judgement:
Civil Appeal No. 166 of 1969.
From the Judgment and order dated 4 5 1966 of the Rajasthan High Court in D.B. Civil Misc.
Writ No. 74 of 1965.
M. N. Phadke, M. Qamaruddin, Mrs. M. Qamaruddin and V. M. Phadke for the Appellant.
section section Ray, section M. Jain, D. D. Patodia and section K. Jain for Respondents 1 and 2.
151 Appeal set down Ex parte against RR.
3 and 4.
The Judgment of the Court was delivered by SEN, J.
This appeal by certificate is directed against the judgment of the Rajasthan High Court dated May 4, 1966 holding that inclusion of the disputed property in the list of wakfs published by the Board of Muslim Wakfs, Rajasthan under sub section
(2) of section 5 of title is not binding on the respondents No6. 1 and 2, the mortgagee purchasers and restraining the Board from taking only sleeps under section 36B of the Act for evicting them from the same.
The subject matter in dispute is a two storeyed building, knows as Dharamshala or Musafirkhana, situate on Mirza Ismail Road at Jaipur.
The building was constructed by the late Haji Mohammad Ali Khan, a Sessions Judge of the erstwhile Princely State of Jaipur, who owned a considerable estate, on a plot of land admeasuring 5 bighas and 3 biswas obtained from the Mehakma Mensa Aliya Council with the approval of the Ruler of Jaipur under a Patta dated February 23, 1886 for construction of a Haveli and Dharamshala.
It appears that Haji Mohammad Ali Khan before his death in the year 1912, had executed two wills, one on February 17, 191 O and the other on July 1, 1911, by which after making several bequests he acknowledged that he had dedicated the said property in wakf, for its use as a Dharammshala and appointed his son Ehsen Ali Khan as its Mutawalli.
After the death of Haji Mohammad Ali Khan, there was a suit for partition of the property brought by his son Faiyaz Ali Khan against his brother Ehsari Ali Khan, being original Suit No. 128 of 1930 and the building was left out of partition being wakf property.
It, however, appears that the mutawalli Ehsan Ali Khan mortgaged the property with possession, with Seth Bijaylal, father of respondent No. 2, and Bhuramal, father of respondent No. 1, for Rs. 7,999, ' and executed a mortgage deed dated July 30, 1944 in Their favour for the purpose or purchasing a strip of land in front of the building from the Municipal Council Jaipur and thereafter constructed verandahs on the ground floor and the first floor.
For making this construction, he raised a further loan of Rs. 9,999/ by effecting a second mortgage by executing the mortgage deed dated July 7, 1945 in favour of the said mortgagees.
the respondents Nos. 1 and 2 purchased the ground floor of the building from Ehsan Ali Khan for Rs. 19,999/ by means of a registered sale dead dated November 23, 1954.
The consideration was applied towards satisfaction of the two previous mortgages.
Thereafter, they purchased the first floor of the said building from him for Rs. 13,999/ by means of a registered sale deed dated July 31, 1956.
152 The wakf Act, 1954 was extended to the State of Rajasthan on February 1, 1955.
The Board of Muslim wakfs, Rajashthan was constituted by the State Government on August 6, 1962 in accordance with section 9 and thereafter the Government appointed a Commissioner of Wakfs under sub s.(1) of s.4 for the purpose of making survey of wakf properties existing in the State, at the date of the commencement of the Act.
On August 30, 1962, one Shauket Ali Khan, the respondent No. 3 applied to the Commissioner of Wakfs alleging that the aforesaid property was wakf property and therefore, its transfer by Ehsan Ali Khan, who was its mutawalli, in favour of the respondents Nos. 1 and 2 was invalid and consequently prayed that the property be declared to be Wakf property and possession of the same be handed over to the wakf Committee.
The Commissioner of Wakfs accordingly issued notice to the respondents.
Nos. 1 and 2 the mortgagee purchasers.
In response to the notice, the respondents Nos. 1 and 2 appeared before the Commissioner of Wakfs on September 19, 1962 and raised a preliminary objection as to the jurisdiction denying that the disputed property was wakf property and contended that the Commissioner of Wakfs had no jurisdiction to make an enquiry as to whether a particular property is wakf property or not.
The Commissioner of Wakfs by his order Dated September 19, 1962 over ruled the objection.
Thereupon, the respondents Nos. 1 and 2 filled a writ petition before the Rajasthan High Court, but the High Court by its order dated October 11, 1962 dismissals the petition liming observing that the Commissioner had obviously no jurisdiction j to decide any question relating to the title of the respondents Nos. 1 and 2 or to eject them from the property without taking recourse to a civil suit.
The Commissioner of Wakfs, however, felt that he was not bound by these observations of the High Court since he was not served with a notice and accordingly decided to proceed with the enquiry.
consequence thereof, the respondents Nos. 1 and 2 had to participate in the proceedings.
On October 19, 1962 they filed their reply before the Commissioner of Wakfs and joined issue on the question as to whether the disputed property was wakf property or not.
In their reply they pleaded, inter alia that the property was not a wakf and that the wills had indeed been cancelled in a suit.
The Commissioner of Wakfs by his report dated December is, 1964 on the basis of the evidence led before him, held the disputed property to be wakf property recommended that it be recorded as such, and accordingly, forwarded a report to that effect to the State Government as required under sub s.(3) of s.4.
On receipt of the report of the Commissioner of Wakfs forwarded to it by the State Government under sub section
(1) of section S, the Board of Muslim 153 Wakfs published a notification for inclusion of the property in dispute A in the list of Wakfs existing in the State in the Rajasthan Rajpatra dated December 2, 1965.
Thereafter, the respondents Nos. ] and 2, filed a writ petition in the High Court challenging the legality and validity of the proceedings taken by the Commissioner of Wakfs.
It was contended that on the basis of such report, the Board of Muslim Wakfs was not entitled to include their property in the list of wakfs published under sub s.(2) of s.5.
In allowing the petition, the High Court held that the entire scheme or the , indicates that the Board of Wakfs jurisdiction is confined to matters of administration of the wakfs and not to adjudication of questions of title.
In view, it was evident that the Act did not invest the Board of Wakfs or the Commissioner of Wakfs with the power to decide the question whether a property belonged to a wakf or not; and more so, where a person claiming title is a stranger to the wakf.
It accordingly held that a Commissioner of Wakfs appointed under sub s.(1) of s.(4) of the Act has no jurisdiction under sub s.(3) of section 4 to enquire whether or not a certain property is wakf property when such a dispute is raised by such a person.
It further held that the object of section 6 is to narrow down the dispute between the Board of Wakfs, the mutawalli and the person interested in the wakf, as defined in section 3.
Consequently, the High Court held that the failure of a stranger to the wakf to institute a suit in a court of competent jurisdiction for a decision of such question, namely, whether a particular property is a wakf property or not, cannot make the inclusion of such property in the list of wakfs published by the Board under sub section
(2) of section 5 of the Act final and conclusive under sub section
(4) of section 6 of the Act.
It also held that the Board is not invested with jurisdiction to enquire into and decide the questions of title to, or possession of, the properties belonging to third parties under section 27 of the Act.
It is argued for the appellant, firstly, that the words 'for the purpose of making a survey of wakf properties ' are wide enough and confer ample power on the Commissioner 'to investigate and adjudicate ' upon the question whether a certain property is wakf property or not during the course of his survey of.
wakf properties in the State of Rajasthan; and secondly, the failure of the respondents Nos.
l and 2 to file a suit within the time allowed by sub section
(1) of section 6 of the Act makes the inclusion of the disputed property in the list of wakfs published by the Board of Wakfs under sub s.(2) of s.5, final and conclusive.
Tn support of the contentions, it is urged that the word 'therein ' in the expression 'any per son interested therein ' appearing in sub s.(1) of s.6, qualify title words 'wakf property ' and, therefore, the expression 'any person interested 817SCI/78 154 therein ' cannot, in the context in which it appears, mean 'person interested in a wakf ' as defined in section 3(h) of the Act, as wrongly assumed by the High Court.
It is therefore, urged that the right of suit given under section 6(1) of the Act can be availed of by a person affected by the publication of the list of wakfs under sub s.(2) of s.5, i.e. it includes even a stranger.
In reply, it is submitted on behalf of the respondents Nos. 1 and 2, that the scope of section 6 is to narrow down the dispute between the Board of Wakfs, the mutawalli and any person interested in the wakf, as defined in section 3(h).
It is urged that the High Court was, therefore, right in holding that 6 refers only to such a dispute and cannot affect the right and title of a stranger to the wakf, particularly of a person belonging to another religious denomination.
The submission is that the word 'therein ' in sub section
(1) of section 6, in the context and setting in which it appears, does not fit in with the words 'wakf property ' in the collocation of words, but qualifies the words 'the wakf ' immediately presiding it.
It is said that the word 'therein ' has been used to avoid repetition of the words 'the wakf ', and not to extend the ambit of the section to persons who fall outside the scope of the expression 'person interested in a wakf ' as defined in s.3(h).
It is, therefore, urged that the respondents Nos. 1 and 2 are wholly outside the purview of s.6(1) and, therefore, they must necessarily fall outside the scope of the enquiry under, s.4(1), as the provisions contained in s.4, 5 and 6 form part of an integrated scheme.
It is pointed out that on the terms of s.4 the Commissioner of Wakfs has no power ' to enquire whether or not a certain property is wakf property when such dispute is raised by a stranger to the wakf.
In support of the contention, the language of section 4 is contrasted with that of s.27 and it is said that, while the Board of Wakfs has the power to hold an enquiry as to whether a particular property is wakf property or not under s.27, the Commissioner of Wakfs has no power to hold such an enquiry.
In order to appreciate the implications of the rival contentions, it Is necessary not only to examine the scheme of the Act but also the purpose and object of the legislation.
The , "the Act", as the preamble shows, was enacted 'to provide for the better administration and supervision of wakfs '.
The avowed object and purpose of the Act was to bring the management of Wakfs, though it vests immediately in a mutawalli, subject to the supervision the State.
It was enacted to replace the Mussalman Wakf Act, 1923, which merely provided for the submission of audited accounts by mutawallis, and was found to be wanting in 155 several respects and really not of much practical value.
It was found k that proceedings could be successfully defeated simply on the plea taken by the mutawalli that there was no wakf.
To remove the lacunae, the Mussalman Wakf (Bombay Amendment) Act, 1935 amended the Act.
The Bengal Wakf Act, 1934 was enacted to create a machinery for the supervision of wakfs in Bengal.
The United Provinces followed suit and the United Provinces Muslim Wakf Act, 1936 was passed creating a Central Wakf Board.
Similarly, Bihar also passed a legislation almost on the same lines.
The working of these Acts brought out the necessity for one uniform and consolidated legislation by the Center.
It was with this view that the was enacted.
The scheme of the Act may be briefly indicated.
Section 2 makes the Act applicable to all wakfs in India except to Durgah Khawaja Saheb, Ajmer.
Section 3 defines certain terms, and the term 'wakf ' and the expression 'person interested in a wakf ' have been defined as follows: "3.(h) 'person interested in a wakf ' means any person who is entitled to receive any pecuniary or other benefits from the wakf and includes, (i) any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, Khangah, maqbara, graveyard or any other Religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf; (ii) the wakif and any descendant of the wakif and the mutawalli.
(1) 'wakf ' means the permanent dedication by a person professing Islam of any movable or irremovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes (i) a wakf by user; (ii) grants (including mashrut ul khidmat) for any purpose recognised by the Muslim law as pious, religious or charitable; and (iii)a wakf alal aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable; and 'wakif ' means any person making such dedication. ' 156 The Act consists of several chapters and can conveniently be divided into three parts.
The first part relates to the survey of wakfs.
Chapter II is headed 'Survey of Wakfs '.
Sub section (1) of section 4 empowers the State Government to appoint for the State by a notification a Commission of Wakfs for the purpose of making survey of wakf properties existing at the time of the commencement of the Act.
Sub section (3) enjoins the Commissioner to submit his report to the State Government after making such enquiry as he may consider necessary and the report is to contain the following particulars namely: (a) the number of wakfs in the State, or as the case may be, any part thereof, showing the Shia Wakfs and Sunni Wakfs separately; (b) the nature and objects of each wakf; (c) the gross income of the property comprised in each wakf; (d) the amount of land revenue, cesses, rates and taxes payable in respect of such property; (e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each wakf; and (f) such other particulars relating to each wakf as may be prescribed.
" Sub section (4) enjoins that the Commissioner, while making such enquiry, shall have certain powers as are vested in a civil court under the Code of Civil Procedure, 1908, namely, summoning and examining any witness, requiring the discovery and production of any document, re questioning any public record from any court or office, issuing commissions for the examination of any witness or accounts, making any local inspection or local inspection etc.
Sub section (5) of s.4 runs thus: "(5) If, during any such inquiry, any dispute arises as to whether a particular wakf is a Shia wakf or Sunni wakf and there are clear indications in the deed of wakf as to its nature, the dispute shall be decided on the basis of such deed.
" Section 5 provides for publication of a list of wakfs and is as follows: "5.(1) on receipt of a report under sub section (3) of Section 4, the State Government shall forward a copy of the same to the Board.
157 (2) The Board shall examine the report forwarded to it under sub section (1) and publish, in the official (Gazette, a list of wakfs existing in the State, or as the case may be, the part of the State to which the report relates, and containing such particulars as may be prescribed.
" Section 6, which relates to adjudication of dispute regarding wakfs, B so far as material, reads: "6.(1) If any question arises whether a particular property specified as wakf property in a list of wakfs published under sub section (2) of the section 5 is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be.
final: Provided that no such suit shall be entertained by the civil court after the expire of one year from the date of the public cation of the list of wakfs under ' sub section (2) of section 5.
. . . . (4) The list of wakfs published under sub section (2) of section S shall, unless it is modified in pursuance of a decision of the civil court under sub section (1), be final and conclusive." Chapter IIA is about the constitution of the Central Wakf Council, with which we are not concerned.
Chapter III provides for establishment of a Board of Wakfs and defines the nature of its duties, powers and functions.
This chapter also provides for certain incidental matters.
Sub section (1) of section 15 provides that the general superintendence of all wakfs in a State shall vest in the Board so established for the State, and it shall be the duty of the Board to ensure that the wakfs under its superintendence are properly maintained, controlled and administered and the income thereof is duly applied to the objects and for the purpose for which such wakfs were created or intended.
Sub section (2) enumerates the various functions of the Board.
The next stage is that of registration of wakfs.
That subject is dealt with in Chapter IV.
Section 25 lays down that every wakf, whether created before or after the commencement of the Act, shall be registered at the office of the Board.
Section 26 requires the Board to maintain a register of wakfs.
Under section 27, the Board is invested 158 with the power to decide whether a certain property is wakf property and reads as follows: "27.
(1) The Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not or whether a wakf is a Sunni wakf or a Shia Wakf, it may after making such inquiry as it may deem fit, decide the question.
(2) The decision of the Board on any question under sub section (1) shall, unless revoked or modified by a civil court of competent jurisdiction, be final.
" Section 28 empowers the Board to direct a mutawalli to apply for the registration of a wakf or to supply any information regarding a wakf, and the Board may itself cause the wakf to be registered or May at any time amend the register of wakfs.
The third stage then arises.
After completing the survey and finalising the registration of wakfs, the Board which is an administrative body, is empowered to supervise and administer wakf property.
Chapter V deals with mutawallis and wakf accounts.
This chapter provides in detail as to how mutawalli shall submit budget and tho accounts and in what manner the Board will be exercising its control over the wakf properties.
Section 36A relates to transfer of immovable property of wakfs.
According to this section, no transfer of the wakf property is valid without the previous sanction of the Board.
Section 36B empowers `the Board to recover certain wakf properties transferred without the previous sanction of the Board by sending a requisition to the Collector.
Chapter VI relates to the finance of tho Board.
Chapter VII to judicial proceedings and Chapter VIII to miscellaneous matters.
It would thus appear that the Act is a complete code dealing with the better administration and supervision of wakfs.
The High Court, in its considered opinion, in the light of the historical background and precedents, observed: " The present Act No. 29 of 1954 is, no doubt an improvement on the Mussalman Wakf Act, 1923, but in our view, this also does not empower the Board of Wakfs to decide the question whether a particular property is wakf property or not, if such a dispute is raised by a person who is a stranger to wakf.
" There is a considerable body of authority interpreting section 10 of the Mussalman Wakf Act 1923, in favour of the view that where 159 the existence of a wakf was itself in dispute, the District Judge had no jurisdiction to inquire into its existence, and the matter could be settled only by instituting a regular suit.
The question came up for consideration before several High Courts in India as will appear from Nasrulla Khan vs Wajid Ali, (1) Wahid Hasan vs Abdul Rahman,(2) Syed Ali Mohammed vs Collector ff Bhagalpur,(3) Mohammad Baqar vs Mohammed Qasim,(4) Nanha Shah vs Abdul Hasan,(5) and Abdul Hussain vs Mohmmad Ebrahim Riza.(x) The general trend of opinion was that the District Judge in dealing with in application under section 10) of that Act had, in the absence of a clear provision in that behalf, no jurisdiction to try an issue as to whether certain property was wakf property.
It was pointed out that if the legislature had the intention to confer such power, there would have been a provision like section S of Charitable and Religious Trusts Act, 1920.
In Abdul Hussain vs Mohmmad Riza (supra) it was observed: "Considering the terms of the enactment and the scope and purpose of the Act is clear that the legislature intended of income of wakf properties for the purpose of providing some control on the management of properties which are admittedly wakf.
It could not have intended to include hl its scope the enquiry into the vital questions whether the disputed property is wakf property and the person in possession of it is a mutwalli, which are questions of fundamental character such as could be the subject matter of a suit alone." Though sub section
(3) of section 4 of the Act is rather unhappily worded, of the .
The does, in our opinion, furnish a complete machinery for the better administration and supervision of wakfs.
Though sub section
(3) of section 4 of the Act is rather unhappily worded, it is not a sound principle of construction to interpret expressions used in one Act with reference to their use in another Act, and decisions rendered with reference to construction of one Act cannot apply with reference to the provisions of another Act, unless the two Acts are in pari materia.
Further, when there is no ambiguity in the (1) I.L.R. 52 All. 167.
(2) I.L.R. 57 All.
(3) A.I.R. 1927 Pat.
(4) I.L.R. 7 Luck.
601 (F.B.) (5) A.I.R. 1938 Pat.
(6) I.L.R. 160 statute, it may not be permissible to refer to, for purposes of its construction, any previous legislation or decisions rendered therein.
The questions that fall for determination upon the appeal are two; first, whether a Commissioner of Wakfs appointed under sub section
(1) of section 4 of the , has the jurisdiction under sub section (3) of section 4 to enquire whether a certain property is wakf property or not when such a dispute raised by a stranger to the wakf and second, if so, whether the failure of such a person to institute a suit in a civil court of competent jurisdiction for decision of such question within a period of one year, as provided for under sub section
(1) of section 6, makes the inclusion of such property in the list of wakfs published by the Board under sub s.(2) of section 5 of the Act final and conclusive under sub section (4) of section 6 It is needless to stress that the whole purpose of the survey of wakfs by the Commissioner of Wakfs under sub section
(1) of section 4 is to inform the Board of Wakfs, as to the existence of the existing wakfs in a State, in order that all such wakfs should be brought under the supervision and control of the Board of Wakfs.
While the High Court was, in our view, right in determining the scope of sub section
(1) of section 6 of the Act, it was clearly in error in cur tailing the ambit and scope of an enquiry by the Commissioner of Wakfs under sub section
(3) of section 4 and that by the Board of Wakfs under section 27 of the.
Act In dealing with the scope of enquiry by the Commissioner of Wakfs: under sub section
(3) of section 4, the High Court adverts to the,.
heading of Chapter II and the marginal note of sub section
(1) of section 4.
It observes: "The heading of section 4 with which this chapter started was 'Preliminary survey of wakfs '.
The use of the word 'Preliminary ' in the heading is one of significance.
The weight of authority is in favour of the view that the marginal note upended to a section cannot be used for construing the section.
Lord Macnaghten in Balraj Kunwar vs Jagatpal Singh(1) considered it well settled that marginal notes cannot be referred to for the purposes of construction.
This Court after referring to the above case with approval, said in Commissioner of Income Tax vs Ahmedbhai Umedbhai Umarbhai & Co.(2): "Marginal notes in an Indian statute, as in an Act of Parliament, cannot be referred to for the purpose of construe the statute." (1) ILR 26 All.
393 (P.C.) (2) ; 161 As explained by Lord Macnaghten in the Privy Council, marginal notes A are not part of an Act of Parliament.
The very heading of Chapter II and the caption to section 4 no doubt suggest that the Commissioner makes only a preliminary survey regarding existing wakfs and the list of wakfs prepared by him is published by the Board and neither the Commissioner nor the Board is required to make any enquiry regarding, the character of the property.
That is to say, the making of survey is only an administrative act and not a quasi judicial act.
But, on a closer examination, it is, clear that while making a survey of the existing wakfs in a State under sub section
(1) of 5. 4, the Commissioner is required by sub section
(3) to submit a report to the State Government in regard to the serval matters referred to in cls.
(a) to (f) thereof.
There may be a dispute as between the Board, the mutawalli or a person interested in the wakf, as regards (a) the existence of a wakf, i.e. whether a particular property is wakf property, (b) whether it is a Shia wakf or a Sunni wakf, (c) extent of the property attached to the wakf, (d) the nature and object of the wakf, etc.
While making such an enquiry, the Commissioner is invested by sub section
(4) with the powers vested in a civil court under the Code of Civil Procedure, 1908 in respect of the summoning and examining of any witness, requiring the discovery and production of any document, requisitioning any public record from any court or office, issuing commissions for the examination of any witness or accounts, making any local inspection or local investigation etc.
In view of these comprehensive provisions, it is not disputed before us that the enquiry that the Commissioner makes for the purpose of submission of his report under sub section
(3)? while making a survey of existing wakfs in the Estate under sub section (1), is not purely of an administration nature but partakes of a quasi judicial in character, in respect of the persons falling within the scope of sub section
(1) of section 6.
It would be illogical to hold that while making a survey of wakf properties existing in the State a Commissioner of Wakfs appointed by the State Government under sub section
(1) of section 4, should have no power to enquire whether a particular property is wakf property or not.
If we may refer to sub section
(1) of section 4, so far as material, it reads: "The State Government may, by notification in the official Gazette, appoint for the State a Commissioner of Wakfs. for the purpose of making a survey of wakf properties existing in the State at the date of the commencement of this Act.
" It will be clear that the words "for the purpose of making a survey of wakf properties" is a key to the construction of the section The 162 ordinary meaning of the word "survey", as given in the Random House Dictionary of English Language, is 'to take a general or comprehensive view of or appraise, as a situation '.
If the Commissioner of Wakfs has the power to make a survey, it is but implicit that in the exercise of such power he should enquire whether a wakf exists.
The making o such an enquiry is a necessary concomitant of the power to survey.
The High Court was clearly in error in observing: "Except sub section (5) there is nothing in section 4 or in the rules made by the State to show that the Commissioner is empowered to adjudicate on a question, if one arises, whether a particular property is a wakf property or not.
" We are of the opinion that the power of the Commissioner to survey wakf properties under sub section
(1) or to enquire and investigate into the several matters set out in cls.
(e) to (f) of sub section
(3) cannot be curtailed by taking recourse to Sub 5.
The High Court was wholly wrong in understanding the true implication of sub section
(5) of section 4.
It only lays down that if, during any such enquiry, any dispute arises as to whether a particular wakf is a Shia wakf or a Sunni wakf, and there are clear indications in the deed of wakf as to its nature, the dispute shall be decided on the basis of such deed.
It, therefore, makes the wakf deed conclusive as to the nature of the wakf, i.e. whether it is a Shia or a Sunni wakf.
In our view, sub s.(5) of section 4 cannot be projected into sub section
(1) for determining the question whether a certain property is a wakf property or not.
Nor does it enter into an enquiry as to several of the matters adverted into some of the clause of sub section (3).
The matter can also be viewed from another angle.
If sections 4, 5 and 6 are parts of an integrated scheme, as asserted, then it follows as a necessary corollary that the enquiry envisaged by sub sections (1) and (3) of section 4 must cover the field defined by sub section
(1) of section 6.
The opening words of the section are: "If any question arises whether a particular property specified as wakf property in a list of wakfs published under sub section (2) of section 5 is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf . " They clearly envisage that the enquiry by the Commissioner is not con fined to the question as to whether a particular wakf is Shia wakf or Sunni wakf.
It may also embrace within itself a dispute as to whether a wakf exists.
This is a conduction which sub section
(1) of s.4 must, in its context and setting, bear.
Any other construction would, indeed, make the Act unworkable.
163 While it is true that under the guise of judicial interpretation the court cannot supply casus omissus, it is equally true that the courts in construing an Act of Parliament must always try to give effect to the intention of the legislature.
In Crawford vs Spooner(1) the Judicial Committee said: "We cannot aid the legislature 's defective phrasing of an Act, we cannot add and mend, and, by construction, make up deficiencies which are left there." To do so would be to usurp the function of the legislation.
At the same time, it is well settled that in construing the provisions of a statute the course should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective.
Thus, an attempt must always be made to reconcile the relevant provisions so as to advance the remedy intended by the statute.
It would certainly have been better if the legislature had inserted a provision like section 6 C incorporated in the Mussalman Wakf Act, 1923 by the Mussalman Wakf (Bombay Amendment) Act, 1935, which was in force in the States of Maharashtra and Gujarat, namely: "6 C. Power of the Court to enquire: (1) The court may, either on its own motion or upon the application of any person claiming to have an interest in a wakf, hold an enquiry in the prescribed manner act any time to ascertain (i) whether a wakf exists.
" Failure to insert such a provision in sub.
(3) of section 4, however, is of little consequence.
As already indicated, the power of the Commissioner to make a survey of existing wakf properties, carries, with it, by necessary implication, the power to enquire as to the existence of a wakf.
Perhaps, the legislature thought it to be a superfluity.
That leaves us with the question as to the scope of sub section
(1) of section 6.
All that we have to consider in this appeal is, whether if the Commissioner of Wakfs had jurisdiction to adjudicate and decide against the respondents Nos.
l and 2 that the property in dispute was wakf property, the list of wakfs published by the Board of Wakfs under sub section
(2) of 5. 5 would be final and conclusive against them under section 6(4) in case they had not filed a suit within a year from the publication of the lists The question as to whether the respondents Nos. 1 and 2 can be dispossessed, or their possession can be threatened by the Board of Wakfs by proceeding under section 36B without filing a suit in a civil court of competent jurisdiction does not arise for our consideration (1) [1846] 6 Moors P.C. 1.
164 In the present case, the respondents Nos. 1 and 2 who are non Muslims, contended that they are outside the scope of sub section
(1) of section 6, and consequently, they have no right to file the suit contemplated by that sub section and, therefore, the list of wakfs published by the Board of Wakfs under sub section
(2) of S!.
5 cannot be final and conclusive against them under sub section
(4) of section 6, it was urged that respondents Nos,. 1 and 2 were wholly outside the purview of sub section
(1) of section 6 and they must, therefore, necessarily fall outside the scope of the enquiry envisaged by sub section
(1) of section 4, as the provisions contained ' in sections 4, 5 and 6 form part of an integrated scheme.
The question that arises for consideration, therefore, is as to who are the parties that could be taken to be concerned in a proceeding under sub section
(1) of section 6 of the Act, and whether the list published under subs.
(2) of section S declaring certain property to be wakf property, would bind a person who is neither a mutawalli nor a person interested in the wakf.
The answer to these questions must turn on the true meaning and construction of the word 'therein ' in the, expression 'any person interest ted therein ' appearing in sub section
(1) of section 6.
In order to understand the meaning of the word 'therein ' in our view, it is necessary to refer to the preceding words 'the Board or the mutawalli of the wakf '.
The word 'therein ' must necessarily refer to the 'wakf ' which immediately pre cedes it.
It cannot refer to the 'wakf property '.
Sub section (1) of section 6 enumerates the persons who can file suits and also the questions in respect of which such suits can be filed.
In enumerating the persons who are empowered to file suits under this provision, only the Board, the mutawalli of the wakf, and 'any person interested therein ', thereby necessarily meaning any person interested in the wakf, are listed.
It should be borne in mind that the Act deals with wakfs, its institutions and its properties.
It would, therefore.
, be logical and reasonable to infer that its provisions empower only those who are interested in the wakfs to institute suits.
In dealing with the question, the High Court observes: "In our opinion, the words "any person interested therein" appearing in sub section (1) of section 6 mean no more than a person interested in a wakf as defined in clause (h) of section 3 of the Act It is urged by learned counsel for the petitioners that the legislature has not used in section 6(1) the words "any person interested in a wakf" and, therefore, this meaning should not be given to the words "any person interested therein".
This argument is not tenable because the words "any person inte 165 rested therein" appear soon after "the mutawalli of the wakf" A and therefore the word 'therein ' has been used to avoid re petition of the words "in the wakf" and not to extend the scope of the section to persons who fall outside the scope of the words "person interested in the wakf".
The purpose of section 6 is to confine the dispute between the wakf Board, the mutawalli and a person interested in the wakf.
" That, in our opinion, is the right construction.
We are fortified in That view by the decision of this Court in Sirajul Hag Khan & ors.
vs The Sunni Central Board of Wakf, U.P. & ors While construing section 5(2) of the United Provinces Muslins Wakf Act, 1936, this Court interpreted the expression "any person interested in a wakf" as meaning 'any person interested in what is held to be a wakf ', that is, in the dedication of a property for a pious, religious or charitable purpose.
It will be noticed that sub section
(1) of section 6 of the Act is based in sub section
(2) of section 5 of the United Provinces Muslims Wakf Act, 1936, which runs thus: "The mutawalli of a wakf or any person interested in a wakf or a Central Board may bring a suit in a civil court of competent jurisdiction for a declaration that any transaction held by the Commissioner of Wakfs to be a wakf is not a wakf, or any transaction held or assumed by him not to be a wakf, or that a wakf held by him to pertain to a particular sect does not be long to that sect, or that any wakf reported by such Commissioner as being subject to the provisions of this Act is exempted under section 2, or that any wakf held by him to be so exempted is subject to this Act.
" The provision to that section prescribed the period of one year 's limitation, as here, to a suit by a mutawalli or a person interested in the wakf.
The two provisions are practically similar in content except that the language of the main enacting part has been altered in sub section
(1) of section 6 of the present Act and put in a proper form.
In redrafting the section, the sequence, of the different clauses has been changed, therefore, for the expression "any person interested in a wakf" the legislature had to use the expression "any person interested therein".
The word 'therein ' appearing in sub section
(1) of section 6 must, therefore, mean 'any person interested in a waker ' as defined in section 3(h).
The object of sub section
(1) of s 6 is to narrow down the dispute between the Board of Wakfs, the mutawalli and the person interested in the wakf, as defined in section 3 (h) (1) 166 In this context, the scope of section 6 was examined by the High Court and it observed: "The purpose of sec.
6 is to confine the dispute between the Wakf Board, the mutawalli and a person interested in the wakf.
In other words, if there is a dispute whether a particular property is a wakf property or not, or whether a wakf is a Shia wakf or a Sunni wakf, then the Board or the mutawalli of the wakf or a person interested in the wakf as defined in sec.
3 may institute suit in a civil court of competent jurisdiction for the decision of the question.
They can file such a suit within one year of the date of the publication of the list of wakfs and if no such suit is filed, the list would be final and conclusive between them.
The very object of the Wakf Act is to provide for better administration and supervision of wakfs and the Board has been given powers of superintendence over all wakfs which vest in the Board.
This provision seems to have been made in order to avoid prolongation of triangular disputes between the Wakf Board, the mutawalli and a person interested in the wakf who would be a person of the same community.
It could never have been the intention of the legislature to cast a cloud on the right, title or interest of persons who are not Muslims.
That is, if a person who is non Muslim whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other re ligneous denomination and if he is in possession of a certain property his right, title and interest cannot be put in jeopardy simply because that property is included in the list published under sub sec.
(2) of Sec. 5.
The Legislature could not have meant that he should be driven to file a suit in a Civil Court for declaration of his title simply because the property in his possession is included in the list.
Singularly, the legislature could not have meant to curtail the period of limitation available to him under the Limitation Act and to provide that he must file a suit within a year or the list would be final and conclusive against him.
In our opinion, sub section (4) makes the list final and conclusive only between the Wakf Board, the mutawalli and the person interested in the wakf as defined in Section 3 and to no other person.
" We are in agreement with this reasoning of the High Court.
It follows that where a stranger who is a non Muslim and is in possession of a certain property his right, title and interest therein cannot be 167 put in jeopardy merely because the property is included in the List.
Such a person is not required to file a suit for a declaration of his title within a period of one year.
The special rule of limitation laid down in proviso to sub section (1) of section 6 is not applicable to him.
In other words, the list published by the Board of Wakfs under sub section
(2) of section S scan be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises.
Incidentally, the High Court also dealt with section 27 of the Act, and observed.
"section 27 does not seem to suggest that it empowers the Board to decide the question whether a particular property is wakf property or not, if that challenge comes from a stranger who is neither mutawalli nor a person interested in the wakf, but who belongs to another religious denomination and who claims a valid title and lawful possession over that property.
To ac kept the respondents argument would mean that the Board would be given the powers of the Civil Court to decide such disputes between itself and strangers and thus to make the Board 's decision final unless it is changed by a Civil Court of competent jurisdiction.
If a dispute is raised by a non Muslim, the Board cannot by simply entering the property in the register of wakfs drive him to take recourse to a Civil Court In our judgment, the High Court was clearly in error in dealing with section 27 or section 36B of the Act.
It appears from the writ petition field the High Court that no relief was as sought in respect of any action under section 27.
The observations of the High Court were, therefore, strictly not called for in regard to section 27.
It should have left the question open.
The question may arise if and when, action under section 27 is taken.
We, therefore, refrain from expressing any opinion as to the scope of section 27 of the Act.
Likewise, the High Court went on to consider the impact of section 36B, and observed: "In our opinion, this section cannot apply in the case of a property which is in the hands of a stranger over whom the Board has no control under the Act, simply because the Board happens to enter the property in its register.
In a case like the present one, where the petitioners claim their possession over the property as mortgagees from the year 1944 and fur their claim their title and possession as vendees over the same property from the year 1954, the Board of Wakfs cannot, by 168 simply entering the property in the list of wakfs or registering it in the register of wakfs, drive them to file a suit to establish their title or retain their possession.
It cannot also seek to dispossess them from the property by resorting to section 36B.
It is for the Board to file a civil suit for a declaration that the property in dispute is a wakf property and to obtain its possession.
" It was really not necessary for the High Court to decide whether section 36B of the Act was attracted or not, in the facts and circumstances of the case.
We must accordingly held that the Commissioner of Wakfs acted within jurisdiction in holding the disputed property to be wakf property.
It must, therefore, follow that the Board of Muslim Wakfs, Rajasthan was justified in including the property in the list of wakfs published under sub section
(2) of section S of the Act.
We must also hold, on a construction of sub section
(1) of section 6 that the list of wakfs so published by the Board was not final and conclusive under sub s (4) of section 6 against the respondents Nos.
l and 2 due to their failure to bring a suit within one year as contemplated by sub section (1) of section 6.
In view of the foregoing, the right of the respondents Nos. 1 and 2 in respect of the disputed property, if at all they have any, will remain unaffected by the impugned notification.
They are at liberty to bring a suit for the establishment of their right and title, if any, to the property.
Accordingly, the order of the High Court allowing the writ petition and declaring that the inclusion of the property in dispute in the list of wakf published by the Board bf Muslim Wakfs, Rajasthan under sub section
(2) of section 5 of the was not binding on the respondents Nos. 1 and 2 is upheld, but its direct restraining the Board of Muslim Wakfs from entering the disputed property in the register of wakfs and from dispossessing the respondents Nos. 1 and 2, except by way of a suit in a civil court of competent jurisdiction is set aside as it proceeds on the assumption that sections 27 and 36B of the Act are not applicable, which question did not arise for its consideration.
The parties are left to take recourse to their remedies according to law, with advertence to the observations made above, Subject to this modification, the appeal fails and is dismissed.
There shall he no order as to costs.
P.B.R. Appeal Dismissed.

summary/full:
To provide for the better administration and supervision of Wakfs, the Wakfs Act 1954, sought to bring the management of wakfs under the supervision of the State.
The Act envisages the appointment of a Commissioner of Wakfs for the purpose of survey of wakf properties existing at the time of the commencement of the Act.
The Commissioner is enjoined to submit his report to the State Government after making such enquiries as he may consider necessary.
While making enquiries the Commissioner is invested with powers as are vested in a Civil Court under the Code of Civil Procedure.
Section 6 of the Act provides that if any question arises as to whether a particular property specified in the list of wakfs published under section 5(2) was wakf property or not and such other related matters, the Board of Muslim Wakfs or the Mutawalli of the wakf or any person interested therein may institute a suit in a Civil Court for decision of the question.
Respondents 1 and 2 were mortgagee purchasers of the property in dispute, which was claimed to be wakf property.
Respondent.
No. 3 in his application to the Commissioner of Wakfs alleged that the property in dispute being wakf property its transfer by the mutawalli to the respondents was invalid and prayed that the property be taken over by the wakf committee.
While denying that the property in dispute was wakf property respondents 1 and 2 contended before the Commissioner that he had no jurisdiction to make an enquiry whether a particular property was wakf property or not.
The Commissioner rejected these contentions and submitted a report to the State Government.
On receipt of the Commissioner 's report the Board of Muslim Wakfs included the property in the list of wakfs in the Stat.
In the respondents ' Writ Petition, the High Court held (i) that the jurisdiction of the Board of Wakfs was confined to matters of administration of the wakfs and not to adjudication of questions of title and that the Act did not invest either the Board or the Commissioner with power to decide the question whether a property belonged to a wakf or not and therefore the Commissioner had no jurisdiction under section 4(3) of the Act to enquire whether or not the property was wakf property and (ii) that the failure of a stranger to the wakf to institute a suit in a court of competent jurisdiction within a period of one year on the question whether a particular property was wakf property or not could not make the inclusion of such property in the list of wakfs final and conclusive.
149 In appeal to this Court it was contended on behalf of the appellants that (i) the words "for the purpose of making a survey of wakf properties" are wide enough to confer power on the Commissioner to investigate and adjudicate upon the question whether a particular property was or was not wakf property and (ii) failure of the respondents to file a suit within the time allowed by s, 6(1) made the inclusion of the property in the list of wakfs final and conclusive.
The word "therein" occurring in "any person interested therein" in section 6 ( 1 ) qualifies the words "wakf property" and not "person interested in the wakfs" as wrongly assumed by the High Court.
Dismissing the appeal to this Court ^ HELD: While the High Court was right in determining the scope of section 6(1), it was clearly in error in curtailing the ambit and scope of enquiry by the Commissioner under section 4(3 ) .
[160 E] 1.
(a) The Commissioner of wakfs acted within his jurisdiction in holding the disputed property to be wakf property.
[168 C] (b) The whole purpose of the survey of the wakfs by the Commissioner under section 4(1) is to inform the Board of Wakfs as to existence of the wakfs in the State in order that all such wakfs should be brought under the supervision and control of the Board.
[160 D] (c) The words "for the purpose of making a survey" are the key to the construction of the section.
If the Commissioner has the power to make a survey it is but implicit that in the exercise of such power he should enquire whether or not a wakf exists.
The making of such an enquiry is a necessary concomitant of the power to survey.
The High Court was, therefore, wrong in holding to the contrary.
[162 A Bl (d) It would be illogical to hold that while making a survey of wakf properties existing in the State the Commissioner of wakfs should have no power to enquire whether a particular property was wakf property or not.
After making the survey the Commissioner is required to submit a report to the State Government in regard to the several matters referred to in clauses (a) to (f) thereof.
There may be a dispute as between the Board, the mutawalli or a person interested in the wakf, as regards the existence of wakf i.e. whether a particular property is wakf property, whether it is a Shia wakf or a Sunni wakf, the extent of the property attached to the wakf, the nature and object of the wakf and so on.
While making such an enquiry, the Commissioner is invested with the powers vested in a Civil Court under the Code of Civil Procedure, 1908.
In view of the comprehensive provisions contained in the Act the enquiry which the Commissioner makes is not purely of an administrative nature but partakes of a quasi judicial character in respect of persons falling within the scope of section 6(1).
[161 F; C E] (e) The power of the Commissioner to survey wakf properties or to enquire and investigate into the several matters set out in sub section (3) cannot be curtailed by taking recourse to section 4(S).
Sub section (S) only lays down that, if during an enquiry any dispute arises as to whether a particular wakf is a Shia wakf or Sunni wakf and if there are clear indications in the deed of wakf as to its nature, the dispute shall be decided on the basis of 150 such deed.
It, therefore, makes the wakf deed conclusive as to the nature of the wakf Sub section (5) cannot be projected into sub section (1) determining the question whether a certain property is a wakf property or not.
Nor does it enter into an enquiry as to several of the matters adverted to in some of the clauses of sub section (3).
[162 D E] (f) Moreover section 6 and section 6(1) clearly envisage that the enquiry by the Commissioner was not confined to the question as to whether a particular wakf was a Shia Wakf or Sunni Wakf.
It might also embrace a dispute is to whether a wakf existed or not.
[162 H] 2.
(a) Where a stranger is a non Muslim and is in possession of certain property, his right.
title and interest therein cannot be put in jeopardy merely because the property is included in the list of wakfs.
Such a person is not required to file a suit for a declaration of his title within a period of one year.
The special rule of limitation laid down in proviso to section 6(1) is not applicable to him.
In other words, the list published by the Board of Wakfs under section 5(2) can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises.
h 167 A B] (b) The word "therein" occurring in section 6(1) after the words "any person interested therein" must necessarily refer to the "Wakf" which immediately precedes it.
It cannot refer to the wakf property.
Section 6 ( 1 ) enumerates the persons who can file suits and also the questions in respect of which such suits can be filed.
In enumerating the persons who are empowered to file suits under this provision only the Board, the mutawalli of the Wakf; and "any person interested therein", thereby necessarily meaning any person interested in the wakfs, are listed.
Its provisions empower only those who are interested in the wakfs to institute suits.
[164 E Fl Sirajul Hag Khan & Ors.
vs The Sunni Central Board of Wakf, U.P. Ors., , referred to.
(c) The word "therein" in section 6(1) must mean "any person interested in a wakf" as defined in section 3(h).
The object of the section is to narrow down the dispute between the Board of Wakfs, the Mutawalli and the person interested in the wakf as defined in section 3(h).
[165 H] (d) The right of the respondents 1 and 2 in respect of the disputed property, if at all they have any, will remain unaffected by the impugned Notification.
They are at liberty to bring a Suit for the establishment of their right and title, if any, to the property.
[168 E]


judgement:
Special Leave Petition (Civil) No. 2939 of 1978.
Appeal from the Judgment and order dated 4 10 1978 of the Gujarat High Court in Special Civil Application No. 1174 of 1977.
M. V. Gowswami for the Petitioner.
P. M. Raval, P. H. Parekh, C. B. Singh and M. Mudgal for the Respondent.
339 The order or the Court was delivered by KRISHNA IYER, J. The petitioner 's counsel, in his fighting submission, argues that his client 's fundamental right to a licence for a meat shop has been flouted by the little Limdi Municipality, founding himself on a decision of this Court in Mohd. Faruk, vs M. P. State(1).
That decision hardly helps.
There a byelaw was challenged as violative of Art 19(1)(g).
Here there is no law whatever which bans the grant of meat licences.
Indeed, there are three other licensed meat stalls and the petitioner himself had a meat licence in a shop leased to him by the same Municipality earlier which by efflux of time had expired.
The law vests a discretion to he reasonably exercised in the content of citizen 's fundamental right.
The ground on which the Municipal body has refused licence here is not irrelevant and cannot be described as unreasonable within the meaning of article 19(6) of the Constitution.
The bye laws permit the municipality, as the licensing authority, to grant or to refuse licences.
No butcher, baker or circus manager can say that he has the, unqualified right to get a licence on mere application.
It is open to the licensing council indeed, is obligatory on its part to take note of all relevant circumstances and then decide whether, in the particular spot chosen by the particular applicant" a licence should be granted.
Various factors enter the verdict and the local authorities are the best judge of these factual factors, not the court, especially this Court sitting at the third tier.
The, Limdi Municipality is stated to be a small one with a population of around 25000.
It is admitted that there are three licensed meat vendors including one who is the father of the petitioner.
The claim of the petitioner is for a fourth licence.
It is quite conceivable that the fourth may be supernumerary.
It is quite understandable that the municipality may think that it is not reasonable to grant licence to the same person or one for the father and another for the son.
Moreover, we cannot dismiss as irrelevant or obnoxious the consideration the strong feelings of the local people resulting in law and order problems.
The proximity to schools, public institutions and also residents of the locality plus the reaction or impact on those institutions and residents maybe germane from peace keeping and welfare oriented view points.
We agree that local bodies should not succumb to religious susceptibilities or fanatical sentiments in secular India and refuse licences where fundamental rights have to be respected.
Even so, in the, totality of circumstances present in the present case, it is not possible for us to postulate that there has been an abuse of discretion or a perverse use of power.
In this view, we decline to interfere.
Certainly, the munici (1) [1978] I SCR 156.
340 pal authority will take care to be alert and alive to the fundamental right of citizens and not refuse licences merely scared by mob sentiment or panicked by religious reaction.
In the instant case there is a composite lease cum cum lease of a meat shop and licence for carrying on trade in mutton.
There is no obligation on the part of the municipality to grant a lease of its property to any one who asks for it merely for the asking.
Granting a lease solely because some one offers a large donation to the municipality.
as nearly happened here, may not be correct, which this local body will note.
If the refusal of the lease or its renewal cannot be faulted, the question of grant of the licence does not arise.
In this view also we ( find it difficult to accede to the argument of the petitioner.
We agree that municipal discretion should be exercised rationally, not religiously nor ritually, but we also realize that judicial discretion should go into anxiously, not impetuously nor in disregard of the pragmatic guideline that local authorities are the best judges of local conditions.
Of course, if irrelevant criteria or perverse application vitate the decision courts will guardian the rule of law against little tyrants trampling over people 's rights or local factions fouling the council 's verdict.
The Special Leave Petition is, therefore, dismissed.

dataset_name: IN-Abs

summary/full:
Dismissing the special leave petition, the Court, ^ HELD: 1.
No butcher, baker or circus manager can say that he has the unqualified right to get a licence on mere application.
It is open to the licencing Council Indeed, is obligatory on its part to take note of all relevant circumstances and then decide whether, in the particular spot chosen by the particular applicant, a licence should be granted or not.
[339C D] 2.
Various factors enter the verdict and the local authorities are the best judge of the factual factors, not the Court especially, the Supreme Court at the third tier The factual factors may be many, like the proximity to schools, public institutions and also residents of the locality plus the reaction or impact on those institutions and residents, the unreasonableness to grant licence to the same person or one for the father and another for the son, the need for an extra shop, other considerations which are germane from peace keeping and welfare oriented view points etc.
Certainly granting a lease solely because someone offers a large donation to the Municipality may not be correct.
[339D. G, 340B] 3.
No doubt Municipal discretion should be exercised rationally, not religiously nor ritually and judicial discretion should go into anxiously, not impetuously nor in disregard of the pragmatic guideline that local authorities are the best judges of local conditions.
Of course, if irrelevant criteria or perverse application vitiate the decision, courts will guardian the rule of law against little tyrants trampling over people 's rights or local factions fouling the council s verdict.
[340C D] In the instant case, the ground on which the Municipal body, has refused licence is not irrelevant and cannot be described as unreasonable within the meaning of article 19(6) of the constitution.
[339C] Mohd. Faruk vs M. P. State, ; ; inapplicable.


judgement:
ON: Criminal Appeal No. 193 of 1974.
Appeal by Special Leave from the Judgment and order dated 1 3 1974 of The Delhi High Court in Criminal Appeal No. 119/72.
Frank Anthony, N. section Das Bahl and Shushil Kumar for the appellant.
E. C. Agarwala and R. M. Sachthey for the Respondent.
ii The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The appellant before us was convicted by the learned Special Judge, Delhi of an offence under Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act and Section 161 Indian Penal Code, and sentenced to suffer rigorous imprisonment for a period of one year on each count.
He was also sentenced to pay a fine of Rs. 100/ .
The conviction and sentence were confirmed by the High Court and the appellant has come up in appeal by special leave.
The prosecution case briefly was as follows: P.W. 6 Ram Niwas Sharma, an Architect by profession prepared building plans for one M.L. Batla and submitted them to the Delhi Development Authority for sanction.
The plans were submitted on 6th May, 1969.
They were rejected on 26th May, 1969.
Revised plans were thereafter submitted on 16th June, 1969.
Certain objections were raised and in order to comply with those objections P.W.6 went to the office of the Delhi Development Authority on 11 7 1969.
He met the accused who was overseer Section officer and asked him to be permitted to make necessary corrections in the building plans.
Instead of giving the file to P.W.6 the accused demanded a sum of Rs. 30/ as bribe.
P.W.6 told him that he did not have the money with him whereupon the accused asked him to come on 14th July, 1969, in the afternoon with the money.
On 1 4th July, 1969.
P.W.6 went to the AntiCorruption office at about 12 noon and 332 gave a report exhibit P.W.1/A to P.W.9, an Inspector of the Anti Corruption Establishment.
P.W.9 sent for P.Ws. 1 and 2 from the Sales Tax office.
The report made by P.W.6 was read over to them.
Thereafter, P.W.6 produced three ten rupee notes, the numbers of which were noted by P.W.9 in the presence of the Panch witnesses P.Ws. 1 and 2.
Thereafter it was arranged that they should all proceed to the office of the Delhi Development Authority.
There P.W. 5 was to give the bribe to the accused and on his giving the bribe to the accused, P.W. l was to give a signal to P.W. 9.
As arranged P.W.6 went to the office of the Delhi Development Authority alongwith Panch witnesses.
The Inspector stopped at the door of the room.
P.W.6 went to the table of the accused and asked him for the file for the purpose of making necessary corrections in the building plans.
The accused asked him if he has brought the money.
On his saying 'yes ' the file was taken out and given to P.W. 6.
As there were a number of other files on the table the accused, P.W. 6 took the file to another table at a distance of one or two paces from the table of the accused.
After making the corrections P.W. 6 handed over the file to the accused alongwith Its. 30/ .
Instead of taking the money the accused asked P.W. 6 to place the money in the file which he accordingly did.
The accused ' then took the file and placed it under the table, putting his foot on it.
At that stage P.W. 1 gave the agreed signal.
P.W. 9 came to the room, disclosed his identity to the accused and questioned him whether he had accepted Rs. 30/ from P.W. 6.
The accused was stunned and kept mum.
P.W. 9 was then informed by P.W. 6 and the two panch witness that the money was kept in the file under the foot of the accused.
P.W. 9 then took out the file and found the sum of Rs. 30/ in the file.
The numbers of the currency notes were compared with the numbers earlier noted at the Anti Corruption office.
Thereafter, r w. g sent the raid report.
On receipt of it, P.W. 7, Deputy Superintendent of Police took over the investigation.
After completing the investigation, a charge sheet was laid and the accused was duly tried, convicted and sentenced as aforesaid.
The defence of the accused was that P.W. 6 met him on 11th July, 1969 and.
wanted to make some corrections.
He told him that he should file the original sale deed.
P.W. 6 then said that he should come on Monday with the original sale deed.
On 14th July 1969, P.W. 6 came to his office and wanted the file for making the necessary.
corrections.
He took out the file and gave it to P.W 6.
P.W. 6 took the file to another table and brought it back to him after Or 3 minutes.
According to the accused, P.W. 6 must have put the money into the file when he had taken the file to the other table.
When the Police officer came in and questioned him about the receipt of the 333 bribe his straight away told him that he had not taken any money from P.W. 6.
According to the accused, P.W. 6 was annoyed with him on 11th July, 1969, as he thought that he (accused) was delaying his work.
He also stated that Mr. Batla the owner of the plot had threatened him with dire consequences because he had raised objections to the plans submitted by him.
Both the Panch witnesses examined by the prosecution did not fully support the prosecution case.
They resiled from the earlier statement made by them during the course of investigation.
P.W. 1 stated that when P.W. 6 went into the room where the accused was working there was some talk between P.W. 6 and the accused but he did not hear what it was.
He saw the accused taking out the file from the Almirah and giving it to P.W. 6.
P.W. 6 took it to another table and was writing something in the file.
Then he took back the file to the accused.
The accused was busy with his own work.
The complainant placed three ten Rupee notes in the file and handed over the file to the accused who placed it under the table near his feet.
P.W.6 signalled to him and he gave the agreed signal.
The Inspector then entered the room and questioned the accused about the receipt of the bribe.
The accused denied the charge.
He (P.W.1) then informed the Inspector that the money was in the file.
The money was recovered from the file.
The prosecution was permitted to cross examine him.
In cross examination his earlier statements to the Investigating officer were put to him.
He admitted in cross examination that when questioned by the Inspector the accused kept silent for some time as he was perplexed but thereafter told the Inspector that he had not taken any money.
The evidence of the other witness P.W. 2 was on the same lines as P.W. 1 except that he stated that when questioned by the Inspector the accused kept mum and was perplexed.
P.W. 2 was also cross examined by the prosecution and the statements made by him to the Investigating officer were put to him.
Shri Frank Anthony learned Counsel for the appellant submitted that the conviction was based on the uncorroborated testimony of P.W. 6 and that it should, therefore, be quashed.
He urged that Batla, Advocate who had employed P.W.6 as an Architect had been convicted in a Criminal case and that the present complaint was inspired by Batla who had previously threatened the accused with direct consequences.
He pointed out that P.Ws. 1 and 2 stated in their evidence that Batla was actually present in the Anti Corruption office when they were called there by the Inspector.
He invited our attention to the circumstance that some persons were standing near the table of the accused at the time when the bribe was supposed to have been given 334 and argued that it was most unlikely that the accused would have demanded and accepted the bribe when so many people were nearby. 'the learned Counsel further urged that the evidence of P.W.6 that he went to the office of the D.D.A. at 3 or 3.15 p.m.
On 11th July, 1969 could not be true as the noting on the file showed that the file was received at 4.45 p.m.
It was also contended that the lower Courts had erred in law in relying upon the statements made by P.Ws. 1 and 2 to the Police.
It was argued that the evidence of P.Ws. 1 and 2 rendered the evidence of P.W.6 entirely unacceptable.
It was further contended that the lower Courts were wrong in treating the conduct of the accused when questioned by the Police officer as a circumstance against him.
We are unable to agree with the submission of Shri Anthony that no conviction can ever be based on the uncorroborated testimony of a person in the position of P.W.6 who, for the sake of felicity may be described as a "trap witness '.
That a trap witness may perhaps be considered as a person interested in the success of the trap may entitle a Court to view his evidence as that of an interested witness.
Where the circumstances justify it, a Court may refuse to act upon the uncorroborated testimony of a trap witness.
On the other hand a Court may well be justified in acting upon the uncorroborated testimony of a trap witness if the Court is satisfied from the facts and circumstances of the case that the witness is a witness of truth.
Shri Anthony referred us to the decisions of this Court in Ram Prakash Arora vs The State of Punjab,(1) and Darshan Lal vs The Delhi Administration.(3) In the first case Grover, J., observed as follows: "It must be remembered that both Joginder Singh and Dalbir Singh P.Ws. were interested and partisan witnesses.
They were concerned in the success of the trap and their evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person".
All that Grover J., said was that in an appropriate case corroboration may be sought and not that corroboration should invariably be sought In the particular case it was found that the witnesses could not be implicitly relied upon and, therefore, corroboration was necessary.
In the second case a string of circumstances was noticed which made it necessary that evidence of the witnesses who had laid the trap should not be acted upon without independent corroboration.
This (1) A.I.R. 1973 S.C. 498.
(2) A.I.R. 1974 S.C. 218.
335 decision also does not lay down that the uncorroborated testimony of a trap witness can never be acted upon.
That the law did not require any such corroboration was laid down in The State of Bihar.
vs Basawan Singh(1), and Bhanuprasad Hariprasad Dave and Anr vs The State of Gujrat (2).
In Bhanuprasad 's case it was observed by Hegde J., as follows: (at p. 1326): "Now coming back to the contention that the appellants could not have been convicted solely on the basis of the evidence of Ramanlal and the police witnesses, we are of opinion that it is an untenable contention.
The utmost that can be said against Ramanlal, the Dy.
S.P., Erulker and Santramji is that they are partisan witnesses as they were interested in the success of the trap laid by them.
It cannot be said and it was not said that they were accomplices.
Therefore the law does not require that their evidence should be corroborated before being accepted as sufficient to found a conviction".
We have carefully gone through the evidence of P.W. 6.
After perusing the evidence of P.W. 6 we are left with the impression that P.W. 6 is a truthful witness, an impression which we share with the High Court, the final Court of fact.
He has given evidence in a straight forward manner and was unshaken in cross examination.
We are unable to discover any reason to discredit his testimony.
The suggestion which was made to him was that he was aggrieved with the accused as he thought that he was unnecessarily raising objections, That he had a hot altercation with him and that he went to the Anti Corruption office with the help of Shri Batla.
The suggestions are without substance.
P.Ws. 1 and 2 no doubt stated that Shri Batla was present in the Anti Corruption office when they were called there by P.W. 9, the Inspector.
We do not have the slightest doubt that P.Ws. 1 and 2 are not truthful witnesses and that they have given evidence in order to accommodate the accused.
Their evidence on important particulars was contradicted by their earlier statements to the Police.
Here we may refer to the grievance of Shri Anthony that the Trial Judge and the High Court treated the statements made by P.Ws. 1 and 2 to the Police as substantive evidence.
There is no justification for the grievance.
The witnesses, who were treated as hostile by the Prosecution were confronted with their earlier statements to the Police and their evidence was rejected as it was contradicated by their earlier statements.
Such use of the statements (1) ; (2) ; 336 is premissible under section 155 of the Evidence Act and the proviso to section 162(1) of the Code of Criminal Procedure read with section 145, Evidence Act.
Corroboration to the evidence of P.W. 6, if considered necessary, may be found in the following circumstances: First, his evidence is corroborated by the report Exh.
PW. 1/A which he gave to P.W. 9 that day.
Second, his evidence is corroborated by the conduct of the accused when he was questioned by P.W. 9.
P.W. 6 stated that when P.W. 9 entered the room and questioned the accused whether he had accepted Rs. 30/ from him, the accused was stunned and did not reply.
P.W. 9 also stated that the accused kept mum when challenged.
P.W. 2 stated that the accused did not reply and kept mum but added that the accused was perplexed.
Though P.W. 1 first stated in his chief examination that the accused, when questioned denied having received any bribe, later he reluctantly admitted ill cross examination that the accused kept silent for some time as he was perplexed and then denied that he had received any bribe.
The immediate reaction of the accused on being questioned by P.W. 9 is a circumstance which corroborates the testimony of P.W. 6.
another a circumstance which corroborates the testimony of P.W. 6 is that the accused was ready with the file and handed it over to P.W. 6 as soon as he asked for it, indicating thereby that the statement of P.W. 6 that the accused had asked him to come on the afternoon of 14th July, 1969, was true.
Yet another important circumstance which corroborates the evidence of P.W. 6 is that after P.W. 6 handed over the file to the accused he kept it under the table.
It was contended by the learned Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by Section 167 Criminal Procedure Code.
He relied on a decision of the Andhra Pradesh High Court in D. V. Narasimhan vs State.(1) We do not agree with the submissions of Shri Anthony.
There is a clear distinction between The conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police officer in the course of an investigating which is hit by Section 162 Criminal Procedure Code.
What is excluded by Section 162 Criminal Procedure Code is the statement made to a Police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police officer during (1) A.I.R. 1969 A.P. 271.
337 the course of an investigation.
For example, the evidence of the circumstance, simpliciter, that an accused person led a Police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act [vide Himachal Pradesh Administration vs Om Prakash(1).
The decision of the Andhra Pradesh High Court on which Shri Anthony placed reliance does not support his contention. 'where the learned Judges were not prepared to go into the question whether the evidence relating to the conduct of the accused was admissible as that question did not directly arise for consideration.
On the other hand in Zwinglee Ariel vs State of Madhya Pradesh(2), this Court appeared to be inclined to hold that evidence to the effect that the accused started trembling and showed signs of being frightened on being;, questioned by the Police officer, if proved, was admissible, and, in Rao Shiv Bahadur Singh and Anr.
vs State of Vindhya Pradesh(3), and, State of Madras vs A. Vaidyanatha Iyer(4), this Court actually relied on evidence relating to the conduct on the accused on being confronted by the Police officer with the allegation that he 'had received a bribe.
In Rao Shiv Bahadur Singh case the evidence relating to conduct on which reliance was placed was to the effect that the accused was confused and could furnish no explanation when questioned by the Police officer.
In Vaidyanatha Iyer 's case also evidence to the effect that the accused was seen trembling and that he silently produced the notes from the folds of his dhoti was acted upon.
We, therefore, do not see any reason to rule out the evidence relating to the conduct of the accused, which lends circumstantial assurance to the testimony of P.W. 6.
On a consideration of the entire evidence we arc satisfied that the appellant was rightly convicted.
The other points mentioned by Shri Anthony are of a minor character and do not warrant any interference under Article 136 of the Constitution.
The appeal is accordingly dismissed.
M.R. Appeal dismissed.
(1) ; (2) A.I.R. 1954 S.C. 15.

summary/full:
Prakash Chand an overseer Section officer in the Delhi Development Authority office, was charged under section 5(1)(d) read with 8.
5(2) of the Prevention of Corruptions Act and section 161 IPC, for demanding and accepting Rs. 30/ bribe from the trap witness Ram Niwas Sharma.
an architect, for permitting him to make some necessary corrections in the building plans submitted by him to comply with certain objections raised by the D.D.A. On a report by Shri Sharma, an Inspector of Anti Corruption Establishment, accompanied him to the D.D.A office, with two panch witnesses and on receiving a pre arranged signal, entered the room and challenged the accused who was stunned and kept mum.
Then three pre marked ten rupees notes were found in the file dealing with Sharma 's matter, the file was found under the table and the accused had his foot on it.
The panch witnesses did not fully support the prosecution csse.
They resiled from their earlier statements made in the course of investigation were treated as hostile by the prosecution, and were disbelieved by the Court.
The accused was duly tried, convicted and sentenced, and the conviction was upheld by the High Court.
It was contended that the uncorroborated testimony of a trap witness was not sufficient to found the conviction? and also that the evidence relating to the conduct of the accused when challanged by the police inspector was excluded by.
section and was inadmissible in evidence.
Dismissing the appeal, the Court ^ HELD: (1) We are unable to agree that no conviction can ever be based on the uncorroborated testimony of a "trap witness".
Where the circumtance justify it, a court may refuse to act upon the uncorroborated testimony of a. trap witness.
On the other hand a court may well be justified in acting upon the uncorroborated testimony of a trap witness, if the court is satisfied from the facts and circumstances of the case that the trap witness is a witness of truth.
[334C E] The State of Bihar vs Basawan Singh, ; , and Bhanuprasad Hariprasad Dave & Anr.
vs The State of Gujarat, ; , applied.
Ram Prakash Arora vs The State of Punjab, AIR 1973 SC 498 and Darshan Lal vs The Delhi Administration, AIR 1974 SC, 218; differentiated.
The conduct of a person against whom an offence is alleged, is admissible under s.8 of the Evidence Act.
What is excluded by s.162 Cr.
P.C is the 331 Statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a police officer, during she course of an investigation.
[336G H, 337A] D. V. Narasimluan vs State, AIR 1969 A.P. 271, held inapplicable.
Himachal Pradesh Administration vs Om Prakash, ; and Zwinglee Ariel vs State of M.P., AIR 1954 SC 15; reaffirmed.
Rao Shiv Bahadur Singh & Anr.
vs State of Vindhya Pradesh, ; and State of Madras v.A. Vaidyanatha Iyer; , , applied.