D.D. Seth, J.
1. This is a petition under Article 226 of the Constitution and is directed against a notice dated 27th July 1962 sent to the petitioner by the Secretary of the U. P. Sunni Central Board of Waqf under Section 55 of the U. P. Muslim Waqfs Act, 1960 (hereinafter called the Act). This petition is connected with Civil Revision No. 99 of 1962 filed by the petitioner. The petition and the application in revision were argued separately by the learned counsel tor the parties and I am, therefore, passing separate orders in respect or them.
2. The facts of the petition, in brief, as contained in the petition, are that plot No. 147, house No. 143 and plot No. 148 situated in monalla Khuldabad, Allahabad originally belonged to Sri Rahim Bux, grand-father of the petitioner. Rahim Bux died in 1913 and left a son Hafiz Mohd. Saleem who became the owner of the properties in dispute. On plot No. 149 there is a mosque built by Sri Rahim Bux who had nominated the petitioner as mutwaill thereof.
According to the petitioner the shops and the kottiris standing on plot No. 148/129 were constructed by the petitioner's father, Hafiz Mohd. Saleem and by Kahlm Bux and now the petitioner is the exclusive owner of those properties. On plot No. 146/127 is the residential house of the petitioner which was partly built by the petitioner's father and partly by the petitioner. Plot No. 147/128 lies opposite to the petitioner's residential house and is an open piece of land on which the petitioner has built temporary sheds and has let them out to tenants. The petitioner claims to be the exclusive owner ofall these properties except the mosque. House No. 148 comprises of several shops which have been let out to a number of tenants. Two of these shops were let out to one Subhan Bux and two other shops were let out to one Bashir Ahmad.
All the tenants including Subhan Bux andBashir Ahmad regularly paid rent to the petitionerbut in 1951 there was a dispute between the petitioner and Subhan Bux regarding the repairs ofthe house. The petitioner served a notice onSubhan Bux for arrears of rent and his ejectmentfrom the shops. The petitioner also served a noticeon Bashir Ahmad who did not pay any rent since1956. The petitioner filed a suit (suit No. 134 of1957) for recovery of arrears of rent and ejectment against Bashir Ahmad. The suit was decreedon 9th April 1958. The judgment and decree ofthe trial court were upheld in appeal by the firstappellate court and thereupon Sri Bashir Ahmadfiled a second appeal in this Court (second appealNo. 533 of 1950, which is still pending.
3. The petitioner filed two other suits (suits Nos. 921 and 922 of 1958) against Subhan Bux for recovery of arrears of rent and for his ejectment.The suits are still pending.
4. It is alleged in the petition that on account of these disputes between the petitioner and the two tenants they made false representations to the U. P. Sunni Central Board of Waqfs (hereinafter called the Board) and got a letter dated 27th November 1956 sent to the petitioner by the Board in which the petitioner was treated as a tenant and in which it was stated that a committee of management was appointed for the waqf Rahim Bux jamadar under Section 56 of the U. P. Muslim, Waqf Act (Act No. 13 of 1936) (hereinafter called the Act of 1936) and that one Qadir Ahmad was appointed secretary of the said waqf and he alone was entitled to realise rent of the properties belonging to the waqf. The petitioner replied to the notice dated 27th November 1956 through a counsel in which it was denied that the petitioner was a tenant of the waqf Rahim Bux. It was also denied that Rahim Bux was the waqif of any property. It was also asserted in the reply that the properties in dispute 'have never been subject-matter of any waqf nor the Hoard has any connection therewith.'
5. It is stated in paragraph 14 of the petition that in the suits filed by the petitioner against Subhan Bux and Bashir Ahmad writen statements were filed by the defendants and it was pleaded that the properties in dispute were subject-matter ol waqf and the petitioner had no right to sue and that the defendants had paid rent to Qadir Ahmad, Secretary of the committee of management and that no arrears of rent were due afiainst them. According to the petitioner in suit No. 134 of 1957 the matter was fully gone into by the trial Court and it was held that the petitioner is the owner of the house and that there was no evidence to show that the house was owned by the wnqf. A notice under Section 33 of the Act was served upon the petitioner by the Board alleging the properties in dispute to he waqf properties. The petitioner filed an objection against the notice and the dispute was referred to the Tribunal who gave anaward on 14th December 1961 and held the properties in dispute to be waqf properties and the petitioner to be mutwalli thereof.
The petitioner contends that the Tribunal neverdecided that the properties in dispute were the subject-matter of the waqf under the Act. Against the award the petitioner Hied a revision (No. 99 of 1962) in this Court and challenged the award. This revision was connected with this petition and was heard by me along with this petition. The Board also prosecuted the petitioner under Section 60 of the Act of 1936 for his failure to pay the yearly contribution to the Board but the petitioner was acquitted by this Court in Criminal Revision No. 1397 of 1952 in which it was held by Gopalji Mehrotra, J. that it had not been proved that the petitioner was the mutwalli of the properties in dispute. The Board served the following notice mated 27th July 1962 on the petitioner under Section 55 at the Act requiring him to show cause why heshould not be removed from the mutwalliship of the properties in dispute:
'Registered A. D.
Office of the
U. P. Sunni Central Board of Waqf,
91, Dr. Motilal Bose Road,
'Sri MOHD. Zafar Ahmad,
Sub: Notice Under Section 55 of the U. F. Muslim Waqfs Act of 1960 for removal from the office of theMutwalli.
Whereas Waqf No. 1 Allahabad known as waqf Shelkh Rahim Baksh is comprised of properties bearing Municipal Nos. 146/127, 147/128, 149/129 and 149/130 situate in Mohalia Khuldabad, Allahabad. The aforesaid No- 149/130, consists of the mosque and Kothries beneath it and the rest are other waqf properties and whereas great harm is being caused by you to the Interest of the waqf the follwoing charges are levelled against you in this connection:
1. You wrongfully alienated a portion of the waqf property in favour of one Mazher Abbas by executing a possessory mortgage dated 10-9-40 and falsely alleged to be your own personal property.
II. you have misappropriated Income of the waqf property using it for maintenance of your family.
III. yOU have mismanaged the waqf property and its affairs, and by your wilful neglect reduced a greater part of it to a dilapidated condition.
IV. You have persistently neglected to comply with the directions of the Waqf Board for the better governance, management and supervision of the Waqf and in spite of the repeated directions and reminders, neither maintained proper accounts nor produced them for audit before the auditors.
V. Except for occasion on 24-10-1942 you never cent contribution to the Waqf Board.
vi. yOU have gune to the length of denying the existence of the waqf itself, and your entire conduct is detrimental to the interest of the Waqf.
Therefore it seems necessary that you should be removed from the office of the Mutwalli.
You are hereby called upon to show cause by 15th day of August 1962 as to why you should not be removed from the office of the Mutwalli of waqf No. 1 Allahabad known as Waqf Sheikh Rahim Baksh, Khuldabad, Allahabad.
U. P. Sunnl Central Board of Waqfs,
6. Aggrieved by the above notice the petitioner has come to this Court and has prayed that certiorari be issued and the notice dated 27th July 1962 be quashed. It has further been prayed that the Board be directed not to give effect to the provisions of the Act against the petitioner and his properies and in any case not to give effect to or take any action under the notice dated 27th July 1962.
7. I have heard Sri Bashlr Ahmad, the learned counsel for the petitioner, Sri K. N. Tripathi and Sri Brijlal Gupta learned counsel for the Board and Sri Lakshmi Saran the learned Junior Standing Counsel appearing for the State.
8. A prellmlnaty objection was raised by Sri K. N. Trlpathl who contended that the petition was premature as by the notice dated 27th July, 1962 the petitioner has only been asked to show cause why he should not be removed from the mutwalliship of the waqf in dispute. Tne learned counsel urged that no final order hag been passed by the Board and therefore, no cause of action has arisen to tne petitioner.
9. I do not find any merit in the preliminary objection. If the properties in dispute are not waqf properties and if the petitioner is not mutwalli thereof the Board, by serving the notice on him, is proposing to act without any authority of law and it is open to this Court to issue a writ of mandamus directing the Board not to give effect to the notice and to quash the notice. If the notice causes hardship and harassment to the petitioner and amounts to an encroachment on the petitioner's right he is entitled Immediately to come to the appropriate Court for redress. See Bengal Immunity Co. Ltd. v. State of Bihar : 2SCR603 . It was held in Calcutta Discount Co. Ltd. v. Income-tax Officer : 41ITR191(SC) that:
'Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without Jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences.'
10. In this petition the petitioner has raised constitutional points and has challenged the viresof Sections 33 and 55 of the Act. in my opinion,therefore, he is entitled to maintain the petition. I, therefore, overrule the preliminary objection raised by Sri Tripathi.
11. Another preliminary objection was raised by Sri Lakshmi. Saran the learned Junior standing Counsel for the State. The learned counsel, submitted that till the Civil Revision No. 99 of 1962 with which this petition is connected has been decided by this court this petition is not maintainable, I find no force in this objection also.
12. As already mentioned above I heard Civil Revision No. 99 of 1962 and this petition separately and at some length. The constitutional points raised by the learned counsel for the petitioner in this petition, although raised in the revision, were not urged in the revision but were urged in this petition. The petitioner has a right to have a decision on the points raised by him and the preliminary objection raised by Sri Lakshmi Saran must also, therefore, be overruled.
13. On merits Sri Bashir Ahmad submitted that the conduct of the Board in appointing a committee of management of the waqf in dispute and in appointing Qadir Ahmad as the Secretary of the committee and in styling the petitioner as a tenant of the properties by the notice dated 27th November 1956 and in serving the notices under Sections 33 and 55 of the Act on the petitioner was mala fide. The learned counsel further submitted that the notice dated 27th July 1962 is ultra vires the provisions of the Act and was issued without jurisdiction. It was lastly urged that the provisions of Sections 19, 29, 33, 34, 4S, 55, 56, 59, 60, 61, 75 and 77 of the Act are ultra vires as they violate Articles 14, 19(1)(f), 25 and 26 of the Constitution.
14. I now take up the submission raised by the learned counsel for the petitioner seriatim:
15. The learned counsel for tha petitioner was notquite correct in saying that the proceedings against the petitioner were initiated by the Board for the first time in 1956. So far as the properties in dispute are concerned the action of the Board goes as far back as 7th December 1937 on which date the District Waqf Commissioner, Allahabad submitted the following report to the State Government:
'I have gone though the waqf deed and the representation dated 24-8-1937 made by Sheikh Hafiz Mohammad Saleem and Hafiz Mohammad Zafar Ahmad and nave inspected the property. I am definitely of opinion that the document dated 13-8-1912 is nothing but a Waqf deed and that the entire property covered by it is a Waqf property. That comes under the Muslim Wakfs Act of 1936.
The mere fact that the mutwalli has to payhouse tax on the property, does not lead to theconclusion that it is not a waqf property. Theproperty having been declared a waqf property, themutwalli should apply to the Municipal Board forthe remission of the house tax.
For District Waqf Commissioner,
16. According to the Board the order quoted above became final and conclusive as no suit underSection 5 of the Act of 1936 was filed by the petitioner. The Board also issued a notification underSection 5 of the Act of 1936 which was published in the U. P. Gazette on 26th February 1944 in respect of the properties in dispute. On 14th March 1947 the petitioner made a statement before the Inspector of Waqfs wherein he clearly admitted that the properties in dispute were wakf properties and also recognised the right and authority of the Board to supervise and control the same.
17. The action of the Board in appointing a committee of management for the waqf in dispute and also in appointing Qadir Ahmad as its Secretary cannot be said to be mala fide as it has not been alleged by the petitioner anywhere in the petition that tne Board took any action in respect, of the waqf in dispute at the instance of Qadir Ahmad. The Board had already declared the properties in dispute as waqf properties under the Act of 1936 and, therefore, it cannot be said that the Board was acting mala fide for tne first time in 1956.
The conduct of the petitioner, in my opinion, disentitles him to claim any relief by this petition. It has already been stated above that in his statement made before the Inspector of Waqfs on 14th March 1947 the plaintiff had clearly admitted that the properties in dispute were waqf properties and had also recognised the right and authority of the Board to supervise and control the same. Besides this statement the petitioner had also admitted the wakf nature of the properties in his written statement filed in suit No. 484 of 1961. This was a suit which had been filed by one Mazhar Abbas against the petitioner and others for recevery of arrears of rent and for their ejectment from some of the shops in dispute. In his written statement filed in the suit the petitioner made the following admissions:
'Yeh ki makan dakhal talab per mudhalay No. 1 bahaisiyat mutwalli kabiz hai aur uska intizam karta hai. Jo maukufa mutallika wa juz masjid hal.'
'Yah ki makan dakhal talab maukufa juz mutallika masjid hai.'
'Mohd. Saleem ya mudhalaham mujeeb uske malik nanin the.'
18. It is clear that the admission of the petitioner in his written statement was that he was in possession of the properties in dispute as mutwalli thereof and that tne house was a part of the waqf estate.
19. The petitioner's grand-father Rahim Bux had also admitted that he was the mutwalli of the properties in dispute and that the properties were waqf properties in the deed dated 13th August 1912 which is Annexure C to the counter-affidavit filed by Syed Ahad Husain. The deed dated 13th August 1912 reads as follows:--
'Man ki Sheikh Kahim Bux .iamadar sabiq vald Sheikh Makhdun Bux marhum sakin muhalla Nai Basti Khuldabad Sultanpur Bhawa Shahr Allahabad ka hun.
Jo ki masjud muttasil phatak Khuldabad Shahr Allahabad ke wakey hai sabiq men yeh masjid shabinihayat choti wa kohna wa munhadim wa takhrib thi. Maine masjid majkur ko arsa takminan 46 saal ka hua ke bakoshis baleeg azsrey hau tameer karaya aur uske mutalik kothrian harsah janib hain jisme ke kirayedaran rahte hain. Basarf apne tameer karain hain aur us wakhat se ab tak mutwalliyan bila shirka gaire kabiz wa dakheel chala ata hun aur teen kita zameen jiski kul ki tasreeh hasb musarrah naksha zail ke mallyati mublign 10,000 rupia hai aaur kui Intlzam masjid majkur ka misal chirag batti wa phars wa khakrob kashi wa bharana pani wa dilana azan wa parhwana namaz panjgana wa junia mubarik wa Idden parhwana--taraweeh wa Ruransareef bammah ramzanul mubarik me barabar karata hun wa anjam maakul umurat majkura bala ka bahusn khidmat karta hun. Chunanche ab umar meri 80 saal ki hui. Havajah zneefi wa kamzori ke intizam masjid majkura ka mukh se acnchi tarah se nahin ho sakta hat. Arsa 6 saal se maine apne larke Hafiz Sheikh Muhammad Saleem ko 30 nihayat layak wa hoshiyar wa dayanatdar wa amanat hai aur ab wa mahad mere bahut achchi tarah se intizam masjid ka karega aur mujhko Dargah Rabbui Izzat se ummid kamil hai ki woh mukhse ziada is kam me tarakki dega aur mai uski(sic) wa nekchalni wa intizam masjid se nihayat raji wa khush hun. Dhekha ke intizam masjid ka bakhubi karta hai balki usne mubilgh 8500 rupiya apna jati Barf karke masjid majkur ke meenaren wa taaj wa chhat wa zameen wa zeena wagairah tameer karaya hai aur astarkari karaya. Jab maine masjid majkur ke kaam wa intizam wa ihtimam me nihayat muntajlm wa baigayat muhtamim paya tab maine bahalat sehat nafas wa sebat sqi wa durusti jamee hosh wa hawas bakhushi wa rajamandi apne bila jabr wa kirah wa tahrees wa targheeb kisi dusre ke apne pisar sulbi kalan Hafiz Sheikh Muhammad Saleem markooma balasakin muhalla Sultanpur Bhawa Nai Basti Khuldabadshahr Allahabad ko jo hamkhanawabamtam hamara hai bajai apne mutwalli masjid wa zameen wa kothrianwaste yeh tawliyatnama batarikh sanad musanandamussarrah naksha zall karta hun Jis tarahse main 46 saal tak intizam masjid majkur uskikothriyon ke kiraya se karta chala aaya hun aurintizam zameen majkura mussarrh naksha ka kartachala aata hun isi tarah se pisar majkur karterahen aur jo jo akhtiyarat nisbat eesal kiraya wabedakhlf kirayadaran wa tamlrat wa takhribat waneez Jumla deegarafaan ke akhtiyarat mutwalliyanamutalik masjid wa kothriyan wa zameen majkurmussarrah naksha zail ke jo mukhko hasil hainmutwalli majkur ko hasil ho gaye wa rahenge. Is waste yeh tawliyatnama batarlkh sahad mussananoake wa number masjid ka (126 muhalia KhuldabadAllahabad hai) likh diya ke sanad rahe aur wakhtper kaam aawe. Fakat almarkum 29 maah shahanul muazzam 1330 hijri nabwl mutabik 13 maahAugust san 1912 bakalam Abdul Habib Khan sakinNihalpur Allahabad--alabd Rahim Bux bakalamkhud.'
20. In face of these admissions the petitioner now cannot deny the waqf nature of the properties in dispute and claim them as his exclusive properties. The action of the Board in appointing a committee of management for the waqf cannot be said to be mala fide. The Board was only exercis-ing its statutory functions under Section 56 of the Act of 1936. Moreover no personal blag on the part of the members of the Board has been alleged by the petitioner. There is thus no force in this contention of the learned counsel for the petitioner.
21. In support of his contention that the notice dated 27th July 1962 is ultra vires the provisions of the Act and is without jurisdiction the learned counsel for the petitioner invited my attention to the various provisions of the Act. Section 2 deals with the application of the Act and says:--
'(1) Save as herein otherwise specifically (sic) ted this Act shall apply to all waqfs, whether created before or after the commencement of this Act, any part of the property comprised in when (sic) situate in Uttar Pradesh, and to all the wakfs which at the time of the coming into force of this Act were under the superintendence of the Sunni Central Board or the Shia central Board constituted under the U. P. Muslim Waqfs Act, 1936 (U. P. Act XIII of 1936).
2. This Act shall also apply to the properties governed by the Husainabad Endowment Act, 1878 (Act XV of 1878), and to the properties administered by the Trustees appointed thereunder:
Provided that the state Government shall have the power to make, by notification in the of(sic) Gazette, such adaptations, whether by way of modification, addition or omission, not affecting the substance of the provisions of this Act, as it may deem fit, in its application to the aforesaid properties.
3. This Act shall not apply to-
(1) a waqf created by a deed, if any, under the terms of which not less than 75 per cent of the total income after deduction of land revenue, rent and cesses payable to the State Government of the property covered by the deed of waqf, if any, to for the time being payable for the benefit of the waqif or his descendants or any member of his family.
(ii) a waaf created solely for any of the following purposes:
(a) the maintenance and support of any person other than the waqlf or his descendants or any member of his family.
(b) the celebration of religious cermonice connected with the death anniversary of the waqif or a member of his family or any of his ancestors provided that the annual expenditure on such purposes does not exceed Rs. 2,500.
(c) the maintenance of private (1) tombs and (ii) grave-yards, or
(d) the maintenance and support of the waqif or the payment of his debts, when the waqlf is a Hanafi Musalman:
Provided that if the mutawalli of a waqi to which this Act does not apply wrongfully sells or mortgages, or suffers to be sold in execution of a decree against himself, or otherwise destroys the whole or any part of the waqf property, the Central Board may apply an or any of the provisions of this Act to such waqf for such time as it may think necessary.
Explanation--A waqf which is originally exempt from the operation of this Act may, forany reason subsequently, become subject as to such operation, for example, by reason of a higher percentage of its income becoming available under the terms of the deed for public charities.'
22. Section 4 of the Act deals with the appointment of Commissioner of Waqfs and Additional or Assistant commissioners of Waqfs for the purposes of making a survey of all waqf properties in this State. under Section 6 of the Act survey of waqfs has to De done and a report of enquiry has to be submitted to each of the Boards and the State Government and the State Government is required, as soon as possible, to notify in the official Gazette the waqfs relating to particular sect to which, according to such report, the provisions of tne Act apply. Relying upon Section 2 of the Act Sri Bashir 'Ahmad submitted that since admittedly no survey of the properties in dispute was made under the Act and since no report was submitted to the State Government the Act will not apply to the properties in dispute and consequently the Board could not take any notice either under Section 33 or under Section 55 of the Act.
According to the learned counsel Sub-section (4) of Section 6 of the Act which requires thesubmission of his report of enquiry to the State Government by the Commissioner, the Additional Commissioner of Waqfs or Assistant Commissioners of Waqfs is without any exceptions and not mandatory and all waqfs have to be surveyed whether the Act applied or not. The learned counsel also relied upon Section 19 of the Act which defines the functions of the Board and submitted that since the Act does not apply to the properties in dispute the Board cannot exercise any superintendence in respect of the same. He also contended that the mere fact that the properties in dispute were registered as waqf properties under the Act of 1936 will not make the Act applicable to them.
23. It may be noted that no specific ground regarding this contention of the learned counsel for the petitioner has been taken in the petition.
24. Two kinds of want's are envisaged in section 2 of the Act:
1. waqfs, any part of the property comprised in which is situate in Uttar Pradesh; and
2. the waqfs which at the time of the coming into force of the Act were under the superintendence of the Board constituted under the Act of 1936.
25. Section 2, therefore, speaks of two classes or waqfs. The waqf in dispute is covered by the first classification in Section 2 of the Act as its property is admittedly situate in Uttar Pradesh. Sub-section (1) of Section 2 of tne Act says that the Act shall apply to all waqfs whether created before or after the enforcement of the Act and to all the waqfs which at the time of the coming into force of the Act were under the superintendence of the Sunni central Board or the Shia Central Board constituted under the Act of 1936. Besides, the waqf was under the superintendence of the Board under the Act of 1936 as is clear from the following facts:
1. The petitioner sent Rs. 21/6/- to the Board by money order as the annual subscription in respect or tne properties in dispute. The moneyorder coupon which was signed by the petitioner as mutwalli contained the following statement :
Hasbul hukum notice No. 1 banam Hafiz Mohd. Saleem marhum salana chanda mubligh 21 rupia 6 anna irsal khidmat hai. Vasulyabi se (sic) formaiega.' The amount of Rs. 21/6/- worked out at 5 per cent of the income of the waqf which was the annual subscription to be made to the Board.
2. A demand was made on the petitioner by the Board to render accounts of the wakf and on his failure to do so the petitioner was prosecuted by the Board.
3. The appointment of committee of management in respect of the properties in dispute by the Board.
26. Sections 4 and 6 of the Act are contained in Chapter I which deals with survey of waqfs. Sub-section (2) of section 9 excludes the application of Chapter 1 to cases in which the report of the Commissioner of Waqfs had become final under the provisions of the Act of 1936. Section 9 of the Act read as follows:
'(1) The provisions of this chapter shall not apply to the proceedings of any survey of waqf properties started before the commencement of this Act, and such survey shall be completed in accordance with the provisions of the U. P. Muslim Waqfs Act, 1936 (U. P. Act XIII of 1936).
(2) Nothing in this ciiapter shall affect the finality of the decisions of the Chief State Commissioner of Waqfs or of any State Commissioner of Waqfs or Commissioner of Waqfs in cases in which prior to the commencement of this Act the report of such Commissioner has become final.''
27. Sub-section (2) of Section 9 cannot be ignored. It cannot be denied that the commissioner of Waqfs had submitted a report in respect of the waqf in dispute to the State Government under the provisions of the Act of 1936. That report became final. It follows, therefore, that no fresh survey under Section 6 of the Act was necessary. Therefore, under Sub-section (2) of Section 9 the Act is applicable even though no fresh survey of the properties in dispute was made under toe Act. The applicability of the Act does not depend upon whether a survey has been made or not under the Act. Sub-section (11) of Section 3 of the Act defines a waqf and says that:
''Waqf means the permanent dedication or grant of any property for any purpose recognised by the Muslim Law or usage as religious, pious or charitable, and includes waqfs-alai-aulad and waqf by user; and 'waqir means the person who makes such dedication or grant;'
28. There is nothing in this definition which shows that it applies only to that waqf in respect of which a survey has been made under the Act. Section 19 of the Act whlch was relied upon by the learned counsel for the petitioner is of no help to him. Once it is held that the Act is applicable to the waqf in dispute its superintendence vests in the Board. The object of survey is to Investigate the property of the waqf. Under Section 4 (3) (c) of the Act of 1936 the Commissioner of Waqfs was required to determine the gross Income of the properties comprised in the waqf and under Sub-section (5) of Section 4 of that Act the Commissioner of Waqfs was required to submit his report to the Local Government. Under Section 5 of the Act of 1936 what was required to be notified in the gazette was relating to the particular sect to which according to the report of the Commissioner of Waqfs the provisions of that Act applied and not the property comprised in the waqfs. The report of the Commissioner of the Wakfs submitted to the State Government under the provisions of the Act of 1936 did mention all the properties in dispute. That report of the Commissioner of Waqfs became final and concluded the matter.
It follows, therefore, that since all proceedings in respect of survey of the properties in dispute had been gone into under the provisions of the Act of 1936 no fresh survey or report was necessary under the Act. There is no provision in the Act that fresh survey will be a condition precedent to the applicability of the Act. fresh registration of the waqf under the Act was also not necessary as the waqf in dispute had already been registered under the provisions of the Act of 1936. Section 28 of the Act is fully applicable to the facts of the present case. Section us says that :--
'A waqf registered before the commencement of this Act under the U. P. Muslim Waqfs Act, 1936 (U. P. Act XIII of 1936), shall be deemed to have been registered under the provisions of this Act.'
29. Fresh registration is also not a condition precedent to the applicability of the Act. I, therefore, do not agree with Sri Bashir Ahmad that the notice dated 27th July 1962 is ultra vires the provisions of the Act and was issued without jurisdiction.
30. The next point urged by Sri Bashir Ahmad was that Section 53 of the Act hits Article 14 of the Constitution. The learned counsel submitted that provisions parallel to those contained in Section 55 exist in Section 29 of the Code of Civil Procedure which is a complete code for removal of trustees. It was urged that Section 64 of the Act gives power to institute a suit under Section 92 of the Code of Civil Procedure and, therefore, it is at the sweet will of the Board to file a suit under Section 92 of the Code of Civil Procedure and also to take action for the removal of a mutwalll under Section 55 of the Act. According to Sri Bashir Ahmad Section 55 of the Act is without any guiding principles and is, therefore, arbitrary.
Under Section 55, it was submitted that the petitioner has been deprived of the power to file a suit and, therefore, he is in less advantageous position than what is open to him under Section 92 of the Code of Civil Procedure. The learned counsel submitted that there is no measure or standard of selection as to against whom a suit under Section 92 of the Code or Civil Procedure can bo filed and there is no classlfiaction and, therefore, Section 55 hits Article 14 of the Constitution. It was further urged that there was no provision for filing an appeal against an order removing a mutwalll passed under Section 55 of the Act and no provision for leading evidence before the Board has also been made. Under Section 92 of the Code of Civil Procedure there has to be a regular trial before a civilcourt but under Section 55 of the Act the Board has the power to remove a mutwalll arbitrarily and further that the Board can choose to file a suit under Section 64 of the Act against a mutwalli and can take an action under Section 55 of the Act for the removal of another mutwalli and, therefore, discrimination has been made between persons of the same classification and no guiding principle has been laid down to select persons similarly situated.
Sri Bashir Ahmad contended that it is true that a mutwalli can refer a dispute to the Tribunal and can move an application before the Tribunal but he can do this only after he has been removed from mutwalliship and after his property has been taken away. He further urgent that no order or stay can be obtained from the Tribunal which can be obtained in an appeal filed against an order passed under Section 92 of the Code of Civil Procedure. The learned counsel further urged that Section 76 of the Act gives the right to file a revision before this Court against an order passed by the Tribunal but no right of filing an appeal has Been given and, therefore, this Court cannot take into consideration the propriety of an order passed by the Board and it can only go into the correctness, legality or propriety of the award made by the Tribunal. Therefore, according to the learned counsel the order of the Hoard remains final and Section 64 of the Act cannot be equated with Section 92 of the Code of Civil Procedure.
31. In support of his argument Sri Bashir Ahmad relied upon a ruling of the Supreme Court reported in State of West Bengal v. Anwar All Sarkar : 1952CriLJ510 .
32. Section 55 of the Act deals with removal of mutwalli and reads as follows :
(1) 'The Board may, after affording him an opportunity of being heard remove a mutawalli other than a Managing Committee from his office if he-
(1) is fined on more than one occasion underSection 54, or
(ii) is convicted of an offence relating to thewaqf property or money which, in the opinion ofthe Board, renders him unfit to continue as mutwalli, or
(iii) is convicted of an offence involving moral turpitude or is required to furnish security under Section, 109 or Section 110 of the Code of Criminal Procedure, 1898 (Act v of 1898), or
(iv) wrongly destroys or alienates any waqfproperty, or
(v) is adjudged insolvent, or
(vi) is, in the opinion of the Board, unfit to discharge the duties of a mutawalli owing to any physical or mental disability, or moral delinquency, or
(vii) is guilty of misappropriation or gross mismanagement of waqf property, or has persistently neglected to comply with the directions given by the Board for the proper management of the waqf.
2. Any person aggrieved by an order of removal under Sub-section (1) may, by an application, refer the matter to the Tribunal within 90 days of the date of communication of the order of removal.'
33. Guiding principles are laid down in Section 55 of the Act itself. Cases in which a muta-walli can be removed are enumerated in that section. Thus the question of removing a mutwalli by the Board at its sweet will does not arise. The Board cannot remove a mutwalii in cases other than those mentioned in Section 55. It is now well established that classification is permissible under Article 14 of the Constitution. The cases in which a mutwalii can be removed under Section 55 are a permissible classification and no discrimination is involved, under Section 55 mutwallis who are convicted of an offence relating to tne waqf property or money, or who are bankrupts or who are morally or physically deficient or guilty of misappropriation or gross mis-management of waqf property can be removed by the Board. The classes mentioned in Section 55 have a reasonable relation to the object of the Legislature in enacting the Act. The preamble of the Act shows that it was enacted lor better governance, administration and supervision of certain classes of waqfs in Uttar Pradesh. The object of the Act can, therefore, be achieved, undoubtedly, by removing mutwallis mentioned in Section 55. Summary proceedings provided for removing mutwaiiis of the classes mentioned in Section 55 of the Act are understandable keeping in view the preamble of the Act.
There can be mutawallis who are not covered by Section 55 of the Act and in whose cases there is scope for a genuine dispute regarding their right to manage waqf properties. For such mutwallis Section 64 has been enacted by the Legislature. Under Section 55 an opportunity is given to any person aggrieved by an order of removal to refer the matter to the Tribunal. Section 72 of the Act deals with the procedure before Tribunals and prescribes that a Tribunal shall follow the same procedure as is provided under the Code or Civil procedure as regards to suits. The procedure provided for suits includes passing of stay orders. Sri Bashir Ahmad is, therefore, not correct in urging that the Tribunal cannot pass a stay order. Section 74 deals with the powers of the Tribunal and says that a Tribunal shall be deemed to be a civil court and shall have the same powers as are vested in such a court under the Code of Civil Procedure. It follows, therefore, that the Tribunal has complete powers to grant stay orders. In my opinion the procedure under Section 55 is not onerous or prejudicial. Sub-section (2) of Section 72 of the Act applies the provisions of the Indian Evidence Act to the adjudication of disputes by a Tribunal. Sri Bashir Ahmad was, therefore, not correct in contending that rules of evidence do not apply to the adjudication of disputes by a Tribunal.
34. As regards tne absence of the power to file an appeal against an order of the Board it is correct that no appeal has been provided but a revision can be filed in this Court against an order of the Tribunal. The proviso to Section 76 of the Act shows that the powers of this Court are very wide in revisions filed against an order of the Tribunal. No prejudice is, therefore, cauesd if no appeal has been provided against an order of the Board.
35. I do not agree with Sri Bashir Ahmad that the Board can proceed arbitrarily under Section 55 or under Section 64 of the Act. The case reported in : 1952CriLJ510 is distinguishable as the two procedures in that ruling were truly discriminatory. There was no rational classification. The Board consists of several disinterested and highly placed persons of the sect to which the waqf belongs. The Board is, therelore, quite competent to conduct an enquiry and to pass an order under Section 55 of the Act. In my opinion there is no discrimination within the meaning of Article 14 of the Constitution.
36. Sri Bashir Ahmad next urged that the Central Waqf Act (Act No. 29 of 1954) applies to the whole of India but does not apply to the States of Bihar, Uttar Pradesh and West Bengal. The waqfs being in concurrent list in the Constitution this State has also enacted the Act and did not adopt the Central Act. According to Sri Bashir Ahmad the Central Act gives power to a mutwalli to approach the civil courts, while in the Act no such power has been given and, therefore, there la territorial discrimination also and the Act is hit by Article 14 on that ground too. The learned counsel submitted that a Mutwalii in Bombay which is governed by the Central Act can file a suit under Section 6 of the Central Act while a Mutwalii in this state cannot. This argument also has no force.
37. The Central Act has not been made applicable to this State, Bihar and West Bengal. It is the Central Act which will be hit by Article 14 of the Constitution, if at all, because it excepts three States from its application and not the Act. Secion 6 of the Central Act has no application to the facts of the present case. The matter in controversy before me is whether the petitioner, as a mutwalli, is liable to be removed or not. Section 6 of the Central Act has no concern with this question. It was held in State of Madhya Pradesh v. G. C. Mandawar : 2SCR258 that :
'The power of the Court to declare a law void under Article 13 has to be exercised with reference to the specific legislation which is impugned. It is conceivable that when the same legislature enacts two different laws but in substance they form one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination. But such a course is not open where the two laws sought to be read in conjunction are by dillcrent Governments and by different Legislatures. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State onthe same subject its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the state dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments. The sources of authority for the two statutes being different, Article 14 can have no application.'
38. The Act has been enacted by the Legislature of this State under the concurrent list of the Constitution. The Legislature of this State was, therefore, quite competent to enact the Act and it Ss not hit by Article 14 of the Constitution.
39. Sri Bashir Ahmad next submitted that Section 55 of the Act hits Articles 19(1)(f), 25 and 26 of the Constitution Inasmuch as the right to acquire, hold and dispose of property is being denied to the petitioner. The learned counsel submitted that freedom of conscience is also being denied in the present case. According to the learned counsel the institution of waqfs concerns religion and comes directly under Article 26(d) of the constitution. He urged that waqfs are analogous to maths and mutwalli is analogous to mahant and, therefore, since Article 26 has been made applicable in cases of matus it must be held to be applicable to waqfs also. In this connection Sri Bashir Ahmad relied upon a ruling reported in The Commissioner, Hindu Religious endowments, Madras v. Lakshmindra Thirtha Swamiar : 1SCR1005 in which it was held that:
'The word 'property as used in Article 19(1)(f) of the Constitution, should be given a liberal and wide connotation and so interpreted should be extended to those well recognised types of Interest which have the insignia or characteristics of proprietary right. Thus, Article 19(1)(f) applies equally to concrete as well as abstract rights of property. The ingredients of both office and property, of duties and personal interest are blended together in the rights of a Mahant. The Mahant has the right to enjoy this property or beneficial Interest so long as he ts entitled to hold his office. To take away this beneficial Interest and leave him merely to the discharge of his duties will be to destroy his character as a Mahant altogether.'
40. To the same effect is ruling reported in Ratilal Panachand Gandhi v. State of Bombay : 1SCR1055 which was also relied upon by Sri Bashir Ahmad.
41. The learned counsel further submitted that under Article 26(d) of the Constitution it is a fundamental right of a religious denomination or its representative to administer its properties in accordance with law and that a law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under Clause (d) of Article 26 of the Constitution.
The right of a mutwalli is not, in my opinion, equivalent to that of a mahant. A mutwalli's right is purely a right of management of the property and is not a proprietary right. The duties of a mutwalli are purely of a secular character. His duties are not of a religious character. He has no beneficial interest of any kind in the property which he administers while a mahant has such an interest in the property Belonging to the math. A mahant's right is not only a right of management of the property but he holds a beneliclal interest in it. A mutwalli is not the head of a spiritual fraternity while a mahant is. A mutwalli is nothing more than a servant of the founder of the waqf. It was held in Zain Yar Jung v. Director of Endowments : 1SCR469 that:
'Similarly, the Muslim law relating to trusts differs fundamentally from the English law. The Mohammadan law owes its origin to a rule laid down by tne Prophet of Islam; and means 'the tying up of property in tne ownership of God the Almighty and the devotion of the profits for thebenefit of human beings'. As a result of the creation of a wakf, the right of waltlf is extinguished and the ownership is transferred to the Almighty. The manager of the watf is the mutawalli, the governor, superintendent, or curator. But in that capacity, he has no right in the property belonging to the wakf; the property is not vested in him and he is not a trustee in the legal sense. Therefore, there is no doubt that the wakf to which the Act applies is, in essential features, different from the trust as is known to English Law.'
42. From the deed dated 13th August 1912 it is clear that the petitioner is merely the manager and trustee of the waqf properties and has no beneficial interest in them. It was held in Govindlalji v. State of Rajasthan : 1SCR561 :
'The Tllkayat is merely a Custodian, Manager and Trustee of the temple and no more. His position is not similar to that of a Mahant or a Shebait. There can be no doubt that the right to have the custody of the property such as the Custodian has, or the right to manage the property such as the Manager possesses, or the right to administer the trust property for the benefit of the beneficiary which the Trustee can do, cannot be regarded as a right to property under Article 19(1)(f) and for the same reason, it does not constitute property under Article 31(2).'
'If it is held that the Tilakayat was no more than a Custodian, Manager and Trustee properly so called, there can be no doubt that he is not entitled to rely either on Article 19(1)(f) or on Article 31(2).'
43. There is thus no force in Sri Bashir Ahmad's submissions that Article 19(1)(f) is hit in the present case. The duties of a mutwalli, being only secular, the provisions of Articles 25 and 26 of the constitution are also not applicable in the present case.
44. Sri Bashir Ahmad's next submission was that it is the waqif who appoints a mutwalli and lays down the succession under the Muslim law and there is no authority except a District Judge who can remove a mutwalli. The learned counsel submitted that under Section 55 of the Act the Board has the power to remove a mutwalli and under Section 48 of the Act a Board has also the power to appoint a mutwalli. Sections 55 and 48 of the Act, according to Sri Bashir Ahmad, are void because under the Mohammadan law a District Judge who performs the function of a kazi alone can remove and appoint a mutwalli. He submitted that a mutwalli appointed by the Board under Section 48 of the Act need not be a person appointed by the waqif, as, under Section 48; 'any person' can be appointed mutwalli by tne Board. No qualifications have been prescribed for the appointment and even a person without any qualifications can be appointed. The learned counsel, therefore, contended that it the Mohammadan Law requires that a certain person alone can be appointed by the waqif then 'any person' cannot be appointed mutwalli under Section 48 of the Act and such a mutwalli will not be a mutwalli under the Mohammadan law. In this connection Sri Bashir Ahmad relied upon the following acses:
1. Gholam Hossain Shah v. Altar Hussain : AIR1934Cal328 in which it was held that:
The succession to the office of Mutwalli may be in accordance with the desire of the donor, if he is alive; or if the intention of the founder cannot be ascertained from any established usage, then tne appointment may be made by tne executor of the founder; and falling all these, the power of appointment is in the Court which represents the power of the Kazi.'
2. Mohammed All Khan v. Ahmad All Khan : AIR1945All261 in which it was held that:
The District Judge as a principal civil Court of anginal jurisdiction has, by virtue of his powers (sic) a general power of nominating a mutwalli when mere is a vacancy in the office in a summary proceeding, that is, by means of a mere application.'
'The District Judge as a principal civil Court of original jurisdiction in exercise of his powers as a Kazi has no power in a summary proceeding, that is by means of a mere application, to remove a mutwalli (for misconduct or breach of trust) and appoint a new mutwalll in his place. The removal of a mutwalll can only be done by means of a (sic) properly instituted in the civil Court.'
45. Relying upon the above rulings the learned counsel submitted that if the District Judge has no power to remove a mutwalll m a summary manner the Board cannot exercise such a power under Section 55 of the Act. These submissions also have no force.
46. Section 19 defines the functions of the Board. Section 19(2) says:
'Without prejudice to the generality of the provisions of Sub-section (1), the powers and duties of the Board snail be:
(o) to remove a mutawalli, or appoint a mutawalli and to put the mutawalli so appointed in (sic) of the waqf property under the provisions of this Act:
Provided that in the appointment of mutwallis or to malting any other management of waqf property, the Board shall be guided, as far as possible, by the directions of the waqif, if any;'
47. Therefore, a duty has been cast on the Board to be guided by tne directions of the wadlf while acting under Section 48 of the Act. Therefore. It is not correct to urge that under Section 48 the Board has unfettered power to appoint any (sic) as mutwalli. Tne right to manage the property of a waqf is a secular right and fa not hitby Article 26 of the Constitution. Under Section 19 of the Act only general superintendence of all waqfs vests in the Board. The Act does not deprive religious institutions to manage their own affairs either in religious matters or in the administration of property in accordance with law. The Board can only ensure that the waqfs are properly governed and the rights of administration of properties are not taken away by Section 19 of the Act. In my opinion the rulings relied upon by Sri Bashir Ahmad in this connection have no application to the facts of the present case.
48. The next submission of Sri Bashir Ahmad was that Section 33 of the Act is void and hits Articles 14, 13(1)(f), 25 and 26 of the Constitution. Sri Bashir Ahmad urged that Section 33 does not prescribe tne manner in which an enquiry is to be made by the Board and there is no rule of evidence in it and no opportunity has been given for the hearing of an aggrieved person and the entire matter is left to the arbitrary powers of the Board which is not to be governed by any rule of law whatsoever. He, therefore, submitted that this is the worst form of discrimination and is hit by Article 14 of the Constitution. Under Section 33, according to the learned counsel, even a show cause notice is not necessary and, therefore, the provisions of the section are arbitrary. In my opinion so far as this petition is concerned the petitioner is not aggrieved by any order passed under Section 33 of the Act and the petition is directed only against the issue of notice under Section 55 of the Act. It is, therefore, not necessary for me to deal with the submissions of Sri Bashir Ahmad regarding Section 33 of the Act being void under Articles 14, 19(1)(f), 25 and 26 of the Constitution.
49. Even on merits the submissions have noforce. Under Sub-section (2) of Section 33 of theAct any person aggrieved by the decision of theBoard may, by application, within 90 days from thedate of such decision refer the dispute to the Tribunal which acts like a civil Court. As alreadyshown a above the rules of evidence and the Codeof Civil Procedure have been made applicable tothe adjudication of disputes by a Tribunal underSection 72 of the Act. Section 33 of the Act is,therefore, not discriminatory and is not hit by Article 19(1)(f) of the Constitution because if the property is waqf property then a mutwalli has nopersonal rights in them and if the mutwalll has nopersonal rights in the properties he cannot raisethe grounds of Article 19(1)(f) of the Constitution.Article 19 of the Constitution speaks of a personwhose rights have been infringed. It has alreadybeen held by me in the connected Civil RevisionNo. 99 of 1962 that the properties in dispute arewaqf properties and that the petitioner is a mutwalli thereof.
It follows, therefore, that no right of the petitioner has been infringed under Article 19(1)(f) of the constitution. The petitioner cannot contend that he comes within the definition of a rellglous denomination or a Section thereof. He is only a mutwalll of the properties in dispute. The petitioner therefore, cannot take the aid of Articles 25 and 26 of the Constitution. The submissions of Sri Bashir Anmad regarding Section 33 being void under Arti-cles 14, 19(1)(f), 25 and 26 of the Constitution have, therefore, no force.
50. No arguments were addressed to me by Sri Bashir Ahmad regarding Sections 19, 29, 34, 59, 60, 61, 75 and. 77 of the Act being ultra vires and being hit by Articles 14, 19(1)(f), 25 and 26 of the Constitution and no other contentions were raised by the learned counsel for the petitioner.
51. Before parting with this case I would like to observe that the petition was very ably argued by Sri Bashir Ahmad the learned counsel for the petitioner, Sri Brijlal Gupta, the learned counsel for the Board and Sri Lakshmi Saran, the learned Junior Standing Counsel appearing for the State.
52. For the reasons mentioned above I find no force in this petition and dismiss the same with costs.