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Judgment
Hari Swarup, J.—This appeal has been filed by the U. P. Sunni Central Board of Waqifs (hereinafter referred as the Waqifs Board) against the judgment of the learned single Judge. The petitioner Smt. Hasan Jehan Begum had filed the writ petition challenging certain acts of the Waqifs Board. That petition was allowed by the learned single Judge partly.
The petitioner is the Mutawalli of the two Waqifs created in 1929 and 1930 and subsequently alleged to be consolidated by another deed in 1943. The waqif purported to create Waqif-Alal-Aulad and also to dedicate the property under the Muslim Law for purposes religious, pious and charitable. Under the Waqifs deed there is a specific amount allotted to those religious, pious and charitable purposes and the remainder has to go to the beneficiaries, that is to say, the descendants of the waqif. Ultimately the entire property has to go for the benefit of religious, pious and charitable purposes provided that no one survives in the line of the descendants of the waqif. The Waqifs are registered with the Waqifs Board u/s 29 of the U. P. Muslims Waqifs Act. 1960 (hereinafter refer red as the Waqifs Act). The Mutawalliya sought permission to sell certain items of immovable property. The permission was granted, but subsequently it was stayed. The Mutawalliya, however, executed the sale-deeds. There was also question of the sale of mango crop of the groves covered by two Waqifs. According to the Mutawalliya, it was being sold for Rs. 5,000 but the Waqifs Board taking the view that the property worth Rs. 20.000 was being sold for a paltry sum of Rupees 5,000 gave the direction that the sale will be made by auction by an Officer of the Board. The Waqifs Board also gave direction to the petitioner to submit accounts of the entire waqif property and also proceeded to take action for the removal of the petitioner from the Mutawalliship of the property and directed her suspension. Aggrieved by these acts of the Waqifs Board, the petitioner filed the writ petition.
2-A. It was urged before the learned single Judge that the Waqif being a Waqif-Alal-Aulad with only limited right of income reserved for religious, pious and charitable purposes could not be deemed to be a Waqif within the meaning of the Waqifs Act and the Waqifs Board could have no jurisdiction to give any direction to the Mutawalliya or to interfere with the management or proceed to remove her from Mutawalliship. The learned single Judge came, to the conclusion that the Waqif was a Waqif-Alal-Auled and it was not controllable by the Waqifs Act except to the extent of the fixed income which was to be utilised for purposes religious, pious and charitable. The learned single Judge accordingly quashed the Board''s order regarding the sale of the mango crop by auction. The proceedings for removal and for rendition of accounts and also the notice initiating the proceedings for the removal of the Mutawalliya were also quashed. The order passed by the Waqifs Board suspending the Mutawalliya pending enquiry for removal was also quashed.
Learned counsel for the Waqifs Board has contended that the entire properties of the Waqifs were subject to the control by the Waqifs Board and the Waqifs in question were Waqifs within the meaning of Section 3 (11) of the Waqifs Act. On this basis it has been contended that the Board had the jurisdiction to supervise and control the management of the properties by the Mutawalliya and also to take action for her removal because she had made wrongful alienations of Waqif property and had rendered herself liable to be removed. On the same ground learned counsel contended that the Board had the jurisdiction and power to suspend the petitioner from the office of Mutawalliya by virtue of the powers contained in Sections 19 and 55 of the Waqifs Act. The contention of the respondent''s learned counsel is that the Waqifs in question being waqifs-alal-aulad are not governed by the Waqifs Act.
For determining the powers of the Board, it is necessary to determine if the present Waqifs are Waqifs within the meaning of Section 3 (11) of the Waqifs Act. Section 3 (11) provides:--
" ''waqif'' means the permanent dedication or grant of any property for any purpose recognized by the Muslim Law or usage as religious, pious or charitable, and includes Waqifs-Alal-Aulad to the extent of which the property is dedicat ed or granted for any such purpose as aforesaid and waqif by user; and ''waqif'' means the person who makes such dedication or griant".
The definition of Waqif includes & WaqifAlal-Aulad, but the entire properties do not come within the control of the Board. but only such properties as are dedicated for purposes religious, pious or charitable. The crucial point for determination, therefore, is whether the entire properties are dedicated for such purposes or only to a limited extent is the dedication, The learned single Judge (took the view that, as a limit fixed income has to go for religious, pious and charitable purposes, only such property could be deemed to be covered by the definition as would be sufficient to yield such income. With great respect, we are unable to find ourselves in agreement with the view taken by the learned single Judge ,as to us it appears that the extent of property cannot be determined on the basis of the income. It is the dedication which has to be seen. If the entire property is dedicated for two purposes, namely, for secular purposes and for religious, pious or charitable purposes, then the entire property will be deemed to be dedicated for both purposes. Unless it is possible to determine the extent to which the property has been dedicated for religious, pious and charitable purposes, the entire property will have to be deemed to be dedicated to God and subject-matter of the Waqif. For excluding the property it should either be known or be determinable from the deed of waqif that a particular property or part thereof is not dedicated. Learned counsel for the petitioners-respondents contended that it is the income that is the criterion for determining the extent of dedication. But, we find that it is not the income which is contemplated by the definition of waqif but the property. The relevant words are ''to the extent to which the property is dedicated''. The income arises out of property and it can vary from time to time. It may be Larger than the amount fixed for the religious, pious or charitable purposes or may be less than that. It is also not possible to allocate property relative to the amount or to say that this amount of money must come from a particular portion or property out of the lot or from a particular proportion of that property. The entire property, which is the subject-matter of the waqif, is liable for meeting the purposes religious, pious or charitable. If the entire property, which is the subject-matter of the waqif, is liable for meeting the expenses, it cannot be said that the waqif or dedication is only to the extent of some undeterminable and unascertainable property out of the total property, which is the subject-matter of the Waqif. In our opinion, unless it is possible to determine the extent of the property out of the property which is the subject-matter of the waqif-alal-aulad meant for religious, pious or charitable purposes, the entire property will be the subject-matter of the waqif within the meaning of the Waqifs Act The question of determining the extent can practically arise only in a case in which there are a number of properties and some of them are earmarked for purposes recognised as religious, pious or charitable and others earmarked for the benefit of the waqif or his descendants. It may also arise in a case where a share in a property or a part of a property has been earmarked for the two purposes. In the present case neither of the two waqifs contain such a direction. The entire property has been dedicated for the purposes recognised as religious, pious and charitable. It may also be possible to say that the property, which has been dedicated for purposes religious, pious or charitable, is the entire extent of the property. The entire properties under the deeds will, therefore, be deemed to be waqif within the meaning of Section 3 (11) of the Waqifs Act.
If the two waqifs come within the definition of waqif in the Waqifs Act, then the entire Act will become applicable. The Mutawalliya of the waqifs will have the rights granted under the Act and the liabilities entailed by the Act. Section 19 of the Waqifs Act provides for the functions of the Board. Sub-section (1) runs as under:--
"The general superintendence of all waqifs to which this Act applies shall vest in the Board. The Board shall do all things reasonable or necessary to ensure that the waqifs under its superintendence are properly maintained, controlled and administered and the income thereof is duly appropriated to the purposes for which they were founded or for which they exist."
The power of general superintendence will give the Board the power to see that the corpus or the property, which is the subject-matter of the waqif, is not mismanaged, wasted or wrongfully alienated. It will also give power to the Board to issue necessary direction in this respect to the Mutawalli of the Waqif, The Board could, therefore, on finding that the property was being sold for unreasonably low amount, issue direction to the Mutawalli to hold auction for sale to get a higher price. In the present case, however, the question about the validity of the direction issued in respect of the sale of the mango crop has ceased to be relevant because, in our opinion, the quashing of the direction will create more complications than solve the problems. It is an admitted fact that the mango crop was for 1974 and has already been sold by the Waqifs Board at an auction which fetched Rs. 20,000 as price. If we quash that order directing sale by auction, it may create, complications. Further, the Mutawalliya had stated that she could sell the property for Rs. 5.000 only, while the Board succeeded in selling it for Rs. 20,000 and this benefited even the petitioner. We accordingly do not think that it would be proper to maintain the order of the learned single Judge quashing the direction for selling the mango crop contained in Annexure 1 to the writ petition.
The other order issued by the Board had directed the Mutawalliya to furnish accounts for the entire property from the time she became the Mutawalli. This direction is contained in Annexure 4 to the writ petition. Section 50 provides for submission of accounts. Proviso to Section 50 runs as under:--
"Provided that in respect of a waqif-alal-aulad the statement of accounts required to be submitted by the mutawalli shall relate only to such portion of the income as is specified or set apart for religious or charitable purposes." The Mutawalliya could in view of the proviso be directed to submit accounts only in relation to the income as was specified in the Waqifs deeds to be set apart or utilised for religious, pious or charitable purposes. The Waqifs Board could not direct the Mutawalliya to submit accounts in respect of the entire income from the properties. The learned single Judge was thus right in holding the notice to be not in accordance with law and quashing the same. The quashing will, however, not bar the Board from issuing a fresh notice in accordance with law.
Section 55 provides for removal of Mutawalli. Learned counsel for the appellants contended that because the Mutawalliya had wrongfully alienated the waqif property, conditions had arisen for taking action u/s 55 of the Waqifs Act. Section 55 (1) (iv) provides:
"The Board may, after affording him an opportunity of being heard, remove a mutawalli other than a Managing Committee from his office if he......wrongly destroys or alienates any waqif property."
Learned counsel also urged that the case may come under Clause (vii) which provides for the removal of the Mutawalli on being guilty of misappropriation of property. The person aggrieved has also a right of reference to the Tribunal against an order of removal under subsection (2) of Section 55 of the Waqifs Act. As yet no order of removal has been passed. Learned counsel for the petitioner-respondent contended that the order contained in Annexure 2 to the writ petition tantamounted to a decision and a finding to the effect that the petitioner had wrongly alienated the waqifs'' property. We are unable to hold that it is a final determination. Learned counsel for the appellant also contended that it was not the intention of Annexure 2. According to him also that was only a preliminary finding for coming to the conclusion that notice to show cause should be given to the Mutawalliya u/s 55 of the Act and subsequently a notice Annexure 3 had been given to the petitioner to show cause. As we have held that the Waqifs in dispute are Waqifs within the meaning of the Act, Section 55 will be applicable and if proceedings are started under that provision, no writ of prohibition can be issued. The petitioner has not yet suffered any injury. She has only been given notice to show cause which the Waqifs Board would legally give. As such the proceedings not being without jurisdiction cannot be quashed. Whether there are wrongful alienations of the waqif property or not has to be determined on evidence and it would be premature in these proceedings to arrive at any finding in this respect.
The other order, which is the subject-matter of the petition, is the order of suspension. The learned single Judge has held that there is no power under the Waqifs Act to suspend the Mutawalli. Learned counsel for the appellants has failed to show us any provision which may give authority to the Board to suspend a Mutawalli in contemplation of an enquiry u/s 55 or during the pendency of such enquiry It also cannot be said impliedly that there is power of suspension because there is no provision under the Act providing for the working of the waqif during the period of suspension of the Mutawalli. This also indicates that there is no power vested in the Waqifs Board to suspend a Mutawalli. Learned counsel for the appellants tried to justify the order by relying on Section 19 of the Act. Section 19 of the Act does not give any such power to the Waqifs Board. It contemplates control and superintendence and not the suspension of the Mutawalli. At the most, Section 19 can empower the Waqifs Board to take preventive measures for protecting the property, but it does not empower the Board to suspend the Mutawalli.
In the result, the appeal is partly allowed and the order quashing Annexure 1 to the writ petition is set aside; the order quashing Annexure 3 in its entirety is modified and is maintained only in so far as it quashes the suspension of the petitioner from Mutawalliship of the Waqifs, but is set aside in so far as it relates to the quashing of the notice to show cause issued u/s 55 of the Act : the quashing of Annexure 4 is maintained; Annexure 2 has become in-fructuous and the order quashing the same is also maintained. Costs shall be borne by the parties.