P L D 1960 (W (PLP)

(e) Mussalman Wakf (Sind Amendment) Act (XVIII of 1935), S. 6‑M‑Object. The object of section 6‑M, Mussalman Wakf (Sind Amend ment) Act 1935 is not to provide the opposite factions an arena for imposing their religious creed. Its main object is to provide a summary machinery for the disposal of controversial questions According to law. It is not the business of the Civil Court to dabble with the religious beliefs of one party or the other. Abdul Ghani for Petitioner. Mohd Akram for Respondents. Date of hearing: 3rd March 1960. This revision petition is directed against the order of Mr. Ghulam Kadir, N. Kadri, First Assistant Judge, Hyderabad in Wakf Case No. 306 of 1958, relating to Masjid Bakra Mandi, Hyderabad, dated 23rd April 1959 removing the petitioner from the Mutawalliship of the said Masjid and an undated order appointing the Accountant of the District Court, Hyderabad temporarily in charge of the said wakf. Briefly, the facts leading to the present petition are that the Qureish community of Hyderabad constructed a mosque known as Bakra Mandi Mosque sometime in 1948 and entrusted its management in 1951 to the petitioner. The petitioner along with the office bearers and members of the Intizamia Committee of the said mosque made an application on 10th of October 1957 for the appointment of Haji Mian Jan as its Mutawalli. The Additional District Judge on 12th February, 1958 registered the mosque as wakf and appointed the petitioner as its Mutawalli. It appears that about the same time Fakir Muhammad, respondent No. 1, also made an application for his appointment as Mutawalli of the said mosque. Both these applications were forwarded by the Wakf Court for inquiry to the Auditor, who on 5th of January 1958 recommended the appointment of the petitioner as Mutawalli but submitted no report on the applica tion of respondent No.

1. On the 1st of October 1958 respondent No. 1 drew the attention of the Court concerned to this omission and further alleged that the petitioner has misappropriated the income of the wakf and large body of persons who had contributed towards the construction and upkeep of the mosque have no faith in him and prayed that pending the decision of his application some officer of the Court or some other person may be appointed to collect the income and manage the mosque. On the 2nd of December 1958 the learned Judge passed an order that the rents, till the disposal of the application, be paid in Court. Petitioner attacked this order in Revision Application No. 11/1959 in this Court, which was summarily dismissed by me on 26‑1‑1959 and the learned Additional District Judge was directed to act strictly in conformity with section 6‑M of Sind Act XVIII of 1935 before passing any final order against the petitioner. It, however, appears that from time to time number of disputes were brought to the notice of the Additional District Judge, Hyderabad such as directions who should lead the prayers and for holding two congregations in the mosque and by separate orders, amongst others, he allowed two congrega tional prayers. Finally the learned Additional District Judge on 23rd April vacated his order, dated 12th February 1958 about the appointment of the petitioner as Mutawalli and appointed the Accountant of the District Court as a temporary Mutawalli for the management of the mosque in question. The petitioner has challenged the validity of these orders in this revision. Mr. Shaikh Abdul Ghani, the learned counsel for the petitioner, Mt. Muhammad Akram the learned counsel for respondent No. 1 and Mr. Wahid Farooqi the learned counsel for the Additional District Judge have taken me through the entire record. There is not the slightest doubt in my mind that the learned Additional District Judge in this case has completely disregarded the provisions of Sind Act XVIII of 1935. The Court concerned is conferred no power under its provisions to appoint a Mutawalli for a newly‑created Wakf. Under the Muslim Wakf Act XLII of 1923, amended by Sind Act No. XVIII of 1935, the District Judge is empowered to remove a Mutawalli after getting the advice of a Wakf Committee constituted under section 6‑C of the Sind enactment. Mr. Shaikh Abdul Ghani is perfectly justified in his contention that the jurisdiction of the District Judge to remove a Mutawalli under section 6‑M only, arises after the opinion of the Wakf Committee is obtained. Without obtaining such advice the District Judge has no jurisdiction to remove any person from the office of Mutawalli. Kaikaus, J., in Shaft Muhammad v. Muhammad Siddik (P L D 1959 Kar. 164) has at length, dealt with this aspect of the question. In this connection he observed at page 167: "Learned counsel urges that the District Judge is empowered to pass an order of removal under section 6‑M (2) but it is apparent that this subsection will apply only in a case where the matter has been referred first to the Wakf Committee or members of the Wakf Committee. There has been no Wakf Committee in Sind since 1955. Learned counsel for the respondent contends that the requirement of the section when the Court has referred any of the matters in subsection (1) to a Wakf Committee or any members thereof, is not a condition precedent but is matter of procedure. This contention I am not prepared to accept. The words of subsection (2) are clear and. apply only to a case where the Court has referred the matter to the Wakf Committee or the members. It will also be observed that subsection (1) provides for reference to the committee and subsection (2) provides for what is to happen after there has been a reference. The power granted by section 6‑M for suspension, removal or dismissal of Mutawallis is a very exceptional one. It empowers the District Judge to pass orders in summary proceedings and without even allowing the Mutawalli opportunity to lead evidence, the only opportunity given to the Mutawalli being that of a hearing. Even assuming that the opportunity to be heard includes opportunity to lead evidence, the power is still exceptional for the proceedings are after all summary and no appeal lies against the order of the District Judge under this section. In the case of a suit under section 92, Civil Pro cedure Code or under the Religious Endowments Act, an appeal, a second appeal and possibly a third appeal may lie against the decree of the Court removing the Mutawalli. Provisions which grant exceptional powers have to be strictly construed, If the intention of the Legislature was to grant a general power to the District Judge to pass orders even in the absence of any reference to Wakf Committee, the legislature ought to have said so. There is no other provision in the Mussalman Wakf (Sind Amendment) Act, 1935 which may imply a jurisdiction in the District Judge to remove or dismiss a Mutawalli. I am unable to agree that section 6‑M grants such jurisdiction unqualified by the reference to the Wakf Committee. It was urged further that the Government not having appointed any Wakf Committee a reference to the Wakf Committee had become impossible and if something became impossible there was no need to comply with it. This kind of argument has no application to a case where the exercise of jurisdiction depends upon the existence of a condition precedent. We are not dealing with a case of contract. If the condition precedent to a jurisdiction becomes impossible no jurisdiction can exist ". I am in full agreement with the view expressed by my brother in the above‑mentioned case and I am of the opinion that the power granted by section 6‑M for suspension, dismissing and removal of a Mutawalli is a very exceptional one and the condition precedent to exercise the Jurisdiction under it arises only after the opinion of the Wakf Committee is received. On this view of the matter the learned Additional District Judge neither had jurisdiction to appoint the petitioner as Mutawalli to the Bakra Mandi Mosque nor had he any jurisdiction to remove him and to appoint a temporary Mutawalli for the manage ment of the mosque. The applications filed on behalf of the petitioner and Fakir Muhammad respondent No. 1 were wholly misconceived and no such petition was maintainable under the provisions of Sind Amendment Act (XVIII of 1935), as the only power that vest in the District Judge for a newly‑created wakf is to register it. On an application under section 6‑C it is open to the District Judge to hold an inquiry for finding out whether a particular property is wakf, whether it is situated within the jurisdiction of the Court and who is Mutawalli of such wakf, but this inquiry is confined only for the purpose of registration of the wakf. After an inquiry contemplated under section 6‑C he is entitled to register a wakf under section 6‑D. Under section 6‑E the District Judge is entitled to amend the entries ‑of the register of wakfs maintained by the Court subject to any directions of a Civil Court of competent jurisdiction. Under section 6‑L the Provincial Government is authorised to appoint a Wakf Committee to advice and assist the Court in all matters I relating to the registration, administration and control of wakfs. Section 6‑M lays down the functions of the Wakf Committee and it is upon the recommendation or the report of the Wakf Com mittee that the District Judge is empowered to suspend or remove or dismiss a Mutawalli or appoint a new Mutawalli for the Wakf and issue other directions as contemplated in this provision of law. It is, therefore, obvious to me that the prerequisite off the exercise of power under section 6‑M by the District Judge is that the matter should first be referred to the Wakf Committee for its opinion and advice and after their report or recommendation he is authorised to take action under section 6‑M. Unless and until this condition precedent is fulfilled, the District Judge has no power to interfere with the manage ment of the wakf or the office of the Mutawalli of the wakf, the subject‑matter of the inquiry. In my opinion, therefore, the learned District Judge's order, dated 12th February appointing the petitioner as Mutawalli of the wakf was without jurisdiction and cannot be maintained. The next question for consideration is whether the learned Additional District Judge was justified in removing the petitioner from the Mutawalliship of Bakra Mandi Mosque and in appointing the accountant of the District Court as temporary Mutawalli till a final choice for the office of Mutawalli is made. It was contended on behalf of respondent No. 1 that the learned Additional District Judge has the inherent 'powers of a Kazi and under these powers he is entitled to remove and appoint a Mutawalli. This contention is not well‑founded. First of all the office of the District Judge and Additional District Judge is not an office carrying the same responsibility. The Additional District Judge in the old Province of Sind is also known as Assistant Judge and under section 24 (2) of Sind Courts Act of 1926 an Assistant Judge has jurisdiction to hear such applications or references under special Acts and such miscellaneous applications not being in the nature of an appeal as the District Judge may refer to him. Obviously the District Judge cannot delegate his inherent powers to the Assistant Judge which he has as a Kazi. He can only direct him to deal with such matters as be is authorised to deal with either as original suits and such applications or references which he is entitled to deal with under the special Acts. The inherent power of the Kazi is not derived from any of these special Acts and the learned Additional District Judge therefore had no power whatsoever to exercise any powers of the Kazi inherent to the office of the District Judge. In the second place the District Judges also have no jurisdiction to exercise the powers of a Kazi to decide controversial questions of wakf properties. Such matters can only be decided in suits) under section 92 of the C. P. C., but if there is a vacancy in the office of Mutawalli and there is no question of remaining any existing trustee, the vacancy may be filled up by an application to the District Judge without recourse to a suit under section 92 of the C. P. C. There are large number of decisions of the old Indian Courts that a District Judge has no power to remove a de facto Mutawalli and to appoint a H receiver in such proceedings. This can only be done in a suit instituted under the Religious Endowments Act of 1893 or section 93 of the C. P. C. In Mulla's Muhammadan Law (14th Edition) under Chapter XII section 204 at page 193 the following statement supports this view: "Where there is a vacancy in the office of Mutawalli, and there is no question of removing an existing trustee, the vacancy may be filled up by an application to the Court. It is not necessary to bring a suit under section 92 of the Civil Procedure Code ". This view is supported by a decision of the Patna High Court reported in Salihuddin Ahmad v. Mohiuddin Ahmad and others (A I R 1948 Pat. 374). Both on principle and authority it is obvious to me that when two persons claim to be the Mutawalli, the dispute between them is of a civil nature and must be decided on the regular side of a competent Court of civil jurisdiction. I therefore find no force in this contention and hold that the Additional District Judge, for the above‑mentioned reasons, had no juris diction to exercise the powers of Kazi and in any case had no power to remove a Mutawalli without recourse to regular proceedings. Admittedly the facts of this case show that the petitioner is managing the mosque in question since 1951. This fact is admitted by respondent No. 1 in the application made by him for the removal of the petitioner dated 19th of January 1959. In para. 1 of the application he stated that the mosque in question " was constructed in the year 1948 with the funds contributed by all the members of Qureshi community either residing at, or carrying on business in that locality and who had formed an association known as " Bakra Mandi Masjid Committee, Hyderabad. The mosque as well as its attached shops were thus created a. public wakf ". In the second para of this application he admitted " that in the year 1951 Haji Mian Jan opponent was entrusted by the said Masjid Committee with the work' of looking after the mosque and maintaining it in good repairs, and collecting subscriptions, rents etc. and keeping accounts thereof, and acting treasurer for all the funds of our Committee". In the rest of the paras the respondent No. 1 made serious allegations against the petitioner that, he had mismanaged the funds of the mosque and not rendered the accounts, but the fact remains that the petitioner was managing the mosque since 1951. In these circumstances the impugned order not only resulted in vacating the order of the Additional District Judge, dated 12th February appointing the petitioner as Mutawalli but also in removing the petitioner who is the de facto Mutawalli of the mosque in question. The learned Additional District Judge could only do so after he had strictly complied with the provisions of section 6‑M of Sind Act XVIII of 1935 viz. referring the disputes for the advice and opinion of the Wakf Committee and after getting their opinion to pass a suitable order. Having not complied with these provisions undoubtedly he had no jurisdiction to remove the petitioner from the office of the de facto Mutawalli. Consequently his second order appointing the Accountant of the District Court as temporary Mutawalli of the mosque in question is also without jurisdiction. Accordingly the impugned order is set aside and the learned Additional District Judge is directed to deal with this question in‑ the light of the decision of Kaikaus, J: reported in P L D 1959 Kar. 164 and the observa tions made by me in this respect in this matter. Before parting with this case I have noted with regret that the learned Additional District Judge in this case has not only disregarded my directions given to him in Revision Petition No. 11 of 1959 but has also passed number of orders for instance 'appointing Pesh Imams, fixing hours for prayers of the congregation of the opposite parties etc. In my opinion' the object of section 6‑M of Sind Amendment Act is not to provide the opposite factions an arena for imposing their religious creed. Its main object is to provide a summary machinery for the disposal of controversial questions according to law. It is not the business of the Civil Court to dabble with the religious beliefs of one party or the other party. The learned Additional District Judge's observations on the Fatwa of Moulana Muhammad Shafi are outside the scope of the provisions of Sind Act XVIII of 1935 and is not a healthy precedent. Con troversies of this nature should always be avoided by a Civil Court. On this view of the matter the position now is that the opponent is entitled to proceed against the petitioner by a suit under section 92 of the C. P. C. and get him removed from the Mutawalliship of the mosque in question. He is also entitled to pursue his petition under section 6‑M dated 19‑1‑1959, which will be disposed of strictly according to the provisions of section 6‑M of Sind Act XVIII of 1935. The proceedings pending before the Additional District Judge are transferred to the Court of the District Judge for disposal according to law. For the reasons given above the petition is allowed with costs against respondent No.

1. Respondent No. 2 was unneces sarily joined as party to these proceedings. Accordingly the petitioner is ordered to bear his costs. K. M. A. Petition accepted.