Holding

A reference to the Wakf Tribunal under Section 8(1) is maintainable without a published list, the proviso’s one‑year limitation does not apply, and the 90‑day period under Section 29(8) was complied with, making the reference valid.

Summary

The U.P. Shia Central Board of Wakf registered a mosque, its sehan and Imam Chowk as Shia Wakf property. The U.P. Sunni Central Board of Wakf challenged this registration and, under Section 8(1) of the Uttar Pradesh Muslim Wakfs Act, 1960, referred the dispute to the Wakf Tribunal seeking a declaration that the property was a Sunni Wakf and an injunction against the Shia Board. The Tribunal partially set aside the registration, the High Court upheld the Sunni Board's appeal and remanded the matter for fresh trial. Both parties appealed to the Supreme Court, raising questions on the maintainability of the reference without a published list of Wakfs, the applicability of the one‑year limitation in the proviso to Section 8(1), and the 90‑day limitation under Section 29(8). The Court held that a reference under Section 8(1) is maintainable irrespective of a published list, the proviso’s limitation does not apply when no list exists, and the 90‑day period was complied with, rendering the reference valid. Consequently, the appeals of the Shia Board were dismissed, leaving the High Court’s order in place.

Issues considered

Whether a reference to the Wakf Tribunal under Section 8(1) of the Uttar Pradesh Muslim Wakfs Act is maintainable in the absence of a list of Wakfs published by the Commissioner.
Whether the proviso to Section 8(1) imposing a one‑year limitation from the date of publication of the list applies when no list has been published.
Whether the 90‑day limitation under Section 29(8) is satisfied in the present case.
Whether a dispute concerning the sectarian character of a Wakf (Shia vs Sunni) falls within the ambit of Section 8(1) and Section 29(8).

Legislation cited

Code of Criminal Procedure, 1973s. 145

Subjects

WakfSection 8(1) referenceSection 29(8) limitationShia WakfSunni WakfUttar Pradesh Muslim Wakfs ActCivil appeal

Judgment

A U .P. SHIA CENTRAL BOARD OF WAKF AND ORS.
v.
U.P. SUNNI CENTRAL BOARD OF WAKF AND ORS.

MAY 1, 2001

B [S. RAJENDRA BABU AND D.P. MQHAPTRA, JJ.]

Uttar Pradesh Muslim Wakfs Act, 1960-Section 8(1)-Registration of
mosque by appellant as Shi a Wakf property-Suit by respondents against the .f-
.registration and for declaration as Sunni Wakf property under the Act-
C Reference under the Act-Maintainability of-Held, maintainable as the Act
covers all disputes relating to Wakf and its pr,operties.

Section 29(8)-Limitation-Held, filing of application within 90 days
of knowledge of registration, where no notice given is valid.

D Appellant Shia \Yakf Board registered a mosque and its Schan and
Imam Chowk as Shia Wakf property. Respondent Sunni Wakf Board filed a
suit before the Tribunal questioning the registration and for a declaration
of the suit property to be Sunni Wakf property and to restrain the appellants
from interfering with the possession, administration, management and control
E over the property. The Tribunal partly allowed the claim of the respondents.
The registration of the mosque along with its Schan by the Shia Wakf Board
was declared to be null and void. In respect of the Imam Chowk and its Schan,
the registration was held to be valid. The appellants as also the respondents
filed appeals before High Court against the judgment of the Tribunal. Tile
High Court dismissed the appeal of the appellants and allowed the appeal of
F the respondents and remanded the matter back to the Tribunal for fresh trial
in the light of the observations made in the judgment.

In appeal to this Court, the appellants contended that the dispute whether
the mosque, its Schan and the Imam Chowk were the properties of the Sunni
sect or the Shia sect does not come within the purview of section 29(8) of
G the Uttar Pradesh Muslim Wakfs Act, 1960; that in the absence of any
notification by the Commissioner under section 6(4) of the Act, a reference
under section 8(1) of the Act is not maintainable; that the dispute is barred
by limitation under the proviso to section 8(1) of the Act.

Dismissing the appeals, the Court
H 336
U.P. SHIACEN.BOARDOFWAKFv. U.P. SUNNICEN.BOARDOFWAKF 337
HELD : 1.1. From the provisions laid down in Uttar Pradesh Muslim A
Wakfs Act, 1960, the scheme of the statute is that in case of ay dispute, .
whether a particular property is Wakf property or not or whether a Wakf
is a Shia Wakf or Sunni Wakf, the Board concerned or the mutawalli of the
Wakf or any person interested in the Wakf may in accordance with fl1e
provisions of the law refer the dispute for adjudication to the Tribunal. On
a plain reading of the relevant provisions of the Act, it is expressed in wide ' B
terms taking within its fold different types of disputes relating to a Wakf
and its properties. The statute enables different classes of persons the
> interested in the Wakf and its properties like the Board concerned, mutawalli
and any person interested in the Wakf to raise a dispute. The section does,
not make any provision that the publication of a list of Wakf by the C
Commissioner under section 6 of the Act is a sine qua non for a reference
under section 8(1) of the Act. All that is laid down in the proviso to sub-
section (1) of the Act is that after a list of Wakfs has been published by the
Commissioner, a dispute as contemplated in the proviso has to be raised
within one year from the date of the publication of the list of Wakfs and not
thereafter. In the present case, no list of Wakfs has been published by the D
Commissioner under section 6(4) of the Act. Therefore, the limitation
prescribed in the proviso to sub-section (1) of section 8 has no application
in the Ca!!_e. In the cL cumstances, the contentions raised by the appellants
against maintainability of the reference made to the Tribunal under section
8(1) of the Act on the ground that such a reference does not lie in the E
absence of a publication of the list of Wakfs by the Commissioner or that
the reference is barred by limitation cannot be accepted.
(342-D.-H; 343-A-C]

1.2. Sub-section (8) of section 29 of the Act vests an independent right
in a person aggrieved by an order of the Board under sub-section (7) to make F
an application to refer the dispute to the Tribunal. Such application is to be
made within 90 days from the date of the order by which the applicant feels
aggrieved. The respondents came to know aboot the registration of the mosque,
its Sehan and the Imam Chowk by the Sunni Wakf Board in the course of,
a legal proceeding and within 90 days thereafter they filed a dispute before
the Tribunal, which has been accepted by the Tribunal and confirmed by the G
High Court. There is little scope to disturb the findings of fact in these
appeals. Therefore, the contention of the appellants that the dispute raised:
before the Tribunal under section 29(8) of the Act was barred by limitation
cannot be accepted. [343-E-G]
Mukhtar Husain and Ors. v. Fattu and others, (1975) A.W.C. 462, H
r

338 SUPREME COURT REPORTS [2001] 3 S.C.R.

A overruled.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2490-91
of 1996.

From the Judgment and Order dated 2.9.94 of the Allahabad.High Court
B in C.S. No. 255 and 284of1992.
Sunil Gupta, Jatin Zaveri and Ms. Indu Malhotra for the Appellants.

·, AK. Srivastava, Mr. Taiyab Khan and Shakil Ahmed Syed for the
Respondents.

C The Judgment of the Court was delivered by

D.P. MOHAPATRA, J. These appeals filed by the U.P. Shia Central
Board of Wakf through its Secretary (for short 'the Shia Wakf Board') and
some other persons of the sect by special leave are directed against the order
passed by the Allahabad. High Court on 2nd September, 1994 disposing of
D two Revision Petitions, C.R. No. 284/92 filed by the U.P. Sunni Central Board
of Wakf (for short 'the Sunni Wakf Board') through its Secretary and some
other persons of the sect and Civil Revision No. 255/92 filed by the Shia Wakf
Board) and some other persons of the sect.

The dispute raised in the case relates to the mosque, Ahnaf Bar Taley
E Pura Chhanga Kiyari Tola, Maunath Bhanjan and its Sehan and the Imam
Chowk, registered as a Wakfby the U.P. Shia Central Board ofWakf. Aggrieved
by the said registration the Sunni Board through its Secretary made a reference
to the Muslim WakfTribunal, Azamgarh which was registered as suit No. 154/
88. The Controller Shia Central Board of Wakf and two others were cited as
F defendants in the proceeding. The prayer in the plaint was for an award
declaring the property in the suit to be a Shia Wakf property and not a Sunni
Wakf property and to declare its registration as null and void, and further to
restrain defendants from interfering with or disturbing in any manner with
possession, administration, management and control over the property by the
plaintiffs.
G The gist of the case pleaded by the plaintiff is that the mosque and
its sehan including the Imam Chowk was constructed by the ancestors of Late
Abdul Salam with efforts of his grand father Md. Azal Bilal. The grave of Md.
Azal Bilal lies within the compound of the mosque. The mosque including
sehan and Imam Chowk have always remained under control and management
H of the S~nni sect of Muslims. Members of the said sect had always called
U.P.SIBACEN.BOARDOFWAKFv.U.P.SUNNlCEN.BOARDOFWAKF[MOHAPAlRA,J.] 339

. .,l Azan in the said mosque and the congregation prayer have been led by Sunni A
...I
Pesh-e-Imam. Sunni Mulims have been attending the congregation in the
mosque and the sehan. Members of the sect have been looking after the
maintenance of the mosque and its properties. On the application made by
Members of the Sunni sect of Muslims the WakfBoard after inquiry registered
the mosque, its sehan and the Imam Chowk as Sunni Wakf in 1980.
B
When in May 1978 certain works of reconstruction and additions in the
mosque were being carried on by the Sunni Muslims of the locality including
the plaintiff No. 2, some Shia muslims of the same locality including defendant
No. 3 tried to stop the work by filing su~t No. 246/78 (Zia Ul Hasan v. Md.
Ayub and Ors.) in the Court of Munsif Mohammadabad Gohna, District C
Azamgarh. The suit was subsequently withdrawn. The plaintiff alleged that
the defendants surreptitiously got the mosque and its sehan registered in the
office of the Shia Wakf Board behind the back of the plaintiffs. In the
proceeding under Section 145 Cr.P.C. initiated in March, 1988 in the Court of
the Sub-Divisional Magistrate No. 96/11 of 1988 it was disclosed that the
mosque and its property have been registered as a Wakf under the Shia Wakf D
Board. On coming to know about the action of the defendants in the matter
the plaintiffs filed the suit within 90 days from the date of knowledge about
the order of registration dated 30th October, 1978.

The defendants refuted the claim of the plaintiffs that the mosque and
its sehan and the Imam Chowk constituted a Sunni Wakf. They claimed that E
,, the mosque and its properties were Shia Wakf and were rightly registered as
such by the Shia Wakf Board.

The Tribunal by its judgment dated 20th May, 1992 allowed the claim
of the plaintiffs in part. The registration of the mosque in question along with F
its sehan by the Shia Wakf Board was declared to be null and void and
accordingly set aside. In respect of the Imam Chowk and its sehan the
registration was held to be valid. The relief of injunction was granted to the
plaintiff only in respect of the management, supervision and control of the
mosque in question. It was further made clear by the Tribunal that no injunction
was granted in respect of the offering of Namaz by the defendants in the G,
mosque. Being aggrieved by the said judgment both the parties filed Revision
Petitions before the High Court, as noted earlier.

The High Court in its Judgment dated 2nd September, 1994 dismissed
the Civil Revision No. 255/92 filed by the Shia Wakf Board and allowed the
C.R.No. 284/92 filed by the Sunni WakfBoard relating to the Imam Chowk and H
340 SUPREME COURT REPORTS [2001] 3 S.C.R.

A remanded the matter to the Tribunal for fresh trial in the light of the observations
made in the Judgment.

Hence these appeals by the Shia Wakf Board.

The main thrust of the arguments of Shri Sunil Gupta, learned counsel
B for the appellants were . against the maintainability of the reference to 'the
Tribunal. According to Shri Gupta the essence of the dispute raised in the
plaint is whether the mosque, its sehan and the Imam Chowk were the
properties of the Sunni sect or the Shia sect. Such a dispute, Shri Gupta
submits, does not come within the purview of section 29(8) of the Uttar
Pradesh Muslim Wakfs Act, 1'960 (for short 'the Act'). It is the further
C submission of Shri Gupta that in the absence of any notification by the
Commissioner under section 6(4) of the Act a reference under section 8(1) is
not maintainable. It is also the submission of Shri Gupta that under the
proviso to section 8(1) which controls the main provision of the section, the
dispute is barred by limitation.
D
The Act provides for public governance, administration and supervision
of certain classes of Wakf in the State of U.P. The Act applies to all Wakfs
whether created before or after its commencement and any part of the property
comprised in Wakfs situated in the State ofU.P. In section 3(3) 'Commissioner'
is defined to mean a Commissioner of Wakfs appointed by the State
E Government under section 4. In Section 3(11) 'Wakf' is defined to mean the
permanent dedication or grant of any property for any purpose recognised
by the Muslim Law or usage as religious, pious or charitable, and includes
,,..
wakfs-alal-aulad to the extent to which the property is dedicated or granted
for any such purpose as aforesaid and wakf by user; and 'wakif' means the
F person who makes such dedication or grant.

.... 'Wakf property' as defined in section 3(12) includes offerings made at
a shrine or tomb or imambara. ·

Section 6 makes the provision regarding Survey of Wakfs. It provides
G that the Commissioner of wakfs shall after making such inquiries as he may
consider necessary ascertain and determine the number of all wakfs in the
area showing the Shia wakfs and Sunni wakfs separately; the nature and
object of each wakf; the gross income of the property comprised in each wakf;
amount of revenue, cesses, rates, taxes and surcharge payable to the
Government etc. In the proviso to sub-section (2) of section 6 it is laid down
H that where there is a dispute as to whether a particular wakf is a Shia Wakf
U.P.SHIACEN.BOARDOFWAKFv. U.P.SUNNICEN.BOARDOFWAKF[MOHAPATRA,J.] 341

or Sunni Wakf and there are clear indications in the recitals of the deed of A
wakf as to the sect to which it pertains, such dispute shall be decided ~m the
basis of such recitals. In sub-section (4) of section 6 a mandate is issued to
the Commissioner, the Additional Commissioner to submit his report of enquiry
containing the particulars mentioned in sub-section (2) to each of the Board
and the State Government, and the State Government shall, as soQn as
possible notify the same in the official gazette the wakfs relating to particular B
sect, to which, according to such report, the provisions of this Act apply.

Section 8 on which much reliance is placed by the learned counsel for
)r
the appellants is quoted hereunder:
"Section: 8 C
(1) if any dispute arises whether a particular property is wakf
property or not or whether a wakfis a Shia wakf or Sunni wakf,. the
Board concerned or the mutawal/i ofthe wakf or any person interested
therein, may, in accor-dance with the provisions of this Act, refer the
dispute for adjudication to the Tribunal: D
Provided that no such dispute shall be entertained by a Tribunal after
the expiry of one year from the date of the publication of the list of
wakfs under sub-section (4) of Section 6.
(2) The Commissioner, Additional Commissioner of Wakfs and E
Assistant Commissioner of Wakfs shall not be made a party to any
proceeding under sub-section (1)."
The next provision which is relevant for the purpose of the Act is
section 29 which is in Chapter III titled 'Registration of Wakfs'. In Section
29(1) it is declared that every other wakf, whether subject to this Act or not
and whether created before or after the commencement of this Act, shall be F
registered at the office of the Board of the sect to which the wakf belongs.
In sub-section (2) it is provided that application for registration shall b~
made by the mutawalli within 3 months of his entering into possession of
Wakf property, provided that such application may be made by the wakf or
his descendants or a beneficiary of the wakf or any Muslim belonging to the G
sect to which the Wakf belongs.
Sub-sections (3), (4) and (5) deal with the contents of the application
for registration and the manner in which the application shall be filed. Sub-
sections (7) & (8) which are relevant for the purpose of the case are extracted
hereunder: H
342 SUPREME COURT REPORTS [2001) 3 S.C.R.

A "7. On receipt of an application for registration, the Board may, before
the registration of the wakf, make such inquiries as it thinks fit in
respect of the genuineness and validity of the application and the
correctness of any particular therein, and, when the application is
made by any person other than the person administering the wakf
property, the Board shall, before registering the wakf, give notice of
B the application to the person administering the wakf property and
shall after affording him a reasonable opportunity of being heard,
pass such order as it may deem fit.

(8) Any person aggrieved by an order of the Board under sub-
c section(?) may, by application within 90 days from the date of that
order, refer the dispute to the Tribunal which shall give its decision
thereon."

From the conspectus of the statutory prov1s10ns noted above, the
scheme of the statute is clear that in case of any dispute, whether a particular
D property is Wakf property or not or whether a Wakf is a Shia Wakf or Sunni
Wakf the Board concerned or the mutawalli of the Wakf or any person
interested in the Wakf may in accordance with the provisions of the law refer
the dispute for adjudication to the Tribunal. Under the proviso to sub-
section( I) a restriction is imposed that no such dispute shall be entertained
E by a Tribunal. after the expiry of one year from the date of publication of the
list of Wakfs under sub- section(4) of Section 6. On a plain reading of the
provision in sub-section(l) it is clear that it is expressed in wide terms taking
within its fold different types of disputes relating to a Wakf and its properties.
The statute enables different classes of persons interested in the Wakf and
its properties like the Board concerned, the mutawalli and any person interested
F in the Wakf to raise a dispute. The only restriction sought to be placed on
such a reference is in the proviso, wherein it is laid down that after the list
of Wakfs is published by the Commissioner under sub-section(4) of section
6 of the Act then the dispute has to be made to the Tribunal within one year
from the date of publication and the Tribunal is precluded from entertaining
G the dispute after the expiry of one year. The section does not make any
provision that the publication of a list of Wakfs by the Commissioner under
section 6 is a sine qua non for a reference under section 8(1) of the Act. All
that is laid down in the proviso to sub-section(l) is that after a list of Wakfs
has been published by the Commissioner then a dispute as contemplated in
the proviso has to be raised within one year from the date of the publication
H of the list of Wakfs and not thereafter. It is pertinent to note here that in the
U.P. SHIACEN.BOARDOFWAKFv. U.P. SUNNICEN.BOARDOFWAKF[MOHAPATRA,J.] 343

·J
present case no list of Wakfs has been published by the Commissioner under A
section 6(4). Therefore, the limitation prescribed in the pro"iso to sub-section(l)
of section 8 has no application in the case.

In the present case as noted earlier, both the sects of Muslims in the
locality have claimed the mosque its sehan and the Imam Chowk as Wakf
belonging to their sect and registration of the properties accordingly. It is not B
disputed that a dispute of this nature comes within the purview of sub-
section( I) of section (8) of the Act. In the circumstances of the case the
contentions raised by Shri Gupta against maintainability of the reference made
to the Tribunal under section 8(1) of the Act on the ground that such a
·-· reference does not lie in the absence of a publication of the list of Wakfs by C
the Commissioner or that the reference is barred by limitation cannot be
accepted. Shri Gupta heavily relied on the decision of the Allahabad High
Court in the case of Mukhtar Husain and ors. v. Fattu and others, "(1975)
A.WC. 462 in which a view supporting his contention was taken and submitted
that the law laid down in that case has held the field for all these years. In
view of the discussions made above we need only say that the view taken D
by the Allahabad High Court in the aforementioned case is contrary to the
statutory provisions and not in accord with the intent and purpose of the

- legislature as expressed in the sections. It is our considered view that the
decision does not lay down the correct position of law.

Coming to sub-section (8) of section 29 the provision in our view vests E
an independem right in a person aggrieved by an order of the Board under
sub-section (7) to make an application to refer the dispute to the Tribunal.
Such application is to be made within 90 days from the date of the order by
which the applicant feels aggrieved.

In this regard the case of the respondents that they came to know about F
the registration of the mosque its sehan and the Imam Chowk by the Shia
WakfBoard in course of a proceeding under section 145 Cr.P.C. and within
90 days thereafter they filed a dispute before the Tribunal has been accepted
by the Tribunal and confirmed by the High Court. There is little scope to
disturb the findings of fact in these appeals. Therefore, the contention of Shri G
Gupta that the dispute raised before the Tribunal under section 29(8) of the
Act was barred by limitation also cannot be accepted. No other contention
was raised on behalf of the appellant. In the result the appeals are' dismissed
but in the circumstances of the case without any order as to costs.

B.S. Appeals dismissed. H