S.S.CHAUHAN, J. - (1.) THE present proceedings arose on a reference being made under Section 29 (8) of the U.P. Muslim Waqf Act, 1960 (hereinafter refereed to as the 'Act').
(2.) THE facts giving rise to the present dispute are that the building of Dargah Hazrat Abbas ( hereinafter refereed to as the 'shrine') was constructed by Nawab Saadat Ali Khan in the year 1800. This building was constructed at the place where Saint Mirza Faqira used to reside and the building in question came up in the form of shrine. The followers/worshipers started making prayer there and also making offerings on the said shrine. It is stated that the said shrine was managed by the successors of Saint Mirza Faqira. Later on, it is alleged that Nawab Wajid Ali Shah bifurcated the income of the shrine into two parts and the income which was derived from the offerings made by male worshipers were to go to the treasury of the Nawabs and the offerings which were received from the female worshipers were to go to the family members of the successors of the Saint Mirza Faqira. During the regime of Nawab Wajid Ali Shah a Government Order (Shahi Farman) was issued, according to which the management of the income of the shrine was handed over to Nawab Hasan Ali Khan and where-after the shrine is being managed and the income is being managed by the successors of Nawab Hasan Ali Khan. It also provided in the said Government Order (Shahi Farman) that except Nawab Hasan Ali Khan and his descendants, no other person shall have a right in the income received from the offerings of the shrine. In the year 1931 there was some dispute between the descendants of the Nawab Hasan Ali Khan in regard to the income of the shrine and the matter was referred to the Arbitrator and the Arbitrator had made the award Rule of the Court. In the said award, it was held that the shrine is not a waqf property and is a personal property. The said award was passed on the basis of the consent of the parties, but a committee of five members was constituted to look after the management of the shrine and it was decided that the income shall go to the successors of Nawab Hasan Ali Khan and the same will be distributed amongst them and one share was to be spent in the maintenance of the shrine. Thereafter, the said committee continuously managed the affairs of the shrine as well as the income derived from the shrine. Later on, Sri Syed Ali Zaheer was appointed as president of the U.P. Shia Central Board of Waqf ( hereinafter referred to as the 'Board') by means of Government Notification dated 27.11.1978. The Controller of the Board at the relevant time was Sri S.A.H. Rizvi and he wrote a letter on 9.5.1978 to Sri Syed Ali Zaheer making a request therein that the shrine be registered as a waqf. The said letter was replied on 15.6.1978 wherein it was asked as to under which provision of the Act he wanted to get the shrine registered. A reply was given to the aforesaid letter on 19.7.1978. Thereafter, on 29.7.1978 the Secretary of the shrine wrote a letter to the Secretary of the Board asking therein for certain time as it was said that he was searching for the relevant judicial documents and, therefore, it was not possible for him to submit reply by 31.7.1978. The Secretary of the shrine again wrote a letter on 28.10.1978 to the Secretary of the Board and demanded for one months' additional time for filing reply. During all this letter writing, on 15.11.1978 the Secretary of the Bord informed the committee of the shrine that the shrine has been registered as a waqf. The Secretary of the shrine wrote a letter on 22.11.1978 that the action of the Board was illegal as no application under Section 29 of the Act has been given for registering the shrine as waqf. It was also stated in the said letter that the committee was not given proper opportunity of hearing and neither they were given opportunity to adduce evidence in this regard. The Administrator appointed by means of order dated 30.11.1978 tried to take forcible possession of the management of the shrine. An injunction was also prayed for as it was alleged that the plaintiffs-respondents were managing the affairs of the shrine. In reference to these facts, an application was moved under Section 29 (8) of the Act for making reference to the Tribunal. The Tribunal issued notice to the parties and the written statement was filed by the Board stating therein that answering defendants were not bound by the alleged arbitration or the decree based on the alleged award and the provisions of the Act in question cannot be imposed on them, therefore, the nature of the waqf could not have been determined in the arbitration proceedings as the dispute regarding share of income derived from the offerings came to an end by the said award and in absence of any law then prevailing, it was not proper to interfere with the dispute in regard to the character of the waqf property. The finding of the trial court is vitiated on that score. It was also denied that there was distribution of income amongst the descendants of Nawab Hasan Ali Khan. It was also admitted that the shrine was administered by the plaintiffs-respondents through a committee of management and the accounts of the shrine has never been audited so it was not in the knowledge in the Board as to what portion of the income was being utilised on upkeep of the shrine. It was also stated that the first U.P. Muslim Waqf Act came into operation in the year 1936, under which a Survey Commissioner was appointed, who reported about several waqf properties, but innumerable waqfs escaped from his scrutiny. Mere fact that the shrine was not reported by Survey Commissioner does not mean that it is not a waqf. It was also stated that continuous offerings and prayers by followers of Shia community together goes to indicate that it is a waqf established by long user. The process in regard to registration of waqf was initiated on the application of late Sri Syed Mohd. Asghar dated 13.4.1943, but it was shelved because very influential personalities were at the helm of affairs of the shrine. The committee was having no locus standi to maintain this reference and it was not having any legal status or any legal recognition as the self-styled committee will not have any right. It is only the persons alleged to be share holders of offerings, who could submit this reference on the ground that the shrine is their private property. It was also stated that the waqf was registered on the application of Shia Muslims of Lucknow and after inquiry and after giving full opportunity to the committee to produce its evidence, but the committee was uncertain on its stand and gave evasive reply and played dilatory tactics on account of which decision has been taken. It is not only under Section 29 of the Act, but also under Section 33 of the Act the Board may collect information regarding any property which it has reason to believe to be a waqf property and if any question arises whether a particular property is waqf property or not, it may after making such inquiry as it may deem fit, decide the question. It was also stated that since time immemorial the shrine is the most popular religious shrine of the Shia community of India where people in thousands and lacks congregate on religious occasions held by Muslims all the year round and biggest Al and Taboot processions terminate here. Since shahi days this shrine is the place of prayer and worship where newly weds come for blessing, where dangerously ill come for cure of their disease. The word "Dargah" means a door of fulfillment of desires means a shrine, may be a tomb of a saint or a replica of a tomb of a saint where people pray to God through the media of the saint for alleviation of their difficulties, sufferings and fulfillment of their desires. The income of the shrine is from two main sources; one from the offerings of devotees and the second from the rent of property let out. All the property came into existence out of religious motive of persons who constructed it and none of the properties of the shrine movable or immovable can be regarded as secular or personal property. The shrine is a renowned place of worship, but in spite of that opportunity was given to the committee, but it failed to respond and did not submit any cogent evidence to establish that it is a private property. Therefore, the Board has committed no illegality in passing the aforesaid orders. The offerings made at a shrine or tomb or Imambara are waqf property under sub-section 12 of Section 3 of the Act and offerings made by devotees at the shrine are not personal property of anybody. It was also denied that any of the descendants of Nawab Hasan Ali Khan has received any share out of the offerings for the last several decades. The shrine is a public waqf and if ever it is held to be a private waqf for the benefit of the family members of particular individual, its entry in the waqf register is quite legal and valid in view of the authoritative view of the Division Bench of the Allahabad High Court vide Sunni Central Board of Waqfs vs. Hasan Jehan Begum in 1976 Lucknow Law Journal. Dargah Hazrat Abbas (step brother of Hazrat Imam Husain) is one of the most respected religious places of Shia community of India and the members of the committee to keep their life long monopoly over this important shrine and its finances without the least interference from any source whatsoever. The registration of the said shrine as a waqf and bring it under the control of the Board did not entail the least disturbance in its administration except that it has become subject to audit by the authorities of the Board. A statutory duty was cast upon the Board to register it as a waqf for its future welfare and upkeep. It has come to the knowledge of the Board that the members of the committee were busy in managing the affairs of another Dargah at Agra. The averments made in the written statement were replied by means of replication by the plaintiffs-respondents. The application for injunction duly supported by an affidavit was moved, which was duly replied by the plaintiffs-respondents. The parties were allowed to lead evidence and after conclusion of the evidence, the trial court came to the conclusion that the property in question was a personal property and cannot be termed as waqf property and hence proceeded to set aside the orders passed by the Board dated 14.11.1978 and 30.11.1978 by means of judgement and order dated 6.1.1992. Feeling aggrieved with the aforesaid order, the Board has come forward to challenge the same through this revision.
(3.) SUBMISSION of learned counsel for the revisionists is that the character of the waqf has to be determined on the basis of long user and the nature of the offerings and the nature of the activity going on there. He has further submitted that the shrine has never been a personal property, but in fact the arbitration proceedings and the award, which was made the Rule of the Court by means of order dated 8.7.1932 by the Sub-Judge, Malihabad, District Lucknow cannot in any manner affect the merit of the case and neither on the basis of the said decree the shrine in question can be termed to be a personal property. The U.P. Muslim Waqf Act was promulgated for the first time in the year 1936 and prior to the said date the award has already been made the Rule of the Court on 8.7.1932. He has also submitted that the provisions of the Act were never taken into consideration and neither the reference was made in the said award. The award was consensual which was made Rule of the Court and the revisionists were never party to the said proceedings. The character of the shrine has to be determined after the enforcement of the Act in 1936 and thereafter with the promulgation of U.P. Muslim Waqf Act, 1960. It has further been submitted that if by chance the Survey Commissioner has over looked the said shrine to be included in the waqf, that will not confer any right upon the respondents, but in fact the Board is not precluded from exercising the said power as contemplated under Section 33 of the Act at any point of time and when it came to the knowledge of the Board, the application was entertained and accordingly the shrine was registered as a waqf property. It has been submitted that the offerings never went to the descendants of Nawab Hasan Ali Khan and they have not been managing the affairs of the said shrine for the decades together. The so called committee, which came into existence by means of the decree dated 8.7.1932 in pursuance to the award cannot confer any legal status and neither change the complexion of the waqf property, which is established by long user. It is also submitted that the shrine is the most popular religious shrine of the Shia community of India where people in thousands and lacks congregate on religious occasions held by Muslims all the year round and biggest Al and Taboot processions terminate here. Since shahi days this shrine is the place of prayer and worship where newly weds come for blessing and dangerously ill come for cure of their disease and by its long user, it has become a waqf property. The law in regard to waqf has been settled by the apex Court as well as by the different High Courts in the following cases: Maher Husein v. Alimahomed, AIR 1934 Bom. 257, Mohammad Shah v. Fasihudin Ansari, AIR 1956 SC 713, Khati v. Mirza Hossair, AIR 1962 Orissa 95, 40 Cal 297 (4) (PC) Anjuman Islamia v. Najim Ali and others, AIR 1982 M P 17 Jawaharbeg v. Abdul Aziz, AIR 1956 Nag 257 Sain Maule Shah v. Ghane Shah, AIR 1938 PC 202 Rahim Khan v. Fakir Mohd. Shah, AIR 1946 Nag 401 Miru v. Ram Gopal, 1935 All 1269, and Chutkoo v. Lala Ghambir, 1930 Luck. 452.;