The
U.P. Sunni Central Board of Wakfs Vs. Mazhar Hasan & Ors [2001] Insc 379 (9 August 2001)
D.P.Mohapatro,
S.R.Babu Rajendra Babu, J. :
J U D
G M E N T
On the
registration of certain properties as wakf a reference was made by the
respondents under Section 29(8) and Section 33 of the Uttar Pradesh Muslim Wakfs
Act, 1960 [hereinafter referred to as 'the Act'] for cancellation of
registration. The property in question is stated to be a Muslim Musafirkhana
situate in Kazipura, City Bahraich, consisting of 24 rooms, one court-yard, varendah,
open land, passage, four shops, office room and some portion under construction
indicated in the plaint and there exists within that accommodation a Mosque but
that had not been included in the plaint. The case put forth by the respondents
is that the property in question was owned by a Society of which the
respondents have been office bearers; that they have been in possession of the
suit property; that they purchased the said land, on which the accommodation
exists, on October 18, 1966 for a sum of Rs. 6,100/- from two ladies and
thereafter got the Musafirkhana constructed on that land; that the provisions
of Sections 29 to 33 of the Act did not apply and so the registration of
property in dispute as wakf had been illegal, null and void. The reference was
resisted by the appellant on the grounds that the land in question was
purchased from the subscription given by Musalman public and building was also
constructed out of such donations given by the general public; that the purpose
of the collections of this fund or donation made by Musalmans in general was
charitable one, namely, the construction of Muslim Musafirkhana; that in order
to relieve them from the shortage of accommodation and for religious purposes a
Mosque was also constructed within the Musafirkhana; that, therefore, the
registration was in accordance with law.
The
Tribunal held that the Mosque is part and parcel of Musafirkhana and has got a
religious purpose and the Musafirkhana is meant for charitable purposes and is
also of a religious character by the reason of the existence of a Mosque as a
part and parcel of Musafirkhana. However, on the basis that the property
alleged to be wakf property should be proved to have been dedicated permanently
by one professing Musalman faith and the purposes of dedication must be proved
to be religious, pious and charitable, it is only in such a case wakf may be
said to have come into existence and in the absence of proof of dedication by a
dedicator having Muslim faith the property in dispute could not be said to be wakf
property and cannot be deemed to be wakf property, the Tribunal allowed the
reference and set aside the registration. The matter was carried by way of
revision petition to the High Court which affirmed the view taken by the
Tribunal and dismissed the revision petition. Hence this appeal by special
leave.
The
High Court recorded the following finding :- "In the present case,
creation of or construction of a Musafirkhana for the Muslim public can be said
to be benevolent, pious and charitable object beyond any doubt as has been
found by the court below. It may even be religious one, i.e., the purpose for
which the subscriptions were demanded from people. The object of or purpose of
subscription, i.e., the construction of Musafirkhana, no doubt, is pious,
charitable and religious but the other ingredients, as I have mentioned
earlier, are that there should be voluntary dedication and dedication should be
one made by persons professing Musalman faith. In the present case, the
evidence on record as found by the court below as well indicates that a meeting
was called for and money came from subscription from the people of Bahraich
after the appeals had been issued demanding the subscription. Ext. A12 - on
record is the appeal which had been issued demanding donations and in pursuance
thereof money came from the public of Bahraich as per deposition of P.W. 1 Nizamuddin
and other witnesses those who offered subscription or donations. There is no
evidence that they made donations with the intent to derive spiritual
benefit." The High Court is of the view that the dedication carries with
it an idea of voluntary self donation without any demand or appeal for the same
and that subscription or donation made on appeal being made by people at large
cannot be taken to be the donation of property of permanent character which is
the essential ingredient of the definition of 'wakf' under the Act. If a
property is set apart for a definite purpose, such property would become
'dedicated' for a purpose. It cannot be said that it is only in cases when an
individual divests himself of the property and after declaration of trust it is
binding on the settlor with the object for which the property thereafter to be
held. If out of the moneies given by the general public a property is purchased
for a public purpose which is religious or charitable in character, we do not
think, such property will lose the character of a 'wakf' as defined under the
Act. The finding reached by the High Court, by affirming the view taken by the
Tribunal, itself indicates that the object for which the property in question
has been set apart or dedicated is charitable, pious or religious in nature
and, therefore, the dedication was complete and it could not be divested for
any other purpose. Therefore, when the property can be used only for religious
or charitable purposes it acquires a permanent character. In that view of the
matter, we do not think, the High Court is justified in holding that the
cancellation of registration by the Tribunal is in order.
The
order of the High Court affirming the order of the Tribunal is set aside and
the reference made by the respondents shall stand dismissed.
The
appeal is allowed accordingly. No costs.
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