Law of Waqfs

Durgah of Hazrat Sheikh Saleem Chishti at Fatehpuri Sikri

Durgah of Hazrat Sheikh Saleem Chishti at Fatehpuri Sikri in the district of Agra said to have been established by Emperor Akbar. The Durgah was administered originally by the Moghuls and thereafter by the Board of Revenue established by the British Government under the Bengal Regulation No. 19 of 1810. Subsequently the Religious Endowment Act 1861 (Act 20 of 1863) was passed which provided for the management of mosques, temples and other religious establishments. Section 7 of Act 20 of 1863 provided for the appointment and Constitution of the committees which were to be appointed by the State Government for the management of religious establishments mentioned in Section 3 of that Act. Section 10 provided for election when a vacancy occurred in the committee. By G.O. dated July 7, 1925 and a subsequent notification dated February 27, 1927 rules for the election of the managing committee were framed and a committee was formed.

 The Waqf of the Durgah was registered as one of the waqfs under the superintendence of the Board as provided by Section 5 of the U.P. Muslim Waqfs Act 1936. It is common ground that the waqf is registered and it is one of the waqfs to which the provisions of the Act would be applicable.

It was of the view that for the purpose of Act 20 of 1863 mosques, temples and other religious establishments could be divided in two main groups. One was that to which the provisions of the Bengal Regulation No. 19 of 1810 or Madras Regulation No. 7 of 1817 were applicable. The other group was the one to which the provisions of these Regulations did not apply. The first group could be sub-divided into two depending upon the mode of nomination or appointment of the trustee, manager or superintendent. Section 3 of Act 20 of 1863 applied to religious establishments falling in the sub-group in which the nomination of a trustee, manager or superintendent thereof was vested in, or was exercised by or was subject to the confirmation of the government or any public officer. In case of establishments covered by Section 3 it was necessary for the State Government to proceed u/s 7 and to appoint one or more committees. On the appointment of the committee the Board of Revenue and the local agents ceased to exercise the functions assigned to them under the Regulation and they were to transfer to such committee all landed or other property belonging to the establishment. After referring to the relevant provisions of the Act the learned judge held that the general power of superintendence conferred on the committee constituted u/s 7 of Act 20 of 1863 became vested in the appellant board constituted under the Act. The continuance of the committee for the general supervision of waqfs was, therefore, inconsistent with the provisions of Section 19 of the Act and in such circumstances the corresponding provisions of Act 20 of 1863 stood repealed with the result that the committee appointed u/s 7 of that enactment could not discharge the general power of supervision and superintendence of waqfs to which the Act applied. However, in the opinion of the learned judge there was no provision in the Act corresponding to Section 13 of Act 20 of 1863. That section casts an additional responsibility on the committee in that it has to keep in its custody accounts regularly submitted by the trustee, manager or superintendent of the mosque or religious establishment. Clauses (g) and (i) of Section 19(2) and Section 27 of the Act did not show any inconsistency with the provisions of Section 13 of Act 20 of 1863.

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