Board Vs. Subhan Shah & Ors  Insc 717 (31 October 2006)
Sinha & Dalveer Bhandari
J U D
G E M E N T
APPEAL NO. 6976 OF 2004 S.B. SINHA, J.
two appeals involving common questions of law and fact were taken up for hearing
together and are being disposed of by this common judgment.
Sha Walli was a Peer. He was called Shan Shah-E- Malwa. On his death, a Dargah
was established in his memory. Erstwhile Maharaja Holkar Darbar, a Hindu king
granted Mafi Inayat Land to the Dargah. Allegedly, the land
in question was held to be not forming a part of Wakf in terms of the
provisions of the Wakf Act, 1954 (for short "the 1954 Act"). One Munna
Bai filed an application for getting her name mutated in respect of the property
in question. It was dismissed on 4.2.1967. She thereafter filed an application
under Section 25 of the 1954 Act for registering the Dargah as a Wakf. A notice
was issued to Subhan Shah and others who were the heirs of the said Hazrat Sha Walli
(hereinafter referred to as "the private parties"). They filed their
show cause denying and disputing that the property in question was a Wakf
property. It was contended that Munna Bai filed the aforementioned application
as she was denied her claim to occupy the post of a Mujjawarship. It was
there has been 50 Bighas land under the Sanad but when we were minors and Mahboobsha
the husband of the lady was the person in charge of the office of Mujjawarship,
the Jahagirdar has snatched away about 40 Bighas, but since ours taking charge
of it we are most aptly managing the property and property looking after the Dargah.
It is wrong to say that there is a managing committee for this Dargah." On
or about 18.3.1968, the properties were declared as Wakf property and the Dargah
was registered as Wakf by an order dated 18.3.1968. The private parties'
application for recall of the said order was rejected by the Madhya Pradesh Wakf
Board (for short "the Board") by an order dated 24.6.1968 stating
that registration of the Dargah as Wakf was legal. A committee was thereafter
constituted by the Board for managing the affairs of the Dargah. Possession of
the private parties was allegedly forcibly taken over.
thereafter was filed in Civil
Court for a declaration
that the orders passed by the Board are null and void and for recovery of
possession of the suit property inter alia contending that the order
registering the Dargah as Wakf was vitiated in law. It was also contended that
the application filed by the said Munna Bai under Section 25 of the 1954 Act
was barred by limitation.
Parliament enacted the Wakf Act, 1995 (for short "the 1995 Act"). The
1954 Act was amended by the State of Madhya Pradesh. The State of Madhya Pradesh constituted the M.P. Wakf Tribunal (for short "the
Tribunal"). It also amended the provision of the said Act in terms whereof
all civil suits stood transferred to the Tribunal. The suit filed by private
parties was also transferred.
the Tribunal, the Board did not adduce any evidence. It, however, allegedly
filed a gazette of the year 1984. The Tribunal passed an order framing a scheme
for managing the affairs of the said Dargah. Both the Board and the private
parties aggrieved thereby filed revision applications before the High Court. By
reason of the impugned judgment, the High Court dismissed both the applications
view of the admission made before the Tribunal that they are not averse to the
property being declared Wakf, if they are declared to be the Mujawar thereof.
The Tribunal had the requisite jurisdiction to frame a scheme.
the Board and the private parties are, thus, before us:
of Mr. Shakil Ahmed Syed, learned counsel appearing on behalf of the Board is
that power to frame a scheme vests in the Board and not in the Tribunal and,
thus, the High Court committed an illegality in passing the impugned order.
Ali Ahmad, learned counsel appearing on behalf of the private parties, on the
other hand, submitted that the High Court proceeded on a wrong premise that the
private parties admitted that the property in question was a Wakf property.
has been defined in Section 3(l) of the 1954 Act to mean "the permanent
dedication by a person professing Islam or any other person of any movable or
immovable property for any purpose recognized by the Muslam law as pious,
religious or charitable". Section 4 provides for survey of Wakfs.
According to the private parties, upon survey the Dargah was not found to be a Wakf
property. Only when a property is found to be a Wakf property, a registration
thereof can be made. Section 5 of the 1954 Act, reads, thus:
Publication of list of wakfs
receipt of a report under sub-section (3) of Section 4, the State Government shall
forward a copy of the same to the Board.
The Board shall examine the report forwarded to it under sub-section (1) and
publish, in the Official Gazette, a list of wakfs in the State, or as the case
may be, the part of the State, whether in existence at the commencement of this
Act or coming into existence thereafter to which the report relates, and
containing such particulars as may be prescribed." Under Section 5 of the
1954 Act, a civil suit in regard to the dispute as to whether a particular property
specified as Wakf property in the list of Wakfs maintained under Section (2)
thereof is a Wakf property or not, a civil suit will be maintainable. Section
6-A of the 1954 Act provides for power of Tribunal to determine disputes
of the suit, therefore, is not in question. The property was dedicated to the Dargah,
if any, a long time back. An application for registration of the said property
as a Wakf property in terms of Section 25 of the 1954 Act, therefore, could have
been filed only within the period specified thereunder, viz., nine months from
the date of coming into force of the said Act. Registration of Wakfs whether
created before or after the commencement of the said Act is governed by Section
25. A copy of the Wakf deed was also required to be enclosed with such an
application. Sub- section (7) of Section 25 of the 1954 Act provides for making
of an inquiry into the correctness or otherwise of the contents of the said
notice that Section 104 of the 1995 Act is in pari materia with Section 66-C of
the 1954 Act, which reads as under:
Application of Act to properties given or donated by persons not professing
Islam for support of certain wakf.Notwithstanding anything contained in this Act
where any movable or immovable property has been given or donated by any person
not professing Islam for the support of a wakf being
mosque, idgah, imambara, dargah, khangah or a maqbara;
(c) a choultry
or musafirkhana, then such property shall be deemed to be comprised in that wakf
and be dealt in the same manner as the wakf in which it is so comprised."
Section 83 of the 1995 Act provides for constitution of the Tribunal.
jurisdiction of the Tribunal as contained in sub-section (5) of Section 7 of
the 1995 Act reads as under:
The Tribunal shall not have jurisdiction to determine any matter which is the
subject-matter of any suit or proceeding instituted or commenced in a civil
court under sub-section (1) of section 6, before the commencement of this Act
or which is the subject-matter of any appeal from the decree passed before such
commencement in any such suit or proceeding or of any application for revision
or review arising out of such suit, proceeding or appeal, as the case may
be." The Tribunal noticed the sources of title of the private parties in
the suit property. In determining the respective contentions of the parties to
the suit, the Tribunal framed the following issues:
Whether Mazar Nahar Shah Ali Baba is the property of plaintiffs of Siranam and
the order of defendant No. 1 of dated 24.4.68 and 13.4.68 are illegal and of no
Whether plaintiffs are entitled to regain the business on the disputed Mazar."
issues framed were not wholly apposite to the rival contentions of the parties.
They do not reflect the requisite issues before the parties in the light of
their pleadings. The Tribunal moreover did not analyse the evidences adduced by
the parties before it. Applicability or otherwise of the notification issued in
the year 1984 was also not considered. It declared the property to be a Wakf
No. 1 Wakf Board led no evidence in its favour, but Madhya Pradesh Wakf Board
has produced the copy of Madhya Pradesh Gazette and Register of Registration of
Wakf in which disputed Majar has been depicted as the property of Wakf and year
of (billing) cultivation. The plaintiffs have not objected to this. The most
important this is that the plaintiffs have admitted in evidence that Majawar in
question is their inherited property and their forefathers had been working as Mujawar
in the Dargah. Therefore, the opportunity may be given to them to serve as Mujawar
at Dargah." It purported to have taken into consideration the admission of
the private parties that Majawar in question is their inherited property and
their forefathers have been working as Mujawar in the Dargah. On the basis of
the said purported admission on the part of the private parties, the Tribunal
opined that there exists no dispute that there existed a Wakf which was
situated in village Nozarana Indore of Hazrat Nahar Ali Shah which has been
legally registered by the Board.
to a property has a definite connotation. It is not the same as user. The
Tribunal failed to deal with the question as to whether the Board had the
requisite jurisdiction to entertain the application filed by Munna Bai being
barred by limitation, insofar as whereas period of limitation provided for
under sub-section (8) of Section 25 is merely three months, Munna Bai filed an
application after 12 years after coming into force of the 1954 Act.
not unmindful of the fact that the Board itself could have initiated
proceedings in terms of Section 27 of the 1954 Act but then no suo motu
proceeding was initiated by it. No notice in this behalf has been issued.
M/s. D.N. Roy and S.K. Bannerjee and Others v. State of Bihar and Others [(1970) 3 SCC 119], the
law is stated in the following terms:
is true that the order in question also refers to "all other powers
enabling in this behalf". But in its return to the writ petition the
Central Government did not plead that the impugned order was passed in exercise
of its suo moto powers. We agree that if the exercise of a power can be traced
to an existing power even though that power was not purported to have been
exercised, under certain circumstances, the exercise of the power can be upheld
on the strength of an undisclosed but undoubted power. But in this case the
difficulty is that at no stage the Central Government intimated to the
appellant that it was exercising its suo moto power. At all stages it purported
to act under Rules 54 and 55 of the Mineral Concession Rules, 1960.
Central Government wanted to exercise its suo moto power it should have
intimated that fact as well as the grounds on which it proposed to exercise
that power to the appellant and given him an opportunity to show cause against
the exercise of suo moto power as well as against the grounds on which it
wanted to exercise its power. Quite clearly the Central Government had not
given him that opportunity. The High Court thought that as the Central
Government had not only intimated to the appellant the grounds mentioned in the
application made by the 5th respondent but also the comments of the State
Government, the appellant had adequate opportunity to put forward his case.
This conclusion in our judgment is untenable. At no stage the appellant was
informed that the Central Government proposed to exercise its suo moto power
and asked him to show cause against the exercise of such a power. Failure of
the Central Government to do so, in our opinion, vitiates the impugned
order." If the proceeding was initiated by the Board for which it had no
jurisdiction whatsoever, its order would be 'coram non judice'. [See Kiran
Singh v. Chaman Paswan, AIR 1954 SC 340 and MD, Army Welfare Housing Organisation
v. Sumangal Services (P) Ltd., (2004) 9 SCC 619] Unfortunately, the attention
of the Tribunal or the High Court was not drawn to this aspect of the matter.
also not in dispute that the purported admission on the part of the private
parties was a conditional one; by reason whereof, the nature of the property
being Wakf had not been admitted. An admission of a party must be clear and
explicit in a case where an inference is required to be drawn in regard to the
fact that thereby he had admitted the title of the other.
speaking, even no title can be created by admission. [See Thayyil Mammo and
Another v. Kottiath Ramunni and Others, AIR 1966 SC 337] If the nature of
dedication of the property does not constitute a Wakf within the meaning of the
provisions of the Act, it must be proved that it became a Wakf by reason of
long user. No such finding has been arrived at.
notice, although no final verdict has been pronounced, it has been contended
before us that a purported dedication of a property by a Hindu for constitution
of Wakf is legally impermissible. Our attention has been drawn to Motishah and
others v. Abdul Gaffar Khan [AIR 1956 Nagpur 38] wherein the law has been declared in the following terms:
wakf may be defined to mean the detention of the 'corpus' in the ownership of
God in such a manner that its profits may be applied for the benefit of His
servants. As a general rule it may be stated that all persons who are competent
to make a valid gift are also competent to constitute a valid wakf. Islam is
not a necessary condition for the constitution of a wakf.
person of whatever creed may create a wakf but the law requires that the object
for which dedication is to be made should be lawful according to the creed of
the dedicator as well as the Islamic doctrines. A cemetery or graveyard is a
consecrated ground and is not a private property.
a place is a 'makbara' (burial ground) or not depends on the number of persons
buried there or evidence of dedication derived from the testimony of witnesses
of reputation" However, yet again, in Arur Singh and others v. Badar Din
and others [AIR 1940 Lahore 119], the law is stated in the following terms:
there seems to be no clear authority to show that dedication of land by a Hindu
for the purpose of a Muslim graveyard would be invalid either according to
Hindu or Muslim law..." If the property in question was not a Wakf
property and the order registering the property as a Wakf property was invalid
in law, the matter might have ended there. But, the Tribunal has gone a step
further and directed framing of scheme.
Act is a self-contained code. Section 32 of the 1995 Act provides for powers
and functions of the Board. Sub-section (2) of Section 32 of the 1995 Act
enumerates the functions of the Board without prejudice to the generality of
the power contained in Sub-section (1) thereof. Clauses (d) and (e) of
sub-section (2) of Section 32 of the 1995 Act reads as under:
to settle schemes of management for a wakf:
that no such settlement shall be made without giving the parties affected an
opportunity of being heard;
utilisation of the surplus income of a wakf consistent with the objects of a wakf;
what manner the income of a wakf, the object of which are not evident from any
written instrument, shall be utilized;
in any case where any object of wakf has ceased to exist or has become
incapable of achievement, that so much of the income of the wakf as was
previously applied to that object shall be applied to any other object, which
shall be similar, or nearly similar or to the original object or for the
benefit of the poor or for the purpose of promotion of knowledge and learning
in the Muslim community:
that no direction shall be given under this clause without giving the parties
affected an opportunity of being heard.
Explanation.For the purposes of this clause, the
powers of the Board shall be exercised
the case of a Sunni wakf, by the Sunni members of the Board only; and
in the case of a Shia wakf, by the Shia members of the Board only:
that where having regard to the number of the Sunni or Shia members in the
Board and other circumstances, it appears to the Board that the power should
not be exercised by such members only, it may co-opt such other Muslims being
Sunnis or Shias, as the case may be, as it thinks fit, to be temporary members
of the Board for exercising its powers under this clause;" The Tribunal
had been constituted for the purposes mentioned in Section 83 of the 1995 Act.
It is an adjudicatory body. Its decision is final and binding but then it could
not usurp the jurisdiction of the Board. Our attention has not been drawn to
any provision which empowers the Tribunal to frame a scheme. In absence of any
power vested in the Tribunal, the Tribunal ought to have left the said function
to the Board which is statutorily empowered therefor. Where a statute creates
different authorities to exercise their respective functions thereunder, each
of such authority must exercise the functions within the four corners of the
trite that when a procedure has been laid down the authority must act strictly
in terms thereof. [See Taylor v. Taylor, (1875) 1 Ch D 426] We, therefore, are of the opinion that
the matter requires fresh consideration at the hands of the Tribunal. We direct
accordingly. Orders of the Tribunal and the High Court are set aside. The
appeals are disposed of with the aforementioned directions. The Tribunal is
directed to consider the matter afresh as expeditiously as possible preferably
within a period of three months from date. Having regard to the facts and
circumstances of the case, the parties shall pay and bear their own costs.