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Bashir Ahmed Vs. the State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Property
CourtKolkata High Court
Decided On
Case NumberMatter No. 217 of 1974
Reported inAIR1976Cal142
ActsConstitution of India - Articles 13, 19, 19(1), 25, 26 and 27; ;Bengal Wakf Act, 1934; ;Bengal Wakf (Amendment) Act, 1973; ;Mohammedan Law
AppellantBashir Ahmed
RespondentThe State of West Bengal and ors.
DispositionPetition dismissed
Cases ReferredBegum Asma Jafar Imam v. State of Bihar
- .....the bengal wakf act, 1934 in the bengal legislature, it was stated--'muslim law vests the wakf property in god. the crown exercised the rights as representative of god. it is, therefore, the duty of the crown to preserve, protect, maintain, administer and improve the wakf properties.'in this light the various provisions of the bengal wakf act as amended will have to be judged.7. the bengal wakf act, 1934 contains 13 chapters. the first chapter deals with title and commencement and the definitions and the power to exempt certain wakf. chapter ii deals with the constitution of the board and the appointment of the commissioner. chapter iii deals with the function of the commissioner and the board. chapter iv deals with the enrolment of wakfs. chapter v deals with the wakf accounts......

Sabyasachi Mukharji, J.

1. The implementation of the Bengal Wakf Act, 1934, as amended by the Bengal Wakf (Amendment) Act, 1973, is under challenge in this application under Article 226 of the Constitution. In order to appreciate the contentions it will be necessary to refer to certain facts.

2. The petitioner, who claims to be a citizen of India, states that by an Indenture dated the 18th August, 1950, a Wakf was created by the petitioner in respect of certain portions of Lands more fully described in the said Indenture. By the said Wakf deed the grantor, being the petitioner herein, had appointed himself to be the first Trustee or Mutwalli and thereafter made certain provisions for the management of the said Wakf properties. The Wakf deed, further, provided that the grantor would be entitled to appropriate to his own use 25 per cent of the gross income as his remuneration for looking after and managing the properties during his natural life and on his death the said income would go to such poor and indigent members of the grantor's family as might be in indigent circumstances for providing them with food and clothing and for their maintenance. Upon the extinction of the line of the heirs or other descendants of the grantor, it was stipulated that the Mutwali and/or the Trustee for the time being should hold such share for the sole benefit of the adjoining mosque appertaining to Ashan Kareem Wakf Estate. It was also stipulated that if after meeting of the above expenses there would remain any surplus income, then the Mutwali for the time being should spend in the first instance, lest there might happen any deficiency in the income of the adjoining mosque, for the up-keep and the maintenance of the said mosque and thereafter the balance amount for feeding the Mussaffirs, who might happen to visit the said mosque and for other purposes mentioned in the Deed, There was a subsequent supplementary deed of the 1st April, 1970 whereby certain clauses of the original Deed of Indenture were altered and/or modified.

3. The petitioner contends that certain directions issued under the Bengal Wakf Act, as amended by the Bengal Wakf (Amendment) Act, 1973, were without jurisdiction and asks for directions for recalling or quashing of the said notices and requisitions made on the Wakif pursuant to the aforesaid Acts.

4. The challenge is based on several grounds. It was contended, firstly, that the provisions of the Bengal Wakf Act. 1934 as amended by the Bengal Wakf (Amendment) Act, 1973, violated the provisions of the Mohammadan Law of Wakf and was not law in force when the Constitution of India came into force and were repugnant to the provisions of the Mussalman Law of Wakf. Therefore, the same were not valid law. It was, secondly, contended that the provisions of the aforesaid Acts violated Articles 14, 19, 25. 26 and 27 of the Constitution.

5. The first question, therefore, is whether the Bengal Wakf Act, 1934 is violative of the provisions of the Mohammadan Law of Wakf. In order to appreciate this aspect of the matter it is necessary to refer to the theory of the Mohammadan Law of Wakf. It has been stated that historically it had its origin in the direct prescriptions of the Prophet. The prophet, it is stated had directed Omar who had acquired a piece of land in Khabat--

'Tie up the property (asl or corpus) and devote the usufruct to human beings, and it is not to be sold or made the subject of gift or inheritance; devote its produce to your children, your kindred, and the poor in the way of God.' The doctrine of Wakf has thus become interwoven with the entire religious life and social economy of the Mussalmans. The Wakf is, therefore a permanent benefaction for the good of God's creature but the Wakf might bestow the usufruct upon whomsoever he chooses and in whatever manner he likes, but not the corpus, only it must endure for ever. It was, therefore, argued that under Article 13 of the Constitution it was law in force in the territory of India immediately before the commencement of the Constitution and inasmuch as the same was not in conflict with that part of the provisions of the Constitution dealing with the fundamental rights -- it should he deemed to have continued. It was, therefore, argued that in West Bengal so far as the Bengal Wakf Act, 1934, as amended was given effect to. the same would violate the provisions of the Mohammadan Law of Wakf and would be contrary to Article 13 of the Constitution.

6. I am unable to accept this contention. In the Statement of Objects and Peasons introducing the Bengal Wakf Act, 1934 in the Bengal Legislature, it was stated--

'Muslim Law vests the Wakf property in God. The Crown exercised the rights as representative of God. It is, therefore, the duty of the Crown to preserve, protect, maintain, administer and improve the Wakf properties.'

In this light the various provisions of the Bengal Wakf Act as amended will have to be judged.

7. The Bengal Wakf Act, 1934 contains 13 Chapters. The first Chapter deals with title and commencement and the definitions and the power to exempt certain Wakf. Chapter II deals with the constitution of the Board and the appointment of the Commissioner. Chapter III deals with the function of the Commissioner and the Board. Chapter IV deals with the enrolment of Wakfs. Chapter V deals with the Wakf accounts. Chapter VI deals with the statements of Wakfs-Al-Al-Aulad; Chapter VII deals with the transfer of property. Chapter VIII deals with Mutwali. Chapter IX deals with finance. Chapter X deals with judicial proceedings and other chapters deal with other incidental matters. The Bengal Wakf Act, 1934, provides definitions of Wakf as well as Wakf-al-al-aulad- Wakf is defined under Section 6(10) as follows:--

'Wakf means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Islamic law as pious, religious or charitable and includes a wakf by user; and 'Wakif' means any person making such dedication:

Wakf-al-al-aulad is defined by Section 5(11) as follows:'Wakf-al-al-aulad' means a wakf under which not less than seventy-five per cent, of the net available income is for the time being payable to the wakif for himself or any member of his family or descendants.

8. The Bengal Wakf Act. 1934. as I have mentioned before, was amended by the Act of 1973. The important amendment to which my attention was drawn was the amendment in Section 27. Section 27 of the Act, prior to its amendment was as follows;

'Subject to the provisions of this Act and of the rules made by the State Government thereunder--

(1) the functions of the Commissioner shall include--

(a) investigating and determining the nature and extent of wakfs and wakf property, and calling from time to time for accounts, returns and information from mutwallis;

(b) ensuring that the income and other property of wakfs are applied to the objects and for the purposes and for the benefit of any class of persons for which such wakfs were created or intended;

(c) giving directions for the proper administration of wakfs;

(d) keeping in his custody the particulars and all other information relating to Wakfs-al-al-aulad;

(e) generally, doing all such acts as may be necessary for the due control, maintenance and administration of wakfs;

(2) the functions of the Board shall include--

(i) in the absence of any directions by the wakif or any lawful authority, declaring what proportion of the income or other property of the wakf shall be allocated to any particular object of the wakf;

(ii) declaring in what manner any surplus income of a wakf shall be utilised;

(iii) constituting committees, where necessary, for the administration of wakfs;

(iv) exercising and performing such other powers and duties as are expressly conferred or imposed on the Board by or under this Act;

(v) generally, advising the Commissioner in the exercise and the performance of his powers and duties under this Act.'

Section 16 of the Bengal Wakf (Amendment) Act, 1973 provides as follows:

'16. In Section 27 of the said Act,--

(a) in Clause (1)--

(i) in Sub-clause (a), after the words 'Wakfs and wakf property', the words 'causing, whenever necessary, a survey of the wakf property,' shall be inserted;

(ii) in Sub-clause (d). for the words 'Wakfs-al-al-aulad,' the words 'every wakf shall be substituted;

(iii) after Sub-clause (e) the following sub-clause shall be added, namely:

'(f) creation of an Education Fund for the education of poor and meritorious boys and girls professing Islam reading in schools, colleges and vocational institutions recognised by the State Government;' (b) to Clause (2), the following proviso shall be added, namely :--Provided that no declaration under Sub-clause (i) or Sub-clause (ii) shall be made without giving the parties affected an opportunity of being heard.' It was also provided that the provisions of the Bengal Wakf Act included the appointment of the Commissioser with power to investigate the nature and extent of property, to maintain register of Wakf. to examine and audit the early accounts, to insist on creation of education fund as referred to hereinbefore. It is further provided by amending Section 49 that the accounts of the Wakf shall be audited by the Auditors appointed by the State Government where the annual income exceeded Rs. 5.000/- and the costs of the audit will be paid by the Estate concerned.

9. Section 58 has conferred power on the Board of Wakf to remove a Mutwalli and one of the grounds to remove a Mutwalli is that he has migrated from India. The opening words of the new Section 58 are--

'Notwithstanding anything contained in any other law for the time being in force.'

10. Section 59 has been amended by substituting new Sub-section (1) for the old Sub-section (1) providing for contribution of 8% per annum of the net available income out of which 2% to be contributed to the Education Fund created by Section 27 (d) of the Amendment Act, 1973, where the annual income was Rs. 5,000/- or more and in the case of every other Wakf contribution at 6% per annum has to be made. There is a provision for enrolment of all Wakfs which empowers the Commissioner to determine whether a certain property is a Wakf property or not. Section 55 prohibits investment of money by the Mutwallis except in such a manner as might be approved by the Board. Section 57 provides for the imposition of penalties for non-compliance with the provisions of the Act. The first question, therefore, is whether the said provisions of the Bengal Wakf Act, 1934 as amended by the Bengal Wakf (Amendment) Act, 1973 are in violation of the Mohammedan Law of Wakf as those were in existence prior to the coming into operation of the Constitution in 1950. As I see the provisions, these are for the better management and protection of the Wakf properties and State has the right and a duty to do that. I do not find anything contrary to or in conflict with the Mohammedan Law of Wakf as such. The first contention, therefore, in support of this application fails.

11. Violation of Article 14 of the Constitution was alleged in the petition. But in the petition no particulars in sup-port of this ground have been mentioned. So, I hold that no proper ground under Article 14 is involved in this application. So far as the other questions, that is to say. the violation of the provisions of Article 19, Article 25, Articles 26 and 27 are concerned, before I deal with the respective Articles it is necessary to refer to certain decisions to which my attention was drawn for examining the principles which the Court should consider. In the case of Ratilal Panchand v. State of Bombay. : [1954]1SCR1055 some of these aspects came up for consideration. The Supreme Court observed that what Sub-clause (a) of Clause (2) of Article 25 of the Constitution contemplated was not the State regulation of the religious practices as such which were protected unless these ran counter to public health or morality but of activities which were really of an economic, commercial or political character though these were associated with religious practices. With regard to the affairs in the matters of religion, the right of management given to a religious body was a guaranteed fundamental right which no legislation could take away. On the other hand, as regards administration of property which a religious denomination was entitled to own and acquire, it had undoubtly the right to administer such property but only in accordance with law. This meant that the State could regulate the administration of trust properties by means of law validly enacted; but under Article 26(d), it was the religious denomination itself which had been given the right to administer its property in accordance with any law which the State might validly impose. A law, which took away the right of administration altogether from the religious denomination and vested it in any other or secular authority, would amount to violation of the right which was guaranteed by Article 26(d) of the Constitution, The distinction between matters of religion and those of secular administration of religious properties might, at times, appear to be a thin one. But in cases of doubt, the Court should take a common sense view and be actuated by consideration of practical necessity. In the case of Commr. Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt, : [1954]1SCR1005 the Supreme Court discussed the concept of Mahantship and observed 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 had the insignia or characteristics of proprietary right. Besides the right to manage its own affairs in matter of religion, the Supreme Court observed, which was given by Article 26, Clause (b), the next two clauses of Article 23 guaranteed to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination had thus been placed on a different footing from the right to manage its own affairs in matters of religion. The latter was a fundamental right which no Legislature could take away, whereas the former could be regulated by laws which the Legislature could validly impose It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution were not matters of religion to which Clause (b) of Article 26 applied. What constituted the essential part of a religion was primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribed that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that these involved expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character. The language of Articles 25 and 26 was sufficiently clear to enable the Court to determine without the aid of foreign authorities as to what matters came within the purview of religion and what did not. Freedom of religion in the Constitution of India was not confined to religious beliefs only; it extended to religious practices as well subject to the restrictions which the Constitution itself had laid down. Under Article 26(b) a religious denomination or organisation enjoyed complete autonomy in the matter of deciding as to what rites and ceremonies were essential according to the tenets of the religion they hold and no outside authority had any jurisdiction to interefere with their decision in such matters Of course, the scale of expenses to be incurred in connection with these religious observances would be matter of administration of property belonging to the religious denomination and could be controlled by secular authorities in accordance with any law laid down by a competent legislature. The Supreme Court, further, observed that under Article 26(d) it was the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and regulations as it might choose to impose. A law which took away the right of administration from the hands of a religious denomination altogether and vested it in other authority would amount to a violation of the right guaranteed under Clause (d) of Article 26. In the case of Durgah Committee, Ajmer v. Syed Hussain Ali, : [1962]1SCR383 the Supreme Court observed that matter of religion in Article 26(b) included even practices which were regarded by the community as part of its religion. In the case of Saifuddin Saheb v. State of Bombay. : AIR1962SC853 the right of excommunication by Dawoodi Bohra community was a subject of decision by the Supreme Court. Thai question, however, is not quite germane to the present controversy before me. In the case of Digyadarsan Rajendra Ramdasji Varu v. State of Andhra Pradesh, : [1970]1SCR103 . The Andhra Pradesh Charitable Hindu Religious Endowment Act was under challenge under Article 19 and Article 14 of the Constitution. At p. 188 of the report para. 10, to which my attention was drawn, the Supreme Court after discussing the provisions of the Act came to the conclusion that it has nowhere been established that the petitioner has been prohibited or debarred from professing, practising and propagating his religion.

12. The question, therefore, fn this case that would have to be decided is whether under Article 25 of the Constitution the right to freedom of religion as contemplated by Clause (1) of that Article had in any way been interfered with. As I read the provisions of the present Act in question I do not find in any way any interference with the freedom of conscience or the right to freely profess, practise or propagate the religion. Indeed the matters of control which have been vested in the Commissioner or in the Board of Wakf are matters regulating or restricting the economic and the financial activity associated with the religious practice. Article 26 ensures freedom to manage religious affairs. That freedom includes the right to establish and maintain institutions of religion and for charitable purpose and to manage its own affairs in matters of religion, to own and acquire movable and immovable property and administer such property in accordance with law. None of these rights, in my opinion, have been interfered with. The right of administration as mentioned by the Supreme Court must remain with the religious body, but it should be administered in accordance with law. Law regulating the management is permissible under Clause (d) of Article 26 of the Constitution. I am therefore, unable to accept that there has been violation of any provisions of the Article 25 or Article 26 of the Constitution by the provisions of the Bengal Wakf Act, 1934 as amended by the amending Act of 1973. The provisions of the Act to which I have referred to hereinbefore are essentially provisions for the preservation, protection, and improvement of the Wakf properties. These, in my opinion, do not destroy the right of management of the Wakf properties.

13. It was, then contended on behalf of the petitioner that there had been violation of Article 19(1)(f), namely to acquire, hold and dispose of property. Property in its true sense vests in God under the Mohammedan Law of Wakf. That right has not been interfered with. It is the manager's right, that is to say, the Wakif's right to manage the affairs that has been attempted to be regulated by the provisions of the Act. Even if it be held that such a right is property in terms of Clause (1) (f) of Article 19 of the Constitution, the same is subject to Clause (5) of Article 19. Therefore, the said right is subject to reasonable restrictions in the interest of general public or for the pro-Action of the interest of scheduled tribes. It was contended that inasmuch as a Wakf-al-al-aulad was private Wakf, the general public as such were not involved and no question of imposition of reasonable restriction in the interest of general public can arise. General public includes a part of the general public. Therefore, the Muslims and the Mohammedan beneficiaries who are benefited by the better management of Wakf properties are part 1 of the general public. Anything which is in the interest of that part of the general public will, in my opinion, be in the interest of the general public. There-fore, judged from that angle Dhese conditions or duties or liabilities imposed by the Bengal Wakf Act, 1934 if these are considered to be restrictions on the right of management, which again if considered to be a property under Sub-clause (f) of Clause (1) of Article 19. then the same are subject to reasonable restrictions and in the facts and circumstances of the case, are restrictions which are reasonable in my opinion.

14. It was. lastly, contended that inasmuch as by the amendment to Section 27, an education fund had been created exclusively devoted to the education of the boys and girls professing the Islamic faith, the same was violative of Article 27 of the Constitution. Article 27 of the Constitution enjoins that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. Contributions as a kind of fee for better management of the wakf property, in my opinion, cannot be treated as tax as contemplated in Article 27 of the Constitution. Even if it is treated as tax, then Article 27 in my opinion does not prevent the creation of an education fund for the advancement of education for a particular section of people. Making provision for the education of the citizens of India professing a particular religion, does not, in my opinion, amount to maintenance of that religion or the religious denomination. In that view of the matter there is no violation of Article 27 of the Constitution,

15. Before I conclude I must refer to the fact that my attention was drawn to the decision of the Patna High Court in the case of Begum Asma Jafar Imam v. State of Bihar, : AIR1975Pat48 . There in discussing the Bihar Wakf Act of 1954 the Division Bench observed that in a wakf-al-al-aulad if there was specific dedication of any property for any purpose recognised by the Muslim law as religious or charitable, to that extent it would be deemed to be a 'wakf' within the meaning of the 1954 Act and the provisions of that Act would apply to that extent. The properties which had been dedicated for such purposes would be within the supervision and control of the Board. Only such Wakf-al-al-aulad in which simultaneously with the making provisions for family members and descendants some property was dedicated for any purpose which was recognised as pious, religious or charitable by Muslim Law would be covered by the definition of 'waqf'. To that extent only the Board would have jurisdiction. I am not concerned in the present case with this question. In the aforesaid view of the matter, I do not think, it is necessary for me to discuss in greater detail the aforesaid decision of the Patna High Court.

16. In the view that I have taken, this application fails and, accordingly, the Rule is discharged, interim order, if any, is vacated. There will be no order as to costs in this application.

17. Stay for six weeks, as prayed for, is granted.

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