, in every case, to public order, health and morality. Further exceptions are engrafted upon this right by clause (2) of the Article. Sub-clause (a) of clause (2) saves the power of the State to make laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice and sub-clause (b) reserves the State's power to make laws providing for special reform and social welfare even though they might interfere with religious practices.
Thus, subject to the restrictions which this Article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others. It is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution. The free exercise of religion by which is meant the performance of outward acts in pursuance of religious belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals of the people.
What sub-clause (a) of clause (2) of Article 25 contemplates is not State regulation of the religious practices as such which are protected unless they run counter to public health or morality but of activities which are really of an economic, commercial or political character though they are associated with religious practices".
15. Freedom of conscience and religion recognises the right to profess, practice and propagate religion subject to the restrictions imposed by the State on the ground of public order, morality, health, social welfare and reform. Freedom of conscience means to acquire a knowledge or sense of right or wrong, moral judgment that opposes the violation of previously recognised ethical principles, which led to the feelings of guilt if one violates such a principle. Such freedom therefore cannot be connected with any particular religion or of any faith in God. It is commonly understood as the right of a person not to be converted into another man's religion. Article 26 of the Constitution, provides the freedom to manage religious affairs. Every religious denomination or any section thereof have the right to:
(a) establish and maintain institutions for religious and charitable purposes;
(b) manage its own affairs in matters of religion;
(c) own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
Under clause (d) of Article 26 a religious denomination has a right to own, acquire and administer the property for the purposes to which it was dedicated, but only in accordance with law, which means that the State can regulate the administration of trust properties by means of law enacted validly. What is protected by this clause is the administration which is required to remain with the religious institution, though it may be regulated by law. The law, which is found to be interfering with matters which are essentially religious is not permissible.
16. In Digyadarsan Rajendra Ramdassji Varu v State of Andhra Pradesh and Others, where the provisions of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act were challenged on the ground of being in contravention of Article 26 of the Constitution, the Apex Court held:
"On the question whether Sections 46 and 47 of the Act contravene Articles 25 and 26, a good deal of reliance has been placed on the observations in the first Shirur Math's case, . Mukherjea, J. (as he then was) delivering the judgment of the Court had examined the scope of the language of Articles 25 and 26. It was indicated by him that freedom in our Constitution is not confined to religious beliefs only; it extends to religious practice as well subject to the restrictions which the Constitution itself has laid down. Under Article 26(b), therefore, a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion and to outside authority has any jurisdiction to interfere with its decision in such matters. Moreover under Article 26(d) it is the fundamental right of a religious denomination or its representative to administer its property in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself, subject to such restrictions and regulations as it might choose to impose. It was further laid down that a law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under clause (d) of Article 26. Now under Section 47 of the Act where a mathadhipathi is under suspension, the Commissioner can make such arrangement as he thinks fit for the administration of the math until another niathadhipathi succeeds to the office and in making such arrangement he has to have due regard to the claims of the disciples of the math. It is maintained on behalf of the petitioner that the appointment of Assistant Commissioner, Endowments Department. Tirupathi as the day-to-day administrator of the math and its endowment has a two fold effect. The first is that the complete autonomy which a religious denomination like the math in question enjoys in the matter of observance of rights and ceremonies essential to the tenets of the religion has been interfered with. The second is that the right of administration has been altogether taken away from the hands of the religious denomination by vesting it in the Assistant Commissioner. This clearly contravenes the provisions of clauses (b) and (d) of Article 26 within the rule laid down in the first Shirur Math's case, supra. By doing so in exercise of the powers under Section 47. the Commissioner has also debarred the petitioner from practising and propagating religion freely which he is entitled to do under Article 25(1).
The attack on the ground of violation of Article 25(1) can be disposed of quite briefly. It has nowhere been established that the petitioner has been prohibited or debarred from professing, practising and propagating his religion. A good deal of material has been placed on the record to show that the entire math is being guarded by police constables but that does not mean that the petitioner cannot be allowed to enter the math premises and exercise the fundamental right conferred by Article 25(1) of the Constitution. As regards the contravention of clauses (b) and (d) of Article 26, there is nothing in Sections 46 and 47 which empowers the Commissioner to interfere with the autonomy of the religious denomination in the matter of deciding as to what rights and ceremonies are essential according to tenets of the religious denomination professes or practises nor has it been shown that any such order has been made by the Commissioner or that the Assistant Commissioner who has been put in charge of the day-to-day affairs is interfering in such matters. Section 47 of the Act deals only with a situation where there is a temporary vacancy in the office of the mathadhipathi by reason of any dispute in regard to the right of succession to the office or the other reasons stated therein as also because the mathadhipathi has been suspended pending an inquiry under Section 46. Its provisions do not take away the right of administration from the bands of a religious denomination altogether and vest it for all times in a person or authority who is not entitled to exercise that right under the customary rule and custom prevailing in the math. In the first Shirur Math's supra. Section 56 of the repealed Act before its amendment by Act 12 of 1954 was struck down as power had been given to the Commissioner to require the trustee to appoint a manager for the administration of the secular affairs of the institution and the Commissioner himself could also make the appointment. It was pointed out that this power could be exercised at the mere option of the Commissioner without any justifying necessity whatsoever and no prerequisites like mismanagement of property or maladministration of trust funds were necessary to enable the trustee to exercise such drastic power. The effect of the section really was that the Commissioner was at liberty, at any moment, to deprive the Mahant of his right to administer the trust property even if there was no negligence or maladministration on his part. Such a restriction was held to be opposed to the provisions of Article 26(d) of the Constitution. Section 47 of the Act is not in pari materia with Section 56 of the repealed Act. On the contrary Section 47 indicates quite clearly the conditions and situations in which the Commissioner can appoint someone to carry on the administration of the math and its endowments. In the present case, the Assistant Commissioner has been appointed as a day-to-day administrator because of the inquiry which is pending against the petitioner and in which serious charges of misappropriation and defalcation of trust funds and leading an immoral life are being investigated. It cannot be said that Section 47 would be hit by Article 26(d) of the Constitution as the powers under it will be exercised, inter alia, when mismanagement of property or maladministration of trust funds are involved".
17. The scheme of the Act reflects that Chapter II has been enacted for the purposes of having a survey of the wakfs in the State and the publication of such wakfs. Disputes regarding wakfs are intended to be resolved by the Tribunal constituted for the purposes of the Act. Chapter III deals with the establishment and constitution of Central Wakf Council and Chapter IV with the establishment of State Boards and their functions. Section 14, as already noted, prescribes the composition of the Board. Section 15 prescribes the term of the office and Section 16 deals with the disqualification of a person to be a member of the Board. Section 23 authorises the State Government to appoint a Chief Executive Officer of the Board in consultation with the Board and by Notification in the Official Gazette. Such an officer is the ex officio Secretary of the Board and is to remain under the administrative control of the Board. Section 25 deals with the duties and powers of the Chief Executive Officer. The powers and functions of the Board are specified in Section 32. Chapter V deals with the Registration of the Wakfs and Chapter VI with the maintenance of the accounts of the wakfs. Finance of the Board had been dealt with under Chapter VII and the judicial proceedings under Chapter VIII.
The scheme of the Act does not in any way show the interference of the State in the matters of religion thus allegedly violating the guarantees as provided under Articles 25 and 26 of the Constitution. The writ petition appears to have been filed upon unfounded apprehensions and concocted grounds. The allegations made in the petition are based upon hypothesis, which have nothing to do with the reality. The object of the petition apparently does not appear to be genuine or in the interest of the religion for whose benefit it is proclaimed to have been filed. Quashing of Section 14 or any other part of the Act would defeat the very purpose for which the Act was enacted resulting in the mismanagement of the wakf property, which would endanger the purpose for which the wakfs are acknowledged to have been created and dedicated. All the pleas raised on behalf of the petitioner being unfounded are liable to be rejected.
No other point was urged on behalf of the petitioner.
18. There is no merit in this petition, which is accordingly dismissed, but without any order as to costs. Rule issued discharged.