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PETITIONER: U.   P. SUNNI CENTRAL WAKF BOARD

       Vs.

RESPONDENT: Md. ALIM & ORS.

DATE OF JUDGMENT07/05/1971

BENCH: GROVER, A.N. BENCH: GROVER, A.N. VAIDYIALINGAM, C.A.

CITATION:  1971 AIR 1396            1971 SCR  810

ACT: Uttar  Pradesh  Muslim Waqfs Act,  1960-Religious  Endowment Act,1861 Act 20 of 1863-District Judge has no power to  fill in  vacancy  on the committee constituted under  the  latter Act.

HEADNOTE: The  Waqf of the Durgah at Fatehpuri is one of the Waqfs  to which the provisions of the Uttar Pradesh Muslim Waqfs  Act, 1960  applied.   When vacancies arose on  the  committee  of Management  constituted under the Religious  Endowment  Act, 1861 (Act 20 of 1863) and these were not filled by  election in  terms  of  s.  10 of  this  Act,  the  appellant  Board, constituted  under  the 1960 Act, filled  in  the  vacancies acting   under  the  provisions  of  the   Act.    Thereupon respondent  no. 1 filed an application in the court  of  the District  Judge under Act 20 of 1863 to appoint  persons  to fill in the vacancies.  The District Judge held that he  had the power to reconstitute the managing committee under s. 10 of Act 20 of 1863 and directed that the vacancies be  filled in according to the rules.  The High Court in revision  came to  the conclusion that there was no provision in  the  1960 Act  corresponding to s. 13 of Act 20 of 1863 which cast  an additional  responsibility on the committee to keep  in  its custody  accounts and consequently held that  the  Committee constituted  under  Act 20 of 1863 could still  continue  to discharge  some  of the functions assigned to  it,  and  the District   Judge   was  thus  competent  to   entertain   an application under s. 10 there of. HELD:  The  District Judge had no jurisdiction or  power  to fill  in, vacancies on the Committee constituted  under  the provisions of Act 20, of 1863. Sections  49 and 50 of the 1960 Act leave no room for  doubt that accounts, which would include books of account, and all relevant   records,.deeds  and  documents  have  to  be   in Mutawalli’s  custody  and he is bound to  produce  them  for inspection  by the Board whenever so desired  an&  Mutawalli according   to  the  definition  includes  a  committee   of management The Act is self contained and makes provision for complete superintendence,.administration and control of  the Waqfs  over which the boards established under s. 10 of  the 1960 Act, have jurisdiction. Therefore,  there  cannot be an independent existence  of  a

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committee  constituted  under Act 20 of 1863  only  for  the purpose  of having custody of books of account  particularly when  the 1960 Act fully contemplates and provides  for  the maintenance,  custody etc. of accounts and account books  by the  mutawalli.  There is a clear inconsistency between  its provisions  and  those  of  Act  20  of  1860  relating   to committees, their functioning and control. [814F-H]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1021  of 1966. Appeal  by special leave from the judgment and decree  dated September  8,  1965  of the Allahabad High  Court  in  Civil Revision, No. 76 of 1964. 811 C.   B.  Aggarwala, K. L. Hathi, Quayamuddin Shah and P.  C. Kapoor, for the appellant. M.   C. Chagla and S. S. Shukla, for respondent No. 1(ii). S.   K.  Bagga  and S. Bagga, for respondent  Nos.  2(i)  to (iii). The Judgment of the Court was delivered by Grover,  J.-This is an appeal by special leave from a  judg- ment  of  the Allahabad High Court made in exercise  of  the revisional jurisdiction. The  appellant  is a statutory board established  under  the provisions of s. 10 of the Uttar Pradesh.  Muslim Waqfs Act, 1960, hereinafter called the ’Act’.  The Act applies to  all waqfs which at the time of its coming into force were  under the  superintendence of the Shia Central Board and the  Shia Central  Board constituted under the U.P. Muslims Waqfs  Act 1936. The  present  proceedings  relate to the  famous  Durgah  of Hazrat  Sheikh  Saleem  Chishti at Fatehpuri  Sikri  in  the district  of Agra said to have been established  by  Emperor Akbar.   The  Durgah  was  administered  originally  by  the Moghuls  and thereafter by the Board of Revenue  established by the British Government under the Bengal Regulation No. 19 of 1810.  Subsequently the Religious Endowment Act 1861 (Act 20 of 1863) was passed which provided for the management  of mosques,   temples  and  other   religious   establishments. Section 7 of Act 20 of 1863 provided for the appointment and constitution of the committees which were to be appointed by the  State  Government  for  the  management  of   religious establishments  mentioned in s. 3 of that Act.   Section  10 provided  for  election  when  a  vacancy  occurred  in  the committee.   By  G.O. dated July 7, 1925  and  a  subsequent notification dated February 27, 1927 rules for the  election of  the managing committee were framed and a  committee  was formed. The  Waqf of the Durgah was registered as one of  the  waqfs under  the superintendence of the Board as provided by s.  5 of  the  U. P. Muslim Waqfs Act 1936.  It is  common  ground that  the waqf is registered and it is one of the  waqfs  to which  the provisions of the Act would be  applicable.   The term of four members of the committee constituted under  the provisions  of  Act 20 of 1863 expired in 1962  and  as  the vacancies  were not filled in by election the  President  of the appellant board filled in the vacancies acting under the provisions   of  the  Act.   Respondent  No.  I   filed   an application  In  the  court of the District  Judge  at  Agra purporting to be an application under Act 20 of 1863 stating inter  alia  that the President of the appellant  board  had constituted a committee

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812 of  five persons under the provisions of the Act by  filling in  the  four vacancies.  It was further  averred  that  the provisions  of the Act, particularly s. 48, did not  obviate the  necessity  of the appointment of the committee  by  the District  Judge  under  s. 10 of Act 20 of  1863.   It  was, therefore,  prayed  that  the  District  Judge  may  appoint persons  to  fill  in the vacancies.   The  appellant  board contested  that application principally on the  ground  that after  the enactment of the Act the provisions of s.  10  of Act  20  of 1863 were no longer applicable.   The  appellant board also maintained that the appointment of the  committee by the court would be inconsistent with the appointment of a managing committee by the board under the provisions of  the Act. The District Judge by his judgement dated November 23,  1963 held  that  he had the power to  reconstitute  the  managing committee  under s. 10 of Act 20 of 1863.  He directed  that the vacancies shall be filled up according to the prescribed rules.   The appellant moved the High Court under s. 115  of the  Code of Civil Procedure for revising the order  of  the District  Judge.   The High Court referred to  the  relevant provisions of the Act as well as Act 20 of 18-63.  It was of the  view  that for the purpose of Act 20 of  1863  mosques, temples and other religious establishments could be  divided in two main groups.  One was that to which the provisions of the  Bengal Regulation No. 19 of 1810 or  Madras  Regulation No. 7 of 1817 were applicable.  The other group was the  one to which the provisions of these Regulations did not  apply. The first group could be sub-divided into two depending upon the  mode  of  nomination or  appointment  of  the  trustee, manager  or  superintendent.  Section 3 of Act  20  of  1863 applied to religious establishments falling in the sub-group in   which.  the  nomination  of  a  trustee,   manager   or superintendent thereof was vested in, or was exercised by or was  subject  to the confirmation of the government  or  any public  officer.  In case of establishments covered by s.  3 it  was necessary for the State Government to proceed  under s.  7  and  to  appoint one  or  more  committees.   On  the appointment  of the committee the Board, of Revenue and  the local  agents ceased to exercise the functions  assigned  to them under the Regulation and they were to transfer to  such committee  all  landed or other property  belonging  to  the establishment.   After referring to the relevant  provisions of the Act the learned judge held that the general power  of superintendence conferred on the committee constituted under s. 7 of Act 20 of 1863 became vested in the appellant  board constituted under the Act.  The continuance of the committee for  the  general  supervision  of  waqfs  was,   therefore, inconsistent with the provisions of s. 19 of the Act and  in such circumstances the corresponding provisions of Act 20 of 1863  stood  repealed  with the result  that  the  committee appointed  under s. 7 of that enactment could not  discharge the general 813 power  of supervision and superintendence of waqfs to  which the  Act  applied.  However, in the opinion of  the  learned judge there was no provision in the Act corresponding to  s. 13  of  Act 20 of 1863.  That section  casts  an  additional responsibility  on the committee in that it has to  keep  in its  custody  accounts regularly submitted by  the  trustee, manager  or  superintendent  of  the  mosque  or   religious establishment.  Clauses (g) and (i) of s. 19(2) and s. 27 of the  Act did not show any inconsistency with the  provisions of  s. 13 of Act 20 of 1863.  It was consequently held  that

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the committee constituted under s. 7 of Act 20 of 1863 could still  continue to discharge some of the functions  assigned to it and the District Judge was thus competent to entertain an  application  under s. 10 thereof and  fill  the  vacancy among the members of the committee. We  are unable to share the view of the High Court.  On  his own reasoning the learned judge could not. have come to  the conclusion  at which he arrived, namely, that  although  the power  of  general superintendence of the waqf  in  question vested  in  the  appellant  board  and  that  the  committee constituted under s. 7 of Act 20 of 1863 could not  exercise those powers which were exercisable by the board a committee under the old Act could still function for the purpose of s. 13 of that Act inasmuch as such a committee would still have the custody of the accounts of the Waqf. The  Act has been enacted to provide for better  governance, administration and supervision of certain classes of waqf in the State of U.P. Section 3(5) defines the word  "mutawalli" to mean:               "a  manager of a waqf and includes an amin,  a               sajjadanashin, a khadim, naib-mutawalli and  a               committee of management, and also includes any               person who is for the time being in charge of,               or administering, waqfs." Section 10 provides for the establishment of Central Boards. Section 19 contains the functions of the Board.  Sub-s.  (1) says  that  the  Board shall do  all  things  reasonable  or necessary to ensure that the waqfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly appropriated to the purpose for which they  were founded or for which they exist.   The  following clauses of sub-s. (2) may be noticed :-               "(g)  to inspect or cause inspection  of  waqf               properties  accounts or records or  deeds  and               documents relating thereto               (h)   to  investigate  into  the  nature   and               extent of waqf properties and call, from  time               to  time,  accounts  and  other  returns   and               information               814               from  the mutawallis and give  directions  for               the proper administration of waqfs;               (i)   to arrange for the auditing of  accounts               submitted  or required to be submitted by  the               mutawallis ;               (k)   to administer the Waqf Fund               (1)   to keep regular accounts of the receipts               and  disbursement and submit the same  to  the               State Government in the manner prescribed; Section 48 relates to appointment of mutawallis and s. 49 to their  duties.   The  mutawalli is bound to  carry  out  all directions  issued by the board and to furnish such  returns and supply such information as may be required by the  board or  the sub-committee from time to time.  The mutawalli  has also  to  allow  inspection of waqf  property,  accounts  or records  or deeds and documents relating thereto.  Under  s. 50  he  has  to prepare every year a  budget  for  the  next financial year and submit to the board before the first  day of May in every year a full and true statement of  accounts. Section  85(1) provides that nothing in any other  enactment which  is inconsistent with the provisions of the Act  shall apply to any waqf to which the Act applied. As has been stated before, it is not disputed that the  waqf of the Durgah is governed by the provisions of the Act.  The entire  scheme  of  the  Act  shows  that  the  control  and

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supervision  over the waqf is that of the board  constituted under  s.  10.  It is the board that has  full  powers  with regard   to   inspection  of   accounts,   their   auditing, administration  of  the  waqf funds  and  an  such  matters. Sections  49  and 50 leave no room for doubt  that  accounts which  would  include  books of  account  and  all  relevant records,  deeds  and  documents have to  be  in  Mutawalli’s custody  and he is bound to produce them for  inspection  of the  board whenever so desired.  "Mutawalli",  according  to the definition, includes a committee of management.  The Act appears  to  be  self-contained  and  makes  provisions  for complete superintendence, administration and control of  the waqfs  over  which the boards established under s.  10  have jurisdiction.   It  is  barely  possible  to  envisage   the independent  existence of a committee constituted under  Act 20  of  1863 only for the purpose of having custody  of  the books  of  account particularly when the Act  fully  contem- plates  and  provides for the maintenance, custody  etc.  of accounts  and account books by the mutawalli.  It is  common ground  that  the Act was passed with the  approval  of  the President of India.  There is a clear inconsistency  between its  provisions  and those of Act 20 of  1.863  relating  to committees, their functioning and control. 815 We   accordingly  hold  that  the  District  Judge  had   no jurisdiction or power to fill in vacancies on the  committee constituted  under  the provisions of Act 20 of  1863.,  The appeal is therefore allowed and the orders of the High Court and   the  District  Judge are  hereby  set  aside.    The application  under  the provisions of Act 20 of  1863  shall stand dismissed.  The parties will bear their ,,own costs in this Court. K.B.N.                                                Appeal allowed. 816