KUTUBUDDIN FAKRUDDIN FARUQUI vs THE GUJARAT STATE WAQF BOARD
- Court
- Gujarat High Court
C/FA/1002/2026 (GJHC240170592026) CAV JUDGMENT DATED:
14/09/2026
Reserved On : 11/08/2026
Pronounced On : 14/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1002 of 2026
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In R/FIRST APPEAL NO. 1002 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
✔
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KUTUBUDDIN FAKRUDDIN FARUQUI & ORS.
Versus
THE GUJARAT STATE WAQF BOARD & ORS.
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Appearance:
SAQUIB S ANSARI(7152) for the Appellant(s) No. 1,2,3,4
JIGNESHKUMAR P PANDAV(8297) for the Defendant(s) No. 2
MEET R MODI(8744) for the Defendant(s) No. 3
MR MANISH S SHAH(5859) for the Defendant(s) No. 1
MR RAJESH N MODI(1956) for the Defendant(s) No. 3
MR SP MAJMUDAR(3456) for the Defendant(s) No. 4
VIRAL R AGRAWAL(7956) for the Defendant(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. Draft Amendment is allowed. Necessary
amendment to be carried out forthwith.
2. By order dated 21.04.2026, notice was issued for
final hearing. Consequently, the learned counsels appearing
for the respondents have waived service of notice.
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2.1. Admit.
3. With consent of learned counsels appearing for the
parties, the present First Appeal is taken up for final hearing.
4. This appeal under Section 83 of the Waqf Act,
1995, has been preferred by the appellants assailing the
judgment and order dated 09.02.2026 passed by the Gujarat
State Waqf Tribunal, Gandhinagar (for short “the Waqf
Tribunal”) in Waqf Appeal No. 15 of 2025, whereby the Waqf
Tribunal was pleased to reject Waqf Appeal No.15 of 2025 and
confirm the order dated 24.04.2025 passed by the Waqf
Board, passing Resolution No.11A, as well as the order dated
30.04.2025 passed by the Chief Executive Officer (for short
“CEO”) of the Waqf Board assigned the reasons to Resolution
No. 11A.
FACTUAL MATRIX
5. The facts born out from the impugned judgment
and order as well as from the record and proceedings, are
summarized as under:
5.1 The dispute concerns the holy shrine/property
known as “Maulana Mehbub Dargah Masjid and Kabrastan”
(per appellants)/ “Maulana Yaqub Saheb Dargah and Dawoodi
Bohra Kabrastan” (per respondents), bearing Registration
No.B-97/Mehsana, situated in Survey No.935 of village
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Anavada, Taluka and District, Patan, admeasuring about 1
Acre 21 Gunthas.
5.2 According to the appellants, in 1377 A.D. (798
A.H.), Hazrat Maulana Mehbub died in village Anavada and
was buried in the land bearing Survey No. 935. A Dargah was
thereafter constructed over his grave, along with the graves
of his family members, who were “Mujawar”, and other “Sufi
Saints”. The holy shrine has historically been known as
“Maulana Mehbub Dargah Masjid and Kabrastan”, has
followed the Hanafi-Sunni-Barelvi creed, and has been
managed by the predecessors of the appellants. This assertion
regarding its 14th-century origin and denominational
character has been disputed by the respondents.
5.3 Nanibai, widow of Jamaluddin Qutbuddin, in her
capacity as “Mujawar”, submitted an application under
Section 18 of the Bombay Public Trusts Act, 1950, (for short
“the Act”) to the Charity Commissioner for registration of the
public trust. The said application was made after the Act,
came into force in the State of Gujarat, pursuant to the
process of registration of holy shrines that had been in
existence for a long period.
5.4 At the time of registration of the public trust,
Nanibai, widow of Jamaluddin Qutbuddin, described/named
the holy shrine as “Maulana Mehbub Dargah Masjid and
Kabrastan”, showing Revenue Survey No.935 of village
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Anavada and admeasuring approximately 1 Acre and 21
Gunthas as trust’s immovable property. The registration
referred to religious activities such as Urs, Fatehawani,
Namaz and other related observances.
5.5 The Deputy Charity Commissioner, Ahmedabad,
initiated an inquiry in Application No. 236 and appointed
assessors, namely, S.M. Faruki, A.A.Maulvi and M.S. Kadri .
By order dated 22nd January, 1953, the Deputy Charity
Commissioner registered the public trust as B-97/Mehsana.
5.6 Upon the Wakf Act, 1995 coming into force, the
registration of the trust was transferred to the Gujarat State
Waqf Board.
5.7 Upon the death of Nanibi, her daughter, Badibi
Jamaluddin Faruqui,claimed and succeeded her as “Mujawar”.
Nanibi died on 11th February, 1960. Thereafter, Badibi,
daughter of Nanibi, succeeded to the office of “Mujawar”. The
record reflects that the change was recorded in favour of
Badibi as “Mujawar” on the basis of her statement dated
01.03.1960 and the change was approved on 10.03.1960.
5.8 On 20.12.2001, Badibi Jamaluddin Faruqui filed
Change Report No.286 of 2002 before the Wakf Board,
seeking deletion of her name and inclusion of the names of
Kutubuddin Fakruddin Faruqui, Asrafuddin Fakruddin
Faruqui, Jamaluddin Fakruddin Faruqui and Muniruddin
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Fakruddin Faruqui. However, no final order appears to have
been passed on the said Change Report. The record also
reflects that Badibi sought a change in the description of her
status from “Mujawar” to “Mutawalli”.
5.9 From the record, it appears that, in the year 2001,
a member of the Dawoodi Bohra community raised a
complaint before the Wakf Board and the police authorities
regarding the alleged collection of amounts from persons
visiting the holy shrine for Ziyarat. It further appears that a
committee was constituted in the year 2003 to report on the
condition of the holy shrine.
5.10 An application dated 28.06.2004, was made by the
Collector, Patan, to the Chairman of the Wakf Board, seeking
appropriate action in relation to what the Collector alleged to
be irregularities in the post-1951 mutation entry in favour of
Nanibi and her successor.
5.11 On 16.07.2011, Mohammad Hassan Poonawala and
Murtaza Sirajbhai Vohra alias Samiyawala, claiming to act on
behalf of Maulana Yaqub Saheb Dargah, the Dawoodi Bohra
community and the concerned burial ground, submitted an
application before the Wakf Board. By the said application,
the applicants sought amendment in the Wakf Register so as
to correct the name appearing therein to “Holy Shrine of
Maulana Yaqoob, Lakhab Mehboob, Peer-no-Mubarak Roza
and Masjid” instead of “Maulana Mehbub Dargah Masjid and
Kabrastan”.
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5.12 The said application also sought orders concerning
the composition of the trusteeship, the mode of succession to
the office of trustees and “Mujawar”, and other arrangements,
including the appointment of a receiver, etc. The same came
to be registered as Change Report/Miscellaneous Proceeding
No.36 of 2011.
5.13 Meanwhile, by order dated 8.08.2011, an
Administrator/Executive Officer was appointed by the Waqf
Board for a period of one year. Badibi and Jamaluddin
Fakruddin Faruqui challenged the said action of the Wakf
Board before the High Court of Gujarat by filing Special Civil
Application No. 12350 of 2011.
5.14 By an interim order dated 25.04.2012, the High
Court of Gujarat stayed the operation of the order dated
08.08.2011 and directed maintenance of status quo ante in
the manner indicated in the said order. The Waqf Board
unsuccessfully challenged the interim order by filing Letters
Patent Appeal No.790 of 2012. Subsequently, Special Civil
Application No.12350 of 2011 was disposed of on 11.02.2013,
as having become infructuous on the ground that the term of
the appointed Administrator had expired.
5.15 As an offshoot of the aforesaid proceedings, Civil
Suit No.156 of 2012 was filed. However, the same came to be
rejected under Order VII Rule 11 of the Code of Civil
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Procedure on the ground that the Civil Court had no
jurisdiction in respect of proceedings relating to the Waqf.
5.16. Since Change Report No.3620 of 2011, filed by the
followers of the Dawoodi Bohra community, was not decided
by the Waqf Board, in Special Civil Application No.10267 of
2016, the High Court, by order dated 02.08.2019, directed the
Waqf Board to decide the Change Report within a period of
three months.
5.17. In the proceedings concerning the Change Report,
the appellants filed written submissions opposing the change
in the name as well as creed of the holy shrine, contending
that the same was unconstitutional and time-barred. It was
further contended that the holy shrine was registered as
belonging to the Sunni-Hanafi-Barelvi community and that its
conversion to the Shia creed is unconstitutional. It was also
contended that the Change Report was time-barred, as the
Waqf had been registered in the year 1953 and had remained
undisputed until 2011.
5.18 It further appears from the record that, on
19.02.2020, the Chairman of the Waqf Board removed the
appellants and appointed an administrator. The said action
was challenged before the High Court by filing Special Civil
Application No.5044 of 2020. By order dated 25.02.2020, the
High Court of Gujarat stayed the order passed by the Waqf
Board. Subsequently, the Waqf Board withdrew the said order
and suspended the consequential notice.
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5.19 In another development, one Shri Onali Ismail
Agee sought registration of Waqf in respect of “Maulana
Yakub Saheb Dargah and Dawoodi Bohra Kabrastan”. The
same was registered as B-48/Patan. Subsequently, the Waqf
Board cancelled the said registration on 23.09.2021. The said
cancellation was, however, quashed by the Waqf Tribunal by
order dated 22.09.2020 in Waqf Appeal No.30 of 2019, on the
ground that the Waqf Board could not review its own order.
The order of the Waqf Tribunal was upheld by the High Court
of Gujarat in Civil Revision Application No.162 of 2020 by
order dated 26.03.2021.
5.20 In the aforesaid background, another facts
appeared from records that on 19.07.2021, one follower of the
Dawoodi Bohra community, namely, Mudhar Diwanji,
separately submitted an application before the Waqf Board
seeking impleadment of the Office of His Holiness, the Sole
Trustee (53rd) Syedna Saheb, as a party, on the premise that
the holy shrine was the property of the Dawoodi Bohra
community. The appellants objected to the said impleadment.
5.21. Meanwhile, in parallel proceedings, the appellants
filed Change Report No.207 of 2014 on 11.02.2014 before the
Waqf Board for entering appellant Nos.2 to 5 as “Mutawallis”.
The Waqf Board did not take any action thereon, which led the
appellant to file Special Civil Application No.8553 of 2015.
Nonetheless without noticing existing dispute, the Waqf Board
eventually allowed Change Report No.207 of 2014 by order
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dated 03.11.2015, on the ground that the Change Report had
remained uncontested, and appointed the appellants as
“Mutawallis”.
5.22. Ultimately, the Waqf Board issued an order dated
09.11.2021, directing alteration of the name of the holy shrine
from “Maulana Mehboob Dargah Masjid and Kabristan” to
“Maulana Yakub Saheb Dargah and Dawoodi Bohra
Kabrastan”. The Board also recognized His Holiness the 53rd
Dai-ul-Mutlaq, Syedna Mufaddal Saifuddin, as its sole trustee
and directed that the assets and administration of the holy
shrine be handed over in terms of the said order.
5.23. Being aggrieved by the said order, the appellants
challenged the order dated 09.11.2021 before the Waqf
Tribunal by filing Waqf Appeal No.38 of 2021. On 11.11.2021,
the Waqf Tribunal passed an interim order staying the
implementation of the order passed by the Waqf Board.
However, religious access and activities of the members of the
Dawoodi Bohra community were permitted under the interim
management.
5.24. By judgment dated 24.02.2022, the Waqf Tribunal
allowed Waqf Appeal No.38 of 2021 and set aside the material
operative portion of the Waqf Board’s order dated 9th
November 2021. The Tribunal having found interpolation in
revenue entries in regards to holy shrine also directed the
Waqf Board to initiate an inquiry regarding the interpolation
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of the revenue entries. The judgment and order passed by the
Waqf Tribunal in Waqf Appeal No.38 of 2021 was challenged
before the High Court of Gujarat by filing Civil Revision
Application Nos.179 of 2022 and 185 of 2022. The Coordinate
Bench of this Court, by order dated 4th April 2022, directed
the parties to maintain status quo pending consideration of
the revision applications.
5.25. Subsequently, during the pendency of the Civil
Revision Applications, the parties arrived at a consensus and,
by consent, Civil Revision Application Nos.179 of 2022 and
185 of 2022 were disposed of by setting aside the judgment
passed by the Waqf Tribunal in Waqf Appeal No.38 of 2021 as
well as the order of the Waqf Board dated 09.11.2021. The
entire matter was remitted to the Gujarat Waqf Board for
fresh adjudication.
5.26. The interim arrangement, under which, the
members of the Dawoodi Bohra community were permitted to
offer prayers and perform religious activities pending fresh
adjudication by the Board, has continued.
5.27. In the fresh proceedings following the remand, the
matter was taken up afresh by the Waqf Board on 24.06.2022.
On 24.04.2025, the Waqf Board passed Resolution No.11A.
Consequently, the Chief Executive Officer of the Waqf Board
passed a consequential order on 30.04.2025, setting out the
reasons therefore, and passed impugned orders.
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5.28. According to the respondents, on 01.05.2025, the
said order was served upon the appellants and, consequently,
the appellants voluntarily and peacefully handed over
possession of the holy shrine. On 02.05.2025, the appellants
approached the High Court of Gujarat by filing Special Civil
Application No.6484 of 2025, challenging the action arising
from the order passed by the Waqf Board.
5.29. By order dated 08.05.2025, the Coordinate Bench
of this Court disposed of the Special Civil Application by
directing both parties to maintain status quo until 15th May
2025 and permitting the appellants to avail the remedy of
appeal available before the Waqf Tribunal.
5.30. Pursuant thereto, the appellants instituted Waqf
Appeal No.15 of 2025 before the Waqf Tribunal. On
09.02.2026, the Waqf Tribunal, by its comprehensive
impugned judgment and order, dismissed Waqf Appeal No.15
of 2025 and upheld the Resolution No.11A dated 24.04.2025
passed by Waqf Board and reasons dated 30.04.2025 supplied
by CEO to support Resolution No.11A. Simultaneously, the
Waqf Tribunal also held that the lands bearing Revenue
Survey Nos.911, 915, 935 and 936 of Village Anawada, Taluka
and District Patan, are Government wasteland. In addition
thereto, the action of the Waqf Board, accepting Change
Report No.207 of 2014 as uncontested and appointing the
named appellants as “Mutawallis” was also set aside.
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5.31. Being aggrieved, appellants have preferred the
present appeal.
APPEARANCE OF LEARNED COUNSELS FOR THE PARTIES:
6. Heard learned counsel Mr.M.T.M.Hakim assisted
by learned counsel Mr.Saquib Ansari and learned counsel
Mr.Ezzazuddin B. Huseni for the appellants, learned counsel
Mr. G.H.Virk assisted by learned counsels Mr.Manish Shah
and Ms.Devanshi Kariel for respondent No.1, learned senior
counsel Mr.Shalin Mehta assisted by learned counsels
Mr.Viral Agrawal and Mr.Jignesh P. Pandav for respondent
No.2, learned counsel Mr.Sunit Shah with learned counsels
Mr.Rajesh Modi and Mr.Meet R. Modi for respondent No.3
and learned senior counsels Mr.Mihir Joshi assisted by
learned counsels Mr.S.P.Majmudar and Mr.Jamshed Kavina
for respondent No.4.
6.1 Besides oral arguments, learned counsels for the
respective parties have filed their written submissions
alongwith list of authorities, which are taken on record.
SUBMISSIONS OF LEARNED COUNSELS FOR APPELLANTS:
7. Learned counsel Mr. Hakim, appearing for the
appellants, submits that, in essence, the appeal raises four
independent grounds, any one of which, if allowed, would be
sufficient to set aside the impugned judgment:
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(i) Neither the Waqf Board, after its reconstitution,
nor the Waqf Tribunal ever afforded an oral
hearing on merits. Therefore, the orders passed by
the Waqf Board as well as the CEO are without
affording an opportunity of hearing and are without
jurisdiction insofar as they purport to decide any
question on merits;
(ii) the impugned judgment and order is vitiated for
want of quorum. The order of the Waqf Tribunal is
signed by three members (two Members and the
Chairman). However, one of the Members, Mr.
Pandar, was never a party to the proceedings
during the course of the hearing, yet he has signed
the judgment as a full concurring author;
(iii) The Waqf Board conspicuously omitted to send
the entire record of Waqf Appeal No. 38 of 2021,
including the judgment itself, to the Waqf Tribunal,
even though the same had been produced by the
appellants before the Board;
(iv) The Waqf Tribunal exceeded its jurisdiction by
passing an order in respect of Change Report No.
207 of 2014 and recording findings regarding land
titles, which were never in issue before it.
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7.1 It is further submitted that any one of the
aforesaid grounds is sufficient to set aside the impugned
judgment.
7.2 Mr.Hakim/Mr.Ansari, learned counsel further
submitted that the Waqf Tribunal conspicuously failed to
consider the documents adduced on record by the appellants,
including the revenue records and other records of the Waqf,
as also the earlier judgment of the learned Tribunal in Waqf
Appeal No.38 of 2021 and the findings recorded therein.
7.3 On the scope of the appeal, learned counsel argued
that the impugned judgment and order passed by the Waqf
Tribunal is vitiated at the very threshold by a fatal defect of
quorum. It is further submitted that the final arguments were
concluded on 14.10.2025 before a Bench comprising two
Members (the Hon'ble Chairman and the Hon'ble Member),
and the matter was reserved for judgment. The third Member
was appointed only in or around December 2025, after the
hearing of the Waqf Appeal had concluded. He neither heard
the arguments nor participated in the proceedings at any
stage. Nevertheless, the third Member signed the judgment
dated 09.02.2026. According to learned counsel, this
constitutes a fundamental defect.
7.4 He further argued that, as per the settled principle
governing judicial and quasi-judicial proceedings, only the
authority which has heard a matter is competent to decide it.
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Oral hearing is not an empty formality; it enables clarification
of issues and application of mind to the rival submissions, and
a Member who has not heard the parties cannot subsequently
join in the decision merely by perusing the record or a draft
judgment.
7.5 In support of the aforesaid submissions, learned
counsel for the appellants has relied upon the decision of the
Hon’ble Supreme Court in and argued that if one person hears
the matter and another decides it, the personal hearing
afforded to the parties becomes an empty formality.
Bhavan
7.6 Relying upon the judgment of this Court in
Sanga Gamara v. Rajkot Municipal Commissioner , 2022(0)
AIJEL-HC 244591 , learned counsel for the appellants argued
that this Court has applied the very same principle and held
that the person who heard the matter alone should pass the
order, and the decision cannot be that of a person other than
the one who heard it. In line with this argument, learned
counsel further argued that the participation of a Member in
signing the judgment, who never heard the parties vitiates the
adjudicatory process and, consequently, the judgment itself,
rendering it a nullity in law.
7.7 Learned counsel for the appellants further argued
that the third Member of the Tribunal, appointed in December
2025, has nowhere recorded that he was abstained, dissented,
or otherwise refrained from participating in the decision-
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making process. On the contrary, he has signed the judgment
as a full concurring author thereof, which negates any
contention that the impugned judgment and order was
concurred in by only two of the three Members. Therefore, it
is submitted that, on this preliminary ground alone, the appeal
deserves to be allowed.
7.8 Learned counsel for the appellants assails the
impugned judgment and order on the ground of denial of a
hearing on merits before the Waqf Tribunal and the Waqf
Board. The argument is that the Waqf Board stood dissolved
on 14.09.2022 and was reconstituted by notifications dated
07.11.2023 and 18.11.2023. It is submitted by learned counsel
that, from the date of reconstitution onwards, no hearing on
merits was ever conducted. No hearing took place on
29.05.2024; the matter was adjourned for want of quorum on
05.06.2024; no hearing took place on 27.11.2024; on
04.12.2024, though the quorum was present, no hearing on
merits took place and only time was sought; and again, no
hearing took place on 08.01.2025. Therefore, at no point after
the reconstitution of Waqf Board, was any hearing on the
merits of Change Report No. 3620 of 2011 conducted.
7.9 Learned counsel further submitted that, on
12.02.2025, the appellants filed an application before the
Waqf Board seeking adjudication of the preliminary issue
regarding the jurisdiction and maintainability of Change
Report No.3620 of 2011. The respondents sought time, and
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the Waqf Board, while granting time, adjourned the matter to
25.02.2025. Thereafter, no hearing was conducted on the said
application seeking adjudication of the preliminary issue.
Instead of deciding the preliminary issues so raised, the Waqf
Board passed Resolution dated 24.04.2025 directly on the
ground that the meeting of the Waqf Board was duly quorated
and attended by eight members, and the meeting was
therefore for the ordinary purpose of transacting the agenda
business and not for hearing the preliminary objections or the
matter on merits.
7.10 Learned counsel for the appellants consistently
maintained the contentions regarding non-grant of an
opportunity of hearing and, therefore, did not argue on the
merits of the dispute because the learned Waqf Tribunal
dismissed the appeal on merits. Therefore, he argued that the
present appeal deserves consideration, and the impugned
orders are liable to be set aside on the ground of denial of an
opportunity of hearing, which is a violation of the principles of
natural justice as well as the doctrine of audi alteram partem .
7.11 Learned counsel further submitted that, since the
Waqf Board had never afforded an opportunity of hearing on
merits at any stage, and no such opportunity was given, no
material could be placed on record regarding the religious
character of the Waqf, the allegation of fraud, or the
entitlement of the appellants as “Mutawalli”, and none of
these issues could have been properly argued for as much
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decided. It is further submitted that, since no material was
placed on record before the Waqf Board, the reasons arrived
at by the Waqf Board on the aforesaid issues are bad in law.
As far as the order of the CEO dated 30.04.2025 is concerned,
it is submitted that, since the CEO had not provided an
opportunity of hearing before passing the reasoned order, any
attempt to decide such questions is, therefore, without
jurisdiction.
7.12 Learned counsel for the appellants further argued
that the CEO’s communication dated 30.04.2025 allegedly
supplied the reasons for the Resolution dated 24.04.2025 and
that, on the very next day, i.e. 1st May 2025, the respondents,
accompanied by approximately 100 police personnel, took
forcible possession of the Waqf property. It is also argued
that, while dealing with the issue of the Waqf, the learned
Tribunal reconstructed the origin and character of the
institution almost entirely on the basis of the documents
produced by the respondents, without considering the
contemporaneous Revenue Records dating back to 1916-17,
which pre-date both the dispute and Independence on 15th
August 1947, and establish that the holly shrine was managed
by the predecessors of the appellants, who claimed the Sunni
Waqf. The learned Tribunal has also failed to consider its own
judgment dated 24.02.2022 in Waqf Appeal No.38 of 2021,
wherein interpolation in the Revenue Entries relied upon by
the respondents was recorded and an inquiry was directed to
be conducted by the Collector, Patan. Though the direction for
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conducting the inquiry by the Collector, Patan, was
subsequently set aside with the consent of both parties, the
finding regarding interpolation continued to form part of the
judicial record between the parties and could not simply have
been disregarded.
7.13 The next submission canvassed by learned counsel
for the appellants is that the record of Waqf Appeal No. 38 of
2021 was never forwarded to the Waqf Tribunal. Even the
judgment and order dated 24.02.2022 passed in Waqf Appeal
No. 38 of 2021 in first round of litigation was not provided to
the Waqf Tribunal at the time of deciding the impugned
judgment and order. The entire record of Waqf Appeal No.38
of 2021 was conspicuously omitted while deciding the
impugned judgment and order passed by the Waqf Board,
although the appellants themselves had produced the
complete record and proceedings of Waqf Appeal No.38 of
2021 before the Board. Therefore, the omission of the entire
previous proceedings between the same parties, in which the
earlier Waqf Tribunal had specifically recorded a finding
regarding interpolation in the revenue records of the
respondents and directed an inquiry to be conducted by the
Collector, Patan, has made impugned judgment of Waqf
Tribunal wholly infructuous. It reflects suppression of material
evidence adverse to the respondents and warrants a direction
for an inquiry into the manner in which the records and
proceedings of the Waqf Board are maintained and
transmitted.
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7.14 Learned counsel for the appellants submitted that
the appellants had filed certified copies of the five-yearly
Revenue Records from 1916-17, obtained on 3rd January
2004, wherein the entry was recorded as “Pir Malansh Saheb
Devsthan, Anawad, Taluka Patan”. The subsequent Revenue
Entry, obtained on 29.06.2011, records the name of the holy
shrine as “Maulana Yakub Saheb Dargah and Dawoodi Bohra
Kabrastan”. This change of name appearing in the two sets of
Revenue Entries, one earlier and the other later, without any
explanation, raises serious doubts and suspicion. This issue
has not been properly examined by the learned Waqf Tribunal;
rather, it indicates interpolation in the Revenue Record to
favour the respondents.
7.15 Learned counsel for the appellants submitted that
the learned Waqf Tribunal conveniently relied upon the
interpolated Revenue Entries produced by the respondents
and reached to the conclusion to change the name of the holy
shrine. According to learned counsel, this was a egregiously
erroneous approach on the part of the learned Waqf Tribunal
as well as the Waqf Board. Elaborating on this issue, learned
counsel submitted that, during the hearing of Waqf Appeal
No.38 of 2021, the appellants had produced certified copies of
the five-yearly Revenue Records, obtained on 3rd January
2004, wherein the entry was recorded as “Pir Malansha Saheb
Dargah Sthan, Vyavasthapan Anavala”. On the other hand, the
certified copy of the very same Revenue Record obtained on
29th June 2011, by which time the entry had come to read as
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“Maulana Yakub Saheb Dargah and Daudi Bohra Kabrastan”.
It was upon finding a discrepancy between the two certified
copies of the very same record, in the proceedings of Waqf
Appeal No.38 of 2021, that the Waqf Tribunal called for the
original Revenue Record and recorded a specific finding of
interpolation.
7.16 He would further submit that, since the initial
application for changing the character of the Waqf was itself
made on 05.07.2011 before the Waqf Board, the Revenue
Record, a certified copy of which was obtained on 29.06.2011,
i.e. only a few days before the respondents submitted the
change report, was therefore presumed to have been altered
with the purpose of aiding the respondents. Learned counsel
further submitted that, once the interpolation had been
judicially noticed, the disputed entry ceased to enjoy an
unqualified presumption of correctness, and the burden lay
upon the respondents to independently establish its
authenticity by producing primary evidence.
7.17 Learned counsel would further submit that, in the
proceedings culminating in the impugned judgment and
order, the learned Waqf Tribunal proceeded as Waqf Appeal
No.38 of 2021 as well as judgment and order had never
existed and accepted the version of the respondents on the
basis of the interpolated Revenue Entries. He would further
submit that whether a particular institution is a Sunni or Shia
Waqf is a question that must be decided on the basis of
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evidence specific to that institution, and no general or
assumed sectarian character can be attributed to it.
7.18 In support of the aforesaid submission, reliance is
placed upon the judgment in case of A .P. State Waqf Board v.
All India Shia Conference , (2000) 3 SCC 528 . Learned
counsel for the appellants therefore submitted that the
erroneous historical finding formed the foundation of the
subsequent conclusions of the learned Tribunal regarding
fraud, limitation, religious character, etc. He would further
submit that, since the primary finding of the learned Waqf
Tribunal is erroneous, all subsequent conclusions ipso facto
become erroneous.
7.19 Coming back to the argument regarding the denial
of sufficient opportunity of hearing, learned counsel argued
that, after the reconstitution of the Waqf Board, no further
notice of hearing was ever issued, and the impugned
Resolution dated 24.04.2025 was passed through in a duly
quorate meeting of the Board attended by eight members.
Nonetheless, the said meeting was a meeting of the Board
convened for transacting its ordinary business and was not
convened for the purpose of providing an opportunity of
hearing or conducting a hearing on the subject matter.
Learned counsel submitted that no notice of hearing was
issued to the appellants for that date, and no opportunity was
afforded to them to address the Waqf Board before the
Resolution was passed.
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7.20 It is argued that the presence of a quorum for a
meeting cannot substitute the requirement of providing a fair
opportunity of hearing. It is further argued that, in any event,
the preliminary objection dated 12.02.2025 remained
undecided independently. It is also argued that the
proceedings relating to the change report were conducted by
the Chairman and/or a single member, in breach of the
requirement of Regulation 5 of the Gujarat State Waqf
Regulations, 2000, which prescribes a quorum of five
members for the Board to transact any business. The Rojkam
dated 04.12.2024 is the only occasion on which the requisite
quorum is recorded as being present at that stage. Therefore,
this constitutes a defect distinct from and in addition to the
denial of a fair opportunity of hearing on 24.04.2025.
7.21 It is further argued by learned counsel for the
appellants that the learned Waqf Tribunal has conflated an
internal meeting of the Board with the conduct of a judicial
hearing and has examined the legality of the ultimate decision
while overlooking the illegality in the decision-making process
that preceded it. It is then argued that a breach of the
principles of natural justice ordinarily results in real prejudice
and vitiates the order.
7.22 A strong reliance has been placed upon the
judgment of the Hon’ble Supreme Court in State of Uttar
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Pradesh v. Sudhir Kumar Singh , (2021) 19 SCC 706 . Learned
counsel submits that the test laid down by the Hon’ble
Supreme Court in the aforesaid judgment squarely applies to
the facts of the present case. He would submit that, where
denial of hearing has caused real and demonstrable prejudice,
as in the present case, the learned Waqf Board has
adjudicated upon facts of a historical character concerning
the Waqf, the authenticity of the revenue records, and the
very jurisdiction of the Board has been seriously and
substantially disputed. Questioning the authority of the CEO
to pass the order dated 30.04.2025, learned counsel submits
that no hearing on merits was ever afforded to the appellants
at any stage, either before the Waqf Board or before the
learned Tribunal. Further, there was nothing on record on the
basis of which the CEO could have arrived at a reasoned
determination regarding the religious character of the Waqf,
the allegation of fraud, or the entitlement of the appellants to
act as “Mutawalli”. Therefore, the order dated 30.04.2025
passed by the CEO, insofar as it purports to decide all such
questions, is without jurisdiction.
7.23 He would further submit that the Resolution dated
24.04.2025 did not discuss any issue. The order dated
30.04.2025 passed by the CEO records the resolution as the
operative order and supplies reasons for such operative order.
This demonstrates a jurisdictional error, as reasons could be
assigned to the resolution and made part of the operative
order only after affording an opportunity of hearing to the
other party. It is further argued that the validity of an order
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must be judged on the basis of the reasons stated therein, and
that supplementary reasons introduced subsequently cannot
cure the defect. In support of this submission, reliance is
placed upon the judgments of the Hon’ble Supreme Court in
Mohinder Singh Gill v. Chief Election Commissioner , (1978)
1 SCC 405, as well as State of Bihar v. Shyama Nandan
Mishra, (2022) 17 SCC 420.
7.24 It is argued that recording of reasons is an
inseparable part of a quasi-judicial order and that such
reasons cannot be supplied after the event by the CEO, who
himself had not heard the party.
7.25 Relying upon the judgment of the Co-ordinate
Bench in Daudbhai Pirbhai Belim v. Waqf Board , SCA
No.2555 of 2016, order dated 08.03.2016, and referring to
Section 27 as well as Section 32(2) of the Waqf Act, learned
counsel for the appellants argued that the Waqf Act expressly
bars delegation of the functions of the Board. Therefore, the
order passed by the CEO canceling the “Mutawalli” of the
appellants is manifestly without jurisdiction. It is submitted
that the Board contended before the Waqf Tribunal that the
CEO had merely authenticated its decision; however, the
Tribunal has treated the order of the CEO as the decision
itself. This precisely demonstrates the division of
responsibility between the person who hears the matter and
the person who decides it, which vitiates the quasi-judicial
process.
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7.26 The next point argued by learned counsel for the
appellants relates to the power of review and limitation.
Learned counsel submitted that, before invoking fraud to
reopen a registration that had attained finality decades earlier
under the Bombay Public Trusts Act, 1950, the Waqf Tribunal
was required first to identify a judicial finding of fraud and the
statutory provision under the Waqf Act empowering the Board
to reopen such registration. He further submitted that the
Waqf Tribunal neither identified any such finding nor pointed
out any provision of the Waqf Act empowering the Board to
reopen the registration merely on an allegation of fraud. He
further submitted that the Waqf Board has no power to review
or recall its own order of registration and that, even where
fraud or misrepresentation is alleged, the only remedy
available to the aggrieved party is an appeal under Section 83
of the Waqf Act and not a fresh review by the Board.
7.27 Reliance is placed upon the judgment of the Co-
ordinate Bench in Gujarat State Waqf Board v. Shaikh Aunali
Ismailji , 2021 (4) GLR 3172, by learned counsel for the
appellants and submitted that, even assuming that an
authority possesses an inherent power to review its order
where fraud is established, such power can be exercised only
after affording an opportunity of hearing to the affected party
on specific allegations. However, such condition has
admittedly not been fulfilled in the present case.
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7.28 Reliance is also placed upon the judgment of the
Hon’ble Supreme Court in Mohammed Khalil v. U.P. Sunni
Central Waqf Board , Writ (C) No.67820 of 2013 . Learned
counsel Mr.Hakim/Mr.Ansari for the appellants submitted that
the plea of fraud raised to overcome limitation requires the
fraud to be specifically pleaded and established, including the
date of its discovery, and cannot be presumed. Reliance is also
placed upon the judgment of the Hon’ble Supreme Court in
Saranpal Kaur Anand v. Praduman Singh Chandhok , (2022) 8
SCC 401 .
7.29 In view of the aforesaid submissions, he submitted
that the absence of jurisdiction to reopen a settled
registration would, by itself, vitiate the consequential order.
Reliance is placed upon the judgment in M.P. Waqf Board v.
Subhan Shah, (2006) 10 SCC 696, by learned counsel for the
appellants and argued that once a property stands registered,
it cannot simply be de-registered by administrative fiat.
7.30 Reliance was also placed upon the judgment in
Mohammed Naushad v. Bihar State Sunni Waqf Board, CWJC
No.1531 of 2012 . Learned counsel for the appellants then
argued that the order directing fresh registration of the Waqf
under a different name, sect, and mode of appointment of
“Mutawalli” cannot be sustained as a mere “amendment” of
the Register without identifying the statutory source of such
power. Therefore, the finding which conflates limitation with
jurisdiction cannot be sustained.
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7.31 The Places of Worship (Special Provisions) Act,
1991, was also raised in the submissions. First of all, learned
counsel argued that, in view of Section 3 of the Act, the Act
protects the religious character of a place of worship as it
existed on 15th August 1947. He further submitted that the
Waqf Tribunal had treated the challenge as being confined to
the physical existence of the institution, without appreciating
that alteration of its sect from Sunni to Shia would, by itself,
alter its protected religious character. The revenue records of
the appellants from 1916-17 demonstrates Sunni
administration well before the cut-off date. However, the said
records have not been properly analyzed, and no reasons have
been assigned for preferring the version put forward by the
respondents over such contemporaneous documentary
evidence. Therefore, the finding that the provisions of the
Places of Worship (Special Provisions) Act, 1991 are not
applicable is erroneous and, accordingly, unsustainable.
7.32 Learned counsel Mr.Hakim/Mr.Ansari also argued
on the issue of forcible dispossession and submitted that the
Waqf Tribunal committed a serious error in holding that the
absence of physical resistance amounted to voluntary
surrender of possession, without appreciating the coercive
circumstances in which possession changed hands. The order
dated 30.04.2025 was not supplied to the appellants on the
date on which it was passed and, on the next date, i.e.
01.05.2025, the respondents arrived at the Dargah with
approximately 100 police personnel and took over possession
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before the appellants could even examine the order or avail
themselves of the statutory remedy. The contemporaneous
written protests of the appellants, which form part of the
record, have not been considered. Most significantly, the
Waqf Tribunal has not examined compliance with the
mandatory procedure for recovery of possession prescribed
under Section 68 of the Waqf Act, which is the only mode by
which the Board may lawfully take possession. The Tribunal
has, therefore, wrongly treated the deployment of police force
as a legally sufficient mode of execution and thereby
committed a serious error.
7.33 While canvassing the aforesaid arguments, learned
counsel for the appellants submitted that, on multiple
grounds, the impugned order passed by the Waqf Tribunal
confirming the order of the Waqf Board is not sustainable,
namely, absence of quorum, denial of hearing, absence of
reasons in the resolution, the questionable invocation of fraud
to review the registration, misapplication of the Places of
Worship (Special Provisions) Act, 1991, by passing the
procedure prescribed under Section 68 of the Waqf Act for
taking forcible possession, and overlooking the earlier finding
of the Tribunal regarding interpolation. Learned counsel
submitted that the Waqf Tribunal committed serious and
manifest errors in confirming the resolution dated 24.04.2025
passed by the Board and the order passed by the CEO on
30.04.2025.
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7.34 Lastly, on the issue of jurisdictional excess, learned
counsel Mr.Hakim/Mr.Ansari submitted that, in Waqf Appeal
No.15 of 2025, the issue involved was with regard to the
resolution dated 24.04.2025 and the order dated 30.04.2025,
both of which were traceable to Change Report No.3620 of
2011. However, the Waqf Tribunal, in excess of its
jurisdiction, defaced Change Report No.207 of 2014, whereby
the appellants were appointed as “Mutawalli”, although the
said Change Report was never impugned/challenged before
the Tribunal, no relief in that regard was ever claimed, and no
issue was framed. Similarly, the Tribunal rendered a finding
that Survey Nos.911, 915, 935 and 936 were Government
wasteland, although the issue of title to the said lands never
formed part of the dispute between the parties.
7.35 In view of the aforesaid submissions, as
summarised from the written submissions, the appellants
prayed for allowing appeal by quashing and setting aside the
impugned judgment and order dated 09.02.2026 passed by
the learned Waqf Tribunal in Waqf Appeal No.15 of 2025 and
Resolution dated 24.04.2025 and the order dated 30.04.2025.
SUBMISSIONS OF LEARNED COUNSELS FOR RESPONDENT
- GUJARAT STATE WAQF BOARD:
8. Representing the Gujarat State Waqf Board –
respondent No.1, learned counsel Mr. G.H. Virk, assisted by
learned counsel Mr. Manish Shah, mainly supporting the
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impugned judgment and order, argued that, by way of this
appeal, the appellants are substantially seeking a re-hearing
on facts by presenting procedural objections as jurisdictional
errors. He would submit that the impugned judgment is a
reasoned adjudication, and no finding material to the religious
identity or administration of the Waqf is shown to be
unsupported by the record.
8.1 Learned counsel Mr.Virk submitted that the
controversy between the parties is not whether the appellants
(Faruqi family) had physically managed the premises for some
period of time, but whether such management as a “Mujawar”
(caretaker) created an inheritable right to the Mutawalli-ship,
and whether the 1953 register correctly recorded the
historical identity of the holly shrine.
8.2 He would submit that the contemporaneous record
answers both questions against the appellants, and those
questions have been comprehensively examined by the CEO
as well as by the Waqf Tribunal while confirming the order of
the Waqf Board.
8.3 It is argued by learned counsel Mr.Virk that the
oldest public records relied upon by the Board and accepted
by the Tribunal, including the pre-independence
Pahani/Revenue Entries from 1916-1917 onwards and the
inscription at the site, record the premises as “Maulana Yaqub
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Saheb Dargah and Dawoodi Bohra Kabrastan” and
“Malanasha Pir-ni-Jago”.
8.4 He would further submit that the description of the
holy shrine as “Maulana Mehboob Dargah Masjid and
Kabrastan” appears only with or after the registration
proceedings initiated by Nanibi in 1952-1953.
8.5 He would further submit that the statutory cut-off
under the Places of Worship (Special Provisions) Act, 1991
assists the respondents rather than the appellants, as it
recognises and preserves the pre-15th August 1947 Dawoodi
Bohra character of the place. He would further submit that,
neverthless the impugned order does not convert a Sunni
place into a Shia place.
8.6 Insofar as the Registration of the Waqf in 1952-
1953 is concerned, he submits that there is no Waqf deed;
founder’s instrument; or independent material showing the
creation of a Sunni Waqf or hereditary Sunni Waqf, nor is
there any source/documented information regarding the
Wakif recorded which may favour the case of the appellants’
family. On the contrary, Nanibi’s statement before the Charity
Authority records that she was administering the Dargah,
Masjid and Kabrastan, and her appointment was made by the
Muslims of the nearby locality. The revenue records described
Nanibi, her daughter Bidibi, or their predecessors only as
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“Mujawar”. He would further submit that a “Mujawar”, in
view of the treatises on Muslim law, is merely a caretaker and
has no proprietary right or hereditary interest in the Waqf
merely because he possessed the shrine as a holy shrine or
because his service as a “Mujawar” continued for a long
period. Even a “Mutawalli” is not a person having any
proprietary right or hereditary interest.
8.7 Learned counsel Mr.Virk submits that, once a Waqf
is created, it becomes God’s property and no one can claim
any personal interest in the property. He would further submit
that, in none of the proceedings, has the appellants Faruqui
family produced any valid appointment by the Muslims
community, competent religious authority, or any resolution of
the Muslim congregation converting their service into
hereditary Mutawalliship. He further submits that the status
of the appellants rests upon Change Report No.207 of 2014,
by which the descendants of the recorded “Mujawar” were
entered as “Mutawalli”. He would further submit that the
appointment of a Mutawalli is dealt with by a separate
provision of the Waqf Act. The appellants themselves relied
upon the Change Report as the source of their authority and
preferred previous litigation based upon it; its legality was
inseparable from the decision under appeal.
8.8 It is further argued that, in view of Section 83(5) of
the Waqf Act, the Tribunal, being vested with the powers of a
Civil Court and having the power to mould the relief, was
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entitled to set aside the consequential entry, which could not
survive the finding regarding the original registration and the
non-hereditary character of the Mujawar’s office. Therefore,
no element of surprise or prejudice can be demonstrated.
8.9 Learned counsel Mr.Virk further argued that any
trust registered under the Bombay Public Trusts Act, if it is a
Waqf, stood deemed to be registered under Section 43 of the
Waqf Act. Its register thereafter remains governed by
Sections 37 and 41 of the Act. Therefore, the Waqf Board’s
action in amending and correcting the register on the basis of
the original registration papers, pre-1947 revenue entries,
and the evidence of the parties is not an exercise of an
unprovided power of review. Section 41 expressly
contemplates the correction of the register, and a
foundational misrepresentation cannot acquire indefeasibility
merely through the lapse of time.
8.10 It is argued that Sections 64, 68 and 69 of the Waqf
Act are not attracted. It is further argued that the Waqf Board
did not institute an independent proceeding for the removal of
a duly appointed “Mutawalli” or for framing a scheme. Once
the register was corrected and the appellants’ asserted
appointment was found to be derivative of an invalid
hereditary claim, the consequential direction to hand over the
records and administration followed from the correction itself.
He would further submit that Section 68 cannot be used to
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preserve possession founded on a status which the competent
authority has lawfully rejected.
8.11 It is also argued that the appellants’ reliance upon
the earlier order in Waqf Appeal No.38 of 2021 is
misconceived. By consent order dated 17.06.2022, the High
Court of Gujarat being Revisional Court quashed and set aside
the Waqf Board’s order dated 09.11.2021 and the Tribunal’s
order dated 24.02.2022, remanded the matter for a fresh
decision after hearing all the parties. Therefore, no finding
from the order which had already been set aside having
attained status of non-existence can be taken into
consideration.
8.12 As far as the argument regarding non-quorum or
want of quorum is concerned, learned Government Pleader
submits that the record reflects repeated hearings from June
2022 to February 2025, production of original revenue
records through the Mamlatdar, written submissions by all
sides, and repeated arguments at the appellants’ instance. He
would further submit that the Board meeting dated
24.04.2025 shows that all eight members were present; seven
supported the Resolution, while one member did not furnish
reasons in opposition. The final statutory decision being taken
in majority was thus that of the Board with full quorum.
8.13 It is further argued that the Waqf Tribunal, in any
event, did not prejudice the appellants’ claim to be
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“Mutawalli” of the holy shrine as the decision of appointment
of appellants as “Mutawalli” itself was founded upon
misrepresentation and based upon unverified aspects. He
further submitted that the findings that the pre-1947 religious
character was that of the Dawoodi Bohra community, that the
appellants had no hereditary “Mutawalliship”, and the
register required correction remain independently supported
and should be affirmed. The same has no concern with the
additional declaration concerning the revenue status of
Survey Nos. 911, 915, 935 and 946.
8.14 Lastly, it is argued that the management and
possession of the holy shrine remain with the Dawoodi Bohra
community pursuant to the fully implemented Waqf Board
order. A reversal of the same at this stage would alter, rather
than preserve, the existing position and would disrupt
worship, burial and administration, and confer upon the
appellants a relief despite their inability to establish any
hereditary or proprietary right. It is, therefore, submitted by
learned counsel Mr.Virk that the appeal deserves to be
dismissed.
SUBMISSIONS OF LEARNED COUNSELS FOR
RESPONDENT NO.2.
9. Learned senior counsel Mr. Shalin Mehta, assisted
by learned counsel Mr. Jignesh Pandav and Mr. Viral Agrawal,
mainly argued that the present appeal is wholly devoid of
merit, both on facts and in law, and deserves to be dismissed
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with exemplary costs.
9.1 Learned senior counsel Mr. Shalin Mehta would
submit that, pursuant to the specific direction issued by the
Co-ordinate Bench of this Court in Special Civil Application
No.10267 of 2016, vide order dated 02.08.2019, the Gujarat
Waqf Board conducted a comprehensive inquiry. Upon
considering the revenue records, records of the Gaekwad
State, Waqf records, historical documents, and other material
available on record, the Board passed a reasoned and
speaking order on 30.04.2025.
9.2 It is further submitted that the Waqf Tribunal, vide
its detailed and reasoned judgment dated 09.02.2026,
affirmed and upheld the findings of the Waqf Board. The
present First Appeal, therefore, has been filed against the
concurrent findings of fact and law recorded by the two
authorities, namely, the Waqf Board and Waqf Tribunal. In the
absence of any jurisdictional error, perversity, or involvement
of any substantial question of law, no interference is
warranted in this appeal, which is essentially assume
character of Second Appeal.
9.3 Learned senior counsel Mr. Mehta submitted that
the original registration of the Waqf trust in the year 1952-53
was obtained by fraud, suppression of material facts, and
manipulation of public records. He would submit that the
appellants are attempting to divert attention from this
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fundamental issue by raising technical objections with regard
to limitation, jurisdiction, and procedure. He further
submitted that Nanibi obtained the registration in the year
1952-53 without disclosing the source or origin of the Waqf or
the procedure for appointing the “Mutawalli”, and by
manipulating the revenue records to procure registration of
the Waqf under a different name.
9.4 It is further submitted that the official revenue
records dating back to 1906, being records of the Gaekwad
State, along with the Waqf records and Government
documents, conclusively establish that the institution existed
under its original historical identity long prior to the
fraudulent registration of 1952-53.
9.5 On the issue of the status of appellants, whether as
“Mujawar” or “Mutawalli”, learned senior counsel argued that
the appellants had completely failed to produce any legal
document or evidence demonstrating that Kutubuddin
Jalaluddin or his successors were ever appointed as
“Mutawalli” by any competent authority. The historical and
official records consistently describe the appellants or their
predecessors as “Munjawar” and not as legally appointed
“Mutawalli”. The claim of Mutawalliship set up by the
appellants is self-proclaimed, legally unsupported, and
contrary to the official public records.
9.6 It is further submitted by learned senior counsel
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that it is a fundamental and settled principle of law that
“fraud vitiates every solemn act”. Once the foundation of the
registration in 1952-53 is established as fraudulent, every
subsequent change report, succession entry, mutation, or
consequential action automatically becomes void ab initio , and
no person can be permitted to derive any legal benefit or
perpetuate an advantage obtained through his or her own
fraud. The fraud constitutes a continuing wrong; therefore,
technical pleas such as limitation cannot be invoked to defeat
justice or protect fraudulent acts.
9.7 Learned senior counsel submitted that, insofar as
the jurisdiction of the Waqf Board is concerned, Co-ordinate
Bench of this Court specifically directed the Waqf Board, in
Special Civil Application No.10267 of 2016, to finally decide
the application challenging the registration in accordance
with law. The said order was never challenged before any
higher forum. The appellants, having never challenged the
order dated 02.08.2019 passed in Special Civil Application
No.10267 of 2016, are legally incompetent to raise the issue
that the Waqf Board had no jurisdiction to decide the dispute
relating to the registration. The appellants are, therefore,
precluded and estopped from questioning the authority or
statutory jurisdiction of the Board. Nonetheless, under the
provisions of the Waqf Act, the Gujarat State Waqf Board
possesses statutory power to examine the correctness of Waqf
registration, rectify illegal or fraudulent entries, and protect
Waqf properties. The Board acted strictly within its statutory
bound and mandate and, in compliance with the direction of
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Co-ordinate Bench of this Court; therefore, it cannot be said
that the Board had no power to review or rectify its earlier
order, or Board has acted in excess of its jurisdiction.
9.8 It is further submitted that, on 01.05.2025, the
appellants voluntarily submitted a written communication
before the Gujarat Waqf Board confirming that peaceful and
actual possession of the property had been handed over. This
written communication constitutes a clear admission. The
subsequent allegations raised by the appellants regarding use
of force, coercion, or illegal dispossession are false, self-
contradictory, and legally unsustainable.
9.9 It is also argued that the appellants repeatedly filed
identical applications solely with a view to delaying the final
adjudication and prolonging the proceedings. Full opportunity
of hearing was granted to all parties, the documentary
evidence was thoroughly evaluated, and there was no
violation of the principles of natural justice.
9.10 In support of his submissions, learned senior
counsel relied upon the following judgments:
(i) Lazarus Estates Ltd. v. Beasley (1956)1QB 702;
(ii) S.P. Chengalvaraya Naidu v. Jagannath, (1994)
1 SCC 1;
(iii) A.V.Papayya Sastry v. Government of A.P.,
(2007) 4 SCC 221;
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(iv) R.Ravindra Reddy v. H.Ramaiah Reddy,(2010)
3 SCC 214;
(v) Chandro Devi v. Union of India(2017) 9 SCC
469;
(vi) Ex. Sig. Man Kanhaiya Kumar v. Union of
India, (2018) 14 SCC 279
9.11 In view of the aforesaid submissions, learned
senior counsel has prayed to dismiss the present First Appeal
with exemplary costs.
SUBMISSIONS OF LEARNED COUNSEL FOR RESPONDENT
NO.3
10. Learned counsel Mr. Sunit Shah, while
encompassing the core controversy, submitted that the
appellants claim to be Sunni Muslims and Dargah is that of
their Pir, Maulana Mehboob (Saint), and the appellants are
the “Mutawalli” of Dargah Maulana Mehboob, pursuant to a
resolution passed by their family members during the lifetime
of their mother, Badi Bi.
10.1 It is further submitted that Opponent No.3 is a
member of the Dawoodi Bohra community and the holy shrine
in question is that of their Saint, Maulana Yakub. The
members of the Dawoodi Bohra community visit the said
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Dargah for Ziyarat. The appellants are the sons of Badibi, who
was the sole heir of her mother, Nanibi, her brother being
mentally incapacitated. The appellants or their predecessors
were performing Diva-batti and Phool-Fatiya at the Dargah in
the capacity of “Mujawar” (servants/caretakers), having no
proprietary right in the Dargah, Masjid, or Kabrastan.
10.2 It is further submitted that, during the proceedings
before the Waqf Tribunal, the opponent relied upon
unimpeachable and authentic historical works and literature,
including “Gujarat no Rajkiya ane Sanskrutik Itihas” (Granth
4, Chapter 14), “Rasamala/Gujarat Prant no Itihas” (Part 1,
Chapter 3), and the “Journal of the Asiatic Society of Bengal”
(1837). These works state that Saint Maulana Yakub, a Wali of
the Dawoodi Bohra community and the first successor after
Maulana Abdullah, is buried at Patan and his followers are
called Dawoodi Bohra.
10.3 As against this unimpeachable positive evidence
pertaining to Maulana Yakub, the appellants have not
produced any evidence to establish that Saint Maulana
Mehboob was a different Saint who was born and lived in the
past. Learned counsel Mr.Sunit Shah further submits that
word “Mahabub” used to reverse/respect Maulana Yakub, has
been misapplied to create confusion. He submits that thus,
there is no evidence to support the case of the appellants.
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10.4 Learned counsel Mr. Sunit Shah referred to the
Village Form No.7/12 extract of Survey No.935, produced
along with the registration papers by Nanibi, and submitted
that even the said document refers to “Maulana Mehbub no
Rojo urfe Maulana Yakub”. In view of the said undisputed
endowment reflected in the Village Form No.7/12 extract
produced by the ancestor of the appellants at the time of
registration, it is established that the holy shrine is that of
Saint Maulana Yakub. He would further submit that not only
the Village Form No.7/12 extract of Survey No.935, but also
the Padani Patrak and revenue records maintained by the
Gaekwad State, known as the Gaekwad State Revenue
Records (from 1925 onwards), as well as the revenue records
pertaining to Survey No.935, confirm that the holy shrine is
dedicated to Saint Maulana Yakub.
10.5 He would further submit that the land in question
was historically governed by the Gaekwad State under the
Gaekwadi Rule, and that the Padani Patrak, being an official
revenue record maintained by the Gaekwad State from the
year 1915 onwards, explicitly records the name of Maulana
Yakub in relation to the subject property. Thus, the
appellants’ bald contention that the said revenue records are
fabricated is baseless, unsubstantiated, and unsupported by
any documentary evidence.
10.6 He would further submit that the appellants, at
different points in time and according to their convenience,
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have raised bald contentions, firstly, that the revenue records
were fabricated and, secondly, regarding the character of the
holy shrine.
10.7 Learned counsel Mr.Shah further submits that the
revenue records and other records connected therewith
unequivocally establish that the appellants or their ancestors
were merely “Mujawar” and were taking care of the holy
shrine are appointed only as caretaker of holy shrine. Badibi,
on 01.03.1960 and 19.02.1962, admitted before the Deputy
Charity Commissioner and the Mamlatdar, Patan, that she and
Nanibi were merely “Mujawar” appointed for performing daily
rituals (Diva-batti and Phool-Fatiya) and for cleaning the holy
shrine, and had given a specific undertaking that she would
never claim ownership or trusteeship.
10.8 In continuation of this argument, learned counsel
Mr. Sunit Shah submits that, not only before the revenue
authorities, revenue officers, or the Charity Commissioner,
but even before the Co-ordinate Bench of this Court in Special
Civil Application No.12350 of 2011, the appellants submitted
an affidavit on oath wherein they admitted that they were
“Mujawar” and explicitly stated that they had never claimed
to be “Mutawalli”. Therefore, it can safely be concluded that,
from the inception until the filing of SCA No.12350 of 2011,
the appellants themselves claimed to be “Mujawar” and not
“Mutawalli”. This unequivocal admission made in judicial
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proceedings is contrary to the stand now taken by the
appellants in the present appeal.
10.9 He would further submit that, in view of Wilson’s
Glossary of Judicial and Revenue Terms, a “Mujawar” is
merely a servant, caretaker, or sweeper of a shrine or tomb.
10.10 Learned counsel Mr. Sunit Shah submits that,
apart from the absence of any contemporaneous documentary
evidence supporting the case of the appellants, the findings
recorded by the learned Court below, the Waqf Board, and the
Waqf Tribunal are supported by the record. He would further
submit that the appellants, for their own convenience,
fabricated documents. He would submit that the appellants
produced a backdated resignation of Badibi dated 27.08.2000
and a resolution appointing the appellants, namely, Jalaluddin,
Kutbuddin, Ashrafuddin, Jamaluddin, and Manuruddin, as
trustees/Mutawallis, which is completely contrary to Badibi’s
own letter dated 31.12.2002. Moreover, the so-called
resolution was passed only by family members of Badibi.
Change Report No.207 of 2014, which was based upon such
resolution, was fraudulently obtained as an uncontested
report by suppressing the active objection dated 14.05.2014,
as well as the pending Change Report of the Dawoodi Bohra
community and the earlier Change Report Nos.286 of 2002
and 3620 of 2011.
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10.11 It is further argued that, in view of the consensus
order passed with the consent of all the parties to avail of a
fresh decision from the Waqf Board on the issue after washing
out the effect and applicability of earlier order; and
consequent upon the disposal of Civil Revision Application
No.179 and 185 of 2022 by this High Court, the appellants
are now precluded from reverting to the earlier litigation.
10.12 It is also argued that Sections 40, 64, and 69 of the
Waqf Act are inapplicable. Section 64 applies to the removal
of a legally appointed “Mutawalli”; however, in the present
case, the appellants were never legally appointed as
“Mutawalli”. They were merely “Mujawar” who obtained
revenue entries by fraud. Thus, the present case concerns
rectification or amendment of the register under Section 41
and not the removal of “Mutawalli” under Section 64.
10.13 In connection with the next argument regarding
violation of the principles of natural justice, it is argued that
such submission is untenable in view of the judgments
rendered by the Apex Court in Maria Margarida Sequeria
Fernandes v. Erasmo Jack De Sequeria (Dead) through LRs. ,
(2012) 5 SCC 370, as well as in Himalaya Vintrade Private
Limited v. Md. Zahid , AIR 2021 SC 5749 . It is submitted that
a caretaker, watchman, or servant can never acquire title or
interest in the property, irrespective of the length of
possession, and must hand over possession upon demand. The
Court cannot protect the possession of a caretaker or servant,
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as a caretaker or agent holds the property strictly on behalf of
the principal and acquires no independent right or interest
therein. Nonetheless, the appellants participated in the fresh
proceedings before the Waqf Board and placed their detailed
written submissions on record even on merits, which reflects
that ample and fair opportunity of hearing was provided to the
appellants by the Waqf Board as well as by the Waqf Tribunal.
10.14 Learned counsel Mr. Sunit Shah further argued
that it is not the case of the appellants that notices were not
issued to them prior to the commencement of the
proceedings. He further submitted that an oral hearing is not
an absolute right of a party. It is further submitted that
raising a preliminary objection and seeking a hearing on such
preliminary objection is a matter within the discretion of the
authority, and a litigant cannot claim such hearing as a matter
of right. According to him, the appellants adopted dilatory
tactics, and the filing of preliminary objections and seeking a
separate hearing thereon in second round of litigation,
intended only to derail or delay the proceedings.
10.15 As regards the remaining issues, learned counsel
Mr. Sunit Shah adopted the submissions canvassed by the
other learned counsel appearing for the respective
respondents. In support of his submissions, he relied upon the
following authorities:
(i) State of Punjab v. Shamlal Murari , (1976) 1
SCC 719 and
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(ii) Sangram Singh v. Election Tribunal , AIR 1955
SC 425.
SUBMISSIONS OF LEARNED COUNSEL FOR RESPONDENT
NO.4
11. Learned senior counsel Mr. Mihir Joshi, assisted by
learned counsels Mr. S.P. Majmudar and Mr. Jamshed Kavina,
appearing for respondent No.4, submitted that the
appointment of, or acceptance of, Change Report No.207 of
2014, whereby the appellants were appointed as “Mutawalli”,
is wholly erroneous and ignores the statement of Badibi dated
01.03.1960, wherein it was stated that Nanibi was a
“Mujawar”. The names of the appellants came to be entered
as “Mutawalli” on the basis of the resolution recording the
resignation of Badibi, which bore the signatures of the
appellants and other family members. According to learned
senior counsel, such procedure runs contrary to the rules
governing the appointment of a Mutawalli, as a Mutawalli was
required to be appointed by the congregation or members of
the community. Therefore, the learned Waqf Tribunal rightly
held that a person who is a “Mujawar” cannot become a
“Mutawalli” unless such person is appointed as a Mutawalli by
the members of the community or congregation, in
accordance with the mode of succession registered in
registration of Trust. He would further submit that appellants
were never appointed as “Mutawalli” following provisions laid
in Waqf Act.
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11.1 Learned senior counsel Mr. Mihir Joshi argued that
the learned Waqf Tribunal rightly held that, when Nanibi,
widow of Jamaluddin Kutbuddin, was a “Mujawar” from the
date of registration of the trust, her daughter Badibi alias
Faruki Badibi could not have been a “Mutawalli”, and her
claim in that regard was never accepted. The appellants have
conveniently changed their status from “Mujawar” to
“Mutawalli”, which is contrary to the stand taken by them
before the Coordinate Bench in the Special Civil Application,
wherein they had asserted that they were “Mujawar”.
11.2 Supporting the judgment of the Waqf Tribunal,
learned senior counsel submitted that there is absolutely no
evidence to establish that Jamaluddin Kutubuddin was
appointed as a “Mujawar” and, thereafter, his widow Nanibi
and subsequently his daughter Badibi were appointed as such,
except for their names appearing in the revenue records. He
further submitted that the appellants themselves are unaware
as to how such entries came to be made and are asserting
their rights on the basis of contradictory stands.
11.3 He further submitted that the Waqf Tribunal rightly
held that, in the revenue records immediately preceding
Revenue Entry No.245, the name of “Maulana Yakub Laqab
Mehboob Pir Mubarak Rojo and Mosque” was recorded in
favour of the Dawoodi Bohra community, and the appellants
and their ancestors had fraudulently attempted to get their
names entered in the revenue records in respect of the said
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land. It is further submitted that, as reflected in the historical
records of the “Padhni Patrak” maintained by the Gaekwad
Government from 1915 till 1956-58, the name of “Dargah of
Maulana Yakub Saheb” and “Dawoodi Bohra Kabrastan” are
mentioned.
11.4 With regard to the finding of the Waqf Tribunal
concerning the declaration of the property as trust property
pursuant to RTS Case No.27 of 1996, learned senior counsel
submitted that, in respect of Survey No.935, the name of
Nanibi was entered on 15.04.1954 as caretaker/Mujawar of
Pir Maulana. Seven years after the death of Nanibi, her
daughter Badibi attempted to get her name entered in respect
of Survey No.935, despite the earlier rejection of Entry
Nos.245 and 400. Entry No.1236 was subsequently rejected
on the basis of the order passed in RTS Case No.27 of 1996,
and Entry No.2069 was thereafter posted to declare the
property as trust property. However, learned senior counsel
submitted that such finding is wholly erroneous.
11.5 He further submitted that it is a settled principle of
law that fraud vitiates all acts. As categorically recorded by
the learned Waqf Tribunal, fraud had been perpetrated by the
appellants and their predecessors. In support of his
submission, he relied upon the judgment of the Hon’ble
Supreme Court in Vishnu Vardhan @ Vishnu Pradhan v. State
of Uttar Pradesh & Ors., (2025) 0 AIJEL-SC 75620 .
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11.6 Learned senior counsel submitted that when a
caretaker or servant claims ownership over the property,
particularly behind the back of the true owner, such conduct
amounts to fraud. Fraud cannot confer any title or right of
possession upon a caretaker. Therefore, according to him, the
appellants have absolutely no right, title or interest in any of
the land. In support the the submission, he has relied upon
the judgment of the Hon’ble Supreme Court in S.P.
Chengalvaraya Naidu v. Jagannath , (1994) 1 SCC 1.
11.7 Learned senior counsel argued that name of
“Hajrat Maulana Mehboob Dargah, Masjid and Kabrastan”
and the name of “Mujawar” Jamaluddin were never reflected
in the revenue records until Nanibi submitted an application
in 1953 for registration of the trust/Waqf. He further
submitted that, during the proceedings, Nanibi made a
statement that she was administering the Dargah, Masjid and
Kabrastan and the “Mutawalli” was required to be appointed
by the local community or congregation. Therefore, her name
was entered only as a “Mujawar”. From the very beginning,
the application submitted by Nanibi disclosed that she had
applied in the capacity of “Vahivat Karta” only.
11.8 It is further submitted that, in the revenue records
from 1916-17 to 1948-49, the land was recorded in the names
of “Bohra Kabrastan Maulana Yaqub Saheb Dargah Dawoodi
Pir ni Jago” and “Malansha Pir ni Jago”. According to learned
senior counsel, these records do not support the appellants’
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claim that the holy shrine was a burial place of Sunni-Hanafi-
Barelvi followers. It is also argued that the appellants identify
themselves as adherents of the Barelvi sect of Qadriya Silsila,
whereas Maulana Mehboob, the Saint whom the appellants
claim to be buried at the holy shrine, admittedly belongs to
the Chishtiya order, according to the appellants themselves. It
is submitted that this demonstrates a complete disconnect and
renders the appellants’ claim doctrinally unsustainable,
historically unfounded and legally untenable. According to
learned senior counsel, the present case is one of unlawful
usurpation of Waqf property by the appellants, without any
legitimate spiritual or sectarian entitlement. It is further
argued that the ancient inscription on the property in question
refers to Maulana Yakub and not to Maulana Mehboob.
11.9 Learned senior counsel argued that the contention
of the appellants regarding manipulation of the revenue
records was rightly rejected, as the case came to be dismissed
by the learned Judicial Magistrate, Patan, on 15.03.2022, and
the criminal inquiry was accordingly closed. The said order
was thereafter confirmed by the Sessions Court, Patan, in
Criminal Revision No.24 of 2022 on 25.05.2025 and the order
of the Sessions Court has not been challenged before this
Court.
11.10 Learned senior counsel submitted that the correct
identification of the holy shrine, as reflected in the revenue
records from 1916-17 to 1948-49, was “Maulana Yakub Saheb
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Dargah and Dawoodi Bohra Kabrastan Pir ni Jago”, whereas
misapply by Nanibi and in absence of close scrutiny it was
subsequently registered as “Maulana Mehboob Dargah,
Masjid and Kabrastan”. He submitted that, where a question
arises as to whether the Waqf is a Sunni Waqf or a Shia Waqf,
the Waqf Board has the power to inquire into the matter and
amend the Waqf Register at any time in accordance with
Sections 40 and 41 of the Waqf Act, 1995. However, in case
on hand, the Waqf Board had passed no order changing the
creed of the Waqf.
11.11 With regard to the impleadment of Shri Mudar
Diwanji and His Holiness (53rd) Syedna Saheb, as the sole
trustee, as parties to the proceedings, learned Senior Counsel
submitted that the holy shrine belongs to the “Dawoodi
Bohra” community and that the sole trustee of all Dawoodi
Bohra organisations is His Holiness (53rd) Syedna Saheb.
Therefore, it was imperative to implead him as a necessary
party. He submitted that the impleadment of the office-holder,
namely His Holiness (53rd) Syedna Saheb, was necessary in
observance of the principles of natural justice and in view of
the requirement of impleading a necessary party under Order
I Rule 10 of the Code of Civil Procedure.
11.12 It is also argued that a woman cannot be a
“Mujawar” unless there exists a custom permitting the same,
and that, in the present case, there is no such custom. On the
other issues, learned Senior Counsel adopted the submissions
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advanced by the other learned counsels appearing for the
respondents.
11.13 Lastly, relying upon the judgment of the Hon’ble
Supreme Court in General Manager, Eestern Railway v. Jawal
Prasad Singh , reported in (1970) 1 SCC 103 , learned senior
counsel submitted that the substitution of one member of a
committee by another member during the course of an inquiry
would not, by itself, affect the validity of the proceedings or
amount to a violation of the principles of natural justice. The
mere fact that one member of the Inquiry Committee was
changed after the inquiry proceedings had commenced and
some evidence had already been recorded would not make
any difference to the validity of the proceedings.
11.14 In support of his submissions, learned senior
counsel Mr.Mihir Joshi relied upon the following decisions:
(i) Sunni Muslim Idgah Masjid Trust v. Hardik
Sitaram Patel, 2025(0)AIJEL HC 252505;
(ii) Bengal Waterproof Ltd. v. Bombay Waterproof
Manufacturing Company, 1997(1)SCC 99;
(iii) Ramesh B. Desai v. Bipin Vadilal Mehta,
2006(5)SCC 638;
(iv) Rasiklal Manickchand Dhariwal v. M.S.S. Food
Products, 2012(2) SCC 196;
11.15 In view of the aforesaid submissions, learned
senior counsel Mr. Mihir Joshi submitted that the present
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Appeal is devoid of merit and the appellants have failed to
establish any legal right or entitlement in respect of the Waqf
property. He, therefore, prayed that the appeal be dismissed
with costs.
REPLY BY LEARNED COUNSEL FOR APPELLANTS
12 . In response to the submissions canvassed by the
learned senior counsels appearing for the respondents,
learned counsel Mr. M.T.M. Hakim for the appellants referred
to page No. 67 of the record and proceedings and submitted
that a petition preferred by Mohammed Ahsan Murtuza
Sirajbhai Bhora was registered as Change Report No.3607 of
2011. He submitted that the first relief sought therein,
namely, the change in the name of the holy shrine, falls within
the purview of Section 41 of the Waqf Act. He further
submitted that the reliefs sought in paragraphs 9(A) and 9(B),
concerning the incorporation of lands bearing Survey
Nos.911, 915 and 936 as Waqf properties, fall within the
purview of Section 40 of the Waqf Act. He further submitted
that the relief sought in paragraph 9(C), concerning the
appointment of a Board of Trustees of the trust in question,
falls within the purview of Sections 69(C) and 69(D) of the
Waqf Act.
13 He submitted that, in view of the aforesaid specific
enumeration of the reliefs sought, it cannot be contended that
the proceedings initiated were for the limited purpose of
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amending the register of the Trust. According to learned
counsel for the appellants, the proceedings were not confined
merely to an amendment of the trust or Waqf register.
Learned counsel Mr. Hakim further submitted that the
proceedings constituted an attempt on the part of the
respondents to convert the land belonging to Hanafi-Sunni-
Barelvi creed into property belonging to the Shia creed, in
derogation of the provisions of the Places of Worship (Special
Provisions) Act.
14 On the aforesaid submissions, learned counsel
appearing for the appellants prayed that the impugned order
passed by the Waqf Tribunal be quashed and set aside and
consequently, the resolution passed by the Waqf Board, as
well as the order passed by the Chief Executive Officer, be
quashed and set aside.
15. Learned senior counsels appearing for the
respondents, on the other hand, prayed for dismissal of the
appeal and confirmation of the orders passed by the
authorities below.
THE ANALYSIS
16. I have heard learned counsels appearing for the
respective parties and perused the record and proceedings.
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17. On going through the chequered history of the
dispute between the Faruqi family, on the one hand, and the
Dawoodi Bohra community, on the other hand, it appears that
the dispute concerns the identity, character, administration
and management of the holy shrine situated at Village
Anawada, Taluka and District Patan, principally comprising
land bearing Revenue Survey No.935, admeasuring
approximately 1 acre and 21 gunthas, and situated in the
vicinity of the River Saraswati. A dargah, masjid and burial
ground are situated at or associated with the holy shrine.
There is, however, a fundamental dispute between the parties
as to the historical identity of the religious institution/holy
shrine its denominational character, and the person entitled
to administer and manage the same.
18. The ancillary issues arising for consideration are:
(i) whether the appellants were afforded a
sufficient and effective opportunity of hearing;
(ii) whether, by passing the impugned resolution,
the Waqf Board has reviewed or recalled its own
earlier order;
(iii) whether there has been a forcible conversion of
the holy shrine from one creed to another;
(iv) whether there has been any violation of Section
3 of the Places of Worship (Special Provisions) Act;
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(v) whether the removal of the appellants as
Mutawallis is contrary to law; and
(vi) whether the learned Waqf Tribunal committed
an error in dismissing the Waqf Appeal and thereby
confirming the resolution passed by the Waqf
Board as well as the order passed by the Chief
Executive Officer.
19. Before adverting to the rival submissions
canvassed by the learned counsels for the parties, at the
outset, it would be apposite to understand the meaning and
scope of the expression “Waqf”. Section 3(r) of the Waqf Act
reads as under:
“3(r) “waqf” means the permanent dedication by any person,
of any movable or immovable property for any purpose
recognised by the Muslim law as pious, religious or
charitable and includes—
(i)a waqf by user but such waqf shall not cease to be a waqf
by reason only of the user having ceased irrespective of the
period of such cesser;
(ii)a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any
other name entered in a revenue record;
(iii)“grants”, including mashrat-ul-khidmat for any purpose
recognised by the Muslim law as pious, religious or
charitable; and
(iv)a waqf-alal-aulad to the extent to which the property is
dedicated for any purpose recognised by Muslim law as
pious, religious or charitable, provided when the line of
succession fails, the income of the waqf shall be spent for
education, development, welfare and such other purposes as
recognised by Muslim law,and “waqif” means any person
making such dedication;
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20. Subsequently, by way of amendment to the Waqf
Act, the definition of “Waqf”, insofar as it related to “Waqf by
user”, came to be deleted. The Hon’ble Supreme Court, In Re:
The Waqf Amendment Act, 2025 , reported in 2025 LiveLaw
(SC) 909 , while passing an interim order, prima facie did not
find the deletion of the said provision to be arbitrary.
21. The Mussalman Wakf Validating Act, 1913 (Act
No.VI of 1913), also defined “Wakf” as follows:
“Wakf means the permanent dedication by a person
professing the Mussalman faith of any property for any
purpose recognized by the Mussalman law as religious,
pious or charitable.”
22. In Mulla’s Principles of Mahomedan Law , 22nd
Edition, published by LexisNexis, the term “Wakf” has been
explained with reference to the principles enunciated by
Mahomedan jurists. Section 173, contained in Chapter XII,
provides as under:
The term waqf literally means detention. Basically, the whole
institution of waqf has Jenved its authority from a tradition
reported in Bukhari Sharif. Bukhari' has recorded the
tradition reported of Hazrat Umar in several chapters of his
sahih. It is narrated that "Umar came in the presence of the
Prophet for taking his advice about the land that he (Umar)
had obtained in Khaybar." He said, "O Prophet! The land
that I obtained in Khaybar is the best of the properties I ever
got. What are your instructions about putting the same into
use in the name of Allah." The Prophet said "If you wish,
confine the real and make propitiatory offering of its
usufruct." Umar, accordingly, made the propitiatory
offerings of the same with the condition that the land must
not be sold away or given away in gift nor it be open to
inheritance. Its income (alone) should be spent on the poor
and the relatives and on freeing the slaves and on services
rendered to travellers and on hospitality. The person who
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shall manage the land shall with propriety take some of its
income for self and the rest of it he shall spend on feeding
others. He shall not amass its income for self and thus try to
become wealthy. The legal meaning of waqf, according to
Abu Hanifa, is the detention of a specific thing in the
ownership of the waqif or appropriator, and the devoting or
appropriating of its profits or usufruct "in charity on the
poor or other good objects." According to the two disciples,
Abu Yusuf and Muhammad, waqfsignifies the extinction of
the appropriator's ownership in the thing dedicated and the
detention of the thing in the implied ownership of God, in
such a manner that its profits may revert to or be applied
"for the benefit of mankind." (Baillie, 557-558. See Hedaya,
231, 234). A wagf, extinguishes the right of the waqif or
dedicator and transfers the ownership to God.”
23. In Vidyavaruthi v. Balusami , reported in AIR 1922
Privy Council 123, the Privy Council observed as under:
“As pointed out by the Privy Council-"... the Mahomedan Law
relating to trusts differs fundamentally from the English law.
It owes its origin to a rule laid down by the Prophet of Islam;
and means 'the tying up of property in the ownership of God
the Almighty and the devotion of the profits for the benefit of
human beings. When once it is declared that a particular
property is waqf, or any such expression is used as implies
waqf, or the tenor of the document shows, as in the case of
Jewun Doss v. Shah Kubeer-ood-deed," that a dedication to a
pious or charitable purpose is meant, the right of the waqif
is extinguished and the ownership is transferred to the
Almighty. The donor may name any meritorious object as the
recipient of the benefit."
There is no prohibition in Muslim law to create a charitable
trust as in English law." Distinction between a waqf and an
English Charitable trust is pointed out below:
To constitute a valid waqf, whether religious or charitable,
except in the case of donations to neighbours or charitable
public utilities, the beneficiaries should be Muslims.
24. “Wakf by immemorial user” has been dealt with
under Section 188, in Principles of Mahomedan Law , which
provides as under:
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“188. Waqf by immemorial user- If land has been used
from time immemorial for a religious purpose, e.g. for a
mosque, or a burial ground or for the maintenance of a
Mosque, then the land is waqf by user although there is no
evidence of an express dedication.
25. In Khati v. Mirza Hossain , AIR 1962 Ori. 95, it was
held that “Land used from time immemorial for the purpose of
a masjid and for its courtyard which form part and parcel of
the land of masjid, or for celebration of Moharram festivals,
can be held to constitute a Waqf by user.”
26. In order to constitute a valid dedication of a public
nature, certain conditions are required to be satisfied. Firstly,
the founder must declare his intention to dedicate the
property for the purpose of a Waqf. No particular form of
declaration is necessary, and such declaration may be
inferred from the conduct of the founder, whether express or
implied. Secondly, the founder must completely divest himself
of ownership of the property. Such divestment may be
inferred from the fact that possession of the property has
been delivered to the Mutawalli or Imam.
27. A conjoint reading of the aforesaid provisions and
principles of law makes it clear that a Waqf is a permanent
dedication by a person professing Islam of any property,
whether movable or immovable, for a pious, religious or
charitable purpose. Upon such dedication, the property is
treated as being dedicated to Almighty God and ceases to
remain the private property of the founder. The usufruct of
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such property is to be applied for the intended religious, pious
or charitable purposes. The concept of Waqf by user arises
where a property has been used from time immemorial for a
religious purpose, such as for a masjid or burial ground.
Ordinarily, a Waqf requires an express dedication; however,
where a property has been used from time immemorial for a
religious purpose, it may constitute a Waqf by user even in the
absence of evidence of an express dedication.
28. The appellants claim that the holy shrine situated
on Survey No.935 is more than 400 years old. According to
the appellants, the Dargah belongs to the Sunni-Hanafi-
Barelvi creed and is known as “Maulana Mahboob Dargah,
Masjid and Kabrastan”. The respondents, on the other hand,
claim that the holy shrine is known as “Maulana Yaqub Saheb
Dargah and Dawoodi Bohra Kabrastan”, while “Mahboob
Dargah, Masjid and Kabrastan” is a separate entity. Upon
consideration of the rival claims, both the authorities below,
namely, the Waqf Board as well as the Waqf Tribunal, have
recorded findings in favour of the respondents.
29. It is an admitted position that the holy shrine was
registered by Nanibi on 22.01.1953. At the relevant time, the
Bombay Public Trusts Act, 1950 had come into force and
various religious and charitable institutions were being
registered as public trusts. Nanibi submitted an application
dated 22.05.1952 before the Deputy Charity Commissioner,
Ahmedabad, seeking registration of the trust under Section 18
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of the Bombay Public Trusts Act, 1950. Nanibi was the wife of
Jamaluddin Kutubuddin. The documents relating to
registration of the trust are placed in Paper-book Volume II at
Page No.259. The prescribed form of application for
registration of the public trust is placed on record at Page
No.262. The said application was registered as Application
No.1511 of 1952.
30. In the application for registration, Nanibi, widow of
Jamaluddin Kutubuddin, furnished the particulars of the trust
and described the public trust as “Maulana Mahboob Dargah,
Masjid and Kabrastan”.
31. With regard to the mode of succession to the
trusteeship and managership, she stated that the same was to
be decided by the members of the family and, in respect of the
masjid, by the congregation of Muslims or Mohammedans.
The objects of the trust were stated to be Urs, Bandagi and
Fatiha, etc. In Column IV(a), relating to the particulars of the
document creating the trust, it was stated as “not available”.
In Column IV(b), relating to particulars other than documents
concerning the origin or creation of the trust, the details were
again stated as “not available”. In Column V, relating to
particulars of any scheme concerning the trust, it was once
again stated as “not available”. In Column VI, relating to
details of movable property, the entry was “Gilaf 1, price or
value Rs.25”. In the columns relating to income and
expenditure and particulars of the title deeds pertaining to the
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trust property and the name of the trustee in possession
thereof, the particulars were stated as “not available”.
32. Nanibi submitted the said application in her
capacity as, and claiming herself to be, the “Mujawar” of the
trust along with the application form for registration of the
public trust, she annexed a copy of Village Forms Nos.7, 7A
and 12. In the column relating to the Kabjedar, the entry was
recorded as “Malan Shah Pir Ni Jago - Government Wasteland
at Mouje Anawada, Taluka Patan”. The Survey Number
mentioned therein was Survey No.935, admeasuring 1 acre
and 21 gunthas. In the extract of Village Forms Nos.7, 7A and
12 annexed to the application for registration of the public
trust, an endorsement “Maulana Mahboob no Rozo, Maulana
Yaqub...” (see Page No.265, Paper-book Volume II).
33. A Haq Chokshi notice under Section 19 of the
Bombay Public Trusts Act, 1950 was thereafter issued. The
notice specifically recorded that the names and addresses of
the trustees or managers had not been supplied, that no
document relating to the creation of the trust had been
produced, and that no specific document showing the mode of
succession had been furnished.
34. During Inquiry No.1511 of 1952, Nanibi made a
statement on oath that she was administering the holy shrine,
that she had submitted the application form in that regard,
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and Mutawalli was required to be appointed by the
congregation of Muslims. Three assessors were appointed
during the inquiry, namely, Mr. S.N. Farooqui, Shri A.A.
Maulana and Mr. M.S. Kadri. During the inquiry proceedings,
the Deputy Charity Commissioner, after appointing the three
assessors, also raised several questions concerning the
availability of supporting documents.
35. The record at Page Nos.271 to 274 (Paper-book
Volume-II) reflects that most of the points for determination
remained unanswered. The material questions which remain
unanswered including whether there were any particulars of a
document creating the trust; whether any other documents or
particulars concerning the creation or origin of the trust were
available; whether any scheme relating to the trust was
available; and whether particulars of the title deeds
pertaining to the trust property and the name of the trustee in
possession thereof were available. Nevertheless, the inquiry
ultimately culminated in the registration of the holy shrine as
a religious trust (B-57, Mehsana), on the application
submitted by Nanibi in her capacity as “Mujawar”.
36. Upon the death of Nanibi, her daughter Badibi
claimed her right as a “Mujawar”, and her claim and status as
a “Mujawar” came to be recorded on 01.03.1960. Up to this
stage, Nanibi, who initiated the proceedings for registration of
the trust, consistently claimed that she was a “Mujawar”.
Consequently, after her death, her daughter Badibi also
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claimed that she was a “Mujawar” and sought to have her
name entered as a “Mujawar” in the records of the trust.
37. The expression “Mujawar” is not defined under the
Waqf Act.
38. Wilson’s Legal Glossary (A Glossary of Judicial and
Revenue Terms) , by Professor H.H. Wilson, defines a
“Mujawar” as a servant or sweeper of a Mohammedan temple
or shrine. Halsbury’s Laws of India , Volume 29(2), published
by Butterworth India, defines a “Mujawar” under the heading
“Dargah” (290.373) as follows:
“Mujawar” is the person who is the servant of the Dargah. It
is further stated that, since the concept of intercessor
between God and man is opposed to Muslim law, a claim of
hereditary succession to the office of Mujawar is not
maintainable merely in the absence of long user [see Md.
Oosmaan v. Essak Salemabomed, (1938) ILR Bom. 184]. The
office of Mujawar as an integral part of a Dargah is not
known to Mahomedan Law.
39. In Mohammedan Law , by B.R. Verma, 13th Edition,
Law Publishers (India) Pvt. Ltd., Section 205 defines the office
of “Mujawar” as “Mujawar is a servant of a Mohammedan
shrine or mosque. The claim of a Mujawar to act as an
intermediary or as an intercessor between God and man is
opposed to Islamic teaching. The office of Mujawar as an
integral part of Dargah is not known to Mohammedan Law.
Even if such office is known to the law, where there is no clear
proof of long user, there can be no claim to it by hereditary
succession. A Mujawar has ordinarily no claim to offerings
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made at a Dargah. These offerings are to be dealt with by the
trustees, in accordance with the scheme for the upkeep of the
Dargah, or the provisions of the “Waqfinama.”
40. In Abdul Aziz Valad Haji Subhan v. Mohammed
Ibrahim Ghatkari , AIR 1939 Bombay 487 , the Division Bench
of the Bombay High Court also held that a “Mujawar” is a
servant at the tomb who performs service thereat and that the
property of the tomb does not vest in him.
41. In Charity Commissioner, Maharashtra State v.
Shaikh Kasam Shaikh Hussain , 1988(1) Bombay C.R. 400 , it
was held that the offerings made at the tomb, even though
received by the non-applicants in their capacity as “Mujawar”,
cannot be treated as their private property, but must be
treated as the property of the public trust.
42. In Wakf Law in India , Seventh Edition, published
by Law Publishers India Private Limited, Justice S.A. Chafri, at
Page No.221, under the caption “Position of a Mujawar”, has
stated that a “Mujawar” is a servant of a Mohammedan shrine
or mosque. The claim of a “Mujawar” to act as an
intermediary or intercessor between God and man is opposed
to Islamic teaching. It is further stated that there can be no
claim to hereditary succession to the office of a “Mujawar”
merely on such basis.
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43. At this juncture, certain other documents on record
also deserve consideration. Before the Mamlatdar, Patan,
Badibi made a statement on 17.04.1962 that she was a
Mujawar. She requested that her name be entered in the
records of the trust as a “Mujawar” and further assured that
she would not claim ownership over the land or the holy
shrine. She stated that she would continue to perform “dhoop-
Vati, and Phhol-Fatiya” and her name may continue to be
recorded as “Mujawar” of the holy shrine so long she continue
to perform such duties. There are several other documents on
record which indicate that, up to the time of Badibi, the
members of the family consistently claimed to be “Mujawar”
of the trust. In the Change Report of the trust, at Page No.343
of Paper-book Volume II, the name of Badibi was also entered
as a “Mujawar”.
44. In view of the aforesaid commentaries and judicial
decisions on record, it is evident that a “Mujawar” is a servant
or caretaker of a shrine. Beyond such status, a Mujawar
cannot claim any proprietary right in the Waqf property. In
any event, no person can claim any proprietary right in Waqf
property, since upon valid dedication, the property ceases to
belong to the individual and is dedicated to Almighty God,
while only the usufruct thereof is to be utilised for the
purposes of the Waqf.
45. Turning back to the case on hand, the appellants
claim that the holy shrine, known as “Maulana Mehboob
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Dargah and Kabrastan”, has existed for more than 400 years.
A specific claim is made that Hazrat Maulana Mehboob died
at Village Anawada, that he was buried on the land bearing
Survey No.935, and that a Dargah was constructed over his
grave in 1377 A.D. (798 A.H.). The registration of the trust
took place pursuant to the application submitted by Nanibi in
1952. Though she described the holy shrine as “Hazrat
Maulana Mehboob Dargah and Kabrastan”, she failed to
produce any document, Wakfnama or other deed of dedication
evidencing the creation of the Waqf, any scheme governing
the Waqf, or any document evidencing dedication of the
property as Waqf including documents evidencing the holly
shrine as “Maulana Mahboob Dargah and Kabrastan”.
46. The entire factual scenario indicates that the
registration of the holy shrine was founded upon the concept
of Waqf by user. Upon the enactment of the Waqf Act, the holy
shrine, which had earlier been registered as a public trust,
came to be treated as a Waqf. Even at that stage, however, no
document was placed on record to establish the creation of
the trust, any scheme governing the trust, or any deed
evidencing dedication of the property as Waqf.
47. Section 3(r) of the Waqf Act defines “Waqf” and
also refers to the expression “Wakif”. According to the said
provision, “Wakif” means any person making such dedication.
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48. It is not even the case of the appellants that the
deceased Nanibi was the Wakif or that she had dedicated the
land as Waqf. Nanibi, widow of Jamaluddin Kutubuddin, at the
time when the Bombay Public Trusts Act came into force,
stated that she was serving as a “Mujawar” of the holy shrine.
In other words, she was acting as caretaker of the holy shrine.
In the form submitted by her for registration of the trust, she
did not disclose the source or basis on which she had
described the holy shrine as “Maulana Mehboob Dargah and
Kabrastan”. Learned counsel appearing for the appellants
remained conspicuously silent on this issue throughout their
submissions. They failed to point out even a single document
demonstrating that Nanibi was a “Wakif” and not merely a
“Mujawar”, or any document which could be treated as the
source or basis for describing the holy shrine as “Maulana
Mehboob Dargah and Kabrastan”.
49. In the aforesaid circumstances, it would be
relevant to examine the revenue records, particularly the
“Padhani Patrak” maintained during the Gaekwad State
period, as the Patan area was then governed by the Gaekwad
State.
49.1 Before examining the revenue records, particularly
the “Padani Patrak” maintained during the Gaekwad State
period, it would be appropriate to consider the presumption of
correctness attached to entries in the revenue records. It is a
settled proposition of law that revenue entries neither create
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nor extinguish title and are primarily maintained for fiscal
purposes. However, the position would be entirely different
where both parties rely upon the revenue entries. Entries in
the revenue records prepared and maintained in accordance
with the provisions of law raise a presumption of correctness,
unless contrary is established on record or revenue entry is
rebutted by other convincing cogent and relevant
documentary evidence.
50. In Inder Singh v. Dhanna Singh and Anr., reported
in (1952) 2 SCC 574, the Hon’ble Supreme Court, in
paragraph 7, held as under:
“7. After hearing Dr Bakshi Tek Chand at some length we
have reached the conclusion that there are no grounds for
reversing the decision of the High Court on this issue.
Entries made in the pedigree table prepared at the
settlement of 1904 are a weighty piece of evidence and the
High Court was justified in placing reliance on them to prove
the plaintiffs' relationship with Daya Singh. Members of
thefamily on whose information the settlement officer
prepared the pedigree in the year 1904 must be presumed to
have given a correct pedigree to him and would have better
knowledge in the matter than those on whose information
the pedigree was prepared in the year 1928, 24 years
afterwards. The learned District Judge took the view that a
presumption of correctness attaches to the entries made in
the revenue papers prepared at a later date in preference to
the entries made in earlier records, as the later entries are
supposed to have corrected errors, if any, that might have
existed in the earlier records. This proposition does not seem
to be sound. In law, presumption of correctness attaches to
the records prepared in accordance with the provisions of
the Land Revenue Act at whatever period of time they might
have been prepared unless the later record in express terms
declares that the earlier entries were incorrect.
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51. In Pratap Singh (Dead) through Legal
Representatives & Ors. v. Shiv Ram (Dead) through Legal
Representatives, reported in (2020) 11 SCC 242, the
Hon’ble Supreme Court summarised the scope of the
presumption, as well as the presumption of correctness
attached to the record of rights. In paragraphs 21, 23, 25 and
26, it held as under:
“21, This Court in Vishwa Vijai Bharti v. Fakhrul Hasan &
Ors.4 held that the entries in the revenue record ought to be
generally accepted at their face value and courts should not
embark upon an appellate inquiry into their correctness. But
the presumption of correctness can apply only to genuine,
not forged or fraudulent entries. This Court held as under:
“14. It is true that the entries in the revenue record
ought, generally, to be accepted at their face value and
courts should not embark upon an appellate inquiry in
to their correctness. But the presumption of correctness
can apply only to genuine, not forged or fraudulent,
entries. The distinction may be fine but it is real. The
distinction is that one cannot challenge the correctness
of what the entry is the revenue record states but the
entry is open to the attack that it was Made
fraudulently or surreptitiously. Fraud and forgery rob a
document of all its legal effect and cannot found a claim
to possessory title.”
In a judgment reported as Sodhi Transport Co. and
Others v. State of U.P. and Others6, this Court was
considering Section 28-B of the Uttar Pradesh Sales Tax
Act, 1948 which raises a presumption of sale of goods in
a manner prescribed therein. This Court 5 AIR 1994 SC
227 6 (1986) 2 SCC 486 considered Section 4 of the
Evidence Act and also the previous judgments and held
as under:
“14. A presumption is not in itself evidence but only
makes a prima facie case for party in whose favour it
exists. It is a rule concerning evidence. It indicates the
person on whom the burden of proof lies. When
presumption is conclusive, it obviates the production of
any other evidence to dislodge the conclusion to be
drawn on proof of certain facts. But when it is
rebuttable it only points out the party on whom lies the
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duty of going forward with evidence on the fact
presumed, and when that party has produced evidence
fairly and reasonably tending to show that the real fact
is not as presumed the purpose of presumption is over.
Then the evidence will determine the true nature of the
fact to be established. The rules of presumption are
deduced from enlightened human knowledge and
experience and are drawn from the connection, relation
and coincidence of facts, and circumstances."
25. The presumption of truth attached to the revenue
record can be rebutted if such entry was made
fraudulently or surreptitiously ( Vishwa Vijai Bharti 's
case) or where such entry has not been made by
following the prescribed procedure (Bhimappa
Channappa Kapali (Dead) by LRS. v. Bhimappa
Satyappa Kamagouda (Dead) by LRS. and Others 8).
Even in Guru Amarjit Singh, where thirty years old
lease deed was produced, this Court had not accepted
the proof of the relationship between landowner and
tenant in absence of receipt of payment of rent.
26. Therefore, we find that the presumption of truth
attached to the record-of-rights can be rebutted only if
there is a fraud in the entry or the entry was
surreptitiously made or that prescribed procedure was
not followed. It will not be proper to rely on the oral
evidence to rebut the statutory presumption as the
credibility of oral evidence vis-a-vis documentary
evidence is at a much weaker level.
52. In the backdrop of the aforesaid proposition of law,
let us examine the revenue records produced on record, which
constitute the only piece of evidence available for ascertaining
the character and identity of the holy shrine.
53. The Mamlatdar's Office prepared the certified
copies on 29.06.2011, duly signed by the Mamlatdar, Patan.
The said certified copies were placed on record before the
Wakf Tribunal in the appeals arising after remand. They form
part of File No.4 at Page Nos.79, 81, 83, 85, 87, 89, 91 and
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93. The revenue record placed on record by the Mamlatdar,
Patan, in respect of the land bearing Survey No.935 of village
Anawada, discloses the following particulars in tabular form:
Year Name of
Holder of
owner
Land
Samvant
1950-51-52
Means year
1893-94-95
Government Pa. Mulchand
Kalapa
Holder himself
1916-17 to
1920-21
Government
Waste Land
Kharaba
Land
Mo. Yakub Saheb
Dargah Dawoodi Bohra
Kabrastan Pir ni Jago
1921-22 to
1925-26
Government
Waste Land
Kharaba
Land
Mo. Yakub Saheb
Dargah Dawoodi Bohra
Kabrastan Pir ni Jago
1924-25 to
1928-29
Government
Waste Land
Kharaba
Land
Mo. Yakub Saheb
Dargah Dawoodi Bohra
Kabrastan Pir ni Jago
1929-30 to
1933-34
Government
Waste Land
Kharaba
Land
Mo. Yakub Saheb
Dargah Dawoodi Bohra
Kabrastan Pir ni Jago
1934-35 to
1938-39
Government
Waste Land
Kharaba
Land
Malansha Pir ni Jago
1939-40 to
1943-44
Government
Waste Land
Kharaba
Land
Malansha Pir ni Jago
1944-45 to
1948-49
Government
Waste Land
Kharaba
Land
Malansha Pir ni Jago
54 . The aforesaid revenue record consistently reflects
Survey No.935 as Government wasteland and also as Kharaba
land. It further records, in the initial years, the entry
“Maulana Yaqub Saheb Dargah, Dawoodi Bohra Kabrastan
Pir Ni Jago”, which was subsequently changed to “Malansha
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Pir Ni Jago” from 1934-35 onwards. The Wakf Tribunal, in
impugned judgment and order, under the heading “Revenue
Record”, also examined the relevant revenue entries. By
Revenue Entry No.245, the name of Nanibi, widow of
Jamaluddin Kutbuddin, was mutated in respect of “Malansha
Pir Ni Jago”. Subsequently, the said entry was deleted by
Revenue Entry No.400, and the land bearing Survey No.935
was recorded as “Pir Ni Jago”. The revenue record also
records the death of Nanibi on 11.02.1960. Revenue Entry
No.549, which was mutated after the registration of the trust
on 22.01.1953, records Nanibi as the administrator/Mujawar
of Pir Maulana Mehboob Dargah. It is significant that, for the
first time after the registration of the trust on 22.01.1953, the
name of Pir Maulana Mehboob appeared in relation to the
holy shrine.
55. In the subsequent revenue entries, the names of
tenants were recorded as cultivators of the land; however,
such tenancy status was subsequently discontinued. On
03.02.1988, Revenue Entry No.2069 recorded the name of
“Maulana Mehboob Yakub Dargah Masjid and Kabrastan,
Patan B/97 Mehsana Trust”, with Farooqi Badibi, daughter of
Jamaluddin Qutbuddin, shown as trustees. A note was also
made regarding the entry of the names of Badibi's heirs in the
agricultural account. However, the Collector, Patan, by
Revenue Entry No.3982 dated 21.06.2011, deleted the said
note.
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56 . Upon perusal of the aforesaid entries, it is
noticeable that, prior to Revenue Entry Nos.245 and 549, the
holy shrine was recorded in the name of “Maulana Yaqub
Laqub Mehboob Pir Mubarak Roza and Mosque” and in favour
of the Dawoodi Bohra community in the land register
maintained by the Gaekwad State. The name of the holy
shrine was changed only after the registration of the trust.
The extracts of Village Forms Nos.7 and 12 for the years
1967-68 to 1971-72 and 1977 onwards record the name of
“Malansha Pir Dargah” along with the name of Nanibi. Even
up to 1986, the name of “Malansha Pir Dargah”, Nanibi,
widow of Jamaluddin Kutbuddin, and the heirs of the Pir are
shown in the revenue record.Thereafter, in the extracts of
Village Forms Nos.7 and 12, the name of “Hazrat Maulana
Mehboob Dargah” came to be entered in place of “Malansha
Pir Dargah”, which had earlier been recorded in the name of
“Mohammad Yaqub Maulana Yaqub Saheb” and as “Dargah of
Maulana Yaqub Saheb and Dawoodi Bohra Kabrastan”.
57. The revenue record subsequent to the registration
of the trust discloses the following particulars:
1954-55 to
1965-66
Government
Kharaba Land
Malansha Pir ni Jago Administred
by Jamaluddin – Nanibi Wd/o.
Jamaluddin Kutbuddin. (Entry
No.245)
1966-67 to
1976-77
Government
Kharaba Land
Malansha Pir ni Jago Administred
by Nanibi Wd/o. Jamaluddin
Kutbuddin. (Entry No.245, 1236)
1977-78 to Government Malansha Pir ni Jago Administred
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1985-86 Kharaba Land by Nanibi Wd/o. Jamaluddin
Kutbuddin. (Entry No.1236 & 2069)
1985-86 to
1995-96
Government
Kharaba Land
Malansha Pir ni Jago Administred
by Nanibi Wd/o. Jamaluddin
Kutbuddin. Hazrat Maulana
Mehbub argah,Masjid and
Kabrastan trustee Badibi Faruqui
D/o.Jamaluddin Kutbuddin. (Entry
No.1236 & 2069)
1995-96 to
2001-02
Government
Kharaba Land
Hazrat Maulana Mehbub
Dargah,Masjid and Kabrastan
trustee Badibi Faruqui
D/o.Jamaluddin. (Entry
No.245,1236 & 2069)
58. The aforesaid revenue record was produced by the
Mamlatdar, Patan, before the Waqf Tribunal and forms part of
File No.1 at Page Nos.43, 45, 47, 49 and 51. Interestingly, the
revenue entries do not reflect the name of the holy shrine as
“Maulana Mehboob Dargah Masjid and Kabrastan” prior to
the registration of the Trust. Up to the years 1929-30 and
1933-34, the revenue record reflects the name of the holy
shrine as “Mohammad Yaqub Shah Dargah Dawoodi Bohra
Kabrastan Pir Ni Jago”, which was thereafter changed to
“Malansha Pir Ni Jago”.
59. It is unclear from the record as to how the name
“Mohammad Yakub Saheb Dargah Dawoodi Bohra Kabrastan,
Pir Ni Jago” came to be changed to “Malansha Pir Ni Jago”.
Neither party has satisfactorily explained this factual aspect.
Even after the registration of the trust, the name “Malan Shah
Pir Ni Jago” continued to be recorded in respect of the holy
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shrine, with an additional entry stating that it was
“administered by firstly Jamaluddin and then Nanibi, widow of
Jamaluddin”. The name “Malan Shah Pir Ni Jago” continued to
appear in the revenue record up to 1985-86. From 1985-86
onwards, the name “Hazrat Maulana Mahbub Dargah”
appears along with “Malan Shah Pir Ni Jago”. Thereafter,
from 1995-96 onwards, the name “Malan Shah Pir Ni Jago”
recorded in respect of the holy shrine was removed, and only
the name “Hazrat Maulana Mahbub Dargah, Masjid and
Kabrastan” remained.
60. Upon perusal of the aforesaid documentary
evidence, which are the only piece of evidence available on
record demonstrating the nature of the holy shrine and the
names by which it was described before and after the
registration of the trust, it emerges that the relevant
documents are in the form of revenue entries produced by the
Mamlatdar, Patan, before the Wakf Tribunal. Significantly, the
revenue record shows that, during the Gaekwad State era, the
holy shrine was recorded as “Mohammad Yakub Saheb
Dargah Dawoodi Vohra Kabrastan Pir Ni Jago”, which was
subsequently changed to “Malan Shah Pir Ni Jago” without
any reason being discernible from the record. Even after
registration of the trust, the name of the holy shrine continued
to be recorded as “Malan Shah Pir Ni Jago”. However,
subsequently, the name came to be changed to “Hazrat
Maulana Mahbub Dargah, Masjid and Kabrastan Trust”.
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61. Recapitulating the facts, the registration of the
trust took place at the instance of Nanibi, who was admittedly
a Mujawar of the holy shrine, pursuant to Inquiry No.1511 of
1952. It is evident from the application for registration of the
public trust that Nanibi did not produce any documentary
evidence disclosing the origin of the Waqf, the nature of the
public holy shrine, or the creation of the Waqf. No particulars
of any document creating the trust were also furnished along
with the application for registration of the public trust.
62. The extract of Village Form No.7A annexed to the
application for registration of the trust reflects the name
“Maulana Yakub”. Thus, the revenue record produced by the
Mamlatdar before the Wakf Tribunal in the Wakf Appeal
indicates that, during the Gaekwad State, the name of
Maulana Yakub was recorded in relation to the holy shrine.
Subsequently, the name “Malanshah Pir Ni Jago” came to be
recorded and, after the passage of several years following
registration of the trust, the name of the holy shrine was
changed to “Maulana Mahboob Ni Dargah”. Ergo without any
judicial or revenue or any other recognized from any
adjudication, conveniently name of holy shrine was changed.
63. Apt to note that the question which remains
unanswered by the learned counsel Mr.M.T.M. Hakim,
appearing for the appellants, is as to how and on what basis
the name of the holy shrine came to be applied. The factual
scenario emerging from the revenue records, which carry a
presumption of correctness, assumes significance, particularly
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when it is noticed that the trust was registered by Nanibi in
her capacity as a “Mujawar” (Caretaker), without producing
any waqf deed or any document evidencing the creation of the
waqf, naming the waqf, prescribing the mode of appointment
of a successor trustee, or otherwise evidencing the origin or
creation of the waqf. No other authentic or reliable
documentary material has been placed on record to establish
the basis for naming the waqf as “Maulana Mehub Dargah
Masjid and Kabrastan.”
64. Learned counsel Mr.Hakim submitted that, in the
proceedings of the entire Waqf Appeal No.38 of 2021, the
Waqf Tribunal had categorically observed and held that the
revenue records had been interpolated. He argued that the
entire record of Waqf Appeal No.38 of 2021 was deliberately
not placed before the Waqf Tribunal while deciding Waqf
Appeal No.15 of 2025. It is submitted that the revenue record,
which is stated to be in a torn condition, shows that the copy
obtained on 03.01.2004 from the office of the Mamlatdar,
Patan, contains an entry different from the entry appearing in
the revenue record subsequently obtained from the
Mamlatdar's office. According to the appellants, in the first set
of entries obtained in 2004, the name of the holy shrine was
recorded as “Maulana Saheb Pir Ni Jago”, whereas in the
subsequent set of revenue records obtained in 2012, it was
changed to “Maulana Yakub Saheb Ni Dargah Dawoodi Bohra
Kabrastan”. It is, therefore, submitted that the case clearly
involves interpolation of the revenue record and that the
Collector, Mamlatdar, or officers of the Mamlatdar and
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Collector had failed to take appropriate action against the
respondents for such alleged interpolation.
65. Learned counsel submitted that, in Waqf Appeal
No.38 of 2011, the then Waqf Tribunal had directed an inquiry
to be conducted by the District Collector, Patan. However,
according to him, no such inquiry was conducted, which,
according to the appellants, demonstrates an attempt on the
part of the respondents to forcibly convert the Sunni-Hanafi-
Barelvi holy shrine. Learned counsel also relied upon the
“Padani Patrak” i.e. Village Form No.3, maintained during the
Gaekwad State, and alleged that the same had been
interpolated. Copies thereof were placed by learned counsel
Mr. Hakim along with the written submissions.
66. Even assuming the said document to be genuine
and reliable, it does not reflect the name “Maulana Mahbub
Dargah Masjid and Kabrastan” at any point of time. The copy
of Village Form No.3, “Padani Patrak”, obtained on
03.01.2004 as claimed by appellants, does not reflect the
name “Maulana Mehboob Dargah Masjid and Kabrastan” or
“Pir Ni Jago” in respect of the holy shrine situated on Survey
No.935, which is stated to be Government wasteland. The
other revenue entries referred to hereinabove record the
name of “Maulana Yaqub Saheb Dargah Dawoodi Bohra
Kabrastan Pir Ni Jago” in respect of the holy shrine and the
adjoining land bearing Survey No.35. They also record the
name “Maulana Saheb Pir Ni Dargah Jago Kabrastan”. Thus,
significantly, the name “Maulana Mehboob Dargah” is
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conspicuously absent from the copies of the revenue records
produced even by the appellants. It, thus appears, that issue
of interpolation and argument to that extent is wholly
misconceived. At the cost of repetition, what perceives that
appellants have failed to point out any documentary evidence
to which reflects that holly shrine is “Maulana Mahboob
Dargah Masjid & Kabrstan”.
67. Another important aspect is the ancient inscription
affixed to the holy shrine. Its Gujarati translation, forming
part of the record of the Waqf Board, Gandhinagar, in File
No.2 at Page No.43, also reflects the name of “Maulana
Yaqub”. The inscription further records that “Maulana Yaqub”
was treated as “Mehboob” and “Mashuk” out of sheer respect
by the community. A photocopy of the said inscription is
placed at Page Nos.158 and 159 of the judgment of the Waqf
Tribunal. Upon close scrutiny of the said ancient inscription,
the existence of which remains unrebutted, it clearly emerges
that the holy shrine was associated with “Maulana Yaqub” and
not with “Maulana Mehboob”.
68. Though, learned counsel Mr. M.T.M. Hakim,
appearing for the appellants, advanced extensive submissions
on several other issues, he could not offer any explanation on
this aspect and did not make any submission whatsoever
regarding the existence of the inscription or the fact that the
inscription reflects the name of “Maulana Yaqub”.
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69. The next contention regarding manipulation of the
revenue record also cannot be accepted. The learned Judicial
Magistrate, Patan, who conducted the inquiry into the
allegation of manipulation of the revenue record and the
consequential offence under the Indian Penal Code, dismissed
the criminal complaint/inquiry on 15.03.2022. The Sessions
Court, Patan, upon re-examination of the issue in Criminal
Revision No.24 of 2022, dismissed the revision application on
25.05.2025. Though the appellants vigorously contested the
allegation of interpolation, they did not carry the matter
further by challenging the order passed by the Sessions
Court. Consequently, the allegation of interpolation cannot be
accepted merely on the basis of the submissions advanced by
the appellants.
70. It is pertinent to note that both parties to the
dispute, before Co-ordinate Bench of this Court in Revision
Application Nos.179 of 2022 and 185 of 2022, consented to
setting aside the orders passed by the Waqf Board as well as
the Waqf Tribunal in the first round of litigation and to
remand the matters to the Waqf Board for fresh consideration.
Thus, the orders passed by the Co-ordinate Bench of this
Court in CRA Nos.179 of 2022 and 185 of 2022, on the
consent of both parties, rendered the orders passed by the
Waqf Board and the Wakf Tribunal in the first round of
litigation non-existent, and set the purpose of determining the
dispute afresh. Therefore, learned counsel Mr. Hakim cannot
take shelter place reliance upon the observations made by the
Waqf Tribunal in Waqf Appeal No.38 of 2011, during first
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round of litigation.
71. The next question that arises for consideration is
the distinction between “Mujawar” and “Mutawalli”. At the
outset, it would be apposite to refer to the definition of
“Mutawalli” contained in Section 3(i) of the Act, which reads
as under:
“3(i) “mutawalli” means 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 person who is a
mutawalli of a waqf by virtue of any custom or who is a naib-
mutawalli, khandim, mujawar, sajjadanashin, 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, committee or corporation for the time being,
managing or administering any waqf or waqf property:
Provided that no member of a committee or corporation shall
be deemed to be a mutawalli unless such member is an
office-bearer of such committee or corporation:Provided
further that the mutawalli shall be a citizen of India and
shall fulfil such other qualifications as may be prescribed:
Provided also that in case a waqf has specified any
qualifications, such qualifications may be provided in the
rules as may be made by the State Government;
72. It is clear from the definition that a “Mutawalli”
means a 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. The
expression also includes a person who is a Mutawalli of a
Wakf, or who is a Naib-Mutawalli, Khadim, Mujawar,
Sajjadanashin, Ameen, or any other person appointed by the
Mutawalli to perform the duties of a Mutawalli, and, save as
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otherwise provided under the Act, any person, committee or
corporation for the time being managing or administering the
Wakf or Wakf property. The proviso further provides that no
member of a committee or corporation shall be deemed to be
a Mutawalli unless such person is an office-bearer of such
committee or corporation. Thus, the definition of “Mutawalli”
contemplates appointment either verbally, under a deed or
instrument by which the Wakf has been created, or by a
competent authority.
73. In the present case, recapitulating the facts
relating to the registration of the trust, the application for
registration filed by Nanibi reflects that she did not tender
any document evidencing the creation of the trust, such as a
trust deed or Wakf-nama, nor did she furnish any particulars
regarding the origin or creation of the trust or any scheme
relating thereto. She as “Mujawar” merely set out the mode of
succession to the trusteeship, stating that the trustees would
be persons from the family as decided by the family, who
would manage the trust, whereas, in respect of the Masjid,
the affairs would be managed in accordance with the
decisions of the congregation of Muslims.
74. Two factual aspects need to be kept in mind at this
juncture. Firstly, Nanibi was neither the settlor of the trust
nor the Wakif. She was merely a “Mujawar”. According to her
own case, her husband, Jamaluddin, had earlier been acting
as a “Mujawar”. The question, therefore, arises as to whether
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a “Mujawar” could prescribe a mode of succession to the
trusteeship or management of the trust. As observed
hereinabove, a “Mujawar” is essentially a caretaker appointed
to perform duties such as Dhoop-Diva and Phool-Patiya. It has
also been observed from the principles of Muslim law that the
office of Mujawarship is ordinarily not hereditary.
74.1 Another aspect which needs to be recorded is that
the land bearing Survey No.935 is shown as Government
wasteland in all the revenue records produced before the
Waqf Board and the Waqf Tribunal. It is not even the case of
learned counsel Mr.Hakim that the land bearing Survey
No.935, upon which the holy shrine exists, is private land. The
revenue record consistently shows it to be Government
wasteland situated on the bank of the Saraswati River, upon
which the holy shrine has existed from time immemorial.
75. Letter dated 01.03.1960, addressed by Badibi to
the Deputy Charity Commissioner, Ahmedabad, and forming
part of the record at Page No.257 of Volume-II of the Paper
Book, states that her mother, Nanibi, was a “Mujawar” and
that she died on 11.02.1960. Badibi claimed to be the heir of
Nanibi and requested the Charity Commissioner to effect a
change in the name by allowing the Change Report and to
substitute her name for that of Nanibi as “Mujawar” .
Noticeably Again, on this aspect, learned counsel Mr. M.T.M.
Hakim has remained noteworthy silent. The Change Report at
Page No.276, as well as the order passed thereon, also
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records Badibi as a “Mujawar”. At this juncture, the Court
does not deem it necessary to decide whether a female can be
a “Mujawar”, as that issue does not arise for consideration in
the present proceedings. When the name of Badibi continued
to be recorded as “Mujawar”, in the proceedings before the
High Court of Gujarat in the year 2011 in Special Civil
Application No.12350 of 2011, the list of dates and events
described Petitioner No.1, Badibi, as the caretaker or
“Mujawar”. The order passed in Special Civil Application
No.12350 of 2011 also records that Petitioner No.1 claimed to
be the sole trustee of the Trust named “Hazrat Maulana
Mehboob Nidan Dargah Masjid and Kabrastan”, whereas
Petitioner No.2 claimed to be the caretaker/Mujawar of the
Dargah.
76. In a nutshell, the record reflects that, after the
death of Nanibi, her daughter Badibi assumed the role of
“Mujawar”, which had previously been performed by Nanibi.
Thereafter, the process of transitioning from “Mujawar” to
“Mutawalli” appears to have commenced. The members of the
Faruqui family, by self-proclamation, claimed themselves to be
Mutawallis/trustees and started acting in that capacity.
77. Section 63 of the Wakf Act, provides for the
appointment of a “Mutawalli”, where a vacancy occurs in the
office of the Mutawalli of a Wakf and there is no person to be
appointed under the terms of the deed of Waqf, or where the
right of any person to act as “Mutawalli” is disputed, the Waqf
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Board is empowered to appoint any person to act as
“Mutawalli” for such period and on such conditions as it may
deem fit.
78. I may recapitulate that, in the present case, the
events appear to have unfolded in a manner that was
convenient to the persons concerned. The registration of the
trust was undertaken by Nanibi, who was “Mujawar”. There
was no deed evidencing the origin or creation of the trust or
Waqf, no document prescribing any mode of succession, and
no Waqf deed or written instrument containing instructions
regarding succession. In the application for registration of the
trust, the Mujawar merely recorded that, in respect of the
trusteeship, the mode of succession would be as decided by
the family. In respect of the Masjid, it was stated that a
person would be appointed by the Muslims, whereas, in
respect of the remaining affairs, the appointment would be
made by the family. The question, therefore, remains
unanswered as to whether a Mujawar could, in the first place,
prescribe a mode of succession. Admittedly, a caretaker
cannot claim a right to prescribe the mode of succession,
particularly in the absence of any deed or written instrument
creating the Wakf and prescribing such succession.
79. Be that as it may, when the question of
appointment of trustees or a Mutawalli arises, the stated
mode of succession provided that, in respect of the Masjid, a
person would be appointed by the Muslims or the
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congregation of Muslims, whereas, for the remaining affairs,
the appointment would be determined by the family. In this
context, if Change Report No.207 of 2014, commencing from
Page No.351 of Volume-II of the Paper Book, is considered, it
emerges that the Faruqui family passed a resolution on
13.04.2014 claiming that Badibi had resigned as a trustee,
although there is no material to demonstrate that Badibi had
ever been appointed as a trustee by any competent or
authorised authority.
80. Further, the said resolution proceeded to appoint
five members of the Faruqui family as trustees of “Maulana
Mehboob Nidan Dargah Masjid and Kabrastan”. It is
unfortunate that the Waqf Board, without even following the
mode of succession recorded in the trust registration, namely,
that a person for the Masjid was to be appointed by the
Muslims, allowed the Change Report on the basis of a
resolution passed within the Faruqui family and, on the
ground that the Change Report had not been contested,
permitted the names of the Faruqui family members to be
entered as trustees. Thus, it appears that, Waqf Board in
derogation of mode of succession stated in Trust/Waqf and
without following settled provision of Waqf Act regarding
appointment of “Mutawalli” upon self proclaimed procedure
conviniently adopted by Faruqi family endorsed change
report.
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81. It is also necessary to recall that, when the
aforesaid Change Report was placed before the Waqf Board in
2014, two members of the Dawoodi Bohra community had
already filed Change Report No.3620 of 2011, which was
pending for adjudication. The Waqf Board proceeded to
consider the Change Report of the Faruqui family without
taking into account the pendency of the Change Report filed
by the members of the Dawoodi Bohra community. Thus, the
Change Report No.207 of 2014 and the order passed thereon
cannot be treated as a valid or lawful appointment of the
Faruqui family members as “Mutawalli” or trustees. At the
cost of repetition, it may be observed that, in the absence of
any Waqf deed or written instrument prescribing the manner
of appointment of a “Mutawalli”, the Wakf Board was required
to follow the statutory mechanism prescribed under Section
63 of the Wakf Act, for appointment of a “Mutawalli”. In the
absence of compliance with the said statutory provision, any
procedure adopted by the Waqf Board contrary thereto could
not, in law, result in the valid appointment of any person as
“Mutawalli” or trustee. The claim of the Faruqui family to
have been appointed as “Mutawalli”, trustees or managers,
therefore, cannot be accepted as having any legal foundation.
82. What is required to be examined is the manner in
which the successive claims of the Faruqui family came to be
advanced and accepted. The entire sequence begins with the
registration of the trust in the year 1952-53. Nanibi, who used
to perform acts such as offering “Phool-Fatiya” and “Dhoop-
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Diva” at the holy shrine, claimed herself to be a “Mujawar”.
As a Mujawar, she proceeded to have the holy shrine
registered as a trust without producing any Wakf-nama or
written deed evidencing the origin or creation of the trust or
Waqf. The trust was registered in respect of the holy shrine
situated on Government land and in the name of “Maulana
Mehboob Dargah Masjid and Kabrastan”, despite the absence
of any documentary material establishing the source or basis
for such description. Nanibi continued to remain a “Mujawar”.
After her death, her daughter Badibi also asserted her claim
as a Mujawar. She described herself as a Mujawar before the
Charity Commissioner and thereafter made similar assertions
before the Mamlatdar. Badibi, in her statement before the
Mamlatdar, Patan, dated 17.04.1962, at Page No.282 of
Volume-II of the Paper Book, stated that, after the death of
her mother, she had taken over the work of “Mujawar”. She
further stated that her brother Dosamiya was mentally
incapacitated and, therefore, requested the Mamlatdar to
enter her name as Mujawar. She expressly stated that she
would not claim ownership over the land. She maintained that
she would continue as “Mujawar” and perform the duties
which she had been performing, including offering Dhoop-
Diva and other customary services at the holy shrine. Badibi,
therefore, continued to act as Mujawar, while at times also
asserting a claim to trusteeship, without any authentic or
competent order appointing her as a trustee and even
contrast to her previous statement. Thereafter, the sons of
Badibi also came into the picture, notwithstanding the
subsisting dispute regarding the identity and character of the
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holy shrine. In the meantime, two members of the Dawoodi
Bohra community had filed Change Report No.3620 of 2011,
which was pending for adjudication before the Waqf Board.
Despite the pendency of the said Change Report, the Faruqui
family passed an internal resolution among its members and,
contrary to the mode of succession recorded in the trust
registration, submitted Change Report No.207 of 2014. The
Change Report proceeded on the basis that there was no
context, which ultimately led the Waqf Board to enter the
names of the Farooqui family members as “Mutawalli”.
83. The entire sequence, therefore, reflects a course of
events which ultimately operated to the benefit of the Faruqui
family. This is particularly significant when considered in the
context of the principles of Muslim law, which do not
ordinarily favour hereditary succession to the office of
Mujawar or Mutawalli, and the settled position that a
Mutawalli does not hold the Waqf property as its owner but
merely administers and manages the Waqf and its properties
for the purposes for which the Waqf was created. The conduct
attributed to the Farooqui family, therefore, goes beyond the
permissible role of a Mutawalli or manager and appears to
have proceeded on the footing of treating, or attempting to
treat, the holy shrine as a personal or family property.
84 . It is trite law that fraud vitiates all acts, whether
ecclesiastical or temporal. In S.P. Chengalvaraya Naidu
(Dead) by LRs. v. Jagannath (Dead) by LRs. , the Hon’ble
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Supreme Court, in the opening paragraph of the judgment,
held as under:
"Fraud-avoids all judicial acts, ecclesiastical or temporal"
observed Chief Justice Edward Coke of England about three
centuries ago. It is the settled proposition of law that a
judgment or decree obtained by playing fraud on the court is
a nullity and honest in the eyes of law. Such a
judgment/decree - by the first court or by the highest court -
has to be treated as a nullity by every court, whether
superior or inferior. It can be challenged in any court even in
collateral proceedings.
85 . Following the dictum laid down by the Hon’ble
S.P. Chengalvaraya Naidu (supra) ,
Supreme Court in the
Supreme Court, in A.V. Papayya Sastry v. Government of
Andhra Pradesh , reported in (2007)(0)AIJEL-SC 38787 in
paragraphs 21, 22, 23 and 27 to 34, held as under:
“21. Now, it is well settled principle of law that if any
judgment or order is obtained by fraud, it cannot be
said to be a judgment or order in law. Before three
centuries, Chief Justice Edward Coke proclaimed;
“Fraud avoids all judicial acts, ecclesiastical or
temporal".
22. It is thus settled proposition of law that a judgment,
decree or order obtained by playing fraud on the Court,
Tribunal or Authority is a nullity and non est in the eye
of law. Such a judgment, decree or order by the first
Court or by the final Court has to be treated as nullity
by every Court, superior or inferior. It can be
challenged in any Court, at any time, in appeal,
revision, writ or even in collateral proceedings.
23.In the leading case of Lazarus Estates Ltd. v.
Beasley, (1956) 1 All ER 341 : (1956) 1 QB 702 : (1956)
2 WLR 502, Lord Denning observed:
“No judgment of a court, no order of a Minister,
can be allowed to stand, if it has been obtained by
fraud."
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27. In S.P. Chengalvaraya Naidu (dead) by LRs. V.
Jagannath (dead) by LRs. & Ors. (1994) 1 SCC 1 :
JT 1994 (6) SC 331, this Court had an occasion to
consider the doctrine of fraud and the effect
thereof on the judgment obtained by a party. In
that case, one A by a registered deed, relinquished
all his rights in the suit property in favour of C who
sold the property to B. Without disclosing that fact,
A filed a suit for possession against B and obtained
preliminary decree. During the pendency of an
application for final decree, B came to know about
the fact of release deed by A in favour of C. He,
therefore, contended that the decree was obtained
by playing fraud on the court and was a nullity. The
trial court upheld the contention and dismissed the
application. The High Court, however, set aside the
order of the trial court, observing that "there was
no legal duty cast upon the plaintiff to come to
court with a true case and prove it by true
evidence". B approached this Court.
28. Allowing the appeal, setting aside the judgment
of the High Court and describing the observations
of the High Court as 'wholly perverse', Kuldip
Singh, J. stated:
“The courts of law are meant for imparting justice
between the parties. One who comes to the court,
must come with clean-hands. We are constrained to
say that more often than not, process of the court
is being abused. Property-grabbers, tax- evaders,
bank-loan- dodgers and other unscrupulous
persons from all walks of life find the court -
process a convenient lever to retain the illegal-
gains indefinitely. We have no hesitation to say that
a person, who's case is based on falsehood, has no
right to approach the court. He can be summarily
thrown out at any stage of the litigation".
(emphasis supplied)
29. The Court proceeded to state: "A litigant, who
approaches the court, is bound to produce all the
documents executed by him which are relevant to
the litigation. If he withholds a vital document in
order to gain advantage on the other side then he
would he guilty of playing fraud on the court as
well as on the opposite party".
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30. The Court concluded: "The principle of 'finality
of litigation' cannot be pressed to the extent of
such an absurdity that it becomes an engine of
fraud in the hands of dishonest litigants".
31. In I ndian Bank v. Satyam Fibres (India) Pvt.
Ltd. , (1996) 5 SCC 550 : JT 1996 (7) SC 135,
referring to Lazarus Estates and Smith v. East
Elloe Rural District Council, 1956 AC 336 : (1956)
1 All ER 855 : (1956) 2 WLR 888, this Court stated;
“The judiciary in India also possesses inherent
power, specially under Section 151 C.P.C., to recall
its judgment or order if it is obtained by Fraud on
Court. In the case of fraud on a party to the suit or
proceedings, the Court may direct the affected
party to file a separate suit for setting aside the
Decree obtained by fraud. Inherent powers are
powers which are resident in all courts, especially
of superior jurisdiction. These powers spring not
from legislation but from the nature and the
Constitution of the Tribunals or Courts themselves
so as to enable them to maintain their dignity,
secure obedience to its process and rules, protect
its officers from indignity and wrong and to punish
unseemly behaviour. This power is necessary for
the orderly administration of the Court's business".
(emphasis supplied)
32. In U nited India Insurance Co. Ltd. v.
Rajendra Singh & Ors. , (2000) 3 SCC 581 : JT 2000
(3) SC 151, by practising fraud upon the Insurance
Company, the claimant obtained an award of
compensation from the Motor Accident Claims
Tribunal. On coming to know of fraud, the
Insurance Company applied for recalling of the
award. The Tribunal, however, dismissed the
petition on the ground that it had no power to
review its own award. The High Court confirmed
the order. The Company approached this Court.
33. Allowing the appeal and setting aside the
orders, this Court stated;
“It is unrealistic to expect the appellant company
to resist a claim at the first instance on the basis of
the fraud because appellant company had at that
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stage no knowledge about the fraud allegedly
played by the claimants. If the Insurance Company
comes to know of any dubious concoction having
been made with the sinister object of extracting a
claim for compensation, and if by that time the
award was already passed, it would not be possible
for the company to file a statutory appeal against
the award. Not only because of bar of limitation to
file the appeal but the consideration of the appeal
even if the delay could be condoned, would be
limited to the issues formulated from the pleadings
made till then.
Therefore, we have no doubt that the remedy to
move for recalling the order on the basis of the
newly discovered facts amounting to fraud of high
degree, cannot be foreclosed in such a situation. No
Court or tribunal can be regarded as powerless to
recall its own order if it is convinced that the order
was wangled through fraud or misrepresentation of
such a dimension as would affect the very basis of
the claim.
The allegation made by the appellant Insurance
Company, that claimants were not involved in the
accident which they described in the claim
petitions, cannot be brushed aside without further
probe into the matter, for, the said allegation has
not been specifically denied by the claimants when
they were called upon to file objections to the
applications for recalling of the awards. Claimants
then confined their resistance to the plea that the
application for recall is not legally maintainable.
Therefore, we strongly feel that the claim must be
allowed to be resisted, on the ground of fraud now
alleged by the Insurance Company. If we fail to
afford to the Insurance Company an opportunity to
substantiate their contentions it might certainly
lead to serious miscarriage of justice".
(emphasis supplied)
34. Mr. Venugopal, no doubt, contended that
when the order passed by the earlier Division Bench
was not interfered with by this Court and SLPs were
dismissed, it was not open to the High Court
thereafter to entertain recall-applications and grant
the relief of recalling of earlier orders. According to
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him, such an exercise of power was unlawful and
abuse of process of law.
86. Fraud becomes an engine of injustice in the hands
of a dishonest litigant. It is a settled principle of law that fraud
vitiates all acts. Aptly the Courts in India, in exercise of their
inherent powers, are competent to recall any order obtained
by practising fraud upon the Court.
87. The present case is one where fraud has been seen
visibly perpetrated. What initially commenced as a journey or
an arrangement in the capacity of a Mujawar by the husband
of Nanibi continued, to the exclusion of others, until the
Faruqi family ultimately became the “Mutawalli”, thereby
bypassing the statutory provisions and the prescribed mode of
succession. The fraud is further evident from the registration
of the holy shrine under the name “Maulana Mehbub Dargah
Masjid and Kabrastan”, without there being any source,
evidence, or documentary material to establish that the holy
shrine was, in fact, known as or established under the said
name. Such a course of action was no less than convenient
expedient adoption to advance a particular claim and to
benefit family. Such conduct amounts to fraud perpetrated
upon the holy shrine and, consequently, vitiates all acts
undertaken in favour of the appellants.
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88. Now, let us refer to the statutory provisions
contained in Section 50 of the Wakf Act, which prescribe the
statutory duties of a “Mutawalli”. Section 50 of the Wakf Act,
defines the duties of a Mutawalli as under:
“50. Duties of mutawalli. — It shall be the duty of every
mutawalli—
(a) to carry out the directions of the Board in accordance
with the provisions of this Act or of any rule or order made
thereunder;
(b) to furnish such returns and supply such information or
particulars as may from time to time be required by the
Board in accordance with the provisions of this Act or of any
rule or order made thereunder;
(c) to allow inspection of waqf properties, accounts or
records or deeds and documents relating thereto;
(d) to discharge all public dues; and
(e) to do any other act which he is lawfully required to do by
or under this Act.
90. Thus, in view of the above, the “Mutawalli” is
required to carry out the work under discretion of Waqf
Board. He cannot gain ownership property over holly shirne.
The Faruqi family, contradictorily acted in a manner and tried
to control over the holy shrine as family property. At this
juncture, it is apposite to let me recall that the Waqf is
admittedly almighty God’s property but here Faruqui Family
attempted to convert the same as personal property.
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91. Section 64 of the Waqf Act recognises the power of
the Waqf Board to remove a Mutawalli in the circumstances
and on the grounds specified therein. Therefore, the conduct
attributed to the Faruqui family, particularly their attempt to
take over the management and control of the holy shrine,
cannot be sustained in law and is wholly unfounded.
92. The next issue that arises for consideration is
whether there has been any violation of the principles of
natural justice. Learned counsel for the appellants, Mr.
M.T.M. Hakim, vehemently argued on this issue that, in the
second round of litigation, the Waqf Board did not afford a
specific and effective opportunity of hearing to the appellants
before passing the resolution. In the written submissions,
learned counsel has referred to various dates of proceedings
and submitted that, except on the initial date when the matter
was taken up afresh before the Waqf Board, the proceedings
were adjourned on account of the absence of the requisite
quorum. Thereafter, the Waqf Board was dissolved and, after
its reconstitution, the appellants raised a preliminary
objection by filing an application. It is submitted that, without
adjudicating upon the said preliminary objection, particularly
the objection regarding the maintainability of the Change
Report proceedings, the Wakf Board proceeded to pass the
resolution dated 24.04.2025. According to learned counsel,
failure on the part of the Waqf Board to adjudicate upon the
preliminary objection and to afford the appellants a fair and
effective opportunity of hearing before deciding the Change
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Report amounts to a violation of the principles of natural
justice. It is, therefore, contended that the resolution passed
by the Waqf Board and subsequently confirmed by the Waqf
Tribunal is rendered non est in law.
93. Before this Court addresses the issue of violation of
the principles of natural justice, as well as the issue of
whether there was any lack of quorum of the Board at the
outset, it would be appropriate to refer to Section 32(2) of the
Waqf Act, which deals with the powers and functions of the
Board. Section 32(2)(n) of the Waqf Act specifically
enumerates one of the powers of the Board, which reads as
under:
“32(2)(n) to investigate and determine the nature and
extent of Waqf and Waqf property, and to cause, whenever
necessary, a survey of such Waqf property”.
94. Section 32(2)(n) empowers the Waqf Board to
investigate and determine the nature and extent of Waqf
property and, whenever necessary, to cause a survey of such
Waqf property.
95. Section 40 of the Waqf Act provides for
determination as to whether a particular property is Waqf
property or not. The provision reads as under:
“40. Decision if a property is waqf property.—
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(1) The Board may itself collect information regarding any
property which it has reason to believe to be waqf property
and if any question arises whether a particular property is
waqf property or not or whether a waqf is a Sunni waqf or a
Shia waqf, it may, after making such inquiry as it may deem
fit, decide the question.
(2) The decision of the Board on a question under sub-section
(1) shall, unless revoked or modified by the Tribunal, be
final.
(3) Where the Board has any reason to believe that any
property of any trust or society registered in pursuance of
the Indian Trusts Act, 1882 (2 of 1882) or under the
Societies Registration Act, 1860 (21 of 1860) or under any
other Act, is waqf property, the Board may notwithstanding
anything contained in such Act, hold an inquiry in regard to
such property and if after such inquiry the Board is satisfied
that such property is waqf property, call upon the trust or
society, as the case may be, either to register such property
under this Act as waqf property or show cause why such
property should not be so registered:Provided that in all
such cases, notice of the action proposed to be taken under
this sub-section shall be given to the authority by whom the
trust or society had been registered.
(4) The Board shall, after duly considering such cause as may
be shown in pursuance of notice issued under sub-section
(3), pass such orders as it may think fit and the order so
made by the Board, shall be final, unless it is revoked or
modified by a Tribunal.
96. A plain reading of Section 40 shows that the Board
may itself collect information regarding any property which it
has reason to believe to be Waqf property. Where any
question arises as to whether a particular property is Waqf
property or not, or whether it is Sunni Waqf property or Shia
Waqf property, the Board may decide such question.
97. In view of Section 40(2), the decision of the Board
shall, unless revoked or modified by a Tribunal, shall be final.
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98. Section 40(3) provides that where the Waqf Board
has reason to believe that any property of a trust or society
registered under the Indian Trusts Act, the Societies
Registration Act, or any other law is Waqf property, the Board
is empowered to hold an inquiry, notwithstanding anything
contained in such law. If, after such inquiry, the Board is
satisfied that such property is Waqf property, it may call upon
the trust or society, as the case may be, either to register the
property as Waqf property or to show cause why the property
should not be so registered. The proviso to Section 40(3)
specifically provides for issuance of notice of the proposed
action under the said subsection to the affected party. Section
40(4) further provides that, after considering the cause shown
pursuant to the notice issued under subsection (3), the Board
may pass such order as it thinks fit.
State of Andhra
99. The Hon’ble Supreme Court in
Pradesh (now State of Telangana) v. Andhra Pradesh State
Wakf Board & Ors. , reported in (2022) 20 SCC 383 , examined
the question as to whether the power to investigate and
determine the nature of a property is an administrative
function or a quasi-judicial function. The Hon’ble Supreme
Court considered the fact that an inquiry is required to be
conducted before any property can be declared to be Waqf
property. In paragraphs 164, 165 and 166, the Hon’ble
Supreme Court observed as under:
“164. Therefore, the Wakf Board has power to determine the
nature of the property as wakf under Section 32(2)(n) but
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after complying with the procedure prescribed as contained
in Section 40 . Such procedure categorically prescribes an
inquiry to be conducted. The conduct of inquiry pre-
supposes compliance of the principles of natural justice so as
to give opportunity of hearing to the affected parties. The
proceedings produced by the Wakf Board do not show any
inquiry conducted or any notice issued to either of the
affected parties. Primarily, two factors had led the Wakf
Board to issue the Errata notification, that is, order of the
Nazim Atiyat and the second survey report. Both may be
considered as material available with the Wakf Board but in
the absence of an inquiry conducted, it cannot be said to be
in accordance with the procedure prescribed under Section
40 of the 1995 Act.
165. Since there is no determination of the fact whether the
property in question is a wakf property after conducting an
inquiry in terms of Section 40(1) of the 1995 Act, the Errata
notification cannot be deemed to be issued in terms of
Section 32 read with Section 40 of the 1995 Act. Such
determination alone could have conferred right on the
affected parties to avail the remedy of appeal under Section
40 of the 1995 Act.
166. The reliance on proviso to Section 40(3) of 1995 Act,
contemplating notice to the registered trust or society in
case the Board has any reason to believe that any property is
Wakf and is registered under any of the Acts is absolutely
misconceived. These provisions deal with an altogether
different situation. A trust or society is already registered
but the if Board finds it to be Wakf, the statute contemplates
notice to the authority. It does not mean that such trust or
society is not required to be heard. The hearing to Trust or
Society would also be as per the principles of natural justice.
(5) Whether the second survey report and/or the order of the
Atiyat Court could be said to be sufficient material with the
Wakf Board to publish the impugned Errata notification in
exercise of powers vested in Section 5 of the 1995 Act?
100. Thus, the Board is a quasi-judicial authority. While
inquiring into the nature of a property as Waqf property, the
Board acts as a quasi-judicial authority and not merely as an
administrative authority or in the discharge of an
administrative function. The statute further provides for an
inquiry and requires that notice of the proposed action under
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the relevant Sub-section be given to the authority by which
the trust or society has been registered. At the same time, the
proceedings contemplated under Section 40 of the Act cannot
be equated with a full-fledged trial. The term “inquiry” is not
defined in the Waqf Act. However, the ordinary meaning of
the term “inquiry” is relevant. It is derived from the verb
“inquire”, meaning to seek information by questioning,
investigating or examining. Thus, the expression “inquiry” is
of wide import. In its ordinary sense, it connotes an act of
seeking information, investigation or examination for the
purpose of ascertaining facts. An inquiry is, therefore, distinct
from a trial. A trial is a judicial proceeding in which the
parties to a dispute are permitted to present their respective
cases and the dispute is adjudicated upon on the basis of an
adversarial process. An inquiry, on the other hand, is
primarily directed towards ascertaining facts and collecting
information. Therefore, an inquiry and a trial are clearly
distinguishable in their scope, nature and purpose.
101. An argument was canvassed by learned counsel on
behalf of the appellants that they were not afforded an oral
hearing and that the denial of such an opportunity of oral
hearing amounts to a breach of the principles of natural
justice. Secondly, it is contended that the application dated
12.02.2025 seeking adjudication of the preliminary issues
relating to the jurisdiction and maintainability of the
proceedings had not been decided.
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102. To meet the aforesaid submissions of the
appellants, it is necessary to examine the scope of Sections 32
and 40(3) read with Section 40 of the Wakf Act, which provide
for the procedure of inquiry and do not contemplate a full-
fledged trial or a detailed hearing. Nevertheless, it appears
that the appellants filed written submissions in the Waqf
proceedings on 08.10.2025. In paragraph 7 of the said written
submissions, under the heading “Merits of the Case”, the
appellants also advanced submissions on the merits of the
case. The said written submissions were filed before the Waqf
Tribunal in the Waqf proceedings. So far as the proceedings
before the Waqf Board are concerned, on a conjoint reading of
Sections 32, 40 and 41 of the Waqf Act, the statute does not
contemplate an adjudicatory process akin to a trial. It
contemplates an inquiry. Consequently, the question of
framing or adjudicating preliminary issues does not arise in
the manner contended by the appellants. The record further
indicates that, after the constitution of the Waqf Board, the
proceedings were adjourned on several occasions, at times on
account of want of quorum and, on other occasions, at the
request of the learned advocates appearing for the parties.
The proceedings thereafter continued from time to time.
Ultimately, on 24.04.2025, the Waqf Board passed a
resolution in its meeting. The minutes of the meeting record
that the requisite quorum was present and that eight
members of the Waqf Board attended the meeting. One of the
members raised an objection; however, the matter was
considered and decided by the majority, and Waqf Board
passed resolution.
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103. It is important to note that the proceedings before
the Waqf Board was constituted in the second round of
litigation. In the first round of litigation, the matter had
travelled up to this Court, and the findings recorded by the
Waqf Board and the Waqf Tribunal were quashed and seta
aside ultimately matter was remanded for consideration
afresh. At no point during the first round of litigation, which
culminated before this Court, did the appellants raise any
contention regarding the jurisdiction or maintainability of the
proceedings. It was only in the second round of litigation,
after having participated in the proceedings, that, on
12.02.2025, the learned advocate appearing for the appellants
filed an application raising preliminary objections. Apt to note
that the application raising preliminary objection was neither
signed by the parties nor supported by an affidavit. The
circumstances in which the application came to be filed
clearly indicate that it was intended to delay the proceedings
before the Waqf Board and to avert mandate of this Court to
complete second round of litigation in time bound manner.
Secondly, there was no justification for the
appellants to file such an application in the second round of
litigation when no such application had been filed during the
first round of litigation, which had ultimately culminated
before this Court. Therefore, the mere separate non-
adjudication of such an application, which itself was not
maintainable, cannot be treated as causing any prejudice to
the appellants or as furnishing a ground to challenge the
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proceedings. So far as the issue of a fair opportunity of
hearing is concerned, as noticed hereinabove, the appellants
had filed written submissions before the Waqf Tribunal, which
also contained submissions on the merits of the case.
104. The Hon’ble Supreme Court, in State Bank of India
v. Amit Iron Private Limited and Others , 2026
LiveLaw(SC)337, has considered the issue of the principles of
natural justice and the circumstances in which a breach
thereof can be alleged. In paragraphs 76 to 78, the Hon’ble
Supreme Court observed as under:
“76. The ultimate objective of the principles of natural
justice is to ensure fairness in action and prevent
miscarriage of justice. It has always been held to be a
flexible concept. As to what rule of natural justice should
apply was to depend, to a great extent, on the facts and
circumstances of the case, the framework of the law under
which the enquiry is held and the constitution of the tribunal
or the body of persons appointed for that purpose. In A.K.
Kraipak and others v. Union of India and others9, this Court
held as follows:-
“20. The aim of the rules of natural justice is to
secure justice or to put it negatively to prevent
miscarriage of justice. These rules can operate
only in areas not covered by any law validly made.
In other words they do not supplant the law of the
land but supplement it. The concept of natural
justice has undergone a great deal of change in
recent years. In the past it was thought that it
included just two rules namely: (1) no one shall be
a judge in his own case (Nemo debet esse judex
propria causa) and (2) no decision shall be given
against a party without affording him a reasonable
hearing (audi alteram partem). Very soon
thereafter a third rule was envisaged and that is
that quasi-judicial enquiries must be held in good
faith, without bias and not arbitrarily or
unreasonably. But in the course of years many
more subsidiary rules came to be added to the
rules of natural justice. Till very recently it (1969)
2 SCC 262 was the opinion of the courts that
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unless the authority concerned was required by
the law under which it functioned to act judicially
there was no room for the application of the rules
of natural justice. The validity of that limitation is
now questioned. If the purpose of the rules of
natural justice is to prevent miscarriage of justice
one fails to see why those rules should be made
inapplicable to administrative enquiries. Often
times it is not easy to draw the line that
demarcates administrative enquiries from quasi-
judicial enquiries. Enquiries which were
considered administrative at one time are now
being considered as quasi-judicial in character.
Arriving at a just decision is the aim of both quasi-
judicial enquiries as well as administrative
enquiries. An unjust decision in an administrative
enquiry may have more far reaching effect than a
decision in a quasi-judicial enquiry. As observed
by this Court in Suresh Koshy George v.
University of Kerala [1968 SCC OnLine SC 9] the
rules of natural justice are not embodied rules.
What particular rule of natural justice should
apply to a given case must depend to a great
extent on the facts and circumstances of that case,
the framework of the law under which the enquiry
is held and the constitution of the Tribunal or
body of persons appointed for that purpose.
Whenever a complaint is made before a court that
some principle of natural justice had been
contravened the court has to decide whether the
observance of that rule was necessary for a just
decision on the facts of that case.” (Emphasis
supplied)
77. In Natwar Singh v. Directorate of Enforcement and
Another10 , quoting with approval the judgment of the House
of Lords in Lloyd v. McMahon11 and reiterating the (2010)
13 SCC 255 (1987) 1 All ER 1118 (HL) fundamental principle
that canons of natural justice have to be adapted to the
circumstances, this Court held as under:-
“26. Even in the application of the doctrine of fair
play there must be real flexibility. There must also
have been caused some real prejudice to the
complainant; there is no such thing as a merely
technical infringement of natural justice. The
requirements of natural justice must depend on
the circumstances of the case, the nature of the
inquiry, the rules under which the tribunal is
acting, the subject-matter to be dealt with and so
forth. Can the courts supplement the statutory
procedures with requirements over and above
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those specified? In order to ensure a fair hearing,
courts can insist and require additional steps as
long as such steps would not frustrate the
apparent purpose of the legislation.
27. In Lloyd v. McMahon, Lord Bridge observed:
“My Lords, the so-called rules of natural justice
are not engraved on tablets of stone. To use the
phrase which better expresses the underlying
concept, what the requirements of fairness
demand when any body, domestic, administrative
or judicial, has to make a decision which will
affect the rights of individuals depends on the
character of the decision-making body, the kind of
decision it has to make and the statutory or other
framework in which it operates. In particular, it is
well established that when a statute has conferred
on any body the power to make decisions affecting
individuals, the courts will not only require the
procedure prescribed by the statute to be
followed, but will readily imply so much and no
more to be introduced by way of additional
procedural safeguards as will ensure the
attainment of fairness.”
28. As Lord Reid said in Wiseman v. Borneman :
“… For a long time the courts have, without
objection from Parliament, supplemented
procedure laid down in legislation where they
have found that to be necessary for this purpose.”
29. It is thus clear that the extent of applicability
of the principles of natural justice depends upon
the nature of inquiry, the consequences that may
visit a person after such inquiry from out of the
decision pursuant to such inquiry.” (Emphasis
supplied)
78. The flexibility in the concept of natural justice is
inevitable as it encompasses different layers and as to which
one would be applicable would, as held in A.K. Kraipak
(supra), depend on the nature of the enquiry and the
framework of the law under which it is held. For example, an
opportunity to be served with a show cause notice and
eliciting a reply with an obligation to pass a reasoned order
is one facet of natural justice. Another facet is the grant of
an interview to the noticee whereby he is personally heard
by virtue of an oral hearing. A yet higher facet is where in
the said process of a personal hearing he is given the facility
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of cross-examination of witnesses. To top it all, could be such
cases where the opportunity to be represented by a lawyer
or a legally trained mind is guaranteed.
105. Under the heading “Principles of Natural Justice
Objectives and Conflicts”, the Hon’ble Supreme Court
considered the relevant principles in paragraphs 76 to 78.
Thereafter, under the heading “Right to Personal Hearing
vis-a-vis Discretion of the Authority”, the Hon’ble Supreme
Court considered the issue in paragraphs 79 and 80, which
read as under:-
“79. In the absence of any rule being prescribed in the
statute or rule or in regulations or in any policy, what would
meet the requirements effectively would depend on the
circumstances and the nature of the enquiry. One cannot
start with the assumption that as of right, a noticee is
entitled to personal hearing. In Madhya Pradesh Industries
Ltd. v. Union of India And Others12, K. Subba Rao J., as the
learned Chief Justice then was, felicitously explained the
situation thus:-
“10. As regards the second contention, I do not
think that the appellant is entitled as of right to a
personal hearing. It is no doubt a principle of
natural justice that a quasi-judicial tribunal cannot
make any decision adverse to a party without
giving him an effective opportunity of meeting any
relevant allegations against him. Indeed Rule 55
of the Rules, quoted supra, recognizes the said
principle and states that no order shall be passed
against (1966) 1 SCR 466 any applicant unless he
has been given an opportunity to make his
representations against the comments, if any,
received from the State Government or other
authority. The said opportunity need not
necessarily be by personal hearing. It can be by
written representation. Whether the said
opportunity should be by written representation
or by personal hearing depends upon the facts of
each case and ordinarily it is in the discretion of
the tribunal. The facts of the present case disclose
that a written representation would effectively
meet the requirements of the principles of natural
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justice…. .” (Emphasis supplied)
80. Elucidating on the difference between a right to a
personal hearing in the noticee and the discretion of the
authority to grant one in a given case and further explaining
how it was not an incident of natural justice that personal
hearing must be given (except in proceedings in courts of
law) a Constitution Bench of this Court in Union of India v.
Jyoti Prakash Mitter13 , speaking through Chief Justice J.C.
Shah observed as under:-
“26. Article 217(3) does not guarantee a right of
personal hearing. In a proceeding of a judicial
nature, the basic rules of natural justice must be
followed. The respondent was on that account
entitled to make a representation. But it is not
necessarily an (1971) 1 SCC 396 incident of the
Rules of natural justice that personal hearing must
be given to a party likely to be affected by the
order. Except in proceedings in Courts, a mere
denial of opportunity of making an oral
representation will not, without more, vitiate the
proceeding. A party likely to be affected by a
decision is entitled to know the evidence against
him, and to have an opportunity of making a
representation. He however cannot claim that an
order made without affording him an opportunity
of a personal hearing is invalid. The President is
performing a judicial function when he determines
a dispute as to the age of a Judge, but he is not
constituted by the Constitution or a court.
Whether in a given case the President should give
a personal hearing is for him to decide. The
question is left to the discretion of the President
to decide whether an oral hearing should be given
to the Judge concerned. The record amply
supports the view that the President did not deem
it necessary to give an oral hearing. There were
no complicated questions to be decided by the
President…...” (Emphasis supplied)
106. Coming back to the case on hand, Sections 32, 40
and 41 of the Waqf Act, do not contemplate, in an inquiry of
the nature undertaken by the Waqf Board, a mandatory oral
or personal hearing in the manner of a full-fledged
adjudicatory trial. The appellants, having participated in the
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proceedings and having pursued the litigation through the
second round, cannot now contend that they were denied a
sufficient or fair opportunity of hearing in the inquiry
proceedings.
107. There is also a contention that the Chief Executive
Officer (CEO) has assigned reason to Resolution passed by
Waqf Board without hearing parties. Apt to note that, the
CEO, being an ex officio Secretary under Section 23(3) of the
Waqf Act, is required to attend the proceedings of the
meetings of the Waqf Board. Rule 47 of the Gujarat State
Waqf Board Rules, 1923, more particularly, Rule 47(vi),
provides “ carry into effect the the resolution of the Board” .
108. Rule 47 of the Gujarat State Waqf Board Rules,
1923, is consistent with the Scheme of Section 23 of the Waqf
Act. Rule 47, more particularly, Rule 47(vi), specifically
directs the Chief Executive Officer (CEO) to carry into effect
the resolutions of the Board.
109. Section 54 of the Gujarat State Waqf
Rules/Regulations, 2000, provides for the manner in which the
functions are to be discharged in the absence of the
Secretary. The said provision reads as under:
“54. Authentication of order of the Board:-
(1) The Secretary shall authenticate the orders and decisions
of the Board.
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(2) The common seal of the Board shall remain in the
custody of the Chief Executive Officer.
(3) All correspondence emanating from the Board shall be in
the name of the Chief Executive Officer and all
correspondence with the Board shall be addressed tot he
Chief Executive Officer”.
110. Thus, the Chief Executive Officer has the powers
and functions of the Secretary and is required to authenticate
the orders and resolutions of the Board.
111. In view of Section 23(3) of the Waqf Act, the Chief
Executive Officer is an ex officio Secretary of the Board.
Section 25 of the Waqf Act, provides for the duties and powers
of the Chief Executive Officer. Section 26 of the Waqf Act
deals with the powers of the Chief Executive Officer in respect
of the orders or resolutions of the Board.
112. Considering the aforesaid provisions and the
Scheme of the Act, it is evident that the resolution passed by
the Board on 24.04.2025 was validly passed in a duly
constituted and quarated meeting. The CEO, being the ex
officio Secretary of the Board, who was present in Board
meeting following his statutory duties, was required to
authenticate and give effect to the resolution of the Board.
Accordingly, by the order dated 30.04.2025 Resolution was
duly authenticated as competent authority. There is,
therefore, no anomaly or irregularity in the resolution passed
by the Board or in the consequential order.
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113. At thus juncture let refer paragraph 25 to 30 of the
impugned judgment passed by Waqf Tribunal. There
observations clinch entire issue, which are reproduced as
under:
“25. Looking at the revenue records, the trustees have
transferred the properties with three other Survey Nos. 915,
916 and 936 to their own names, even though they belong to
the Government.
(25.1) Revenue Entry No. 244, Pir Maulana Sanstha,
Anawada, munjawar Jamaluddin Kutbuddin, only for
worship-service to Survey Nos. 911, 915 and 936, who died
on 27-06-1948. Revenue Entry No. 979, dtd.11-06-1962,
reflects that Survey No. 911,915,936 were stood on the
name of Pir Maulana Saheb and Jamaluddin Kutbuddin was
munjawar who died on 27-06-1948, his daughter Badibi
applied and requested to enter her name as munjawar and
entry was made as applied. But on close scrutiny we find
that after entry, a notice issued under Section-135(D) of the
Bombay Land Revenue Code, 1879, on 08-08-1962 for
certification of the Revenue Entry No. 979. Then Revenue
Authority made an endorsement that it cannot be certified
merely on the basis of the application on 24-04-1963
because it is not done from taluka place. Thereafter,
Revenue Authority had dismissed Revenue Entry No.979 on
18-06-1963 by assigning reason that entry be made after the
name entered from taluka place. So, we can infer that the
Revenue Entry No. 244 had become ineffective as it was not
certified in revenue proceeding.
(25.2) However, Revenue Entry No.1246, dtd. 26-08-1967,
mutated name of Faruqui Badibi D/o. Jamaluddin Kutbuddin
as an heir of Nanibi Wd/o. Jamaluddin Kutbuddin who died
on 11-02-1960, for the Survey No.911,915,935 and 936. The
Revenue Entry No. 1246 was made in Survey No. 911, 915,
935, and 936, Which was wrong and the Deputy Collector
Shri, Patan had ordered to reject the R.T.S. Case No.
265/2018 dated 03-05-2019. No appeal had been filed
against it till date.
(25.3) It also important that Entry No.244 to enter the name
of munjawar (worship-service) Jamaluddin Kutbuddin to
Survey Nos. 911, 915 and 936 was baseless. There is no
evidence on record to show how Jamaluddin Kutbuddin could
be a munjawar in these lands which has no masjid, mazar or
dargah therein and who appointed him as munjawar. The
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care taker is referred as munjawar. So, munjawar is a type
of caretaker. A person appointed by auqaf as either
caretaker or munjawar, does acts of lighting the lamp at
dargah, flowering it, gilaf and looks after property of dargah.
He can never be an owner of the property. There is no proof
produced who appointed Jamaluddin Kutbuddin as munjawar
for the land Survey No. 911,915, 935 and 936.
(25.4) Moreover, the trust registered in the year 1953,
shows only land Survey No.935. But as per the evidence
produced by the respondents munjawar was appointed by
Bohra community before the registration of trust. Therefore,
it has been rightly observed by the Wagf Board that with a
view to usurpingas the land Survey No.911,915, 935 and
936, tried to mutated as owner of the lands though they
were not owner of these lands
(25.5) Moreover, Entry No. 1150, dtd.03-09-1967 (After
registration of trust on 22-01-1953) also show the name of
Amichand Jetha as tenant & Jalaluddin Kutbuddin as
munjawar of Pir Maulana Saheb Sansthan was in Survey No.
936. The entry also shows the date of 09-10-1961 according
to Section-32-G of The Bombay Tenancy and Agricultural
Lands Act, 1948. But when Revenue Authority had dismissed
Revenue Entry No.979 on 18-06-1963 and there is no proof
of Jalaluddin being a munjawar then Entry No.1150, dtd.03-
09-1967 is valueless and seems to be made with ulterior
motive. The name of Balkrishna Ramchand was also entered
on 15-11-1969 by Revenue Entry No. 1283. It is also on
record that Revenue Entry Nos.683, 686 & 695 entered on
the name of Amtha Mala for the revenue Survey No.911, 915
& 936 respectively on 25-03-1957 which was certified on 09-
07-1957 as protected tenant.
(25.6) When lands Revenue Survey No.911, 915 & 936 are
shown as protected tenant in the year 1957. The application
dtd.05-07-2011 is produced by the appellants, at Annexure-
E, page-55 of the appeal-memo, filed by the Mohammed
Hasan Punavala and Murtaza Sirazbhai Bohra- Samivala,
Dawoody Bohra. It shows in para-3.3 that since Solanki Yug
the religious property was occupied and owned by one
KANBI couple of village Anavada which was popularly known
as Anhilvad & at the relevant point of time in approx.
Ed.1067, one Shri Hazarat Abdulla visited the area and
performed many miracles & number of people adopted
Muslim religion following him. Thereafter religious property
came to be donated by above referred KANBI couple. But we
find no refence of KANBI couple and nothing is found in the
revenue record in the present context. Mark.32/3 shows the
reference of Survey No.936 as Devsthan land Pir Malana
Sansthan and munjawar Jamaluddin Kutbuddin of Patan but
also shows different person as farmer and they were
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cultivating the land. Without the presence of substantial
revenue record and no dargah, mazar or masjid therein, how
it become a property of the waqf when it was Devsthan land.
There is also no proof that it was given as Devsthan Inam
land but any how the entry made in old revenue record. In
addition Devsthan Inam was abolished after the Gujarat
Devasthan Inams Abolition Act, 1969. There is no proof
produced or on revenue record after the year 1969 to show
that such land was regranted. When there is proof of land
given to sansthan, the compensation did not required to be
paid in accordance with Gujarat Devasthan Inams Abolition
Act, 1969. Imoprtantly, the Gujarat Government Revenue
Department website arora.gov.in shows the Land Survey
No.915 as administered by the Mamlatdar Patan & Land
Survey No.911 & 936 as Government-waste land even today
in 7/12 patrak.
(25.7) Therefore, we decide that the land in question before
us Survey No.911,915, 935 & 936 are government land.
(26) Conversion of Sunni Hanafi- Barelvi creed into Shia
creed ::
(26.1) Shia or Sunni ::: Ld. Advocate Mr. Hakim for the
appellants have argued that Maulana Mehbub Dargah has
been continuously running since 14 th century AD as a waqf
following Sunni Hanafi- Barelvi creed. As a part of
conspiracy, the respondent No.3 applied to the Waqf Board
on 16-07-2011 to change the name of the Maulana Mehbub
Dargah, Masjid and Kabrastan to Maulana Yakub Saheb
Dargah and Dawoodi Bohra Samaj Kabrastan and alogwith
this it ws requested that Sunni Hanafi Barelvi waqf be
converted into a Shia waqf. To change the creed of waqf is
unconstitutional and illegal as perr the application.
However, the order was passed by the Waqf Board to
convert Sunni Hanafi- Barelvi into a Shia waqf. The
appellants have relied on the following judgemnt of Sardar
Svedna Taher Saifuddin Saheb Vs. State of Bombay, AIR
1962 SC 853.
(26.2) While it is submitted by the respondent No.1 that from
entire events and record, it seems that the dispute between
parties is of encroacher and & Shia community and it is not
dispute between Sunni and Shia as claimed by he appellants
and no other Sunni come forward before the Waqf Board in
any form to support the appellants. Moreover, it is a clever
move of grabbing with an intension not to hand over the
properties to Shia and had actually registered the trust as
Sunni. The appellants are trying to divert the issue inti Sunni
versus Shia to protect their illegal action & possession of the
property.
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(26.3) The Ld Advocate Mr. Nizam Pasa (Proxy advocate of
Jamshed Kavina Exh.27) argued that according to Section-40
& Section-41 of the Waqf Act, 1995, the Waqf Board has 2
absolute power to inquire about whether the wagf is a Sunni
waqf or Shia waof and amend the register at any time.
Ahmedabad Razakhan Barelvi's followers are Barelvi sect in
which quawalli is ban but the saint appellants are following
is Chistia in which quawalli is not ban and it shows that the
appellants are wrong.
(26.4) Considering the rival contentions and submission,
relving upon the facts and conclusions, without repeatation,
in short, we are of the view that the property belongs to
Maulana Yakub Yakub Saheb Dargah and Dawoodi Bohra
Kabrastan Pir Ni Jago from 1916-17 to 1948-49 but it was
registered as Maulana Mehbub Dargah, Masjid and
Kabrastan. Where there is a question whether the waqf is a
Sunni waqf or Shia waqf, then Waqf Board has power to
inquire and amend the waqf register at any time as per the
provision of Section-40 & Section-41 of the Waqf Act, 1995.
The Waqf Board has not specifically passed the order to
change the creed but the question is raised by the appellants
because the change of name shows the conversion from
Sunni waqf to Shia waqf. Obviously when the name of the
waqf has been changed, it leads to change the name of
creed. The judgment relied on by the appellants in case of
Sardar Syedna Taher Saifuddin Saheb Vs. State of
Bombay, AIR 1962 SC 853, is under Section-2 & 3 of
Bombay Prevention of Excommunication Act, 1949 regarding
validity excommunication of member of any community in
context of Section-3 of Bombay Prevention of
Excommunication Act, 1949 where it was evident from the
religious faith and tenets of the Dawoodi Bohra community
that the exercise of the power of excommunication by its
religious head on religious grounds formed part of the
management of its affairs in matters of religion and
impugned Act in making even such excommunication invalid
infringed the right of the community under Art. 26(b) of the
Constitutation. We are of the view that the judgment relied
on is between Shia & Shia and for the excommunication by
the religious head of Dawoodi Bohra community. So, it has
no relevance with the question raised by the appellants
regarding conversion of Sunni waqf to Shia waqf after the
name changed and the judgment is not helpful to the
appellants in the facts and circumstances as they are totally
different.
(26.5) The appellants have relied on the following judgemnt
of A.P. State Wakf Board, Hyderabad Vs. All-India Shia
Conference (Branch), A.P. And Others reported in
(2000) Supreme Court Cases 528
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A.P. State Wakf Board, Hyderabad Vs. All-India Shia
Conference (Branch), A.P. And Others (2000) Supreme
Court Cases 528
Muslim Law Wakfs Generally Shia or Sunni wakf -
Determination of "Ashurkhanas, Imambaras,
Asthanas, Panjas and Alams" where Muharrum
ceremonies are performed, held, are generally, but not
invariably, Shia wakfs - In exceptional cases, such
institutions can be even Sunni wakfs Therefore, the
court cannot declare that every institution known by
the said names is a Shia wakf-Whether a particular
one of such institutions is a Shia wakf or Sunni wakf,
held, has to be decided c on evidence in relation to
that particular wakf - Hence, A.P. High Court's
decision affirming the City Civil Court,
Secunderabad's declaration that such institutions in
Krishna and Guntur Districts were Shia institutions,
set aside But, the suit having been filed 37 long years
ago, and being in respect of the institutions located in
the said districts, Supreme Court refraining from
dismissing the suit or remanding the same to the trial
court at Secunderabad and instead remanding the
same to the High Court for redeciding the question
after calling for evidence not from Secunderabad Civil
Court but from the District Judges of Krishna and
Guntur with liberty to them to allocate that work to
one of their Additional District Judges or a Sub-Judge
- Civil Procedure Code, 1908, Or. 41 Rr. 27(1)(b), 28
and 25 In the peculiar circumstances of the case,
Supreme Court directing the High Court to call for
evidence from courts other than that whose decision
was impugned before High Court - Words and phrases
"A requirement of the court" and "other substantial
cause" - Wakf Act, 1954, Ss. 25, 26 and 56
The judgment relied on shows possibility of Sunni Waqfs in
exceptional cases. But here it has been proved by substantial
documentary evidences of government revenue record that it
is a Shia Waqf, then it is not helpful to the appellants.
(26.6) Hence, the conversion of Waqf Board from Sunni
Hanafi- Barelvi into a Shia waqf is automatic after changing
of the name and is fully justified and we do not agree with the
submissions on behalf of the appellants.
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(27) Joining of Shri Mudar Diwanji and Sole Trustee His
Holiness (53) Syedna Saheb & Mudar Diwanji as a party
before the Waqf Board : :
(27.1) The Waqf Board has accepted the prayer of joining the
parties. The order dated 17-06-2022 of the Hon'ble High
Court in C.R.A. 179/2022 and C.R.A. 185/2022 has been
quashed by the order dated 09-11-2021 of the Gujarat State
Waqf Board. Therefore, the details regarding the addition of
Shri Mudar Diwanji and Sole Trustee His Holiness (53)
Syedna Saheb as parties to the present remand case are as
follows.
(27.2) Shri Mudar Diwanji, of Lunawada stated that the
current waqf property has been claimed by Murtuza Sirajbhai
Bohra and Mohammad Hasan Poonawalla. Out of whom
Mohammad Hasan Poonawalla died. It has further been
stated that the main beneficiary of the disputed religious
property in this case is His Holiness (53) Syedna Saheb, so
his name is not mentioned as a party in this case. Therefore,
the direct beneficiary of these properties, is the sole trustee
His Holiness (53) Syedna Saheb, as the religious leader, has
been requested to be added as a party. The respondent No.2
relied on the judgment in case of Pruthvirajsinh N.
Jadeja(D) By Lrs. V. Jayeshkumar C. Shah reported in
2019(9) SCC 533 but it is for adding as a party in suit
challenging the sale of immovable property by power of
attorney. The sale challenged on the ground that no power to
sale was given. So, it stands on different footing and not
helpful to the respondent No.2.
(27.3) Further, if the submission of Shri Muddar Diwanji to
join His Holiness (53) Syedna Saheb and his office as parties
is taken into consideration, then the basic dispute in the said
matter is that the property of the Dawoodi Bohra community
is there and the sole trustee of all Dawoodi Bohra
organizations is His Holiness (53) Svedna Saheb, so it seems
inevitable to join the sole trustee His Holiness (53) Svedna
Saheb and his office in the said matter. Moreover, Svedna
Saheb is the sole trustee in all the waqfs, therefore, when
Mudar Diwanji is added as a party, considering all the
records submitted by Mudar Diwanji, then according to the
principles of natural justice as well as necessary parties to
the litigation in whose absence no effective order can be
passed under order-1, Rule-10 of the Code of Civil Procedure,
1908. If they are not added as a party, it will cause harm to
their right. Therefore, the claim of adding him as a party in
the submission of Shri Mudar Diwanji, the beneficiary of the
Dawoodi Bohra community, is also worthy of consideration.
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Therefore, the decision of the Waqf Board is fully justified
and does not require interference.
(28) The another dispute is determined by the Waqf
Board, whether the woman can be a munjawar or not.
(28.1) The Waqf Board has hold that in fact according to
Sunni Muslim custom a woman can never be munjawar.
However, Nanibi had disrespect the Sunni Muslim custom
and registered a trust showing her as munjawar. The person
who donated the property can appoint a mutawalli and then it
is regulated by the law. Nither munjawar nor mutawalli has
personal right of inheritance in the waqf property because it
is permanently dedicated to Allah permanently, by a Muslim
for pious, religious, or charitable purposes and become
inalienable. And it does not create any personal right.
However, without holding inquiry Dy. Charity Commissioner
registered the trust and the name of Nanibi falsely entered as
munjawar, is initially wrong.
(28.2) After considering the question, we are of the view that
religious duties attached to the dargah can not be held by the
woman unless there is a custom which requires proof of it.
But in this appeal or before the Waqf Board, we find nothing
which shows the proof of custom. Our view is strengthened
by the judgment of Hon'ble Madras High Court and very
short judgment is produced as under in which para-4 is quite
relevant.
MADRAS HIGH COURT
Imam Bee And Ors. vs Molla Khasim Sahib And Ors.
On 6 September, 1916
Equivalent citations: 37IND. CAS.889, AIR 1917 MADRAS
213
JUDGMENT
1. The District Munsif held that women were entitled to share
in the profits of the mam lands attached to the office of
mujawar of the suit mosque, as the evidence adduced in the
case did not prove that women were prohibited from getting
the duties of the office performed by deputies. The District
Judge considered that the duties to be performed by the
muawar were of such a religious and spiritual character that
the office could not be held by a woman, and, therefore, that
women and persons deriving their title from them could not
have any rights to the lands. Both Courts rightly placed the
onus on those who sought to exclude women, of proving that
they were disqualified [vide Tangirala Chiranjivi v. Rata
Manikya Rao 25 Ind. Cas. 283: 27 M. L.J. 1791 and both
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found that a custom whereby women were excluded in this
institution had not been proved.
2. On the facts, therefore, the finding is in the appellants'
favour. On the question of law whether women should be
excluded from the succession, a number of decisions have
been cited on either side. Without enumerating them, it
maybe briefly stated that there is a considerable volume of
judicial decisions to the effect that the duties of
saijadanasheen, or as it is sometimes called g dd enasheen,
the superior of an endowment and religious preceptor,
cannot be discharged by a woman or by a deputy, as the trust
involves certain special spiritual duties. On the other hand, it
has frequently been held that a woman can be a mutawalli, or
trustee, who has charge of the secular affairs of an
endowment and sometimes has religious duties as well, and
that there is no legal prohibition against a woman holding a
mutawatti-ship where there is nothing to the contrary in the
rules made by the founder or in the usage governing the
particular institution.
3. As stated in the note at the foot of page 343 of
Macnaghten's Principles and Precedents, 'the office of
trustee may be held by a woman, and the duties may be
discharged by proxy, whereas the office of superior requires
personal qualification: Vide App. Tit. End. 28, 31".
4. Now when we come to the office of mujawar we find two
Madras decisions, Hussain Beebee v. Hussain Sherif 4 M. H.
C. R. 23. and Mujavar Ibrambibi v. Mujavar Hussain Sheriff 3
M. 95: 5 Ind. Jur. 190: 1 Ind. Dec. (N.S.) 623. In both of these
decisions it was held in respect of the same endowment that
a woman was not competent to perform the duties of
mujawar. In accordance with these decisions, it is stated by
Mr. Ganapathi Aiyar in his book on Hindu and Muham-
madar. Religious Endowments that the office of mujawar is a
subordinate office which entails on the holders the
performance of religious duties and cannot, therefore, be
held by a female.
5. If these two cases can be said to lay down the proposition
enunciated by Mr. Ganapathi Aiyar, it seems to us that they
go too far, as being opposed to the dictum of the Privy
Council in Shahoo Banoo v. Aga Mahomed Jaffer Bindaneem
34 C. 118. 17 M. L.J. 52: 4 A. L.J. 30: 9 Bom. L.R. 85: 5 C. L.J.
134: 11 C.W.N. 297: 2 M.L.T. 49: 4 L. B. R. 66: 34 1 A. 46
(P.C). which lays down that an office can be held by a woman
unless there are duties of a religious nature which she cannot
perform in person or by deputy: but we do not think that they
do lay down any such broad proposition.
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6. When the case of Mujavar Ibrambibi v. Mujavar Hussain
Sheriff 3 M. 95: 5 Ind. Jur. 190: 1 Ind. Dec. (N.S.) 623. is
closely examined, it is seen that that was a first appeal and
the learned Judges found on the evidence that it bad not been
proved that the plaintiff, who was a woman, had ever
participated in. the profits or performed the duties either in
person or by proxy and that there was no evidence that the
office of mujawar in this particular institution had ever been
held by a woman. Reliance was also placed by the Judges on
the previous decision to the same effect in Hussain Beebee v.
Hussain Sherif 4 M. H. C. R
23. The earlier decision proceeded upon a comparison of the
office of mujawar with that of gaddinasheen and upon the
admission of Mr. Mayne, who appeared for the appellants,
that he was unable to find any authority in Muhammadan
Law for saying that a woman was competent to hold any
religious office in connection with a mosque.
7. But in the case before us we have evidence, which both the
lower Courts have accepted, that there is a usage in this
institution of getting the duties of mujawar done by proxy,
and in one instance a woman has enjoyed a share in the
profits and has had the duties performed by a man who lived
in her house. Even the 1st plaintiff now deputes somebody to
read for him, as he cannot himself read.
8. From the description of the duties of the office, which
include lighting and cleaning the mosque, spreading mats
and feeding travellers, they appear to be more on a level with
the secular duties of mutawalli than with the religious duties
of sajjadanasheen. It is true that the witnesses speak of
certain members of their family also preaching and calling to
prayers, but this they; may have done because they were
imams or muazzins and not by reason of their holding the
office of mujawar. In fact, plaintiff's witness No. 3 says that
his father acted as imam on behalf of Ismail Sahib and. read
the khutba and the faliha during his period of delegation.
9. Where the duties of the office are not very distinctly
defined, the safest course to follow is to be guided by the
custom of the institution. This being in the present case in
favour of deputies being appointed, we see no obstacle to
women sharing in the endowments of this office and getting
their duties performed by proxy.
10. Accordingly, allowing the appeal, we set aside the decree
of the District Judge and restore that of the District Munsif
with costs of the appellants in this and the lower Appellate
Court.
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(28.3) The other reason is that the trust was registered by the
Nanibi as widow of Jamalluddin Kutbuddin. The entry No.244
of Jamalluddin Kutbuddin is baseless. Because his name
entered as per entry No.244. It is contention in the appeal-
memo that the munjawari of Dargah has been going on for
generations and the name of the plaintiff Maulana Mehbub
Dargah, Masjid and Kabrastan Waqf has been continuously
running in the revenue records since 1915 AD. But there is no
other proof of Maulana Mehbub Dargah, Masjid and
Kabrastan except facts as per prior discussion. When there is
no such proof then no subsequent mutation regarding
munjawar can be accepted. There is absolute documentary
evidences of appointment of munjawar and payment of salary
to the munjawars by the respondents. So, the view of Waqf
Board is correct and does not require interference.
(29) Now, points for determination have been separately
discussed here-in-after :::
Point No.1: Whether the resolution dtd.24-04-2025
passed in quorum of meeting?
Point No.2: Whether opportunity of hearing was given
to the appellants?
(29.1) Both these points are inter connected and for the sake
of convenience they both are being discussed togather. So, far
the question of quorum is concerned, it is argued by the Ld.
Advocate Mr. M.T. Hakim for the appellants that the Gujarat
State Waqf Regulation, 2000, provides for quarum
prodcedure. It further submission is that the Hon'ble High
Court remand the case to the Waqf Board after setting aside
the order of the Wafq Board dtd.09-11-2021 & Waqf Tribunal
dtd.24-02-2024 (Waqf Appeal No.38 of 2021), the hearing was
kept before the Chairman of the waqf Board and the
appellants raised an objection of quorum non-judice.
Thereafter, Waqf Board dissolved and new Waqf Board was
constituted. Once again the appellants raised an objection of
quorum non-judice and on 12-02-2025, an application filed to
decide the objection as preliminary issue but on 25-02-2025
no hearing took place as Ld. Advocate for the original
applicant applied for adjournment. However, keeping the
hearing mid-way, direct resolution was passed on 24-04-2025.
In reply, after the arguments of the respondents, Mr. M.T.
Hakim for the appellants submitted that the hearing was only
before the Chairman and it is clear breach of Regulation -5 of
Gujarat State Waqf Regulations, 2000. The order of CEO is
signed by him only as in-charge CEO on 30-04-2025. When
resolution passed by the Waqf Board, then who passed the
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order on 30-04-2025. The appeal heard by the Chairman,
reolution passed by the committee and order passed by the
CEO without hearing the application for
preliminary issue. Nothing is mentioned to keep the appeal for
order. The appellants described sequence of events in their
written submissions Exh.30 which is as under ::
24/02/2022 The Hon'ble Waqf Tribunal allowed Waqf
Appeal No. 38 of 2021 and quashed and set
aside the order dated 09/11/2021 passed by
the Respondent No. 1 Waqf Board. Directions
were also issued for inquiry and complaint for
interpolation in old Revenue Records.
04/04/2022 Civil Revision Application No. 179 of 2022 and
Civil Revision Application No. 185 of 2022 is
preferred and the Hon'ble High Court directed
maintenance of status quo.
17/06/2022 By consent of all the parties, the Hon'ble High
Court has been pleased to quash and set aside
the order dated 24/02/2022 passed by the
Hon'ble Waqf Tribunal in Waqf Appeal No. 38
of 2021 and the order dated 09/11/2021
passed by the Respondent No. 1 Waqf Board
and remanded the matter to be decided by the
Respondent No.1-Waqf Board afresh after
hearing the parties.
24/06/2022 Application was made for adjournment by the
Appellant on account of non-quorum of Waqf
Board.
12/07/2022 Advocate Shri Rajesh Modi made application
for bringing original record from Collector,
Patan. Advocate for the Appellant requested to
put on record the entire record of Waqf Appeal
No. 38 of 2021 before the Hon'ble Waqf
Tribunal. Moreover, record from Collector,
Patan was sought by writing a letter, but
malafidely and with ulterior motives, record of
Waqf Appeal No. 38 of 2021 were removed
from the records of Waqf Board and it was
informed to the appellant that they can
produce whatever they want to produce.
22/07/2022 The advocate for the Appellant produced on
record the entire record of Waqf Appeal No.
38 of 2021 to which advocate Shri Viral
Agarwal objected to.
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14/09/2022 The advocate for the Appellant again objected
to the hearing being conducted only before the
Chairman and CEO of the Respondent No. 1-
Waqf board.
14/09/2022 Waqf Board was dissolved.
17/11/2023 By Notifications dated 07/11/2023 and
18/11/2023 issued by the Legal Department,
Gandhinagar, Waqf Board was constituted.
29/05/2024 No hearing was conducted.
05/06/2024 Adjournment application on account of Non-
Quorum of Respondent No. 1 - Waqf Board.
27/11/2024 No hearing took place.
04/12/2024 The Advocate for the Appellant sought time.
Most pertinently, only time when there was
Quorum of Respondent No. 1 Waqf Board
08/01/2025 No hearing took place.
12/02/2025 Appellants preferred application for adjudication
of preliminary issues including jurisdiction and
maintainability of the application filed by the
Respondents and registered as Change
Report. The Respondents filed adjournment
application to file reply to the said Application
and the matter was adjourned to 25/02/2025.
25/02/2025 The matter was again adjourned on the
Application of the Respondents herein to file
reply.
24/04/2025 Rather than deciding preliminary issues,
Resolution is passed by the Members of the
Respondent No. 1- Waqf Board.
30/04/2025 Order is passed by the CEO of the Waqf Board.
(29.2) It the argument of Ld. Advocate Mr. M.Т. Hakim for the
appellants that Hon'ble High Court remanded the back for the
Respondent No.1 Waqf Board by order dtd. 17-06-2022 to
conduct the proceeding of change Report afresh. The
appellant has produced copy of the Record of the Proceedings
by the Waqf Board at Annexure-T and on page No.332 of the
appeal memo clearly shows the presence of majority members
on 04-12-2024 and no other point of time the quorum
members of the Wagf Board were present and it is gross
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contravention of the provision of Wagf Regulations, as the
quorum for the respondent No.1 Waqf Board to conduct any
business is 5(Five) members.
(29.3) While Ld. Advocate for the Respondent No.1 (Waqf
Board) Mr. Manishbhai Shah argued that quorum procedure is
per Regulation-5 of Gujarat State Waqf Regulations, 2000
which states that no business shall be transacted at any
meeting unless there is a corum of five (5) members including
Chairman. If at a meeting of Board there is no quorum, the
meeting shall be adjourned to such other time and date as
may be fixed by the Secretary but no quorum shall be
necessary for adjourning meeting. It is specifically mentioned
in the impugned order that there were eight members present
on day of hearing i.e. on 24-04-2025. In addition, Ld. Advocate
Mr. Manishbhai Shah has argued that Annexure-T does not
show the date of passing resolution. i.e. 24-04-2025.
(29.4) It is admitted by the appellants that the Waqf
Board passed a resolution on 24-04-2025 and then CEO
of the Respondent No.1 Waqf Board passed the order on
30-04-2025 which is under challenge in the present
appeal before the Waqf Tribunal. It is submission from the
Ld. Advocate Mr. Manishbhai Shah for the respondent No.1
that always the resolution is passed by the Waqf Board after
hearing the parties and then CEO passed the order and after
authentication it being sent to the concerned parties.
According to the impugned order page-39 specifically
underlined in the order that "At present, the total members
of the Gujarat State Waqf Board is 8. All 8 members
were present in the meeting of the Gujarat State Wagf
Board dated.24-04-2025, hence there is a full quorum."
Further. the resolution was unanimously passed and no
objections were raised by any member of the Board
presen t. It seems from the order that the resolution, before
passing order, has been passed after close scrutiny and
discussion in the Waqf Board in full quorum and also by
following Regulation-5 of Gujarat State Waqf Regulations,
2000. While Ld. Advocate Mr. Manishbhai Shah has argued
that Annexure-T does show the date of passing resolution. i.e.
24-04-2025.
(29.5) On close scrutiny for the argument of the appellants,
Annexure-T is produced and submission is that the presence of
majority members on 04-12-2024 and no other point of time
the quorum members of the Waqf Board were present and it is
gross contravention of the provision of Waqf Regulations, as
the quorum for the respondent No.1 Waqf Board to conduct
any business is 5(Five) members. But the impugned resolution
was passed on 24-04-2025, the record and proceeding of Waqf
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Board dtd.24-04-2025 has not been produced to show that
there was no quorum of the Waqf Board. It is true that
proceeding Annexure-T shows the date 29-05-2024, 05-06-
2024, 04-12-2024, 12-02-2025 and 25-02-2025 (at Mark-
3/20 on page No.330,331,332,333 and 334 of the appeal
memo) in which presence of members of the Waqf Board were
in majority only on 04-12-2024. No proceeding dtd.24-04-2025
has been produced to show that there was no quorum at the
time of passing resolution by the Waqf Board to substantiate
the argument of the appellants. So, the arguments devoid of
merit and can not helpful to the appellants. Therefore,
resolution dtd.24-04-2025 passed in full quorum and in lawful
quorum. Hence , point No.1 is decided in affirmative.
( 30 ) Moreover the dispute is raised that on 24-04-2025, rather
than deciding preliminary issues, resolution is passed by the
Members of the Respondent No. 1- Waqf Board and on 30-04-
2025, order is passed by the CEO of the Waqf Board which is
impugned order here in the appeal. It is submitted that the
preliminary issues of jurisdiction and maintainability ought to
have been decided first before passing the resolution by the
Waqf Board. Aggrieved by that the appellants approached the
Hon'ble High Court. The Hon'ble High Court on 22-04-
2025, passed oral ordered to decide preliminary
objection application dtd.16-04-2025 preferred by the
petitioners (appellants herein) in R/ SPECIAL CVIL
APPLICATION No.4823 of 2025. The Waqf Board without
deciding preliminary objection, passed the resolution but
question regarding jurisdiction and maintainability have been
dealt with in order and it is being challenged in the appeal
causes no prejudice to the appellants. According to
Regulation-5 of Gujarat State Waqf Regulations, 2000, the
Secretary prepares the agenda of business to be transacted in
the Board's meeting and all matters coming before the Board
shall be decided by a majority of votes of members present
and voted. In these facts and law, the business before Board
can not be termed as suit and preliminary issues of
jurisdiction and maintainability should not be required to be
determined, first, by fetching the business of the Board, in
terms of the suit. So, we are of the view that there is no
illegality occurred in the proceeding before the Waqf Board by
passing a resolution on 24-04-2025 and followed by order of
CEO dtd.30-04-2025. without hearing the application of the
appellants regarding preliminary issues of jurisdiction and
maintainability as raised in the present appeal.
(30.1) The appellants relies upon the following
judgment of Hon'ble Apex Court for adjucation of
preliminary issue.
Saranpal Kaur Anand Vs. Praduman Singh Chandhok
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And Others
( 2022) Supreme Court Cases 401
A. Civil Procedure Code, 1908 Or. 7 R. 11(d) and Or. 14
R. 2-Limitation as a ground for rejecting a plaint -
When may be adjudicated on, as a preliminary issue
-(I) Issues based on facts/law/mixed questions of fact
and law (see Shortnote B);
- (II) Allegations of fraud (see Shortnote C);
(III) Scope, ambit and parameters for deciding an
application under Or. 7 R. 11(d), for raising a
preliminary issue under Or. 14 R. 2(2), and for passing
the judgment on admission of fact in the pleading or
under Or. 12 R. 6 (see Shortnote D);
(IV) Exercise of inherent jurisdiction under S. 151 CPC
(see Shortnote E)
B. Civil Procedure Code, 1908 - Or. 7 R. 11(d) and Or.
14 R. 2 - Issues based on facts/law/mixed questions of
fact and law vis-à-vis bar of limitation - Adjudication of,
as preliminary issue Permissibility of Disagreeing at the
Bench, matter referred to a larger Bench
C. Civil Procedure Code. 1908 - Or. 7 R. 11(d) and Or.14
R. 2- Allegations of fraud - Adjudication and Effect of -
Material facts required to be pleaded for availing
benefit of S. 17(1)(b) of the Limitation Act -
Disagreeing at the Bench, matter referred to a larger
Bench
D. Civil Procedure Code, 1908 - Or. 7 R. 11(d), Or. 14 R.
2 and Or. 12 R. 6 Scope, ambit and parameters for
deciding an application under Or. 7 R. 11(d), for raising
a preliminary issue under Or. 14 R. 2(2), and for
passing the judgment on admission of fact in the
pleading or otherwise under Or. 12 R. 6 Permissibility
of referred to a larger Disagreeing at the Bench, matter
Bench
E. Civil Procedure Code, 1908-S. 151-General principle
for exercise of power under When a power is to be
exercised by a civil court under an express provision,
the inherent power under S. 151 cannot be taken
recourse to Inherent powers of the court are in addition
to the powers specifically conferred on the court by
CPC, and cannot be exercised in a manner which will be
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contrary or different from the procedure expressly
provided in CPC
- Limitation as a ground for rejecting a plaint - When
may be adjudicated on, as a preliminary issue - Powers
under S. 151 CPC-Whether may be invoked in this
regard Disagreeing at the Bench, matter referred to a
larger Bench - Limitation Act, 1963, S. 17
F. Limitation Act, 1963 S. 17 General principles for
invocation/taking benefit of - Summarised
G. Civil Procedure Code, 1908 - Or. 12 R. 6 General
principles for applicability of - Summarised
H. Civil Procedure Code, 1908 - Or. 7 R. 6 & Or. 6 R. 4
and Or. 6 R. 2-Specific rules in Or. 7 R. 6 & Or. 6 R. 4
when may prevail over general rule Or. 6 R. 2 (per
Sanjiv Khanna, J.)
The judgment relied upon is for rejection of plaint on the
ground of limitation and when it can be adjudicated as a
preliminary issue. It applies to the suit when there is a
question of rejection of plaint. Here the application was filed
for the initiation of the proceeding before the Waqf Board and i
passed the order which is being challenged before this
Tribunal in appeal. Of Course! suit are being instituted directly
in the Waq Tribunal where the provision of Order-14, Rule-2
for deciding preliminary issue may be raised but not during the
proceeding a the application. Because the Waqf Board can only
exercise powe of Civil Procedure Code, 1908 under Section-70
& 71 of the Wac Act, 1995 on an application made to it, in
matter c mismanagement of waqf affairs for enforcing the
attendance с witnesses and production of documents. For
other applicatio made to the Waqf Board, there is no provision
in the Wac Act, 1995 to exercise the powers of the Civil
Procedure Code, 1908
(30.2) The point regarding the jurisdiction of passing the order
has been raised appellants and it is argued on behalf of them
that the order is without jurisdiction and placed reliance on the
oral order dtd. 08-03-2016 of the Hon'ble High in
SPECIAL CIVIL APPLICATION No.2555 of 2026 in case of
Dadubhai Pirbhai Belim & 3... V. The Waqf Board & 9…
in which it ordered in para-5 that " In the present case,
admittedly the order in respct of acceptance or otherwise
of the Change report, was to be in powers under Section-
32(2)(g) read with Section-42 of the Act as aforesaid.
These power could not have been in any case delegated
to the Chairman. The impugned order is manifestly
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without jurisdiction as it is passed by the Chairman of
the Board of the Board, who could not have usurped the
powers, which was exercisable by the Board only." And
quashed and set aside the impugned order passed by the
Chairman of the Board. But in the present appeal the order
is not passed by the Chairman of the Board but resolution
passed in meeting of Gujarat State Waqf Board meeting on 24-
04-2025. So, the order placed reliance by the appellants are
not helpful to them.
114. It would be apposite to recapitulate that the
proceedings before the Waqf Board are in the nature of an
inquiry and not an adjudicating trial or a full-fledged
adjudicatory/adversarial proceeding, in which, upon
consideration of rival assertions, the adjudicating authority is
required to settle issues and, if necessary, frame preliminary
issues in terms of Order XIV Rule 2 of the Code of Civil
Procedure.
115. The inquiry contemplated under the Waqf Act is
essentially a fact-finding exercise. In the present case, the
Waqf Board, upon conducting the inquiry, passed the
impugned resolution in a duly constituted meeting. Though
one of the members of the Waqf Board raised an objection to
the passing of the impugned resolution, the majority of the
members agreed to and passed the impugned resolution dated
24.04.2025. The resolution, therefore, cannot be said to be
invalid merely because one member dissented from it.
116. I now turn to the contention concerning the
applicability of the Places of Worship (Special Provisions) Act,
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1991. It is vehemently argued that the holy shrine situated at
Survey No. 935 belongs to the Sunni-Hanafi-Barelvi sect of
Islam. However, apart from a bare assertion, there is no
material on record to establish that the holy shrine belonged
to the Sunni-Hanafi-Barelvi sect. The contention is
unsupported by any documentary or other credible or reliable
evidence. Both the Courts below, as well as this Court, have
examined the documents relating to the registration of the
holy shrine and the documents preceding its registration as a
trust. None of those documents records that the holy shrine
belonged to the Sunni-Hanafi-Barelvi sect. Even the
Registration Form submitted by Nanibi for registering the
holy shrine as a Trust does not disclose the origin or
foundation of the Trust, nor does it refer to any document
establishing that the shrine was founded as a Sunni-Hanafi-
Barelvi place of worship or Waqf. Thus, the assertion that the
holy shrine originally belonged to the Sunni-Hanafi-Barelvi
sect and was subsequently converted to the Shia sect is
wholly unsupported by the record.
117. In substance, the dispute concerns the
identification and determination of the nature and character
of the holy shrine. Section 3 of the Places of Worship (Special
Provisions) Act, 1991, prohibits the conversion of a place of
worship, which reads as under:-
“3. Bar of conversion of places of worship:
No person shall convert any place of worship of any religious
denomination or any section thereof into a place of worship
of a different section of the same religious denomination or
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of a different religious denomination or any section thereof”
118. The present case, however, stands on an entirely
different footing. The proceedings originate from the
registration of the holy shrine as a trust by Nanibi, who
herself claimed to be “Mujawar” of the holy shrine. She
registered the shrine as a trust, which was subsequently
described as “Maulana Mehboob Masjid and Kabrastan”.
Neither the trust records nor any of the documents preceding
the registration of the trust identify the holy shrine as
belonging to any particular religious denomination, sect or
section of the Muslim community. Therefore, the case is not
one of conversion of an existing place of worship from one
religious denomination or sect to another, but concerns the
determination of the original nature and character of the
property.
119. In the present case, the Waqf Board conducted an
inquiry to ascertain the religious identity and character of the
Waqf property. Such an inquiry is not barred by the provisions
of the Places of Worship (Special Provisions) Act.
120. So far as the contention that the inquiry was
conducted beyond the period of limitation and without
jurisdiction is concerned, the same carries no weight. Such an
issue was never raised by the appellants during the first round
of litigation. It was only in the second round of litigation that
the appellants changed their stance and raised the issue of
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limitation and jurisdiction and perhaps with oblique motive to
deviate the proceedings.
121. A plain reading of Sections 32, 40 and 41 of the
Waqf Act confers upon the Waqf Board the power to
investigate, inquire into and determine the nature and extent
of Waqf property. The provisions also empower the Board to
hold an inquiry for the purpose of amending the register,
whenever necessary. The statutory power of the Board, read
with Section 10 of the Limitation Act, clearly indicates that
the Waqf Board is competent to amend the register after
conducting due inquiry and investigation into the nature,
character and identity of the Waqf property. Nonetheless, the
contention raised on behalf of the appellants that the trust,
having been registered in 1952 and having continued to be so
recorded until the coming into force of the Waqf Act, could
not thereafter be altered, is not tenable. The Waqf Board, as
well as the Waqf Tribunal and this Court, have examined the
record to ascertain the historical identity and character of the
holy shrine.
122. The Waqf Board examined the available records,
including the authenticated Government records, the
documents relating to the nature and character of the
institution vis-à-vis the registration documents under which
the property was registered as a Trust, in order to ascertain
the historical identity of the holy shrine.
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122. In this regard, if the status claimed by the
appellants is examined, its origin can be traced to Nanibi.
Prior to Nanibi, her husband and the members of the family
had expressly claimed themselves to be Mujawar, the
expression “Mujawar” meaning a caretaker or custodian.
Muslim law or Mohammedan law does not recognise
Mujawarship as a heritable right. Nevertheless, disregarding
this settled legal position, Badibi, the daughter of Nanibi, also
claimed to be a “Mujawar”. Subsequently, the sons of Badibi
also claimed to be “Mujawar” in the proceedings. They
thereafter conveniently altered their stand and, by an internal
self proclaimed resolution, sought to claim the status of
“Mutawalli”. Such a course was not only contrary to the
principles of Mohammedan Law but also inconsistent with the
mode of succession recognised in the Trust register of the
holy shrine. The register contemplated that the Manager or
Mutawalli was to be appointed by the common consent of the
congregation of Muslims of the local community.
123. The record, therefore, indicates that, on the one
hand, there was a caretaker belonging to the Faruqui family,
who sought to treat the holy shrine as a family trust, whereas,
on the other hand, the Dawoodi Bohra community claims that
the holy shrine belongs to the said community. The dispute,
therefore, is essentially between the Dawoodi Bohra
community and the Faruqui family. It is not, in substance, a
dispute between the Shia and Sunni sects. At the cost of
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repetition, it may be reiterated that the alleged Sunni-Shia
dispute appears to have been introduced with a view to
attracting the provisions of the Places of Worship (Special
Provisions) Act, and particularly the relevant provisions relied
upon by the appellants. However, the appellants have failed to
produce any documentary evidence establishing that, as on
15th August 1947, the holy shrine possessed the character
claimed by them. In other words, the appellants have failed to
place on record any documentary evidence to establish that,
as on 15th August 1947, the reckoning date, the shrine was a
Sunni-Hanafi-Barelvi place of worship.
124. Lastly, it is contended that the proceedings before
the Waqf Tribunal were heard by two members, but, during
the pendency of the final hearing, a third member, Mr. D.M.
Bhabhor, was appointed to the Waqf Tribunal and he also
signed the judgment. It is submitted that the signing of the
judgment by Mr. D.M. Bhabhor , without having heard the
matter, amounts to a breach of the statutory provisions.
125. This Court is unable to accept the aforesaid
submission. The Legal Department, Sachivalaya,
th
Gandhinagar, by Notification dated 16 August, 2024,
amended Rule 71 by inserting sub-rule (2), thereby removing
any doubt as to the constitution of the Tribunal. The amended
provision clarifies that the Tribunal shall not be treated as
Non-coram merely because, at any given time, the office of a
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member remains vacant or any member other than the
Chairman remains absent, and the Chairman of the Tribunal
shall be competent to act in such circumstances.
126. This Court, in Sunni Muslim Idgah Masjid Trust v.
Hardik Sitaram Patel , 2025 (0) Gujarat HC 72174 ,
particularly in paragraphs 52 and 53, held that a hearing
conducted by two members of the Waqf Tribunal is valid and
proper in view of Rule 71 of the Gujarat State Waqf Rules.
127. In the present case, the matter was heard by two
members of the Waqf Tribunal, who also decided the same.
The third member, who was appointed during the pendency of
the proceedings and before the final outcome, signed the
judgment. Such signing does not indicate any dissent on his
part. In any event, in view of Rule 71 of the Gujarat State
Waqf Rules, 2024, the signatures of the Chairman and the
other member who heard and decided the matter are
sufficient to constitute a valid judgment. Rather, the fact that
the third Member of the Tribunal, who came to be appointed
subsequent to the conclusion of the hearing, has signed the
judgment itself makes it abundantly clear that he has
concurred with and adopted the view expressed by the
Chairman and the other Members of the Tribunal. The said
contention, therefore, has no substance.
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128. Upon consideration of the entire factual and legal
aspects of the matter, the judgments relied upon by learned
counsel for the appellants are of no assistance to the
appellants, as the facts and circumstances of those cases are
clearly distinguishable from the facts of the present case.
THE CONCLUSION :
129. Thus, the sum and substance of the aforesaid
discussions is that, for all the reasons recorded hereinabove,
the findings arrived at by the learned Waqf Board and the
Waqf Tribunal upon appreciation of the evidence are just,
proper and in accordance with law. This Court finds no reason
to interfere with the impugned judgment and order.
Accordingly, the present Appeal stands dismissed. The
concurrent findings recorded by the Waqf Board and the Waqf
Tribunal, is hereby confirmed. Interim relief, if any, stands
vacated. The Record and Proceedings (R&P), if any, be sent
back to the concerned Court.
130. Connected Civil Application, if any, does not
survive and stands disposed of accordingly.
(J. C. DOSHI,J)
MANOJ
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