BOARD OF MUSLIM WAKFS, RAJASTHAN versus RADHA KRISHNA & ORS.

BOARD OF MUSLIM WAKFS, RAJASTHAN

RADHA KRISHNA & ORS.

October 24, 1978

[JASWANT SINGH, R. S. PATHAK AND A. P. SEN, JJ.]

Wakfs Act, 1954-Ss. 4 and 6-Scope of-Con11nissio11er of Wakfs, if had jurisdiction to hold enquiry lvhether certain property was wakf property-Failure of stranger to file suit lVithin time allowed by s. 6(1)-Special rule of limitation-If applicable to hin1-lnclusion of property in the list of ·wakfs-C If final and conclusire.

1'o provide for the better administration and supervision of wakfsi the \Va-kfs Act 1954, sought to bring the management of wakfs under the supervision of the State. The Act envisages the appointment of COmmissioner of Wakfs for the purpose of survey of wakf properties existing at the tin1e of the cornn1encement of the Act. The Commissioner is enjvined to submit his r':"port to the State Government after making such enquiries as he may consider necessary. While making enquiries the Com1nissioner is invested with powers ;.is are vested in C.ivil Court under the Code of Civil Procedure. Section 6 of the Act provides that if any question arises as to wheihe1 particular property specified in the list of w2.kfs published under s. 5(2) was wakf property or not and such other related matters, the Board of l\fusl.im Wakfs or the Mutawalli of the wakf or any person interested therein may institute suit in Civil Court for decision of the question.

llespondents 1 and 2 \vere n1ortgagee-purchasers of the property in dis-pute, which was claimed to be \Vakf property. Respondent No. 3 in his application to the Commissioner of Wakfs alleged that the property in dispute being wakf property· its transfer by the mutawalli to the respondents· was invalid and prayed that the property be taken over by the \Vakf committee. While denying that the property in dispute was '\-Vakf property respondents 1 and 2 contended before the Commissioner that he had no jurisdiction t.ci make an enquiry whether particular property was \vakf property or not. The Commissioner rejected these contentions and submitted report to the State Government. On receipt of the Commissioner's report the Board of Muslim Wakfs included the property in the list of wakfs in the St.ate.

In the respondents' Writ Petition, the High Court held (i) that the juris-G diction of the Board of Wakfs was confined to matters of administration of the \vakfs and not to adjudication of questions of title and that the Act did not invest either the Board or t.he Commissioner with power to decide thC question \Vhether property belonged to ·wakf or not and therefore the Commissioner had no jurisdiction under s. 4(3) of the Act to enquir~ whether 01 not the property was wakf property and (ii) that the failure of stranger to the wakf to institute suit in court of conlpetent jurisdiction within period of one year on the question whet.her particular property was \vakf property or not could not make the inclusion of such property in the list of wakfs final and conclusive.

In appeal to this Court it was contended on ·behalf of the appellants that (i)' the words "for the purpose of making survey of wakf properties" are wide enough ·to confer power on the Commissioner to investigate and adjudi~ cate upon the question whether particular property was or was not wakf property and (ii) failure of the respondents to file suit within the time allowed by s, 6( 1) made the inclusion of the property in the list Of wakfs final and conclusive. The word "therein" occurring in "any person interested therein" in ~.. 6 (l) qualifies the words "wakf property" and not "person interested in the w<ikfs" as wrongly assumed by the High Court.

Dismissing the appeal to this Court

HELD : While the High Court was right in determining the scope of s. 6 ( 1). it was clearly in error in curtailing the ambit and scope of enquiry by the Commissioner under s. 4(3). [160 EJ

1. (a) The Commissioner of wakfs acted within his jurisdiction in holding the disputed property to be wakf property. [168 CJ

(b )· The whole purpose of the survey of the wakfs by the Commissioner under s. 4(1) is to inform the Board of Wakfs as to existence of the wakfs in the State in order that all such wakfs should be brought .µnder the super-vision and control of the Board. [160 DJ

(c) The words "for the purpose of making survey" are the key to the construction of the section. If the Commissioner has the power to make survey it is but implicit that in the exercise of such power he should enquire whether or not wakf exists. The making of such an enquiry is fore, wrong necessary concornitau.t of the power to survey. in holding to the contrary. [162 A-BJ The High Court 1 was, there-

(d). It \vould be illogical to hold that while making survey of wakf properties e:t:isting in the State the Commissioner of wakfs should have no power to enquire whether particular property was wakf property or not. After makir.:g the survey the Commissioner is required to submit report to the State Government in regard to the several matters referred to in clauses (a) to (f) thereof. There m•y be dispute as between the Board, the n1utawalli or person interested in the wakf, as regards the existence of wakf i.e. whether particular property is wakf property, whether it is Shia wakf or Slillili wakf, the extent of the property attached to the wakf, the nature and object of the wakf and so on. While making such an enquiry, the Com-missioner is invested with the powers vested in Civil Court under the Code of Civil Procedure, 1908, In view of the comprehensive provisions contained in the Act the enquiry which the Commissioner makes is not purely of an administrative nature but partakes of quasi-judicial character in respect of persons falling within the scope of s. 6.(1). [161 F; C-EJ

(e) The power of the Commissioner to survey wakf properties or to enquire and investigate into the several matters set out in sub-section (3) cannot be curtailed by taking recourse to s. 4(5). Sub-section (5) only lays down that, if during an enquiry 'any dispute arises as to whether particular wakf is Shia wakf or Sunni wakf and if there are clear indications in the deed of wakf as to its nature, the dispute shall be decided on the basis of

wch deed. It, therefore, n1akes the wakf deed conclusive as to the nature of the wakf. Sub-section (5) cannot be projected into sub-section (1) deter-mining the question whether certain property is wakf property or not. Nor does it enter into an enquiry as to several of the matters adverted to in some of the clauses of sub-section (3). [162 D-E]

(f) Moreover s. 6 and s. 6(1) clearly envisage that the enquiry by the Commissioner was not confined .:to the question as to whether particular wakf was Shia Wakf or Sunni Wakf. It might also embrace dispute as to whether wakf existed or not. [162 HJ

2. (a) Where stranger is non.Muslim and is in possession of certain property, his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list of wakfs. Such person is not required t.o file suit for declaration of his title within period of one year. The special rule of limitation laid down in proviso to s. 6(1) is not aflplicablc to him. In other words, th~ list published by the Board of Wakfs under s. 5(2) can be challenged by him by filing suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises. [167 A-Bl(b) The word "therein" occurring in s. 6 ( 1) after the words "any person interested therein" must necessarily refer to the "Wakf" which im.n1ediatcly precedes it. It cannot refer to the wakf property. Section 6(1) enumerates the perSons who can file suits and also the questions in respect of which such suits can be filed. In enumerating the ,persons who are empo-wered to file suits under this provision only the Board, the mutawalli of the Wakf; and ''any pereon interested therein", thereby necessarily meaning any person intere.5ted in the wakf, are listed. Its provisions empo\ver only those who are interested in the wakfs to institute suits. [164 E-F]

Sirajul Haq Khan & Ors. v. The Sunni Central Board of rVakf, U.P. Ors., [1959] SCR 1287, referred to.

( c) The word "therein" in s. 6( 1) must mean "any person interested in wakf" as defined in s. 3 (h). The ·Object of the section is to narrow down the dispute between the Board of Wakfs, the Mutawalli and the person intc~ rested in the wakf as defined in s. 3(h}. [165 HJ

( d) Tho right of the respondents I and 2 in icspect of \he disputed property, if at aJI they have any, will remain unaffected by the impugned Notifi-cation. Thoy are at liberty to bring suit for the establishment of their right and title, if any, to the property. [168 El

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 166 of 1969.

From the Judgment and Orde.r dated 4-5-1966 of the Rajasthan High Court in D.B. Civil Misc. Writ No. 74 of 1965.

M. N. Phadke, M. Qamaruidin, Mrs. M. Qamaruddin and V. M. Phadke for the Appellant.

s. s. Ray, S. M. Jain, D. D. Patodia and S. K. Jain for Respond€lnts

1 and 2.

Appeal set down Ex parte against RR. 3 and 4.

The Judgment of the Conrt was delivered by

SEN, J. This appeal by certificate is directed against the judgment of the Rajastlian High Court dated May 4, 1966 holding !hat inclusion of the disputed property in the list of wakfs published by the Board ofl Muslim Wakfs, Rajasthan under sub-s. (2) of s. 5 of the Wakf Act, 1954 is not binding on the respondents Nos. 1 and 2, the mortgagee--purchasers and restraining the Board from taking any steps under s . 36B of the Act for evicting them from the same.

The subject niatter in dispute is two-storeyed building, known as Dhararnshala or M~rkhana, situate on Mirza famail Road a! Jaipur. The building was constructed by the late Haji Mohammad Ali Khan, .Sessions Judge of the erstwhile Princely State o1' Jaipur, who owned .considerable estate, on 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 Patta dated February 23, l88G for con-struction of Haveli and Dharamshala. It appears that Haji Moham-D mad Ali Khan before his death in the year 1912, had executed two wills, one on February 17, 1910 and the other on July 1, 1911, by which after making several b(Xjuests he acknowledged that he had dedicated the said property in wakf, for its use as Dharamshala and appointed his son Ebsen Ali Khan as its mutawalli. After the death of Haji Mohammad Ali Khan, there was suit for partition of the property brought by his son Faiyaz Ali Khan against his brother Ehsan Ali Khan, being Original Sµit No. 128 of 1930 and the building was left out of partition being wakf property.It, however, appears that the mutawa/li Eh~an Ali Khan mortgaged the property with possession, with Seth Bijaylal, father of respondent ·No. 2, and Bhnramal, father of respondent No. 1, for Rs. 7,999/- and ' executed mortgage deed dated July 30, 1944 in their favour for the purpose of purchasing strip of land in fron~ of the building from the Municipal Council, Jaipur and thereafter constructed verandahs on the -ground iloor and the first floor. For making this construction. he raised further loan of Rs. 9,999/- by effecting second mortgage by ·executing the mortgage deed dated July 7, 1945 in favour of the said mortgagees. The respondenl:3 Nos. 1 and 2 purchssed the ground •floor of the building from Ehsan Ali Khan for Rs. 19,999/- by means of registered sale deed dated November 23, 1954. The considera-~ion: was applied towards satisfaction of the two previous mortgages . Thereafter, they purchased the first floor of the said building from him for Rs. 13,999/- by means of registered sale deed dated July 31, 1956.

.&qi",:

The wakf Act, 1954 was extended to the State of Rajasthan on February 1, 1955. The Board of Muslim wakfs, Rajasthan was consti-tuted by the State Government on August 6, 1962 in accordance with s. 9 and thereafter the Government appoinied Commissioner of Wakfs under sub-s. (1) of s.4 for the purpose of making survey of wakf pro-perties existing in the State, at the date of the commencement of the Act. On August 30, 1962, one Shauket Ali Khan, the respondent No. 3 applied to the Commissioner of Wakfs alleging that the aforesaid pro-perty was wakf property and therefore, its transfer by Ehsan Ali Ki.an, who was its mutawalli, in favour of the respondents Nos. 1 and 2 was invalid and consequently prayed that the property be declared to be Wakf property and possession of the same be handed over to· the wakf Committee. The Commissioner of Wakfs accordingly issued notice to the respondents. Nos. 1 and 2 the mortgagee-putchasers. In response to the notice, the respondents Nos. 1 and '.! appeared before the Commissioner of Wakfs on Septem-ber 19, 1962 and raised preliminary objection as to the juris-D diction denying that the disputed property was wakf property and contended that the Commissioner of Wakfs had no jurisdiction to make an enquiry as to whether particular property is wakf property or not. The Commissioner of Wakfs by his order dated September 19, 1962 over-ruled the objection. Thereupon, the respondents Nos.1 and 2 filled writ petition before the Rajasthan High Court, bu~ the High Court by its order elated October 11, 1962 dismissed the petition ~n limine observing that the Commissioner had obviously no jurisdiction to decide any question relating to the title of the respondents Nos. 1 and· 2 or to eject them from the property without taking re"course to civil suit. The Commissioner of Wakfs, however, felt that he was not bonnd by these observations of the High Court since he was not served with 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 ques-tion as to whether the disputed property was wakf property or not. In their reply they pleaded, inter alia that the property was not Wakf and that the wills had indeed been cancelled in suit. The Commissioner of Wakfs by his report elated December 15, 1964 on the basis of the evidence led before him, held the disputed property to be wakf pro-perty recommended that it be recorded as such, and accordingly, forwarded 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. 5, the Board of Muslim

Wakfs published notification for inclusion of the property in dispute in the list of wakfs existing in the State in the Rajasthan Rajpatra dated December 2, 1965. Thereafter, the respondents Nos. I and 2, filed writ petition in the High Court challenging the legality and validity of (he proceedings taken by the Commissioner of Wakfs. It was contend-ed that on the basis of such report, the Board of Muslim Wakfs was not entitled to include their property in the list of wakfs published under sub-s. (2) of s.5.

In allowing the petition, the High Court held that the entire scheme of t11e Wakf Act, 1954, indicates that the Board of Wakfs jurisdiction is confined to matters of administration of the wakfs and not to adjudi-cation of questions of title. In view, it was evident that the Act did not invest the Board of Wakfs or th.e Commissioner of Wakfs with the power to decide the question whether property belonged to wakf or not; and more so, where person claiming title is stranger to the wakf. It accordingly held that Commissioner of Wakfs appointed under sub-s.(1) of s.(4) of the Act has no jurisdiction under sub-s.(3) of s. 4 to enquire whether or not certain property is wakf property when such dispute is raised by such person. It further held that the object of s. 6 is to narrow down the dispute between the Board of Wakfs, the mutawalli and the person interesred in the wakf, as defined in s. 3. Consequently, the High Court held that the failure of stranger to the wakf to institute suit in court of competent jurisdiction for decision of such question, namely, whether particular property is wakf pro-perty or not, cannot make 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 co_nclusive under sub-s. ( 4) of s. 6 of the Act. It also held that the Board is not invested with jurisdiction to enquire into and decide the questions of title to, or possession of, the properties belonging to third parties under s. 2 7 of the Act. It is argued for the appellant, firstly, that the words 'for the purpose of making survey of wakf properties' are wide enough and confer ample power on the Commissioner 'to investigate and adjudicate' upon the question whether certain property is wakf property or not during the course of his survey of wakf properties in the State of Rajasthan; and secondly, the failure ofi the respondents Nos. 1 and 2 to file 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 mder 'ub-s.(2) of s .5, final and conclusive. Ii! support of the co•tentions, it is urged that the word 'therein' in the expression 'any per-son interei:ted therein' appearing in !ub-s.(1) of s.6, qualify the words 'wakf property' and, therefore, the expression 'any person interll.Sted J l--8 l 7SCI/78

therein' cannot, in the context in which it appears, mean 'person in-terested in wakf' as defined ins. 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 person affected by the publication of the list of wakfa under sub-s.{2) of s.5, i.e. it includes even stranger.

In reply, it is submitted on behalf of the respondents Nos. I 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 define& in s. 3 (h). It is urged that the High Court was, therefore, right ·in holding that s. 6 refers only to such dispute and cannot affect the right and title of stranger to the wakf, particularly of person belong-ing to another religious denomination. The submission is that the word 'therein' in sub-s. (I) of s. 6, in the context and setting in which it appears, does not fit in with the words 'wakf property' in the colloca-tion of words, but qualifies the words 'the wakf' immediately preceding it. It is said that the word 'therein' has been used to avoid repetition of the words 'the wakf', and not to extend the ambit of the section to persons who fall outside the scope of the expression 'person interested in wakf' as defined in s.3 (h). It is, therefore, urged that the respon-dents Nos. 1 and 2 are wholly outside the purview of s.6(1) and, ther~ fore, they must necessarily fall outside the scope of the enquiry under s.4( 1), as the provisions contained in ss.4, 5 and 6 form part of an integrated scheme. It is pointed out that on the terms of s.4 the Com-missioner of Wakfs has no power' to enquire whether or not certain property is wakf property when such dispute is raised by stranger to the wakf. In support of the contention, the language of s. 4 is con-trasted with that of s.27 and it is said that, while the Board of Wakfs has the power to hold an enquiry as to whether particular property is wakf property or not under s.27, the Commissioner of Wakfs has no power to hold such an enquiry.

In order to apprecfate the implications of the rival contentions, it is necessary not only to examine the scheme of the Act but also the pur-G po!le and object of the legislation.

The Wakf Act, 1954, "the Act", as the preamble shows, was en-acted 'to provida for the better administration and supervision of wakfs'. The avowed object and purpose of the Act was to bring the management of Wakfs, though it vests immediately in mutawalli, sub-H ject to the supervision of the State. It was enacted to replace the Mussalman Wakf Act, 1923, which merely provided for the submission of audited accounts by mutawallis, and was found to be wanting in

several respects and really not of much practical value. It was found that proceedings could be successfully defeated simply on the plea taken by the mutawalli that there was no wakf. To remove the lacunae, the Mussalman Wakf (Bombay Amendment) Act, 1935 amended the Act. The Bengal Wakf Act, 1934 was enacted to create machinery for the supervision of wakfs in Bengal. The United Provinces followed suit and the United Provinces Muslim Wakf Act, 1936 was passed creating Central Wakf Board. Similarly, Bihar also passed legisla-tion almost on the same lines. The working of these Acts brought out the necessity for one uniform and consolidated legislation by the Centre. 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 Khawa ja Saheb, Ajmer. Section 3 defines certain terms, and the term 'wakf' and the expression 'person interested in wakf' have been defined as follows:

"3. (h) 'person interested in wakr means any person who is entitled to receive any pecuniary or other benefits from the wakf and includes,-

(i) any person who has right to worship or to perform any religious rite in 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 by 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) wakf by nser;

(ii) grants (including mashrut-ul-khidmat) for any purpose recognised by the Muslim law as pious, religious or charitable; and

(iii) wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pions, religious or charitable;

and 'wakif' means any person making such dedication."

(2) The Board shall examine the report forwarded to it under sub-section (1) and publish, in the Official Gazette, 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, so far as material, reads :

"6. (1) If any question arises whether particular pro--pe1iy specified as wakf property in list of wakfs published under sub-section (2) of the section 5 is wakf property or not or whether wakf specified in such list is Shia wakf or Sunni wakf the Board or the mutawalli of the wakf or any person interested therein may institute suit in 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 expiry of one year from the date of the publi-cation of the list of wakfs under sub-section ( 2) of section 5.

( 4) The list of wakfs published under sub-section (2) of section 5 shall, unless it is modified in pursuance of deci-sion of the civil court under sub-section (1), be final and conclusive.''

Chapt"r IIA is about the constitution of the Central Wakf Council, with which we are not concerned. Chapter III provides for estab-lishment of a· Board of W akfs and defines the nature of its duties, powers and functions. This chapter also provides for certain inciden-tal matters. Sub-section (1 ) of section 15 provide5 that the general superintendence of all wakfs in State shall vest in the Board so estab-lished for the State, and it shall be the duty of the Board to ensure that the wakfs under its superintendence are properly maintained, con-trolled and administered and the income thereof is duly applied to the objects and for the purpose for which such wakfs were created or in-tended. Sub-section (2) enumerates the various functions of the Board.

The neitt stage is that of regisfi-ation of wakfs. That subject is dealt with in Chapter IV. Section 25 lays down that every wakf, whether created before or after the commencement of the Act, shall be registered at the office of the Board. Section 26 requires the Board to maintain register of wakfs. Under s. 27, the Board is invested

with the power to decide whether certain property is wakf property and reads as follows :

"27. (I) The Board may itself collect information regard-ing any property which it has reason to believe to be wakf property and if any question arises whether particular pro-perty is wakf property or not or whether wakf is Sunni wakf or Shia Wakf, it may after making such inquiry as it may deem fit, decide the ques!Jon.

(2) The decision of the Board on any question under sub-section (I) shall, unless revoked or modified by civ;J court of competent jurisdiction, be final."

Section 28 empowers the Board to direct mutawalli to apply for the registration of wakf or to supply any information regarding wakf, and the Board may itself cause the wakf to be registered or may at any time amend the register of wakfs.

The third stage then arises. After completing the survey and finalising the registration of wakfs, the Board which is an adminis-trative body, is empowered to supervise and administer wakf property. Chapter V deals with mutawallis and wakf accounts. Th''S chapter provides iu detail as to how mutawalli shall submit budget and the accounts and in what manner the Board will be exercising its control over the wakf properties. Section 36A relates to transfer of immov-able property of wakfs. According to this section, no transfer of the wakf pro·perty i« 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 requisition to the Collector. Chapter VI relates to the finance of the Board. Chapter VII to judicial proceedings and Chapter VIII to mis-cellaneous matters. It would thus appear that the Act is complete code dealing with the better admini'Stration and supervision of wakfs.

The High Court, iu its considered opinion, in t'he light of the historical background and precedents, observed :

"The present Act No. 29 of 1954 is, no doubt an improvement o(l the Mussalman Wakf Act, 1923, but in our view, this also does not empower the Board of Wakfs to decide the question whether particular property is wa_<:f prorerty or not, if such dispute is raised by person who is stranger to wakf."

There is considernble body of authority interpreting s. 10 of the Mussalman Wakf Act, 1923, in favour of the view that where

the existence of wakf was itself in dispute, the District Judge had no jurisdiction to inquire into its existence, and the matter could be ·settled only by instituting regular suit. The question came up for consideration before several High Courts in India as will ~ppear from Nasrulla Khan v. Waiid Ali,(<') Wahid Hasan v. Abdul Rahman,([2 ]) Syed Ali Mohammed v. Collector uf Bhaga/pur,([3 ]) Mo~a11cmad Baqar v. Mohammed Qasim,(') Nanha Shah v. Abdul Hasan,(') and Abdul Hussain v. Mohmad Ebrahim Riza. (') The general trend of opinion was that the District Judge in dealing with an apphcation under s. 10 of that Act had, in the absence of clear provision in that behalf, no jurisdiction to try an issue as to whether certain pro-perty was wakf property. It was pointed out that if the legislature had the intention to confer such power, there would have been provision like s. 5 of Charitable and Religious Trusts Act, 1920. In Abdul Hussain v. Mohmad Riza (supra) it was observed:

"Considering the terms of the enactment and the scope and purpose of the Act is clear that the legislature intended of inrnme of wakf properties for the purpose of providmg some control on the management of properties which are admi'Cled!y wakf. It could not have intended to include in its scope the enquiry into the vital questions whether the disputed property is wakf property and the person in possoJ-sion of it is mutwalli, which are questions of fundamental character such as could be the subject-matter of suit alone/'

Though sub-s. (3) of s. 4 of the Act is rather unhappily worded, of the Wakf {\ct, 1954.

The Wakf Act, 1954 does, in our opirnon, furnish complete machinery for the better administration and supervision of wakfs. Though sub-s. (3) of s. 4 of the Act is rather unhappily worded, it is not sound principle of construction to interpret expre>sions used in one Act with reference to their use in another Act, and deci-sions rendered with reference to construction of one Act cannot apply with reference to the provisions of another Act, unless the two Acts · ;are in pari materia. Further, when there is no ambiguity in the

(1) I.L.R. 52 All. 167 .

(2) l.L.R. 57 All. 754.

(3) A.l.R. 1927 Pat. 189.

(4) I.L.R. 7 Luck. 601 (F.B.)

(5) A.1.R. 1938 Pdt. 137.

(6) I.LR. (1939) Nag. 564.

statute, it may not be permissible to refer to, for purposes of its construction, any previous legislation or decisions rendered therein.

The que!ltions that fall for determiuation upon the appeal are two; first, whether Commissioner of Wakfs appointed under suM. (1) of s. 4 of the Wakf Act, 1954, has the jurisdiction under sub-s. (3) of s. 4 to enquire whether certain property is wakf property or not when such dispute is raised by stranger to the wakf and second, if so, whether the failure of such person to institute suit in civil court of competent jurisdiction for decision of such question within period of one year, as provided for under sub-s. ( 1) of s. 6, makes the inclu-sion 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 SUM. (4) of S· 6.

It is needless to stress that the whole purpose of the survey of wakli> by the Commissioner of Wakfs under sub-s. (1) of s. 4 is to inform the Board of Wakfs, as to the existeno.:: of the existing wakfs in State, in order that all such wakfs should be brought under the supervision and control of the Board of Wakfs.

While the High Court was, in our view, right in determining the' scop;: of sub-s. ( 1) of s. 6 of the Act, it was clearly in error in cur-tailing the ambit and scope of an enquiry by the Commissioner of Wakfs under sub-s. (3) of s. 4 and that by the Board of Wakfs under s. 27 of the Act.

In dealing with the scopei of enquiry by the Commissioner of Wakfs. under sub-s. (3) of s. 4, the High Court adverts to the heading of Chapter II and the marginal note of sub-s. ( 1) of s. 4. It observes :.

"The heading of section 4 with which this chapter started was 'Preliminary ~urvey of wakfs '. The use of the word 'Preliminary' in the heading is one of significance.

The weight of authority is in favour of the view that the marginal note· appended to section cannot be used for construing the section. Lord Macnaghten in Balraj Kunwar v. Jagatpal Singh(1I) considered it wellJ settled that marginal notes cannot be referred to for the purposes of construction. This. Court after referring to the above case with appro-val, said in Commissioner of Income-Tax v. Ahmedbhai Umarbhai & Co.(') :

"Marginal notes in an Indian statute, as in an Act of Parliament, cannot be referred to for the purpose of constru-the statute."

(I) JLR 26 All. 393 (P.C.)

(2) (1950] S.C.R. 335.

As explained by Lord Macnaghten in the Privy Council, marginal notes are not part of an Act of Parliament.

The wry heading of Chapter II and the caption to s. 4 no doubt suggest that the Commissioner makes only preliminary survey regard-ing existing wakfs and the list of wakfs prepared by him is published by the Board and neither the Commissioner nor the Board is required to ma~~ any enquiry regarding the character of th~ property. That is to say, the making of survey is only an administrative act and not quasi-judicial act. But, on closer examination, it is clear that while making survey of the existing wakfs in State under su!H. ( l) of s. 4, the Commissioner is required by sub-s. (3) to submit report to the State Government in regard to the sewral matters referred to in els. (a) to (f) thereof. There may be dispute as between the Board, the mutawalli or person interested in the wakf, as regards (a) the existence of wakf, i.e. whether particular property is wakf property, (b) whether it is Shia wakf or Sunni wakf, ( c) extent of the pro-perty 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 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, re-quisitioning any pnblic record from any court or office, issuing com-missions for the examination of any witness or accounts, making any local inspection or local investigation etc. In view of these compre-hensive 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 survey of existing wakfs in the Estate under sub-s. ( 1), is not purely of an administrative nature but partakes of quasi-judicial in character, in respect of the persons falling within the scope of sub-s. (l) of S· 6.

It would be illogical to hold that while making survey of wakf properties existing in the State Commissioner of Wakfs appointed by the State Government under sub-s. (1 ), of s. 4, should have no power to enquire whether particular property is wakf property or not. If we · may refer to sub-s. (1) of s. 4, so far as material, it reads :

"The State Government may, by notification in the Offi-cial Gazette, appoint for the State CommissiOil'v'f of Wakfs ...... for the purpose of making survey of wakf properties existing in the State at the date of the commence-ment of this Act."

It will be clear that the words "for the purpose of making survey of wakf properties" is Irey to the construction of the section. The

ordinary meaning of the word "survey'', as given in the Random House Dictionary of English Language, is 'to take general or comprehensive view of or apprais·e, as situation'. If the Commissiorn':r of Wakfs has the power to make survey, it is but implicit that in the exercise of such power he should enquire whe.h3r wakf exisl's. The making of such an enquiry is necessary concomitant of the power to survey. The High Court was clearly in error in observing :

"Except sub-s•3ction ( 5) there is nothing in section 4 or in the rules made by the State to show that the Commis-sioner is empowered to adjudicate on question, if one arises, wheth3r particular property is wakf property or not."

We are of the opinion that the power of the Commissioner to sur-vey wakf properties under sub-s. (1) or to enquire and investigate into th3 several matters set out in els. (e) to (f) of sub-s. (3) cannot be· curtailed by taking recourse to sub-s. (5). The High Court was wholly wrong in understanding the tme implication of sub-:s. ( 5) of s. 4. It only lays down that if, during any such enquiry, any dispute arises as to whether particular wakf is Shia wakf or Sunni wakf, and there are clear indications in th3 deed of wakf as to its nature, the disput·o shall be decided on the basis of such deed. It, therefore, makes the wakf deed conclusive as to the nature of the wakf, i.e. whothcr it is Shia or Sunni wakf. In our view, sub-s. ( 5) of s. 4 cannot be pro-jected into sub-s. (!) for determining the question whether certain property is wakf property or not. Nor do•2s it enter into an enquiry as to several of the matrers adverted into some of the clauses of sub-s. (3).

The matter can also be viewed from anoth~r angle. If sections 4, 5 and 6 are parts of an integrated scheme, as ass0rted, then it follows as necessary corollary that the enquiry envisaged by sub-sections ( 1) and ( 3) of s. 4 must cover the field defiD'cd by sub-s. (1) of s. 6. The opening words of the section are :

"If any question arises whether particular property specified as wakf property in list of wakfs published under sub-section (2) of section 5 is wakf property or not or whether wakf specified in such list is Shia wakf or Sunni wakf .... "

They clearly envisage that the enquiry by the Commissioner is not con-fined to the question as to whether particular wakf is Shia wakf or , Sunni wakf. It may also embrace within itself dispute as to whe~her wakf exists. This is construction 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 equal:y tmo 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(!) the Judicial Committee said :

"We cannot aid tho legislature's defective phrasing of an Act, we cannot add and mend, and, by construction, make up deficiencies which are left there."

To do so would be to usurp the function of the legislation. At the same time, it is well settled that in construing the provisions of statute the courts should b' slow to adopt construction which tends to make any part of the statute meaningless or ineffective. Thus, an attempt must always be made to reconcile the relevant provisions so as to advance th" remedy intended by the statute.

It would certainly have been b'tter if the legislature had inserted provision like section 6-C incorporated in the Mussalman Wakf Act, 1923 by the Mussalman Wakf (Bombay Amendment) Act, 1935, which was in force in the States of Maharashtra and Gujarat, namely :

"6-C. Power of th-:' Court to enquire : (I) The court may, either on its own motion or upon the application of any person claiming to have an interest in wakf, hold an enquiry in the prescribed manner a:t any time to ascertain-

(i) whether wakf exists."

Failure to insert such provision in sub-s. ( 3) of s. 4, however, is of little consequence. As already indicated, the power of the Commis-sioner to make survey of existing wakf properties, carries, with it, by necessary implication, the power to enquire as to the exisrence of wakf. Perhaps, the legislature thought it to be superfluity.

That leaves us with thl'! question as to the scope of sub-s. ( 1) of s. 6. All that we have to consider in this appeal is, whether if the Commis-sion" of Wald\;. had jurisdiction to adjudicate rrnd decide against the respondents Nos. 1 and 2 that ih·~ property in dispute was wakf pro-perty, the list of wakfs published by the Board of Wakfs uuder sub-s. (2) of s. 5 would be final and conclusive against them under s. 6( 4) in case they had not fi1~d suit within year from the publication of the list. Th; question as to whether the respondents Nos. 1 and 2 can be dispossessed, or their possession can be threatened by the Board of Wakfs by proceeding under s. 36B without filing suit in civil court of competent jurisdiction does not arise for our consideration

(I) [U46] 6 Moors P.C. l.

In the pre&~ne case, the respondents Nos. 1 and 2 who are non-Mnslims, contended that they are outside the scope of sub-s. ( 1) of s. 6, and consequently, they have no right to file the suit contemplated by that sub-section and, therefore, the list of wakfs published by the Board of Wakfs under sub-s. (2) of s. 5 cannot be final and conclu-sive against them under sub-s. ( 4) of s. 6, it was urged that respon-dents Nas. 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 proceeding under sub-s. ( 1) of s. 6 of the Act, and whether the ~t published under sub-s. (2) of s. 5 declar-ing certain property to be wakf property, would bind person who is neither mntawalli nor '!. 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 interes-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 ( 1) of s. 6 enumerates the persons who can file suits and also the questions in respect of which such suits can be filed. In enumerating; the persons who are empowered to file suits under this provision, only the Board, the mutawalli of the wakf, and 'any person interested therein', thereby necessarily meaning any person interested in the wakf, are listed. It should be borne in mind that the Act deals with wakfs, its institutions and its properties. It would, therefore,, be logical and reasonable to infer that its provisions empower only those who are interested in the wakfs, to institute suits.

In dealing with the question, the High Court observes :

"In our opinion, the words "any person interested therein" appearing in sub-section ( 1) of section 6 mean no more than person interested in wakf as defined in clause (h) of section 3 of the Act. ....

It is urged by learned counsel for the petitioners that the legislature has not used in section 6 ( 1) the words "any persoa inte.rested in wakf" and, therefore, this meaning should not be given to the words "any person interested therein". ThiS argument is not tenable because the words "any person iute-

rested therein" appear soon after "the mutawalli of the wakf" and therefore the word 'therein' has been used to avoid re-petition of the words "in the wakf'' and not to extend the scope of the section to persons who fall outside the scope of the words "person interested in the wakf". The purpose of section 6 is to confine the dispute between the wakf Board, the mutawalli and person interested in the wakf."

That, in onr opinion, is the right construction.

We are fortified in that view by the decision of this Court in Sirajul Haq Khan & Ors. v. The Sunni Central Board of Wakf, U.P. & Ors.(') While construing s. 5 (12) of the United Provinces Muslims Wakf Act, 1936, this Court interpreted the expression "any person interested in wakf" as meaning 'any person interested in what is held to be wakf', that is, in the dedication of property for pious, religious or charitable purpose. It will be noticed that 'sub.-s. ( 1) of s. 6 of the Act is based on sub-s. (2) of s. 5 of the United Provinces Muslims Wakf Act, 1936, which runs thus :

"The mutawalli of wakf or any person interested in wakf or Central Board may bring suit in civil court of compe-tent jurisdiction for declaration that any transaction held by the Commissioner of Wakfs to be wakf is not wakf, or any transaction held or assumed by him not to be wakf, or that wakf held by him to pertain to particular sect does not be-long to that sect, or that any wakf reported by such Commis-sioner as being subject to the provisions of this Act is exemp-ted 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 limi-tation, as here, to suit by mutawalli or 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 B. 6 of the present Act and put in proper form. In redrafting the section, the sequence of the difierent clauses has been changed, therefore, for the expression "any person interested in wald" the legislature had to use the expression "any person interested therein". The word 'therein' appearing in ,sulrs. (1) of s. 6 must, therefore, mean 'any person inte-rested in wakf' as defined in s. 3(h). The object of sulrs. (1) of s. 6 is to narrow down the dispute between the Board of Wakfs, the muta-walli and the person interested in the wakf, as defined in s. 3 (h) .

(ll [1'39) S.C.R. 1287.

In this context, the scope of s. 6 wa's examined by the High Court and it observed :

"The purpose of sec. 6 is to confine the dispute between tbe Wald Board, the mutawalli and person interested in the wakf. In other words, if there is dispute whether parti-cular property is wakf property oc not, or whether wakf is Shia wakf or Sunni wakf, then the Board or the mutawalli of the wa'kf or person interested in the wakf as defined in sec. 3 may institute suit in civil court of competent jurisdic-tion for the decision of the question. They can file such suit within one year of the date of the publication of the list of wakfs and if no such suit is filed, the list would be final and conclusive between them.The very object of.the Wa'kf Act is to provide for better administration and supervision of wakfs and the Board has been given powers of 'superintendence over all wakfs which vest in the Board. This provision seem~ to have been made in order to avoid prolongation of triangJilar disputes between the Wakf Board, the mutawalli and person interested in the wakf who would be person of the same community. It could never have been the intention of the legislature to cast cloud on the right, title or interest of persons who are not Muslim's. That is, if person who is non-Muslim whether he be Christian, Hindu, Sikh, Parsi or of any other re-ligious denomination and and if he is in possession of certain property his right, title and interest cannot be put iru jeopardy simply because that property is included in the list published under sub-sec. (2) of Sec. 5. The Legislature could not have meant that he 'should be driven to file suit in Civil Court for declaration of his title simply because the property in his possession is included in the list. Similarly, the legislature could not have meant to curtail the period of limitation available to him under the Limitation Act and to provide that he must file suit within year or the list would be final and conclusive against him. In our opinion, sub-section, ( 4) makes the list final and con-clusive only between the Wakf Board, the mutawalli and the person interested in the wakf as defined in Section 3 and to no other person."

We are in agreement with this reasoning of the High Court.

It follows that where stranger who is non-Muslim and is in posses-sion of certain property his right, title and interest therein cannot be

put in jeopardy merely because the property is included in the List. Such person is not required to file suit for declaration of his title within 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 ~an be challenged by him by filing 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 particular property is wakf property or not, if that challenge comes from stranger who is neither mutawalli nor person interested in the wakf, but who belongs to another religious denomination and who claims valid title and lawful possession over that property. To ac-cept the respondents argument would mean that the Board would be given the powers of the Civil Court to decide such disputes between itself and :Strangers· and thus to make the Board's decision final unless it is changed by Civil Court of compt,tent jurisdiction. If dispute is raised by non-Muslim, the Board cannot by simply entering the property in the register of wakfs drive him to take recourse to Civil Court."

In our judgment, the High Court was clearly in error in dealing with s. 27 or s. 36B of the Act. It appears from the writ petition field in the High Court that no relief was sought in respect of any action under s. 27. TI1e observations of the High Court were, therefore, strictly not called for in regard to s. 27. It should have left the question open. The question may arise if and when, action under s. 27 is taken. We, therefore, refrain froni expressing any opinion as to the scope of ·s. 27 of the Act.

Likewise•, the High Court went on to consider the impact of s. 36B, and observed :

"In our opinion, this section cannot apply in the case of property which is in the hands of stranger over whom the Board has no control under the Act, simply because the Board happens to enter the property in its regi:ster. In ~ case like the present one, where the petitioners claim their possession over the property as mortgagees from the year 1944 and fur-ther claim their title and possession as, vendees over the same property from the year 1954, the Board of Wakfs cannot, by

'simply entering the property in the list of wakfs or registering it in the register of wakfs, drive them. to file suit to establish their title or retain their possession. It cannot also seek to dispossess them from the property by resorting to section 36B. It is for the Board to file civil suit for declaration that the property in dispute is wakf property and to obtain its posses-lB sion."

It was really not necessary for the High Court to decide whether s. 3 6B of the Act was attracted or not, in the facts and circumstances of the case.

We must accordingly held that the Commissioner of Wakfs acted within jurisdiction in holding the disputed property to be wakf property. It must, therefore, follow that the Board of Muslim Wakfs, Rajas!han was justified in including the property in the list of wakfs published under sub-s. (2) of s. 5 of the Act. We must also hold, on construe-. ti on 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 respon-dents Nos. 1 and 2 due to their failure to bring suit within one year as contemplated by sub-s. (1) of s. 6.

In view of the foregoing, the right of th\) 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 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 of Muslim Wakfs, Raj:!Sthan under sub-s. (2) of s. 5 of the W~ Act, 1954 was not binding on the resJlOndents Nos. 1 and 2 is uphel , but its direction restraining the Board of Muslim W akfs from entering disputed property in the register of wakfs and from dispO£Sessing th respondents Nos. 1 and 2, except by way of suit in 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, which question did not arise for its consideration. · The partie<s are left to take recourse to their remedies according to Jaw, with advertence to the observationll made above.

Subject to this modification, the appeal fails and is dismissed. There shall be no order as to costs.