Asfaq-Ul-Haq Khan v. The Maharashtra State Board Of Wakfs, Aurangabad

IN THE HIGH COURT OF JUDICATURE AT MUMBAI

CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.924 OF 2014 Asfaq-ul-haq Khan ...

Applicant Vs.

The Maharashtra State Board of Wakfs, Aurangabad through its Chief Excute Officer Panchaki, Aurangabad and another ...

Respondents Mr. Sagheer A. Khan a/w. Sharique Nachan i/b. Judicare Law Associates for Applicant.

Mr. Rahimtulla M. Momin for Respondent No.1.

Mr. S. S. Kazi i/b. Mr. S. K. Pise for Respondent No.2. CORAM : R. G. KETKAR, J.

Reserved on : APRIL 05, 2016 Pronounced on : MAY 03, 2016 ORDER :

Heard Mr. Khan, learned Counsel for applicant, Mr. Momin, learned Counsel for respondent No.1 and Mr. Kazi, learned Counsel for respondent No.2 at length.

2.

By this Application under Section 83(9) of the Waqf Act, 1995 (for short 'Act'), the applicant has challenged the judgment and order dated 25.02.2014 passed by the learned Presiding Officer, Maharashtra Waqf Tribunal, Aurangabad in Waqf Application No.101 of 2012. By that order, the Tribunal dismissed the application filed by the applicant under Section 83(2) of the Act challenging the order dated 02.05.2012 passed by the Chief Executive Officer of respondent No.1, Maharashtra State Board of Waqfs, Aurangabad (for short 'Board') thereby registering "Hazrat Sayed Ahamad Badri Jangli Peer Dargah and other Saints Dargah Trust" (for short 'former Trust') under Section 43 of the Act as a Waqf and accordingly issued registration certificate on 02.05.2012. The 1/15

relevant and material facts giving rise to filing of the present Application, briefly stated, are as under:

3.

Earlier, the former Trust was registered as a Public Trust under the provisions of the Bombay Public Trusts Act, 1950 (for short "B.P.T. Act") bearing registration No.B-934 (Mumbai). The affairs of the former Trust were managed and administered as per the provisions of a Scheme settled by the City Civil Court, Mumbai. For administrative convenience, the office of the Charity Commissioner registered the Public Trusts created by Muslims in 'B' category. The former Trust was managed and administered by a Scheme dated 11.08.1977 settled by the City Civil Court, Mumbai in Suit No.4302 of 1965. The Scheme was replaced by order dated 04.12.1964 passed by the City Civil Court in S.C. Suit No.4302 of 1965. Pursuant to the commencement of the Act, the Government of Maharashtra issued a notification dated 04.01.

2002 incorporating and constituting the Board in the State of Maharashtra. On 24.07.2003, the Charity Commissioner issued a circular directing its officers not to deal with the affairs of Muslim Trusts. The Board issued notifications dated 13.11.2003 and 05.05.2005 whereunder it declared the former Trust as a Waqf. It is the case of the applicant that the Board had unilaterally issued these notifications without following the principles of natural justice as also the provisions of the Act. 4.

Being aggrieved by the actions of the State Government for constituting the Board, the publication of the lists of Waqfs by the Board and the circular dated 24.07.2003 issued by the Charity Commissioner not to supervise over Muslim Trusts, various trustees of Muslim Trusts filed Petitions in this Court challenging these actions. The said Petitions were admitted and various interim orders were passed. Among others, the Charity Commissioner was restrained from transferring the records 2/15

of the Muslim Trusts to the Board, more particularly in Writ Petitions No.2126 of 2003 and 758 of 2004.

5.

Respondent No.2 herein and other trustees of the former Trust instituted Writ Petition No.2243 of 2005 on the Original Side of this Court, inter alia, challenging notification dated 04.01.2002 issued by the Revenue and Forest Department as also for directing the respondent No.2 to forbear from usurping / discharging / performing any power / obligation / function of the Board for the State of Maharashtra under the Act; for declaration that the circular No.307 of 2003 dated 24.07.2003 is null and void, among other reliefs. Writ Petition No.2906 of 2004, Writ Petition No.899 of 2011 and Writ Petition (L) No.357 of 2011 were treated as lead Petitions and were allowed on 21.09.2011, which is reported in 2012 (1) Bom.C.R. 736 (Shaikh Yusuf Bhai Chawala Vs. State of Maharashtra). This Court set aside (i) Notification dated 04.01.

2002 and (ii) lists of Waqfs prepared and published by the Board on 13.11.2003. Survey Officers appointed by Notification dated 20.10.2010 were directed to take into consideration representations, if any, made by the petitioners and other similarly situated persons connected with Muslim Waqfs, among other directions. This Court held that until a new Board or Boards are incorporated under the Act and they are constituted in accordance with the provisions of the Act and the Board/s start functioning in accordance with the provisions of the Act, the provisions of the B.P.T. Act will apply to such Muslim Public Trusts, which are registered under the B.P.T. Act.

6.

Respondent No.1 has challenged the order dated 21.09.2011 passed by this Court by filing S.L.P. before the Apex Court and the same is pending. It is the case of the applicant that in the meantime, respondent No.2 was removed as a Trustee of the former Trust. Change 3/15

Report No.1859 of 2011 has been filed in the office of the Charity Commissioner to bring on record removal of the respondent No.2 and the same is pending. Though respondent No.2 was removed as a trustee, on or about 01.03.2012, he filed application before the Board for registration of the former Trust. Respondent No.1-Board without holding any enquiry and / or issuing any notice registered a former Trust as a Waqf under Section 43 of the Act on 02.05.2012. It is the case of the applicant that respondent No.2 continued his illegal activities and filed frivolous legal proceedings against the trustees of the former Trust to pressurize them. Aggrieved by the decision of the respondent No.1 Board registering the former Trust as a Waqf, applicant instituted proceedings under Section 83(2) of the Act. The Tribunal has dismissed the application on 25.02.2014. It is against this order, applicant has instituted this C.R.A. under Section 83(9) of the Act. 7.

In support of this Application, Mr. Khan strenuously contended that the order dated 02.05.2012 passed by the Board is illegal, null and void. The said order was passed without issuing any notice and without holding any enquiry, which is in gross violation of principles of natural justice. Respondent No.1 also failed to appreciate that the application for registration was not maintainable under Section 43 of the Act as the registration thereunder is by operation of law and not on any application. Respondent No.1 also failed to appreciate that Section 43 applies only to those institutions, which were registered as Waqfs before commencement of the Act and that too under any law for the time being in force. While registering the former Trust as a Public Trust under the provisions of the B.P.T. Act, no enquiry was made or that no finding was recorded to the effect that the former Trust is a Waqf. Respondent No.1 failed to appreciate that the former Trust was never registered as a Waqf under the B.P.T. Act. Mr. Khan relied upon the decision of the Division 4/15

Bench of this Court in the case of Shaikh Yusuf Bhai Chawala (supra) as also decision of the Apex Court in the case of Maharashtra State Board of Wakfs Vs. Yusuf Bhai Chawala, (2012) 6 SCC 328. By that order, the Apex Court modified the High Court's interim order. In paragraph 38, the Apex Court noted the vast difference between Muslim Waqfs and the Trusts created by Muslims. It is further held that the dividing line between public trusts and wakfs may be thin, but the main factor always is that while wakf properties vest in God Almighty, the trust properties do not vest in God and the trustees in terms of deed of trust are entitled to deal with the same for the benefit of the trust and its beneficiaries.

8.

Mr. Khan invited my attention to the - i) grounds raised in this application as also ii) copy of the order dated 15.10.1958 passed by the Deputy Charity Commissioner, Greater Bombay Region, Bombay in Applications No.19-18 of 1956 and No.448 of 1958. He submitted that the 7 Durgahs situate at Worli on plot of land admeasuring about 4612 square yards on City survey No.45 was registered as a Public Trust; iii) Directory of Public Trusts for each District published by the authorities under the Act for general information. The said Directory contains the following sections:

A - Hindus (including Jains, Buddhists, Sikhs and other Hindus). B - Muslims.

C - Parsis.

D - Others.

E - Cosmopolitan.

F- Societies registered under the Societies Registration Act, 1860. 9.

Mr. Khan further submitted that respondent No.2 herein and other trustees of the former Trust instituted Writ Petition No.2243 of 2005 on 5/15

the Original Side of this Court, inter alia, challenging notification dated 04.01.2002 issued by the Revenue and Forest Department as also for directing the respondent No.2 to forbear from usurping / discharging / performing any power / obligation / function of the Board for the State of Maharashtra under the Act; for declaration that the circular No.307 of 2003 dated 24.07.2003 is null and void, among other reliefs. 10.

In paragraph 6 of that Petition, it was asserted that Muslims in India can either create a Trust for religious and / or charitable purposes as per the provisions of the Common Law or create Waqfs as per the provisions of Muslim Personal Law applicable to Waqfs. Muslims in India have the option to create the Trust as per the provisions of Common Law or a Waqf as per the provisions of Muslim Personal Law. It was further asserted that exercising that option, many Muslims have created Trusts as per the provisions of Common Law while Muslims have also created Waqfs as per the Muslim Personal Law. By Circular dated 24.07.2003, Charity Commissioner, Maharashtra State, Mumbai instructed the Authorities under the B.P.T.

Act that until further orders, the matters of Public Trusts which are registered as Waqfs under Section 43 of the Act should not be proceeded under the B.P.T. Act. Thus, respondent No.2 having challenged the said Circular cannot turn around and contend that the former Trust is registered as a Waqf under the B.P.T. Act. For all these reasons, he submitted that the impugned order deserves to be set aside.

11.

On the other hand, Mr. Kazi supported the impugned order. He submitted that there are three modes of registration of Waqfs under the Act. The first mode prescribed is under Sections 4 and 5 of the Act. After carrying out preliminary survey under Section 4, the list is to be published under Section 5 thereof subject to disputes under Section 6 to 6/15

be resolved by the Tribunal. The second mode is by making application for registration by the Mutawalli under Section 36 of the Act and the third mode is Section 43. Under Section 43 of the Act, the Waqf, which is already registered under any law for the time being in force, has to be treated as registered under the Act due to deeming fiction. He, therefore, submitted that there is no question of starting fresh enquiry or giving hearing to the parties before registration of a Waqf under the Act. In support of this submission, he relied upon decision in the case of Baba Bangal Dargah & Masjid Wakf Committee Ahmednagar and six others Vs. Sayad Hamid Abdul Latif and two others, Civil Revision Application No.4 of 2009 decided by this Court (Coram: T. V. Nalawade, J.) on 21.09.2015 and in particular paragraph 28 thereof. 12.

Mr. Kazi invited my attention to the Scheme settled on 04.12.1984 for the administration and management of the former Trust in pursuance of the consent terms filed in S.C. Suit No.4302 of 1965 and in particular, Clauses 1, 3, 5 and 9 to contend that the former Trust was registered as a Waqf under the B.P.T. Act. He submitted that as per clause 3, the Waqf properties belong to and rest in the Almighty. The object of the former Trust among others was to maintain the Mosque and the Hazrat Sayed Ahmed Badvi Jangli Peer Dargah and other Dargahs situate on C.S. No.

45, Worli Division, Mumbai in good condition and to repair the same whenever necessary; to maintain and repair the Musafirkhana (Rest House) for the use of visitors of the Masjid and Dargahs; to maintain and keep proper management of Masjid and Dargahs; to make arrangement of Fateha and Darood in the Durgahs. As per clause 9, each trustee shall have right to perform religious rites in the Masjid and Dargahs. He, therefore, submitted that the Scheme settled in respect of former Trust conclusively establishes that the former Trust was registered as a Waqf under the B.P.T. Act.

decision Zuari Cement Limited Vs. E.S.I. Corporation, (2015) 7 SCC 690, and in particular Head Note (B) thereof to contend that respondent No.2 cannot confer jurisdiction on the authorities under the B.P.T. Act. 13.

He also relied upon the Apex Court decision in Maharashtra State Board of Wakfs (supra) and submitted that in view of paragraph 38, as the Waqf properties are dedicated to Almighty God, as per the Scheme, the former Trust is registered as a Waqf. It is also indicative of Directory of Public Trusts published by the authorities under the Act for general information. The former Trust was registered bearing registration No.B-934 (Mumbai). For all these reasons, he submitted that no case is made out for invocation of powers under Section 115 of C.P.C.

14.

I have considered the rival submissions advanced by the learned Counsel appearing for the parties. I have also perused the material on record. The moot question is whether the former Trust was registered as a Waqf under the provisions of the Act. Section 3(r) of the Act defines the expression "Waqf" to mean the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. The said definition is inclusive. As noted earlier, the former Trust was registered under the B.P.T. Act and was having registration No.B-934 (Mumbai). Directory of Public Trusts for each District published by the authorities under the Act for general information contains sections A to F. As far as section B is concerned, it is pertaining to Muslims.

15.

Clause 3 of the Scheme reads thus,

3. Properties of the Trust:

The Wakf properties belong to and rest in the Almighty and consist of the immovable and movable properties, mentioned in 8/15

Schedule hereto annexed and such other properties, which consist of the said Wakf but which may through error, oversight or inadvertence have remained to be mentioned in the Schedule. All these properties, funds and assets and new accretions thereto acquisitions and donations and all offerings either in cash or kind received hereafter shall be called "the trust properties"." 16.

Clause 5 deals with the object of the Trust and reads thus, "5. Objects of the Trust shall be as follows: a. To maintain the Mosque and the Hazrat Sayed Ahmed Badvi Jangli Peer Dargah and other Dargahs, situated on C.S. No.45, Worli Division, Bombay , in good condition and to repair the same whenever necessary.

b. To make arrangement for annual urs of the Hazrat Sayed Ahmed Badvi & Other saints and to make arrangement for lights and illumination in the Masjid and Dargahs.

c. To arrange for entertainment such as Quawali etc. at the time of the annual urs and bear its expenses.

d. To maintain and repair the Musafirkhana (Rest House) for the use of the visitors of the said Masjid and Dargahs; e. To maintain and to keep proper management and upkeep of the said Masjid and Dargahs;

f. To make arrangement of Fateha and Darood in the said Dargahs.

g. If there are surplus funds, the same be utilized for educational purposes."

17.

Clause 9 deals with rights of the trustees and provides that each trustee shall have a right to perform religious rites in the Masjid and Dargahs. Clause 12 lays down that the administration and management of the Trust properties is vested in the surviving trustee or trustees. Schedule of the Scheme enumerates immovable properties and reads thus, SCHEDULE IMMOVABLE PROPERTIES Plot bearing C.S.No.45 of Worli Division, admeasuring 4683 square yards having thereon the following structures:

1. Seven Dargahs, Mosque and Musafir khana.

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2. Ward No.G-144-Dargah with Musafir khana.

3. Ward No.G-145-Masjid and land.

4. Ward No.G-145-two filed sheds.

5. Ward No.G-145-eleven C.I. sheds.

6. Ward No.G-145-three C.I. sheds.

18.

Perusal of the Scheme clearly and unequivocally establishes that the former Trust was registered as a Waqf and that the Waqf properties belong to and rest in the Almighty.

19.

In the case of Maharashtra State Board of Wakfs (supra), in paragraph 36, the Apex Court noted the direction given by the Bombay High Court that till such time the Board was properly constituted, the Charity Commissioner would continue to administer the Muslim Wakf properties, including English trust properties, which had already been registered as trust properties with the Charity Commissioner under the B.P.T. Act. As a corollary, the list of Wakfs published by the truncated Board of Wakfs was also set aside by the Bombay High Court. The Apex Court posed a question namely, whether the Bombay High Court had the jurisdiction to make such orders in the writ jurisdiction and particularly to vest the management of all wakf properties in the Charity Commissioner in view of the provisions of Section 112 (3) of the Act.

In paragraph 38, it was observed thus, "38. There is a vast difference between Muslim wakfs and trusts created by Muslims. The basic difference is that wakf properties are dedicated to God and the "wakif" or dedicator does not retain any title over the wakf properties. As far as trusts are concerned, the properties are not vested in God. Some of the objects of such trusts are for running charitable organisations such as hospitals, shelter homes, orphanages and charitable dispensaries, which acts, though recognised as pious, do not divest the author of the trust from the title of the properties in the trust, unless he relinquishes such title in favour of the trust or the trustees.

in terms of deed of trust are entitled to deal with the same for the benefit of the trust and its beneficiaries."

20.

The Apex Court dealt with difference between Muslim Waqfs and Trusts created by Muslims. It was held that the basic difference is that waqf properties are dedicated to God and wakif or dedicator does not retain any title over the waqf properties. As far as trusts are concerned, the properties are not vested in God. At times, the dividing line between public trusts and waqfs may be thin, but the main factor always is that while waqf properties vest in God Almighty, the trust properties do not vest in God and the trustees in terms of deed of trust are entitled to deal with the same for the benefit of the trust and its beneficiaries. 21.

In the present case, clause 3 of the Scheme clearly lays down that the Waqf properties belong to and rest in Almighty. The objects of the former Trust are, among others, to maintain Mosque and Dargahs. In view thereof, I am clearly of the opinion that the former Trust was registered as a Waqf under the B.P.T. Act. The scheme of the Act shows that there are three modes prescribed for registration of a Waqf. The first mode prescribed is under Sections 4 and 5 of the Act. After carrying out preliminary survey under Section 4, the list is to be published under Section 5 thereof subject to disputes under Section 6 to be resolved by the Tribunal. The second mode is by making application for registration by the Mutawalli under Section 36 of the Act and the third mode is Section 43. Under Section 43 of the Act, the Waqf, which is already registered under any law for the time being in force, has to be treated as registered under the Act due to deeming fiction. 22.

By Section 43, the Legislature has created a legal fiction. The Legislature is quite competent to create a legal fiction, in other words, to enact a deeming provision for the purpose of assuming existence of a 11/15

fact which does not really exist provided a declaration of nonexistent facts as existing does not offend the constitution. In interpreting the provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is crated, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. The purpose of Section 43 is obvious, namely, a Waqf which is already registered under any law for the time being in force, is treated as if the same is registered under the Act holding fresh enquiry.

After ascertaining the purpose, "full effect must be given to the statutory fiction and it should be carried to its logical conclusion and to that end "it would be proper and even necessary to assume all those facts on which alone the fiction can operate." In an oft quoted passage, Lord Asquith stated: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative stage of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." 23.

Mr. Khan submitted that without holding any enquiry, C.E.O. of the Board registered the former Trust as a Waqf under the Act. No notice was issued to the applicant and no hearing was given. In short, he submitted that the registration was made in gross violation of principles of natural justice. I do not find any merit in this submission. Section 43 of the Act reads thus, "43. Auqafs registered before the commencement of this Act deemed to be registered.- Notwithstanding anything contained in this Chapter, where any waqf has been registered before the commencement of this Act, under any law for the time being in force, it shall not be necessary to register the waqf under the 12/15

provisions of this Act and any such registration made before such commencement shall be deemed to be a registration made under this Act."

24.

I have already held that the former Trust was registered as a Waqf. In view of Section 43 of the Act, as the former Trust was registered as a Waqf under the B.P.T. Act, it shall not be necessary to register the Waqf under the provisions of the Act and the registration made before the commencement is deemed to be a registration made under the Act.

25.

In the case of Baba Bangal Dargah & Masjid Wakf Committee (supra), the learned Single Judge of this Court has observed thus, "... Further under section 43 of the Wakf Act the wakf which was already registered under the Bombay Public Trust Act could have been treated as registered due to deemed registration under this provision. Thus there was no question of starting fresh inquiry in the present matter or giving hearing to the present respondent. In view of all these circumstances, the Board simply informed to present trustees that there was no need of such inquiry and the trust was already registered with Wakf Board. ..." 26.

In view thereof, there is no question of holding fresh enquiry or giving any hearing to the parties. In the case of M. L. Sethi Vs. R. P. Kapur, 1972 (2) SCC 427, the Apex Court has considered the scope of Section 115 of C.P.C. It was observed in paragraph 12 as under, "... The jurisdiction of the High Court under Section 115 of the C.P.C. is a limited one. As long ago as 1884, in Rajah Amir Hassan Khan v. Sheo Baksh Singh, [1884] L.R. II I.A. 237, the Privy Council made the following observation on Section 622 of the former Code of Civil Procedure, which was replaced by Section 115 of the Code of 1908 "The question then is, did the judges of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the question which was before them, and they did decide it. Whether they decided rightly or wrongly, they had jurisdiction to decide the case; and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity."

13/15

In Balakrishna Udayar v. Vasudeva Aiyar, AIR 1917 PC 71, the Board observed :

"It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved." In N. S. Venkatagiri Ayyangar v.

Hindu Religious Endowments Board, Madras, AIR 1949 PC 156, the Judicial Committee said that Section 115 empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected he ultimate decision. And if the High Court is satisfied on those three matters, it. has no power to interfere because it differs from the conclusions of the subordinate court on questions of fact or law. This Court in Manindra Land and Building Corporation Ltd. v.

Bhutnath Banerjee and others, AIR 1964 SC 1336 and Vora Abbashhai Alimahomed v. Haji Gulamnabi Haji Safibhai, A.I.R. 1964, S.C. 1341 has held that a distinction must be drawn between the errors committed by sub-ordinate courts in deciding questions of law which have relation to, or are concerned with, questions of jurisdiction of the said Court, and errors of law which have no such relation or connection. In Pandurang Dhoni Chougute v.

"The provisions of Section 115 of the 'Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As clauses (a), (b) and (c) of Section 115 indicate, it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed, to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of 14/15

jurisdiction. It is well settled that a plea of limitation or a plea of rasjudica is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court cannot be corrected by the High Court under Section 115."

27.

After considering the submissions advanced by the learned Counsel appearing for the parties as also after considering the material on record, I do not find that the Tribunal committed any error in passing the impugned order. The Tribunal has correctly borne in mind the principles of law. The facts have been properly appreciated and the decision was arrived at by the Tribunal after taking all material and relevant facts in mind. The applicant was not in a position to demonstrate that the findings recorded by the Tribunal are perverse being based on no evidence or that on the basis of evidence on record, no prudent man could have come to that conclusion. The decision of the Tribunal does not lead to miscarriage of justice. The High Court while exercising the powers under Section 83(9) of the Act cannot substitute its own view in place of that of the Tribunal because it considers to put better view. In the light of the aforesaid discussion, I do not find any merit in this Application. Hence, Application fails and the same is dismissed.

(R. G. KETKAR, J.) Minal Parab 15/15