BOARD OF MUSLIM WAKFS, RAJASTHAN v. RADHA KRISHNA & ORS.
Citation: [1979] 2 S.C.R. 148; 1978 INSC 213
Court: Supreme Court of India
Bench: JASWANT SINGH , R.S. PATHAK, A.P. SEN
Judgment date:
Case summary
1978 INSC 213. Supreme Court of India judgment dated 1978-10-24. BOARD OF MUSLIM WAKFS, RAJASTHAN v. RADHA KRISHNA & ORS. Read the judgment and case details...
Judgment text
15 0 SUPREME COURT REPORTS [1979] 2 S. C. R. BOARD OF MUSLIM WAKFS, RAJASTHAN v. 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- 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 a 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 a C. ivil Court under the Code of Civil Procedure. Section 6 of the Act provides that if any question arises as to wheihe1 a 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 a suit in a Civil Court for decision of the question. llespondents 1 and 2 \vere n1ortgagee-purchasers of the property in dispute, 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 a particular property was \vakf property or not. The Commissioner rejected these contentions and submitted a 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 jurisdiction of the Board of Wakfs was confined to matters of administration of t 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 a property belonged to a ·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 a stranger to the wakf to institute a suit in a court of conlpetent jurisdiction within a period of one year on the question whet. her a particular property was \vakf property or not could not make the inclusion of such property in the list of wakfs final and conclusive. MUSLIM WAKFS v. RADHA KRISHNA (Sen, J. ) 149 In appeal to this Court it was contended on ·behalf of the appellants that (i)' the words "for the purpose of making a survey of wakf properties" are wide enough ·to confer power on the Commissioner to investigate and adjudi~ cate upon the question whether a particular property was or was not wakf property and (ii) failure of the respondents to file a 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 sions used in one Act with reference to their use in another Act, and decisions 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 a 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 a certain property is wakf property or not when such a dispute is 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 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 a 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 curtailing 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 :. ·-r "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 a 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 approval, 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. MUSLIM WAKFS v. RADHA KRISHNA (Sen, J. ) 161 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 a 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 a closer examination, it is clear that while making a survey of the existing wakfs in a State under su! H. ( l) of s. 4, the Commissioner is required by sub-s.
(3) to submit a report to the State Government in regard to the sewral matters referred to in els. (a) to (f) thereof. There may be a dispute as between the Board, the mutawalli or a person interested in the wakf, as regards (a) the existence of a wakf, i. e. whether a particular property is wakf property, (b) whether it is a Shia wakf or 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, 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 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 administrative nature but partakes of a 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 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 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 Official Gazette, appoint for the State a CommissiOil'v'f of Wakfs ......
for the purpose of making a survey of wakf • • properties existing in the State at the date of the commencement of this Act. " It will be clear that the words "for the purpose of making a survey of wakf properties" is a 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 a general or comprehensive view of or apprais·e, as a situation'. If the Commissiorn':r of Wakfs has the power to make a survey, it is but implicit that in the exercise of • such power he should enquire whe. h3r a wakf exisl's. The making of such an enquiry is a 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 Commissioner is empowered to adjudicate on a question, if one arises, wheth3r a particular property is a wakf property or not.
" We are of the opinion that the power of the Commissioner to survey 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 a particular wakf is a Shia wakf or a 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 a Shia or a Sunni wakf. In our view, sub-s. ( 5) of s. 4 cannot be projected into sub-s. (! ) for determining the question whether a certain property is a 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 a 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 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 I a wakf specified in such list is a Shia wakf or Sunni wakf .... " They clearly envisage that the enquiry by the Commissioner is not confined 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 whe~her a wakf exists. This is a construction which sub-s. ( 1) of s. 4 must, in its context and setting, bear. Any other construction would, indeed, make the Act unworkable. MUSLIM WAKPS v. RADHA KRISHNA (Sen, I.
) 163 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 a statute the courts should b' slow to adopt a 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 a 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 a wakf, hold an enquiry in the prescribed manner a:t any time to ascertain- (i) whether a wakf exists. " Failure to insert such a provision in sub-s. ( 3) of s. 4, however, is of little consequence. As already indicated, the power of the Commissioner to make a survey of existing wakf properties, carries, with it, by necessary implication, the power to enquire as to the exisrence of a wakf. Perhaps, the legislature thought it to be a 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 property, 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 a suit within a 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 a suit in a 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 conclusive against them under sub-s. ( 4) of s. 6, it was urged that respondents 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 a 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 a person who is neither a 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 interested 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 precedes 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 t a person interested in a 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 a 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- MUSLIM WAKFS v. RADHA KRISHNA (Sen, J.
) 16 5 rested therein" appear soon after "the mutawalli of the wakf" and therefore the word 'therein' has been used to avoid repetition 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 a 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 a wakf" as meaning 'any person interested in what is held to be a wakf', that is, in the dedication of a property for a 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 a wakf or any person interested in a wakf or a Central Board 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 belong 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 B. 6 of the present Act and put in a proper form.
In redrafting the section, the sequence of the difierent clauses has been changed, therefore, for the expression "any person interested in a 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 a 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 mutawalli 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 a person interested in the wakf.
In other words, if there is a dispute whether a particular property is a wakf property oc not, or whether a wakf is a Shia wakf or a Sunni wakf, then the Board or the mutawalli of the wa'kf or a person interested in the wakf as defined in sec. 3 may institute suit in a civil court of competent jurisdiction for the decision of the question. They can file such a 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 a person interested in the wakf who would be a person of the same community.
It could never have been the intention of the legislature to cast a cloud on the right, title or interest of persons who are not Muslim's. That is, if a person who is non-Muslim whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other religious denomination and and if he is in possession of a 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 a suit in a 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 a suit within a year or the list would be final and conclusive against him.
l In our opinion, sub-section, ( 4) makes the list final and conclusive 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 a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be MUSLIM WAKFS v. RADHA KRISHNA (Sen, J. ) 16 7 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. 5 ~an • 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. 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 a Civil Court of compt,tent jurisdiction. If a dispute is raised by a non- Muslim, the Board cannot by simply entering the property in the register of wakfs drive him to take recourse to a 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 a property which is in the hands of a 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 further claim their title and possession as, vendees over the same property from the year 1954, the Board of Wakfs cannot, by i f f 'simply entering the property in the list of wakfs or registering • it in the register of wakfs, drive them. to file a 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 a civil suit for a declaration that the property in dispute is a 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 a construe- . tion 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. 1 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 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 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 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 Wakfs from entering e disputed property in the register of wakfs and from dispO£Sessing th 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, which question did not arise for its consideration. · The partie<s are left to take recourse to their remedies according to Jaw, with advertence l to the observationll made above. Subject to this modification, the appeal fails and is dismissed. There shall be no order as to costs. ,f P. B. R. Appeal tlismilfi"itt.
Source: Supreme Court eSCR. Dataset: Dattam Labs, CC BY 4.0. Text extracted automatically; compare with the source PDF for layout and accuracy.