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The Sunni Central Waqf Board U.P., Lucknow and anr. Vs. Intizar HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 451 of 1955
Judge
Reported inAIR1959All16
ActsUttar Pradesh Muslim Wakfs Act, 1936 - Sections 18, 18(1), 56, 58, 59, 59(1) and 59(2); Constitution of India - Article 226
AppellantThe Sunni Central Waqf Board U.P., Lucknow and anr.
Respondentintizar HusaIn and ors.
Appellant AdvocateM.H. Beg, Adv.
Respondent AdvocateS. Sadiqali, Adv.
DispositionAppeal dismissed
Excerpt:
.....(2) - none of the conditions present - act provides for superseding of committee of supervision by board - board can not supersede committee of management - held, order of board quashed. (ii) powers of board -section 56 of u.p. muslim waqfs act, 1936 - board empowered to appoint 'mutawallis' for limited period under certain circumstances - board not empowered to remove 'mutawallis'.(iii) constitution - quashing of administrative order - article 226 of constitution of india - administrative order can not be quashed by writ of certiorari -court can quash such order under general power vested under article 226. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m...........of the board delegated to me, i supersede under section 59 (2) of the muslim waqfs act, 1936, the board of mutawalli-khadims of waqfs nos. 223 and 224 regarding waqfs dargah sultanul arfin and hazrat shah wilayat saheb, budaun and assume direct superintendence of the affairs of these waqfs under section 18 (1) of that act. sri rafiq ahmad is directed to receive payment of the annuity from the district magistrate or the compensation officer, as the case may be, and carry out the objects of the waqfs until further orders of the board. sd/- niamat ullah dated 10-5-55 president, u. p. sunni central board of waqfs, lucknow.' it is this order which the respondents prayed should be quashed by their petition under article 226 of the constitution. 7. their main contention was that the.....
Judgment:

Raghubar Dayal, J.

1. This is a Special Appeal by the Sunni Central Waqf Board, U.P. (hereinafter referred to as the Board) and Sri Rafiq Ahmad, Inspector of Waqfs, against the order of Mr. Justice Chaturvedi holding the order of the President of the Board, dated 10-5-1955, a nullity and issuing a writ of mandamus directing the Board not to enforce that order and not, in any way, to interfere with the rights of the respondents Nos. 1 to 10.

2. Sixteen persons, the respondents in this appeal, filed a petition under Article 226 of the Constitution against the two appellants alleging themselves to be the khadims of the Dargah Badruddin Shah Wilayat Saheb in the city of Budaun, a religious institution mainly visited on the occasion of the annual Urs in the month of Ramzan by pilgrims. Pilgrims also visit the Dargah on other ceremonial occasions. The Board declared the Dargah to be a waqf to which the provisions of the U. P. Muslim Waqfs Act No. XIII of 1938 (hereinafter called the Act) applied. This led to the institution of a civil suit No. 56 of 1945 by respondents Nos. 1 to 5 in the Court of the Civil Judge, Budaun, against the appellant Board. A compromise was arrived at between them and the Board on 30-8-1952. Such terms of the compromise as are mentioned in the affidavits filed on behalf of the parties are :

'1. That the plaintiffs agree that the property which is the subject matter of the suit is Waqf for public benefit and the Waqf is governed by the Muslim Waqfs Act of 1936. The property is intended for 'umoor khair' (works of general benefit for the public) and it will be utilized in future for 'umoor khair' only (vide paragraph No. 8 of the counter-affidavit).

2. (a) Intizar Husain, Iltifat Husain, Arshad Ali, Imtiaz Husain and Intizam Husain will act as muta-walis of the waqf properties.

(b) The Government dues will be paid out of the income of the waqf properties.

(c) Out of the income left after the payment of the Government dues one third will be appropriated by the mutawallis, the khadims and their successors, which they will spend in the manner theychoose. Besides the persons named in the compro-mise, if any body was held entitled to benefits as Khadim, under the waqf, he will be paid out of this 1/3rd allocated for them and the 2/3rd wilt not be affected thereby. The opposite party will not charge or levy any contribution or liability upon the Khadims in respect of this 1/3rd portion of the income.

(d) The remaining 2/3rd of the income of the waqf property will be spent for the objects of the Dargah, including Urs etc., according to the budget, prepared by the mutawallis and approved by the opposite party No. 1. The accounts will be audited at the end of the year. The contribution shall be leviable upon the 2/3rd of the income of the waqf properties allocated for purposes of the Dargah and for the payment of this contribution the mutawalli shall be liable.

(e) As to the arrears of the contribution, the mutawallis were allowed to pay it up by annual instalments of Rs. 200/-' (vide paragraph 10 of the affidavit of Initiaz Husain).

3. A second compromise was arrived at on 8-11-1952 between respondents Nos. 6 to 10 and the Board whereby these five persons were also to be mutawaillis Subject to the same conditions and liabilities which applied to the previous five mutawallis.

4. Reference need not be made to the conduct of these mutawallis or any action taken by the Board till 1955. Suffice it to say that it is alleged by the Board that the mutawallis did not discharge their duties properly in various ways.

5. The property of the waqf in suit consisted mostly of zamindari property. It vested in the Government on 3 vesting order being made under Section 4 of the U. P. Zamindari Abolition and Land Reforms Act in 1952. The waqf was entitled to receive annuities. A question arose in 1957 as to whom should he paid these annuities, especially as the ten mutawallis were not united and had differences among themselves. They had not come to any agreed solution by 9-5-1955, four days before the commencement of the annual Urs which was to commence on the 13th of May. The mutawallis were anxious to get the money in order to make proper arrangements. The district authorities were concerned about the proper arrangements of the Urs. The Board itself was also anxious to see that the Urs celebrations took place properly and that they should not suffer for want of funds. It was concerned in the payment of the annuities.

6. Ultimately on the 9th May the Compensa-tion Officer sent a telegram to the Secretary of the Board saying that payment of annuity can be made to the Board after suspension of mutawallis. The President of the Board then made the impugned order on 10-5-1955. This order is :

'A telegram has been received by the Secretary from the Compensation Officer that 'payment of annuity can be made to the Board after suspension of Mutawallis'. The situation is peculiar and one of urgency. On the one hand the Mutawalli-Khadims are hopelessly divided between themselves -- one section not recognizing the other -- and in the absence of unanimity payment cannot be made to any one of the two sections. On the other hand, the annual 'Urs' is near at hand and only four days are left for arrangements to be completed for the celebration of the annual 'Urs' and connected ceremonies. If nothing is done by the Board, the objects of the Waqfs will grievously suffer. In these circumstances, and in the exercise of the power of the Board delegated to me, I supersede under Section 59 (2) of the Muslim Waqfs Act, 1936, the Board of Mutawalli-khadims of waqfs Nos. 223 and 224 regarding Waqfs Dargah Sultanul Arfin and Hazrat Shah Wilayat Saheb, Budaun and assume direct superintendence of the affairs of these waqfs under Section 18 (1) of that Act. Sri Rafiq Ahmad is directed to receive payment of the annuity from the District Magistrate or the Compensation Officer, as the case may be, and carry out the objects of the waqfs until further orders of the Board.

Sd/- Niamat Ullah

Dated 10-5-55 President,

U. P. Sunni Central Board of Waqfs,

Lucknow.'

It is this order which the respondents prayed should be quashed by their petition under Article 226 of the Constitution.

7. Their main contention was that the removal of respondents Nos. 1 to 10 from the office of muta-walliship was illegal on the ground that :

'The applicants Nos. 1 to 10 could not be removed from the office of mutawalliship, without notice or opportunity being given to them to explain their conduct. The opposite party No. 1 purported to act under Section 59 of the U. P. Muslim Waqfs Act No. 13 of 1936. The applicant's case is not governed by the said section and the opposite party No. 1 had no power or jurisdiction to dismiss the applicants Nos. 1 to 10. There is no committee, within the meaning of Section 59 of the U. P. Muslim Waqfs Act No. 13 of 1936.'

8. The Board contested the petition on the ground that the order of the President under Section 59(2) of the U. P. Muslim Waqfs Act was valid, the mutawallis forming a committee of management.

9. Mr. Justice Chaturvedi agreed with the contention for the respondents that the Board had no jurisdiction to remove any mutawalli and that its proper course in such circumstances was either to bring a suit itself under Section 92 of the Civil Procedure Code for the removal of the mutawallis or to grant sanction to some other persons to bring such a suit. He further held that under Section 59 of the Act the Board could supersede committees of supervision but not a committee of management or a committee or mutawallis, and that the mutawallis, respondents Nos. 1 to 10, did not constitute a committee of supervision and therefore the impugned order was made by the Board without jurisdiction and was ineffective. The learned Judge consequently issued the writ of mandamus already referred to. The Board appeals.

10. The impugned order is made by the President under Sub-section (2) of Section 59 of the Act. Naturally great reliance is placed on the provisions of this sub-section by Mr. Beg, the learned counsel for the Board appellant. Section 59 of the Act reads thus ;

'59. (1) Whenever the supervision of a waqf is vested in any existing committee appointed by the waqif or any competent Court or authority, such committee shall, notwithstanding anything in the Act, continue to function until superseded by the Central Board under Sub-section (2); Provided that such committee shall be under the control of the Central Board and shall abide by such directions of the Central Board as are not inconsistent with any directions of the waqif or of the Court or authority appointing such committee.

(2) The Central Board may supersede any such committee as aforesaid if it does not in its opinion function properly and satisfactorily, and on such supersession any decree or order of a Court or competent authority under which such committee has been constituted shall cease, to have any force.

(3) An order passed by a Central Board under Sub-section (2) shall be final and shall not be questioned in any Court of law.'

It is necessary for the application of the provisions of this section, (1) that the supervision of a waqf be vested in a committee, (2) that such a committee be in existence when the section came into force, and (3) that such a committee be appointed by the waqif or any competent Court or authority.

11. We are of opinion that none of these conditions is fulfilled in this case. No committee for the supervision of the waqf was appointed by the waqif. If the recognition of the ten respondents as mutawallis under the compromise of 1952 constituted a committee of supervision contemplated by Section 59, that committee came into existence in 1952 and did not exist at the time when this Act came into force in 1936 or when Sections 5 to 71 came into force on 1-7-1941.

12. These mutawallis did not constitute a committee of supervision. It was not the supervision of the waqf which was to be done by the committee of the mutawallis but it was the management of the waqf which this body of mutawallis bad to undertake.

'Mutawalli' means, according to Clause (3) of Section 3 of the Act, 'a manager of a waqf or endowment and includes an amin, a sajjadanashin, a khadim, naib-mutawalli and a committee of management, and, save as otherwise provided in this Act, any person who is for the time being in charge of, or administering, any endowment as such.'

The ten respondents were appointed as 'mutawallis' which ordinarily moans 'managers of the waqf. If those ten persons be deemed to constitute a committee of management, then the committee would be the mutawalli and not a committee of supervision. The act of supervision is distinct from the act of management. In this connection it is significant that in the counter-affidavit Sheikh Rafiq Ahmad, Inspector of the Board, opposite party No. 2, has scrupulously avoided stating that these respondents constituted a committee of supervision, though he referred to them in paragraph 8 as a committee of management.

13. It may also be noted that in the impugned order the President of the Board says :

'In these circumstances, and in the exercise of the power of the Board delegated to me, I supersede under Section 59 (2) of the Muslim Waqfs Act, 1936, the Board of Mutawalli-khadims of waqfs Nos. 223 and 224 regarding Waqfs Dargah Sultanul Arfin and Hazrat Shah Wilayat Saheb, Budaun.'

14. In this connection we may make reference to the Preamble of the Act itself. The first paragraph of the Preamble runs thus :

'Whereas it is expedient to provide for the bet-ter governance and administration of certain classes of waqfs and the supervision of mutawallis' management of them in accordance with the waqfs' directions, in the United Provinces of Agra and Oudh.' The supervision contemplated by the Act is of the mutawallis' management.

15. Sub-section (2) of Section 59, also provides for the consequences, of the supersession of a committee in which the supervision of the waqf was vested. It says :

'and on such supersession any decree or order of a Court or competent authority under which such committee has been constituted shall cease to have any force.'

It follows that when a committee of supervision has been superseded under Sub-section (2) of Section 59 no further committee of supervision will be constituted. The result must be that the Board thereafter begins to exercise supervision, which till then was exercised by the committee of supervision subject to the terms of the proviso contained in Sub-section (1) of Section 59. The Act did not contemplate the simultaneous supervision of the waqf both by the committee of supervision and the Board.

10. We are therefore of opinion that the respondents did not constitute such a committee as was contemplated by Sub-section (1) of Section 59 of the Act and that therefore they could not he superseded by the Board in the exercise of its power under Sub-section (2) of Section 59 of the Act.

17. It was contended for the appellants that the Board could remove the mutawallis in view of the provisions of Section 56 of the Act. This contention has no force. Section 56 reads thus :

'When there is a vacancy in the office of mutawalli of waqf and there is no one competent to be appointed under the terms of the deed of waqf, or where the right of any person to act as mutawalli is disputed, the Central Board may appoint any person to act as a mutawalli for such period and on such conditions as it may think fit.'

The only power which the Board can exercise under this section is the power of appointing a person to act as a mutawalli for a limited period when there has occurred a vacancy in the office of a mutawalli of a waqf and there is no one competent to be appointed under the terms of the deed of waqf or where the right of any person to act as mutawalli is disputed. This section does not authorise the Board to remove a mutawalli. It only authorises the Board to appoint a mutawalli and that too only in certain circumstances. The impugned order is not, in our opinion, an order which could be made under the provisions of Section 56 of the Act.

18. It has been then strenuously urged for the appellants that the impugned order can be considered to be a good order made by the Board in the exercise of the powers conferred on it by Section 18 of the Act.

19. The impugned order does not purport to have been made in the exercise of the power of the Board under Section 18 of the Act. It was made under Section 59 (2) of the Act. What the Board purported to do under Section 18 (1) of the Act under this order was merely to assume direct superintendence of the affairs of the waqf and not to assume direct management of the waqf.

20. Sub-section (1) of Section 18 is ;

'The general superintendence of all waqfs to which this Act applies shall vest in the Central Board. The Central Board shall do all things reasonable and necessary to ensure that waqfs or endowments under its superintendence arc properly maintained, controlled and administered and duly appropriated to the purposes for which they were founded or for which they exist.'

According to this section it is the general superintendence of the waqf which vests in the Board and not; its direct management. The word 'superintendence' connotes supervision of the management. The word 'to superintend' means, according to the Shorter Oxford English Dictionary, 'to look after, oversee, supervise the working or management of (an institution etc.).'

21. What the Board is empowered by this section to do is to ensure that waqfs or endowments under its superintendence are properly maintained, controlled and administered. The use of the word 'unsure', which means 'to make certain, to secure, or to guarantee', signifies that the management is to be done by others and that the act of the Board is restricted to making certain that the others take suitable steps towards the proper maintenance, control and administration of the waqf or endowment.

22. It follows that the power which Section 18 confers on the Board is a power of supervision and not a power of taking over the management itself.

23. Even if it be held that the Board can take over the direct management of the waqf under Section 18 of the Act such a taking over of the direct management must be at a time when there be a vacancy in the office of the mutawalli of a waqf. Section 56 of the Act provides that when there be a vacancy in an office of the mutawalli of a waqf and there be no one competent to be appointed under the terms of the deed of waqf or where the right of any person to act as a mutawalli is disputed, the Board might appoint any person to act as a mutawalli for such period and on such conditions as it may think fit. Further the Board could not have taken over the management of the waqf in suit if its order superseding the mutawallis be a bad order and does not really create a vacancy in the office of the mutawallis. It is really this order of supersession of which the validity is to be justified by the appellant Board in these proceedings and not its taking over the management of the waqf.

24. Section 18 does not contemplate the super-session or removal of the mutawallis by the Board. Sub-section (2) of this section mentions a number of powers and duties of the Central Board and makes it clear that those are not the only powers and duties of the Board in view of the generality of the provisions of Sub-section (1). Clause (e) of the sub-section gives the Board power to institute and defend suits and proceedings in a Court of law relating, among other matters, to the appointment and removal of mutawallis in accordance with the deed of waqf if it exists and putting the mutawallis in possession or removing them from possession. Clause (f) gives power to sanction the institution of suits under Section 92 of the Code of Civil Procedure relating to waqfs to which this Act applies. These provisions of Clauses (e) and (f) would be unnecessary if the powers given to the Board under Sub-section (1) include the power to remove mutawallis, for whenever the Board be of opinion that the mutawallis should be removed the Board could remove them itself instead of adopting the cumbersome procedure of instituting a suit in Court for their removal or of giving permission to others to institute a suit for the purpose.

25. Reference may also be made to Section 58 of the Act which empowers the Board to remove a mutawalli from his office in certain circumstances. This section would also be redundant if the power of removal was given to the Board under Section 18 of the Act. We are therefore of opinion that the order of the Board dated 10-5-1955 superseding the so-called Board of mutawalli-khadims was made without jurisdiction and was therefore a nullity.

26. Mr. Beff wished to challenge the correctness of the order of the learned Judge on the ground that the President of the Board was not a party to these proceedings. It is alleged that it was he who passed the impugned order and he was a necessary party. We did not allow him to raise this point which had neither been urged before the learned Judge nor taken in the memorandum of appeal

27. Finally it has been contended for the appellants that we should not quash the impugned order as it was an administrative order, as the learned single Judge had not quashed it in view of his entertaining doubts whether it was a quasi-judicial order, and in view of the fact that the respondents had not appealed against the rejection of their prayer for the quashing of that order. It is also contended that no writ of mandamus can be issued even if the impugned order is void as it can be passed only to direct a party to perform its statutory duty or to refrain from doing what the statutes prohibit it from doing.

28. Administrative orders cannot, it is true, be quashed by a writ of certiorari but such orders can be quashed by the Court in exercise of the general powers conferred upon it under Article 226 of the Constitution to issue directions & orders: see Ram Charan Lal v. State of U.P., 1952 All LJ 319 at p. 321: (AIR 1952 All 752 at p. 753) (A); and Rameshwar Prasad Kedarnath v. District Magistrate, AIR 1954 All 144. (B). An order passed without jurisdiction which adversely affects the petitioner ought ordinarily to be set aside. No special reasons exist fort not setting aside the impugned order. The respondents had no grievance against the order passed by the learned Judge and therefore could not appeal against it. Their failure to appeal is no good reason for our not quashing the impugned order. We prefer the quashing of the order to the issuing of a writ of mandamus in the circum-stances of the case.

29. We therefore dismiss the appeal with costs but in substitution for the order of the learned Judge quash the order of the Board dated 10-5-1955.


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