1. This is a special appeal directed against the judgment dated 30th. March, 1972 of the learned Single Judge whereby he dismissed the writ petition of the appellant who prayed for the quashing of the order of the Waqfs Board dated 15th January, 1970 constituting a committee to advise the appellant for the management of the property and substantially curbing his powers of management of the Waqfs in question.
2. The case as set up by the appellant in his writ petition is that the Waqf in question is situate in Jaipur City outside the Ghat Gate. This Waqf was originally founded by Miskeen Shah, the ancestor of the appellant and is known as 'Miskeen Shah Ki Dargah'. In the Dargah compound there is a mosque a garden and a well besides other properties which need not be mentioned in detail here, Hazrat Ghulam Mohd. Shah alias Miskeen Shah who will be hereafter called 'Miskeen Shah' came from Kashmir and settled down in Jaipur City about 130 years back. He rose to eminence by his religious piety and personal sanctity and attracted a large number of followers from the rank and file. A State grant of 12 bishas was made in favour of Miskeen Shah by the erstwhile ruler of Jaipur for his secluded living and meditation. After his death Miskeen Shah was succeeded by his only son Zahiruddin Shah who became Sajiada-nashin-cum-Mutawalli of the Dargah. The erstwhile ruler of Jaipur granted two villages in Jagir to Zahiruddin Shall Zahiruddin Shah was succeeded by his eldest son Mazhar Haq Shah in the office of Sajjadanashin. On the death of Mazhar Haq Shah the office of Sajjada-nashin-cum-Mutawalli devolved upon his only son Fazle Haq Shah. As both Mis-keen Shah and Zahiruddin Shah had been granted property by the former State of Jaipur the Matmi proceedings were also sanctioned in favour of the respective successors- Fazle Haq Shah died on 24th February, 1964 and the appellant is his son.
The appellant claimed to be the Sajjadanashin-cum-Mutawalli of the Dargah being the only son of the last incumbent namely Fazle Haq Shah. His contention in the writ petition is that since the foundation of the Dargah, succession to the office of Sajjadanashin-cum-Mutawalli devolved upon the eldest son of the last incumbent of the office of Sajjadanashin-cum-Mutawalli, under the rule of primogeniture governing such succession. He also contended that the last incumbent had nominated and appointed him as his successor. He therefore contended that as per the custom and usage governing succession to the office of the Sajjadanashin-cum-Mutawalli he was nominated by the last incumbent, his father Fazle Had Shah on 30th March, 1949, the date of the 'Urs' of Miskeen Shah before the congregation of several citizens of Jaipur City, followers and others, who had assembled on that occasion, to be the next Sajjadanashin-cum-Mutawalli after his death. It has been alleged in the petition that on the death of his father the appellant became the Sajjadanashin-cum-Mutawalli by virtue of the rule of primogeniture as also under the nomination and declaration made by his father during his lifetime before a congregation.
It has also been alleged that his succession as Sajjadanashin-cum-Mutawalli has been recognised by the congregation of his followers and on the third day ceremony after the death of his father the followers had in token of accepting him as Sajjadanashin offered 'Nazars'. Later on he had also been recognised as Saiiadanashin-cum-Mutawalli by the Collector. Jaipur and Assistant Commissioner, Devasthan in connection with the payment of annuity in lieu of the resumption of Jagir which had been granted by the former Jaipur State and that, even the Secretary of the Board of Waqfs in his letters exhibits 8 and 9 had admitted nun to be the Sajjadanashin-cum-Mutawalli of the Dargah. The case of the appellant further is that on the death of his father although he had be-come the Sajjadanashin-cum-Mutawalli of the Dargah in question the respondent No. 1. the Board of Muslim Waqfs taking note of the complaint by one Ghulam Mohiuddin appointed receiver of the Waqf in question on 9-11-1964 and on the application of some Muslims of Jaipur has illegally appointed a committee for the management of the Dargah. This order is dated 8th November, 1969. Under this order the respondent No. 1, the Board of Waqfs, has constituted a committee of five persons including the appellant and has restricted the power of the appellant in the management of the properties in such a manner that he has been reduced to a nonentity.
It will be profitable here to give the gist of the order passed by the Board of Waqfs which is contained in Exhibit 28. Under Ex. 28 the Board of Waqfs appointed a committee of five persons and the appellant was made the Chairman of the Committee. One Mohd. alias Johri was appointed as Secretary of the committee while Abdul K. Thekadar of Ajmeri Darwaza was appointed as Treasurer of the committee. The decision of the committee was to be by majority and the same would be binding upon the appellant. The secretary was to realise the rents and was to maintain the account and to deposit the money so realised in a bank in the account to be opened in the name of the committee. The drawing authority under the said order was conferred upon the appellant and the treasurer jointly. The appellant was to have a separate meter for the water and the electricity to be consumed sit his place of residence. This order was communicated to the appellant in pursuance of a detailed order passed by the Board on 8th November, 1969 which is Ex. A/10 on the record. The appellant challenged the appointment of the aforesaid committee in the writ petition inter alia on the ground that there was no vacancy in the office of the Mutawalli and the Board had no jurisdiction to pass the impugned order Ex. 28 which was tantamount to a substantial interference in the appellant's right to manage the property. He also prayed for quashing the order and removing the receiver who had been appointed on the application by one Ghulam Mohiuddin and also for restoration of the Property to him for management.
3. In answer to the writ petition the respondent No. 1 asserted that the office of the Mutawalli had fallen vacant on the death of Fazle Haq Shah. The stand taken by the Board is that the appellant was not the Sajjadanashin-cum-Mutawalli of the aforesaid Dargah and that the succession to the office of the Sajjjadanashin-cum-Mutawalli was not governed by the rule of primogeniture. The Board contended that the Sajjada-nashin could be nominated by the last Incumbent with the consent of the followers and Murids of Miskeen Shah and the Board had power to appoint a committee under Section 15. Section 42 and Section 43 of the Muslim Waqfs Act, 1954 (hereinafter called the 'Act'). The Board also denied the nomination of the appellant as Sajjadanashin-cum-Mutawalli by his father. It also denied that the appellant had ever taken the charge of the Muta-walliship and had come to be in possession of the property- The Board nowhere denied that the office of the Sajjada-nashin and Mutawalli combined in one and the same person. The further plea of the Board is that the points raised in the writ petition involved the investigation into complicated questions of fact which could not be gone into in this writ petition and the same was therefore, not maintainable.
4. The learned single Judge after taking notice of the various documents brought on the file recorded a finding that according to the practice and usage of this shrine the appellant after the death of his father Fazle Haq Shah who was the last incumbent of the shrine, succeeded to the office and that there was no vacancy in the office of Mutawalli and the question of taking proceedings by the Board for appointment of the Mutawalli in the office did not at all arise. The learned single Judge while construing the order Ex. 28 came to the conclusion that the appellant was only recognised as Mutawalli and there was no question of his appointment under that order and that the committee was only appointed to assist in the management of the Dargah property. The learned Judge however declined to interfere with the order in his extraordinary jurisdiction under Article 226 on the ground that the Waqfs property vested in the Board and the Board had jurisdiction to constitute a committee and the order was sustain-able in view of the provisions of Section 15 and Section 43 (2) of the Act and therefore was within its jurisdiction. The learned Single Judge further held that in the prayer clause the appellant challenged only a part of the impugned, order namely constitution of the committee only and not the one with regard to the Mutawalli-ship of the appellant and that the impugned order being unseverable could not be quashed without there being a prayer for quashing the whole of the order. Consequently the learned Single Judge dismissed the writ petition of the appellant. It is in these circumstances that the appellant has come before this Court by way of special appeal
5. Mr. Agarwal the learned counsel for the appellant in the course of his argument took up the stand that institution in question was a Khankah and the Sajjadanashin of such an institution is not only a spiritual preceptor but also a procurator of that institution and has ex-elusive right of management. He contended that the Sajjadanashin of a Khankah enjoyed a unique position and his status is just analogous to a 'Mahant' of a Math- In him both the offices of Mutawalli and Sajjadanashin are combined and so to say he is a spiritual superior with exclusive right of management of the properties of the institution, He has a right to discharge spiritual functions and that of the management as well. His attack was that the learned Judge having categorically held that there was no vacancy in the office of the Mutawalli. the Board had no jurisdiction to foist a committee on the appellant so as to reduce him to a nonentity without any effectual say in the management of the Dargah properties. He further submitted that the order in question even if it be taken to be an administrative order was not within the competence of the respondent No. 1. as the respondent No. 1 could only act within the framework of the Act which did not confer upon the respondent any power of interference in the discharge of the functions of the appellant as the Sajjada-nashin-cum-Mutawalli. In other words the argument of the learned counsel in this regard is that the order passed by the respondent No. 1 suffers from a patent lack of jurisdiction and as such the same deserves to be quashed. He further submitted that the learned Single Judge had fallen into a grave error when he held that the impugned order not having been challenged in its entirety, no writ could be granted in favour of the appellant It was submitted that the impugned order related to the recognition of the appellant as Mutawalli which office the appellant was already holding under the custom and usage and under the nomination made by the last incumbent of the institution and therefore no occasion could arise for asking for any prayer in that behalf.
6. Mr. Hasti Mal on behalf of the respondent in the first instance urged that the learned Single Judge was in error in holding the appellant to be the Sajjadanashin-cum-Mutawalli of the in-stitution in question. He submitted that the documents upon which the learned Judge had come to a finding in favour of the appellant are not at all decisive of the fact in question and in view of the categorical denial by the Board the matter required investigation of facts which could not be done in the writ petition. He therefore urged that the learned Judge could not record such a finding without any sufficient materials on the record. His next contention was that nowhere the appellant had pleaded that the institution in question was a Khankah and a new case could not be allowed to be made in this appeal. He therefore urged that the appeal deserves to be rejected on that score alone. His further contention was that the management of the Waqfs property under the Act vested in the Board under Section 15 of the Act and that the Board was within its competence to constitute a committee for the management of the Waqfs property as the office of the Mutawalli had fallen vacant. It was also contended by him that the learned single Judge was right in holding that the impugned order was an administrative order and the same could not be interfered with under Article 226 of the Constitution as it was well within the jurisdiction of the Board, in view of the powers conferred upon it by the Act,
7. The principal argument of Mr, Agarwal is that the institution in question has the attributes of a Khankah and the appellant being its Sajjadanashin enjoys a unique position. He combines the office of both Mutawalli and a spiritual preceptor. The learned single Judge has held him to be a Sajjadanashin on the basis of the documents on the record and therefore there was no question of appointing the committee to interfere in his right of exclusive management. In order to -examine this argument it will be in the fitness of things to examine the concept of Khankah as known to Muslim law. In this regard Mr. Agarwal referred to us Piran v. Abdool Karim, (1892) ILR 19 Cal 203; Mohiuddin v. Sayiduddin. (1893) ILR 20 Cal 810; Vidya Varuthi Tirtha Swamigal v. Baluswami Ayyar, AIR 1922 PC 123 and Khwaja Mohummad Hamid v. Mian Mahamud. AIR 1922 PC 384. We have perused these authorities. All these authorities relate to the position of a Sajjadanashin of a Khankah where Sajjadanashin has been held as a central figure in the institution having powers both of Mutawalli and Sajjada-nashin. The authorities also lay down the mode of succession to the Khankah on the death of the last incumbent It has been laid down that after the death of the last incumbent the spiritual line extends to the number of Sajjadanashins, who are generally members of his family chosen by him and according to the direction given by him and failing that are chosen by his followers and murids. In a word, his position has been held to be just analogous to that of a Mahant of a Hindu Math who exercises both religious and secular powers of management over the institution. So far as this position of law is concerned it is well settled by the authorities cited above.
8. It. however, remains to be seen whether the institution in question has got all the attributes of a Khankah. It is obvious from the record that nowhere in the pleadings in the writ petition, the institution in question has been alleged to be a Khankah, Mr. Agarwal, however, submitted that from the facts narrated in the writ petition and also from the fact that the appellant has been held to be a Sajjadanashin all the attributes of Khankah could be easily spelt out from his pleadings and there was no reason to hold it otherwise. Mr. Hasti Mal on behalf of the respondents has contested this position and denied emphatically that the institution in question is a Khankah. Mr. Agarwal relied upon the observations of Ameer All J. in his celebrated judgment reported in (1893) ILR 20 Cal 810 wherein the history of evolution of a Khankah in general has been given as follows:--
'These Khankahs exist in all parts of India and, so far as can be gathered from the works relating to them, have come into existence under the following circumstances:-- A dervish or a Sufi of particular sanctity has settled in some locality; so long as he has not attained sufficient importance, his place of abode is called a takia or astana according to his position in public estimation, His pious life and teachings attract public notice, disciples gather round him. and a place is constructed for their lodgment, end the humble takia grows into a Khankah. After his death his grave became a shrine and an object of pilgrimage, not only for his disciples, but for people of distant parts both Hindu and Mahomedans, The process of development indicated here is observable in the very khankah which forms the subject of dispute in the present case'.
Relying upon these observations Mr. Agarwal submitted that the institution in question is undoubtedly a Dargah which fact has not even been denied by the respondents. It cannot be gainsaid that the institution in question is a Dargah but all Dargahs are not Khankahs. a; Khankah is a Muslim monastery or a religious institution where Dervishes and other seekers after the truth congregate for religious instructions and devotional exercises. It is a Muslim religious in-stitution for instructions of people in the faith of Islam. We have therefore to see what is the real nature and character of this property and its origin and how and by whom it came to be founded. In this connection it will be useful to quote the observations of Tyabji, J. made in Mahomed Oosman v. Essak Salemahomed Vaniara. ILR (19381 Bom 184. Tyabii, J. while discussing the concept of 'Dargah' and 'khankah' has said:
'In any case, the dargah in its real significance of a tomb, is an institution in a very different sense from the sense in which mosques or khanqahs are spoken of as institutions. Speaking of a dargah as an institution where merely the tomb is referred to, is apt to cause an oversight of the fact that the dargah strictly consists of the tomb alone. It is only a reverential mode of speaking of the tomb of a holy person. And a tomb in the nature of things be such a nucleus of human activity as a mosque or a khanqah' a library or a madarsa'.
Discussing the stages of evolution of Institution like Khankah and mosq ue Tyabii, J. in the same judgment has observed as follows:--
'The stage of progress until, on the one hand, the tomb attains the status of a dargah or shrine, and until, on the other hand, institutions like khanqahs or mosques spring up in its vicinity, are reflected in the administration of the group of institutions considered as a whole. The person exercising authority, the methods of exercising authority and the objects of exercising it, all depend on conditions existing at the time when the institution requiring administration springs into being, or (as in the case of the tomb) attains by slow growth its full stature as a shrine. The events may start at one end or at the other: (1) the first to come into existence may be the tomb, or (2) before there is a shrine, a khanqah or mosque may have been founded. If the latter is the case fas contemplated by Lord Cave) then the upkeep of the tomb and the use to which the offerings are put are naturally attended to from the start by the muta-wallis or Sajjadanashins (whatever their appellation) charged with the administration of the pre-existing mosque or Khanqah. But if the first to come into existence is the tomb, and the mosque or khanqah arises subsequently, then there may be a preliminary stage -- a stage during which there is a bare tomb not yet recognised as a saints' tomb, not yet venerated by a considerable body of the public as a shrine or as having the status of an object fit for endowment. There is no propriety over a tomb; Muhammadan law does not recognise it as an object of ownership. There can therefore be no one in the position of a mutawalli or trustee while there is merely a tomb not recognised and venerated as the tomb of a saint. Then, later on the position becomes altered. A real institution like a mosque is founded. The second stage may then be considered to be reached. A mutawalli is now necessary. By this time the tomb has, ex concessis. attained celebrity and importance: having done so, it has become a shrine, and is now a quasi-institution. One material effect of this second stage in the history of the tomb may be that the offerings are no more negligible. They require to be administered, i. e after providing for the upkeep of the tomb a surplus is left which must be put to uses that are charitable in accordance with Islamic notions'.
It will appear from the observations extracted above that there is no hard and fast rule in the mode of evolution of the springing up of the institution of a Khankah and it is difficult to take it for granted on the authority of (1893) ILR 20 Cal 810 that there is a uniform and rigid rule of development of Khankahs. Their Lordships have said in general terms how the Khankahs came to spring up in India but each case will have to be judged on its own facts with its own history and background so as to find out whether the institution in question could be treated as a Khankah. This, is a question of fact which has been seriously disputed by the learned counsel for the respondents and we feel unable to decide it in a satisfactory manner without evi-dence being examined in this behalf.
9. Mr. Agarwal strenuously urged that the fact that the appellant has been admitted by the Waqfs Secretary as a Sajjadanashin and in view of the finding of the learned Single Judge the institution in question should be taken to be a Khankah. We appreciate the anxiety of Mr. Agarwal for the institution in ques-tion being treated as a Khankah because there is a great difference between the powers and status of a Sajjadanashin of a Khankah and those of other Muslim religious institutions. The Sajiadanashin of a Khankah obviously enjoys the unique position being a spiritual preceptor and a Mutawalli. In a word, he is a spiritual superior in whom reside all powers of the institution as its head but the same could not be said for Sajjadanashins of other institutions. Reference in this con-nection may be made to Zooleka Bibi v. Syed Zynul Abedin. (1904) 6 Bom LR 1058 where Tyabji. J. after reviewing the authorities in Piran v. Abdool Karim has observed as follows:--
'I refer to this case also to show the difference between a Mutawalli and a Sajjadanashin. The former is a secular officer, while the latter is a spiritual teacher ..................
The difference between a Sajjada-nashin and Mutawalli is distinctly pointed out in these cases. A man may be a Sajjadanashin without being a Mutawalli end a Mutawalli without being a Sajjadanashin. These are two different offices although they may be combined some times in one individual'.
It will thus appear that all Saijada-nashins are not necessarily the Muta-wallis of the properties of the institutions as the offices in such institutions are distinct and different. Therefore merely because the appellant has been held to be the Sajjadanashin by the learned Single Judge cannot be taken to be sufficient to hold the appellant to be a Sajiadanashin of a Khankah in whom the offices both of Sajjadanashin and Mutawallis are rolled into one. In order to hold the appellant a Sajjadanashin enjoying unique position as that of a Khankah investigation into facts as to the nature and real character of the institution is absolutely necessary so as to determine whether the institution in question fulfils all the requirements of a Khankah. This can be only done after investigation into facts by examining evidence if any. Such complicated questions of fact buried in the origin, development and character of an institution and its offices, in our opinion, cannot be satisfactorily decided in the exercise of the extraordinary jurisdiction of this Court.
The learned Single Judge was conscious of this fact but he has approached the matter on the assumption that the offices of Sajjadanashin and Mutawalli being combined in one since the foundation of the institution there could be no occasion for a vacancy in the office of Mutawalli. As already pointed out the office of Sajjadanashin and that of Mutawalli are of different nature -- one being temporal while the other being the secular. The office of the Mutawalli is not heritable in absence of instruments of the Waqf with a direction to the contrary. Even if it is assumed that the appellant is the Sajjadanashin of a Dargah -- that fact alone cannot necessarily lead to the conclusion that he is the Sajjadanashin of a Khankah.
10. It was contended that at any rate Fade Haq Shah had executed a document in the year 1949 nominating the appellant as the Mutawalli. It was further contended that the custom and usage also support the appellant's contention. The learned counsel for the respondents has denied the existence of such a document and so also the fact of nomination under the document of 1949 as well as the rule of inheritance in regard to devolution of the office of Mutawalli. It is a settled proposition of law that the Mutawalli could appoint his successor while on his death bed, in absence of a direction in the instrument of Waqf to the contrary. The nomination by him while he is in health is not warranted under the Muslim Law. Admittedly Fazle Haq Shah died in the year 1964 and he could not be taken to be on the death bed when the instrument of nomination of a Mutawalli is alleged to have been made by him in favour of the appellant without any proof as to his condition of his health. The rules of primogeniture and succession by inheritance have been seriously contested and these facts also involve investigation into the complicated questions of fact which, in our opinion, cannot be made in the proceeding under Article 226 of the Constitution. The rule of primogeniture has also been denied by the respondents On the ground that Zahiruddin Shah was not the son of Hazrat Miskeen Shah. This also involves a controversy relating to the facts. Again, the appellant has alleged that the institution in question is a 'Waqf al aulad' whereas the respondents have asserted that it is a waqf 'Alal-llah.'
11. All the controversies listed above which are relevant for determination of the points in issue, in our opinion, involve investigation into complicated facts and recording of evidence and such investigation could not be undertaken in writ proceedings. In this connection we may refer to Mahant Moti Das v. S. P. Sahi, AIR 1959 SC 942. In that case there was a controversy as to whether the trusts in that case were public or private. Their Lordships re-fused to investigate such question which required investigation of complicated facts and recording of evidence.
12. In view of what we have said It is very difficult for us to come to a conclusion as to the falling of vacancy in the office of Mutawalli without getting the matter investigated into in details which is not possible under Article 226 of the Constitution. Likewise it is equally difficult for us to hold that the institu-tion in question is a Khankah and that the appellant enjoys a unique status of that of a Sajjadanashin of a Khankah. The determination of these questions re-quire investigation into complicated questions of fact and recording of evidence. We, therefore, are of the opinion that the appeal should be dismissed on this ground alone.
13. We may now briefly deal with another question raised before us that the Board had no jurisdiction to interfere with the management of the appellant by an administrative order. Mr. Hasti Mal says that the administrative order could not be challenged by way of a writ as it has been passed by a statutory body. If the statutory body travels beyond its jurisdiction, then, in our opinion, this Court could interfere even if it was an administrative order which suffered from a patent lack of jurisdiction, but all these points need not be decided in view of what we have said above and we do not commit ourselves to any positive finding. Likewise we need not express any opinion on the point that the writ is not maintainable for want of a prayer for quashing the impugned order in its entirety.
14. In view of the above discussions we are unable to grant any relief to the appellant and dismiss the appeal though on different grounds.
15. In the result we dismiss the appeal, but looking to the circumstances of the case we leave the parties to bear their own costs.