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CASE NO.: Appeal (civil)  6975 of 2004

PETITIONER: M.P. Wakf Board                                                  

RESPONDENT: Subhan Shah (D) By LRs. & Ors.                          

DATE OF JUDGMENT: 31/10/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G E M E N T WITH

CIVIL APPEAL NO. 6976 OF 2004

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

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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\005".  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 \026 (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

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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.\027Notwithstanding  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\027   (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

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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:

"\005Defendant 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 [(1970) 3 SCC 119], 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

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that opportunity. The High Court thought that as  the Central Government had not only intimated to  the appellant the grounds mentioned in the  application made by the 5th respondent but also  the comments of the State Government, the  appellant had adequate opportunity to put forward  his case. This conclusion in our judgment is  untenable. At no stage the appellant was informed  that the Central Government proposed to exercise  its suo moto power and asked him to show cause  against the exercise of such a power. Failure of the  Central Government to do so, in our opinion,  vitiates the impugned order."

         If the proceeding was initiated by the Board for which it had no  jurisdiction whatsoever, its order would be ’coram non judice’. [See Kiran  Singh v. Chaman Paswan, AIR 1954 SC 340 and MD, Army Welfare  Housing Organisation v. Sumangal Services (P) Ltd., (2004) 9 SCC 619]   Unfortunately, the attention of the Tribunal or the High Court was not drawn  to this aspect of the matter.   

       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, AIR 1966 SC 337]

       If the nature of dedication of the property does not constitute a Wakf  within the meaning of the provisions of the Act, it must be proved that it  became a Wakf by reason of long user.  No such finding has been arrived at.

       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 [AIR 1956  Nagpur 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\005"

       However, yet again, in Arur Singh and others v. Badar Din and others  [AIR 1940 Lahore 119], the law is stated in the following terms:

"\005Secondly, there seems to be no clear authority  to show that dedication of land by a Hindu for the

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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\027   (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.\027For the purposes of this clause, the  powers of the Board shall be exercised\027   (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

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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 Ch D 426]

       We, therefore, are of the opinion that the matter requires fresh  consideration at the hands of the Tribunal.  We direct accordingly.  Orders of  the Tribunal and the High Court are set aside.  The appeals are disposed of  with the aforementioned directions.  The Tribunal is directed to consider the  matter afresh as expeditiously as possible preferably within a period of three  months from date.  Having regard to the facts and circumstances of the case,  the parties shall pay and bear their own costs.