P.K.BALASUBRAMANYAN, J. - (1.) THESE appeals arise from a dispute regarding the management of a mosque between the Managing Committee of Eqra Mosque registered under the Wakf Act and the Eqra Masjid Welfare Society registered under the Societies Registration Act, 1860. For convenience, we shall hereinafter refer to the two rival parties, as the Wakf Committee and the society committee. These appeals arise from CWJC Nos. 4323 of 1998 (R) and 4822 of 1998 (R). The Wakf Committee and another in CWJC No. 4323 of 1998 challenged the order of the Minister Incharge, Minority Welfare, Government of Bihar, dated 12.5.1998 allegedly in exercise of powers under Section 43(4A) of the Wakf Act, 1954. The other writ petition, CWJC No. 4822 of 1998, was filed by the Secretary of the Wakf Committee challenging the registration granted to the Masjid Eqra Welfare Society under Section 3 of the Societies Registration Act, 1860. The learned Single Judge, in the judgment under appeal, after hearing both sides, allowed both the writ petitions to the extent of setting aside the order of the Minister Incharge, Welfare and also setting aside the certificate of registration granted under the Societies Registration Act. At the same time, the learned Single Judge refused to uphold the plea of the Wakf Committee that the certificate of registration given under the Wakf Act to it was liable to be upheld. The learned Single Judge held that there was a serious dispute whether the property in question was a Wakf property or not and it could not also be decided properly in proceedings under Article 226 of the Constitution of India. But the learned Judge was inclined to hold that no adequate material was available to find a Wakf by user or a Wakf by dedication. The learned Single Judge left the parties to have their disputes resolved in a properly constituted suit a civil Court. Feeling aggrieved by the setting aside of the order of the Minister and the certificate of registration under the Societies Registration Act, the society committee and its members have filed the appeals, LPA Nos. 215, 223, 224 and 225 of 2003. The Masjid Committee in its turn has filed LPA No. 651 of 2003 challenging the decision of the learned Single Judge to the extent he has found that the registration of the Eqra Mosque under the Wakf Act was not valid and leaving the parties to approach a civil Court for getting that question adjudicated upon.
(2.) CERTAIN residents of the locality decided to come together and to purchase certain lands. 8 persons subscribed to a Memorandum of Association dated 27.3.1983 with an intention to establish a society. Under two sale -deeds, one dated 26.8.1987 and the other dated 16.5.1988, two separate pieces of lands were purchased in the names of some of the members. The sale -deeds did not disclose the purpose for which the purchases were being made. A ground floor consisting of 37 shop rooms was originally constructed in the year 1990. They were let out on rent. Subsequently, three other floors were constructed and they housed a mosque and its adjuncts. On 2.11.1996, an application was made before the concerned authority under the Societies Registration Act for registering the Society. On 20.11.1996, one Kalimuddin who was not one of the purchasers under the two sale -deeds, filed an application before the Wakf Board under the Wakf Act, 1954 for registering the mosque as a Wakf. The Chairman of the then Wakf Board passed an order on 20.11.1996 granting registration to the Wakf and constituting a committee referred to hereinbefore as the Wakf Committee. The Registrar of Societies accepted the application for registration under the Societies Registration Act and granted registration as a Society on 2.12.1996. On 5.12.1996, the Secretary of the Wakf Board stayed the order of the Chairman dated 20.11.1996 granting, registration under the Wakf Act. On 18.12.1996, the Chairman of the Wakf Board set aside the order of the Secretary staying the grant of registration by the Chairman. The order of the Chairman was challenged before the Patna High Court in CWJC No. 238 of 1997. Simultaneously, one of the members of the Society Committee filed an appeal as Appeal No. 4 of 1996 against the order of Chairman. By the Wakf Committee, an objection was raised in that writ petition to the effect that since the matter was pending in appeal before the Minister, incharge Minority Welfare, the writ petition was not maintainable since that appeal was an efficacious alternative remedy. The Patna High Court accepted that submission and disposed of the writ petition directing the appeal, Appeal No. 4 of 1996, to be heard and finally disposed of. That appeal was disposed of in the presence of both the parties and after hearing them. The Minister set aside the order of the Chairman granting registration under the Wakf Act. It was In that situation that the Wakf Committee and one of its members, filed two writ petitions; one for setting aside the order of the Minister and the other for setting aside the certificate of registration granted under the Societies Registration Act. According to Mulla, in his Mohammedan Law, a Wakf can come into existence either by dedication or by user. Obviously, the user must be for such a length of time as the ripen into a right or as to lead to an inference of dedication or to an implied dedication. The learned Single Judge observed that there was neither a deed of dedication, nor user for the requisite period justifying the finding of a Wakf by user. But considering the fact that the learned Single Judge was exercising jurisdiction under Article 226 of the Constitution of India and the matter required a proper trial based on proper pleadings and after taking the evidence, oral and documentary, the learned Single Judge rightly left the question to be decided in a civil Court in a properly fought out litigation. We may notice here that no Wakf Tribunal has been constituted under Section 83 of the Wakf Act, 1995. Even though at the time of hearing, a notification issued under Section 83(4) of the Wakf Act by the Governor of Bihar on 3.12.2003, obviously after 15.11.2000, the coming into force of the Bihar Reorganisation Act was brought to our notice, that notification issued by the Governor of Bihar constituting a Wakf Tribunal cannot have any bearing in the State of Jharkhand. Therefore, it cannot be said that the Wakf Tribunal has excluded or ousted the jurisdiction of the civil Court. In the appeal before us, certain documents were sought to be produced on behalf of the Wakf Committee seeking to show that coming into existence the Wakf could be predicated. The decision of the Supreme Court in Syed Md. Salie Labbai v. Md. Hanifa, 1976 (4) SCC 780, was also relied on in support of the argument that the existence of a Wakf could be predicated in this case. We must notice that the materials sought to be relied on were not even produced before the learned Single Judge and therefore, he had no occasion to notice them. That apart, we do not think that exercising jurisdiction under Article 226 of the Constitution of India, such a question should be or could be satisfactorily decided. In that situation, we reject the argument on behalf of the Wakf Committee that the learned Single Judge ought to have upheld the plea of the creation of a Wakf in this case. We are in respectful agreement with the learned Single Judge in holding that the parties should be left to the civil Court seeking a proper decision, unless, of course, meanwhile, the Wakf Tribunal is created in this State, All that needs to be clarified is that no final decision or finding has been rendered by the learned Single Judge and all aspects would be open for decision before the civil Court as and when the parties approach the same for a decision,
(3.) IT was argued on behalf of the Society Committee that the learned Single Judge was in error in holding that the mosque could not have been registered under the Societies Registration Act. We find that the learned Judge upheld the challenge of the Masjid Committee to the registration under the Societies Registration Act only based on the decision of the Patna High Court in Md. Yunnus v. Inspector General of Registration, AIR 1980 Pat 138, taking the view that the expression 'charitable purpose' as used in the Societies Registration Act did not embrace purposes which are religious or predominantly religious. It was held that the expression 'charitable purpose' must be a purpose which has some element of general public benefit and not a religious purpose. Where, therefore, the main and predominant purpose of a society was religious, the Inspector General of Registration had no jurisdiction to register the society under Section 3 of the Societies Registration Act. It is argued that the Full Bench of the Patna High Court was not Justified in taking this view in the light of the decision of the Allahabad High Court in Anjuman Islamla v. Nasiruddin, ILR 28 All 384, wherein it was held that a religious purpose may be a charitable purpose and a society for religious purposes will ordinarily be a society for charitable purposes. Charitable purposes are not restricted to the giving of alms or other charitable activities, but the words have much wider legal meaning. Hence, a religious society which has for its purpose the control, management and protection of the property appertaining to a certain public mosque, was a society which might legally be registered under the Societies Registration Act, 1860. This view had its echo in the decision of the Madras High Court in Md. Hussain v. MMJM Committee, AIR 1940 Mad 167, wherein it was held that where a society was formed for certain purposes whose paramount object was charitable, was any the less, a charitable society and the fact that some of the purposes may not be strictly charitable, but religious, does not render the society not a charitable society if the purpose was one intended to benefit the public or considerable portion of the public. It is not necessary to pursue this aspect further in view of the authoritative pronouncement of the Supreme Court in Hindu Public v. Rajdhani Puja Samithee, 1999 (2) SCC 583. Therein, their Lordships after referring with approval to the decision of the Allahabad High Court and the Madras High Court, referred to above, stated the law as follows : '14. In our opinion, this contention is not well founded. More than ninety years ago, such a contention raised under Act 21 of 1860 was negatived by the Allahabad High Court in Anjuman Islamia of Muttra v. Nasiruddin. It was contended in that case that the registration of a society called 'Anjuman Islamia' under Act 21 of 1860 was not permissible as the society was formed for 'religious purposes only' and not for charitable purposes. The Allahabad High Court rejected the said contention and held that a society for religious purposes would ordinarily be a society for charitable purposes. A similar question arose before the Madras High Court in Khaji Muhammad Hussain Sahib v. Majiday Mahmood Jamait Managing Committee. A Division Bench consisting of Wadsworth and Venkataramana Rao, JJ. held that Act 21 of 1860 was passed in 1860 when according to English Law gift for the advancement of religious or promotion of religious worship was treated as a charitable purpose and, therefore, a society formed for such a purpose would be a charitable society under Act 21 of 1860. The only condition was that it should be for the benefit of the public. No doubt, in some statutes enacted subsequent to Act 21 of 1860, the Legislature used the words 'charitable' and 'religious' but the definition of these words was expressly stated to be for the purpose of these Acts. The subsequent legislation, the Madras High Court, held, would not be helpful in interpreting the word 'charitable' in Act 21 of 1860. The real question was 'What did the term mean in 1860?' we are !n agreement with the view of the Allahabad and Madras High Courts. In fact, Lord Mc Naughten in his celebrated judgment in CIT v. Pemsel said that charitable purposes which came within the language and spirit of the statute of Elizabeth (43 Eliz Ch. 4) could be grouped into four heads (i) relief of poverty, (ii) education, (iii) advancement of religion, and (iv) other purposes beneficial to the community not coming under any of the preceding heads. The words in Act 21 of 1860 are, therefore, to be understood as including religious purposes also. Point 1 is held against the society.' ;