HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 27.11.2017
Delivered on. 23.02.2018
Court No. – 34
Case :- WRIT – C No. – 56238 of 2017
Petitioner :- Mahmood Hussain
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Pavan Kumar Srivastava
Counsel for Respondent :- C.S.C.,Diwakar Singh
Hon’ble Sudhir Agarwal,J.
Hon’ble Ajit Kumar,J.
(Delivered by Hon’ble Sudhir Agarwal, J.)
1. This writ petition under Article 226 of Constitution of India has been filed by Mahmood Hussain, sole petitioner, claiming himself to be Mutawalli of Waqf No. 2280, Masjid Garib Nawaz, Gram Churyani, District Fatehpur. He has prayed for a writ of mandamus, commanding respondent authorities to permit petitioner to offer Azan, Namaz and other religious activities in the premises of Masjid Garib Nawaz Waqf No. 2280 (aforesaid). It has also prayed for a writ of certiorari for quashing order dated 06.09.2017 (Annexure No. 7 to writ petition) passed by respondent-2, i.e. District Magistrate, Fatehpur, in the light of direction issues by this Court in Writ Petition No. 23406 of 2017 decided on 25.05.2017, rejecting application made by petitioner.
2. Learned counsel for parties stated that basic facts are not in dispute and issues raised in the present writ petition relate to basic tenets of Islamic Law in relation to Waqf, scope of relevant statute dealing with Waqf and, therefore, being purely legal may be decided at this stage, considering record of writ petition and, for that purpose, learned Standing Counsel did not propose to file any counter affidavit and advanced submissions orally. Learned counsel for petitioner has also stated at the Bar that he confines the writ petition in the matter of relief to the extent that a mandamus be issued to respondent authorities to permit petitioner to offer Azan, Namaz and other religious activities in the premises of Masjid, Garib Nawaz, Waqf No. 2280 in the light of Article 25 of the Constitution of India and order dated 06.09.2017, directing otherwise be set aside.
3. We have heard Sri Shitala Sahai holding brief of Sri Pavan Kumar Srivastava, learned counsel for petitioner and learned Standing Counsel for State-respondents.
4. Facts in brief giving rise to present writ petition are that the land (Arazi No. 139 (kha)) area 0.0470 hectare was purchased by petitioner vide sale deed dated 11.06.2009 for the purpose of establishing Masjid and Madarsa. Name of the petitioner was entered in Revenue records. Khatauni of Fasli Year 1419-1424 of aforesaid village has been filed as Annexure No. 1 to writ petition showing four Tenure-holders as Khairullah son of Habeeb Khan, Saidur Rahman son of Abdul Rahman, Purushottam son of Suraj Prasad and Mahmood Hussain son of Jahangir Ahmad.
5. A Mosque was constructed on the aforesaid land by petitioner. A certificate claimed to have been issued by Gram Pradhan on 26.08.2015 that after construction of Mosque at the disputed land, Namaz is being offered in the aforesaid Mosque. Waqf was also registered with U.P. Sunni Central Waqf Board, Lucknow vide registration no. 2280 under Section 36 of Waqf Act XXXXIII of 1995 (hereinafter referred to as “Act 1995”). Certificate of registration was issued on 26.10.2016. Certificate of Tawaliat was also issued by U.P. Sunni Central Board of Waqf, Lucknow on 05.11.2016 certifying that petitioner is ‘Mutawalli’ of aforesaid Waqf. It is said that a news item was published from in daily news paper ‘Dainik Jagran’ on 18.03.2017 published in Kanpur that on the land in dispute there was Madarsa and loudspeaker was installed for Namaz and Azan and thereagainst local people raised objection, whereupon, Sub-Divisional Magistrate, Sadar and Circle Officer, Jaafarganj, removed loudspeaker from Madarsa. Members of two communities entered into a compromise and terms and conditions of aforesaid compromise were written down and placed on record as Annexure No. 5 to writ petition.
6. Aggrieved by restraint action of respondents in respect of Azan and Namaz in the premises in question, petitioner filed Writ Petition No. 23406 of 2017 which was disposed of vide judgment dated 25.05.2017 permitting petitioner to make a representation to District Magistrate, Fatehpur who was directed to decide the same by a reasoned order. Court also clarified that District Magistrate shall maintain law and order in the locality.
7. Pursuant to above order dated 25.5.2017, petitioner submitted a representation on 23.06.2017. The same has now been decided by District Magistrate vide impugned order dated 06.09.2017. District Magistrate has observed that petitioner got a Madarsa constructed and claimed that inside Madarsa there was a Mosque in which Namaz has been performed and seeks permission to continue Namaz thereat, though from March 2017 Namaz has not been offered. Claim set up by petitioner before District Magistrate was contested by Gram Pradhan stating that Muslim community used to offer Namaz at the residence of Noor Mohammad. A Madarsa was constructed at the disputed land about 4-5 years back, in which no Namaz was offered. In March 2017, an attempt to offer Namaz was made and loudspeakers were installed. This was objected by local people. Loudspeakers thereafter were removed with the intervention of police authorities. During Ramzan, Namaz used to be performed at the place of Idrees. It was never offered at aforesaid Madarsa. District Magistrate also found that the land in question is “agricultural land” in which four persons were co-tenure-holders having transferable Bhumidhari rights and such land could not have been used for creating a ‘Waqf’ and constructing a Mosque. Aforesaid land also could not have been used for constructing a Madarsa since it was an “agricultural land” and no permission for change of its nature was ever obtained from the competent authority. It is in this backdrop, District Magistrate found that there was a Madarsa and attempt was made to make it a Mosque and offer Namaz thereat, which cannot be allowed, hence rejected the representation of petitioner.
8. Learned counsel for the petitioner contended that once a Waqf has been created, people of locality had offered Namaz and Azan and Waqf has also been registered by U.P. Sunni Central Waqf Board, (hereinafter referred to as “Sunni Board”), District Magistrate has no power or authority in law to interfere in religious activities of the petitioner and other Muslims in regard to offering of Namaz, Azan etc. in the aforesaid Waqf i.e. Mosque, since it amounts to nullifying registration certificate issued by Sunni Board which must be deemed to be a final arbiter, declaring about creation of a valid Waqf. Once a Waqf is created, authorities have no right to interfere with religious activities of minority community in view of rights conferred upon them under Articles 25, 26, 29 and 30 of the Constitution of India.
9. Learned Standing Counsel, on the contrary, argued that petitioner was only a Bhumidhar with transferable rights and land in question was admittedly agricultural land. The land, therefore, vested in the State and petitioner was only a Tenure-holder. Land being agricultural, is governed by provisions of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as “Act 1950”). Such a land which is not owned by petitioner could not have been subject matter of Waqf, since the land vested in the State could not have been vested in Allah by creating a Waqf in the form of Mosque, by a person, who himself is not owner of the land and ownership is not vested in him. He contended that Act, 1950 permits creation of a new Waqf on agricultural land and is protected only if Waqf existed on agricultural land at the time of enforcement of Act, 1950. Any Waqf, subsequently created without any declaration under Section 143 is void, since land is owned by the State and, therefore, third person namely alleged Waqif cannot vest in Allah something which he himself does not possess and ownership of the State cannot be divested by an individual other than the Government, so as to vest in Allah. He, therefore, submitted that District Magistrate rightly rejected representation of petitioner since there does not exist any valid Waqf and claims set up by petitioner was in respect of activity which was patently illegal and it has the effect of extinguishing even Bhumidhari rights of petitioner over land in dispute and land now goes with the State.
10. Rival submissions advanced by parties, in our view require consideration and adjudication of following issues:
(i) What is concept of Waqf and whether ownership of a property in Waqif is a necessary ingredient to create a valid Waqf ?
(ii) Whether agricultural land governed by the provisions of Act, 1950 can be subject matter of creation of a Waqf by Tenure-holder i.e. Bhumidhar with transferable rights.
(iii) Whether Act, 1950 contemplates creation of a Waqf by an individual over agricultural land which is vested in State so long as the land is governed by provisions of Act, 1950 or there is any provision making some exception?
(iv) If Tenure-holder proceeds to create a Waqf, the mere fact that Namaz had been offered or that such Waqf has been registered by Sunni Central Waqf Board or may be, by Shia Central Waqf Board, as the case may be, will it result in creation of a valid Waqf, having effect of taking away land from State and vesting in Allah?
(v) Whether registration of a Waqf with Sunni Central Waqf Board will take away the land from the State and District Magistrate/Collector will cease to have any jurisdiction to examine into correctness of such transaction when the land belongs to State of U.P. and governed by provisions of Act 1950 ?
11. Before answering aforesaid questions, we may place on record that learned counsel for petitioner when questioned, could not dispute and instead admitted that disputed land is an “agricultural land” having four co-tenure holders i.e. bhumidhari with transferable rights and petitioner is one of them. Three others are Khairullah, Saidur Rahman and Purushottam.
12. In order to examine plea of petitioner that a ‘Waqf’ was validly created at the disputed land/site and a Mosque was constructed, we inquired from learned counsel for petitioner whether a ‘Waqf’ could have been created by dedicating land to Allah which is owned by State and petitioner is only a co tenure-holder, that too, with transferable rights but capacity of petitioner is only that of a ‘tenant’ under the provisions of Act, 1950. To this question, learned counsel for petitioner could give no reply and said that there is no bar in creating a ‘Waqf’ on an ‘agricultural land’ even if a person holding Bhumidhari rights is not owner of the land.
13. Issue-(i) relates to the concept of Waqf i.e. basic law relating to ‘Waqf’.
14. Creation of ‘Waqf’ was held valid and lawful by 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 a piece of land in Khaiber whereupon he came to Prophet and sought his counsel to make the most pious use of it. 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 land itself might not be sold, nor conveyed by gift, nor inherited. It is said that Waqf continued in existence for several centuries until the land became waste.
15. Prophet of Islam not only declared such works to be valid and lawful but also encouraged their creation by dedicating his own property, the little that he had, in favour of posterity. A Division Bench of Calcutta High Court in Meer Mahomed Israil Khan Vs. Sashti Churn Ghose and others, 19 ILR (Calcutta) (1892) 412.Though Justice “Ameer Ali” answered the question, what constitutes a lawful Waqf under Mussulman law and observed that there must be a substantial dedication for charitable or pious purpose. His Lordship observed:
“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.”(emphasis added)
16. 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. 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 (aslcorpus) 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.” (Emphasis added)
17. 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.”
18. 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 the 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 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, property in the wakif is divested and vests in the Almighty.
19. 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 property of owner may be extinguished and its profit may revert to or be applied for the benefit of mankind except for the purposes prohibited by Islam.
20. It may, however, be clarified at this stage that 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 identified on page 630-631 of the book as under :
(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.
21. The distinction between Waqf and sadaqah is that in the case of former income only can be spent while in the case of latter corpus of property may be consumed.
(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.
(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.
22. Apparently, Islam is not a necessary condition for constitution or creation of a Waqf. It may be made by a Muslim or a Non-Muslim. The necessary condition for creation of a Waqf is the object thereof.
23. In his book “Mahommedan Law”, Syed Ameer Ali, describes Mosques and Idghas or Musalla as follows:
“The word masjid is derived from sijda, devotion, and means a place of devotion or a place where prayers are offered to the Almighty.
A very fair description of an ordinary Mosque is given by Herklot in his Qanoon-i-Islam. Musallas are prayer-grounds, and the word is derived from the word salat or prayers. In India, they are generally called Idgahs or namaz-gahs, and consist of a plot of ground set apart for the performance of the daily prayers or the Id prayers.”
“Every ground set apart for prayers is not necessarily a musallah and subject to the rules governing a Mosque. A musalla is a place where funeral prayers or the prayers of the two Ids are usually offered. In such cases only the place where the congregation gather and the worship is performed that is governed by the rules governing a Mosque.”(Mahommedan Law by Syed Ameer Ali, 5th Edn. Reprint 2009, published by Hind Publishing House, Allahabad, p. 418, 419 and 420)
24. In “Hindu and Mahomedan Endowments” by Abdur Rahim 1918.” Chapter XIV relating to “Mohammeden Law of Waqfs” it has been said:
“It may be a truism to say that the appropriator can only constitute such property as wakf as over which he has a disposing power. If he is not the owner of the property, no wakf can attach. This is also the Shiah Law. Although this may be a t.ism certain other consequences may appear to flow from this. It may be thought that if somehow the appropriator acquires the ownership later on or the true owner consents later on, the wakf will not be affected. The former part of the statement at that seems, however, not to represent the Mahomedan Law. Thus Baillie in his Digest of Mahomedan Law says: “It is also a condition that the thing appropriated be the appropriator’s property at the time of the appropriation; so that if one were to usurp a piece of land, appropriate and then purchase it from the owner, and pay the price, or compound with him for other property, which is actually delivered up it will not be a wakf. Then a man make an appropriation for certain good purposes if had belonging to another, and then becomes the proprietor of the wakf is not lawful, though it becomes so if allowed by the proprietor.” so also, according to the Shiah Law, “if one should appropriate a thing which is not his own, the wakf will not be valid. But if the real owner should sanction the appropriation, that will give it validity according to some of .doctors, the sanction being tantamount, in their opinion, to the new appropriation.” If the appropriator is owner only of the shares out of 16 and purports to make the whole wakf it will good to the extent of the appropriator’s share.
If possession is necessary for the validity of a wakf the some other consequences flow from the condition that a person should own the property which he appropriates as wakf. Thus it is said in Baillie : “If a bequest were made of land of which the legatee immediately makes a wakf, after which the testator dies, the land is not wakf; or if a donee of lands should make an appropriation of it before taking possession, and should make an appropriation of it before taking possession, and should thus take possession, the wakf will not be valid. Yet if possession were taken of land given by an invalid gift, and it were then made a wakf, it will be lawful, the donee being responsible for its value; and if one should purchase by an invalid sale, take possession, and then make an appropriation of the subject of sale in favour of the poor, the wakf will be lawful, subject to the like responsibility for its value to the seller; but if the appropriation were made before taking possession, it will not be lawful. When a man buys land by a lawful sale and make an appropriation of it before taking possession and paying the price, the matter is in suspense until he pays the price and takes possession, when the wakf is lawful, but if he die without leaving any property, the land is to be sole, and the wakf is void. And if a right is established in the property or it is claimed by a shoofee, under his right of pre-emption, after the purchase has been made, the wakf is void.” The principle deducible from the above is that a wakf of property before the full proprietary rights in it have vested in the person appropriating it is, generally and subject to certain exceptions, invalid.”(emphasis added)
25. Again in “Principles of Mahomedan Law” by Sir D.F. Mulla, First Edition 1906, 19th Edition revised by Mr. M. Hidayatullah in 1990 (Fourth Reprint in 1993). Paras 174 and 176 say as under:
“174. The dedication must be permanent.- The dedication must be permanent. A wakf, therefore, for a limited period, e.g., twenty years, is not valid. Further, the purpose for which a wakf is created must be of a permanent character.”
“176. Subject of wakf must belong to wakif.- The property dedicated by way of wakf must belong to the wakif (dedicator) at the time of dedication. A person who is in fact the owner of the property but is under the belief that he is only a mutawalli thereof is competent to make a valid wakf of the property. What is to be seen in such cases is whether or not that person had a power of disposition over the property.”(emphasis added)
26. A Mosque built without the consent of land owner is against the wishes of Allah and is clearly prohibited. In “Principles and precedents of Moohummudan Law” by W.H. Macnaghten, 1825 (Second Edition), Chapter X, Case No. V page 335 which deals with the case of Mosque built without the consent of the land owner, the learned Author refers to the following:
“Both land and building are included in the term Mosque. It is neither simply land nor simply building but it comprises both. The land is the chief part of it because the foundation of the Mosque stands upon it and the superstructure is dependent on the land. Under these circumstances without the consent of the Fakeer who is the landlord, the building cannot in the legal sense be termed a Mosque because no one is at liberty to erect a building on the land of another without that other’s consent and if he do so the law sanctions its being razed to the ground.”(emphasis added)
27. At page 336-337 W.H. Macnaghten has quoted “Kazee Khan” as under:
“The appropriation of a superstructure without its basis is not allowable, an edifice independently of its founder is not a Mosque. Further as per Shurhi Viqya if anyone build or plant on the land of another let the thing built or planted be razed or rooted out.” (emphasis added)
28. In “The Law Relating to Gifts, Trusts and Testamentary Dispositions Among the Mahommedans” by Syed Ameer Ali (Tagore Law Lectures, 1884) at page 236 and 337,it says:
“A sovereign cannot give any portion of the land acquired by treaty and negotiation to be converted into a Mosque without the consent of the owners, but he can give any portion of the land acquired by war, provided it does not interfere with the rights of way possessed by any individual.”
Hedaya is quoted as ” If a person usurps land and build and plant thereon , he will be desired to eradicate and raise his plants or buildings” (emphasis added)
29. In “A Digest of Moohummudan Law” by Neil B.E. Baillie (1875), Chapter VII, page 616, title “How a Musjid is Constituted” says:
“A sick man has made his mansion a Musjid and died but it neither falls within a third of his property nor is allowed by his heirs: the whole of it is heritage and the making of it a Musjid is void because the heirs having a right in it there has been no separation from the rights of mankind and a confused portion has been made a Musjid which is void.”
30. In “The Hedaya” (A Commentary on the Mussulman Laws) translated by the order of the Governor General by Charles Hamilton (Premier Book House, Lahore), says:
“If a person converts the centre hall of his house into a Mosque giving general admission into it, still it does not stand as a Mosque but remains saleable and inheritable because a Mosque is a place in which no person possesses any right of obstruction; and wherever a man has such a right with respect to the surrounding parts the same must necessarily affect the place enclosed in them. The place, therefore, cannot be a Mosque; besides it is necessarily a thoroughfare for the family and consequently does not appertain solely to God.” (emphasis added)
31. “The History of Islam” by Akbar Shah Najeebabadi, revised by Safi-ur-Rahman Mubarakpuri, published by Darussalam, Riyadh, Saudi Arabia is said to be written in Urdu Language in 1972 and became a classic thereafter. It contains an authentic events in concise form from the famous histories of Islam written in Arabic and Persian languages. Its English translation was done by Darussalam in three volumes. Vol. I page 148 of the above work narrates stories of prophet into Al-Madinah. There is a specific reference about a deserted land being property of two orphan boys ‘Sahl’ and ‘Suhail’. The said land was offered by Muadhbin Afra for building a Mosque as the two orphan boys were related to him and he would make them part of the land. But Prophet asserted “I want to buy it and will not take it without paying the price.”
32. Thus authentic real life of Prophet shows that Holy and Noble soul imposed strict injunctions for building a Mosque, i.e., land of an orphan despite the consent of guardian was not agreed to be taken unless price is paid for.
33. We may also refer to certain extracts of “Holy Quran” by Mohammad Abdul Haleem Eliasi, translated in English by Abdullah Yusuf Ali, first published in 1934 revised edition 2000 by Eliash Family Book Service, Charminar, Hyderabad, India as contained in:
“Chapter-II (The Cow-II), Part-III, at Page 44, Verse 256:”Let there be no compulsion in religion”.
Chapter-II (The Cow-II), Part-I, Page 7, Verse 42:”And cover not Truth with falsehood nor conceal the Truth when ye know (what it is).”
Chapter-III (The Family of Imran-III), Part-IV, at Page 71, Verse 140:”Allah loveth not those that do wrong.”
Chapter-VII (The Heights), Part-IX, Page 170, Verse 157:”For He commands them what is just and forbids them what is evil; He allows them as lawful what is good (and pure) and prohibits them from what is bad (and impure).”
34. Meaning of the word ‘Islam’ means peace and submission. Koran is Al-Furqan, i.e., one showing truth from falsehood and right from wrong. Hence any Mosque against Quranik injunctions would be void ab initio.
35. Dr. Paras Diwan in ‘Law of Endowments, Waqfs and Trust’ has mentioned about first Waqf in Islam and said:
“The Wakfs are founded on the two traditions of the Prophet though the fact of the matter is that they were developed in the later Islam by ijma, the consensus of the learned. The first wakf in Islam came into existence in the following circumstances: The land on which the prophet laid the foundation of Masjid Navi in Medina in the first century of Islam belonged to two orphans. The Prophet insisted to pay the price of land, but the orphans entered. “No, by God we will not take the price, we will take it from God”. The second tradition is: One omer Ibn-al-khattab on acquiring land in Khyber went to the Prophet and sought his counsel as to how could be make the best use of the land, for a pious and charitable purpose. The Prophet declared, “Tie up the property (corpus) and devote the usufruct to human beings, and it is not to be sold or made the subject of gift or inheritance; devote its produce to your children, your kindered and the poor in the way of God. “Acting accordingly, Omer laid down that the property would not be sold or given away in gift, nor would it devolve by succession; its income would be devoted to charity, for the poor, slaves should be freed, provisions should be made for travelers, and guests should be entertained.” (emphasis added)
36. In order to constitute a ‘Waqf’ ownership of land is mandatory. A property partly cannot be occupied by muslims and Hindus so as to constitute a Waqf.
37. If there is no valid creation of ‘Waqf’ the fact that prayers offered therein would not make it a ‘Waqf’.
38. In ‘Law of Endowments (Hindu and Mohammedan)’ by A. Ghosh 2nd Edn. Published by Eastern Law House, Calcutta it is said that the Waqf is the detention of a thing in the implied ownership of Almighty God, in such a manner that its profits may revert to or be applied for the benefit of mankind; and the appropriation is obligatory, so that the thing appropriated can neither be sold, nor given, nor inherited. Under Shia law, Waqf is a contract while under the Sunni law, it is a unilateral disposition of property, and as such not subject to the rules of contract. In respect of Shia law of Waqfs, Learned Author has said on page 491-492, as under:
“Perhaps the most notable of these cases is Wasiq Ali Khan v. The Government which, though a case relating to a Shia Wakf, viz, the celebrated endowment under the will of Haji Muhammad Mohsin for the Imambara at Hooghly was dealt with by the Sadar Dewani Adalat upon the principles of the Sunni school of Mahomedan law which was then prevalent as the Mahomedan law administered by the Courts of British India. The case was decided so long ago as the 22nd of September 1836, and it is a matter of doubt whether in those days the Shia law was ever administered by the Courts of the British India as the rule of decision, even when Shias were concerned. Mr. Baillie at the outset of the introduction to his Imameea law describes the history of the manner in which the Shia law came to be recognised in India, and it may be safely stated that it was not till the ruling of their Lordships of the Privy Council in Rajah Deedar Hossien v. Ranee Zahooroon-nissa decided in 1841 that the enforceability of the Shia law by the British Courts in India was placed upon a firm footing. In that case their Lordships observed, ‘it is true that the Sunni law has generally prevailed, because the great majority of the Indian Mahomedans are Sunnis, there being very few families of the Shia sect except those of the reigning princes, which will account for the prevalence of the Sunni doctrines in the Courts, but there is no practice which excludes the application of the Shia law to the rights of persons professing the tenants of that sect.”(emphasis added)
39. In Sunni law, according to Abu Hanifa, detaining of it in the ownership of the appropriator, but without the power of alienation, and a bestowing of its produce in charity. The learned Author on page 498-499 says:
“It must, therefore, be taken that the Shia law recognises wakf not as a unilateral disposition of property, as it is recognised in the Sunni law, but as a contract which, according to the requirements of juristic notions, irrespective of either of these two systems, must be a transaction inter vivos, and this ex necessitate rei. The Sharayi-ul-Islam in describing the rule as to wakf goes on to say: Conditions that relate to the Waqf itself, which are four in number, first, it must be perpetual; second, absolute and unconditional; third; possession must be given of the mowkoof, or thing appropriated , and, fourth it must be entirely taken out if the waqif or appropriator himself. So that if the appropriation is restricted to a particular time or made dependent on some quality of future occurrence, it is void.’ Under the Shia law, a wakf can be created by will. A mental act although afterwards sufficiently expressed in conduct will not, unless clothed in appropriate words, create a wakf. A mere statement in a will of some gift in the past cannot be referred back to the date, still undetermined, when that gift is afterwards alleged to have been made, or such a narrative statement cannot in any view be an adequate substitute for the oral deceleration of dedication to God, which the Mahomedan law appears imperatively to require, synchronously with the act of dedication itself. There is a plain distinction between giving in charity and declaring that one had given in charity. And for the purpose of fixing the origin of the wakf, if there is a wakf at all, the mere statement in a will that at some past date the testator had set apart such and such funds for charitable objects, is of comparatively slight value. Where there has been no actual delivery a clear declaration is necessary to create a valid wakf. “The Mahomedan law, which only allows a testator restricted powers of disposition over his property, contains no such restriction as regards gifts inter vivos but does not recognise such gifts as valid unless possession is given to the donee. This also applies to wakfs or gifts for religious or charitable purposes, at any rate among Shias. Further, in the case of wakfs or gifts for charitable purposes, the Shia law imposes a further restriction that the wakif or settlor shall not retain for himself any interest in the subject or the gift. This restriction, for which reasons of a religious character are assigned, undoubtedly operates as check on the creation of wakfs not from purely religious motives, but with a view of defeating the rights of heirs and transmitting the possession and control of the settlor’s property after his death to other persons in the character of mutawallis. This restriction is the last of the four conditions as to the validity of wakfs laid down in the Suraya, the leading Shia authority, as follows: ‘(i) It must be perpetual; (ii) absolute and unconditional; (iii) possession must be given of the mowkoof of the thing appropriated, and (iv) it must be entirely taken out of the wakif or appropriator himself. Where the settlor under colour of fixing her salary as mutawalli, was really reserving for her life-time a portion of the income or usufruct of the property far in excess of what was assigned in the deed to future mutawalis or could reasonably have been assigned to them, it was a clear violation of the condition.” (emphasis added)
40. On page 600-601, with respect to ‘Mosque’, it says:
“Where a Mosque is a public Mosque open to the use of all Mahomedans without distinction of sect, a Mahomedan who, in the bonafide exercise of his religious duties in such Mosque, pronounces the word ‘Amin’ in a loud tone of voice, according to the tenets of his sect, does nothing which is contrary to the Mahomedan ecclesiastical law or which is either an offence or civil wrong, though he may by such conduct cause annoyance to his fellow worshippers in the Mosque. But any person, Mahomedan or otherwise, who goes into a Mosque not bonafide for religious purposes, but malafide to create a disturbance there and interferes with the devotion of the ordinary frequenters of the Mosque, will render himself criminally liable. A Mosque, from its very nature, is dedicated for worship and is open to all Muslims local and others. It is dedicated for a specific purpose and not to the local Muslims for such benefit as they may choose to derive therefrom. They cannot of right claim to use it for any other purpose however meritorious or beneficial it may be to the members of the local Muslim community. “It is a well recognised principal that if a person has an undoubted legal right to say his prayers in a Mosque the Courts cannot refuse to recognise that legal right merely because an anticipated breach of peace is to be committed by the other side. A Mosque does not belong to any particular sect; for once it is built and consecrated, any reservation for people of a particular locality or sect is void, and persons not belonging to that locality or sect are entitled to worship in it, whether or not any particular sect had contributed towards the site or the building of the Mosque and had been saying their prayers in it and every person who believes in the unity of God and the mission of Mahammad as a prophet is a Mussalman, to whatever sect he may belong, and that the Shias satisfy the test; and that there is no such thing as a Sunni or a Shia Mosque though the majority of the worshippers at any particular Mosque may belong to one or other sect either generally or at various times.” In Mahomedan law there can not be any private Mosque. When once a place is dedicated to be a Mosque, it becomes public property, it is property of God. Therefore where a person in charge of such a Mosque claims the property as his private estate, he is liable to be removed from charge of such Mosque. But there can be right of exclusion in case of Mosques belonging to a particular sect.” (emphasis added)
41. In Syed Mohd. Salie Labbai others Vs. Mohd. Hanifa others AIR 1976 SC 1569, Court has said as under:
“The word “wakf” means detention or appropriation. According to the well recognized Hanafi School of Mahomedan Law when a Mahomedan dedicates his property for objects of charity or to God, he completely parts with the corpus which vests in God and never returns to the founder. Mahomedan Law contemplates two kinds of Wakfs- a wakf which is private in nature where although the ultimate object is public charity or God. but the property vests in a set of beneficiaries chosen by the founder who appoints a Mutawalli to manage the wakf property. (emphasis added)
42. We find that in a simple and well elaborated manner various aspects of Waqf are contained in Islamic religious scriptures. It is really strange, despite such clarity in the thoughts and its solution contained in Shariyat scriptures, exceptionally large number of cases have come up before British Indian Courts, as well as Indian Courts after independence, involving disputes relating to Waqf and Waqf property. We propose to consider some of the authorities, relevant on this aspect.
43. All the authorities are unanimous that when a Waqf is created by construction of a Mosque and it is consecrated by a public worship, it ceases to be a property of builder and vests in God. Rights of Appropriator is extinguished and property becomes that of God.
44. In the context whether a public Mosque open for worship to all Muslim irrespective of the fact that there is a difference in the manner of offering of Namaz in different sects, came to be considered before a Full Bench of this Court in Jangu and others Vs. Ahmad Ullah and others 1889-1891 ILR 13 (All.) 419. While holding that in a public Mosque all Mohammedans are entitled to offer prayer, Justice Mahmood in his concurrent but separate judgment referred with approval his earlier observation in Queen-Empress VS. Ramzan ILR, 7 All. 461 and therein made observation that construction and consecration of Mosque results in cessation of ownership right of builder and same vests in God. His Lordship said:
“Now, it is the fundamental principle of the Muhammadan law of wakf, too well known to require the citation of authorities, that when a Mosque is built and consecrated by public worship, it ceases to be the property of the builder and vests in God (to use the language of the Hedaya) ‘in such a manner as subjects it to the rules of Divine property, whence the appropriator’s right in it is extinguished, and it becomes a property of God by the advantage of it resulting to his creatures.’ A Mosque once so consecrated cannot in any case revert to the founder, and every Muhammadan has the legal right to enter it, and perform devotions according to his own tenets, so long as the form of worship is in accord with the recognized rules of Muhammadan ecclesiastical law. The defendants therefore were fully justified by law in entering the Mosque in question and in joining the congregation, and they were strictly within their legal rights, according to the orthodox rule of the Muhammadan ecclesiastical law, in saying the word ‘amin’ aloud.” (emphasis added)
45. His Lordship further held :
“I have no doubt that under the Muhammadan law of wakf, and the Muhammadan ecclesiastical law, which we are bound to administer in such cases under s. 24 of the Civil Courts Act (VI of 1871), the provisions of which have been reproduced in s. 37 of Act XII of 1887, a Mosque when public is not the property of any particular individual or even a body or corporation of any other human organization which in the law has a personality. In the eye of the Muhammadan law a Mosque is the property of God, it must be recognized as such, and subject only to such limitations as the Muhammadan ecclesiastical law itself provides, it is public property, being the property of God for the use of his servants, and every human being is entitled to go and worship there so long as he conforms to the rules of the Muhammadan ecclesiastical ritual of worship.” (emphasis added)
46. In Ata-Ullah another Vs. Azim-Ullah another 1889 ILR 12 (All.) 494 another decision was rendered by a five-Judges Bench of this Court on 5th November, 1889, i.e., the very next day when Full Bench judgment in Jangu Vs. Ahmad Ullah (supra) was rendered wherein also a similar question was considered, whether Mohammedans of different sects as a matter of right can offer prayer in a public Mosque built by one of the sect of Mohammedans. Facts show that the Mosque was built by Hanafis sect of Mohammedans and used as their place of worship since inception. Plaintiffs described themselves as Muhammadis to whom defendants, i.e., “the Hanafi sect of Muslims” called Wahabis, sought to offer prayer in the above Mosque which was objected to by defendants saying that the system of prayer of two is different, therefore, plaintiffs cannot offer prayer in the Mosque established by Hanafi sect of Muslims. Rejecting this contention it was held by Sir John Edge, Kt., Chief Justice:
“…no authority has been brought to our notice to show that a mosque which has been deviated to God can be appropriated exclusively to or by any particular sect or denomination of the Sunni Muhammadans, and without very strong authority for such a proposition, I for one could not find as a matter of law that there could be any such exclusive appropriation. As I understand, a Mosque to be a mosque at all must be a building dedicated to God and not a building dedicated to God with a reservation that it should be used only by particular persons holding particular views of the ritual. As I understand it, a Mosque is a place where all Muhammadans are entitled to go and perform their devotions as of right, according to their conscience.” (emphasis added)
47. Division Bench of Bombay High Court in Said Maher Hussain Vs. Haji Alimahomed Jalaludin and others, AIR 1934 Bombay 257 has summarised essential conditions to constitute a Waqf and on page 264 has held:
“there must be a declaration of dedication which should be made contemporaneously with the act of dedication …… The wakif must divest himself of the ownership of the property …….. Physical delivery is not essential, but such possession as is possible must be given.” (emphasis added)
48. About ‘Mosques’, it had been observed that there are some special rules. Wilson’s Anglo-Mahomedan Law, Amir Ali’s Muhammadan Law and Tyabji’s Principles of Muhammadan Law are referred to and Bombay High Court then said:
“When once a building has been set apart as a Mosque it is enough to make it wakf if public prayers are once said there with the permission of the owner. But though a declaration of dedication and completion by some act giving practical effect to it are essential, it was not always necessary that there should be any direct evidence of these things. Dedication may be inferred from long user as wakf property . . . . . . there can be no doubt as to this principle which is recognised in all the text books.”
49. In Har Prasad and others Vs. Fazal Ahmad and others, AIR 1933 PC 83 it was held that the capacity and intention of wakif at the time of executing Waqfnama is relevant and crucial. If subsequently it is found that the Waqfnama was executed believing certain facts existing which subsequently found non existing, the Waqf, merely because the Waqfnama was executed, would not stand created.
50. In Commissioner of Wakfs and another Vs. Mohammad Moshin, AIR 1954 Calcutta 463 a Division Bench of Calcutta High Court held that Waqf is a purely Mohammedan institution and concept. Its creation and incidents are governed by Mohammedan law. Court cannot sanction creation of Waqf contrary to Mohammedan law. In Mohammedan law no one but owner of property can make a Waqf of it. In that case a Waqf was sought to be created on behalf of a minor by a guardian and that was claimed to be sanctioned by District Judge under Section 29 of Guardians and Wards Act 1890. Court held it impermissible in law for reason that Mohammedan law says that a minor cannot create a Waqf. If the creation of Waqf by guardian is really an act of the minor through the guardian, then to uphold it would amount to allowing something being done indirectly which could not be done directly. Court also observed that the idea of agency in relation to an infant is foreign to Muhammadan law and from that point of view also guardian under Muhammadan law has no power to make a Waqf of the ward’s property as “Creator himself is not owner of the property.”
51. In N.C.Ramanatha Iyer Vs. Board of Commissioners for Hindu Religious Endowments, Madras AIR 1954 Madras 492, Court observed that dedication is a fact which can be inferred from the circumstances of the particular case and need not necessarily be based upon documentary evidence. It also observed following the commendation of P. B. Ganapathi Aiyar’s Hindu Mahomedan Endowments at’ page 136 that a fluctuating body of persons such as a village community is even capable of owning property, according to Hindu law. For that proposition various authorities are quoted by the learned author. Again at page 705 there is, a discussion regarding members of a caste owning temples whether, such temples are public or not. Court quoted the following observation therefrom:
“Though a temple may belong to a particular caste in the sense that the members thereof founded and subscribed for the same, it may not – be public though it is very difficult to say how it is not. Where the temple thus founded and maintained by a caste is open for public worship and inams have been granted by former Rajahs there can be no doubt that the institution is public.”
52. The term “Waqf” has been considered in the light of law of Islam in Faqruddin Vs. Tajuddin 2008 (8) SCC 12 and in para 35, it says:
“`Waqf’ would mean taking out something out of one’s ownership and passing it on to God’s ownership dedicating its usufruct – without regard to indigence or affluence, perpetually and with the intention of obtaining Divine pleasure – for persons and individuals, or for institutions or Mosques and graveyards, or for other charitable purposes.”
53. In Musaheb Khan Vs. Raj Kumar Bakshi, AIR 1938 Oudh 238, question was whether a compound having a Mosque, an Imambara and a number of tombs are liable to be attached and sold in execution of a decree obtained against their owner, inasmuch as they were alleged to have become dedicated property of Waqf, on account of a term contained in the will executed by the owner, whereby he had transferred full proprietary rights to a legatee and his representatives in perpetuity, but had made a direction to continue certain religious celebrations on the premises. Chief Court of Oudh referring to certain passages appearing in Baillie’s “Commentary on Mohammedan Law”; Syed Ameer Ali’s “Principles of Mohemmadan Law” and Tyabji’s “Mohammedan Law”, held:
“Even if a Mosque, that is a building having the appearance of a Mosque, is built in a place which is not enclosed, that is, is not situated in such a man’s house, something more than the mere appearances of a Mosque are needed before it will become entitled to be treated as a Mosque for all time. There must be proof of dedication or of permission or of user such as by the saying of prayers in congregational manner . . . . . the mere construction of a Mosque in a private house does not make it a Mosque in the sense of a public place of worship.”
54. In Khalil Ahmad and another Vs. Sheikh Mohd. Askari and others, AIR 1965 Allahabad 320, question came up for consideration was whether building in dispute was a public Mosque or a private place of worship. A Single Judge of this Court held that before a building can be said to be a public Mosque, the requisite essentials are (i) the building must be set apart as a Mosque; (ii) public prayers must have been said in it at least once, even with the permission of the owner; and (iii) there must have been long user of the same as a place of worship by the public at large. This Court also held that like a private chapel in England or a private Hindu temple in India there could also be a private Mosque for offering prayers by the owners and members of his family, and such private Mosque are not unknown in India. The two glaring examples of such Mosques are in the Red Fort at Delhi and Agra, where members of Mughal Royal family used to offer prayers in the Mosques situate within the four walls of their forts. Court further observed, “obviously it could not have been suggested that simply because those buildings were shaped and domed like Mosques and the members of the royal family regularly offered prayers therein, the same had become wakf property so as to entitle the general public to get into such private Mosques and offer prayers in congregation as of right.” (Emphasis added)
55. From the above authorities it can be summarized that the term ”Waqf’ means detention, stopping or tying up. In legal terms Waqf is: (i) an unconditional, (ii) irrevocable, (iii) perpetual, (iv) dedication of property, (v) vested in God, (vi) the ownership of the founder, called waqif is extinguished, (vii) the usufruct or profits of the property are used for the benefit of mankind, (viii) except for purposes forbidden by Islam.
56. In Kerala Waqf Board, Ernakulam vs Valia Maliyekkal Koyanji, AIR 1985 Kerala 228 Court said that Waqf literally means that ownership of dedicated property is taken away from the person making Waqf and transfered and detained by God.
57. In Andhra Pradesh Waqf Board vs S. Syed Ali Mulla And Others, AIR 1985 AP 127 Court said that Waqf is a permanent dedication of property for a purpose recognized by Muslim Law as pious, religious or charitable.
58. In N.R. Abdul, Azeez Vs. Sundaresa Chettiar, AIR 1993 Madras 169, Court said that it is fundamental principle of Muslim Law of Waqf that once a mosque is built, it vests in God and even the builder ceases to have any right in it. Once a mosque is constructed it is dedicated to God.
59. Calcutta High Court noticed some conflict in the view of Baillie and that of Macnaghten and Hamilton but thereafter followed the basic authority, the ‘Hedaya’ as read by Abu Hanifa and following the view expressed by Bombay High Court in Abdul Ganne Kasam Vs. Hussein Mirza Rahimullah, 10 Bombay HCR 13. It held that to constitute a valid Waqf there must be dedication of property solely to the warship of God or to religious or charitable purposes.
60. In Fatima Bibi Vs. The Advocate General, (1882) ILR 6 Bom 42, Court observed “A Wakf must be certain as to the property appropriated, unconditional and not subject to an option.”
61. In Abdul Mabud Vs. Nawazish Ali, AIR 1925 Oudh 301, Court said that from the time of dedication, property ceases to be that of the Waqif and he severes all connections with the property as an owner.
62. In Abdul Khader Vs. Mohammed Ali, 1989 (2) Civil LJ 545, Kerala High Court said that under the Muslim Law, once a property becomes a waqf, it is vested in God and neither a person who dedicated the land as waqf nor the Mutawalli or the committee which administers such waqf has got any proprietary right therein. Mutawalli has a right to supervise or manage the property. He has no right to the property which is a waqf. The property is not vested in him.
63. In Wahid Ali another Vs. Mahboob ali Khan AIR 1935 Oudh 425, 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 property is vested in God, Mutwalli has no power of alienation and he cannot be compared with a Mahant of a Hindu religious endowment”.
64. In Anjuman Islamia others Vs. Munshi Tegh Ali others 1971 (3) SCC 814, it was held that if there is a very big property, the mere fact that there existed a Mosque and a School which is probably a Wakf property would not mean that the entire area is a Wakf property unless such evidence is made available. In order to show that the entire area is a wakf property on the basis of long and immemorable user, the evidence has to be produced to the effect that entire property is a wakf and not only the Mosque or the School and the land occupied thereat.
65. In Garib Das and others Vs. Munshi Abdul Hamid and others, AIR 1970 SC 1035 it was held that a Waqf inter vivos is completed by a mere declaration of endowment by the owner. It was also held that the Founder of a Waqf may constitute himself the first mutawalli and in such a case when Founder and the mutawalli are the same person, no transfer or physical possession is necessary. It is also not necessary in such a case that the property should be transferred from the name of the donor as owner into his name as mutawalli.
66. In “Ameer Ali’s Commentary on Mahommedan Law”, compiled from authorities in the original Arbic and revised by Justice S.H. Raza, 5th Edition (2004) (4th Reprint Edition 2009) on page 773, Appendix-I, there is Translation of Extracts relating to Wakf, The Shia Law and relevant extracts may be reproduced as under:
For the validity of a wakf several conditions are necessary some of them are the following- That the Wakif is the owner of the property, and that he possesses the capacity of disposition. If the wakif is under inhibition from insolvency the wakf is not valid.” (page 773)
Extract from Nihaya
“Whatever property a man possesses, a wakf thereof is lawful, whether it be held jointly or separated.” (page 777)
67. Quoting from “Radd ul-Muhtar, Vol. III, p. 571”, learned author in commentaries on Mahommedan Law (supra) has observed that “The proprietary right of the wakif in a building or ground set apart for prayers becomes extinguished either on the declaration of the wakif that he has constituted it a mosque or musallah or consecrated it for worship, or on the performance of prayers therein or thereon.”
68. The above authorities and discussion made above leave no manner of doubt that ownership of property of which wakf is to be constituted must vest in the Wakif but a Waqif himself does not possess right to direct or vest the property in anyone including the Allah or Almighty.
Issues-(ii) and (iii)
69. We can deal with both these issues together.
70. In the present case, petitioner is only a “Tenure-holder” and not owner of property and since it is agricultural land, it vests in State. In this regard, we may also refer to some provisions of U.P. Act 1950 to show status of petitioner vis a vis State of U.P. in respect of agricultural land.
71. Act 1950 itself came into force on 26th January 1951. Date of vesting however, in the notification under Section 4 is 1st April 1952 with the publication of notification under Section 4, consequences provided in Section 6 suo motu becomes operative and all rights, title, interest of all intermediaries in every estate ceased and vested in State of U.P. free from all encumbrances. The term ‘estate’ is defined in Section 3(8) and land is defined in Section 3(14) which read as under:
(8)”Estate” means and shall be deemed to have always meant the area include under one entry in any of the registers describe in clause(a),(b),(c) or (d) and ,in so far as it relates to a permanent tenureholder , in any register described in clause (e) of section 32 of the U.P Land Revenue Act,1909, as it stood immediately prior to the coming into force of this Act, or subject to the restriction mentioned with respect to the registers maintained under section 33 of the said Act or in a similar register described in or prepared or maintained under any other Act,Rule , Regulation or under relating to the perparation or maintenance of record of right in force at any time and include share in , or of an ‘estate.’
“(14) “land” expect in section 109,143,and 144 and chapter VII] means land held or occupied for purpose connected with agriculture, horticulture and animal husbandry and includes pisciculture and poultry farming.”
72. Section 129 of Act 1950 thereafter recognizes different classes of ‘Tenure’ and reads as under:
“129. Classes of tenure.- There shall be, for the purpose of this Act, the following classes of tenureholders, lthat is to say-
(1) Bhumidhar with transferable rights
(2) Bhumidhar with non-transferable rights
(4) Government Lessee.”
73. With respect to Waqf, Section 77 of Act 1950 declares that any Waqf created on or after 08.08.1946 in respect of any estate or part thereof acquired under Act, 1950, shall be recognized as such for assessment and payment of rehabilitation grant under Act, 1950.
74. Status of Bhumidhar came to be considered by this Court in Mst. Govindi Vs. State of U.P., 1952 ALJ 52AIR 1952 All. 88. M. Govind Vs. Up. AIR 1950, this court held that bhumidharis rights are new rights created by the statute and they are merely tenure-holders and not proprietors.
75. In J.K. Eint Works Vs. State of U.P., 1999 All CJ 19, Court held that Bhumidhars are not owners of the land. They are mere Tenure-holders.
76. Right of Bhumidhar, whether proprietary or not, has been considered by Supreme Court in Mahendra Lal Jaini Vs. State of Uttar Pradesh and others, AIR 1963 SC 1019 and the relevant observations made in paragraph 29 of the judgement are reproduced as under:-
“……………Therefore, the land in dispute vested in the State under S. 6 of the Abolition Act and became the property of the State. It is however, contended on behalf of the petitioner that if he is held to be a bhumidhar in proper proceedings, the land would be his property and therefore Chap. V-A, as originally enacted, if it is ancillary to Chap. II would not apply to the land in dispute. We are of opinion that there is no force in this contention. We have already pointed out that under S. 6 of the Abolition Act all ‘property of intermediaries including the land in dispute vested in the State Government and became its property. It is true that under S.18, certain lands were deemed to be settled as bhumidhari lands; but it is clear that after land vests in the State Government under S. 6 of the Abolition Act, there is no provision therein for divesting of what has vested in the State Government. It is however urged on behalf of the petitioner that he claims to be the proprietor of this land as a bhumidhar because of certain provisions in the Act. There was no such proprietary right as bhumidhari right before the Abolition Act. The Abolition Act did away with all proprietary rights in the area to which it applied and created three classes of tenure by S. 129 bhumidhar, sirdar and asami, which were unknown before. Thus bhumidhar, sirdar and asami are all tenure-holders under the Abolition Act and they hold their tenure under the State in which the proprietary right vested under S.6. It is true that bumidhars have certain wider rights in their tenures as compared to sirdars; similarly sirdars have wider rights as compared to asamis ; but nonetheless all the three are mere tenure holders-with varying rights under the State which is the proprietor of the entire land in the State to which the Abolition Act applied. It is not disputed that the Abolition Act applies to the land in dispute and therefore the State is the proprietor of the land in dispute and the petitioner even if he were a bhumidhar would still be a tenure-holder. Further, the land in dispute is either waste land or forest land (for it is so far not converted to agriculture) over which the State has proprietary rights and therefore Chap. II will clearly apply to this land and so would Chap. V-A. It is true that a bhumidhar has got a heritable and transferable right and he can use his holding for any purpose including industrial and residential purposes, and if he does so that part of the holding will be demarcated under S. 143. It is also true that generally speaking, there is no ejectment of a bhumidhar and no forfeiture of his land. He also pays land revenue (S.241) but in that respect he is on the same footing as a sirdar who can hardly be called a proprietor because his interest is not transferable except as expressly permitted by the Act. Therefore, the fact that the payment made by the bhumidhar to the State is called land revenue and not rent would not necessarily make him a proprietor, because sirdar also pays land Revenue though his rights are very much lower than that of a bhumidar. It is true that the rights which the bhumidar has to a certain extent approximate to the rights which a proprietor used to have before the Abolition Act was passed; but it is clear that rights of a bhumidhar are in many respects less and in many other respects restricted as compared to the old proprietor before the Abolition Act. For example, the bhumidhar has no right as such in the minerals under the sub-soil. Section 154 makes a restriction on the power of a bhumidhar to make certain transfers. Section 155 forbids the bhumidhar, from making usufructury mortgages. Section 156 forbids a bhumidhar, sirdar or asami from letting the land to others, unless the case comes under S.157. Section 189 (aa) provides that where a bhumidhar lets out his holding or any part thereof in contravention of the provisions of this Act, his right will be extinguished. It is clear therefore that though’ bhumidhar have higher rights than sirdars and asamis, they are still mere tenure-holders under the State which is the proprietor of all lands in the area to which the Abolition Act applies. The petitioner therefore even if he is presumed to be a bhumidhar can not claim to be a proprietor to whom Chap. II of the’ Forest Act does not apply, and therefore Chap. V-A, as originally enacted, would not apply: (see in this connection, Mst. Govindi V. The State of Uttar Pradesh, AIR 1952 All. 88)…..”
77. Court further held in Mahendra Lal Jaini (Supra) that under Section 6 of Act 1950 property of intermediaries vested in State of U.P. and became its (Government’s) property. It is also true that despite Section 18 whereunder certain land is deemed as bhumihdari land, but once the land vests in State Government under Section 6, there is no provision therein for divesting what has been vested in State Government.
78. The matter was also considered by a Division Bench of this Court in State of U.P. Vs. VI Additional District Judge and others (Writ Petition No. 3825 of 1976 and 3826 of 1976) decided on 13.4.2012 and therein Court said that on enforcement of Act 1950, land vested in State Government, who became owner thereof. It is also said that Bhumidhar has certain wider right than Sirdar and similarly a Sirdar has wider right than Asami but nonetheless all the three are tenure holders with varying rights under the State which is Proprietor of the entire land of the State of U.P., to which Act 1950 applies. The Court clearly said “Bhumihari rights are subordinate to proprietary rights of the State Government.”
79. The same view has been followed by another Division Bench of this Court in First Appeal No. 42 of 1977, The State of U.P. Vs. Daiya Charitable Society through Rani Brij Raj Kunwar, Secretary, decided on 8.4.2015. A Tenure-holder if transfers a land illegally or in contravention of provisions of Act 1950 may suffer consequences provided under Sections 166 and 167 of Act 1950.
80. Section 166 of Act 1950 says that any transfer made in contravention of provisions of Act 1950 shall be void. Section 167 provides consequences of a void transfer and read as under:
“167.(1) The following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely-
(a) the subject-matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances;
(b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances; and
(c) the transferee may remove other moveable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.
(2) Where any land or other property has vested in the State Government under sub-section (1), it shall be lawful for the Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom. For the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary.
81. Thus when the land vests in the State and Bhumidhar has transferable right only as a Tenure-holder and not owner of the land. By way of creation of Waqf, vesting of land in the God i.e. Almighty is not permissible since Waqif is not the owner of land and ownership having not vested in him cannot be vested in the God also.
82. However, we make it clear that if a declaration is made under Section 143 and thereby land is taken away from the purview of Act 1950, the position may change but not otherwise. It is admitted case of the parties in the present case that there was no declaration under Section 143 of Act 1950 and claim of petitioner with respect to creation of Waqf by vesting land in Allah is without any permission of competent authority. Therefore, it was in the teeth of provisions of Act 1950. More so, when petitioner is not owner of property in dispute and what is not vested in him, could not have been vested by him to anyone which will also include the Almighty God.
Issues- (iv) and (v)
83. Both these issues can be considered together.
84. Now coming to the Issues (iv) and (v) about effect of registration of alleged Waqf with Sunni Board, whether it will have any otherwise effect on the land in question, can it be said that District Magistrate cannot ignore status recognized by Sunni Board and land or the property would now be governed by law of Sharia and Wakf Act 1995 (hereinafter referred to as Act, 1995).
85. Here we find that very assumption on part of petitioner that U.P. Sunni Central Board of Waqf, Lucknow if registers a property as Waqf or a Mosque, this itself is conclusive to create a Waqf or with regard to status of Waqf, is misconceived and contrary to the concept of statutory law of Act, 1995.
86. Act, 1995 is only a statute for administration of Waqf and not to create a Waqf. We may examine here various statutes relating to administration of Waqf commenced since earlier Mohammedan Rulers in India, to fortify above observation.
87. The concept of Waqf in India got introduced with the establishment of Muslim rule. It appears that earlier ‘Sultan’ was supreme authority over 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, 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 who used to look into administration of Waqfs. At the local level, Waqfs used to be looked after by Qazis who also looked after Waqf cases. The administration of individual Waqf was responsibility of Mutawalli, which is still continuing. This kind of arrangement finds mention in detail in “Fatwai Alamgiri” said to have been prepared under the command of “Mughal Emperor Aurangzeb”.
88. 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, British Government enacted several laws to prevent fraud and waste, and to secure honest administration of such institutions. British Government did not interfere with personal laws of Hindus and Muslims like inheritance, succession, marriage and religious institutions.
89. In 1810, general superintendence of religious and charitable endowments vested in Board of Revenue and Board of Commissioners. Vide Bengal Regulations XIX of 1810 (The Bengal Charitable Endowment Public Building and Escheats Regulations, 1810), Board of Revenue was put in possession of landed and other properties of charitable and religious endowments, of both Muslims and Hindus. Regulations were obviously applicable to the area under 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 agreement of East India Company with Nawab of Awadh (Lucknow), said area of Oudh continued to be ruled by “Nawabs” till its annexation in 1856.
90. 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.
91. Religious Endowments Act, 1863 (Act 20 of 1863) was passed and properties relating to religious, charitable and public endowments were placed under the control of trustees, managers or superintendents. Local Committees were appointed which exercised powers of Board of Revenue or local agents.
92. In respect of Muslims in Oudh area, Oudh Laws Act XVIII of 1876 was enacted. Vide Section 3 thereof, laws to be administered in the case of Mohammadans would be the same as in East Punjab. East Punjab was governed by Punjab Laws Act IV of 1872 and Sections 5 and 6 thereof provided as under:
“5. In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions or any religious usage or institution, the rule of decision shall be–
(1) any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been, by this or any other enactment, altered or abolished, and has not been declared to be void by any competent authority;
(2) the Mahomedan law, in cases where the parties are Mahomedans,…. except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of the Act, or has been modified by any such custom as is above referred to.”
“6. In cases not otherwise specially provided for, the Judges shall decide according to justice, equity and good conscience.”
93. In respect of certain specified Waqfs in Husainabad area in Lucknow (Oudh), Husainabad Endowment Act, 1878 (Act 15 of 1878) was enacted.
94. In 1908, while 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.
95. Upto 1913 a Waqf was valid if effect of deed of wqkf was to keep property in substance to charitable uses.
96. In Abul Fata Mohammad Vs. Rasamaya, 22 IA 76 it was held by Privy Council that the primary object of Waqf, if is aggrandizement of family and gift to charity was illusory whether from its small amount or from its uncertainty and remoteness, Waqf, for the benefit of the family was invalid and no effect could be given to it. This decision caused lot of protest and dissatisfaction amongst Muslim communities in India since the said decision in particular paralyzed power of Muslims to make a settlement in favour of family, children and descendants or what is known as “Waqf-alal-aulad”.
97. Consequently, 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 law of “Waqf-alal-aulad” existed in all countries having Muslim population like Arabia, Central Asia, Persia, Afghanistan and India. It was represented that precepts of Prophet support family settlement amongst Muslim by way of Waqf. It is said that the following precepts of 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.”
98. Accepting claim of Muslims in India, Mussalman Waqf Validating Act, 1913 (Act No. 6 of 1913) (hereinafter referred to as the “Act 1913”) was enacted to validate Waqf created for the benefit of the members of family i.e. “Waqf-alal-aulad”. This Act came into force on 07.03.1913. The preamble of Act 1913 shows that it was enacted to declare 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 :
(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.” (emphasis added)
99. Section 5 of Act 1913 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 Act 1913 recognises concept of ‘Waqf’ as known in Shariyat Law.
100. Apparently, Islam is not a necessary condition for constitution of a Waqf. It may be made by a Muslim or a non Muslim but 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 the essential in the constitution of a wakf if the object for which a dedication is made is sinful, either according to the laws of Islam or to the creed of the 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 the Waqf must be lawful according to the religious creed of the maker as well.
101. Section 3 of Act 1913 however 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. It would be useful to reproduce Section 3 as under :
“3. It shall be lawful for any person professing the Mussalman faith to create a Waqf which in all other respects is in accordance with the provisions of Mussalman law, for the following among other purposes :-
for the maintenance and support wholly or partially of his family, children or descendants, and
where the person creating a Waqf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated :
Provided that the ultimate benefit is in such cases expressly or implicitly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character.”
102. Act 1913, however, having not been 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 Act 1913 could not be construed as validating deeds executed before 07.03.1913.
103. On 05.08.1923, “Mussalman Waqf Act, 1923” (Act No. XLII of 1923 (hereinafter referred to as “Act, 1923”) 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 said words were substituted by the words “all the Provinces of India”. The term “Waqf” was defined in Section 2 (e) of Act 1923 as under :
“2. In this Act, unless there is anything repugnant in the subject or context,-
(e)”wakf” means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable, but does not include any wakf, such as is described in section, 3 of the Mussalman Wakf Validating Act, 1913, under which any benefit is for the time being claimable for himself by the person by whom the wakf was created or by any of his family or descendants.” (emphasis added)
104. Section 3 of Act 1923 placed an obligation on a Mutwalli to furnish certain particulars in respect of Waqf property, income and expenses etc. within a period of six months from the date of commencement of Act 1923 to Court within the local limits of whose jurisdiction property of Waqf, for which the said person is mutwalli, is situated. Non compliance of Section 3 was made penal vide Section 10 of Act 1923.
105. Section 10 of Act 1923 provides consequences on failure to comply with the provisions of Sections, 3, 4 and 5 and reads as under
“10. Penalties.–Any person who is required by or under Sec. 3 or Sec. 4 to furnish statement of particulars or any document relating to a wakf, or who is required by Sec. 5 to furnish a statement of accounts, shall, if he, without reasonable cause the burden of proving which shall lie upon him, fails to furnish such statement or document, as the case may be, in due time, or furnishes a statement which he knows or has reason to believe to be false, misleading or untrue in any material particular, or, in the case of a statement of accounts, furnishes a statement which has not been audited in the manner required by Sec. 6, be punishable with fine which may extend to five hundred rupees, or, in the case of a second or subsequent offence, with fine which may extend to two thousand rupees.” (emphasis added)
106. A question arose, whether Court while exercising power under Section 10 can proceed to look into the question 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 Act 1923 or not. This question came to be considered before a Single Judge of Patna High Court in (Syed) Ali Mohammad Vs. Collector of Bhagalpur, AIR 1927 Patna 189. The question related to application of Act 1923 to property a where there was a dispute whether it was a Waqf property or not. Petitioner before 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 Act 1923 whereupon Collector referred the matter to District Judge who held property as a ‘Waqf property’. The question was whether order of District Judge was within jurisdiction or not. It was held by Patna High Court that there is no provision in the Act authorizing Court, as defined in Act 1923, to determine any property, if denied to be a Waqf property, whether a Waqf property, within the meaning of Act 1923. The Act neither authorizes Court to summon witnesses or to take evidence nor any procedure is prescribed for determining the question, whether any property is a Waqf property or not and no provision of appeal or revision is made if any such decision is made. It held that Act 1923 applies to admitted Waqfs and not the properties which are denied to be Waqf properties.
107. However, this view did not find favour with a Full Bench 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 Court to consider whether property is a Waqf property under Act 1923 or not, otherwise, it would defeat the very objective of the said Act. In the majority decision, Court said that it is a recalcitrant Mutawalli to whom Act 1923 intends to reach and if jurisdiction of Court is ousted as soon as a Mutawalli who has failed to observe provisions of Act 1923 denies the alleged Waqf that would defeat the very objective of legislature. It was held that application of Act 1923 does not depend upon the attitude which a Mutawalli may take with regard to origin of an alleged Waqf. 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) (emphasis added)
108. 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)
109. 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 transactions already completed in respect of rights, title, obligations, liability etc. shall not be affected in any manner.
110. Then came UP Waqf Act 1936 (Act No. 13 of 1936) (hereinafter referred to as UP Act, 1936) published in U.P. Gazette dated 20.03.1937. The above enactment was made for better governance, administration and supervision of certain classes of Muslim Waqf in the United Provinces of Agra and Oudh. Section 1 of UP Act 1936 provided for commencement, and extent; and reads as under:
“(1) Short title, commencement and extent.–(1) This Act shall be called “the United Provinces Muslim Waqfs Act, 1936.”
(2) This section and sections 2 to 4 shall come into force at once. The rest of the Act shall not come into force until such date as the local Government may, by notification in the Gazette, appoint in this behalf.
(3) It shall extend to the whole of the United Provinces of Agra and Oudh.” (emphasis added)
111. We may mention at this stage that Section 1(2) enforced only Sections 2 to 4 at once and rest was to come into force on such date as local Government by notification in the gazette may appoint in this behalf. Sections 5 to 71 of UP Act 1936 came into force on 01.07.1941 vide notification dated 20.06.1941 published in Government Gazette of United Provinces, Vol. LXIII, No. XXVI, Part-1, page 311 dated 20.06.1941 which reads as under:
“In exercise of the powers conferred by sub-section (2) of section 1 of the United Provinces Muslim Waqfs Act, 1936 (U.P. XIII of 1936), the Governor of the United Provinces is pleased to declare that sections 5 to 71 of the said Act shall come into force on the 1st day of July, 1941.”
112. 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 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.”
113. Section 2 of UP Act 1936 provided for applicability to certain category of ‘Waqfs’ and inapplicability to some other category of Waqfs and reads as under:
“2. Applicability of the Act.-(1) Save as herein otherwise specifically stated, this Act shall apply to all Waqfs, whether created before or after this Act comes into force, any part of the property of which is situated in the United Provinces.
(2) This Act shall not apply to-
(i) a Waqf created by a deed, if any, under the terms of which not less than 75 per cent, of the total income after deduction of land revenue and cesses payable to Government of the property covered by the deed of Waqf, if any, is for the time being payable for the benefit of the waqif or his descendants or any member of his family.
(ii) a Waqf created solely for either of the following purposes :
(a) the maintenance and support of any person other than the waqif or his descendants or any member of his family,
(b) the celebration of religious ceremonies connected with the death anniversaries of the waqif or of any member of his family or any of his ancestors,
(c) the maintenance of private immabaras, tombs and grave yards, or
(d) the maintenance and support of the waqif or for payment of his debts, when the waqif is a Hanafi Musalman; and
(iii) the Waqfs mentioned in the schedule : Provided that if the Mutawalli of a Waqf to which this Act does not apply wrongfully sells or mortgages, or suffers to be sold in execution of a decree against himself, or otherwise destroys the whole or any part of the Waqf property, the Central Board may apply all or any of the provisions of this Act to such Waqf for such time as it may think necessary.
Explanation. A Waqf which is originally exempt from the operation of this act may, for any reason subsequently, become subject to such operation, for example, by reason of a higher percentage of its income becoming available under the terms of the deed for public charities.”
114. The Schedule referred to in Section 2(2)(iii) of UP Act 1936 read 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.
115. Section 3 of UP Act, 1936 contained certain definitions as under:
“3. In this Act, unless there is anything repugnant in the subject or context–
(1) Interpretation clauses.–“Waqf” means the permanent dedication or grant of any property for any purpose recognized by the Musalman law or usage as religious, pious or charitable and, where no deed of Waqf is traceable, includes Waqf by user, and a waqif means any person who makes such dedication or grant.”
116. Chapter I which had Sections 4 to 24 dealt with Survey of Waqfs and Central Board of Waqfs. Section 4 dealt with Survey of Waqfs; Section 5 deals with Commissioner’s report and its publication in the Gazette.
117. Sections 6, 7 and 8 of U.P. Act 1936 show that there shall be two Waqf Boards namely, “Shia Central Board” and “Sunni Central Board of Waqf”. The constitution etc. thereof is provided from Section 6 to 17. Section 18 dealt with the functions of Central Board and reads as under:
“18. Function of the Central Board.- (1) The general superintendence of all Waqfs to which this Act applies shall vest in the Central Board. The Central Board shall do all things reasonable and necessary to ensure that Waqfs or endowments under its superintendence are properly maintained, controlled and administered and duly appropriated to the purposes for which they were founded or for which they exist.
(2) Without prejudice to the generality of the provisions of sub-section (1) the powers and duties of the Central Board shall be-
(a) to complete and maintain and authentic record of rights containing information relating to the origin, income, object, and beneficiaries of every Waqf in each district;
(b) to prepare and settle its own budget;
(c) to settle and pass budgets submitted by the mutawallis direct to the Board and any budget submitted to, but not approved by, a District Waqf Committee, provided that it is in accordance with the wishes of the waqif and the terms of the deed of Waqf;
(d) to settle and pass the annual budgets of the District Waqf Committees;
(e) to institute and and defend suits and proceedings in a court of law relating to-
(i) administration of Waqfs,
(ii) taking of accounts,
(iii) appointment and removal of mutawallis in accordance with the deed of Waqf if it is traceable,
(iv) putting the mutawallis in possession or removing them from possession,
(v) settlement or modification of any scheme of management;
(f) to sanction the institution of suits under section 92 of the Code of Civil Procedure, 1908, relating to Waqfs to which this Act applies;
(g) to take measure for the recovery of lost properties;
(h) to settle scheme of management and application of Waqf funds in accordance with the doctrine of cypres in case of those Waqfs, the objects of which are not evident from any written instrument or in cases in which the objects for which they were created have ceased to exist;
(i) to enter upon and inspect Waqf properties;
(j) to investigate into the nature and extent of Waqfs and Waqf properties and call from time to time for accounts and other returns and information from the mutawallis and give directions for the proper administration of Waqfs;
(k) to arrange for the auditing of accounts submitted by the mutawallis;
(l) to direct the deposit of surplus money in the hands of the mutawalli in any approved bank and to utilize it on the objects of Waqf;
(m) to supervise and control the District Waqf Committees;
(n) to administer the Waqf fund;
(o) to keep regular accounts of receipts and disbursement and submit the same in the matter prescribed;
(p) to institute when necessary an inquiry relating to the administration of a Waqf:
Provided that in the appointment of mutawallis or in making any other arrangement for the management of Waqf property the Central Board shall be guided as far as possible by the directions of the waqif, if any.”
118. A careful reading of U.P. Act 1936 as also all earlier enactments make it very clear that neither they created a Waqf nor diminished or terminated a Waqf nor affected a Waqf in any other manner. On the contrary, provisions were made only to provide a statutory body for better governance, administration and supervision of Waqfs to which said Act applied.
119. Further vide Section 2(1) of U.P. Act 1936 Act though it applies to all Waqfs, whether created before commencement of U.P.Act 1936 or thereafter, if any part of property of which Waqf is situate in United provinces but by virtue of Sub-section (2) of Section 2 certain classes of Waqfs were excluded. The exclusion under Sub-section (2) of Section 2 of 1936 Act was specific and 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 UP Act 1936.
120. The term ‘Waqf’ under 1936 Act 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. This statute does widen the definition of ‘Waqf’ so as to cover such Waqfs which were created by Non-Muslims.
121. However a cumulative reading of the entire U.P. Act, 1936 Act shows that it did not not govern rights of worship of Hindus or Muslims, as the case may be. The object of enactment was to provide better governance and administration in supervision of certain classes of Muslim Waqfs. The Waqfs to which the aforesaid Act applied were to be supervised and maintained by Central Boards, namely, Shia Central or Sunni Central Board, as the case may be, constituted under Section 6 of said Act.
122. At this stage it may be pointed out that there was some ambiguity between Section 8(1)(i) and Section 12. Noticing the same, vide U.P. Muslim Waqfs (Amendment) Act 9 of 1953 which received assent of the President on 26.02.1953, Section 12 was deleted and Section 8-A was inserted which was held valid by this Court in All India Shia Conference Vs. Taqi Hadi and others, AIR 1954 All. 124.
123. In 1954, Parliament enacted Waqf Act, 1954 (Act XXIX of 1954) (hereinafter referred to as ‘Act 1954’). The aforesaid Act though extended to whole of India except State of Jammu and Kashmir, but proviso to Section 1(3) thereof provided for 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.” (emphasis added)
124. Consequently, Act 1954 did not apply to State of U.P. since State of U.P. had its own Act i.e. U.P. Act 1936.
125. The State legislature then enacted U.P. Muslim Waqfs Act 1960 (U.P. Act No.XVI of 1960) (hereinafter referred to “Act 1960”). This U.P. Act, 1960 received assent of President of India on 27th August, 1960 and published in U.P. Gazette Extraordinary on 3rd September, 1960. Vide Section 1(3) of Act 1960, it came into force at once. Section 2 of Act 1960, provided for application 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). (emphasis added)
126. Vide Section 85 (2) of Act 1960, U.P. Act 1936 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 following provision was inserted in Section 85(2) of Act 1960:
“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) ;
the Charitable Endowments Act, 1890 (Act XX of 1890) ;
(4) the Charitable and Religious Trusts Act, 190 (Act XIV of 1920):”
127. There was saving provision in Section 85 by way of proviso which read as under :
“Provided that this repeal shall not affect the operation of those Acts in regard to any suit or proceeding pending in any Court or to an appeal or an application in revision against any order that may be passed in such suit or proceeding and subject thereto, anything done or any action taken in exercise of powers conferred by or under those Acts shall unless otherwise expressly required by any provision of this Act, be deemed to have been done or taken in exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing was done or action was taken.”
128. Besides, Section 28 of U.P. Act 1960 provides saving of Waqfs already registered and provides as under :
“Savings U.P. Act XIII of 1986.- A Waqf registered before the commencement of this Act under the U.P. Muslim Waqf Act 1936, shall be deemed to have been registered under the provisions of this Act.”
129. U.P. Act 1960 Act now stands repealed by Act, 1995, a Central Act which has come into effect w.e.f. 1st January, 1996.
130. Act 1995 was enacted with an objective for better administration of Waqf and for matters connected therewith or incidental thereto. Section 112 of Repeal Act, 1999 provides for repeal of Waqf Act, 1954. It provides that anything done or any action taken under the said Act shall be deemed to have been done or taken under the corresponding provision of Act, 1995. Simultaneously, it also declares that before commencement of Act, 1995 in any State there is in force any law corresponding to Act, 1995, such corresponding law shall stand repealed.
131. Section 112 Sub Section (2) of 1995 Act reads as under:
“(2) Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act.”
132. The effect of Section 112(3) is that U.P. Act, 1960 stands repealed though action taken or acts done therein have been protected by proviso and it was declared that the same shall be deemed to have been done or taken in the exercise of powers conferred by Act, 1995 as if the said Act was in force on the said date when such things were done or action was taken. Act, 1995, therefore, now is applicable to all Waqfs existing or created in whole of India except State of Jammu and Kashmir. However, Durgah Khawaja Saheb, Ajmer is excluded from Act, 1995 vide proviso to Section 2 of Act, 1995 and it continues to be governed by Durgah Khawaja Saheb Act, 1955. The term Waqf has been defined in Section 3(r) of Act, 1995 which reads as under:
“3(r) “waqf” means the permanent dedication by a person, professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes–
(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) “grants”, including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and
(iii) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable
and “Waqif” means any person making such dedication.”
133. Therefore the Waqf under Act, 1995 is a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognized by the Muslim Law as pious, religious or charitable and includes the purposes enshrined under Clauses I, II, III of Section 3 of Act 1995. For our purposes, what is relevant is that whenever a Waqf is created it means property is permanently dedicated by such person who makes such dedication to God (Allah).
134. Chapter II containing Sections 4 to 8 deals with survey of Waqfs and Chapter III talks of a Central Waqf Council. Chapter IV runs from Section 13 to 35 dealing with establishment of Boards and their functions. and Chapter V deals with registration of Waqfs. Subsequent chapters relate to maintenance of accounts of Waqfs, finance of the Board, judicial proceedings and miscellaneous provisions. In the entire Statute, we find nothing to show that Act, 1995 creates any Waqf or that the Board is given power to create a Waqf. If there is no valid Waqf as per Sharia Law, by mere registration of something as a Waqf would not be a valid waqf. Power of the Board is confined to register only a Waqf meaning thereby if it is already existing or created by a waqif. Purpose of registration is only to have a ready information of existing Waqfs with the Board so that it may take appropriate care, maintenance and administration of such Waqfs. To the same effect was the position under earlier Waqfs Statutes, commencing from Act, 1936 and on wards.
135. General power of superintendence vested in Central Board is to ensure that the Waqfs or endowments under its superintendence are maintained, controlled, administered and duly appropriated to the purposes for which they were founded or for which they exist. The very functions of Central Board, as such, do not relate directly to the right of worship of either Hindus or Muslims in any manner. To some extent, however, it may be said that if a religious Waqf is not properly maintained and administered, and, if there is some hindrance or obstruction in observance of such religious activities for which Waqf was created, right of people in general who were entitled to use Waqf property for the purposes it is created, to that extent may be obstructed, but directly it cannot be said that Act, 1936 in any manner deals with the right of worship of any member of the community for whose benefit Waqf is created. It is moreso when the question of a member(s) of a community other than Muslim arises since neither his right of worship in any manner is sought to be affected by 1936 Act nor otherwise it does appear to do so.
136. In respect to Act, 1936 this question came to be considered in Siraj-ul-Haq Khan and others Vs. The Sunni Central Board of Waqf U.P. and others, AIR 1959 SC 198, in an appeal taken against the judgment of this Court in Sunni Central Board of Waqf Vs. Siraj-ul-Haq Khan and others, AIR 1954 All. 88. The matter pertains to Dargah Hazarat Syed Salar Mahsood Ghazi situated in the Village Singha Parasi, District Bahraich. Appellants were members of Waqf Committee, Dargah Sharif, Bahraich and filed a suit seeking a declaration that properties of suit were not covered by the provisions of Act, 1936. Court considered the words “the Mutawalli of a Waqf or any person interested in a Waqf” under Section 5(2) of Act, 1936 and, construing the same, held that it would mean “any person interested” in what is held to be a Waqf and in order to find out so it is open to Commissioner of Waqfs to find out whether a property is a Waqf or not and if he includes such a property in the list of Waqf, the person challenging such decision would be included by the words “any person interested in a Waqf” under Section 5(2). It would be appropriate to reproduce relevant observations in para 16 of the judgment:
“The word ‘Waqf’ as used in this sub-section must be given the meaning attached to it by the definition in S. 3 (1) of the Act and since the appellants totally deny the existence of such a Waqf they cannot be said to be interested in the ‘Waqf’. The argument thus presented appears prima facie to be attractive and plausible; but on a close examination of S. 5(2) it would appear clear that the words “any person interested in a Waqf” cannot be construed in their strict literal meaning. If the said words are given their strict literal meaning, suits for a declaration that any transaction held by the Commissioner to be a Waqf is not a Waqf can never be filed by a mutawalli of a Waqf or a person interested in a Waqf. The scheme of this sub-section is clear. When the Central Board assumes jurisdiction over any Waqf under the Act it proceeds to do so on the decision of three points by the Commissioner of Waqfs. It assumes that the property is a Waqf, that it is either a Sunni or a Shia Waqf, and that it is not a Waqf which falls within the exceptions mentioned in S. 2. It is in respect of each one of these decisions that a suit is contemplated by S. 5, sub-s. (2). If the decision is that the property is not a Waqf or that it is a Waqf falling within the exceptions mentioned by S. 2, the Central Board may have occasion to bring a suit. Similarly if the decision is that the Waqf is Shia and not Sunni, a Sunni Central Board may have occasion to bring a suit and vice versa. Likewise the decision that the property is a Waqf may be challenged by a person who disputes the correctness of the said decision. The decision that a property does not fall within the exceptions mentioned by S. 2 may also be challenged by a person who claims that the Waqf attracts the provisions of S. 2. If that be the nature of the scheme of suits contemplated by S. 5(2) it would be difficult to imagine how the mutawalli of a Waqf or any person interested in a Waqf can ever sue for a declaration that the transaction held by the Commissioner of the Waqfs to be a Waqf is not a Waqf. That is why we think that the literal construction of the expression “any person interested in a Waqf” would render a part of the sub-section wholly meaningless and ineffective. The legislature has definitely contemplated that the decision of the Commissioner of the Waqfs that a particular transaction is a Waqf can be challenged by persons who do not accept the correctness of the said decision, and it is, this class of persons who are obviously intended to be covered by the words “any person interested in a Waqf “. In our opinion, on a reading of the provisions of the relevant sub-section as a whole there can be no doubt that the expression “any person interested in a Waqf” must mean “any person interested in what is held to be a Waqf “. It is only persons who are interested in a transaction which is held to be a Waqf who would sue for a declaration that the decision of the Commissioner of the Waqfs in that behalf is wrong, and that the transaction in fact is not a Waqf under the Act. We must accordingly hold that the relevant clause on which Mr. Dar has placed his argument in repelling the application of S. 5(2) to the present suit must not be strictly or literally construed, and that it should be taken to mean any person interested in a transaction which is held to be a Waqf.”
137. The above decision, however related to a matter where all the parties before Court were Muslim and there was no question about the rights of non Muslim being affected by a decision of Commissioner of Waqf or Central Board constituted under Section 6 of Act, 1936. In other words, the decision noted above covered the persons following the same religion namely, Mohammadan Law but where such a dispute is raised by another party namely a person of different religion like, Hindu, Christian etc. Whether Act, 1936 at all will apply in that case or not, is not touched by the above judgment.
138. In our view, since Act, 1936 does not provide or control the right of worship of Hindu or Muslims. The rival dispute between the persons who are not Muslims, in the matter of an immovable property, whether it is Waqf or not would not be governed by the provisions of Act 1936 but it would be open to non-muslim party to stake his claim without being affected in any manner by the provisions of Act 1936.
139. Our view finds support from a Division Bench decision of Rajasthan High Court in Radhakishan and another Vs. State of Rajasthan and others, AIR 1967 Rajasthan 1. This case had arisen from the Waqfs Act, 1954 (in short “1954 Act”) and interpretation of the words “any person interested therein” appearing in Section 6(1) came to be considered. The Court held that it would not empower Board of Waqfs to decide the question whether a particular property is a Waqf property or not if such a dispute is raised by a person who is stranger to Waqf. The Division Bench therein referred to our Full Bench decision in Mohammad Baqar (supra) and observed that in reference to Act 1923, Patna, Lahore, Bombay and Madras High Court took a view that District Judge has no jurisdiction to hold an inquiry into the nature of property where the alleged Mutawalli deny existence of Waqf though the Allahabad Chief Court of Oudh took a different view.
140. We may notice hereat that in the Full Bench judgment of Chief Court of Oudh in Mohammad Baqar (supra) there was no question with respect to jurisdiction of District Judge where the existence of alleged Waqf is denied by a stranger and not the Mutawalli, therefore, we do not find that the decision in Radhakishan (supra), in any way, can be construed as a dissenting view to the decision of Oudh Chief Court in Mohammad Baqar (supra). This is evident from what has been held by Rajasthan High Court in paras 24 and 25 reproduced as under:
“24. The present Act No. 29 of 1954 is, no doubt, an improvement on the Mussalman Wakf Act, 1923, but, in our view, this also does not empower the Board of Wakfs to decide the question whether a particular property is a wakf property or not, if such a dispute is raised by a person who is a stranger to wakf. This view is further confirmed by the provisions of section 59 of the Act which lays down that in any suit or proceeding in respect of a wakf or any wakf property by or against a stranger to the wakf or any other person, the Board may appear and plead as a party to the suit or proceeding.
25. To sum up the position, the Wakf Commissioner, though he is invested with the powers of a civil court in respect of certain matters, is not a civil court empowered to decide a disputed question whether a particular property is a wakf property or not. He has only to make a survey of wakf property existing in the State at the date of commencement of the Act and to make a report of survey to the State Government. When the State Government forwards the report to the Board of Wakfs, it becomes the duty of the Board to examine it. Thereafter the Board should publish, in the official gazette, a list of wakfs existing in the State. The law does not require the Commissioner to make a survey of wakf properties which have already become extinct as such. If he mentions in his report that certain properties were once wakf properties and can still be recovered as such, then the proper course, in our opinion for the Board is to file a suit, get them declared as wakf properties and to recover their possession. If a dispute about existence of a wakf is raised by a person who is stranger to the wakf, then it is neither fair nor proper for the Board to include such properties in the list published in the official gazette. Section 6, in our opinion, refers only to those triangular disputes which exists between the Board of Wakf, the mutawalli and a person interested in the wakf. If there is a dispute between these three on a question whether a particular property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf, it is open to any one of them to institute a suit in a civil court of competent jurisdiction. If a suit is instituted, the decision of the Civil Court will be final. If no such suit is filed by any one of them within a year from the date of publication of the list of wakfs the Court would not entertain the suit thereafter and the list of the wakf shall be final and conclusive between them. The object of Section 6 is to narrow down the dispute between the Board of Wakf, the Mutawalli and the person interested in the wakf as defined in section 3. In our view, it does not concern a dispute if it is raised by a person who is an utter stranger to the wakf. The list cannot be final and conclusive as against a non muslim who is not covered by Section 6(1) of the Act. Again, if a dispute whether a particular property is a wakf property or not, is raised by a non-muslim and a stranger to the wakf, the Board of Wakfs has no jurisdiction to decide the matter in its own favour under Section 27 and enter it in the register. The Board’s decision under section 27 would not be binding against such persons. For the same reason, the Board would not be able to recover possession of the property from such persons under Section 36B of the Act.”
141. The judgment of Rajasthan High Court was taken in appeal before Apex Court in The Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan and others, AIR 1979 SC 289. Two questions raised in appeal. Firstly, the meaning of the words “any person interested therein” in Section 6(1) and (4) of Waqf Act, 1954 and secondly, the power of Waqf Commissioner to make survey of Waqf properties whether it includes an inquiry about certain property as a Waqf property or not. The Apex Court referring to the various judgments considered by the Rajasthan High Court held that they would be of no assistance in interpreting the provisions of Waqf Act, 1954. However, it was held in para 23 of the judgment that the High Court was right in determining the scope of Section 6(1) of 1954 Act but fell in error in curtailing the ambit and scope of an inquiry by the Commissioner of Waqf under Section 4(3) and by the Board of Waqfs under Section 27 of the Act.
142. Court quoted the findings of Rajasthan High Court with reference to Sections 6 in para 37 of the judgment and in para 38 it says that it is in agreement with the reasoning of the High Court. The answer has further been crystallized in paras 39 and 43 of the judgment as under:
“39. It follows that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the List. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to sub s. (1) of S. 6 is not applicable to him. In other words, the list published by the Board of Wakfs under sub-s. (2) of S. 5 scan be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises.”
“43. In view of the foregoing, the right of the respondents Nos. 1 and 2 in respect of the disputed property, if at all they have any, will remain unaffected by the impugned notification. They are at liberty to bring a suit for the establishment of their right and title, if any, to the property.”
143. As noticed above Court also referred to Section 5(2) of Act 1936 and observed that it is pari materia to Section 6(1) and (4) of Act, 1954.
144. The above decision in Radhakishan (supra) was followed in Board of Mulim Wakfs Vs. Smt. Hadi Begum and others, AIR 1992 SC 1083 where in para 10 of the judgment, Court briefly reproduced what was held in Radhakishan (supra) regarding the right, title and interest of a non-muslim with reference to the Act, 1954 which also contains the provisions, pari materia with Act 1936 and held:
“The right, title and interest of a person who is non-muslim and is in possession of certain property is not put in jeopardy simply because that property is included in the list published under sub-sec. (2) of S. 5 and he is not required to file a suit in a Civil Court for declaration of his title within the period of one year and the list would not be final and conclusive against him. Sub-sec. (4) of S. 6 makes the list final and conclusive only between the Board, the mutawalli and the person interested in the wakf.” (para 10)
145. To the same effect is a decision of a Single Judge in Marawthwada Wakf Board Vs. Rajaram Ramjivan Manthri and others, AIR 2002 Bom. 144. With reference to Act 1954, in para 19 of the judgement, it observed:
“Therefore, from the above, it is extremely clear that the respondent No. 1, who is a non-Muslim, being a Hindu, could not file a suit u/S. 6 of the Wakf Act, 1954, but he cannot be barred from filing a suit especially in view of the fact that his right, title and interest have been jeopardised in view of the notification issued by the Government of Maharashtra aforesaid.”
146. Another Single Judge of this Court in U.P. Sunni Central Waqf Board, Lucknow Vs. State of U.P. and others, 2006(6) ADJ 331 considering U.P. Act, 1960 which contain similar provisions as that of Act 1936 in para 9 of the judgment, observed:
“There is no dispute that the respondent No. 3 by virtue of sale deed became the owner of the property is dispute. The respondent No. 3 being non Muslim, the provisions of U.P. Muslim Waqf Act, 1960 was not applicable as held by this Court in the case of Chedda Singh and others Vs. Additional Civil Judge, Moradabad and others.”
147. A similar view was taken in an earlier decision of this Court in Chedha Singh and others Vs. Additional Civil Judge, Moradabad and others, 1996 Supp. AWC 189 which has been followed in U.P. Sunni Central Waqf Board, Lucknow (supra).
148. Now, therefore, it is well settled that Section 5 of Act 1936 would have no application qua rights of non-muslims. They would not be bound mere by inclusion of the property in a notification issued under Section 5(1) of Act 1936.
149. We find that though under the various provisions of Waqf Statutes legislature has attempted and made various provisions so that any Waqf in State of U.P., if existed, may be known to Sunni Central Board, so that it may be properly supervised and administered, no statute contains any provision that even though a Waqf has been created in accordance with Islamic Law yet it would not be governed by Act and shall be beyond the power of supervision, administration of Sunni Central Waqf Board or Shia Central Waqf Board, as the case may be for the mere reason that it was not notified under Section 5 of the 1936 Act, not registered due to fault of the Mutawalli, if any or due to inaction of the Board itself.
150. Waqf statutes thus neither create a Waqf nor extinguish the same if the same is already in existence. Converse too is also in as much as mere registration of property or a building as waqf by the Board will not confer any validity regarding status of waqf thereon if from the admitted facts it is evident that no valid waqf was created by the waqif and the necessary ingredients to constitute a valid waqf, all or any of them are absent any other view would read something in the statute which is not there. It travels in the realm of casus omissus which normally this Court shall not presume unless there is a necessary compulsion to do so.
151. As we have discussed, Act, 1936 did not confer any jurisdiction upon the Central Board to create a waqf or to confer legality on a transaction to constitute a waqf though no valid waqf has come into existence. Similar was the position in subsequent statute.
152. The Waqf Act, 1954 though not applicable to the State of U.P. but therein the provisions are mostly pari materia with Act 1936. In Punjab Wakf Board, Ambala Vs. Capt. Mohar Singh AIR 1975 SC 1891 it was held that mere mention of a property in a notification issued under Section 55 (2) of Wakf Act, 1954 showing property to be an Idgah or exercise of power by Board under Muslim Wakfs Act by itself would not establish and identify property to be a wakf property unless it is shown that there was a valid wakf created and existed which was so notified under the Act.
153. An incidental question then has arisen as to whether Central Sunni Board can be said to be superior administrative authority over District Magistrate and therefore, the decision of the said authority by way of registration of a transaction as a Waqf will oust jurisdiction of Collector in respect of property and whether Sunni Central Board can be treated to be a Department of Government in this regard. We may notice hereat that in respect of agricultural land vested in State Government Collector/ District Magistrates have been conferred various powers of adjudication who is a Revenue Court for the said purpose. If any agricultural land is dealt with in a manner not permitted under Act, 1950, Collector can pass a appropriate order which may have affect of even ouster of such Tenure-holder who has used the land in violation of provision of Act 1950. So far as the Board is concerned, we find its initial constitution under Act, 1936.
154. Sunni Central Waqf Board was established under Section 6(1) of Act 1936. Its constitution is provided in Section 7 thereof. The two provisions read as under:
“6. Establishment of Central Boards.-(1) there shall be established in the United Provinces two separate Boards to be called the “Shia Central Board” and the “Sunni Central Board” of Waqfs. Each such Board shall be a body corporate and shall have perpetual succession and a common seal and shall by its said name sue or be sued.”
“7. Constitution of Sunni Central Board.- The Sunni Central Board shall consist of-
(i) five members to be elected in the manner prescribed by Sunni members of the local legislature,
(ii) four members to be elected in the manner prescribed by the District Waqf Committees.
(iii) three members to be co-opted by the above nine members from persons whom they regard as ulamas, and two members from among mutawallis, and
(iv) the President, if he is not one of the above fourteen members :
Provided that the first Sunni Central Board shall be established by the local Government within three months of the date on which this section comes into force and shall consist of-
(i) five members to be elected, in such manner as the local Government may direct, by the Sunni members of the local legislature;
(ii) two members to be elected, in such manner as the local Government may direct, by the Sunni members of Executive Committee of the Provincial Muslim Educational Conference ;
(iii) three members to be co-opted by the above seven members from persons whom they regard as ulamas ; and
(iv) three members to be co-opted by the above ten members.”
155. Section 10 of Act 1936 provides that the members of Central Board shall hold office for five years. Section 13 provides for the place where office of Central Board shall be located and Sections 14 to 17 are in respect of manner of functions and requisite staff of such Board. Section 18 provides for the functions of Central Board.
156. Chapters 3, 4, 5, 6 and 7 of Act 1936 contain provisions with regard to registration of Waqfs, audit of accounts, enquiry and supervision, legal proceedings and administration charges. Chapter 8 of Act 1936 provides for Mutawalli and Section 58 confers powers upon Board to remove Mutawalli from his office in certain circumstances. Section 68 of Act 1936 provides that the Government shall not be liable for any expenditure incurred in the administration of Act 1936.
157. All subsequent enactments thereto with minor variation with regard to constitution and functions of Board maintained almost the same status for the Boards and there functions are also virtually the same. Thus from the perusal of Act, 1936 and all subsequent enactments, it is evident that the Central Sunni Waqf Board is a statutory body constituted in accordance with the provisions of the said Act. By no stretch of imagination it can be said to be either a Department of the State Government or an instrumentality of the State Government.
158. Similar question came up for consideration in respect to the employees of certain statutory bodies like Jal Nigam, Banks, Local Bodies etc. where employees claimed themselves to be Government employees as the bodies are controlled by Government but negativing the said contention it was held by Apex Court that the statutory bodies are neither a Department or part and parcel of State Government nor the employees of the statutory bodies can be said to be the Government employees.
159. Being a statutory body constituted under statute having powers, functions and duties, which the Waqf Board is liable to perform, it may be covered by the term ‘Other Authority’ under Article 12 of the Constitution of India but that by itself would neither make it an instrumentality of the State Government of U.P. nor would deprive it to file a suit where it is aggrieved against some action of State Government or its authorities. Waqf Board having been constituted with a particular objective i.e. for the better governance, administration and supervision of certain classes of Muslim Waqfs, from its very nature, its duty is confined for the welfare of certain special kind of properties of the persons of a particular community and in particular religion i.e. Muslims. It will wholly be misconceived to suggest that by representing or sponsoring the cause of members of a particular community against another community i.e. Muslims against Hindus, the Waqf Board is causing discrimination though it is a “State” under Article 12 of the Constitution. No authority could be placed before this Court binding upon us to take a view different than what we have discussed above.
160. On the contrary, we find support from a decision of the Apex Court in Syed Yousuf Yar Khan and others Vs. Syed Mohammed Yar Khan and others, AIR 1967 SC 1318 where somewhat a similar contention was raised that the “Waqf Board” is an agent of Central Government but rejecting the same, Apex Court in para 4 of the judgment said:
“(4) Counsel submitted that the present suit was a suit by or on behalf of the State Government and was therefore governed by art. 149 of the Indian Limitation Act 1908. He submitted that the Board of Muslim Endowments, Hyderabad, which according to him was the Board of Wakfs constituted under the Muslim Wakfs Act 1954, was an agent of the Central Government. By s. 9(2) of the Muslim Wakfs Act, 1954, the Board of Wakfs is a body corporate and by s. 15 of this Act, the Board is vested with the right of general superintendence of wakfs and is empowered to take measures for the recovery of the lost properties of any wakf and to initiate and defend suits and proceedings relating to wakfs. Counsel submitted that a corporation may be an agent of the State Government, and in support of this contention relied upon Halsbury’s Laws of England, 3rd Ed., Vol. 9, p. 10-Tamlin v. Hannaford (1949) 2 All E. R. 327, and the observations of Shah, J. in State Trading Corporation of India Limited v. The Commercial Tax Officer, A.I.R. 1963 S.C. 811, 849, 850, paras. 115-117. He submitted that the State Government has delegated its functions of superintendence over wakfs to the Board of Wakfs and the Board should therefore be regarded as an agent of the State Government. We are unable to accept this contention. By the Religious Endowments Act 1863, the Government divested itself of the management and superintendence of religious endowments which was vested in it under Regn. 19 of 1810 and Regulation 7 of 1817. The Board of Wakfs though subject to the control of the State Government, is a statutory corporation and is vested with statutory powers, functions and duties. The Board has power to hold property and is in control of the wakf fund (ss. 9 and 48). The State Government has no concern with the property vested in the Board save during the period of supersession of the Board under s. 64. Nor is the State Government liable for any expenditure incurred by the Board in connection with the administration under the Act (S. 54). The Board of Wakfs is not discharging a governmental function. The Act nowhere says that the Board would act as the agent of the State Government. It rather indicates that the Board is not the agent of the Government and the Government is not responsible for its acts. We must, therefore, hold that the Board of Wakfs is not an agent of the State Government and a suit instituted by it for the recovery of a wakf property is not a suit by or on behalf of the State Government.”
161. In Syed Yousuf Yar Khan (supra) the issue of identifying mutawalli with the State Government was also raised by contending that the mutawalli is an agent of the “Government” in order to take the benefit of Article 149 of the Limitation Act but that was also rejected by the Apex Court by observing:
“5. Counsel next submitted that the mutawalli is the agent of the State Government and that in any event the limitation for a suit by the mutawalli starts on the date of his appointment. In support of this contention counsel relied upon the decision in Jewun Doss Sahoo v. Shah Kubeer-ood-Deen, (1837-41) 2 Moo Ind. App. 390 at p. 422 (PC) where the Privy Council held that under the law then in force it was the duty of the Government to protect endowments and the mutawalli in that case was the procurator of the Government and his right to sue arose on his being appointed mutawalli. This ruling of the Privy Council was given under Regulation 19 of 1810. Since the passing of the Religious Endowments Act 1863, the mutawalli cannot be regarded as a procurator of the Government. He is not appointed by the Government, nor does he manage the endowment on its behalf and a suit by him for the recovery of the wakf property cannot now be regarded as a suit on its behalf, see Shaikh Laul Mahomed v. Lalla Brij Kishore, (1872) 17 Suth WR 430 and Behari Lal and Ors. v. Muhammad Muttaki, (1898) ILR 20 All. 482 at p. 488 (FB).”
162. To examine the correctness of the above objection, let us consider Section 65 of U.P. Act No.XVI of 1960 which reads as under :
“Notice of suits by parties against the Board.- No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder until the expiration of two months, next after notice in writing has been delivered to or left at the office of the Board, stating the cause of action the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.”
163. From a bare reading of Section 65 of 1960 Act it is evident that the same would apply where a suit is filed questioning the validity of any action of the Waqf Board. It clearly says that in respect of any act purporting to be done by the Board in pursuance of 1960 Act or of any rules made thereunder, if a suit is filed, the same would not be maintainable unless a two months’ notice has been given in writing to the Board giving the details, as mentioned in the aforesaid provision.
164. The aforesaid provision, therefore, would not help the petitioner in any manner and corresponding provisions under Act 1995 is of no help.
165. At this stage, learned counsel for petitioner contended that the matter relates to a religious endowment and Court should not interfere in such matters and instead, matter should be left to be determined by experts in religious matters and respective Boards constituted under Statutes relating to Waqf. The submission is thoroughly misconceived.
166. Though Court may not be an expert in spiritual and religious matters but basic religious scriptures of major religions, we had occasion to go through and cardinal and common message emanating from every religion is purity of soul; honesty in practice, behaviour, and thoughts; compassion for underprivileged, weak and needy persons and respect for honour and faith of others. No religion conveys message of enmity, hatred, disrespect to others including their honour, faith and violation of law of the land.
167. Of late, we find, that a few so called and self-acclaimed saviours of religion without having any indepth idea of spirit and soul of religion, in the garb of protecting religion do what is prohibited in every religion. Mere reading of religious scriptures and tenets without understanding and absorbing its message in the depth of soul is actually causing damage to real connotes of religion. These people are not only guilty of violating law, but also destroyer of religious central theme. They are enemy of their own convictions and deserve to be handled strictly. Major religions are continuing for almost thousands of years i.e. almost thousand and more years. Every so called tinkering cannot destroy religion, which has withstood with time, spread its message and being followed by millions across the world. No religion can be dented by speaking a sentence, wearing cloths of particular style etc., using an innovative article or scientific discovery or pictures etc. Every religion stands on its own and has cemented itself. It has gone down in the hearts and minds of the followers, who remain unaffected by petty inconsequential activities. The so called guardians of religion having scant and shallow knowledge, create disturbance, lawlessness and interference with peace and harmony of society. This is also magnified by 24 X 7 media people. In fact, these persons need no attention and canvassing. They deserve to be simply ignored having no otherwise importance. There is no reason to magnify their personality and image by making them subject of various discussion or debates. They will die of their own death by such silence. We find strange that those who talk on house top about alleged disrespect to a religion remain silent when in the name of religion law of the land is breached and violated. No religion confers piety to an act which is not only unlawful, unchaste and impure, but also a crime in terms of law of land.
168. At this stage, learned counsel for petitioner also contended that this matter relates to rural area and similar violations have been made in urban areas with impunity. A large number of religious structures have been erected on public land, belong to the State, and the same are continuing without any interference by State Authorities. Observations made above in respect of rural areas will cause discrimination to those religious endowments which have been raised illegally in urban areas on public land.
169. We have no hesitation in observing that whatever principle of law is applicable to rural area is equally applicable to urban area. No person has any authority to usurp, encroach or trespass public land or land belong to State. If one raises construction of religious nature and thereafter creates obstruction in restoration to the true nature of land, such action has to be set at naught by demolition and restoration of land to its original position. We may remind in this regard a judgment of this Court in Lav Kush and others Vs. Sou and others (Writ Petition Misc. Bench No. 13474 of 2016) decided on 03.06.2016, wherein a temple was sought to be constructed on public land and writ petition was filed for removal of said temple, since it was creating obstruction in smooth passage as public land was public pathway. This Court made observations in paragraph 6 of the judgment that there is no fundamental or legal right to encroach upon a public road and thereafter issued certain directions to the Government. We may usefully reproduce paragraphs 6 to 9 of the said judgment as under:
“6. There is no fundamental or legal right to encroach upon a public road (including highway), street etc. and raise construction of any kind thereon. These unauthorised and illegal activities cause hindrance and interruption in free flow and movement of traffic including foot walkers. Every citizen has a fundamental right of movement and this cannot be allowed to be infringed by a few violators in public and apathy of State authorities. In our view, those who create such obstructions as also those who perpetuate it by taking care/ managing such structures and also those who fail to take any action in law, all deserve to be taken to task and make responsible and accountable for their respective misdeeds.
7. Looking to the wider perspective of the issue and widespread tendency of such encroachment in the name of religion, faith, sect etc., we find that the State Government and Officials must be asked to act and show response in an effective manner.
8. We, therefore, dispose of this writ petition with the following directions:
(i) State of U.P. through Chief Secretary, U.P. is directed to issue a general direction to all Collectors and Senior Superintendent of Police/Superintendent of Police including the Officers responsible for maintenance of roads (including highways) in State of U.P. to ensure that no religious structure in any form, whatsoever, shall be allowed/ permitted to be raised on public road (including highways), street, pathway, lane etc. including sideways which is part and parcel of road (including highways) etc. and belong to State.
(ii) If any such structure is existing and has been raised in the last five years, to be more precise on and after 01.01.2011, the same shall be removed forthwith and a compliance report shall be submitted by Collectors etc. of concerned Districts to Principal Secretary/Secretary of concerned department, who shall submit a comprehensive report to the Chief Secretary within next two months.
(iii) If any such religious structure has been raised encroaching upon public road (including highways), street, lane etc., as stated above, before 01.01.2011, a Scheme shall be worked out and executed to shift the same to a private land offered by beneficiaries of such religious structures or persons responsible for its management or to remove it, within six months and a compliance report shall be submitted in the manner as said above in Direction No. (ii).
(iv) On and after 10.06.2016, it shall be the responsibility of all Deputy Collectors/ Collectors in respective Sub-divisions and District as also Circle Officers and Superintendent of Police/Senior Superintendent of Police of concerned District including the Officers responsible for maintenance of roads (including highways) that no encroachment is made, by raising religious structures, by whatever name it is called, belong to any religion, creed, caste, sect, section etc., on public roads (including highways), streets, pathways, sideways, lanes etc. and if any deviation or disobedience is found, these Officers shall be personally responsible. This disobedience shall also be treated a deliberate and intentional disobedience to lower down authority of Court and would amount to criminal contempt.
(v) State Government is also directed to make out a plan so as to ensure that public roads (including highways), streets, pathways, sideways, lanes etc. are not obstructed creating hindrance in the smooth flow of traffic/movement of public on such roads (including highways) due to observance of religious activities and such activities are performed strictly at the places identified for the same or belong to concerned religious sections or at private place.
(vi) In the present case, District Magistrate is directed to take immediate steps and take appropriate action within two weeks.
9. A compliance report of the above directions shall be submitted through Chief Secretary, U.P. Government after seven months i.e. by 07.01.2017 for perusal of Court.”
170. Therefore apprehension raised by learned counsel for petitioner has no substance.
171. Now looking to the facts of present case in the context of what has been observed hereinabove, we find that here also an illegal attempt has been by petitioner so as to turn the land vested in State Government into religious endowment and now he is claiming that the same should not be interfered with.
172. Here the petitioner a Tenure-holder on agricultural land and that too, a co-owner purchased Bhumidhari transferable rights and converted user of land by constructing a Madarsa. Nothing has been placed on record to show that permission of competent authority for change of user was ever obtained under the provisions of Act, 1950. Thereafter, petitioner claims that in Madarsa itself some part was converted into a Mosque allowing visit to members of community, for offering Namaz and Azan. Petitioner knew it very well that he was not owner of property, being only a Tenure-holder and agricultural land in question vests in the State. Therefore, State is the owner. No Waqf could have been created by divesting property, which did not vest in Tenure-holder, but vested in the State. No declaration under Section 143 of Act, 1950 was obtained and nothing has been placed on record in this regard. Therefore, a sheer illegal and unlawful act was performed by petitioner, and that too in the name of religion. He wants to retain the fruits of his unlawful activities and requires a mandate from this Court, which would amount to perpetuate illegality committed by petitioner. In fact, entire members of community should have come forward against such unlawful act of petitioner, which was directly in the teeth of statute, but we find that a common practice is being followed almost in every religion, where in the name of religion, they usurp land of State and raise constructions thereon, knowing it well that it is not only illegal but a crime, still in the name of religion, everybody then works to refrain authorities from taking action, as a consequence of such illegal act. While sitting in Writ Jurisdiction under Article 226 of Constitution of India, we cannot allow such activities either to continue or perpetuate.
173. Learned counsel for the petitioner lastly submitted that a large number of waqfs have been created by construction of Mosques on agricultural land in last several decades across the State and no interference is being made by Collectors or any other administrative authority or State of U.P. in respect to those Waqfs/Mosque, hence similar treatment should be extended to petitioner also.
174. Submission referring to Article 14 of Constitution claiming parity in the matter of illegal act is wholly misconceived. It is now well settled that two wrongs will not make one right. The Apex Court in State of Bihar and others Vs. Kameshwar Prasad Singh and another, AIR 2000 SC 2306; Union of India and another Vs. International Trading Co. and another, AIR 2003 SC 3983; Lalit Mohan Pandey Vs. Pooran Singh and others, AIR 2004 SC 2303; M/s Anand Buttons Ltd. etc. Vs. State of Haryana and others, AIR 2005 SC 5565; and Kastha Niwarak G. S. S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142 has held that Article 14 has no application in such cases.
175. If something has been done illegally, that will not give any right to claim parity to the petitioner. If what counsel for petitioner says is correct, we have no manner of doubt that creation of such Waqfs and construction of Mosques on agricultural land in past several decades, as claimed by petitioner is clearly illegal and unauthorized. If this is factually correct, we have no hesitation in observing that the revenue authorities are bound and under law obliged to take account of the situation and pass appropriate orders to restore the nature of agricultural land and take appropriate action. There cannot be any defence or pretext that such an action may create law and order situation, for the reason that anything which is illegal has to be set at naught. The authorities of the State and in particular, the Collector who is also a Revenue Court under the provisions of U.P. Act, 1950 read with U.P. Land Revenue Act 1901, is under obligation to ensure that the nature of agricultural land is not illegally changed and it is usurped for illegal purposes in the name of religion or right to profess religious customs. No religious rites contrary to law can be allowed to be performed and the action on the part of State authorities with iron hand is not only there statutory and constitutional obligation but necessary to synchronize the entire public in an uniform law abiding society. Everyone must have faith in law, must respect law, follow law and anything which is otherwise, must immediately or whenever comes to the notice of the authorities, should be set right. No inconvenience or any other pretext can be valid defence for perpetuating such illegality.
176. It is this casual, lethargic and soft approach on the part of the authorities whereby they allow certain sections of people to violate law which spread like a infectious disease and encourage others also to indulge in such activities and defy law. It is high time when the authorities must awake, become conscious of their rights, obligation and duties and take appropriate action for implementation of law and uphold rule of law. We make it clear that our observations are not confined to any one kind of religious endowment but if similar activities are found in respect of other religions, similar action must be taken with respect to them also and everyone must be dealt with equally and with same standards to maintain law. We would like to direct the Chief Secretary, Government of U.P., Lucknow to look into the matter and issue necessary directions and take appropriate measures/action within three months and submit action taken report to this Court.
177. In view of the above discussion, our answers to the points/issues framed thereunder are:
(i) a Waqf is constituted by dedication of a property by a Waqif to Almighty God and condition of ownership with the Waqif is one of the mandatory requirements under Islamic Law. Waqif cannot vest the property owned by somebody else in the God by creating a Waqf unless the person creating waqf is owner or consent/permission of the owner to create a waqf by vesting ownership in the Almighty God is obtained. No valid Waqf can be created by such a Waqif who has no ownership in the property in dispute.
(ii) Tenureholder is not a proprietor of agricultural land. The land is vested in State Government under the provisions of U.P. Act, 1950 and governed by the same unless there is declaration under Section 143 which will have the effect of cessation of application of provisions of Act, 1950 to such land. Tenure-holder cannot create a waqf of agricultural land by vesting the same in God since the land did not vest in the Waqif itself as it is vested in the State Government and Tenure-holder is only a tenant and not proprietor.
(iii) Mere registration with a Waqf Board will not result in creation of a valid waqf if it is not otherwise a valid waqf.
(iv) Waqf Board is not a Department of Government and does not exercise any supervisory, administrative or hierarchical power over Collector in respect of agricultural land when Collector is exercising power of Revenue Court in respect of agricultural land under the Provisions of Act, 1950 read with U.P. Revenue Act, 1901.
(v) If a tenure-holder has illegally attempted to create a waqf on an agricultural land without any declaration under Section 143, Collector can validly refuse to recognize such Waqf and restrain the person(s) concerned from using the land in a manner not permitted by Act, 1950 i.e. as agricultural land.
178. In view of the above, we have no hesitation in holding that the Collector has rightly exercised the power by rejecting representation of petitioner, refusing to recognize the land and property in dispute as a Mosque and it has rightly held that there was no valid waqf created on the agricultural land which vested in the State of U.P.
179. We also direct Chief Secretary, Government of U.P. Lucknow to look into the judgment and particularly, observations/directions contained in paragraphs 175 and 176 and take appropriate action by directing concerned District Authorities to take action for restoration of agricultural land wherever there is any illegal and unauthorized creation of religious endowments including a Waqf.
180. Let a copy of this order be sent forthwith to the Chief Secretary Government of U.P. for information and compliance of the directions contained in the judgement. Compliance report shall be submitted before this Court by Chief Secretary after expiry of three months for Court’s perusal and for this purpose alone, the matter shall be listed before Court on 28th May 2018.
181. Writ Petition is accordingly disposed of subject to above directions but we decline to grant any relief to petitioner since we are upholding order passed by the Collector on 06.09.2017, rejecting petitioner’s representation.
Order Date :- 23.02.2018