NAWAB USMAN ALI KHAN Vs. CHOUDHRY FAEZULLA

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution and relates to properties comprised in the Wakf known as Hussain Tekri Sharif in the town of Jaora. The petitioners are Nawab Usman Ali Khan of Jaora and the members of the Intazamia committee appointed by the Nawab in his capacity as the alleged Mutawalli of the trust. The petition is directed against the Chairman (called President in the petition) and the Madhya Bharat Muslim Wakf Board appointed under the Muslim wakfs Act, 1954, as also against the Government of Madhya Pradesh and the union of India.

(2.) THE case of the petitioner is that the Wakf in question was founded by Nawab ismail Khan the ancestor of the present petitioner and the Ruler of Jaora about 150 years back; that he during his life-time and after his death his descendants including the petitioner No. 1 used to manage the affairs of the Trust including administration of its properties either by themselves or through their nominees acting under their directions; that petitioner No. 1 in his capacity as the Mutawalli actually administered the Trust till 3-11-1952 on which date he by his order appointed a committee consisting of six persons including himself to provide for better management; that the Trust was being administered through the Intazamia committee in that manner in lawful exercise of the right of petitioner No, 1 and the Intazamia Committee when the Parliament passed Act No. 29 of 1954 known as the Muslim Wakfs Act which came into force on 15-1-1955; that in pursuance of the power vested in the State Government under Section 11 of the Act the Madhya bharat Government constituted a Board of which respondenls Nos. 1 and 2 are the chairman and Secretary respectively; that the said respondent No. 1 occupied a portion of the Wakf property which he was called upon to vacate or to pay rent therefor but he failed to comply with either of the alternatives; that Civil and criminal proceedings thereupon started between respondent No. 1 and the intazamia Committee; that with a view to defeat the claim of the Intazamia committee and particularly that of petitioner No. 1 regarding the administration of the Wakf respondent No. 1 manipulated complaints against the said Committee and created a situation suggesting disputes as against the right of the petitioners pertaining to the administration of the said Wakf and that a notice was then got served upon the Intazamia Committee to hand over charge of the Wakf to a committee appointed by the Board in exercise of its power under Section 42 of the act.

(3.) ON these facts the petitioners felt aggrieved by the aforesaid action of the Board and seek by the present proceedings to quash the said action on the grounds:-Firstly: that Section 11 of Act No. 29 of 1954 passed by the Parliament is ultra vires as it negatives the fundamental right guaranteed under articles 25 and 26 of the Constitution by conferring arbitrary and unrestricted power upon the State Government to appoint any person as a member of the Board leaving no scope for the voice of the Wakfs, wakifs, their descendants and members of the Muslim community who are the beneficiaries of the Wakf and their descendants in its management; that other provisions of the Act including Sections 18, 52, 62, 63, 64, 67 (a), (b), (c), (d), (h), (j), (k) and (n) also run counter to the rights guaranteed under Articles 25 and 26 of the Constitution. Secondly; that even on the assumption that the aforesaid provisions of the Act are within the legislative competence of the Parliament the exercise of the power by the State Government under Section 42 of the act is inappropriate as the said provisions have no application to the situation in hand so as to deprive petitioner No. 1 of his right as mutawalli to administer the Trust or to prevent the Intazamia Committee appointed by him from functioning and to give preference to persons who have no interest in the maintenance of the shrine and who are incapable of taking part in its management.