P L D 1958 Dacca 203 (PLP)

Envisaging Article 18 (b), its design would appear to be to protect religious institutions. 1t is by no means easy to give a definition of the word 'Institution' that will cover every use of it. Its meaning must always depend on the context in which it is found. Article 18 of the Constitution provides "Subject to law, public order and morality.‑(a) every citizen has the right to profess, practise and propagate any religion; and (b) every religious denomination and every sect thereof has the right to establish, maintain and manage its religious institution". Did the Constitution‑makers intend that every human activity connected with religion was to be protected ? That such was not the intention of the Constitution‑makers is apparent from the expressions 'religious denomination' and 'religious institu tions' occurring in Article 18 (b). The word 'denomination' has been defined in the Oxford Dictionary to mean "a collection of individuals classed together under the same name ; a religious sect or body having a common faith and organization, and designated by a distinctive name". Further, the dictionary meaning of the word "manage" is "to govern a thing, command, control or conduct". Hence these words indicate that there should be ail organization and not a mere concept. It seems to me that what is contemplated by the expressions used in Article 18 (b) is something different from the right to practise religion. I am, therefore, unable to accept the contention of the learned Advocates for the petitioners that the concept of wakf is protected by Article 18 (b). The question of faith and belief is protected by Article 18 (a) acid Article 18 (b) protects an organization of the sect in pursuance of that belief. In other words, the right guaranteed under Article 18 (a) is an individual right whereas the right guaranteed under Article 18 (b) is a collective right of a religious denomination. Hence it may be stated that the question of creating wakf comes within Article 18 (a) which gives fundamental right to anyone to profess and practise his religion. Article 18 (b), however, contemplates establishment of certain organization by the religious denomination in accordance with their faith. Now wakf‑al‑al‑aulad is a dedication substantially for the benefit of the wakif's family. These petitions have been filed by the mutwallis or the beneficiaries. I fail to see how the question of its maintenance and management by a religious denomination arises. No doubt, in a broad sense, the Muslim community may have indirectly some interest in the pre servation of wakf‑al‑al‑au lads. It may be said that property leads to sufferings and on humanitarian grounds the Muslim Community may have distant and theoretical interests in pre venting sufferings. There is, when one comes to think of it, scarcely any measure of benefit to any particular individual in which some argument could not be adduced on the line that a community has an interest, but yet it would be difficult to contend that the Muslim community has a right to maintain and manage any of these particular wakf‑al‑al‑aulads. The Muslim public has not the least interest in whether the individual members of the wakif's family are poor or rich or whether they live in comfort or they do not. Here I may observe that Muslim Law makes a distinction between a public wakf and a private wakf. This is clear from the following observations of the Judicial Committee in the case of Mahomed Ismail Ariff and others v. Ahmed Moolla Dawood and another (43 1 A 127 (1341)) :‑ "The Mussulman law, like the English law, draws a wide distinction between public and private trusts. Generally speaking, in case of a wakf or trust created for specific individuals or a determinate body of individuals, the Kazi, whose place in the British Indian system is taken by the Civil Court, has, in carrying the trust into execution, to give effect so far as possible to the expressed wishes of the founder. With respect, however, to public, religious or charitable trusts of which a public mosque is a common and well‑known example, the Kazi's discretion is very wide. He may not depart from the intentions of the founder or from any rule fixed by him as to the objects of the benefaction ; but as regards management, which must be governed by circumstances, he has complete discretion. He may defer to the wishes of the founder so far as they are conformable to changed conditions and circumstances, but his primary duty is to consider the interests of the general body of the public for whose benefit the trust is created. He may in his judicial discretion vary any rule of manage ment which he may find either not practicable or not in the best interests of the institution". This passage was also quoted with approval by the Judicial Committee in Mahommedally Adamji Peerbhoy and others v. Akberally Abdul Hussain Adamji Peerbhoy and others (38 C W N 452 P C) From the above decision, it is clear that the dedication for the benefit of an individual is not a dedication rot public purpose. I, therefore, think that there may lie a dedication which, though a religious institution, may not lie for the benefit of a religious denomination. For example, would a provision in the wakfnama that a certain amount should be paid to a particular individual for performing haj will be a dedication for the benefit of a religious denomination ? I consider not. No one will say that haj is not a religious institution but the 'community or sect has no concern whether that particular person performs the haj or not. Similarly, a wakif may dedicate certain property for reading the Quran for the benefit of his departed ancestors. This may be regarded as a religious institution but it will be difficult to say that the community has an interest in that institution. I have given these illustrations because they do promote an enquiry whether in any reasonable sense a purpose which is designed only to assist an individual can be regarded as a purpose for the benefit of a religious denomination. 1 have already said that they will not. I, therefore, think that a dedication for the benefit of the children of the wakif cannot be regarded as an institution in which a religious denomination has any interest. I think Article 18 (b), as it stands, discloses an intention on the part of the Constitution‑makers to restrict the exemption, for which it provides, to such religious institution in which a religious, denomination has interest in the main tenance and 'management. I hold that, in dedication for the benefit of children, a religious denomination has no such interest and, as such, Article 18 (b) is not applicable to such, a dedication. Had the Constitution‑makers intended to, protect each and every religious institution, which is for the benefit of individuals, nothing would have been easier than to say so. The language of Article 18 (b), however, clearly shows that that was not the intention of the Constitution makers. The learned Advocates for the petitioners have drawn my attention to sub‑clause (d) of clause (2) of Article 25 of the Constitution which provides that the State will endeavour ''to secure the proper organization of zakat, wakfs and mosques". It has been argued that the proper organization of wakfs means maintenance of wakfs, but the Government, by acquiring wakf‑al‑al‑aulads, is destroying the said wakfs. This Article appears in Part III under the heading "Directive Principles of State Policy". Further, Article 23 (2) of Part III provides "The State shall be guided in the formulation of its policies by the provisions of this Part, but such provisions shall not be enforceable in any Court". Hence, in view of the above provisions, I am not entitled to enter into the question as to how far the State is carrying' out their obligations. I shall, however, like to observe that this wakf‑al‑al‑aulad, which survived the onslaught of the decision of Lord Hobhouse in Abdnl'Fattah's case through the help of Ameer Ali, J., and the Quaid‑e‑Azam, is again faced with total annihilation. It is for the Legislature to consider whether it will be content with what the religious law is prepared to leave to it or would itself determine the sphere which is to be left to the religious law and restrict it or modify it according to its own requirements. I would, however; like to observe that Muslims cannot get away from the deeply‑ingrained concept that wakf for the benefit of children is a religious institution and this, therefore, has become art essential part of the Muslim outlook. I am to interpret the law as it stands and, therefore, I am not entitled to enter into the question of the policy of a particular legislation. I accordingly hold that the dedications for the benefit of children and family contained in these wakfs are not protected by Article 18 (b) of the Constitution and call be acquired under the East Bengal State Acquisition and Tenancy Act, 1950. Now, I take up the last point : To what relief, if any, the petitioners are entitled. When these petitions were beard by the Special Bench, the learned Advocate for the Govern ment conceded that these notifications in respect of the khas lands of the wakfs were not made in accordance with the provisions of the Act. Hence the Special Bench allowed these applications and ordered for cancellation of the said notifications. The Supreme Court has, however, set aside the said order and has asked us to determine to what extent the dedications involved in them are religious institutions within the meaning of Article 18 of the Constitution. I shall. there fore, now consider how far the dedications contained in these wakfs are religious institutions within the meaning of Article 18 of the Constitution. Before dealing with these different wakf s, I would like to observe that the learned Advocates for the parties confined their arguments to the question as to whether a dedication for the benefit of the wakif's descendants and family is a religious institution within the meaning of Article

18. It seems to me that they have not challenged dedications for other religious and charitable purposes because those dedications have been given sufficient protection by sub‑clause (5) of section 20 of the Act. (1) Writ Petition No. 17 of 1956 : This petition relates to the following Wakfs.‑ (1) Khairunnessa Khanum Wakf. (2) Shamsunnessa Khatun Wakf. (3) Majemuddin Ali Khan Wakf. (4) Abdul Hakim Khan Wakf. (5) Raushan Khatun Choudhurani Wakf. (6) Abdul Aziz Khan Wakf. (7) Sir A. K. Ghuzanavi Wakf. (8) Pir Shahenshah Wakf. Kasirunnessa Klianam Wakf provides for the maintenance of a mosque at village Charan. Majemuddin Ali Khan Wakf provides for the maintenance of mosques at Pakulla, Dilduar and Atia. Abdul Hakim Khan Wakf provides for the maintenance of mosques at Dilduar, Pakulla and Charan, Raushan Khatun Choudhurani Wakf also provides for the maintenance of mosques at Pakulla and Dilduar. Pit Shahenshah Wakf provides for the maintenance of a dargah and for the Annual Urs. Sir A. K. Ghuznavi Wakf provides substantially for the maintenance of the wakif's family. Furthermore, there are provisions in these wakfnamas for performance of various ceremonies such as Bakrid Ramzan and Muharram and for the feeding of the poor and the orphans. (2) Writ Petition No. 32 of 1956 : This petition is with regard to Ershad Ali Choudhury Wakf of Chittagong. It provides for the maintenance of a mosque, dargah and of other charities. Some benefit is also given to the family. (3) Writ Petition No. 67 of 1956 : This petition relates to Enayet Hossain Choudury Wakf of Faridpur. In this wakf, there is a provision for the maintenance of a mosque. There are also directions for performance of various religious ceremonies and other charities. (4) Writ Petition No. 28 of 1956 : This petition relates to this Wakf Estate of Khan Bahadur sheikh Obaidullah, Khan and others This wakf provides for the maintenance of four mosques, three at Mirsharai (Chittagong), one at Katalgani. There is also a direction for establishment of mosques at Namabazar and at Soabil at Fatikchhari. Like other wakfs, there are also provisions for religious ceremonies and other charities. (5) Writ Petition No. 62 of 1956 : This petition relates to Syed Hasan Ali Wakf. This wakf provides for the main tenance of two mosques. There is also provision for performance of ceremonies and other charities. (6) Writ Petition No. 14 of 1956 : This petition relates to Muhammad Ibrahim Shah Chowdhury Wakf. There are provisions for the maintenance of mosques, family and charity. Mosques and Dargahs : In all these six wakfs, there are provisions for the main tenance of mosques. Further, some of the wakfs also provide for the maintenance of dargahs. In my opinion dedications for the maintenance of mosques and dargahs are religious, institutions within the meaning of Article 18 (b) of the Constitution. Other Charities and Religious Ceremonies : , These wakfs also provide for the performance of various religious ceremonies and for other charities. I did not receive much assistance from the learned Advocates with regard to these dedications. On the materials before me, it is not possible to decide whether all or any of them should also get the protection of Article 18 (b). The petitioners, however, will be at liberty to agitate this question later if they so desire. I, however, find that the notifications for acquisition of khas lands of these wakfs were not published in accordance with the provisions of the Act. The Government have not followed Rules 26 and

37. Furthermore, the exceptions have not been mentioned in the notifications as required in Form No. IIB. I shall, therefore, allow these six petitions (Writ Petitions Nos. 17, 32, 67, 28, 62 and 14 of 1956) so far as they relate to the acquisition of the khas lands of the wakls. I accordingly direct that the notifications for acquisition of khas lands of the above‑named wakfs be rescinded and be not given effect to. I shall reject the other prayers in these petitions. (7) Writ Petition No. 18 of 1956 (Re : Wajed Ali Khan Pani Wakf). (8) Writ Petition No. 22 of 1956 (Re : Hyder Ali Khan Pani Wakf). In these two wakfs also, the dedications for maintenance of mosques will get protection under Article 18 (b) of the Constitution. While dealing with the other wakfs, I have stated the reasons why I am unable to give the same protection to other charities and religious ceremonies, I am, however, unable to give these petitioners any relief tot the following reasons. It seems that by Notification No. 8717 L.R., dated 28th May 1955, issued under section 3 of the Act the Government acquired part of the wakf of Wajed Ali Khan Pani. The Mutwalh filed a suit, being Title Suit No. 89 of 1956 in the 2nd Court of the Subordinate Judge Mymensingh, for a declaration that the said Notification was null and void and of no legal effect. Similarly, the Mutwalli of Hyder Ali Khan Pani Wakf filed T. S. No. 75 of 1955 for a declaration that Notification No. 434 L. R., dated 7th January 1955, issued by the Govern ment under section a of the Act for acquisition of the said wakf properties was bad in law. Both these suits, T. S. 59 and T. S. 89, which were heard together were decreed on 29th June 1951, that is, after the remand order by the Supreme Court. As there is likelihood of two contradictory judgments and orders, one by the High Court and another by the Sub ordinate Court, in respect of the same wakf, it will not be proper to give the petitioners any relief in these cases. They can agitate this question in a separate suit if they so desire. In the result, I shall allow Writ Petitions Nos. 17, 32, 67, 28, 62 and 14 of 1956 and make the Rules absolute to the extent indicated above. The petitioners will be entitled to one set of costs which I assess at fifty Gold Mohurs. I shall, however, dismiss Writ Petitions Nos. 18 and 22 of 1956 and discharge the Rules without any order as to costs. CHOWDHURY, J.‑On the 13th of April 1956, 83 petitions for writ of mandamus or in the nature of mandamus were moved in the High Court of Dacca against the Provincial Government of East Pakistan and others for directing them to withdraw or rescind the notifications issued under sub sections 1 and 2 of section 3 of the East Bengal State Acquisition and Tenancy Act of 1950 (East Bengal Act No. XXVIII of 1951), as amended by East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956 (East Bengal Ordinance No. III of 1956), acquiring all interests of all rent‑receivers and all khas‑lands of such rent‑receivers in the districts mentioned in the notifications from the 14th of April, 1956. These petitions, except some, were heard by a Full Bench of this High Court consisting of three judges, who repelled all the constitutional objections to the notifications but in the petitions which were directed against the acquisition of lands iii khas possession of mutwallis of wakf and shebaits of debuttar properties, rules nisi issued were made absolute on the ground that the notifications issued in respect of them contravened the provisions of section 20 of the Act. Those writ petitions that were ‑not heard by the Full Bench were heard by another Division Bench of this Court but the decision therein followed the decision of the Full Bench. The rent‑receivers in some of these writ petitions, 59 in number, being dissatisfied with the judgment of the High Court, after obtaining a certificate under clause (1) of Article 157 of the Constitution, appealed to the Supreme Court of Pakistan oil the ground that their objections against the notifications were wrongly decided. The Provincial Government of East Pakistan did not appeal against the decision of the High Court in cases where rules nisi were made absolute as to the khas lands of the mutwalh and shebaits. So, the appeals before the Supreme Court, in these cases, were limited not only to rent‑receiving interests but also all interests of rent‑receivers. In 8 out of these 59 appeals, namely, appeals No. 2/D, 3/D, 4/D, 3, 13, 28, 31 and 34 of 1956, arising out of Writ Petitions Nos. 22, 62, 18, 14, 17, 67, 32 and 34 of 1956, res pectively, the acquisition of rent‑receiving interests as well as all interests of rent‑receivers in lands held in wakf is questioned. Their Lordships of the Supreme Court of Pakistan, in those eight appeals, have differed from the view taken by the High Court of Dacca holding that "these drastic provisions of the Act" strike religious institutions like wakf, wakf‑al al‑aulad and debuttar at their very root, which constitute an infringement of the fundamental right guaranteed by Article 18 of the Constitution and that the expression "subject to law" in Article 18 of the Constitution does not mean that the funda mental rights guaranteed to the citizens of Pakistan to profess, practise and propagate their religion and to establish, maintain and manage their religious institutions can be taken away or infringed by law ; what it means is that in professing, practising and propagating their religion or running religious institutions, if they break out in open practices inviting breach of peace or lead to overt acts against public order, it can be regulated by law. Therefore, Their Lordships have allowed these eight appeals and remanded these cases to the High Court for determining the question as to what extent the dedications involved in them come within the term of religious institution and pro tected under Article 18 of the Constitution and for granting such relief as the Court in its discretion may consider to be appropriate in the circumstances of each case. The order of remand is as follows :‑ "The result is that all the appeals are dismissed except Appeals Nos. 2/D 3/D, 4/D, 3, 13, 28, 31 and 34 of 1956, which are accepted to this extent that the petitions giving rise to them are remitted to the High Court for determining the question as to what extent the dedications involved in them come within the definition of religious institutions and are accordingly protected by Article 18 of the Constitution and for granting such relief as the Court in its discretion may consider to be appropriate in the circumstances". I have quoted the whole of the order of remand because there is a dispute as to the scope of enquiry by this Court under the order of remand. On behalf of the petitioners, it is contended that wakf, wakf‑al‑al‑aulaa and debuttar in general, true to the sense of those terms under the Muslim Law and Hindu Law, as the case may be, are religious institutions and they are held by the Supreme Court to be so within the meaning of clause (b) of Article 18 of the Constitution and, as such, are protected but the Supreme Court has sent these eight appeals on remand to the High Court only to see to what extent dedications involved in each of them are for purposes recognized by Muslim Law as religious and charitable, in other words to determine to what extent the dedication involved in them are valid under the Muslim Law. On the other hand, Mr. Brohi, on behalf of the Govern ment, contends that wakf, wakf‑al‑al‑aulad and debuttar in general by themselves are not religious institutions within the meaning of clause (b) of Article 18 of the Constitution nor Their Lordships of the Supreme Court have decided them to be religious institutions within the meaning of Article 18 of the Constitution, and the question has been left undetermined to be determined by the High Court on remand ; so these appeals were remanded to the High Court for determination of the question and then to see to what extent dedication involved in each of them conforms to and constitute such a religious institution and then to grant appropriate relief. According to him, the Supreme Court only settled 2 questions in relation to the controversy whether wakf, wakf‑al al‑aulad and debuttar properties could be acquired under the impugned Act‑the first question relates to the application of the definition of rent‑receiver to the mutwalli and shebait, and the second refers to the interpretation of the expression "subject to law" appearing in the beginning of Article 18 of the Constitution‑and has not only not specifically decided the question "what is the meaning of the expression 'religious institution' in the Article "but also has not even considered the question in any significant sense". Mr. Hamidul Haq Chowdhury and other learned Advo cates for the petitioner, in support of their contention, referred to that portion of the Supreme Court judgment where His Lordship, the Chief Justice, dealt with the effects of several provisions in the impugned Act on the properties of wakf, wakf‑al al‑aulad and debuttar and held, after considering their effect, that there could be no doubt that "these provisions of the Act" struck the religious institutions at the very root and constituted an infringement of the fundamental right guaran teed by Article 18 of the Constitution. There was no dispute nor any doubt expressed or ever contended either before the High Court or before the Supreme Court that wakf, wakf al‑al‑aulad and debuttar, true to the sense of the terms, were not religious institutions within the meaning of religious institution" in Article 18 of the Constitution, though by that contention the claim of the petitioners could have been defeated; rather all concerned proceeded on the basis that they are religious institutions and, in fact, before the Division Bench of the High Court which heard some of these petitions, it is expressly conceded by the learned Advocate on behalf of the Government, as it appears from the judgment, that they are religious institu tions within the meaning of Article 18 of the Constitution. I do not think Their Lordships of the Supreme Court are unmindful of this express concession. So, there was no' necessity either for the High Court or for the Supreme Court to decide it specifically. But the fact remains that when the Supreme Court, after considering the effect of some of the provisions of the impugned Act upon the properties of wakf, wakf al‑al‑aulad and debuttar, held that "these drastic provisions in the Act" undoubtedly struck the religious institutions at their very root and constituted an infringement of the fundamental right under Article 18 of the Constitu tion. Their Lordships of the Supreme Court could not have any other institutions in their mind and contemplation than those they were dealing with. Nor can it be contended that Their Lordships were dealing with an hypothetical case dissociated from the facts of the cases before them: So. I think Their Lordships of the Supreme Court, though not expressly but by necessary implications, have decided that wakf, wakf al‑al‑aulad and debuttar in general, true to the sense of those terms, are religious institutions within the meaning of Article 18 of the Constitution. Even if it is not a decision but an opinion expressed by Their Lordships, it is an opinion of the Supreme Court and must have due and high regard. In my view, therefore, the cases in the eight appeals are remanded only to determine to what extent the dedications involved in each of them are religious institution under the Muslim Law and then to grant appropriate relief. So the determination of the question whether wakf, wakf al‑al‑aulad and debuttar in general, true to the sense of the terms, are religious institutions or not within the meaning of Article 18 of the Constitution does not come within the scope of the order of remand. The remand order, as it appears from the order itself, is confined to the determination of the extent the dedications involved in each of the wakfs, wakf al‑al‑aulad are dedications for purposes‑ recognized by the Muslim Law as religious and charitable. The next question urged on behalf of the petitioners is that, even if the question comes within the scope of the order of remand, there is no escape from holding that wakf and wakf al‑al‑aulad and debuttar are religious institutions under the Muslim Law and under the Hindu Law, as the case may be. The learned Advocates for petitioners .cited various authorities including Privy Council decisions in support of their contention. The institutions of wakf emanated from and enjoined by the Holy Quran (vide Surah Buqrah, Chapter II of Allama Yusuf's translation) and precepts of the Holy Prophet (ride Ameer Ali's Muhammadan Law, Volume I) and practised by the true followers of the Prophet from the time of the Prophet as a part and parcel of their faith and religion anti, as such, they are religious institutions, The authorities cited are the cases of Bikani Mia v. Shuk Lal Poddar and another (supra), Abut Fata Mahomed Ishak and others v. Rasamaya Dhur Chowdhuri and others (I L R 22 Cal. 619 (631)), The State of Bombay v. Narasu Appa Mali (A I R 1952 Bom. 84 (92)). The Commissioner, Hindu Religious Endowments. Madras v. Sri Shirur Mutt (A I R 1954 S C 282 (288)) and the case of Meer Mahomed Israil Khan v. Sashti Churn Ghose and other besides Ameer Ali's Muhammadan Law. I need not discuss all these authorities except Amir Ali's Muhammadan Law (Volume I, 4th Edition), parti cularly Wakf Chapter, where the learned author, after referr ing to and discussing various authorities,‑ ancient and modern, including judicial decisions, found that wakfs which can be divided into public and private, rather, public, quasi -public and private, are religious institutions I may quote the following passage from the book of the learned author at page 308. " From the year 1798 downwards the Courts of Justice have uniformly applied the Mussulman Law to the deter mination of questions affecting the validity of dispositions made by Muhammadans. In the case of Jewan Das Shau v. Shah Kubiruddin Ahmed ((1840) 2 Moor I A 390), the appellant was a Hindu, and the question was whether the property which formed the subject‑matter of the suit was wakf or not. Their Lordships in the Privy Council decided the case on the basis of the Muhammadan Law. And every case before and since has proceeded upon the same principle (See also Zohoruddin Sircar v. Baharulla Sircar (W R 1684 (187)). Apart, therefore, from the question whether a wakf in favour of the endower's family is a religious institution or not, it is submitted with respect that it would be contrary, not only to the principles of 'justice, equity and good conscience,' which the British Indian Courts have to administer, but also to 'immemorial and recognized practice.' to apply to its consideration any principle other than that of the Muhammadan Law. And Their Lordships of the Judicial Committee have condemned in express terms the idea that the validity of dispositions made by Mussulmans should be decided from any other point of view than that of their own laws and customs." The Muhammadan Law, therefore, must be sought in authorities recognized by the Muhammadans as such, for, it would hardly be right to decide a case according to Muhammadan Law, and yet wholly to ignore the Works in which, that law is to be found. Mr. Morley points out in his Digest the sources from which the Muhammadan Law is derived. He shows that Mussulman Law is founded (a) on the Koran; (b) on the precepts of the Prophet; and (c) on the decisions of the leading disci ples. The direct precepts and practice of the Prophet form part of what may be called the Statutory Law of Islam, being regarded as supplementary of the divine ordinances in the Koran. Mr. Morley also repeatedly mentions show closely connected religion and law are among the Mussulmans, and how impossible it is to dissociate the one from the other. His remarks on this subject are worthy of considerations ; "In considering the propriety of altering or abrogating the Hindu or tvluhammadati Laws, all pre‑conceived notions of the relative excellence of the English and Native systems of jurisprudence should be taken as secondary considera tion. Nor should it be called in question whether such systems are in themselves good or bad, for, it should never be forgotten . . . . that they are an integral part of faith of that people, and that though we may not be bound by absolute treaty, we have virtually pledged ourselves to preserve them by repeated proclamations and enactments". The institution of wakf in which the endower's family and descendants are the immediate recipients of the benefaction, owes its origin to the direct ordinance of the Prophet. Not only did he declare that a provision for one's family was the best of alms‑giving but he encouraged members of his household and his companions to create such wakfs, and himself set the example by consecrating certain lands at Khaibar. As I have said before, in dealing with the Mussulman Law, the meaning attached by Mussulmans to the words "charitable purposes" has been, unfortunately, often lost sight of. Charity has been construed to mean "charity to the poor," irrespective of the endower and his descendants; and piety and religion to mean such acts as would, in practical Europe, be regarded as pious or religious. This is not the Mussulman Law, which will be best explained by the following passage from the Mishkat, showing what the Prophet considered "piety and charity" to mean :‑ The Apostle of God said, 'When a Mussulman bestows on his family and kindred, hoping for reward in the next World, it becomes alms, although he has not given to the poor, but to)"his family and children.' The authority of Ameer Ali on Muslim Law is considered supreme throughout undivided India and even by the Privy Council. When the view of the learned author was referred to. Mr. Brohi, the learned Advocate for the opposite party, said that "religious institutions" in clause (b) of Article 18 of the Constitution are not those referred to by the learned author Syed Ameer Ali but of a different character, that is, they are different from those that are understood under the Muhammadan Law. His contention is that unless a dedication has got a public character, it is not a religious institution within the meaning of Article 18‑it may be a legal institution but not a religious institution. He contends that the words " religious institution" in clause (b) of Article 18 of the Constitution have to be read with reference to its context "every religious denomination and the sect thereof" which indicates that "religious institution" in the Article contemplated are religious institutions of a public character in which a denomination or a sect thereof are interested and he referred to difference in the language used in clause (a) where it refers every citizen. He also refers to the dictionary meaning of "institution" which, according to the concise Oxford Dictionary, means "organiza tion for promotion of some public object." Therefore, he contends that what is protected is a public wakf, that is, the wakf where the property is dedicated exclusively for public purposes and public charity and so much of private wakf, rather quasi‑public wakf.‑as dedications in them are for such purposes and not the private wakf including wakf al‑al‑aulad in which dedication is for the benefit of an in dividual or a set of individuals. His further contention is, that wakf like a gift is optional, that is, Mobha, and not compulsory or Faraz, non compliance of which is to incur demerit or displeasure; that is, if you create a wakf, you earn a merit; if you do not, you will not incur demerit or divine displeasure; so it is not an absolute part of religion to call it religious. There is no doubt that the framers of the Constitution, while using the expression "religious institution", used it in the same sense as understood by the citizens of Pakistan under their personal law and not in the technical sense of English Law where charity has got a meaning different from a charity, sadakah, under the Muslim Law or Hindu Law ,G and, by the expression "every religious denomination and every sect thereof" used by them, they mean every member o a religious denomination and every member of the sect threeof. They either individually or collectively will have the right to establish, manage and maintain their religious institutions. Otherwise, the word "establish" with reference to religious institutions will mean a religious institution established by a religious denomination as a whole and not by an individual of such denomination. The absurd result that would follow would be that if any individual of a religious denomination establishes a wakf, though public in character, it will not be protected under clause (b) of Article 18 of the Constitu tion, as it is not established by the religious denomination itself ; but Mr. Brohi has conceded that such an institution having a public character will be protected under the Article. Let us take the converse case. Suppose a religious deno mination or a sect thereof created a private wakf for the benefit of poor and his descendants. According to Mr. Brohi, though it was created by the religious denomination as a whole, as it has got no public character, it will not be protected under clause (b) of Article 18 of the Constitution. The same result will follow in case of "maintain" and " manage" if we read them in the way suggested by Mr. Brohi. Then, what is the significance of reading the words "religious institution" with reference to its context "religious deno mination and every sect thereof" in the sense of Mr. Brohi, if that context does not apply equally ? The expression " religious denomination" is a general name for a class of like individuals such as Christian, Muslim, etc., which means every individual Christian as well as the Christian Community. In clause (a) of the Article, the right to profess practise and propagate any religion is given to every citizen. Can it be imagined that such a right in respect of establishment, management and maintenance of a religious institution which forms part of practice of a religion is denied to a citizen ? The Supreme Court has pointed out that Article 18 does not, however, empower the Legislature to make law that thereafter no institution of a religious character shall be established, maintained or managed or that an existing religious institution shall be abolished. The fundamental canon of construction of a Constitution mentioned by the Supreme Court in its judgment that a Constitution should receive liberal interpretation in favour of the citizen specially in respect of those provisions which are designed to safe guard the freedom of conscience and worship is equally applicable in interpreting clause (b) of Article 18 of the Constitution. If it is the intention of the Legislature not to include private wakf and wakf‑al‑al‑aulad in the fundamental right, they might have said so in express terms or by neces sary implication. Further, I may point out here that the very wakf ultimately goes to public charity. So, it cannot be said that a private wakf has not got the public character in object though that object is not the proximate one. His reference to the dictionary meaning of 'institution' is also not exhaustive. It also means establishment in cure of souls, that which is instituted or established, any thing forming a characteristic and persistent feature in social or national life or habits, established law, customs or practice. It also means an organization instituted for the promotion of some objects, specially one of public utility, religious or charitable : vide Webster's International Dictionary. So, wakf in this context also is an institution, as it is an organiza tion established or instituted for promoting the object of charity in perpetuity, the organisation being provided with necessary properties, rules for management and maintenance. There is no difference between law and religion under the Muhammadan Law. Mr. Morley in his Digest repeatedly mentioned how closely connected religion and law are among the Mussulmans and how impossible it is to dissociate the one from the other. The same consideration will apply to debuttar, as conception of charity is same under the Hindu and Muslim Law. "The laws of Hindus and Muhammadans are part and parcel of their religion and believed by them to be of divine revelation": vide Mr. Morley's Digest quoted by Ameer Ali, J., in Bikani Meah v. Shuk Lai Poddar (supra). In this connection, reference may also be made to the case of ]Jidya haruthi v. Balusree Ayyar (I L R 44 Mad. 831 (P C)). So, in my opinion wakfs including wakf‑al‑al aulad and l are religious institutions within the meaning of F Article 18 of the Constitution and therefore protected under that Article. The next question if even if wakf, wakf‑al‑al‑aulad and debuttar are religious institutions, can the properties of such institutions be acquired under the impugned Act to maintain the object of the dedication ? My answer is in the negative H first of all, I have already pointed out that wakf including wakf‑al‑al‑aulad and debuttar are themselves religious institu tions under the Muhammadan and Hindu Law. Wakf s are constituted by dedication of properties in the name of Allah for the benefit of mankind which may include the wakif and his descendants. If the very property, the dedication of which constitutes the wakf, the religious institution, is acquired, then the whole institution is affected ; in the case of wakf al‑al‑aulad, it is lost and wiped out as pointed out by the Supreme Court. In other cases, the institution itself will be affected. What constitutes a religious institution is not the object for which a wakf is created, namely, mosque, dargah, khanka and other charitable objects but the dedication of property. So wakf itself is a religious institution. If the property of the wakf is acquired, even providing for annuity for the maintenance of the object, it is not protecting the institution under Article 18 of the Constitution. There is also no provision in the impugned Act for annuity in case of private wakf. In this connection, I may refer to the passage in the judgment of the Supreme Court where His Lordship the Chief Justice dealt with the effect of some of the drastic provisions of the impugned Act and held that these drastic provisions in the Act struck religious institutions at the very root and constituted an infringement of the fundamental right guaranteed by Article 18 of the Constitution. So there cannot arise any question of acquisition of property of wakf or wakf al‑al‑aulad or debuttar which are religious institutions and then to provide annuity for maintenance of the object for which dedications were made. The Supreme Court has nowhere held that wakf properties can be acquired. What Their Lordships have held is that mutwallis of wakfs and shebaits of debuttar also come within the definition of rent receivers. But at the same time Their Lordships have held that wakf, wakf‑al‑al‑aulad and debuttar are protected under Article 18 of the Constitution. The result of these findings of the Supreme Court is that though mutwallis and shebaits come within the definition of rent‑receivers, the properties of I such rent‑receivers held in wakf, wakf‑al‑al‑aulad and dubuttar cannot be acquired, they being religious institutions under Article 18 of the Constitution. The next question is to what extent dedications involved in each of the cases under consideration come within the term of religious institution. I have gone through the deeds of dedication in each case and I have not been able to find any dedication in them which is not for purposes recognized by the Muslim Law as religious and charitable nor it has been contended on behalf of the Government that any dedication involved in any of these cases is not for religious and charit able purposes as understood under the Muslim Law. So, there cannot be any doubt that the interest of the rent receivers involved to these cases are not liable to be acquired by the Government under the impugned Act and the notifi cations issued by the Government acquiring them are all bad and ultra vires as they constitute infringement of fundamental rights. In respect of Writ Petition Nos. 22 and 18, portions of the wakf properties are not the, subject‑matter of the disputed notices issue' tinder subsections 1 and 2 of section 3 of the impugned Act but they are subject‑matters of different sets of notices issued before, for which civil suits are pending' for a declaration that the acquisitions are ultra vires. The petitioners definitely stated in the petitions the facts that portion of the properties of those wakfs are not covered by the writs suits are pending in the Civil Court in respect of these portions. The matter went up to the Supreme Court. Neither the High Court nor the Supreme Court dismissed those petitions on that ground; rather the Supreme Court affirmed the decision of the High Court cancelling the notifica tions so far as they relate to khas land. The Supreme: Court on the other hand by its order of remand directed us to determine to what extent the dedications involved in them come within the definition of a religious institution. Therefore, I think we cannot go beyond the order of remand and dismiss the writ petitions simply because portion of the wakf property which is not covered by the writ petitions is the subject- matter of civil suit. Further, I do not think it advisable to relegate these petitioners to separate suits as the Civil Court is bound by the decision of this Court and of the Supreme Court on constitutional point involved in all the cases before us. In this view of the matter, I regret much that I have not been able to agree with my learned brother on the following points, namely, (1) on the scope of the order of remand, (2) on the interpretation of clause (b) of Article 18 of the Constitution, (3) on the question of acquisition of dedicated properties providing annuity for the maintenance of the objects for which dedications are made, and (4) on the question of dismissing the two Writ Petitions, Nos. 18 and 22, because portions of the wakf properties not covered by the writ are subject‑matters of separate suits pending in Civil Court. The result, therefore, is that the Rules nisi issued in these cases are made absolute and the opposite parties are directed to withdraw or rescind the notices issued in respect of the rent‑receiving interests of the petitioners under subsections 1 and 2 of section 3 of the impugned Act. The petitioners shall be entitled to their costs. Hearing fee I assess at 80 Gold Mohurs, that is 10 Gold Mohurs in each petition. [On a difference of opinion between Akbar, J. and Choudhury J. the case was referred to Ispahani, J]. ISPAHANI, J.‑These Writ Petitions have been referred to me as a Third judge, because the Division Bench, consisting of Akbar and Chowdhury, JJ., have come to different decisions on various points. The facts are that 83 petitions for writs of mandamus or in the nature of mandamus were filed in this Court against the Provincial Government directing them to withdraw or rescind the notifications issued under subsections (1) and (2) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII of 1951), as amended by the East Bengal State Acquisition and Tenancy (Amendment) Ordinance, 1956 (East Bengal Ordinance No. III of 1956), by which all the interests of all rent‑receivers and all khas lands of rent‑receivers in various districts mentioned in those notifications were acquired from the 14th April 1956. The majority of these petitions were heard by a Full Bench consisting of three judges of this Court and that Full Bench disallowed all the constitutional objections to the notifications but in the petitions which were directed against the acquisi tion of lands in khas possession of mutwallis of wakf and shebaits of debuttar properties, the Rules nisi issued were made absolute because the notifications were against the provisions of section 20 of the Act. Some of the writ petitions, which were not heard by the Special Bench, were heard by a Division Bench, which followed the decision of the Full Bench. From these decisions, appeal were preferred by the petitioners before the Supreme Court on the ground that their cases had been wrongly decided by this Court. The Provincial Government did not appeal against the decision in cases where the Rules nisi were made absolute in respect of the khas lands of the mutwallis and shebaits. The appeals before the Supreme Court numbered 59 which included the 8 writ petitions which are before me. Their Lordships of the Supreme Court, in the appeals relating to these 8 writ petitions, differed from the view taken by this Court in respect of the acquisition of wakf and debuttar properties. This Court had held that wakf and debuttar properties could be acquired under the provisions of the said Acquisition Act. In these circumstances, Their Lordships allowed the appeals in respect of these 8 writ petitions which relate to wakfs, and they were remanded to this Court with the following order "The result is that all the appeals are dismissed except Appeals Nos. 2‑D, 3‑D, 4-D, 3, 13, 128, 31 and 34 of 1956, which are accepted to this extent that the petitions giving rise to them are remitted to the High Court for determining the question as to what extent the dedications involved in them come within the definition of religious institutions and are accordingly protected by Article 18 of the Constitution and for granting such relief as the Court in its discretion may consider to be appropriate in the circumstances." On remand, these writ petitions were heard by a Division Bench of this Court consisting of Akbar and Cbowdhury, JJ. They have differed on some material points. Akbar, J., held that the question of wakf‑al‑al‑aulad being a religious institu tion was never raised before the Supreme Court and, therefore, the remand order did not cover this question and it was for the High Court to come to a decision on this point. Chowdhury, J., held that the Supreme Court had decided this question and, therefore, the High Court could not re‑open the same. Akbar, J., while deciding the question as to whether dedications for descendants and children were religious institutions or not, held that wakf‑al‑al‑aulad is as much a wakf as a wakf‑i‑lillah. Chowdhury, J., also came to the same decision, irrespective of the decision by the Supreme Court. Akbar, J., while considering the question as to whether a dedication for the benefit of children and descend ants is a religious institution and protected by Article 18 (b) of the Constitution, held that in a dedication for the benefit of children and descendants a religious denomination has no such interest and, as such, Article 18 (b) is not applicable to such a dedication. Chowdhury, J., on the other hand, held that dedications of this nature also were protected under Article 18 (b) of the Constitution. Lastly, so far as the relief to be given by this Court was concerned. Akbar, J., observed as follows "These wakfs also provide for the performance of various religious ceremonies and for other charities. I did not receive much assistance from the learned Advocates with regard to these dedications. On the materials before me. it is not possible to decide whether all or any of them should also get the protection of Article 18 (b). The petitioners, however, will be at liberty to agitate this question later, if they so desire. I, however, find that the notifications for acquisition of khan lands of these wakfs were not published in accordance with the provisions of the Act. The Government have not followed Rules 26 and

37. Furthermore, the exceptions have not been mentioned in the notifications as required in Form No. IIB. I shall, therefore, allow these six petitions (Writ Petitions Nos. 17, 32, 67, 28, 62 and 14 of 1956) so far as they relate to acquisition of the khas lands of the wakfs. I accordingly direct that the notifications for acquisition of khas lands of the above‑named wakfs be rescinded and be not given effect to. I shall reject the other prayers in these petitions". The cases in Writ Petitions Nos. 18 and 22 of 1956 were a bit different in the sense that in respect of some lands of the wakfs appertaining to those Estates they had been previously aqquired by the Provincial Government under a previous notification and in respect of which rent suits had been filed and decreed in favour of the Wakf Estate. Appeals were pending and Akbar, J., held that inasmuch as there might be a conflict of decisions so far as these two Wakf Estates were concerned, he did not grant them also any relief. In other words, he discharged the Rules in respect of all the wakf estates except to the extent mentioned relating to six writ petitions. On the other hand, Chowdhury, J., allowed all the writ petitions and made the Rules absolute and the opposite parties were directed to withdraw or rescind the notices issued in respect of the rent‑receiving interests of the petitioners under subsections (1) and (2) of section 3 of the impugned Act. Learned Advocates of the parties have advanced exhaustive and learned arguments before me According to the Advocates for the petitioners, all kinds of wakf and debuttar properties were held by the Supreme Court to be religious institutions and, therefore, they were protected under Article 18 of the Constitution which includes clauses (a) and (b). It was contended that inasmuch as the law involved had been decided by the Supreme Court, the remand order was made to ascertain to what extent the dedications involved in these petitions were valid according to Mohammedan Law. Advocates for the petitioners have most strenuously argued that there was no occasion for reopening this question before the Division Bench and, as the question was allowed to be re‑opened, a new argument was advanced before that Bench. namely, as to whether the dedications involved in these wakfs are religious institutions in terms of clause (b) of Article

18. On the other hand,‑it was argued on behalf of the respondent that Their Lordships of the Supreme Court did not either expressly or impliedly hold that wakfs of all kinds and debuttars are religious institutions. It was thus necessary for this Court to come to an independent finding. According to this argument, the remand order means that the High Court was to look into the objects of the wakfs to ascertain to what extent such objects are exempted under clause (b) of Article

18. After such ascertainment, relief, if any, in the discretion of this Court, was to be given. This argument proceeded on the footing that the Supreme Court decided two questions only, the first relating to the application of the definition of "rent- receiver" to a mutwalli and a shebait and the second to the interpretation of the expression "subject to law" appearing in the beginning of Article

18. Thus the first point for consideration is what did the Supreme Court decide. Is the matter closed once for all or was it for the High Court to come to a fresh decision ? There was no dispute nor was this point agitated that the Supreme Court was dealing with any other properties other than wakf properties. It appears that all the parties concerned proceeded on the basis that the properties were wakfs and were religious institutions. It was conceded berore the Division Bench, which heard the second set of writ petitions, that wakf properties were religious institutions. Before the Special Bench also, it was contended that wakf properties were religious institutions but that as wakfs could be made by law, they could also be un‑made by law. Therefore, before the Supreme Court, there was no dispute as to the nature of the properties, which were assumed all along by every body to be religious institutions. The Supreme Court considered the arguments advanced by the learned AdvocatA on behalf of the respondent on the interpretation of Article 18 of the Constitution to show that religious institutions of this kind could not be protected under Article 18 and could be acquired because that Article was subject to law. This argument was considered threadbare by the Supreme Court and that Court also considered whether mutwallis and shebaits were proprietors under clause (23) of section 2 of the impugned Act. Thereafter, subsection (3) of section 37 of the Act was considered and then Their Lordships observed as follows :‑ "Thus wakfs al‑al‑aulad are directly hit by this provision as well as other religious or charitable institutions if their manager has not been applying the income of the property to the objects to which it was intended by the dedicator to be applied". After that, the implication of subsection (5) (1) (c) of section 20 was considered; after which, Their Lordships observed as follows :‑ "There can be no doubt that these drastic provisions of the Act strike religious institutions at their very root, and the question is whether that being the effect of the provisions, they constitute an infringement of the fundamental right guaranteed by Article 18 of the Constitution ? In the High Court, Mr. Brohi's bold and categorical assertion that the rights referred to in Article 18 are `subject to law' and may therefore be taken away by the law succeeded. That assertion has been repeated before us, but I have not the slightest hesitation in rejecting it. The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the maker. of a Constitution to say that a right is fundamental taut that it may be taken away by the law. I am unable to attribute any such intent to the makers of the Constitution who in their anxiety to regulate the lives of the Muslims of Pakistan in accordance with the Holy Quran and Sunnah could not possibly have intended to empower the Legislature to take away from the Muslims the right to profess, practise and propagate their religion and to establish, maintain and manage their religious institutions, and who in their conception of the ideal of a free, tolerant and democratic society could not have denied a similar right to the non‑Muslim citizens of the State". On a consideration of the above passage in the judgment, it seems to me that Their Lordships of the Supreme Court expressly or impliedly have decided that wakf, wakf al-al‑aulad and debutaar are religious institutions and protected under Article 18 of the Constitution from acquisition. Thus the remand order is confined to the determination of the extent the dedications involved in these petitions are dedica tions for purposes recognized by the Muslim Law as religious and charitable. In this connection, Chowdhury, J., has come to a correct decision. Both the learned judges have, independently of the decision of the Supreme Court, come to a concurrent finding that wakfs are religious institutions. In support, various Text Books and decisions were referred to show the ingredients of wakfs in Muslim Law and the permanency of wakfs, when once made. It is not necessary to refer to all the authorities, for, it is agreed by both the learned judges that wakfs of all kinds are religious institutions. Mention may be made to the well‑known treatises by the late Rt. Hon. Ameer Ali on Mahommedan Law, the Chapter on Wakfs. It is, therefore, not necessary to pussue this matter ally further. Some of the decisions referred to are I L R 19 Cal. 412, 1 L R 20 Cal. 116 (E. B.), I L R 44 Mad. 831 (P C), A I R (1936) Lab. 200 and P L D 1955 Lah.

264. This brings us to the interpretation of clause (b) of Article 18 of the Constitution, which was for first time argued before Akbar and Chowdhury, JJ. As already stated, the Supreme Court has come to a finding that all wakfs and debuttar are protected under Article

18. The validity of the wakfs was not agitated before the Supreme Court or before Akbar and Chowdhury, JJ., or before me. Mr. Brohi, on behalf of the respondent, before Akbar and Chowdhury, JJ., for the first time, put forward as new argument, faced with the decision of the Supreme Court, that 'religious institutions' in clause (b) of Article 18 of the Constitution are different from those that are understood under the Mahommedan Law. His contention was that unless a dedication had a public character, it would not be a religious institution within the meaning of Article 18, and the words 'religious institution' mentioned in clause (b) must be read with reference to the context 'every religious denomination and every sect thereof". He contended that the religious institution in clause (b) must be of a public character in which a denomination or a sect thereof are interested and, if this condition was not fulfilled, such religious institutions were not protected under clause (b) from acquisition. That self‑same argument has been advanced before me in respect of wakf al‑al‑aulad. On the other hand, learned Advocates for the petitioners have argued firstly that this question has already been decided by the Supreme Court and secondly that clauses (a) and (b) of Article 18 are to be read not independently of each other but in conjunction with each other. In substance, their argument is that every citizen individually and collectively has the right to profess, . practise and propagate any religion and every individual and every religious denom ination and every sect thereof has the right to establish, maintain and manage its religious institutions. Authorities were cited to show what the Holy Prophet said regarding dedications in favour of one's children and descendants and case‑laws were referred to which uphold the Islamic principles on this point. Learned Advocates for the petitioners have argued that, as held by the Supreme Court, a liberal construc tion should be given on the interpretation of the Constitution and Article 18 should not be construed in a narrow sense Mr. Mesbahuddin has referred to the definition of 'institution' which is to be found in Law Lexicon of British India by Iyer, 1940‑Edition, at page

601. It reads, among other definitions 'All establishment of a public character; a place where the business of a society is carried on or the organization itself.' On the other hand, reference was made by the learned Advocates for the petitioners to the definition of practice to be found in Webster's Dictionary. Vol. II, page 1688, as meaning among others 'skilful and artful management'. 'Institution' is defined in Webster's Dictionary, Vol. I, page 1119, as meaning among others to include practice. The argument, therefore, is that clauses (a) and (b) are so inter‑linked with each other that they cannot be separated and one read divorced from the other. On the other hand, the learned Advocate for the respondent has asked me to construe clause (b) in a narrow sense without reference to clause (a). It seem ‑to me that the framers of the Constitution, while, using the expression 'religious institution' in clause (b), used it in the sense that is understood among Muslims, and not in a technical sense as understood in English Law. In my opinion, the expression 'every religious denomination and K every sect hereof, includes also individuals and thus individuals as well as religious denominations and every sect thereof have the right to establish, maintain and manage its religious institutions. The learned Advocates for the petitioners have pointed out that if the argument advanced on behalf of the respondent be accepted that a religious institution to be protected must have a public character, various anomalies would arise. If an individual of a religious denomination. establishes a wakf which may be of a public .character, such as an imambara or a mosque, it will not be protected under clause (b), because 'that wakf is not established by a religious denomination. On the other hand, suppose a religious denomination or any sect thereof creates a wakf making provision for the maintenance of any particular person or persons, though created by a religious denomination, it will have no public character and thus will not be 'protected under clause (b) of Article

18. The expression 'religious denomina tion', in my view, is a' general term used to mean a class of people belonging to a particular religion and every member of that, class. I am of opinion, therefore, that wakf including wakf al‑al aulad are religious institutions within the meaning of Article 18 of the Constitution and, therefore, protected under that Article and the construction sought to be put on clause (b) of Article 18 on behalf of the respondent must be negatived. This leaves what relief is to be given to the petitioners. As already stated, it is not argued before me and it was not argued else‑where as well about the validity of wakfs including wakf‑al‑al‑aulad. The learned Advocates for the parties have placed before me the objects of the various wakfs in question and no attempt was made to show that any of the objects are not for purposes recognized by Muslim Law to be religious or charitable. Thus on the facts as well, the finding must be in favour of the petitioners. Separate arguments were advanced in respect of the two writ petitions, namely, Writ Petitions Nos. 18 and 22 of 1956. It is true that in respect of some properties of these wakfs, which were acquired by a previous notification, suits have been filed and decreed in favour of the Mutwallis and appeals are pending. In respect of the properties of these wakfs covered by the respective writ petitions no litigation is pending. There seems no reason why no order should be passed in respect of these two writ petitions. Akbar, J., thinks there may be a conflict of decisions if any order is passed. Whatever order is passed herein will be binding on the subordinate Courts. I have considered all the writ petitions and the elaborate arguments advanced most carefully and I have come to the decision mentioned above. All the wakfs covered by these writ petitions are protected under Article 18 of the Constitution and they cannot be acquired by Government because of that Article. The result, therefore, is that the Rules Nisi issued are made absolute and the opposite parties are directed to withdraw or rescind the notices issued in respect of the rent‑receiving interests of the petitioners under subsections (1) and (2) of section 3 of the impugned Act. So far as costs are concerned, there will be no order as to costs of this Court and before the Division Bench. On behalf of the respondents, a prayer is made for a certificate under Article 157(1) of the Constitution. As these cases involve substantial questions of law as to the interpreta tion of the Constitution, the certificate prayed for is granted. A. H.