JUDGMENT
Tapen Sen, J.
1. In C.W.J.C. No; 4323 of 1998, the Petitioners (Managing Committee of Eqra Mosque, through its Secretary namely Motiur Rahman in his official capacity as Petitioner No. 1; as also in his personal capacity as Petitioner No. 2) have prayed for quashing the Order dated 12.05.1998 passed by the Respondent No. 2 (Minister-in-charge, Minority Welfare) said to be in purported exercise of power under Section 43 (4-A) of the Waqf Act, 1954 by reason whereof he set aside the Certificate of Registration issued by the Bihar State Sunni Waqf Board on 20.11.199.6 (Annexure-3). He also set aside the Order dated 18.12.1996 (Annexure-4) issued by the Chairman of the said Board and directed that the Committee constituted under the presidentship of Md. Shabir (Respondent No. 8) shall continue to function. It is relevant to mention that the Committee headed by Md. Shabir (Respondent No. 8) is known as the Masjid-e-Eqra Society”. They have further prayed that the Respondents be restrained from interfering with the management of the affairs of the Eqra Mosque which, according to them, is a Waqf duly registered under Section 25 of the Waqf Act having registration number 2278 of 1996.
2. In the other Writ Petition, i.e. C.W.J.C. No. 4822 of 1998, the Petitioner (i.e. Motiur Rahman Petitioner No. 2 of the other Writ Petition) has prayed for quashing Annexure-1 thereto i.e. the Certificate of Registration registering the said “Masjid-e-Eqra Welfare Society” under the provisions of the Societies Registration Act, 1860. He has further prayed that the Respondents of that Writ Application including the I.G. Registration, Bihar, Patna, as also Md. Shabir and other members of the said Society be restrained from Managing the affairs of the Eqra Mosque and its properties which were duly registered under Section 25 of the Waqf Act by the Bihar State Sunni Waqf Board having registration number 2278 of 1996.
3. By the Certificate of Registration dated 20.11.1996 (Annexure-3) the Secretary of the Bihar State Sunni Waqf Board inter alia certified the registration of the Mosque known as the “Eqra Masjid” along with the properties appertaining thereto under Section 3 (1) (i) read with Section 25 of The Waqf Act, 1954. The properties are situated in Ward No. III/(XIII); Holding No. 39/391; M.S. Plot No. 697/1 and 697/III (A) over an area of 3 Kathas 11 Chattaks (14.25 Square Feet) and 1 Katha 7 Chattaks (5.31 Square Feet) situated on Ward No. III; Holding No. 391; M.S. Plot Nos. 697 and 698 which were purchased by the Eqra Committee vide Deeds dated 26.08.1987 and 10.05.1988 vide Registration No. 2278/ 1996.
4. The said Certificate of Registration also informed that the Chairman of the Board had passed an Order on 15.11.1996 approving the formation of a committee consisting of 26 Members/Office Bearers for the management of the said Mosque and made the life of the Committee valid for one year subject to endorsement by the Board.
5. By Order dated 18.12.1996 (Annexure-4) the Chairman of the said Board allowed the aforementioned Managing Committee to function till further Orders.
6. According to the Petitioners, in the year 1986 the Muslims of Ranchi felt the need for a spacious Mosque and accordingly convened a meeting and constituted a Managing Committee know as the, Eqra Committee.
7. In the year 1987, the said Committee was however dissolved and a new Committee was constituted consisting of various persons for purposes of purchase of land etc. According to the Petitioners, the land measuring 5 Kathas referred to above was ultimately purchased by Sale Deeds dated 26.08.1987 and 10.05.1988 in the names of four members of the Managing Committee. The typed copies of these Deeds are Annexures 2 and 2/A. Annexure-2 is the Sale Deed dated 26.08.1987 and it shows that it was executed by Sardar Charan Singh in favour of the said Eqra Committee through (1) its President, Md. Sabir (Respondent No. 8); (2) Secretary, Haji Hussain Qasim Kucchi; (3) Treasurer, Md. Sayeed; and its members (4) Md. Sharif and (5) Md. Qeyamuddin.
8. Annexure 2/A,on the other hand is the typed copy of the Sale Deed dated 10.05.1988 and it shows execution thereof by Sardar Charan Singh in favour of the Eqra Committee through its Secretary, Haji Hussain Qasim Kucchi, Joint Secretary Md. Halim, and Members namely Abdul Rashid and Syed Munazirul Haque.
9. The Petitioners have further stated that the committee constructed the 1st, 2nd and 3rd Floors as well as 37 shops on the ground floor so as to facilitate the maintenance of the mosque out of the money taken as advance from the shop owners and from the subscriptions of the Muslims of Ranchi and neighbouring areas but when it came to allotment, Md. Sabir (Respondent No. 8) acted arbitrarily and made only two allotments one to his son-in- law- and the other to one Md. Imtiyaaz, Consequently, the Committee was not in a position to meet the day-to-day expenses including the salary of the “Pash-e-Imam” and the “Muezzin”. Realizing that the affairs of the mosque and its properties were being mishandled and misappropriated, eminent Muslims of Ranchi convened a meeting on 02.11.1996 in which the old committee was dissolved and a new representative committee consisting of 26 persons was constituted and they were authorized to have the mosque and its properties registered in the Register of Waqfs maintained by the Waqf Board. Accordingly, applications for registration pf the mosque and its properties as also for the approval of the managing committee were filed before the Board on 05.11.1996.
10. Thereafter the Board registered the mosque and its properties vide Registration No. 2278/96. By Order dated 15.11.96, the Chairman approved the Petitioner-Managing Committee consisting of the 26 members stated above for one year and accordingly the certificate of Registration dated 20.11.96 (Annexure-3) was issued.
11. Thereafter, according to the Petitioners’ case, the Secretary of the Board issued an Order dated 05.12.1996 without any authority and stayed the operation of the said Order. This action of the Secretary was considered by the Chairman by Annexure-4 who found the same to be without authority and accordingly, set aside the same by his Order dated 18.12.1996. (Annexure-4) allowing the Managing Committee constituted by Annexure-3 to function and administer the Waqf estate till further Orders.
12. A copy of the said Order was forwarded to the D.C., S.P., Ranchi requesting them to make immediate arrangements for the deputation of a Magistrate with Armed Force in the premises of the Eqra Masjid.
13. The Petitioners have further stated that the Respondent No. 8 (Md. Sabir) and his followers wanted to grab the properties of the mosque and with that object in mind they formed a society and got it registered under the Societies Registration Act, 1860 vide Registration No. 203 dated 02.12.1996 for purposes of managing the Eqra Mosque and its properties.
14. The Respondent No. 8 (Md. Sabir) then filed an Appeal before the Minister (Respondent No. 12) challenging the Orders dated 20.11.1996 and 18.12.1996 and the Respondent No. 7 (Md. Qeyamuddin) also filed a Writ Petition No. 238 of 1997 which was disposed off with a direction to file an appeal. Consequently, the Respondent No. 7 also filed an Appeal before the Respondent No. 2.
15. The two appeals thereafter were heard by the Minister and were allowed by the impugned Order dated 12.05.1998 (Annexure-1) by which Annexures-3 and 4 were set aside and a direction was made to recognize the society registered under the Societies Registration Act, 1860 under the Presidentship of Md. Sabir (Respondent No. 8). The Registration under the provisions of the Societies Registration Act, 1860 has become subject matter of challenge in C.W.J.C. No. 4822 of 1998.
16. The Petitioners have made a grievance that they were not made parties to the appeal and instead the Respondent No. 10, Vice President of the Petitioner Committee who, according to the Petitioners, had a soft corner for Respondent No. 8 was made a party. Other members were neither made parties nor were they given any notice.
17. The Petitioners have submitted that the Order of the Minister is wholly illegal and without jurisdiction in as much as there is no provision in the Waqf Act, 1954 vesting power in the State Government/Minister to hear any appeal against an Order passed under Section 25 of the Waqf Act, 1954 whieh corresponds to Section 36 of the Waqf Act of 1995. The Petitioners have further submitted that the 1995 Act, came into force on and from 01.01.1996 throughout the country vide S.O. No. 1007 (E) issued by the Central Government in exercise of powers conferred by Sub Section (3) of Section 1 of the said 1995 Act whereby the said Central Government appointed 01.01.1996 as the date on which the said Act came into force [see Comments printed under Section 2 at page 41 of the “Commentary on the Law of Waqf in India (The Waqf Act, 1995) by Dr. Ahmedullah Khan 1997 Edition published by Asia Law house]. According to the Petitioners the corresponding Section of Section 43 is Section 64 and Section 43 (4_A) of the 1954 Act has been replaced by Section 64(4) of the 1995 Act which lays down that a Mutawalli who is aggrieved by an order passed under any of the Clauses (c) to (j) of Sub-section (1), may, within one month from the date of the receipt by him of the order, appeal against the order to the Tribunal and the decision of the Tribunal on such appeal shall be final. Thus, according to the Petitioners the Respondent No. 2 after coming into force of the 1995 Act had no authority to hear the appeal and pass the order on 12.05.1998 because the 1995 Act had already come into effect on and from 1996. So far as the other Sections of the 1954 Act are concerned, the Petitioners have submitted that by reason of Section 112 of the 1995 Act, notwithstanding the repeal of the 1954 Act, anything done or any action taken under the old Acts shall be deemed to have been done or taken under the corresponding provision of the 1995 Act. There is force in the aforementioned submissions. In view of Section 64(4) of the 1995 Act, the Minister could not have heard the appeal at all.
Another reason, why the appeals were not maintainable was because the orders against which the appeals had been filed were not “Orders of removal of Mutawallis” and therefore, the entertainment of the Appeal by the Minister under Section 43-A of the The Waqf Act, 1954 was also misconceived.
18. There is much force in what Mr. Ahsan submits. Even if the 1954 Act is taken into consideration, then Sub Section 4-A of Section 43 of the said Waqf Act of 1954 lays down that Mutawalli who is aggrieved by any Order passed under any of Clauses (c) to (e) of Sub Section (1) or under Sub Section (2) of Section 43, may within one month from the date of the receipt by him of the Order. Appeal against the Order to the State Government and the decision of the State Government on such appeal shall be final and shall not be questioned in any Court of law. Annexures-3 and 4 were, in fact, Orders which were passed under Sections 25 and 26 of the Waqf Act, 1954 (which corresponds to Sections 36 and 37) and not under Section 43 of the said Act (which corresponds to Section 64 of the 1995 Act). It is not necessary to repeatedly give the corresponding Section of the 1995 Act in view of Section 112 thereof which lays down that notwithstanding the repeal of 1954 Act anything done or any action taken under that Act shall be deemed to have been done or taken under the corresponding provision of the 1995 Act.
Section 25 deals with Registration of Waqfs, while Section 26 deals with the Register of Waqfs. Annexure-3, therefore related to registration of the Waqf and Annexure-4 was the Order setting aside the Order of the Secretary and allowing the Managing Committee constituted by Annexure-3 to function and administer the Waqf Estate till further Orders. These therefore, are not Orders removing the Mutawalli under Section 43, Consequently, this Court holds that the appeal under sub Section 4-A was not maintainable at all.
19. Mr. Ahsan further submitted that the Societies Registration Act, 1860 has no role to play in the matter relating to the management of a Mosque or religious places in as much as such an activity falls exclusively within the domain of the Waqf Board and therefore, the Order of the Minister authorizing the Society to exercise managerial control under the presidentship of Md. Sabir is wholly illegal and that too when the Society was formed after constitution of the Committee was announced vide Annexure- 3.
20. Other arguments of Mr. Ahsan are that by Annexure-1., the Minister being the Appellate Authority, set aside an Order passed by the Waqf Board (i.e. Annexure-3). he submits that by Annexure-3 a Committee of 26 persons had been, constituted by the Waqf Board for the management of the Eqra Masjid. He draws attention to Section 3 (f) of the The Waqf Act, 1954 and submits that definition of Mutawalli as per the said Section 3-A reads as follows:–
‘any person appointed either verbally or under any deed or instrument by which a Waqf has been created or by a competent authority to be the Mutawalli of a Waqf and includes any Naib Mutawalli, Khadim, Mujawar, Saj-jadanasin, Amin or other person appointed by a Mutawalli to perform the duties of a Mutawalli and, save as otherwise provided in this Act, any person or committee for the time being managing or administering any Waqf property …..”
21. In view of the above mentioned definition, Mr. Ahsan argues that a Committee of 26 persons having been constituted by the Waqf Board, under the provisions of the said Act, the said Committee would be deemed to be “Mutawalli” and it could only have been removed by the Board itself as per Section 43. By reason of Sub Section 4-A, an Order of removal only can be taken up in appeal before the State Government and not an Order constituting a Mutawalli.
22. Mr. Ahsan further submits that under Section 15 (1) the General Superintendence of all Waqfs shall vest exclusively in the Board and it shall be the duty of the Board so to exercise its powers for purposes of ensuring that the Waqfs are properly maintained, controlled and administered and the income thereof is duly applied to the objects and purposes for which the waqfs were created. He further submits that the Proviso appended to Section 15 of The Waqf Act, 1954 lays down that in exercising its powers under the Act in respect of any Waqfs, the Board shall act in conformity with the directions and purposes of the Waqf, sanctioned by Muslim Law. Under Section 15 (2) (g) of The Waqf Act, 1954, one of the functions of the Board is to appoint and remove Mutawallis. He thus argues that Annexures 3 and 4 were in conformity with the provisions laid down under Sections 2 (f), 2 (1), 15 (2) (g) of The Waqf Act, 1954,
23. Under the provisions of Section 63 of The Waqf Act, 1954, it is apparent that “subject to any directions on questions of policy issued under Section 62, the State Government may, from time to time, give to the Board such general or special directions as the State Government thinks fit and in the performance of its functions, the Board shall comply with any such directions. Section 62 of the Waqf Act, 1954 relates to the Directions by the Central Government and lays down that “(1) The Central Government may issue such directions, as it may think fit, on questions of policy to be followed by a Board and for issuing such directions it may call for any periodic or other report or information from any Board through the Government of the State concerned.” Sub-section (2) of Section 62 lays down that “in the performance of its functions under this Act, the Board shall be guided by the directions issued under Sub-section (1).”
Thus it is clear from the language used in the Statute, viz. Sections 62 and 63 that the State Government can only give directions on questions of policy issued under Section 62. It cannot take any decision with regard to removal or appointment of a Mutawalli which is the exclusive jurisdiction of the Waqf Board as per Section 15 read with Section 15 (2) (g) of the Waqf Act, 1954. Reference in this context may be made to a Division Judgment of the Patna high Court in the case of Haji Syed Mohammad Hussain v. The State of Bihar and Ors., reported in 1979 Patna 103.
24. Mr. A Allam, learned Counsel for the Respondent Nos. 3, 2 and 3 has also submitted that the religious endowments may be registered or withheld to be registered only by the Waqf Board alone and not by with the Society under the Societies Registration Act, 1860.
25. Mr. P.K. Prasad, Counsel for the Respondents, has submitted that the statements made in Paragraph-6 of the Writ Petition PROVES that in 1987, there was a Committee of which Md. Sabir and Sayeed (Respondent Nos. 8 and 9 respectively) were the President and Treasurer respectively and that the properties were actually purchased by Annexures 2 and 2/A. He further submits that from the statements made at Paragraph 8 of the Writ Petition it stands established that the first, Second and the third floors plus 37 shops were constructed by them. He further refers to paragraph 10 of the Writ Petition and submits that the statements made therein prove that the Committee headed by Md. Sabir (Respondent No. 8), was in existence from 1987 till at least 02.11.1996 because the Application for registration was made on 05.11.1996, whereafter by Annexure-3, the properties were registered on 20.11.96 after purchase by the Eqra Committee. However, before the registration, the Board ‘DID NOT’ comply with Section 25 (7). Section 25 (7) of the Waqf Act, 1954 is a part of Chapter IV which deals with the registration of Waqfs. Section 25 (7) therein reads thus:–
“25.(7) On receipt of an application for registration, the Board may before the registration of the Waqf, make such inquiries as it thinks fit in respect of the genuineness and validity of the application and the correctness of any particulars therein , and when the application is made by any person other than the person administering the Waqf property, the Board shall, before registering the waqf, give notice of the application to the person administering the waqf property and shall hear him if he desires to be heard”
26. According to Mr. P.K. Prasad the Waqf Board has not explained as tq whether all ingredients of Section 25 were followed. Thus, according to him Annexure-3 is void. In fact Annexure-3, according to Mr. KK. Prasad is void on two counts, firstly because of non compliance of Section 25(7) and the secondly because Annexure-3 itself discloses that the Chairman sitting singly had passed ah order on 15.11.1996 approving the constitution of the 26 member Committee According to him the composition of the Board as per Section 10 read with Section 14 could not have authorized the Chairman to pass the order sitting singly.
27. The aforesaid argument does not appeal to this Court in as much as the signatory qf Annexure-3 is the Secretary of the Board himself, who, as per Section 21 (2) is the Chief Executive Officer of the Board.
28. Mr. P.K. Prasad further argued that subsequent to the passing of Annexure-4, Md. Sabir (Respondent No. 8) went in Appeal under Section 43 (4-A) (Subject matter of Annexure-1) and Md. Kayamuddin (Respondent No.7) filed C.W.J.C. No. 238 of 1997 at Patna challenging Annexures 3 and 4, By order dated 04.02.1998 the said Writ Application was disposed off directing the Respondent No. 7 to also file an Appeal under the provisions of the Waqf Act and therefore he (Respondent No. 7) filed Waqf Appeal No. 4 of 1998 which was tagged along with Waqf Appeal No. 4 of 1996 which had been filed by the Respondent No. 8. Thus, the Order dated 04.02.1998 legitimized the Appeal and therefore it cannot.be contended that the Appeal was not maintainable.
29. This Court is not inclined to accept the aforementioned contention to the effect that the Appeal stood legitimized on account of the order dated 04.02.1998. Since this Court has already held that the Appeal was not maintainable in the foregoing paragraphs, the aforementioned submission of Mr. Prasad is therefore rejected.
30. The other contention of Mr. P.K. Prasad in that the Waqf Act has no application because it is not Waqf property at all. This part of the submission of Mr. P.K. Prasad is worth considering because the Sale Deeds (Annexure 2 and 2/A) show that the property was purchased by the Eqra Committee of which, the President, is Md. Sabir (Respondent1 No. 8). As per the statements made in paragraph. 8 of the Writ Application, it is evident that the Committee headed by Md. Sabir (Respondent No. 8) and Md. Sayeed (who was the treasurer of that Committee) got the mosque constructed but there is nothing on record to show “dedication” by them of the property for purposes of treating it to be a Waqf The word Waqf as per Section 2 (1) means the “permanent dedication” by a person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim Law as pious, religious or charitable. In the instant case, there is no document as required under Section 2 (m) which makes it compulsory that for purposes of creation of a Waqf, there must be a “Waqf Deed”. Thus what Mr. P.K. Prasad argues and submits is that in the absence of a deed or document, the property could not have been treated to be a Waqf property at all. In the entire body of the Writ Application also, there is nothing on record that proves or establishes “permanent dedication”. The only statements which are relevant in this context are those which have been made at paragraph 10 of the Writ Application and they merely state ahd say that the eminent Muslims of Ranchi having realized that the affairs of the mosque were being mismanaged and its income being misappropriated, a public meeting was held on 02.11.1996 in which the old managing committee headed by Md. Sabir was dissolved and a new representative committee consisting of 26 persons was constituted who were authorized to get the mosque and its properties registered with the Waqf Board. Iowa’s thereafter that an application for registration was made on 05.11.1996 whereafter the same stood registered by Annexure 3. Thus, according to him, there was no Waqf at all and instead, the Petitioner Committee got in registered without notice to the Eqra Committee headed by Sabir (Respondent No. 8).
31. This submission to the effect that Petitioner Committee got it registered without notice to the Eqra Committee headed by Sabir (Respondent No. 8), however cannot be accepted because from a perusal of Annexure 2/A (i.e. the Sale Deed dated 10.05.1988), it is evident that it was by and between the Vendor (Sardar Charan Singh) and purchasers namely (1) Eqra Committee through its Secretary Hazi Hussain Rasim Kucchi; (2) Joint Secretary Md. Halim; (3) Members namely Abdul Rashid and Sayed Monazirul Haque. Abdul Rashid is also the President of the Petitioner Committee as per Annexure 3 and therefore it cannot be said that the registration was without notice to the committee headed by Md. Sabir. Therefore one of the key purchasers being Abdul Rashid (who was member of the aforementioned Committee) being also the President of the Petitioner Committee, it is late in the day to say that the registration was without any notice to the Respondents.
32. Mr. Ahsan, in reply to Mr. PK. Prasad’s contentions to the effect that the property was not “Waqf at all submitted that admittedly the property was purchased for purposes of constructing a mosque and such a mosque was infact constructed and therefore it was a “Waqf by user” as defined in Section 3 (1) of the Act, This argument of Mr. Ahsan however cannot be aceepted. No. doubt ‘Waqf by user’ includes Grants (including mashrut-ul-Khidmat for any purpose recognized by the Muslim law as pious, religious or charitable” and, “Waqf Alal Aulad” to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious religious or charitable, yet the fact remains that the properties were purchased by Annexures 2 and 2/A on 26.08.1987 and 10.05.1988 respectively. The Committee was registered earlier. Under Article 188 of Mulla’s Principles of Mahomedan Law (19th Edition) by” M. Hidayatullah and Arshad Hidayatullah, “Waqf by Immemorial User” means that if land has been used from time immemorial for a religious purpose, ….. then the land is by user, Waqf although there is no evidence of an express dedication.
Thus, this is not a case where it could
be said that it is Waqf by user. In the instant case, the pleadings do not establish the factum of usage from time immemorial.
On the contrary, the Registration is in the year 1986 while the purchases are in the years 1987 and 1988. This suggests a passage of time only to the extent of about 3
(three) years. Therefore, it cannot be said to be in use, for time immemorial consequently, the argument that the property
must be deemed to be waqf by user cannot be accepted.
33. However, on the argument that the Societies Registration Act, 1860- could not have been made applicable, this Court places reliance upon the judgment delivered by a Division Bench in the case of Md. Yunus v. Inspector General of Registration reported in AIR 1980 Pat 138 cited by the learned Counsel for the Petitioners. At Paragraphs 8 and 10 (infra) of the said judgment, the Court observed as follows:–
8. In our view, in interpreting the expressions ‘charitable purpose’ or charitable society, we have to take note of the general scheme of the Act and the objects which were sought to be attained. We have already referred to the long title and the preamble. Both of them indicate that the purpose of legislation is the registration of societies which have as their aim general public benefit. To promote literature, science, fine arts etc. are all matters of general public benefit and are not confined to any religious denomination. In the context and the setting in which the expressions charitable purpose or charitable society appear we are inclined to hold that expressions must be given a meaning which is more in consonance with the general object of the Act. A greater indication is available in Section 20 itself. The section has already been quoted. It would be observed that the numerous objects which have been enumerated therein have no reference to any religious institutions of religion. They are all matters of general public benefit. It is well-established rule of construction that the expressions used in an enactment take their meaning and colour from the context in which they are used.
10. …..We are, therefore, of the view that the expression charitable purpose as used in the Societies Registration Act does not embrace purposes which are religious or predominantly religious. If that be the correct view of law there cannot be any doubt that the Inspector General of Registration had no jurisdiction to register the Society in question under Section 3 of the Act.”
34. This Court is in respectful agreement with the aforesaid view. The provisions of the Societies Registration Act 1860 could never have been applied in the facts and circumstances of this case because that Act applies to very limited category of Institutions or establishments. The Preamble, long title, Section 1 Section 20 of the Societies Registration Act read thus:–
THE SOCIETIES REGISTRATION ACT, 1860
(21 of 1860)
An Act for the Registration of Literary, Scientific and Charitable Societies.
Preamble.–Whereas it is expedient the provision should be made for improving the legal condition of societies established for the promotion of literature, science, or the fine arts, or for the diffusion of useful knowledge, the diffusion of political education or for charitable purposes, it is enacted as follows:–
1. Societies formed by memorandum of association and registration.-Any seven or more persons associated for any literary, scientific, or charitable purpose, or for any such purpose as is described in Section 20 of this Act, may, by subscribing their names to a memorandum of association, and filing the same with Registrar of Joint-stock Companies Word and figures “under At No. 19 of 1857 omitted by Act 16 of 1874 [***] from themselves into a society under this Act of the Societies Registration Act, 1860 reads thus:–
20. To what societies Act applies.–The following societies may be registered under this Act:–
Charitable societies, the military orphan funds or societies established at the, several presidencies of India, societies established for the promotion of science, literature, or the fine arts for instruction, the diffusion of useful knowledge, Ins. by Act 22 of 1927 [the diffusion of political education], the foundation or maintenance of libraries or reading-rooms for general use among the members or open to the public or public museums and galleries of paintings and other works of art, collections of natural history, mechanical and philosophical inventions, instruments, or designs.”
35. On comparing the provisions of the Societies Registration Act with those of the Waqf Act, it is noticed that while the Registration Act confines itself to the institutions referred to in Sections 1 and 20 therein, the Waqf Act, on the other hand, is an Act to provide for the better administration and supervision of immovable and movable property which is recognized by the Muslim law as pious or religious or charitable. Thus, the Waqf Act is a special legislation and consequently, ousts the applicability of the general law. It is therefore held that the Societies registration Act has no role to play in matters relating to the administration, supervision and management of Waqfs.
36. The Societies Registration Act therefore cannot be invoked for purposes of management of a mosque/religious places as this falls within the exclusive domain of the Waqf Board. Thus the Order of the minister (Annexure-1 of C.W.J.C. No. 4323 of 1998) authorizing the Society which was registered under the provisions of the Societies Registration Act, 1860 under the presidentship of the Respondent No. 8 to manage the Eqra Mosque and properties appertaining thereto, is wholly without jurisdiction. Following the well known legal principle of Generalia Specialibus Non Demgant, a registration made under the provisions of the special law, namely, The Waqf Act, 1954, could not have been upset by operation of the general law, i.e. the Societies Registration Act, 1860. Therefore, both the impugned Orders in both the Writ Applications are held to be illegal and without jurisdiction.
Consequently, it is held that by applying the provisions of the Societies Registration Act, 1860 upon the Committee headed by the Respondent No. 8, which was registered under the provisions of the said Act, it is held that the Respondents and specially the Respondent No. 2 acted illegally and without jurisdiction while passing the Order dated 12.05.1998 setting aside Annexures-3 and 4 appended to CWJC No. 4323 of 1998. Consequently, the Order of the Minister (Respondent No. 2 therein) giving recognition to that society is held to be illegal and it is accordingly set aside.
For the same reason therefore, the other Writ Application, namely CWJC No. 4822 of 1998 also succeeds and the Certificate of Registration of the “Masjid-e-Eqra Welfare Society” registered by the Inspector General of Registration, Bihar, Patna, under Sections 3 and 20 of the Societies Registration Act, 1860, is also set aside.
As a natural corollary ensuing pursuant to the setting aside of Annexure 1 in both the Writ Applications for the reasons stated above, the certification and the registration made by the Waqf Board vide Annexures 3 and 4 appended to C.W.J.C. No. 4323 of 1998 should have revived. However there is a serious dispute as to whether the property in question is a Waqf property or not. This Court has already held that there is nothing on record to prove or establish permanent dedication, as is necessarily required for treating a property to be a Waqf property. This Court has also not accepted the contention of Mr. Raghib Ahsan to the effect that the property should be deemed to be a “Waqf by User” because for a property to become a “Waqf by User” the facts must establish the usage from time immemorial, which, in the instant case is lacking. In that view of the matter, this Court refrains from giving any finding in relation to the property being either a “Waqf or a “Waqf by User” and accordingly, gives liberty to the parties to get this dispute resolved either through the processes of a validly constituted suit under the provisions of the appropriate law or Statute or through any other appropriate forum, applicable in the facts and circumstances of the case.
Both the Writ Petitions are therefore partly allowed. There shall however be no order as to costs.