SUPREME COURT OF INDIA
M.P. Wakf Board
Vs
Subhan Shah (D) By Lrs. and Others
Appeal (Civil) 6975 of 2004 (Civil Appeal No. 6976 of 2004)
(S. B. Sinha and Dalveer Bhandari, JJ)
31.10.2006
S. B. SINHA, J.
These two appeals involving common questions of law and fact were taken up for
hearing together and are being disposed of by this common judgment.
One Hazrat Sha Walli was a Peer. He was called Shan Shah-E- Malwa. On his
death, a Dargah was established in his memory. Erstwhile Maharaja Holkar
Darbar, a Hindu king granted Mafi Inayat Land to the Dargah. Allegedly, the
land in question was held to be not forming a part of Wakf in terms of the
provisions of the Wakf Act, 1954 (for short "the 1954 Act"). One Munna
Bai filed an application for getting her name mutated in respect of the
property in question. It was dismissed on 4.2.1967. She thereafter filed an
application under Section 25 of the 1954 Act for registering the Dargah as a
Wakf. A notice was issued to Subhan Shah and others who were the heirs of the
said Hazrat Sha Walli (hereinafter referred to as "the private
parties"). They filed their show cause denying and disputing that the
property in question was a Wakf property. It was contended that Munna Bai filed
the aforementioned application as she was denied her claim to occupy the post
of a Mujjawarship. It was further contended:
"That there has been 50 Bighas land under the Sanad but when we were
minors and Mahboobsha the husband of the lady was the person in charge of the
office of Mujjawarship, the Jahagirdar has snatched away about 40 Bighas, but
since ours taking charge of it we are most aptly managing the property and
property looking after the Dargah. It is wrong to say that there is a managing committee
for this Dargah."
On or about 18.3.1968, the properties were declared as Wakf property and the
Dargah was registered as Wakf by an order dated 18.3.1968. The private parties'
application for recall of the said order was rejected by the Madhya Pradesh
Wakf Board (for short "the Board") by an order dated 24.6.1968
stating that registration of the Dargah as Wakf was legal. A committee was
thereafter constituted by the Board for managing the affairs of the Dargah.
Possession of the private parties was allegedly forcibly taken over.
A suit thereafter was filed in Civil Court for a declaration that the orders
passed by the Board are null and void and for recovery of possession of the
suit property inter alia contending that the order registering the Dargah as
Wakf was vitiated in law. It was also contended that the application filed by
the said Munna Bai under Section 25 of the 1954 Act was barred by limitation.
The Parliament enacted the Wakf Act, 1995 (for short
"the 1995 Act"). The 1954 Act was amended by the State of Madhya
Pradesh. The State of Madhya Pradesh constituted the M.P. Wakf Tribunal (for
short "the Tribunal"). It also amended the provision of the said Act
in terms whereof all civil suits stood transferred to the Tribunal. The suit
filed by private parties was also transferred.
Before the Tribunal, the Board did not adduce any evidence. It, however,
allegedly filed a gazette of the year 1984. The Tribunal passed an order
framing a scheme for managing the affairs of the said Dargah. Both the Board
and the private parties aggrieved thereby filed revision applications before
the High Court. By reason of the impugned judgment, the High Court dismissed
both the applications holding:
(i) In view of the admission made before the Tribunal that they are not averse
to the property being declared Wakf, if they are declared to be the Mujawar
thereof.
(ii) The Tribunal had the requisite jurisdiction to frame a scheme.
Both the Board and the private parties are, thus, before us:
Contention of Mr. Shakil Ahmed Syed, learned counsel appearing on behalf of the
Board is that power to frame a scheme vests in the Board and not in the
Tribunal and, thus, the High Court committed an illegality in passing the
impugned order.
Mr. Syed Ali Ahmad, learned counsel appearing on behalf of the private parties,
on the other hand, submitted that the High Court proceeded on a wrong premise
that the private parties admitted that the property in question was a Wakf
property.
"Wakf" has been defined in Section 3(l) of the 1954 Act to mean
"the permanent dedication by a person professing Islam or any other person
of any movable or immovable property for any purpose recognized by the Muslam
law as pious, religious or charitable". Section 4 provides for survey of Wakfs.
According to the private parties, upon survey the Dargah was not found to be a
Wakf property. Only when a property is found to be a Wakf property, a
registration thereof can be made. Section 5 of the 1954 Act, reads, thus:
"5. Publication of list of wakfs (1) On receipt of a report under
sub-section (3) of Section 4, the State Government shall forward a copy of the
same to the Board.
(2) The Board shall examine the report forwarded to it under sub-section (1) and
publish, in the Official Gazette, a list of wakfs in the State, or as the case
may be, the part of the State, whether in existence at the commencement of this
Act or coming into existence thereafter to which the report relates, and
containing such particulars as may be prescribed."
Under Section 5 of the 1954 Act, a civil suit in regard to the dispute as to
whether a particular property specified as Wakf property in the list of Wakfs
maintained under Section (2) thereof is a Wakf property or not, a civil suit
will be maintainable. Section 6-A of the 1954 Act provides for power of
Tribunal to determine disputes regarding wakfs.
Maintainability of the suit, therefore, is not in question. The property was
dedicated to the Dargah, if any, a long time back. An application for
registration of the said property as a Wakf property in terms of Section 25 of
the 1954 Act, therefore, could have been filed only within the period specified
thereunder, viz., nine months from the date of coming into force of the said Act.
Registration of Wakfs whether created before or after the commencement of the
said Act is governed by Section 25. A copy of the Wakf deed was also required
to be enclosed with such an application. Sub- section (7) of Section 25 of the
1954 Act provides for making of an inquiry into the correctness or otherwise of
the contents of the said application.
We may notice that Section 104 of the 1995 Act is in pari materia with Section
66-C of the 1954 Act, which reads as under:
"104. Application of Act to properties given or donated by persons not
professing Islam for support of certain wakf. Notwithstanding anything
contained in this Act where any movable or immovable property has been given or
donated by any person not professing Islam for the support of a wakf being
(a) A mosque, idgah, imambara, dargah, khangah or a maqbara;
(b) A Muslim graveyard;
(c) a choultry or musafirkhana, then such property shall be deemed to be
comprised in that wakf and be dealt in the same manner as the wakf in which it
is so comprised."
Section 83 of the 1995 Act provides for constitution of the Tribunal. The
jurisdiction of the Tribunal as contained in sub-section (5) of Section 7 of
the 1995 Act reads as under:
"(5) The Tribunal shall not have jurisdiction to determine any matter
which is the subject-matter of any suit or proceeding instituted or commenced
in a civil court under sub-section (1) of section 6, before the commencement of
this Act or which is the subject-matter of any appeal from the decree passed
before such commencement in any such suit or proceeding or of any application
for revision or review arising out of such suit, proceeding or appeal, as the
case may be."
The Tribunal noticed the sources of title of the private parties in the suit
property. In determining the respective contentions of the parties to the suit,
the Tribunal framed the following issues:
"1. Whether Mazar Nahar Shah Ali Baba is the property of plaintiffs of
Siranam and the order of defendant No. 1 of dated 24.4.68 and 13.4.68 are
illegal and of no consequences?
2. Whether plaintiffs are entitled to regain the business on the disputed
Mazar."
The issues framed were not wholly apposite to the rival contentions of the
parties. They do not reflect the requisite issues before the parties in the
light of their pleadings. The Tribunal moreover did not analyse the evidences
adduced by the parties before it. Applicability or otherwise of the
notification issued in the year 1984 was also not considered. It declared the
property to be a Wakf property stating:
"Defendant No. 1 Wakf Board led no evidence in its favour, but Madhya
Pradesh Wakf Board has produced the copy of Madhya Pradesh Gazette and Register
of Registration of Wakf in which disputed Majar has been depicted as the
property of Wakf and year of (billing) cultivation. The plaintiffs have not
objected to this. The most important this is that the plaintiffs have admitted
in evidence that Majawar in question is their inherited property and their
forefathers had been working as Mujawar in the Dargah. Therefore, the
opportunity may be given to them to serve as Mujawar at Dargah."
It purported to have taken into consideration the admission of the private
parties that Majawar in question is their inherited property and their
forefathers have been working as Mujawar in the Dargah. On the basis of the
said purported admission on the part of the private parties, the Tribunal
opined that there exists no dispute that there existed a Wakf which was
situated in village Nozarana Indore of Hazrat Nahar Ali Shah which has been
legally registered by the Board.
Title to a property has a definite connotation. It is not the same as user. The
Tribunal failed to deal with the question as to whether the Board had the
requisite jurisdiction to entertain the application filed by Munna Bai being
barred by limitation, insofar as whereas period of limitation provided for
under sub-section (8) of Section 25 is merely three months, Munna Bai filed an
application after 12 years after coming into force of the 1954 Act.
We are not unmindful of the fact that the Board itself could have initiated
proceedings in terms of Section 27 of the 1954 Act but then no suo motu
proceeding was initiated by it. No notice in this behalf has been issued.
In M/s. D.N. Roy and S.K. Bannerjee and Others v. State of Bihar and Others
, the law is stated in the following terms:
"It is true that the order in question also refers to "all other
powers enabling in this behalf". But in its return to the writ petition
the Central Government did not plead that the impugned order was passed in
exercise of its suo moto powers. We agree that if the exercise of a power can
be traced to an existing power even though that power was not purported to have
been exercised, under certain circumstances, the exercise of the power can be
upheld on the strength of an undisclosed but undoubted power. But in this case
the difficulty is that at no stage the Central Government intimated to the
appellant that it was exercising its suo moto power. At all stages it purported
to act under Rules 54 and 55 of the Mineral Concession Rules, 1960. If the
Central Government wanted to exercise its suo moto power it should have
intimated that fact as well as the grounds on which it proposed to exercise
that power to the appellant and given him an opportunity to show cause against
the exercise of suo moto power as well as against the grounds on which it
wanted to exercise its power. Quite clearly the Central Government had not
given him that opportunity. The High Court thought that as the Central
Government had not only intimated to the appellant the grounds mentioned in the
application made by the 5th respondent but also the comments of the State
Government, the appellant had adequate opportunity to put forward his case.
This conclusion in our judgment is untenable. At no stage the appellant was
informed that the Central Government proposed to exercise its suo moto power
and asked him to show cause against the exercise of such a power. Failure of
the Central Government to do so, in our opinion, vitiates the impugned
order."
If the proceeding was initiated by the Board for which it had no jurisdiction
whatsoever, its order would be 'coram non judice'. [See Kiran Singh v. Chaman
Paswan, and MD, Army Welfare Housing Organisation v. Sumangal Services
(P) Ltd., Unfortunately, the attention of the Tribunal or the High Court
was not drawn to this aspect of the matter.
It is also not in dispute that the purported admission on the part of the
private parties was a conditional one; by reason whereof, the nature of the
property being Wakf had not been admitted. An admission of a party must be
clear and explicit in a case where an inference is required to be drawn in
regard to the fact that thereby he had admitted the title of the other. Generally
speaking, even no title can be created by admission. [See Thayyil Mammo and
Another v. Kottiath Ramunni and Others,
If the nature of dedication of the property does not constitute a Wakf within
the meaning of the provisions of the Act, it must be proved that it became a
Wakf by reason of long user. No such finding has been arrived at.
We may notice, although no final verdict has been pronounced, it has been
contended before us that a purported dedication of a property by a Hindu for
constitution of Wakf is legally impermissible. Our attention has been drawn to
Motishah and others v. Abdul Gaffar Khan 1956 AIR(Nag) 38 wherein the law
has been declared in the following terms:
"A wakf may be defined to mean the detention of the 'corpus' in the
ownership of God in such a manner that its profits may be applied for the
benefit of His servants. As a general rule it may be stated that all persons
who are competent to make a valid gift are also competent to constitute a valid
wakf. Islam is not a necessary condition for the constitution of a wakf.
Any person of whatever creed may create a wakf but the law requires that the
object for which dedication is to be made should be lawful according to the
creed of the dedicator as well as the Islamic doctrines. A cemetery or
graveyard is a consecrated ground and is not a private property. Whether a
place is a 'makbara' (burial ground) or not depends on the number of persons
buried there or evidence of dedication derived from the testimony of witnesses
of reputation" However, yet again, in Arur Singh and others v. Badar Din
and others 1940 AIR(Lah) 119, the law is stated in the following terms:
"Secondly, there seems to be no clear authority to show that dedication of
land by a Hindu for the purpose of a Muslim graveyard would be invalid either
according to Hindu or Muslim law..."
If the property in question was not a Wakf property and the order registering
the property as a Wakf property was invalid in law, the matter might have ended
there. But, the Tribunal has gone a step further and directed framing of
scheme.
The Wakf Act is a self-contained code. Section 32 of the 1995 Act provides for
powers and functions of the Board. Sub-section (2) of Section 32 of the 1995 Act
enumerates the functions of the Board without prejudice to the generality of
the power contained in Sub-section (1) thereof. Clauses (d) and (e) of
sub-section (2) of Section 32 of the 1995 Act reads as under:
"(d) To settle schemes of management for a wakf:
Provided that no such settlement shall be made without giving the parties
affected an opportunity of being heard;
(e) To direct
(i) The utilisation of the surplus income of a wakf consistent with the objects
of a wakf;
(ii) in what manner the income of a wakf, the object of which are not evident
from any written instrument, shall be utilized;
(iii) in any case where any object of wakf has ceased to exist or has become
incapable of achievement, that so much of the income of the wakf as was previously
applied to that object shall be applied to any other object, which shall be
similar, or nearly similar or to the original object or for the benefit of the
poor or for the purpose of promotion of knowledge and learning in the Muslim
community:
Provided that no direction shall be given under this clause without giving the
parties affected an opportunity of being heard.
Explanation.For the purposes of this clause, the powers of the Board shall be
exercised
(i) in the case of a Sunni wakf, by the Sunni members of the Board only; and
(ii) in the case of a Shia wakf, by the Shia members of the Board only:
Provided that where having regard to the number of the Sunni or Shia members in
the Board and other circumstances, it appears to the Board that the power
should not be exercised by such members only, it may co-opt such other Muslims
being Sunnis or Shias, as the case may be, as it thinks fit, to be temporary
members of the Board for exercising its powers under this clause;"
The Tribunal had been constituted for the purposes mentioned in Section 83 of
the 1995 Act. It is an adjudicatory body. Its decision is final and binding but
then it could not usurp the jurisdiction of the Board. Our attention has not
been drawn to any provision which empowers the Tribunal to frame a scheme. In
absence of any power vested in the Tribunal, the Tribunal ought to have left
the said function to the Board which is statutorily empowered therefor. Where a
statute creates different authorities to exercise their respective functions
thereunder, each of such authority must exercise the functions within the four
corners of the statute.
It is trite that when a procedure has been laid down the authority must act
strictly in terms thereof. [See Taylor v. Taylor, 1875 (1) ChD 426
We, therefore, are of the opinion that the matter requires fresh consideration
at the hands of the Tribunal. We direct accordingly. Orders of the Tribunal and
the High Court are set aside. The appeals are disposed of with the
aforementioned directions. The Tribunal is directed to consider the matter
afresh as expeditiously as possible preferably within a period of three months
from date. Having regard to the facts and circumstances of the case, the
parties shall pay and bear their own costs.