Allowed

Asthan-E-Quadria Private Trust v. Karnataka State Board of Auqaf

Karnataka HC23 Nov 2023WP/6478/2016

Case brief

AI extract

What is this about?

The dispute concerned recall of a determination that a religious institution was a private trust, not a Wakf. The court allowed the petition and set aside the recall and consequential managing-committee order, leaving the respondents free to challenge the original determination before the Tribunal.

What did the court decide?

Recall order and consequential order constituting a managing committee set aside; respondents permitted to challenge the original determination before the Tribunal.

Asthan-E-Quadria Private Trust Vs Karnataka State Board… — Property and Title | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23^RD DAY OF NOVEMBER, 2023 BEFORE

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THE HON’BLE MR. JUSTICE R.NATARAJ WRIT PETITION NO.6478 OF 2016 (GM-WAKF)

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BETWEEN:

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ASTHAN-E-QUADRIA PRIVATE TRUST NO.31, JAYAMAHAL ROAD, DARGA COMPOUND, BANGALORE-560 006 A REGD., PVT. TRUST, HAVING ITS OFFICE AT THE ABOVE MENTIONED ADDRESS AND REP. BY THE TRUSTEES.

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MR. ARIFF HUSSAIN @ BABU AGED ABOUT 58 YEARS

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MR. TAJUDDIN ABDUL RAZACK AGED ABOUT 55 YEARS

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MR. MOHAMMED OMAR @ SALEEM AGED ABOUT 48 YEARS

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MR. MOHAMMED ALI @ MOHSIN AGED ABOUT 48 YEARS

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MR. ROSHAN MUSTHAFA AGED ABOUT 31 YEARS

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1 TO 5 ARE THE SONS OF LATE KHALEEFA ABDUL KHADER, R/AT NO.31, JAYAMAHAL ROAD, DARGA COMPOUND, BANGALORE

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...PETITIONERS

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(BY SMT. SHIRIN MERCHANT DESIGNATED SENIOR COUNSEL FOR SRI. L.S. VENKATKRISHNA, ADVOCATE FOR PETITIONER NO.1 AND 3;

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SRI. JAYA KUMAR S. PATIL, SENIOR COUNSEL FOR SRI. A. MOHANMED TAHIR, ADVOCATE FOR PETITIONER NOS.2 AND 5; SRI. S.K. PRABHAKARA SHETTY, ADVOCATE FOR PETITIONER NO.4)

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AND:

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KARNATAKA STATE BOARD OF AUQAF REPTD., BY THE CHIEF EXECUTIVE OFFICER, CUNNINGHAM ROAD, BANGALORE-560 052.

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DR. MOHAMMED USUF AGED ABOUT 55 YEARS CHAIRMAN, KARNATAKA STATE BOARD OF WAKFS, CUNNINGHAM ROAD, BANGALORE-560 052.

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…RESPONDENTS

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(BY SMT. S.R.ANURADHA, SENIOR COUNSEL FOR SMT.SWATHI ASHOK, ADVOCATE FOR RESPONDENT NOS.1 AND 2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDERS / PROCEEDINGS ISSUED BY THE FIRST RESPONDENT DATED 18.01.2016 RESOLVING THAT THE ORDERS PASSED BY THE EX-CHIEF EXECUTIVE OFFICER, BEARING NO.KTW/CMC/46/BNU/14-15 DATED 08.07.2015 AS NULL AND VOID UNDER ANNEXURE-A AS ABSOLUTELY ILLEGAL, VOID AND CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE WITH SUCH ORDERS INCLUDING THE AWARD OF COSTS OF THIS WRIT PETITION AND ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER ON 24.08.2023 AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The petitioners have challenged an order dated 18.01.2016 passed by the respondent No.1 recalling and canceling an order dated 08.07.2015 passed by its erstwhile Chief Executive Officer.

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The petitioners contend that they are the legal representatives of Mr.Khaleefa Abdul Khader, who had his permanent place of abode at No.542, Jayamahal Road, Bengaluru. They claimed that a Sufi saint, named Peer Hyder Shah Quadri Bhidewal was an acknowledged spiritual leader, who was performing "Urus and Fathia" for those, who were buried at the Dargah named, Asthana-EQuadria. The saint improved the Dargah, which became famous and known as “Asthana-E-Quadria” and people belonging to all religions used to visit the Dargah and offer prayers. The petitioners contend that the saint had also acquired several properties and the rents and profits accrued there from were used for the benefit of Asthana-EQuadria. The petitioners contend that the saint owned and

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possessed the property over which, Asthana-E-Quadria was established. Consequently, he executed a deed of Trust dated 20.04.1943 comprised of himself and five other persons, as trustees for the management of Asthana-E-Quadria. With the passage of time, the saint was constrained to dissolve the Trust on the ground that the persons, who were appointed as trustees never took charge of the Trust properties and never discharged the responsibilities bestowed upon them. Consequently, the deed of Trust was cancelled on 14.05.1953. The petitioners contend that it is clear from the document dated 14.05.1953 that the saint was the sole custodian and manager of the Trust and had included Mr.Khaleefa Abdul Khader as a trustee to act under his control. After the death of the saint, Mr. Khaleefa Abdul Khader took over the administration and management of the Trust and was performing all ceremonies and was maintaining the accounts and was in possession of the properties of Asthana-E-Quadria. After the death of Mr.Khaleefa Abdul Khader, the petitioners being his sons, became the

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representatives in Trust and successors of the Trust created by the saint and were carrying on the religious activities of the Trust. They claimed that the saint was a spiritual leader of the Cutchi Memon community and he was buried in the premises of the Dargah. Therefore, they contend that the Trust created by the saint was a private Trust and not a public Trust. When things stood thus, certain vested interests, who wanted to dislodge the petitioners, attempted to gain control by filing various proceedings under Section 92 of the Code of Civil Procedure, 1908, claiming that Asthana-E-Quadria is a public Trust. The Principal City Civil Judge, Bengaluru in Misc. No.581/1996 dismissed the petition vide order dated 07.06.1997 and held that Asthana-E-Quadria is a religious institution and a private Trust. Aggrieved by the said order, MFA No.376/1997 was filed before this Court, which too, was dismissed vide judgment dated 21.08.2003. In the meanwhile, the respondent No.1, issued a notification dated 17.07.1997 appointing an Administrator to manage the affairs of the Wakf, which

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was challenged by Asthana-E-Quadria and its trustees in W.P.No.20938/1997. This Court in terms of the order dated 08.02.2000, quashed the appointment of the Administrator. This Court held that the observation made by the Principal City Civil Judge, Bengaluru in Misc.No.581/1996 that Asthana-E-Quadria is a private Trust, is binding on the respondent No.1. Despite this, the Chief Executive Officer of the respondent No.1 issued a notice dated 12.02.2015 claiming that Asthana-E-Quadria was a Wakf and accused that the properties of Wakf were not managed properly and thus, called upon the petitioners to show cause, as to why action should not be initiated against them within 15 days. The petitioners replied to the notice, stating that Asthana-E-Quadria is a private Trust, and therefore, no proceedings under the Wakf Act, 1995 could be initiated against it. The Chief Executive Officer of the respondent No.1 heard the petitioners and passed an order dated 08.07.2015 declaring that Asthana-E-Quadria is a private Trust.

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The respondent No.2 having realized that the

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Chief Executive Officer of the respondent No.1 had wrongfully declared that Asthana-E-Quadria was a private Trust, approached the respondent No.1 to review his order. The incumbent officer of the respondent No.1, without issuing notice to the petitioners held that the order dated 08.07.2015 passed by the Chief Executive Officer was illegal and void ab initio on the ground that the Asthana-E-Quadria was notified as a Wakf under Section 5 of the Wakf Act, 1954 and therefore, the only course open

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to the management of the Wakf was to challenge the notification before the Tribunal under Section 6 of the Wakf Act, within one year from the date of publication. It therefore, held that since no proceedings was initiated to challenge the notification, no declaration could have been issued by the Chief Executive Officer vide his order dated 08.07.2015 that the institution was a private trust and therefore, the order dated 08.07.2015 was null and void

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ab initio and no right accrued to the Muthawallis. Consequently, the respondent No.1 passed the impugned

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order recalling and canceling the earlier order dated 08.07.2015.

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Being aggrieved by the above, the petitioners

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have filed this petition.

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The learned Senior counsel for the petitioners submitted that in view of the earlier declaration passed by the Court of competent jurisdiction that Asthana-E-Quadria is a private Trust, even the notification under Section 5 of the Wakf Act, 1954 is inconsequential and therefore, the respondent No.1 could not have reviewed the order dated 08.07.2015. He submits that the respondent No.1 by recalling the order dated 08.07.2015 has virtually nullified the order passed by the Principal City Civil Court, Bengaluru and the order passed by this Court and therefore, prays that the impugned order be set aside. He also contends that the respondent No.1 has no power of review under Wakf Act, 1954 or Wakf Act, 1995 and therefore, the impugned order by which, the order dated 08.07.2015 was recalled and cancelled is one issued

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without authority of law and is therefore, liable to be set aside. He further contended that no opportunity was granted to the petitioners before passing the impugned order and therefore, on this ground too, the impugned order is liable to be set aside. In this regard, he relied upon the following judgments:

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i) Karnataka Board of Wakf vs. Government of India and others [(2004) 10 SCC 779] in support of the contention that the Wakf Board can exercise its rights only over existing Wakf properties. Therefore, all subsequent deeds based on the presumption that the suit property is a Wakf property are of no consequence in law.

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ii) Maulvi Abdul Rahman Siyai vs. Sardar Maqbool Hasan and others [AIR 2009 Allahabad 62] - when Wakf is not created by a deed, it shall be governed by the customs and usage of the Wakf and therefore, contends that the activities in Asthana–E-Quadria has to be performed as has been followed over the years.

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iii) Kusheshwar Prasad Singh vs. State of Bihar and others [(2007) 11 SCC 447]

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that an authority is bound to pass an order and any delay in doing so cannot prejudice or adversely affect the party.

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iv) Tamil Nadu Wakf Board vs. Larabsha

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Darga, Panruti [(2007) 13 SCC 416] - when succession to the office of Muthawalli was hereditary and income from the property was spent for pious, religious and charitable purposes and a portion also spent for management of the family and Fatihah done on every Thursday and lighting the tomb daily made it a Wakf-Alal-Aulad or private Wakf.

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vi)

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T. Kaliamurthi and another vs. Five Gori Thaikkal Wakf and others [(2008) 9 SCC 306] - limitation merely bars a remedy and does not extinguish a right.

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Surendra Singh and others vs. Kisturi and others [AIR 2009 (NOC) 195 (RAJ.)] in support of the contention that in exercise of administrative power, no decree or judicial order could be set aside.

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Per contra, learned Senior counsel

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representing the respondent Nos.1 and 2 submitted that

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Asthana-E-Quadria is notified as a Wakf under Section 5(2) of the Wakf Act, 1995, pursuant to an enquiry under Section 4 of the Wakf Act, 1995. The Survey Commissioner, who was appointed by the State Government had issued notice to the Muthawalli of the Dargah on 06.04.1963, which was served on him on 19.04.1963. He sought time to file a reply vide his letter dated 23.04.1963 and an enquiry was conducted whether there was any dedication at all and whether the properties were dedicated as Wakf. The Muthawalli produced the Wakf deeds showing that the properties notified were dedicated as Wakf and for the good of the community. The Muthawalli at no point of time, disputed that the Dargah and its properties was a Wakf. Based on this enquiry, the Survey Commissioner sent a report that the notified properties were Wakf properties, consequent to which, a notification dated 07.06.1965 was issued notifying the petitioners’ Trust and its properties as a Wakf. She contended that the Wakf Board is constituted with the powers and duties to supervise and maintain and control

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Wakf properties in the State of Karnataka. It is in discharge of such duties, that the Board repeatedly called upon the petitioners to submit accounts and to pay the contributions and adhere to the rules and regulations under the Wakf Act, 1995. She contended that the petitioners had leased out the properties, without taking permission from the Board which is mandatory. In response to a notice, to produce the lease deed, the petitioners replied that it was a private Trust and not amenable to the jurisdiction of the Wakf Board. It was under those circumstances, that the Board passed an order dated 17.07.1997 taking control of the Wakf - Asthana-EQuadria and its movable and immovable properties, under its direct management under Section 65 of the Wakf Act, 1995. This order was passed on the ground that the Muthawalli died on 06.05.1994 and he did not nominate or appoint any successor to manage the Wakf. This order was questioned by the petitioners in W.P.No.20839/1997. This

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Court framed a question, whether the Board was competent under the Act to interfere with the affairs of

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Asthana-E-Quadria, which the petitioners claimed to be a private Trust. The respondents claimed that this question was not answered by this Court, but the Court was of the opinion that the trustees of Asthana-E-Quadria being the persons interested in the Wakf, were entitled to be heard before an order was passed taking the Wakf under the direct management. In those circumstances, this Court set aside the order dated 17.07.1997 and reserved liberty to the Board to pass appropriate orders. Thereafter, the Board issued notice to the petitioners to show cause as to how the property was leased without the sanction of the Board.

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The petitioners replied that though it was registered as a Wakf in the year 1965, but the Wakf had to be administered as per the deed of Wakf and the Muthawalli was empowered to nominate his successor. They therefore, contended that the management of the Wakf had to be done as per the deed of Wakf and that it is

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not amenable to provisions of the Wakf Act, as it is a private Trust.

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The learned Senior Counsel for the

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respondents contended that the order of the Chief Executive Officer dated 08.07.2015 is without jurisdiction, as the Chief Executive Officer has no power to decide, whether a particular Wakf is a private Wakf or a public Wakf. She contended that a notification under Section 5(2) of the Wakf Act, 1995 is final until it is modified by the Tribunal. She contended that it is only for the Tribunal to decide whether a particular property belonged to the Wakf or not. She contended that there was no need to give any opportunity to the petitioners before recalling the order dated 08.07.2015, as it was a futile exercise, as even after hearing the petitioners, the conclusion would be that the order dated 08.07.2015 was without jurisdiction. She contended that under Section 21 of the General Clauses Act, 1897, an authority, who has the power to pass an order, also has the power to withdraw it. She contends

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that the Chief Executive Officer of the Board is appointed by the State and therefore, he is under the administrative control of the Board and cannot act contrary to the interest of the Board. She contended that under Section 23(3) and Section 32 of Wakf Act, 1995, the Board has powers to resolve and set right the actions of its executives that are contrary to the interest of the Wakf and provisions of the Act. She contended that the Board was not a party in Misc. No.581/1996 and MFA No.376/1997 and hence, the orders passed therein would not bind the respondent No.1. She contended that the order dated 08.07.2015 cannot be construed as an order passed by the Board and the petitioners not having challenged the notification under Section 6 of the Wakf Act, 1995 cannot now claim that the property belongs to a private Trust. The learned Senior counsel relied upon the judgment in the case of S.L.Kapoor Vs. Jaganmohan [1980 (4) SCC 379] in support of her contention. She relied upon the following judgments in support of her contentions:-

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i) Sayyed Ali and others vs. Andhra Pradesh Wakf Board, Hyderabad and others [(1998) 2 SCC 642] that once a Wakf is notified, it continues to be so unless the notification is set aside by the competent Tribunal, as a notification published in the Official Gazette is final and conclusive.

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ii) Board of Muslim Wakfs, Rajasthan vs. Radha Kishan and others [(1979) 2 SCC 468] that under Section 6(1) of the Wakf Act, a person interested is only the Muthawalli of a Wakf and a person interested in a Wakf as defined under Section 3 and no other person. Therefore, the question of the petitioners seeking for an adjudication that the property belongs to a Trust and not a Wakf cannot be urged before this Court or the Tribunal.

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iii) Karnataka State Board of Wakfs vs. Hazrath Attulla Shah Dhargah [ILR 1992 KAR 586] on the question of limitation to challenge the notification under Section 6(1).

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iv)

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Karnataka State Board of Wakfs vs. State of Karnataka [ILR 1996 KAR 3566] - once a Wakf and its properties are notified in the Gazette, the same is conclusive and claim

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against it lies by a suit before the Tribunal not otherwise.

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v) Rukmawwa vs. Karnataka State Board of Wakfs - W.A.Nos.5504-5505/1998 dated 25.08.1999 - when the dispute is regarding a Wakf property, Wakf Board is a necessary party.

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vi) Kiran Singh and others vs. Chaman Paswan and others [AIR 1954 SC 340] that an order passed without jurisdiction is non-est and unenforceable.

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vii) Madanuri Sri Rama Chanda Murthy vs. Syed Jalal [(2017) 13 SCC 174] that once a list is prepared and published in the Gazette by following the prescribed procedure, there is no scope to get the matter reopened by generating some sorts of doubt about the Survey Commissioner’s report.

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viii) S.L.Kapoor vs. Jagmohan and others [(1980) 4 SCC 379] for the contention that even after an opportunity of hearing is provided, it would result the same decision and therefore, no opportunity be provided to the petitioners.

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I have considered the submissions of learned Senior counsel for the petitioners and learned Senior counsel for the respondents.

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The question whether an institution is a WAKF dedicated to God or is a private Trust has often arisen before the Courts for consideration. The Hon’ble Supreme Court in the case of Nawab Zain Yar Jung (since deceased) and others vs. Director of Endowments and another [AIR 1963 SC 985] succinctly explained the distinction between a Wakf recognized amongst Muslims and the religious endowments recognized by the Hindu law and Public Charitable Trust as contemplated under the English law and held,

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“13. Having noticed this broad distinction between the wakf and the secular trust of a public and religious character, it is necessary to add that under Muslim law, there is no prohibition against the creation of a trust of the latter kind. Usually, followers of Islam would naturally prefer to dedicate their property to the Almighty and create a wakf in the conventional Mahommedan sense. But that is not to say that the follower of Islam is precluded from

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creating a public, religious or charitable trust which does not conform to the conventional notion of a wakf and which purports to create a public religious charity in a non-religious secular sense. This position is not in dispute. Therefore the main question which calls for our decision is: Is the trust executed by the Nizam a wakf to which the provisions of the Act apply or is it a public charitable trust falling outside the said Act; and the decision of this question would obviously depend upon the construction of the document by which the trust is created and it is to that problem that we will now turn.”

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11. The Hon’ble Supreme Court answered the issue as follows:-

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17. On the other hand there are certain other broad features of the transaction which are wholly inconsistent with the notions of a wakf. The outstanding impression which the document creates is that the settler wanted to create a trust for charitable purposes and objects in a secular and comprehensive sense, unfettered and unrestricted by the religious considerations which govern the creation of wakf. Even the clause on which Mr. Pathak relies for the purpose of showing the intention to dedicate the property to Almighty makes it perfectly clear that amongst the objects for which the trust was created were included other charitable purposes without

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distinction of religion, caste or creed, and that obviously transgresses the limits prescribed by the requirements of a valid wakf. The same comprehensive character of the charitable purpose which the settler has in mind is equally emphatically brought out by cl. 3 (c) (ii). Clause 3 provides that the Trustees shall hold and stand possessed of the Trust Fund upon the Trusts specified in sub-cls. (a) to (c). Sub-cl. (c) (ii) refers to the maintenance, upkeep and support of public religious institutions, and otherwise for the advancement of religion, particularly in the State of Hyderabad; and it adds that the benefit of the present clause shall not be restricted to any particular religion. A public charitable purpose which is not limited by considerations pertaining to one religion or another could not have been more eloquently expressed. The dominant intention of the settler in creating the trust was to help public charity in the best sense of the words, "public charity, not confined to any caste, religion or creed, and it is in that sense that the religious institutions which are within the purview of the trust are all religious institutions not confined to any particular religion. Then look at cl. 3 (c) (v). It provides that the trust property can be utilized for the advancement of any other object of general public utility, particularly in the State of Hyderabad. It is true that the settler wanted the objects of general public utility in Hyderabad to be preferred and in that sense the document discloses a desire to prefer the objects

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of general public utility situated within the territorial limits of Hyderabad. But it is plain that it was farthest from the mind of the settler to impose a limitation that the objects of general public utility should be confined to those recognized as such by Muslim law. It is thus clear that the outstanding feature of the trust disclosed by these provisions is plainly inconsistent with the concept of a wakf and that itself would rule out the view that the document creates a wakf and not a comprehensive public charitable, trust.

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18. It is true that a large number of provisions contained in the document are consistent with the view that the document creates a wakf as much as they are consistent with the view that it creates a public charitable trust as distinguished from wakf. It is however, patent that there are some clauses which are inconsistent with the first view, whereas with the latter view all the clauses are consistent. In other words, if the construction for which the Board contends is accepted, some clauses would be defeated, whereas if the construction for which the respondents contend is upheld, all the clauses in the document become effective. In our opinion, it is an elementary rule of construction that if two constructions are reasonably possible, the one which gives effect to all the clauses of the document must be preferred to that which defeats some of its clauses. It is not in dispute that if the document is

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held to be a wakf, the directions in the document that charitable purposes should be selected without distinction of religion, caste or creed, would obviously be defeated and that undoubtedly supports the conclusion that the document evidences a public charitable trust and not a wakf.

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19. Besides, the clause on which the argument of dedication is based cannot be divorced from the provision contained in the said clause which provides for charitable purposes without distinction of religion, caste or creed and so, the intention of the settler was to help not only charities which would fall within the definition of a wakf but also charities which would be outside the definition; and so, the whole argument of dedication breaks down because the idea of dedication is not Confined to purposes which are recognized as charitable by the definition of the Act but extends far beyond its narrow limits. In this connection, it may be relevant to recall that it would be competent to the Trustees to devote a substantial part of the income, and may be even the whole of the income, to a purpose which may be outside the limits of wakf by virtue of their powers under clause 3(c) of the document, and that plainly suggests that the vision of the settler was not confined to the narrow limits prescribed by the conditions as to a valid wakf.

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20. It is in this context that the other provisions about vesting must be considered. The document calls the author of the trust as the "Settlor” and the appellants as the "Trustees" and that introduces the concept of the Trust as contemplated by English Law. Clause I of the document specifically assigns and transfers unto the appellants all those shares and securities described in the Schedule which are the subject matter of the trust. This clause, in terms, transfers the shares and securities to the Trustees and so, the legal title in respect of the subject- matter of the trust vests in the Trustees. The argument that the provision for vesting had to be made because the property in question is movable property, does not carry conviction because the whole scheme of the document appears to be to vest the title in the Trustees and gives them absolute discretion to use the said property and its income for any of the charitable purposes specified in the document. Thus, the vesting provision has not been adopted as a means to carry out the intention to dedicate the property to the Almighty but it constitutes the essential basis of the transaction and that is to transfer the legal title of the trust property to the Trustees. In that sense, clause 14 which confers on the Trustees absolute discretion to deal with the property in any manner they like, as welt as clauses 18 and 24 which clothe them with authority to employ servants in their uncontrolled

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discretion and to appoint a Committee for management of the Trust, become more easily intelligible. In this connection, we may also notice the fact that the appointment of non-Muslims as Trustees which is prohibited by the Act, is an indication that the Settlor did not regard the trust as falling within the said statutory prohibition; likewise, the scheme of management of the trust which the Trustees are given liberty to adopt in administering the trust, is completely free from the regulations based on Muslim law which the relevant sections of the Act have prescribed. These several features of the trust support the conclusion that the trust is not a wakf and does not fall within the provisions of the Act. We have carefully considered all the relevant provisions of the document and we are satisfied that on a fair and reasonable construction, the document must be held to have created a trust for public charitable purposes, some of which are outside the limits of the wakf and so, the conclusion is inescapable that the trust created is not a wakf but a secular comprehensive public charitable trust. In that view of the matter, S. 3(1) of the Act cannot apply to the trust and its registration under S. 28 is invalid and inoperative.

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A similar issue arose in the case of Radhakanta Deb and another vs. The Commissioner

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of Hindu Religious Endowments, Orissa [AIR 1981

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SC 798] , where, the Hon’ble Supreme Court held,

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“Similarly, even the Mahomedan law recognizes the existence of a private trust which is also of a charitable nature and which is generally called Waqfallal-Aulad, where the ultimate benefit is reserved to God but the property vests in the beneficiaries and the income from the property is used for the maintenance and support of the family of the founder and his descendants. In case the family becomes extinct then the Waqf becomes a public waqf, the property vesting, in God. A public Waqf under the Mahomedan law is called Waqf-fi-sabi-lil-lah.”

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A similar question also arose in the case of Maharashtra State Board of Wakfs vs. Yusuf Bhai Chawala and others [(2012) 6 SCC 328] , where the Hon’ble Supreme Court held as follows:-

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“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 organizations such as hospitals, shelter homes,

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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. At times, 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.”

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In the case on hand, Asthana-E-Quadria, Bengaluru, was constituted by Peer Syed Hyder Shah Quadri Peer Bhidwala in terms of a deed of Trust dated 20.04.1943 for the purpose of control and management of the Dargah and was to comprise of five trustees. The founder Trustee claimed that his mother lived on the land bearing Sy.No.6, Vyalikaval village, Bengaluru (Jayamahal), where he erected a canopy over the grave of Peer Syed Shah Nawaz Quadri. He claimed that his wife and mother died in March, 1935 and September, 1935 respectively and were buried there and mausoleums were

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erected over their graves in or about 1937-38. He also constructed a house in the year 1938 on the extreme northern corner of the land and also made many improvements over it. The composite property was a Dargah named, Asthana-E-Quadria, Bengaluru. He claimed that the “Urus” and annual “Fatiha” of Peer Syed Shah Nawaz Quadri was celebrated in the Asthana apart from ceremonies at the grave of his mother and wife. He claimed all the affairs of the Dargah were controlled by him and that he was residing in the Asthana. He claimed that since he was aged, he desired to form a Board of Trustees to control and manage the affairs of the Asthana-EQuadria, its properties and funds. He claimed that he held the Cutchi Memon community in India in high esteem as they were looking upon the Peers of Bhidwala as their spiritual leader and thus desired to constitute a Trust involving the members of the Cutchi Memon Jamat. The Trust was thus constituted for the control and management of Asthana-E-Quadria and its properties and funds and the administration was to vest in a Board of

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Trustees comprised of five trustees. The prime purpose of the Trust was to perform the Urus and Fatiha of Peer Syed Shah Nawaz as well as the wife and mother of the founder trustee. However, for reasons mentioned in the cancellation of the Trust, the Trust stood cancelled and the properties stood reverted to the founder. Therefore, it appears that there was no dedication of the institution, in the strict sense to the almighty and the purpose of creating the Trust could not be construed as pious or religious amongst Mohammedans. Since the Trust sought to involve persons belonging to the Cutchi Memon family, who held the saint in high reverence, it could at the most be treated as a private Trust or Wakf-Al-Aulad. No doubt a survey in respect of Asthana-E-Quadria was conducted and thereafter, it was notified as a wakf. However, a mere survey of the Wakfs in the State of Karnataka and the publication of a notification that the institution is a Wakf, was itself not conclusive as the Board was bound to examine the report forwarded to it under sub-section (1) of Section 5 of the Wakf Act, 1995. While doing so, the

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Board was also bound to exercise power under Section 32(2)(n) of the Wakf Act, 1995 in the manner provided under Section 40 of the Wakf Act, 1995. For the sake of immediate reference Section 32(2)(n) of the Wakf Act, 1995 is extracted below:

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"32(2). Without prejudice to the generality of the foregoing power, the functions of the Board shall be-

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(n). to investigate and determine the nature and extent of [wakf] and [wakf] property and to cause, whenever necessary, a survey of such [wakf] property."

¶122

Similarly Section 40 of the Wakf Act, 1995 is extracted below:

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" 40. Decision if a property is a [wakf] property.- (1) The Board may itself collect information regarding any property which it has reason to believe to be [wakf] property and if any question arises whether a particular property is [wakf] property or not or whether a [wakf] is a Sunni [wakf] or a Shia

¶124

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[wakf] it may, after making such inquiry as it may deem fit, decide the question.

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(2) The decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the Tribunal, be final.

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(3) Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the Societies Registration Act, 1860 (21 of 1860) or under any other Act, is [wakf] property, the Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is [wakf] property, call upon the trust or society, as the case may, be, either to register such property under this Act as [wakf] property or show cause why such property should not be so registered:

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Provided that in all such cases, notice of the action proposed to be taken under this sub-section shall be given to the authority by whom the trust or society had been registered.

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(4) The Board shall, after duly considering such cause as may be shown

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in pursuance of notice issued under subsection (3), pass such orders as it may think fit and the order so made by the Board, shall be final, unless it is revoked or modified by a Tribunal."

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This Court cannot ignore the finding recorded by the District Court in Misc.No.581/1996, filed by the Cutchi Memon community under Section 92 of CPC to frame a scheme of management that Asthana-E-Quadria is a private Trust and therefore, not amenable to the jurisdiction of the Court under Section 92 of CPC. This Judgment was upheld by this Court in MFA No.376/1997. Further, a notification dated 17.07.1997 issued by the respondents appointing an Administrator was challenged before this Court in W.P.No.20938/1997. This Court while disposing off the writ petition framed the following question;-

¶133

“Whether the Board is competent under the Wakf Act to interfere with the affairs of the Wakf Asthana-E-Quadria, which petitioners claim as a private Wakf/Trust?”.

¶134

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While answering the above question, this Court noted the order passed by the District Court in Misc.No.581/1996, where it was held,

¶136

“Before his death, it was his desire to constitute a Board of Trustees for better management of the Trust and also to appoint the successor to manage the properties and in accordance with the said desire of him, this document has been executed by his sons constituting the Board of Trustees. The terms of this document also go to show that the said Trust properties are to be managed to conduct the ‘urus’ and for performing the ‘fateha’ of the persons buried in the said land etc.,”

¶137

18. This Court thus concluded and held,

¶138

"The other question that requires to be considered is whether the Board could have exercised its power to meddle with the affairs of Wakf Asthan-e-Khadria by issuing the impugned notification. The Board claims that the Wakf is a notified Wakf notified as such by a notification dated 07.06.1965 and that notification has become final. However, petitioners assert that

¶139

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inspite of such notification the property comprised in the trust deed dated 14.05.1953 never got vested with the Wakf Board and the property continued to be in the name of late Khalifa Abdul Khader who was the sole trustee and beneficiary under the trust deed. These are disputed facts and the question involves investigation of complicated facts and recording of evidence."

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This Court allowed the writ petition and set aside the order appointing an Administrator and also reserved liberty to the Board to pass appropriate orders keeping in view the observations made in the course of the order.

¶142

It appears that following this order, a notice dated 12.02.2015 was issued calling upon the Managing Committee of Ashtana-E-Quadria to submit the statutory reports for the period from 1995-96 to 2013-14. The Managing Committee replied to the said notice again contending inter alia that it was not a Trust amenable to the jurisdiction of Board. It was in that context, perhaps, the Chief Executive Officer felt it appropriate to enquire

¶143

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into the nature and extent of the Wakf as provided under Section 32(2)(n) of the Wakf Act, 1995 by issuing a notice under Section 25(1)(a), (b), (c) of the Wakf Act, 1995 and in accordance with Section 40 of the Wakf Act, 1995. After an enquiry, it was held that the institution in question was not a Wakf.

¶145

If the Board was aggrieved by the order dated 08.07.2015 passed by the respondent No.1, it was bound to challenge it before the Tribunal in the manner known to law and certainly not by getting the order reviewed through another officer, who was the incumbent of the post of the Chief Executive Officer, that too without notifying the petitioners and without hearing them.

¶146

The power to review cannot be exercised unless there is an enabling provision under the Act and in the absence of any such provision, such power of review cannot be exercised. The Hon’ble Supreme Court in the

¶147

¶148

case of Kalabharati Advertising vs. Hemant Vimalnath

¶149

Narichania [(2010) 9 SCC 437] held as follows:-

¶150

“.... 12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. (Vide Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and Harbhajan Singh v. Karam Singh [AIR 1965 SC 1457])

¶151

13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghj [(1971) 3 SCC 844], Chandra Bhan Singh v. Latafat Ullah Khan [(1979) 1 SCC 321], Kuntesh Gupta v. Hindu Kanya Mahavidyalaya [(1987) 4 SCC 525], State of Orissa v. Commr. of Land Records & Settlement [(1998) 7 SCC 162] and Sunita Jain v. Pawan Kumar Jain [(2008) 2 SCC 705], this Court held that the power to review is not an inherent power It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of

¶152

¶153

review in the absence of any statutory provision for the same is a nullity, being without jurisdiction.”

¶154

It is therefore, well settled that the power of

¶155

review cannot be exercised unless the statute recognizes such power. The reliance placed by the learned Senior counsel for the respondents on Section 21 of the General Clauses Act, 1897 does not apply to judicial or quasijudicial proceedings.

¶156

In that view of the matter, the writ petition is allowed . The impugned order dated 18.01.2016 passed by the respondent No.1 and the consequent order dated 09.02.2016 constituting a Managing Committee for the management of Asthana-E-Quadria are set aside. It is however, open for the respondents to assail the order dated 08.07.2015 passed by the Chief Executive Officer before the Tribunal in accordance with law as provided under Section 40 of the Wakf Act, 1995.

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Any observations made in this order is for the

¶159

limited purpose of disposing of this petition and shall not influence the Tribunal in any manner to decide any appeal that may be filed by any of the parties.

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Sd/JUDGE

¶161

HJ/PMR

Asthan-E-Quadria Private Trust v. Karnataka State Board of Auqaf

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Asthan-E-Quadria Private Trust v. Karnataka State Board of Auqaf

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