1. The simple question that is raised in this writ petition is whether the petitioner, a non-Muslim, is 'a person interested in a Wakf', within the meaning of S. 3 of the Wakf Act, hereinafter referred to as 'the Act'.
2. To answer this question it is enough if the undisputed facts are referred to. The petitioner is a non-Muslim, and he is the owner of a premises known as Bada Ashurkhana, Bandar Khana, Alawa site comprising an extent of about 60 Ankanams and buildings in Venkatagiri Town, Nellore District. The ancestors of the petitioner constructed the Bada Ashurkhana. It is also called Nagari Peerla Chavidi. The ancestors of the petitioner encouraged religious activities of all religions. They were using the above site and building for performing Moharam Festival in which the family members and the servants of the estate used to participate for the last 100 years. The petitioner's family got Peerlu made of silver and gold and they have been celebrating Moharam Festival from times immemorial. After the festival they used to bring back the Peerlu from the Ashurkhana to a safe place and used to let out the premises on monthly rent to various persons. While so, the 1st respondent Wakf board initiated action for registration of the said property under S. 25 of the Act. A notice was attached to the building on 3-9-1975 calling for objections. The petitioner sent a reply on 8-9-1975 claiming title to the property. But the 1st respondent passed orders on 19-12-1975 registering the property as Wakf property. As per its proceedings in File No. A1/111/75 Andhra-988, dated 19-12-1975, the petitioner has sought a writ of certiorari to quash the same.
3. The learned counsel for the petitioner contended that the property is not wakf property, that the petitioner is the owner, and that being so the Wakf Board has no jurisdiction to decide questins of title and the impugned order has been passed without jurisdiction. According to the learned counsel the dispute between the petitioner and the Board is not a dispute contemplated under s. 6 of the Act as the petitioner is not a person interested in the wakf and that being so the dispute is between the wakf and a third party and when the third party claims title to the property the only way to get such a claim decided is by institution of a suit by the Board and that the Board cannot decide by itself the nature of the property and register it as a wakf property. The learned counsel placed strong reliance on a judgment of this court in Narsappa v. Government of Andhra Pradesh, (1975) 2 Andh WR 22. It is necessary to refer to the facts in one of the writ petitions which were set out in detail in the said decision and which were said to be sufficient for a determination of the points involved in all the writ petitions disposed of by a common judgment. The petitioners therein are all Lambardars and claimed to be in possession of the lands having got Pattas. The Assistant Commissioner of Wakfs held and enquiry and decided that the lands in question were wakf property. The action of the Assistant Commissioner was questioned in the Writ petitions on the ground that the Commissioner of Wakfs had no jurisdiction to enquire into disputes as to whether a particular property is a wakf property or not, except the disputes raised by the persons interested in a wakf. The petitioners placed reliance on S. 6 of the Act and contended that the petitioners-lambardars are not persons interested in a wakf and as third parties they claim title to the property and therefore the only course left for the Board was to file a suit and get the claim settled. The Division Bench consisting of Obul Reddi, C. J. and Punnayya, J. acceded to the contention and held thus:-
'This section is silent about the procedure as to what the Wakf board should do in the event of a dispute between third parties, i.e., persons other than those specified in S. 6(1) and the Board as to whether a particular property is a wakf property or not. It, therefore, follows that if the third parties claim title to or possession of certain properties, the only way that such a claim can be determined is by instituting a suit in a civil court by the Board.'
The learned Judges having taken this view held that the petitioners therein were not amenable to the jurisdiction of the Commissioner of the Wakf Board and that the dispute had to be settled only by the Civil Court, and accordingly allowed the writ petitions. From the facts in the above decision it can immediately be noticed that the Lambardars, viz., the petitioners therein were utter strangers and not persons interested in the wakf and they claimed title to and lawful possession of the property. In the, instant case the property in question is being used as Bada Ashurkhana for the last 100 years, i.e., for a religious purpose recognised as a pious one by the Muslim Law. The petitioner in his affidavit has admitted that his family has got Peerluand they used to celebrate Moharam from times immemorial and they were using the site and building for performing Moharam Festival.
4. From these facts it becomes necessary to see whether the petitioner is a 'person interested in the wakf property'. The relevant portions of S. 6(h) are in the following terms:
'S. 6(h) If any question arises whether a particular property is wakf property or not or whether a wakf is a Shia Wakf or Sunni Wakf, the Board, or the Muttavalli 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.'
5. In Radhakishan v. State of Rajasthan, , it is held that the words 'any person interested therein' appearing in sub-sec. (1) of Sec. 6(h) mean no more than a person interested in a wakf as defined in cl. (H) of S. 3 of the Act. This view of the Rajasthan High Court has been adopted by our High Court in N. Doraswamy Reddy v. Board of Wakfs, A. P. (1969) 1 Andh LT 127 and in Narsappa v. Govt. of A.P.(1975) 2 Andh WR 22, cited supra. Now it becomes necessary to refer to S. 3(h) of the Act, which runs as follows:-
'S. 3(h) 'Person interested in a wakf' means any person who is entitled to receive any pecuniary or other benefits from the wakfs and includes-
(i) any person who has a right to worship or to perform any religious rite in a mosque, idgah, Imambara, Dargah, Khankah, 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.'
The definition of the 'person interested in a wakf' as we find in S. 3(h) includes any person who has a right to worship or right to perform any religious rite in any religious institution or to participate in any religious institution. The facts already set out disclose that the petitioner has been performing a religious rite during Moharam Festival or at least was participating in a religious institution connected with the wakf.
6. At this stage it becomes necessary to examine whether a Hindu can create a wakf or participate in any Muslim religious rite. The learned counsel for the petitioner strenuously contended that the petitioner being a Hindu cannot create a wakf and therefore he cannot be a 'person interested in the wakf' and consequently the Board must go to the civil court and not the petitioner. At this juncture it must be pointed out that the facts in this case are such that it is not possible to hold in this writ petition that the petitioner is not an interested person in the wakf. In an unreported judgment in A. S. No. 295 of 1971, dated 12-11-1974 (Andh Pra) Justice Ramachandra Rao held thus:-
'Once it is established that Asharkhana is a place where Peerlu are kept and where the tenth day of Moharam Festival is celebrated, it becomes clear that the suit property is an endowment for a religious purpose and constitutes a wakf within the meaning of the Wakf Act.'
In Motishah v. Abdul Gaffar, AIR 1956 Nag 38, a division bench of the Nagpur High Court held thus:-
'Any person of whatever creed may create a wakf but the law requires that the object for which dedication is to be made should be lawful according to the creed of the dedicator as well as the Islamic doctrines.'
In Mundaria v. Shyam Sundar, : AIR1963Pat98 a Division Bench of the Patna High Court similarly held that a non-Muslim may also create a wakf for any purpose which is religious under the Mahommedan Law.
7. The learned counsel for the petitioner however strongly relied on a judgment of the Madras High Court in Madras State Wakf board, Madras v. Khasi Mohideen, : AIR1974Mad225 , wherein the Division Bench considered the scope of the definition of 'wakf' as found in S. 3(h) of the Act and held thus (at p. 227 para 4):-
'The main part of the defining section makes it clear that the dedication should be by a Muslim. Only then it could be a wakf.'
The learned Judges however referred to Section 66-C which was introduced in the year 1964 and which would go to show that unless a grant made by a non-Muslim comes under any one of the categories mentioned in S. 66C it would not be wakf, and observed as follows (at p. 228 para 5):-
'In other words, a decision made by a non-Muslim, even if it is for the purposes contemplated under S. 3(1) of the Central Act, it would not be wakf. As already noted S. 66-C says that the Act is being applied to properties given or donated by persons not professing Islam for support of certain wakfs. But for this section which applies the Act to certain grants made by non-Muslims no dedication made by a non-Muslim would be part of wakf property.'
It can thus be seen that the learned Judges in the above decision, on a combined reading of S. 3(h) and S. 66-C of the Act, reached the conclusion that a non-Muslim can create a wakf but that it should be for one of the purposes mentioned in S. 66-C. The learned Judges have not considered the peculiar customary religious rite which the Hindus perform during Moharam Festival in Ashurkhana, Ramachandra Rao, J. in W. P. No. 295 of 1971 (Andh Pra) held that once it is established that Ashurkhana is a place where Peerlu are kept and where the Moharam Festival is celebrated, the property becomes and endowment and constitutes a wakf. In Khati v. Mirza Hossain, : AIR1962Ori95 , it is held that the land used from times immemorial for the purpose of Masjid and for its courtyard and for celebration of Moharam Festival constitutes a wakf by user. Admittedly the petitioner's family have been participating in the religious rite of celebrating the Moharam by keeping the Peerlu in the Bada Ashurkhana (the disputed property) from times immemorial. As already pointed out, the Mohammedan Law does not prohibit a non-Muslim creating a wakf or participating in any religious rite. Under these facts and circumstances of the case can it be said that the petitioner is not a 'person interested'? In this writ petition we are only concerned with S. 6(h) of the Act and as to who should go to the civil court. In Radhadishan v. State of Rajasthan, , it is held that the purpose of s. 6(h) is to confine the dispute between the Wakf board, the Mutawalli and a person interested in the wakf, and if there is a dispute whether a particular property is a property or not then the board or the Mutawalli or the person interested in the wakf may institute a suit in the Civil Court of competent jurisdiction. In this writ petition with limited jurisdiction the disputed questions of fact cannot be gone into. The facts and circumstances in the instant case do not rule out the petitioner being an interested person in the wakf and the property being wakf property, as provided under S. 6(h) of the Act. Therefore, I am of the view that it cannot be held that it is the Wakf board alone that should go to the Civil Court. The facts to great extent indicate that the petitioner also comes within the definition of 'person interested' and if he has got any dispute about the property he can as well go to the Civil Court and raise all these pleas. For the aforesaid reasons, the ratio in Narsappa v. Govt. of A. P. (1975-2 Andh WR 22) or in Madras State Wakf Board, Madras v. Khazi Mohideen, : AIR1974Mad225 cannot be made applicable to the facts in the present case. It is true that the board in making an enquiry under S. 27 of the Act is not vested with any powers of the Civil Court. But the Board has power to collect information regarding any property which it has reason to believe to be wakf and if any question arises whether a particular property is a wakf property or not it can decide the question after making such enquiry as it deems fit. In the counter-affidavit it is stated that a due enquiry was conducted and thereafter it was decided that the property is wakf property. It is also stated in the counter-affidavit as follows:-
'the very act of the petitioner about the user of the property has created by long use and custom from times immemorial and as such it has become wakf by user.'
Under these circumstances, it must be held that the Board has not committed any illegality or irregularity in passing the impugned order.
8. For the aforesaid reasons, the writ petition is dismissed with costs. The petitioner is given one month to file a suit in the Civil Court. Meanwhile status quo shall continue.
9. Petition dismissed.