The present proceedings arose on a reference being made under Section 29 (8) of the U.P. Muslim Waqf Act, 1960 (hereinafter refereed to as the 'Act').
The facts giving rise to the present dispute are that the building of Dargah Hazrat Abbas ( hereinafter refereed to as the 'shrine') was constructed by Nawab Saadat Ali Khan in the year 1800. This building was constructed at the place where Saint Mirza Faqira used to reside and the building in question came up in the form of shrine. The followers/worshipers started making prayer there and also making offerings on the said shrine. It is stated that the said shrine was managed by the successors of Saint Mirza Faqira. Later on, it is alleged that Nawab Wajid Ali Shah bifurcated the income of the shrine into two parts and the income which was derived from the offerings made by male worshipers were to go to the treasury of the Nawabs and the offerings which were received from the female worshipers were to go to the family members of the successors of the Saint Mirza Faqira. During the regime of Nawab Wajid Ali Shah a Government Order (Shahi Farman) was issued, according to which the management of the income of the shrine was handed over to Nawab Hasan Ali Khan and where-after the shrine is being managed and the income is being managed by the successors of Nawab Hasan Ali Khan. It also provided in the said Government Order (Shahi Farman) that except Nawab Hasan Ali Khan and his descendants, no other person shall have a right in the income received from the offerings of the shrine. In the year 1931 there was some dispute between the descendants of the Nawab Hasan Ali Khan in regard to the income of the shrine and the matter was referred to the Arbitrator and the Arbitrator had made the award Rule of the Court. In the said award, it was held that the shrine is not a waqf property and is a personal property. The said award was passed on the basis of the consent of the parties, but a committee of five members was constituted to look after the management of the shrine and it was decided that the income shall go to the successors of Nawab Hasan Ali Khan and the same will be distributed amongst them and one share was to be spent in the maintenance of the shrine. Thereafter, the said committee continuously managed the affairs of the shrine as well as the income derived from the shrine. Later on, Sri Syed Ali Zaheer was appointed as president of the U.P. Shia Central Board of Waqf ( hereinafter referred to as the 'Board') by means of Government Notification dated 27.11.1978. The Controller of the Board at the relevant time was Sri S.A.H. Rizvi and he wrote a letter on 9.5.1978 to Sri Syed Ali Zaheer making a request therein that the shrine be registered as a waqf. The said letter was replied on 15.6.1978 wherein it was asked as to under which provision of the Act he wanted to get the shrine registered. A reply was given to the aforesaid letter on 19.7.1978. Thereafter, on 29.7.1978 the Secretary of the shrine wrote a letter to the Secretary of the Board asking therein for certain time as it was said that he was searching for the relevant judicial documents and, therefore, it was not possible for him to submit reply by 31.7.1978. The Secretary of the shrine again wrote a letter on 28.10.1978 to the Secretary of the Board and demanded for one months' additional time for filing reply. During all this letter writing, on 15.11.1978 the Secretary of the Bord informed the committee of the shrine that the shrine has been registered as a waqf. The Secretary of the shrine wrote a letter on 22.11.1978 that the action of the Board was illegal as no application under Section 29 of the Act has been given for registering the shrine as waqf. It was also stated in the said letter that the committee was not given proper opportunity of hearing and neither they were given opportunity to adduce evidence in this regard. The Administrator appointed by means of order dated 30.11.1978 tried to take forcible possession of the management of the shrine. An injunction was also prayed for as it was alleged that the plaintiffs-respondents were managing the affairs of the shrine. In reference to these facts, an application was moved under Section 29 (8) of the Act for making reference to the Tribunal. The Tribunal issued notice to the parties and the written statement was filed by the Board stating therein that answering defendants were not bound by the alleged arbitration or the decree based on the alleged award and the provisions of the Act in question cannot be imposed on them, therefore, the nature of the waqf could not have been determined in the arbitration proceedings as the dispute regarding share of income derived from the offerings came to an end by the said award and in absence of any law then prevailing, it was not proper to interfere with the dispute in regard to the character of the waqf property. The finding of the trial court is vitiated on that score. It was also denied that there was distribution of income amongst the descendants of Nawab Hasan Ali Khan. It was also admitted that the shrine was administered by the plaintiffs-respondents through a committee of management and the accounts of the shrine has never been audited so it was not in the knowledge in the Board as to what portion of the income was being utilised on upkeep of the shrine. It was also stated that the first U.P. Muslim Waqf Act came into operation in the year 1936, under which a Survey Commissioner was appointed, who reported about several waqf properties, but innumerable waqfs escaped from his scrutiny. Mere fact that the shrine was not reported by Survey Commissioner does not mean that it is not a waqf. It was also stated that continuous offerings and prayers by followers of Shia community together goes to indicate that it is a waqf established by long user. The process in regard to registration of waqf was initiated on the application of late Sri Syed Mohd. Asghar dated 13.4.1943, but it was shelved because very influential personalities were at the helm of affairs of the shrine. The committee was having no locus standi to maintain this reference and it was not having any legal status or any legal recognition as the self-styled committee will not have any right. It is only the persons alleged to be share holders of offerings, who could submit this reference on the ground that the shrine is their private property. It was also stated that the waqf was registered on the application of Shia Muslims of Lucknow and after inquiry and after giving full opportunity to the committee to produce its evidence, but the committee was uncertain on its stand and gave evasive reply and played dilatory tactics on account of which decision has been taken. It is not only under Section 29 of the Act, but also under Section 33 of the Act the Board may collect information regarding any property which it has reason to believe to be a waqf property and if any question arises whether a particular property is waqf property or not, it may after making such inquiry as it may deem fit, decide the question. It was also stated that since time immemorial the shrine is the most popular religious shrine of the Shia community of India where people in thousands and lacks congregate on religious occasions held by Muslims all the year round and biggest Al and Taboot processions terminate here. Since shahi days this shrine is the place of prayer and worship where newly weds come for blessing, where dangerously ill come for cure of their disease. The word "Dargah" means a door of fulfillment of desires means a shrine, may be a tomb of a saint or a replica of a tomb of a saint where people pray to God through the media of the saint for alleviation of their difficulties, sufferings and fulfillment of their desires. The income of the shrine is from two main sources; one from the offerings of devotees and the second from the rent of property let out. All the property came into existence out of religious motive of persons who constructed it and none of the properties of the shrine movable or immovable can be regarded as secular or personal property. The shrine is a renowned place of worship, but in spite of that opportunity was given to the committee, but it failed to respond and did not submit any cogent evidence to establish that it is a private property. Therefore, the Board has committed no illegality in passing the aforesaid orders. The offerings made at a shrine or tomb or Imambara are waqf property under sub-section 12 of Section 3 of the Act and offerings made by devotees at the shrine are not personal property of anybody. It was also denied that any of the descendants of Nawab Hasan Ali Khan has received any share out of the offerings for the last several decades. The shrine is a public waqf and if ever it is held to be a private waqf for the benefit of the family members of particular individual, its entry in the waqf register is quite legal and valid in view of the authoritative view of the Division Bench of the Allahabad High Court vide Sunni Central Board of Waqfs vs. Hasan Jehan Begum in 1976 Lucknow Law Journal. Dargah Hazrat Abbas (step brother of Hazrat Imam Husain) is one of the most respected religious places of Shia community of India and the members of the committee to keep their life long monopoly over this important shrine and its finances without the least interference from any source whatsoever. The registration of the said shrine as a waqf and bring it under the control of the Board did not entail the least disturbance in its administration except that it has become subject to audit by the authorities of the Board. A statutory duty was cast upon the Board to register it as a waqf for its future welfare and upkeep. It has come to the knowledge of the Board that the members of the committee were busy in managing the affairs of another Dargah at Agra. The averments made in the written statement were replied by means of replication by the plaintiffs-respondents.
The application for injunction duly supported by an affidavit was moved, which was duly replied by the plaintiffs-respondents. The parties were allowed to lead evidence and after conclusion of the evidence, the trial court came to the conclusion that the property in question was a personal property and cannot be termed as waqf property and hence proceeded to set aside the orders passed by the Board dated 14.11.1978 and 30.11.1978 by means of judgement and order dated 6.1.1992. Feeling aggrieved with the aforesaid order, the Board has come forward to challenge the same through this revision.
Submission of learned counsel for the revisionists is that the character of the waqf has to be determined on the basis of long user and the nature of the offerings and the nature of the activity going on there. He has further submitted that the shrine has never been a personal property, but in fact the arbitration proceedings and the award, which was made the Rule of the Court by means of order dated 8.7.1932 by the Sub-Judge, Malihabad, District Lucknow cannot in any manner affect the merit of the case and neither on the basis of the said decree the shrine in question can be termed to be a personal property. The U.P. Muslim Waqf Act was promulgated for the first time in the year 1936 and prior to the said date the award has already been made the Rule of the Court on 8.7.1932. He has also submitted that the provisions of the Act were never taken into consideration and neither the reference was made in the said award. The award was consensual which was made Rule of the Court and the revisionists were never party to the said proceedings. The character of the shrine has to be determined after the enforcement of the Act in 1936 and thereafter with the promulgation of U.P. Muslim Waqf Act, 1960. It has further been submitted that if by chance the Survey Commissioner has over looked the said shrine to be included in the waqf, that will not confer any right upon the respondents, but in fact the Board is not precluded from exercising the said power as contemplated under Section 33 of the Act at any point of time and when it came to the knowledge of the Board, the application was entertained and accordingly the shrine was registered as a waqf property. It has been submitted that the offerings never went to the descendants of Nawab Hasan Ali Khan and they have not been managing the affairs of the said shrine for the decades together. The so called committee, which came into existence by means of the decree dated 8.7.1932 in pursuance to the award cannot confer any legal status and neither change the complexion of the waqf property, which is established by long user. It is also submitted that the shrine is the most popular religious shrine of the Shia community of India where people in thousands and lacks congregate on religious occasions held by Muslims all the year round and biggest Al and Taboot processions terminate here. Since shahi days this shrine is the place of prayer and worship where newly weds come for blessing and dangerously ill come for cure of their disease and by its long user, it has become a waqf property. The law in regard to waqf has been settled by the apex Court as well as by the different High Courts in the following cases:
Maher Husein v. Alimahomed, AIR 1934 Bom. 257, Mohammad Shah v. Fasihudin Ansari, AIR 1956 SC 713, Khati v. Mirza Hossair, AIR 1962 Orissa 95, 40 Cal 297 (4) (PC) Anjuman Islamia v. Najim Ali and others, AIR 1982 M P 17 Jawaharbeg v. Abdul Aziz, AIR 1956 Nag 257 Sain Maule Shah v. Ghane Shah, AIR 1938 PC 202 Rahim Khan v. Fakir Mohd. Shah, AIR 1946 Nag 401 Miru v. Ram Gopal, 1935 All 1269, and Chutkoo v. Lala Ghambir, 1930 Luck. 452.
Apart form it, it has also been submitted by the counsel for the revisionists that under Section 3 (12) of the Act "waqf property" includes offerings made at a shrine or tomb or Imambara and the "waqf" means 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 waqfs-alal-aulad.
Countering the arguments of counsel for the revisionists, counsel for the opposite parties has submitted that the shrine in question is a private property as ruled by the Civil Court by means of decree dated 8.7.1932. He has further submitted that the share of offerings made at the shrine went to the Nawab Hasan Ali Khan and his descendants and provision in that respect was made in the orders of Nawab Wajid Ali Shah (Shahi Farman) and other persons were restrained from receiving the share derived from the income of the shrine. In 1931 a dispute arose between the descendants of Nawab Hasan Ali Khan on which arbitration proceedings were initiated. The said proceedings were decided on the basis of compromise and thereafter the said award made the Rule of the Court by means of decree dated 8.7.1932. In the said decree it has been held that it is a personal property and not a waqf property. The property was continuously in the possession of the committee, which was constituted after 8.7.1932 and the same has been managing the affairs of the shrine and collecting the offerings, therefore, the registration of the said property as a waqf is wholly illegal. It has also been submitted that in spite of time prayed for by the respondents, no time was granted and the shrine in question was registered as a waqf on the initiation of Sri S.A.H. Rizvi, the then Controller, who wrote a letter for registering the shrine as a waqf to Syed Ali Zaheer, who happened to be the elected Chairman of the Board. The trial court has committed no illegality in setting aside the orders passed by the Board, which are wholly arbitrary and have been passed in violation of the principles of natural justice.
I have heard learned counsel for the parties and perused the record.
The building was constructed at a place where Saint Mirza Faqira was living in the year 1800 and since then followers/worshipers have been continuously using it and coming there for offering prayers and they also made offerings at the shrine. The family members of the Saint Mirza Faqira at the relevant time used to collect those offerings. Later on, Nawab Wajid Ali Shah divided the income into two parts in the manner that the offerings made by the male devotees were to go to the treasury of the Nawabs, whereas the offerings made by the female devotees were to go to the family members of the Saint Mirza Faqira. Later on, during the regime of Nawab Wajid Ali Shah a Government Order (Shahi Farman) was issued and according to the said Government Order, the administration of the income of the shrine was handed over to Nawab Hasan Ali Khan and thereafter Nawab Hasan Ali Khan and his descendants derived the income of the shrine and managed the affairs of the shrine. In 1931 a dispute arose between the descendants of Nawab Hasan Ali Khan in regard to distribution of the income, whereupon arbitration proceedings were initiated and the said proceedings ended up in compromise and after the compromise the award was made the rule of the Court by means of decree dated 8.7.1932. In the said order, it has been held that the shrine in question is a personal property and is not a waqf property. The said finding cannot be accepted on account of the fact that the Act came into force in the year 1936, which was later on substituted by a new Act known as 'U.P. Muslim Waqf Act, 1960'. At the time when the dispute was decided between the descendants of Nawab Hasan Ali Khan, the Act was not in existence and neither the provisions of the Act were considered in the said award nor in the decree dated 8.7.1932. The said award, therefore, has no bearing on the decision of this case and the trial court has wrongly relied upon the said award and the decree of the court to hold that it was a personal property.
The proceedings in regard to registration of the shrine as a waqf were initiated on the basis of an application dated 9.5.1978 moved by one S.A.H. Rizvi, who happens to be the Controller of the Board. Sri Rizvi made an application when Sri Syed Ali Zaheer was elected as the President of the Board and the same was notified by means of notification dated 27.11.1978. The said letter was replied by means of letter dated 15.6.1978 asking therein as to under which provision of the Act the waqf was to be registered. This letter was replied on 19.7.1978. Thereafter, on 29.7.1978 the Secretary of the shrine wrote a letter to the Secretary of the Board asking therein for certain time as it was said that he was searching for the relevant judicial documents and, therefore, it was not possible for him to submit reply by 31.7.1978. Again, the Secretary of the shrine wrote a letter on 28.10.1978 to the Secretary of the Board and asked for one months' additional time to file reply. It appears that by means of order dated 15.11.1978 the Secretary of the Board informed the Secretary of the shrine that the Board has decided to register the shrine as a waqf. Thereafter, The Secretary of the shrine wrote a letter on 22.11.1978 to the Secretary of the Board that the action of the Board was illegal. Various other objections were also raised that no such application was given for registering the shrine as a waqf as contemplated under Section 29 of the Act and no inquiry was held and the Board proceeded to register the shrine abruptly as waqf. It was also stated in the said letter that proper opportunity was not given to the committee of shrine to file evidence in support its claim. On 30.11.1978 a letter was received from the Board by the committee and according to the said letter Sri Syed Kazim Raza Kazimi, Advocate was appointed as Administrator. The shrine has been created in the year 1800 and since then public at large were making prayers and they also made offerings and they are coming continuously and the same was being used by public at large for offering prayers and also making offerings. Since long time Dargah Hazrat Abbas is the most popular religious shrine of the Shia community of India where people throng for offering their prayers and they also congregate on religious occasions held by Muslims (religious congregation) all the year round and biggest Al and Taboot processions terminate here. Since the days of Nawabs this shrine is being used as a place of prayer and worship, where newly weds come for blessing and where persons having various kinds of ailments also come and offer their prayer for being cured. 'Dargah' means a door of fulfillment of desires, it may be a tomb of a saint or a replica of a tomb of a saint where people pray to God through the media of the saint for alleviation of their difficulties, sufferings and fulfillment of their desires. It is evident from the nature of the long user of the shrine and the nature of the activity going on that it was a waqf as the evidence on record goes to indicate that people of Shia community from all over India used to gather there on religious occasions and otherwise also the people come there everyday to pray and for making offerings at the shrine.
The law in regard to the nature of the waqf by long user has been consistently upheld by the apex Court as well as by the different High Courts.
In the case of Maher Husein v. Alimahomed (supra) the Bombay High Court while considering the question of nature of waqf held as under:
" The authorities cited show that there must be a declaration of dedication which should be made contemporaneously with the act of dedication: Banubi v. Narsingrao. The wakif must divest himself of the ownership of the property: Muhammad Yunus v. Muhammad Ishaq Khan. Physical delivery is not essential, but such possession as is possible must be given: Abadi Begum v. Kamiz Zainab. There are special rules in the case of mosques--- Willson's Anglo Mahomedan Law, S.320; Amir Ali's Muhammadan Law, Vol.1, page 394 ff: and Tyabji's Principles of Muhammadan Law, S.514. When once a building has been set apart as a mosque it is enough to make it wakf if public prayers are once said there with the permission of the owner. But though a declaration of dedication and completion by some act giving practical effect to it are essential, it was not always necessary that there should be any direct evidence of these things. Dedication may be inferred from long user as wakf property: see Court of Wards v. Ilahi Bakhsh and Muhammad Hamid v. Mian Mahmud; and other cases cited in Tyabji's Principles, S.458. There can be no doubt as to this principle which is recognised in all the text books."
Their Lordships of the Privy Council in 40 Cal 297 (4) held as under:
" A grave-yard by user became wakf. We do not think that the provisions of the Easements Act or of any part of Chap.6, in regard to license apply where a zemindar allows the Mahomedan population to use a building as a mosque. The provisions in Chap.6, appear to us altogether inconsistent. In such a case we consider that where there is a finding that a mosque exists, this necessarily implies that there is no longer any question of easement or of license. Under the Mahomedan Law the mosque is the property of God and not the property of the zemindar. Learned counsel for the plaintiff objected that there was no case of a transfer such as is necessary for transfer of property, but we consider that the consent of the zemindar to the use of a building as a mosque is sufficient.
In the case of Khati v. Mirza Hossair (supra) the High Court of Orissa held as under:
" A wakf normally requires express dedication, but if it had been used from time immemorial for religious purpose, then the land is by user wakf although there is no evidence of express dedication. In the present case, it is evident that there is no proof of express dedication; therefore, the only question is whether there is evidence of user and if so, user of what. Wakf, as defined in Wakf Act, means the permanent dedication by a person professing the Musalman faith of any property for any purpose recognised by the Musalman law as religious, pious or charitable; the legal meaning of wakf, according Abu Hanifa, is the detention of specific thing in the ownership of the wakf or appropriator, and the devoting or appropriating of its profits or usufruct "in charity on the poor or other good objects" (Principles of Mahomadan Law by Mulla, 14th Edn,. Art.173)"
In the case of Anjuman Islamia v. Najim Ali and others (supra) the Madhya Pradesh High Court while considering the various decisions of the apex Court as well as by the High Courts held as under:
" In Section 188 of the Principles of Mahomedan Law by Mulla (18th Edition), it has been stated that if land has been sued from time immemorial for a religious purpose, e.g., for a mosque or a burial ground or for the maintenance of a Mosque, then the land is by user wakf although there is no evidence of an express dedication. A Division Bench of the Nagpur High Court in Jawaharbeg v. Abdul Aziz, AIR 1956 Nag 257 took the view that creation of a wakf can be established by user, but the user must be of such an unequivocal nature which can only lead to an inference of dedication of the property to the wakf. What is required to be established is the intention on the part of the owner to dedicate a particular property to religious or charitable purposes, or, in other words, the intention of the owner to create wakf of the property and that such an intention may be established by a declaration or may be inferred from user. Almost the same view was endorsed by their Lordships of the Supreme Court in Mohammad Shah v. Fasihudin Ansari, AIR 1956 SC 713, wherein it was observed that as a matter of law the wakf normally requires express dedication but if the land has been sued form time immemorial for religious purposes, then the land is by user wakf although there is no evidence of an express dedication. There is no doubt, that the property may become wakf by long user as the place of worship or for other religious purposes in the title of the original owner will extinguish, the property having acquired a public character, shall vest in God.
16. In Sain Maule Shah v. Ghane Shah, AIR 1938 PC 202 it was observed that a 'takia' is a place where a fakir or dervish resides, before his pious life and teachings attract public notice and before disciples gather round him, and a place is constructed for their lodgement. A 'takia' is recognised by law as a religious institution, and a grant or endowment to it is a valid wakf or public trust for a religious purpose. In Abdul Rahim Khan v. Fakir Mohd. Shah, AIR 1946 Nag 401, it was observed that where in a suit for a declaration that a property is wakf, the ancient history regarding the dedication of the property as wakf is not available, the decision can be based on such evidence as can be gathered from how the public regarded the property, its environment and the conduct of parties."
In the case of Miru and others v. Ramgopal (Supra) this Court held as under:
" But where a building has stood on a piece of land for a long time and the worship has been performed in that building, then it would be matter of inference for the Court which is the Judge of facts, as to whether the right has been exercised in that building for such a sufficiently long time as to justify the presumption that the building itself had been allowed to be consecrated for the purposes of such rights being performed. Where there is a mosque or a temple, which has been in existence for a long time and the terms of the original grant of the land cannot now be ascertained, there would be a fair presumption that the sites on which mosques or temples stand are dedicated property. There can be no legal impediment to such a dedication, as the owner of the land can make a grant of the site even to persons of a different community and creed, and allow them then to dedicate that site by building a place of worship on it. Where therefore the Court finds that a mosque or a temple has stood for a long time and worship has been performed in it by the public, it is open to the Court to infer that the building does not stand there merely by the leave and license of the owner of the site, but that the land itself is a dedicated property and the site is a consecrated land, and is no longer the private property of the original owner. ..... In the case of grave-yards, it has been held in several cases that long user justifies the inference that the land itself is a dedicated or consecrated property, or that even if it is not dedicated, it has become wakf property."
From the enunciation of law propounded in the aforesaid cases, the question of express dedication has been diluted and the character of the waqf has been determined on the basis of the activity going on from several decades. On the own showing of the respondents, it is established that the building of the shrine was constructed at the place where Saint Mirza Faqira used to live and thereafter it has been used by the public at large in the same form and prayers have been continuously offered there. Therefore, the long user of the property for religious and charitable purpose goes to indicate that it is a waqf property. Prayers have been offered and offerings have been made continuously and the yearly Urs have also been held. Apart from it, religious congregations are also held regularly and the people belonging to Shia community come and offer their prayers and it is used by the public at large and the biggest Al and taboot processions terminate at this point. Looking to the long user by the public at large, there is no other view which may be taken in the matter. In the opinion of the Court, the property in question is a waqf property and has rightly been registered as a waqf.
The question of giving opportunity to the respondents is of no consequence in view of the fact that they themselves took time on various occasions, but did not file any reply just with a view to delay the proceedings and avoid the registration of the property as a waqf.
The argument of the counsel for the respondents that application has not been given in proper form and once the waqf has been registered under Section 33 of the Act, further registration is not permissible under law, cannot be accepted on account of the fact that during the survey if any property is left over, then Section 29 of the Act gives liberty to the parties to come forward to make an application for registering the property as waqf property. The proceedings were initiated suo motu on the application of the Administrator. It is to be noted that no such evidence has been adduced even before the Tribunal to indicate that it was a personal property and not the waqf property. The only evidence which has been brought forwarded is in the form of decree of the court dated 8.7.1932 on the basis of award, but as opined herein before the said decree was passed on the basis of compromise in regard to distribution of offerings.
Having considered the matter from all aspects, I find that the order passed by the Tribunal cannot be sustained and is liable to be set aside.
The revision is accordingly allowed and the order dated 6.1.1992 passed by the Civil Judge, Lucknow (Tribunal) is hereby set aside. The orders passed by the Board dated 14.11.1978 and 30.11.1978 are hereby maintained. It will be open for the committee to apply to the Board for management of the waqf as permissible under law.
October 20th , 2011 Rao/-