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TMI Blog1978 (10) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... e Princely State of Jaipur, who owned a considerable estate, on a plot of land admeasuring 5 bighas and 3 biswas obtained from the Mehakma Mensa Aliya Council with the approval of the Ruler of Jaipur under a Patta dated February 23, 1886 for construction of a Haveli and Dharamshala. It appears that Haji Mohammad Ali Khan before his death in the year 1912, had executed two wills, one on February 17, 191 O and the other on July 1, 1911, by which after making several bequests he acknowledged that he had dedicated the said property in wakf, for its use as a Dharammshala and appointed his son Ehsen Ali Khan as its Mutawalli. After the death of Haji Mohammad Ali Khan, there was a suit for partition of the property brought by his son Faiyaz Ali Khan against his brother Ehsari Ali Khan, being original Suit No. 128 of 1930 and the building was left out of partition being wakf property. It, however, appears that the mutawalli Ehsan Ali Khan mortgaged the property with possession, with Seth Bijaylal, father of respondent No. 2, and Bhuramal, father of respondent No. 1, for ₹ 7,999,'- and executed a mortgage deed dated July 30, 1944 in Their favour for the purpose or purchasing a strip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question relating to the title of the respondents Nos. 1 and 2 or to eject them from the property without taking recourse to a civil suit. The Commissioner of Wakfs, however, felt that he was not bound by these observations of the High Court since he was not served with a notice and accordingly decided to proceed with the enquiry. In . consequence thereof, the respondents Nos. 1 and 2 had to participate in the proceedings. On October 19, 1962 they filed their reply before the Commissioner of Wakfs and joined issue on the question as to whether the disputed property was wakf property or not. In their reply they pleaded, inter alia that the property was not a wakf and that the wills had indeed been cancelled in a suit. The Commissioner of Wakfs by his report dated December is, 1964 on the basis of the evidence led before him, held the disputed property to be wakf property recommended that it be recorded as such, and accordingly, forwarded a report to that effect to the State Government as required under sub-s.(3) of s.4. On receipt of the report of the Commissioner of Wakfs forwarded to it by the State Government under sub-s. (1) of s. S, the Board of Muslim Wakfs published a notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondents Nos. l and 2 to file a suit within the time allowed by sub-s. (1) of s. 6 of the Act makes the inclusion of the disputed property in the list of wakfs published by the Board of Wakfs under subs.( 2) of s.5, final and conclusive. Tn support of the contentions, it is urged that the word 'therein' in the expression 'any per- son interested therein' appearing in sub-s.(1) of s.6, qualify title words 'wakf property' and, therefore, the expression 'any person interested 817SCI/78 therein' cannot, in the context in which it appears, mean 'person interested in a wakf' as defined in s. 3(h) of the Act, as wrongly assumed by the High Court. It is therefore, urged that the right of suit given under s. 6(1) of the Act can be availed of by a person affected by the publication of the list of wakfs under sub-s.(2) of s.5, i.e. it includes even a stranger. In reply, it is submitted on behalf of the respondents Nos. 1 and 2, that the scope of s. 6 is to narrow down the dispute between the Board of Wakfs, the mutawalli and any person interested in the wakf, as defined in s. 3(h). It is urged that the High Court was, therefore, right in holding that 6 refers only to such a dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f wakfs in Bengal. The United Provinces followed suit and the United Provinces Muslim Wakf Act, 1936 was passed creating a Central Wakf Board. Similarly, Bihar also passed a legislation almost on the same lines. The working of these Acts brought out the necessity for one uniform and consolidated legislation by the Center. It was with this view that the Wakf Act 1954 was enacted. The scheme of the Act may be briefly indicated. Section 2 makes the Act applicable to all wakfs in India except to Durgah Khawaja Saheb, Ajmer. Section 3 defines certain terms, and the term 'wakf' and the expression 'person interested in a wakf' have been defined as follows: "3.(h) 'person interested in a wakf' means any person who is entitled to receive any pecuniary or other benefits from the wakf and includes,- (i) any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, Khangah, maqbara, graveyard or any other Religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf; (ii) the wakif and any descendant of the wakif and the mutawalli. (1) 'wakf' means the permanent dedication b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 5 provides for publication of a list of wakfs and is as follows: "5.(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 existing in the State, or as the case may be, the part of the State to which the report relates, and containing such particulars as may be prescribed." Section 6, which relates to adjudication of dispute regarding wakfs, B so far as material, reads: "6.(1) If any question arises whether a particular property specified as wakf property in a list of wakfs published under sub-section (2) of the section 5 is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be. final: Provided that no such suit shall be entertained by the civil court after the expire of one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistrative body, is empowered to supervise and administer wakf property. Chapter V deals with mutawallis and wakf accounts. This chapter provides in detail as to how mutawalli shall submit budget and tho accounts and in what manner the Board will be exercising its control over the wakf properties. Section 36A relates to transfer of immovable property of wakfs. According to this section, no transfer of the wakf property is valid without the previous sanction of the Board. Section 36B empowers 'the Board to recover certain wakf properties transferred without the previous sanction of the Board by sending a requisition to the Collector. Chapter VI relates to the finance of tho Board. Chapter VII to judicial proceedings and Chapter VIII to miscellaneous matters. It would thus appear that the Act is a complete code dealing with the better administration and supervision of wakfs. The High Court, in its considered opinion, in the light of the historical background and precedents, observed: " 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 parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of another Act, unless the two Acts are in pari materia. Further, when there is no ambiguity in the statute, it may not be permissible to refer to, for purposes of its construction, any previous legislation or decisions rendered therein. The questions that fall for determination upon the appeal are two; first, whether a Commissioner of Wakfs appointed under sub-s. (1) of s. 4 of the Wakf Act, 1954, has the jurisdiction under sub s. (3) of s. 4 to enquire whether a certain property is wakf property or not when such a dispute raised by a stranger to the wakf and second, if so, whether the failure of such a person to institute a suit in a civil court of competent jurisdiction for decision of such question within a period of one year, as provided for under sub-s. (1) of s. 6, makes the inclusion of such property in the list of wakfs published by the Board under sub-s.(2) of s. 5 of the Act final and conclusive under subs. (4) of s. 6 It is needless to stress that the whole purpose of the survey of wakfs by the Commissioner of Wakfs under sub-s. (1) of s. 4 is to inform the Board of Wakfs, as to the existence of the existing wakfs in a State, in order that all such wakfs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Sunni wakf, (c) extent of the property attached to the wakf, (d) the nature and object of the wakf, etc. While making such an enquiry, the Commissioner is invested by sub-s. (4) with the powers vested in a civil court under the Code of Civil Procedure, 1908 in respect of the summoning and examining of any witness, requiring the discovery and production of any document, requisitioning any public record from any court or office, issuing commissions for the examination of any witness or accounts, making any local inspection or local investigation etc. In view of these comprehensive provisions, it is not disputed before us that the enquiry that the Commissioner makes for the purpose of submission of his report under sub-s. (3)? while making a survey of existing wakfs in the Estate under sub-s. (1), is not purely of an administration nature but partakes of a quasi-judicial in character, in respect of the persons falling within the scope of sub-s. (1) of s. 6. It would be illogical to hold that while making a survey of wakf properties existing in the State a Commissioner of Wakfs appointed by the State Government under sub-s. (1) of s. 4, should have no power to enquire whether a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by sub-sections (1) and (3) of s. 4 must cover the field defined by sub-s. (1) of s. 6. The opening words of the section are: "If any question arises whether a particular property specified as wakf property in a list of wakfs published under sub section (2) of section 5 is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf .... " They clearly envisage that the enquiry by the Commissioner is not con fined to the question as to whether a particular wakf is Shia wakf or Sunni wakf. It may also embrace within itself a dispute as to whether a wakf exists. This is a conduction which sub-s. (1) of s.4 must, in its context and setting, bear. Any other construction would, indeed, make the Act unworkable. While it is true that under the guise of judicial interpretation the court cannot supply casus omissus, it is equally true that the courts in construing an Act of Parliament must always try to give effect to the intention of the legislature. In Crawford v. Spooner([1846] 6 Moors P.C. 1) the Judicial Committee said: "We cannot aid the legislature's defective phrasing of an Act, we cannot add and mend, and, by construction, make up d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final and conclusive against them under sub-s. (4) of s. 6, it was urged that respondents Nos,. 1 and 2 were wholly outside the purview of sub-s. (1) of s. 6 and they must, therefore, necessarily fall outside the scope of the enquiry envisaged by sub-s. (1) of s. 4, as the provisions contained' in sections 4, 5 and 6 form part of an integrated scheme. The question that arises for consideration, therefore, is as to who are the parties that could be taken to be concerned in a proceeding under sub-s. (1) of s. 6 of the Act, and whether the list published under subs. (2) of s. S declaring certain property to be wakf property, would bind a person who is neither a mutawalli nor a person interested in the wakf. The answer to these questions must turn on the true meaning and construction of the word 'therein' in the, expression 'any person interest ted therein' appearing in sub-s. (1) of s. 6. In order to understand the meaning of the word 'therein' in our view, it is necessary to refer to the preceding words 'the Board or the mutawalli of the wakf'. The word 'therein' must necessarily refer to the 'wakf' which immediately pre cedes it. It cannot refer to the 'wakf property'. Sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd may bring a suit in a civil court of competent jurisdiction for a declaration that any transaction held by the Commissioner of Wakfs to be a wakf is not a wakf, or any transaction held or assumed by him not to be a wakf, or that a wakf held by him to pertain to a particular sect does not be- long to that sect, or that any wakf reported by such Commissioner as being subject to the provisions of this Act is exempted under section 2, or that any wakf held by him to be so exempted is subject to this Act." The provision to that section prescribed the period of one year's limitation, as here, to a suit by a mutawalli or a person interested in the wakf. The two provisions are practically similar in content except that the language of the main enacting part has been altered in sub-s. (1) of s. 6 of the present Act and put in a proper form. In redrafting the section, the sequence, of the different clauses has been changed, therefore, for the expression "any person interested in a wakf" the legislature had to use the expression "any person interested therein". The word 'therein' appearing in sub-s. (1) of s. 6 must, therefore, mean 'any person interested in a wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3 and to no other person." We are in agreement with this reasoning of the High Court. 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. S 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. Incidentally, the High Court also dealt with s. 27 of the Act, and observed. "S. 27 does not seem to suggest that it empowers the Board to decide the question whether a particular property is wakf property or not, if that challenge comes from a stranger who is neither mutawalli nor a person interested in the wakf, but who belongs to another religious denomination and who claims a valid title and lawful possession over that property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction of sub-s. (1) of s. 6 that the list of wakfs so published by the Board was not final and conclusive under sub s (4) of s. 6 against the respondents Nos. l and 2 due to their failure to bring a suit within one year as contemplated by sub s. (1) of s. 6. 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. Accordingly, the order of the High Court allowing the writ petition and declaring that the inclusion of the property in dispute in the list of wakf published by the Board bf Muslim Wakfs, Rajasthan under sub-s. (2) of s. 5 of the Wakf Act, 1954 was not binding on the respondents Nos. 1 and 2 is upheld, but its direct restraining the Board of Muslim Wakfs from entering the disputed property in the register of wakfs and from dispossessing the respondents Nos. 1 and 2, except by way of a suit in a civil court of competent jurisdiction is set aside as it proceeds on the assumption that sections 27 and 36B of the Act are not applicable, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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