Holding

The power to frame a scheme for managing Wakf property lies exclusively with the Wakf Board under Section 32 of the Wakf Act, 1995; the Tribunal cannot exercise that jurisdiction.

Summary

The Madhya Pradesh Wakf Board had declared a Dargah property as Wakf and constituted a managing committee. Private parties, claiming inheritance of the land, challenged the Board's orders and the Wakf registration, leading to a civil suit that was transferred to the Madhya Pradesh Wakf Tribunal under the Wakf Act, 1995. The Tribunal framed a scheme for managing the Dargah, but the High Court upheld the Tribunal’s jurisdiction. On appeal, the Supreme Court held that the power to settle schemes of management is vested exclusively in the Wakf Board under Section 32 of the Wakf Act, 1995, and the Tribunal cannot usurp this function. The Court also noted that the private parties’ alleged admission was conditional and did not establish the property as a Wakf, and that the Board’s registration may be barred by limitation. Consequently, the Tribunal’s and High Court’s orders were set aside and the matter remitted to the Tribunal for fresh consideration within three months.

Issues considered

Whether the Wakf Tribunal under Section 83 of the Wakf Act, 1995 has jurisdiction to frame a scheme for managing Wakf property.
Whether the power to settle schemes of management of a Wakf vests exclusively with the Wakf Board under Section 32 of the Wakf Act, 1995.
Whether the private parties’ admission that the land is their inherited Majawar amounts to an admission that the property is a Wakf.
Whether the registration of the Dargah as Wakf under Section 25 of the Wakf Act, 1954 is barred by limitation.
Whether the property qualifies as a Wakf given its dedication by a non‑Muslim.

Legislation cited

Wakf Act, 1954s. 25, s. 27, s. 3(1), s. 4, s. 5, s. 6A
Wakf Act, 1995s. 32, s. 83

Subjects

WakfJurisdictionScheme of ManagementWakf BoardWakf TribunalLimitationAdmissionReligious Endowment

Judgment

-- ;

M.P. WAKF BOARD A
v.
SUBHAN SHAH (D) BY LRS. AND ORS.

OCTOBER 31, 2006

[S.B. SINHA AND DAL VEER BHANDARI, JJ.] B

- Wakf Act, 1995-ss. 32 and 83-Framing of scheme for managing
affairs of Wakf property by Tribunal-Held: Not valid as framing of scheme
is within exclusive power of Board and not Tribunal-s.32 prescribes the
powers of Wakf Board and s.82 lays down the powers of.Tribunal-These
bodies cannot usurp the functions of one another-Matter remitted to Tribunal
C

for fresh consideration-Wok/ Act, 1954-s.25.
Land property in question was granted to Dargah. The Wakf Board
declared the said property as a Wakf property. Board thereafter constituted a
committee for managing the affairs of the Dargah. Private parties claiming D
to be in possession of the said property, alleged forcible dispossession. They
filed suit for declaration and recovery of possession on the ground that the
orders passed by Board are null and void. In view of enactment of the Wakf
Act, 1995, the suit was transferred to M.P. Wakf Tribunal.

The Tribunal passed an order framing a Scheme for managing the E
affairs of the said Dargah. High Court held that the Tribunal had the requisite
jurisdiction to frame a scheme. Hence these appeals.

Disposing of the appeals and remitting the matter to the Tribunal for
fresh consideration, the Court
F
HELD: 1. Tribunal took into consideration the admission of the private
parties that Majawar in question is their inherited property and their
forefathers have been working as Mujawar in the Dargah. On the basis of
the said admission on the part of the private parties, the Tribunal opined that
there existed a Wakf. The purported admission on the part of the private parties G
was a conditi'onal one; by reason whereof, the nature of the property being
Wakf had not been admitted. An admission of a.party must be clear and explicit
in a case where an inference is required to be drawn in regard to the fact that
thereby he had admitted the title of the other. Generally speaking, even no
title can be created by admission. 191-B; 92-EI
85 lI
86 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A Thayyil Mammo and Anr. v. Kolliath Ramunni and Ors., AIR (1966) SC
33, relied on.

2.1. The Board itself could have initiated proceedings in terms of Section
27 of the Wakf Act, 1954 but then no suo motu proceeding was initiated by it.
191-D-EI
B
2.2. If the proceeding was initiated by the Board for which it had no
jurisdiction whatsoever, its order would be 'coram non judice'. 192-CJ
I.

-
Kiran Singh v. Chaman Paswan, AIR (1954) SC 340 and MD, Army
Welfare Housing Organisation v. Sumangal Services (P) Ltd., 120041 9 SCC
C 619, relied on.

Mis. D.N. Roy and S.K. Ban11e1jee and Ors. v. State of Bihar and Ors.,
1197013sec119, referred to.

3.1. If the nature of dedication of the property does not constitute a Wakf
within the meaning of the provisions of the Wakf Act, it must be proved that
D it became a·wakfby reason of long user. No such finding has been arrived at.
(92-F)

Motishah and Ors: v. Abdul Gaffar Khan, AIR (1956) Nagpur 38; Arur
Singh and Ors. v. Radar Din and Ors., AIR (1940) Lahore 119, referred to.
E 3.2. If the property in question was not a Wakfproperty and the order
registering the property as a Wakf property was invalid in law, the matter
might have ended there. But, the Tribunal has gone a step further and directed
framing ofscheme.193-DI
3.3. The Tribunal .had been constituted for the purposes mentioned in
Section 83 of the Wakf Act, 1995. It is an adjud.icatory body. Its decision is
F final and binding but then it could not usurp the jurisdiction of the Board. In
absence of any power vested in the Tribunal, the Tribunal ought to have left
the said function to the Board which is statutorily empowered therefor. Where
a statute creates different authorities to exercise their respective functions
thereunder, each of such authority must exercise the functions within the
G four corners of the statute. 194-E-F)
4. It is trite that when a procedure has been laid down the authority
must act strictly in terms thereof. 194-FI
Taylor v. Taylor, (1875) 1 Ch D 426, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6975 of2004.
H
M.P. WAKF BOARD v. SUBHAN SHAH (D) BY LRS. [S.B. SINHA, J.) 87
From the final Judgment and Order dated 13.3.2003 of the High Court A
of Madhya Pradesh, Indore Bench, Indore in Civil Revision No. 463/2000.

Shakil Ahemed Syed, Adil Khan and Wasim Hasan Khan for the
Appellant.

Syed Ali Ahmed, Syed Tanweer, GirdharG. Upadhyay, Vinita G. Upadhyay, B
S.S. Bandhopadhyay, S.B. Pandey and R.D. Upadhyay for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. These two appeals involving common questions of law
and fact were taken up for hearing together and are being disposed of by this
common judgment. C
One Hazrat Sha Walli was a Peer. He was called Shan Shah-E-Malwa.
On his death, a Dargah was established in his memory. Erstwhile Maharaja
Holkar Darbar, a Hindu king granted Mafi Inayat Land to the Dargah. Allegedly,
the land in question was held to be not forming a part of Wakf in tenns of
the provisions of the Wakf Act, 1954 (for short "the 1954 Act"). One Munna D
Bai filed an application for getting her name mutated in respect of the property
in question. It was dismissed on 4.2.1967. She thereafter filed an application
under Section 25 of. the 1954 Act for registering the Dargah as a Wakf. A
notice was issued to Subhan Shah and others who were the heirs of the said
Hazrat Sha Walli (hereinafter referred to as "the private parties"). They filed E
their show cause denying and disputing that the property in question was
a Wakf property. It was contended that Munna Bai filed the aforementioned
application as she was denied her claim to occupy the post of a Mu.ijawarship.
It was further contended:

"That there has been 50 Bighas land under the Sanad but when we F
were minors and Mahboobsha the husband of the lady was the
person in charge of the office of Mu.ijawarship, the Jahagirdar has
snatched away about 40 Bighas, but since ours taking charge of it we
are most aptly managing the property and looking after the Dargah.
It is wrong to say that there is a managing committee for this Dargah."
G
On or about 18.3.1968, the properties were declared as Wakf property
and the Dargah was registered as Wakf by an order dated 18.3.1968. The
private parties' application for recall of the said order was rejected by the
Madhya Pradesh Wakf Board (for short "the Board") by an order dated
24.6.1968 stating that registration of the Dargah as Wakfwas legal. A committee H
88 SUPREME COURT REPORTS [2006]SUPP. 8 S.C.R.

A was thereafter constituted by the Board for managing the affairs of the
Dargah. Possession of the private parties was allegedly forcibly taken over.

A suit thereafter was filed in Civil Court for a declaration that the orders
passed by the Board are null and ·lVoid and for recovery of possession of the
B suit property inter alia contending that the order registering the Dargah as
Wakfwas vitiated in law. It was also contended that the application filed by
the said Munna Bai under Section 25 of the 1954 Act was barred by limitation.

The Parliament enacted the Wakf Act, 1995 (for short "the 1995 Act").
The 1954 Act was amended by the State of Madhya Pradesh. The State of
C Madhya Pradesh constituted the M.P. WakfTribunal (for short "the Tribunal").
It also amended the provision of the said Act in terms whereof all civil suits
stood transferred to the Tribunal. The suit filed by private parties was also
transferred.

Before the Tribunal, the Board did not adduce any evidence. It, however,
D allegedly filed a gazette of the year 1984. The Tribunal passed an order
framing a scheme for managing the affairs of the said Dargah. Both the Board
and the private parties aggrieved thereby filed revision applications before
the High Court. By reason of the impu_gnedjudgment, the High Court dismissed
both the applications holding:

(i) In view of the admission made before the Tribunal that they are
E
not averse to the property being declared Wakf, if they are
declared to be the Mujawar thereof.

(ii) The Tribunal had the requisite jurisdiction to frame a scheme.

Both the Board and the private parties are, thus, before us:
F
Contention of Mr. Shakil Ahmed Syed, learned counsel appearing on
behalf of the Board is that power to frame a scheme vests in the Board and
not in the Tribunal ·and, thus, the High Court committed an illegality in
passing the impugned order.
G Mr. Sy!d Ali Ahmad, learned counsel appearing on behalf of the private
parties, on the other hand, submitted that the High Court proceeded on a
wrong premise that the private parties admitted that the property in question
was a Wakf property.
"Wakf'' has been defined in Section 3(1) of the 1954 Act to mean "the
a
permanent dedication by person professing Islam or any other person of
H any movable or immovable property for any purpose recognized by the
M.P. WAKFBOARDv. SUBHAN SHAH(D) BY LRS. [S.B. SINHA,J.] 89

Muslam law as pious, religious or charitable .....:'. Section 4 provides for A
survey of Wakfs. According to the private parties, upon survey the Dargah
was not found to be a Wakf property. Only when a property is found to be
a Wakfproperty, a registration thereof can be made. Section 5 of the 1954 Act,
reads, thus:

"5. Publication of list of wakfs - (I) On receipt of a report under sub- B
section (3) of Section 4, the State Government shall forward a copy
of the same to the Board.

(2) The Board shall examine the report forwarded to it under sub-
section (I) and publish, in the Official Gazette, a list of wakfs iri the
State, or as the case may be, the part of the State, whether in existence C
at the commencement of this Act or coming into existence thereafter
to which the report relates, and containing such particulars as may be
prescribed."

Under Section 5 of the 1954 Act, a civil suit in regard to the dispute as
to whether a particular property specified as Wakf property in the list of D
Wakfs maintained under Section (2) thereof is a Wakf property or not, a civil
suit will be maintainable. Section 6 A of the 1954 Act provides for power of
Tribunal to determine disputes regarding wakfs.

Maintainability of the suit, therefore, is not in question. The property
was dedicated to the Dargah, if any, a long time back. An application for E
registration of the said property as a Wakf property in terms of Section 25
of the 1954 Act, therefore, could have been filed only within the period
specified thereunder, viz., nine months from the date of coming into force of
the said Act. Registration of Wakfs whether created before or after the
commencement of the said Act is governed by Sectfon 25. A copy of the
Wakf deed was also required to be enclosed with such an application. Sub- F
section (7) of Section 25 of the 1954 Act provides for making of an inquiry
into the correctness or otherwise of the contents of the said application.

We may notice that Section I 04 of the 1995 Act is in pari materia with
Section 66 C of the 1954 Act, which reads as under:
G
"I 04. Application of Act to properties given or donated by persons
not professing Islam for support of certain wakf - Notwithstanding
;.
anything contained in this Act where any movable or immovable
· property has been given or donated by any person not professing
Islam for the support of a wakf being
H

'j
90 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A (a) a mosque. idgah, imambara, dargah, khangah or .a maqbara;

(b) a Muslim graveyard;

(c) a choultry or musafirkhana,

then· such property shall be deemed to be comprised in that wakf and
B be dealt in the same manner as the wakf in which it is so comprised."

Section 83 of the 1995 Act provides for constitution of the Tribunal.
The jurisdiction of the Tribunal as contained in sub-section (5) of Section 7
of the 1995 Act reads as under:

"(5) The Tribunal shall not have jurisdiction to determine any matter
c which is the subject-matter of any suit or proceeding instituted or
commenced in a civil court under sub-section (I) of section 6, before
the commencement of this Act or which is the subject-matter of any
appeal from the decree passed before such commencement in any
such suit or proceeding or of any application for revision or review
D arising out of such suit, proceeding or appeal, as the case may be."

The Tribunal noticed the sources of title of the private parties in the
suit property. In determining the respective contentions of the parties to the
suit, the Tribunal framed the following issues:

"I. Whether Mazar Nahar Shah Ali Baba is the ·property of plaintiffs
E of Siranam and the order of defendant No. I of dated 24.4.68 and
13.4.68 are illegal and of no consequences?

2. Whether plaintiffs are entitled to regain the business on the disputed
Mazar."

F The issues framed ·were not wholly apposite to the rival contentions of
the parties. They do not reflect the requisite issues before the parties in the
light of their pleadings. The Tribunal moreover did not analyse the evidences
adduced by the parties before it. Applicability or otherwise of the notification
issued in the year 1984 was also not considered. It declared the property to
G be a Wakf property stating:

" ... Defendant No. I Wakf Board led no evidence in its favour, but
Madhya Pradesh Wakf Board has produced the copy of Madhya
Pradesh Gazette and Register of Registration of Wakf in which disputed
Majar has been depicted as the property of Wakf and year of (billing)
cultivation. The plaintiffs have not objected to this. The most important
H
M.P. WAKF BOARD v. SU BHAN SHAH (D) BY LRS. (S.B. SINHA . .I.] 91
_,;
is that the plaintiffs have admitted in evidence that Majawar in question A
... is their inherited property and their forefathers had been working as
Mujawar in the Dargah. Therefore, the opportunity may be given to
them to serve as Mujawar at Dargah."
+
It purported to have taken into consideration the admission of the
private parties that Majawar in question is their inherited property and their B
forefathers have been working as Mujawar in the Dargah. On the basis of the
said purported admission on the part of the private parties, the Tribunal
opined that there exists no dispute that there existed a Wakf which was
situated in village Nozarana Indore of Hazrat Nahar Ali Shah which has been
legally registered by the Board.
c
Title to a property has a definite connotation. It is not the same as user.
The Tribunal failed to deal with the question as to whether the Board had the
requisite jurisdiction to entertain the application filed by Munna Bai being
barred by limitation, insofar as whereas period of limitation provided for under
sub-section (8) of Section 25 is merely three months, J\1unna Bai filed an
application after 12 years after coming into force of the 1954 Act. D
We are not unmindful of the fact that the Board itself could have
initiated proceedings in terms of Section 27 of the 1954 Act but then no suo
motu proceeding was initiated by it. No notice in this behalf has been issued.
'
In Mis. D.N. Roy and SK. Banne1jee and Ors. v. State of Bihar and E
Ors., [ 1970] 3 SCC 119, the Jaw is stated in the following terms:

"It is true that the order in question also refers to "all other powers
enabling in this behalf'. But in its return to the writ petition the
Central Government did not plead that the impugned order was passed
in exercise of its suo motu powers. We agree that if the exercise of F
a power can be traced to an existing power even though that power
was not purported to have been exercised, under certain circumstances,
the exercise of the power can be upheld on the strength of an
undisclosed but undoubted power. But in this ca'se the difficulty is
that at no stage the Central Government intimated to the appellant
that it was exercising its suo 111010 power. At all stages it purported G
to act under Rules 54 and 55 of the Mineral Concession Rules, 1960.
If the Central Government wanted to exercise its suo motu power it
should have intimated that fact as well as the grounds on which it
proposed to exercise that power to the appellant and given him an
opportunity to show cause against the exercise of suo motu power as H
92 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.
. ''
A well. as against the grounds on which it wanted to exercise its power.
Quite clearly the Central Government had not given him that opportunity.
The High Court thought that as the Central Government had not only
intimated to .the appellant the grounds mentioned in the application
made by the 5th respondent but also the comments of the State
Government, the appellant had adequate opportunity to put forward
B his case. This conclusion in our judgment is untenable. At no stage
the appellant was informed that the Central Government proposed to
exercise its suo motu power and asked him to show cause against the
exercise of such a power. Failure of the Central Government to do so,
in our opinion, vitiates the impugned order."
c Iftbe proceeding was initiated by the Board for which it had no jurisdiction
whatsoever, its order would be 'coram non Judice'. lSee Kiran Singh v.
Chaman Paswan, AIR (1954) SC 340 and MD, Army Welfare Housing
Organisation v. Sumangal Services (P) Ltd., [2004] 9 SCC 619] Unfortunately,
the attention of the Tribunal or the High Court was not dra~n to this aspect
D of the matter.
It is also not in dispute that the purported admission on the part of the
private parties was a conditional one; by reason whereof, the nature of the
property being Wakf had not been admitted. An admission of a party must be
clear and explicit in a case where an inference is required to be d.rawn in regard
E to the fact that thereby he had admitted the title of the other. Generally
speaking, even no title can be created by admission. [See Thayyil Mammo and
Anr. v. Kottiath Ramunni and Ors., AIR (l 966) SC 337]

If the nature of dedication of the property does not constitute a Wakf
within the meaning of the provisions of the Act, it must be proved that it
F became a Wakf by reason of long user. _No such finding has been arrived at.

.We may notice, although no final verdict has been pronounced, it has
been contended before us that a purported dedication of a property by a
Hindu for constitution of Wakf is legally impermissible. Our attention has been
drawn to Motishah and Ors v. Abdul Gaff.ar Khan, AIR (1956) Nagpur 38
G wherein the law has been declared in the following terms:
"A wakf may be defined to mean the detention of the 'corpus' in the
ownership of God in such a manner that its profits may be applied for
the benefit of his servants. As a general rule it may be stated that aH
persons who are competent to make a valid gift are also competent to
H constitute a valid wakf. Islam is· not a necessary condition for the

\ ·'.
M.P. WAKF BOARDv. SUBl-lAN SHAH (0) BY LRS. [S.B. SINHA . .I.] 93
constitution of a wakf. A
Any person of whatever creed may create a wakf but the law
requires that the object for which dedication is to be made should be
lawful according to the cr~ed of the dedicator as well as the Islamic
doctrines. A cemetery or graveyard is a consecrated ground and .is
not a private property. Whether a place is a 'makbara' (burial ground) B
or not depends on the number of perso:is buried there or evidence
of dedication derived from the testimony of witnesses ofreputation ... "
However, yet again, in Arur Singh and Ors. v. Badar Din and Ors., AIR
(1940) Lahore 119, the law is stated in the following terms:

" ... Secondly, there seems to be no clear authority to show that
c
dedication of land by a Hindu for the purpose of a Muslim graveyard
would be invalid either according to Hindu or Muslim law ... "
If the property in question was not a Wakf property and the order
registering the property as a Wakf property was invalid in law, the matter D
might have ended there. But, the Tribunal has gone a step further and
directed framing of scheme.
The Wakf Act is a self-contained code. Section 32 of the 1995 Act
provides for powers and functions of the Board. Sub-section (2) of Section
32 of the 1995 Act enumerates the functions of the Board without prejudice E
to the generality of the power contained in Sub-section (I) thereof. Clauses
(d) and. (e) of sub-sei:;tion (2) of Section 32 of the 1995 Act reads as under:
"(d) to settle schemes of management for a wakf:

Provided that no such settlement shall be made without giving the
parties affected an opportunity of being heard; F
(e) to direct -

(i) the utilisation of the surplus income of a wakf consistent with the
objects of a wakf;

(ii) in what manner the income of a wakf, the object of which are not G
evident from any written instrument, shall be utilized;

(iii) in any case where any object of wakf has ceased to exist or has
become incapable of achievement, that so much of the income of the
wakf as was previously applied to that object shall be applied to any
H
94 SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A other object, which shall be similar, or nearly similar or to the original
object or for the benefit of the poor or for the purpose of promotion
of knowledge and learning in the Muslim community:

Provided that no direction shall be given under this clause without
giving the parties affected an opportunity of being heard.

B Explanation. - For the purposes of this clause, the powers of the
Board shall be exercised -

(i) in the case of a Sunni wakf, by the Sunni members of the Board
only; and

c (ii) in the case ofa Shia wakf, by the Shia members of the Board only:

Provided that where having regard to the number of the Sunni or Shia
members in the Board and o~her circumstances, it appears to the
Board that the power should not be exercised by such members only,
it may co-opt such other Muslims being Sunnis or Shias, as the case
D may be, as it thinks fit, to be temporary members of the Board for
exercising its powers under this clause;"

The Tribunal had been constituted for the purposes mentioned in
Section 83 of the 1995 Act. It is an adjudicatory body. Its decision is final and
binding but then it could not usurp the jurisdiction of the Board. Our attention
E has not been drawR to any provision which empowers the Trib~nal to frame
a scheme. In absence of any power vested in the Tribunal, the Tribunal ought
to have left the said function to the Board which is statutorily empowered
therefor. Where a statute creates different authorities to exercise their respective
functions thereunder, each of such authority must exercise the functions
within the four corners of the statute.
F
It is trite that when a procedure has been .laid down the authority must
act strictly in terms thereof. [See Taylor v. Taylor, (1875) I Ch D 426]

We, therefore, are of the opinion that the matter requires fresh
consideration at the hands of the Tribunal. We direct accordingly. Orders of
G the Tribunal and the High Court are set aside. The appeals are disposed of
with t~e aforementioned dfrections. The Tribunal is directed to consider the
matter afresh as expeditiously as possible preferably within a period of three
months from date. Having regard to the facts and circumstances of the case,
the parties shall pay and bear their own costs.

H D.G. Appeals disposed of.