IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : Wakf Act, 1995 Date of Decision: November 17, 2006 Writ Petition (Civil) No.

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : Wakf Act, 1995 Date of Decision: November 17, 2006 Writ Petition (Civil) No.12501/2005 MAULANA JAMIL AHMED ILYASI... PETITIONER Through: Mr.Mohinder J.S.Rupal, Advocate. Versus GOVT. OF NCT & ORS Through:... RESPONDENTS Ms.Meenu, Advocate for the respondent Nos.1 & 2. Mr.N.Waziri, Advocate for the respondent No.3. Mr.Anis Ahmed, Advocate for the respondent No.4. Anil Kumar, J. 1. The petitioner has prayed for removal of respondent No.4, Mohd.Umer Faridi as member of the Delhi Wakf Board and for quashing of notification No.F.9/14/RE-SR-98 (Part) 6723 dated appointing him to the Delhi Wakf Board. 2. Brief facts to appreciate the controversies are that the petitioner is President of All India Organization of Imams of Mosques having its head office at Masjid Kasturba Gandhi Marg, New Delhi. According to the petitioner, All India Organization of Imams of Mosques is a recognized public spirited and Islamic Organization closely associated with many Islamic Scholars and is actively involved in eradicating the misuse, exploitation and violation of the Wakf Act and rules and regulations. 3. According to the petitioner he is concerned about the affairs of Delhi Wakf Board and he has been hurt and shocked on learning about the appointment of respondent No.4 as a member of the Board by respondent No.1 while exercising its power under Section 14 of the Wakf Act, According to the petitioner respondent No.4 is not a recognized scholar in Islamic Theology and, therefore, not eligible to be appointed as a nominated member of respondent No.4 under Section 14(1) (d) of the Wakf Act, Petitioner stated that he made a representation to the Chief Minister of Delhi on which was forwarded to respondent No.3 and a copy was also addressed to

2 the petitioner and petitioner was requested to contact respondent No.3 for redressal of his grievance. However, respondent Nos.1 and 2 appointed new members including respondent No.4 as per notification No.F.9/14/RE-SR-98 (Part) 6723 dated published in the Government Gazette. The petitioner also filed a public interest litigation being W.P No.18171/2004 which was disposed of by order dated holding that it is for the petitioner to challenge the violation of provision of the Wakf Act by filing an appropriate petition and not a public interest litigation. 6. The appointment of respondent No.4 has been challenged by the learned counsel for the petitioner merely on the ground that he is not a recognized scholar in Islamic Theology and no other point has been canvassed on behalf of the petitioner nor any reply to the averments and pleas raised by the respondent No.4 was filed by the petitioner as the counsel for the petitioner had stated that no rejoinder to the counter affidavit of respondent no.4 is to be filed. 7. The petition is opposed by respondent No.4 who contended that the petition has been filed with ulterior motive of harassing, pressurizing him to compel him to have out of Court highly arbitrary and dictating settlement with his close friend Maulana Abdul Subhan whose services as Imam was terminated from the Masjid Shah Abdul Salam, Connaught Place, New Delhi on account of his acts of omission and commission which were unbecoming of an Imam, who has also filed false and frivolous cases against the respondent No.4 under Section 500/501 of IPC. One case is contended to be filed by said Maulana Abdul Subhan and another case has been got filed through his son Dr.Nasir Subhan on the ground that the respondent No.4 has defamed those two persons. 8. The respondent No.4 contended that petitioner is an ambitious person and trying his best to be nominated as the member of Delhi Wakf Board and after failing to get nominated as a member of Delhi Wakf Board, the present petition has been filed with ulterior motives. The petitioner does not have a vested right to be nominated as a member of Delhi Wakf Board and the discretion to nominate a member lies with the Lieutenant Governor. The respondent No.4 asserted that he has been nominated in the category of "recognised scholar in Islamic Theology". According to respondent No.4 he belongs to the generation of great Islamic scholars dating back to the world renowed Saint Khwaja Baba Farid Ganj-E-Shakar and he is a direct descedent of Baba Farid. According to him not only he but every child in the lineage of his family had been taught Islamic scriptures at home by the elders of the family till attainment of mastery of the subject and till the person becomes competent to render discourses for Islamic thoughts and theology. It was contended that respondent No.4 belongs to a family which is known for spreading "Suffism" throughout the world through Baba Farid and the concept of Suffism is part and parcel of Islamic Theology. According to respondent No.4 from his childhood he has been taught and brought up and trained in the atmosphere of `Suffism' and with his hard work, dedication and deep and thorough study of `Suffism' he became competent to render discourses of Islamic thoughts and theology. It was contended that for past 20 years he has been imparting religious education including about `Suffism' to his large number of followers and he has a status of scholar in Islamic Theology for the last more than 20 years. Respondent No.4 is stated to be a Sajjada Nashin and Mutawalli of Dargah

3 and Masjid Shah Abdul Salam, opposite Marina Hotel, Connaught Place, New Delhi since 1980 and he has succeeded his father Hazrat Shah Mohd.Baqar. Respondent No.3 is also stated to have recognized respondent No.4 as Sajjada Nashin and Mutawalli of Dargah & Masjid Shah Abdul Salam. Respondent No.4 categorically asserted that Delhi Wakf Board was having a regular correspondence with him even before his nomination as a member of the Wakf Board under Section 14(1) (d) and he has produced the correspondence with Delhi Wakf Board. 9. I have heard the learned counsel for the parties and have perused the petition and the counter affidavit of respondent No.4. No counter affidavit has been filed by respondent Nos.1 to 3 nor anyone has appeared on their behalf. The main contention of the learned counsel for the petitioner, Mr.Rupal is that respondent no.4 is not a recognized scholar in Islamic Theology. According to him the respondent No.4 does not have any basic degree or qualification from any of the University and Institution. According to him, theology is the science of treating of God, his nature and attributes and his relation to man and the Universe. He has placed reliance on the Law Lexicon reprinted Edition, 1987 by P.Ramanatha Aiyer. Theology is defined in the Lexicon as under:- "Theology:- The science treating of God, his nature and attributes, his relation to Man and the Universe." Theological Education is also defined in the Law Lexicon which is as under:- "Theological Education: A will by which testatrix provided for the payment of the expenses of a "collegiate and theological education" for certain of her relatives in case they chose to take advantage of such provisions, means "such an academic and theological training as is practical and suitable to prepare a person to be a minister of the gospel, and it would be improper to construe the phrase disjunctively so as to permit a collegiate education not followed by a theological course." 10. The appointment of the respondent No.4 is under Section 14(1)(d) which is as under:- "14 (1) (d) one and not more than two members to be nominated by the State Government each from recognized scholars in Islamic Theology." 11. Learned counsel for the petitioner has contrasted the provisions of the Wakf Act, 1995 regarding nomination from recognized scholars in Islamic Theology with the Wakf Act of 1954 where under Section 10 (1) (b) (ii), a person in the opinion of Government, recognized as a scholar in Islamic Theology could be nominated. Section 10(1) (b)(ii) of the Wakf Act, 1995 is as under:- "(ii) one shall be a person who, in the opinion of that Government is a recognised scholar in Islamic Theology."

4 12. According to the petitioner's counsel the State Government could nominate a person who is a recognized scholar in Islamic Theology provided he has some degree or formal education in Islamic Theology and since respondent No.4 does not have any formal education in Islamic Theology as such he is not competent to be nominated under Section 14(1) (d) of the Wakf Act, This has not been disputed that Theology is the science treating of God, his nature and attributes, his relation to Man and the Universe. Consequently, Islamic Theology will be the science of treating of Allah and his disciples and their nature and attributes and their relation to man and the Universe. It will be the study of nature of God and religious truth and rational inquiry into religious questions. A recognized scholar for Islamic Theology will not necessarily be a person who has formal education. Under Section 14(1)(d) of the Wakf Act the recognized scholar in Islamic Theology cannot be construed to be a person having formal education or some other degree of certificates in Islamic Theology. The learned counsel for the petitioner is unable to show as to how the words "Formal Education" or a person having formal degree can be read into the words "Recognized scholar in Islamic Theology." 14. On comparison of the provisions under the Wakf Act, 1954 and the Wakf Act, 1995 it is also apparent that whereas under the Wakf Act, 1954 a recognized scholar in Islamic Theology, in the opinion of the Government could be appointed to the Wakf Board meaning thereby that the Government had to form an opinion regarding a recognized scholar in Islamic Theology and only such a person could be appointed to the Wakf Board. The opinion of the Government has been done away with and under the Wakf Act of 1995 the State Government can nominate any recognized scholar in Islamic Theology. 15. The averment made by the respondent that he belongs to generation of great Islamic scholars dating back to the world renowned Saint Khwaja Baba Farid Ganj-E- Shakar and he is a direct descedent of Baba Farid and he has been taught Islamic scriptures at home by the elders of the family till he attained mastery in the subject and became competent to render discourses for Islamic thoughts and theology, has not been denied. The learned counsel for the petitioner was emphatic that no rejoinder to the averment made by the respondent No.4 in the counter affidavit was required. Since there has been specific plea by the respondent No.4 that he has great knowledge of Islamic thoughts and Theology which has not been denied, the plea of the respondent No.4 shall be deemed to be admitted. The plea of the respondent No.4 that he belongs to a family known for spreading `Suffism' throughout the world through Baba Farid has also not been denied. The respondent No.4 is Sajjada Nashin and Mutawalli of Dargah and Masjid Shah Abdul Salam, opposite Marina Hotel, Connaught Place, New Delhi since 1980 and he had succeeded his father Hazrat Shah Mohd.Baqar has also not been denied. The probable inference in the facts and circumstances is that respondent No.4 is a recognized scholar in Islamic Theology.

5 16. A single Judge of Madras High Court in AIR 2005 Madras 111, P.A.G. Hussain Moulana Vs Union of India & ors had held that under section 14 (1) (d) of the Wakf Act, 1995, it is the subjective satisfaction of the State to consider and select such representative after taking into consideration relevant consideration that prevails in the State. It was observed as under: " Under Section 14 (1) (c) and (d) of the Wakf Act, it is clear that the power to select a representative from eminent Muslim Organization was given to the State Government. Therefore, it is for the subjective satisfactio_ of the State Government to consider the representative from the eminent Muslim organization after taking into relevant consideration that prevails in the particular State. Therefore, again I do not find any reasonableness in Section 14 (1) (c) and (d) of the Wakf Act, 1995." In this case, the said provisions of the Wakf Act, 1995 were challenged and it was contended that the mere income of Rs. One lakh and above could not be a reasonable qualification to consider a Mutawali, who could be member of the Board for a State and the qualification should be education with degree and post graduation alone which contention and plea had been dispelled. 17. A Division Bench of Andhra Pradesh High Court in AIR 1996 Andhra Pradesh 187, Sri Yusuf Qureshi & ors. Vs Moulana Mohammed Jamaluddin Deccani & ors had held that while appointing to the Wakf Board, the Government has to satisfy many sections amongst the classes eligible for appointment and no judicial scrutiny is either permissible or desirable to ascertain who, among the rival claimants, deserve the office most. The Court had held as under: " When appointments are made to bodies like the Wakf Board, the Government naturally has to satisfy many sections amongst the classes eligible for appointment and no judicial scrutiny is either permissible or desirable to ascertain who, among the rival claimants, deserves the office most. The fact that all the persons appointed under the impugned G.Os, fulfilled the statutory requirement Section 11 itself affords sufficient evidence in proof of the assertion made on behalf of the appellant that the Government was fully aware of their eligibility. Further, the categorical statement by the Deputy Secretary on behalf of the State Government that the Government 'have appointed the members keeping in view the guidelines given under sub section (a) to (d) of Section 11 of the Act' dispels, in the absence of a reply affidavit denying this assertion, any doubts concerning the validity of the appointments." 18. The challenge to the nomination of the respondent No.4 being a scholar of Islamic Theology by the petitioner on account of malafide reasons and to cause harassment to him, is also fortified by the fact contended by respondent No.4 that the writ petition has been filed, as a friend of petitioner was removed as an Imam on account of his acts of omission and commission and the petition has been filed with a view to pressurized the respondent No.4. These facts have also not been controverted by the petitioner and in the circumstances these facts are also deemed to be admitted. 19. Though the learned counsel for the petitioner did not raise the plea that the cases are pending against the respondent No.4 though the pendency of the case has been

6 pleaded in the writ petition, however, the reply of the respondent No.4 is worth considering who has contended that the friend of the petitioner, Maulana Abdul Subhan, has filed the criminal cases for committing defamation and a similar case has been filed on behalf of his son. In any case on the ground that the cases for defamation has been filed against the respondent No.4, under the provisions of Section 14(1)(d) of the Wakf Act, 1995 this will not be a disability for the nomination of respondent No.4 to the Wakf Board. 20. The inevitable inference in the facts and circumstances is that the nomination of respondent No.4 by the State Government as a recognized scholar in Islamic Theology is in consonance with Section 14(1)(d) of the Wakf Act, 1995 and the same cannot be faulted on the grounds as has been raised by the petitioner. The respondent No.4 in facts and circumstances as has been contended by him will be a recognized scholar in Islamic Theology and there is no requirement that to be a recognized scholar in Islamic Theology one has to have formal degree from a school or a college in Islamic Theology. 21. Though the petitioner has not pleaded in the writ petition that the respondent No.4 is neither Shia nor Sunni but the learned counsel for the petitioner contended that_though the respondent No.4 and his family spread Suffism throughout the world which concept is part and parcel of Islamic Theology, but the respondent no.4 cannot be appointed as Section 3(n) and (o) only defines Shia Wakf and Sunni Wakf. The plea has not been taken by the petitioner in the writ petition and cannot be entertained in the facts and circumstances. However, the learned counsel for the respondent No.4 has contended that there are about 72 sects in Islam and in any case though the family of respondent No.4 is known for spreading `Suffism' but the respondent No.4 is a Sunni Muslim. The learned counsel for the respondent No.4 has also contended that whereas the Shia Wakf can be on account of dedication to Allah only, the Sunni Wakf can be on account of dedication to Allah and to a private person also. According to him the nomination of the respondent No.4 to the Wakf Board cannot be negated on this ground as respondent No.4 is a Sunni Muslim and there is no embargo that a sunni Muslim can not be believe in `Sufism'. 22. No such ground that petitioner is not a Sunni or a Shia had been taken by the petitioner and consequently the petitioner cannot be allowed to raise this ground now. It is not denied that the petitioner is a recognized scholar of Islamic Theology and the ground that he is neither Shia nor Sunni which fact has been disputed by the respondent No.4, the nomination of the respondent No.4 cannot be declared illegal and contrary to the provisions of Wakf Act, Consequently, the notification No.F.9/14/RE-SR-98 (Part) 6723 dated in Delhi Gazette is also not contrary to the provisions of Delhi Wakf Act, 1995 nor the nomination of respondent no.4 can be termed illegal and/or unlawful and contrary to the provisions of Wakf Act, The writ petition is, therefore, without any merit and there are no ground to invoke the jurisdiction of the Court under Article 226 of the Constitution of India against the nomination of the respondent no.4 under section 14 (1) (d) to the Wakf Board. Consequently, the rule is discharged and the writ petition of the petitioner is dismissed.

7 However, considering the facts and circumstances the parties are left to bear their own costs. Sd/- ANIL KUMAR, J.

Administrative law - consultative body appointed by Minister- judicial review of its powers and activities.

Administrative law - consultative body appointed by Minister- judicial review of its powers and activities. HCJ 282/61 Mahmud El-Saruji v. Minister of Religious Affairs 1 H.C.J. 282/61 MAHMUD EL-SARUJI et al. v. MINISTER OF RELIGIOUS AFFAIRS AND THE MOSLEM COUNCIL. ACRE In the Supreme Court sitting as the High