Full Judgment Text
$~166
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 920/2024 & CM APPL. 53329/2024, CM APPL. 53330/2024
MANAGING COMMITTEE MASJID SYED FAIZ
ELAHI .....Appellant
Through: Mr. Wajeeh Shafiq and Mr. Nimish
Chib, Advocates.
versus
DELHI WAQF BOARD & ORS. .....Respondents
Through: Mrs. Rashmi Chopra, Mrs. Farhat
Jahan Rehmani, Mr. Parikshit and Mr.
Monis Faridi, Advocates.
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% Date of Decision: 12 September, 2024
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
MANMOHAN, ACJ : (ORAL)
CM APPL. 53331/2024 (Exemption)
1. Exemption is allowed subject to all just exceptions.
2. Application is disposed of.
LPA 920/2024 & CM APPL. 53329/2024, CM APPL. 53330/2024
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3. Present appeal has been filed challenging the order dated 20 August,
2024 passed by the learned Single Judge in CM Appl. No.41921/2024
(Application seeking stay of the impugned order) in W.P. (C) 10210/2024 to
the extent that the learned Single Judge has directed the Appellant to deposit
50% of impugned demand within a period of thirty days from the date of the
st
order and has granted a stay of the impugned notices dated 1 February,
Signature Not Verified
Digitally Signed By:JASWANT
SINGH RAWAT
Signing Date:17.09.2024
12:51:11
LPA 920/2024 Page 1 of 9
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2024 and 12 July, 2024 subject to the deposit of the said amount.
4. Learned counsel for the appellant states that the Delhi Waqf Board
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vide office order dated 15 March, 2004 dissolved the managing committee
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constituted on 22 July, 2002 and constituted a fresh committee and it was
stated in the office order that the appellant shall give 33% out of the income
of the Waqf under reference to Delhi Waqf Board on monthly basis.
5. He states that it is alleged by Delhi Waqf Board that due to the default
of non-payment of 33% of income to Delhi Waqf Board, an inquiry was set
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up by Delhi Waqf Board vide its Resolution no.10 dated 13 June, 2006 and
a report was submitted recommending removal of the appellant. He states
that the appellant is not aware of any such inquiry.
6. He further states that it is the case of Delhi Waqf Board that the report
of the said enquiry committee was presented before Delhi Waqf Board on
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20 September, 2006 which was accepted and Delhi Waqf Board resolved to
remove the appellant committee and informed the appellant committee to
handover the possession, cash and accounts etc. He emphasises that as per
appellant's record, no such communication was sent to the appellant.
7. He also states that it is the case of Delhi Waqf Board that the
appellant's case was presented before Delhi Waqf Board in its meeting dated
nd
22 February, 2014 and it was resolved that the Ex-Managing Committee
will clear the arrears of dues payable to Delhi Waqf Board @ 20% (7% as
Waqf Contribution and 13% as donation) within a month.
8. He submits that Section 72 of the Waqf Act, 1995 only empowers the
State Waqf Board to collect 7% of the net annual income of the Waqf under
reference from the appellant, which is already paid to Delhi Waqf Board,
whereas, the additional demand of 13% of the net annual income of the
Signature Not Verified
Digitally Signed By:JASWANT
SINGH RAWAT
Signing Date:17.09.2024
12:51:11
LPA 920/2024 Page 2 of 9
Waqf under reference, termed as 'donation' is without any enabling
provision of the Waqf Act, 1995.
9. He states that respondent no.1 being a creature of statute cannot travel
beyond that statute. In support of his submissions, he relies upon the
judgment of the Supreme Court in Gaurav Kumar vs. Union of India &
Ors., 2024 (9) SCALE, 336 the relevant paragraphs of which are as under:
“31. In CIT v. McDowell and Co. Ltd., a three-Judge Bench of this Court
enunciated the principles for interpreting Article 265 read with Article
366(28):
“21. “Tax”, “duty”, “cess” or “fee” constituting a class denotes
various kinds of imposts by State in its sovereign power of taxation to
raise revenue for the State. Within the expression of each specie each
expression denotes different kinds of impost depending on the purpose
for which they are levied. This power can be exercised in any of its
manifestations only under any law authorising levy and collection of
tax as envisaged under Article 265 which uses only the expression that
no “tax” shall be levied and collected except authorised by law. It in
its elementary meaning conveys that to support a tax legislative action
is essential, it cannot be levied and collected in the absence of any
legislative sanction by exercise of executive power of State under
Article 73 by the Union or Article 162 by the State.
22. Under Article 366(28) “Taxation” has been defined to include the
imposition of any tax or impost whether general or local or special
and tax shall be construed accordingly. “Impost” means compulsory
levy. The well-known and well-settled characteristic of “tax” in its
wider sense includes all imposts. Imposts in the context have following
characteristics:
(i) The power to tax is an incident of sovereignty.
(ii) “Law” in the context of Article 265 means an Act of legislature
and cannot comprise an executive order or rule without express
statutory authority.
(iii) The term “tax” under Article 265 read with Article 366(28)
includes imposts of every kind viz. tax, duty, cess or fees.
(iv) As an incident of sovereignty and in the nature of compulsory
exaction, a liability founded on principle of contract cannot be a
“tax” in its technical sense as an impost, general, local or special.
Signature Not Verified
Digitally Signed By:JASWANT
SINGH RAWAT
Signing Date:17.09.2024
12:51:11
LPA 920/2024 Page 3 of 9
xxx xxx xxx
34. The principles that flow from the above discussion are : (i) a fee is an
impost in terms of Article 366(28); (ii) the expression “tax” occurring in
Article 265 means all imposts, including fees and therefore any fee must be
levied by the authority of a valid law; (iii) fees being a compulsory exaction
of money, the power to levy fees cannot be implied; (iv) delegation of the
power to levy fees to a delegate of the legislature should be specifically
provided for under the parent legislation and (v) the delegate must strictly act
within the parameters of the legislative policy laid down by the parent
legislation when levying fees and taxes.
xxx xxx xxx
66. From the above discussion, we can cull out the following principles : (i) a
delegate cannot act contrary to the express provisions and object of the
parent legislation; (ii) a delegate cannot widen or constrict the scope of the
parent legislation or the legislative policy prescribed under it; and (iii) a
fiscal provision has to be construed strictly and a delegate cannot consider
any circumstance, factors or condition not contemplated by the parent
legislation.”
10. Per Contra, learned counsel for the respondents has taken this Court
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through the office order dated 15 March, 2004 which reads as under:
“ TRANSLATION URDU INTO ENGLISH VERSION
DELHI WAKF BOARD
DARYA GANJ, NEW DLEHI – 110002
Date: 15.03.2024
No.GA/MQ/3/GP IX/40/91/2004
OFFICE ORDER
In response to your application regarding formation of Managing
Committee for the Masjid Faiz Ilahi, Dargah Faiz Ilahi and its adjacent
land, the Chairman of Delhi Wakf Board, anticipating approval by the
Board has dissolved and nullified the previous committee that was formed
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on 22 July 2002 forming a new Committee for the same. The names of
Office Bearers and the Members of new Committee are given below:-
Signature Not Verified
Digitally Signed By:JASWANT
SINGH RAWAT
Signing Date:17.09.2024
12:51:11
LPA 920/2024 Page 4 of 9
----------------------------------------------------------------------------------------
S.NO. NAME POST ADDRESS
----------------------------------------------------------------------------------------
1. Nooruddin Patron DDA Flats, Turkman Gate, Delhi
2. Ch. Qayamuddin President DDA Flats, Turkman Gate, Delhi
3. Haji Rafiuddin Vice-President DDA Flats, Turkman Gate, Delhi
4. Hafiz Matlub Karim Gen. Secy. 198, Turkman Gate, Delhi.
5. Mohd. Dilshad Member 3161, Turkman Gate, Delhi.
6. Haji Naimuddin Member 2042, Turkman Gate, Delhi.
7. Haji Idrees Member 1864, Turkman Gate, Delhi.
8. Shafi Dehlvi Member DDA Flats, Turkman Gate, Delhi.
9. Haji Ashiqeen Member 3182, Turkman Gate, Delhi.
10. Abdul Latif Member 3200, Turkman Gate, Delhi.
11. Haji Manzoor Member 2746, Bhojla Pahari, Turkman
Handicraft Gate, Delhi.
12. Haji Jamaluddin Member DDA Flats, Turkman Gate, Delhi
13. Haji Shahabuddin Member DDA Flats, Turkman Gate, Delhi
14. Haji Mohsin Ali Member DDA Flats, Turkman Gate, Delhi
TERMS
1. The Managing Committee will manage the affairs of the mosque,
Dargah and lands related to it, and will give monthly emoluments to the
Imam and the Muezzin, along with providing necessary requirements of the
mosque.
2. It will keep proper account of income and expenditure of the land
related to it that is rented for occasions. It will pay from its income 33% to
the Board monthly.
3. It will not do any construction or alteration work in the mosque or the
adjacent building, nor will it open any Madrasa in it.
Sd/-
FAIZI AZIZ HASHMI
Chief Executive Officer
To: Hafiz Matloob Karim
General Secretary
Masjid & Dargah Faiz Ilahi
3198, Tukman Gate, Delhi-110006.”
(emphasis supplied)
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11. She has also drawn this Court’s attention to the Minutes of 28
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meeting of the Delhi Waqf Board held on 22 February, 2014. The relevant
Signature Not Verified
Digitally Signed By:JASWANT
SINGH RAWAT
Signing Date:17.09.2024
12:51:11
LPA 920/2024 Page 5 of 9
portions of the said Minutes of meeting are reproduced hereunder:
“ DELHI WAQF BOARD
(Govt. of NCT of Delhi)
5028, Daryaganj, New Delhi-110002
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Minutes of the 28 meeting of Delhi Waqf Board held on 22-02-2014 at
4.00 P.M. in the office of Delhi Waqf Board
______________________________
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The 28 meeting of the Board was held on 22-02-2014 at 4.00 P.M. in the
office of Delhi Waqf Board under the Chairmanship of Ch. Mateen Ahmed.
The following were present.
1. Janab Ch. Mateen Ahmad Chairperson
2. Mrs. Rana Parveen Siddiqui Member
3. Janab Azimul Haque Member
4. Janab Raza Mehdi Member
5. Janab Mufti Aijaz Arshad Qasmi Member
6. Janab Khursheed A. Farooqui Section Officer
(C.E.O. is on medical leave)
Mr. Mohammed Qaseem, Chief Legal Officer was present to assist the
Board.
The following agenda items were taken up:-
(1) Matter regarding disruption and meddling in the affairs of
Managing Committee of Dargah Hazrat Khawaja Qutubuddin
Bakhtiyar Kaki, Mehrauli, New Delhi
An intimation regarding disruption and meddling in the affairs of
Managing Committee of Dargah Hazrat Khawaja Qutubuddin
Bakhtiyar Kaki, Mehrauli, New Delhi has been received in the office of
Delhi Waqf Board on 15-02-2014. The President of the said
Committee, Mr. M. Omar Faridi has requested that Mr. Fakhruddin
one of the Members of the said Committee, is also involved in causing
disruption in the functioning of the said Committee and has been
extorting money from the Zaireens, may be replaced and some more
Members from amongst the local residents may be inducted in the
Managing Committee for its better management and smooth
functioning. The request was considered by the Board and it was-
"Resolved that Mr. Fakhruddin, Member of Managing Committee
of Dargah Hazrat Khawaja Qutubuddin Bakhtiyar Kaki, Mehrauli,
Signature Not Verified
Digitally Signed By:JASWANT
SINGH RAWAT
Signing Date:17.09.2024
12:51:11
LPA 920/2024 Page 6 of 9
New Delhi be replaced by Mr. Mohd. Khalid with immediate effect.
Further resolved that the following Members may be inducted in
existing Committee of the above said Dargah. An intimation letter
regarding replacement/removal be issued to Mr. Fakhruddin".
(1) Mr. Mohd. Shamim Saifi,
S/o Mr. Mohd. Yamin,
1061, Ward No.7, Mehrauli,
New Delhi-110030.
(2) Mr. Sher Ali
S/o Mr. Khuda Baksh
H. No.31/1, Ward No.1,
Mehrauli, New Delhi-110030.
(3) Mr. Irfan Ali,
S/o Mr. Inayat Ali,
T-29/8, Ward No.7,
Mehrauli, New Delhi-110030.
(4) Mr. Shabbir Ahmed,
C/1233, Gali No.6,
R.K. Marg, Chauhan Bangar,
Delhi
(5) Mr. Mohd. Akhtar Rizwi
Addl. DCP, Outer Delhi
(2) Any Other Item with the permission of the Chair :-
(i) Matter regarding formation of a Managing Committee of Dargah
Faiz-e-Ilahi, Turkman Gate, Delhi.
An application has been received in the office of Delhi Waqf
Board regarding formation of a Managing Committee of Dargah
Faiz-e-Ilahi, Turkman Gate, Delhi. The representative of Ex-
Managing Committee of the said Dargah, Mr. Matloob Karim
has agreed to pay arrears of Waqf contribution of the said
Dargah @ 20% per annum of the net income of the Dargah
instead of 33% which was asked by the Board. The matter was
discussed and deliberated upon and it was-
"Resolved that the Ex-Managing Committee of Dargah Faiz-
e- Ilahi will clear the arrears of dues of Waqf contribution @ 20%
(7% Waqf contribution and 13% as donation) within a month
from the date.
Signature Not Verified
Digitally Signed By:JASWANT
SINGH RAWAT
Signing Date:17.09.2024
12:51:11
LPA 920/2024 Page 7 of 9
Further resolved that the process for formation of new Managing
Committee should be expedited".
(ii) Matter regarding security arrangements in the office premises of
Delhi Waqf Board.
Matter regarding security arrangements in the office premises of
Delhi Waqf Board was discussed and in order to check the entry of
undesirable elements and keep record of the visitors in the office
premises. It was-
“Resolved that eight CCTV Cameras may be installed in the
office premises and arrangements for displaying pictures be made
in the room of Chairman as well as C.E.O."
(iii) Matter regarding mismanagement of the affairs of Majeedia
Masjid, Moti Lal Nehru Marg. New Delhi
Matter regarding mismanagement of the affairs of Majeedia
Masjid, Moti Lal Nehru Marg, New Delhi was discussed before the
Board and it was-
"Resolved that Mrs. Rana Parveen Siddiqui, Member of the Board
will visit the said Mosque and take stock of the situation and
thereafter only requisite action would be taken, if required".
(iv) Matter regarding payment of Darbans, Masjid Fatehpuri, Delhi
Matter regarding pending court cases filed by Darbans of Masjid,
Fatehpuri, Delhi was discussed and deliberated upon. It was-
“Resolved that Mr. Mufti Aijaz Arshad Qasmi, Member of
the Board shall along with the Board officials will meet the Imam
and Darbans of Masjid Fatehpuri and shall by to resolve the
dispute between Imam and Darbans”.”
12. Learned counsel for the respondent also states that there is a large
vacant piece of land adjacent to the mosque and part of the same complex
which is hired out for marriages and other functions. She states that the
appellant earned substantial sums of money during that period and that too
mostly in cash.
13. In rejoinder, learned counsel for the appellant states that, as on date,
the balance in the account of the appellant is Rs.64,304/-. He denies that the
Signature Not Verified
Digitally Signed By:JASWANT
SINGH RAWAT
Signing Date:17.09.2024
12:51:11
LPA 920/2024 Page 8 of 9
appellant had received any income in cash.
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14. Having perused the office order dated 15 March, 2004 and the
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Minutes of meeting dated 22 February, 2014, wherein prima facie a
consensual arrangement was arrived at between the parties, this Court is of
the view that nothing prevented the appellant from agreeing to pay a larger
contribution to the Delhi Waqf Board.
15. This Court is also of the view that the learned Single Judge has only
made an interim arrangement pending disposal of the final writ petition. By
virtue of the said arrangement, the money has only been asked to be
deposited with the Registry of this Court and said deposit will abide by the
final order to be passed.
16. Considering the above, the impugned order calls for no interference.
17. Accordingly, the appeal along with applications is dismissed.
ACTING CHIEF JUSTICE
TUSHAR RAO GEDELA, J
SEPTEMBER 12, 2024
kct
Signature Not Verified
Digitally Signed By:JASWANT
SINGH RAWAT
Signing Date:17.09.2024
12:51:11
LPA 920/2024 Page 9 of 9