Akbar Reza v. Ali Meerza

The Judgment of the Court was delivered by

Harries, C.J:— This is a Letters Patent appeal from a judgment and decree of a learned Single Judge, reversing a decree of the lower appellate Court and restoring a decree of a learned Munsif dismissing the plaintiff's claim.

2. The suit giving rise to these proceedings was filed by the plaintiff in the Court of the learned Munsif for a declaration that a certain decision of a Wakf Board was ultra vires and that the plaintiff was duly elected a member of managing committee of a wakf at a meeting held under the provisions of the Beligious Endowments Act. It was urged before the learned Munsif that the civil Court had no jurisdiction to entertain the suit, but the learned Munsif held that the Court had jurisdiction, but be dismissed the claim on the merits. On appeal, the learned District Judge upheld the view of the learned Munsif that the civil Court had jurisdiction to deal with the matter and came to a contrary conclusion upon the facts and decreed the suit. On a second appeal, a learned single Judge of this Court held in the first place that the civil Court had no jurisdiction to entertain the suit. Further, the learned Judge held that the suit failed on the merits. He accordingly allowed the appeal and restored the decree of the learned Munsif.

3. The litigation was in connection with a wakf estate, known as the Basanta Ali Khan Wakf Estate, which was created in the year 1833. Under the provisions of the Beligious Endowments Act (Act XX[20] of 1863), three members were appointed to act as a managing committee under that Act. In the beginning of the year 1944, defendants 2 and 4 and Mr. M.Y Shirazi, were members of the committee. In accordance with the rules framed under the Beligious Endowments Act, a register was kept of persons interested in the wakf and who were entitled to vote in the election of members of the committee. That register, as it stood before 11th February 1944, was put in and was marked Ex. B. On behalf of the plaintiff, it was alleged that on 11th February 1944, a meeting of the committee was convened at which, admittedly, defendant 2 did not attend. According to the plaintiff, the purpose of the meeting was the revision of the list of persons interested in the wakf and entitled to vote. According to the plaintiff's case, the list was revised at that meeting and as the register was old, a new register was prepared, containing the list of persons entitled to vote as revised at the meeting: This list was put in evidence and marked Exs. 10 and 10-A. On 10th May 1941, Mr. Shirazi died and there was thus a vacancy on the committee. In accordance with the rules framed under the Beligious Endowments Act, a meeting was summoned to fill the vacancy and this meeting was advertised to be held on 7th August 1944. It is conceded that the requisite notices were published about the month of June 1944. On 5th August 1944, six persons, whose names appeared in Ex. B but which had been excluded from the revised list, Exs. 10 and 10-A, filed a petition before the committee, seeking permission to vote at the election. That petition was directed to be put up before the committee on 7th August 1944, which was the date fixed for the election. On that date these six persons appeared to record their votes. Defendant 4, who was a member of the committee, rejected their petition for permission to vote, whereas defendant 2, the other surviving member of the committee granted their prayer. They voted at this election. On the following day, two reports were sent to the Commissioner of Wakfs and these contradicted each other. Defendant 2, reported that defendant 1 was duly elected, whereas defendant 4, reported that the plaintiff had been duly elected at the meeting. It is common ground that if the votes of the six persons, whose names did not appear on the revised list were excluded, the plaintiff would have been the successful candidate, whereas if it be held that the six persons were entitled to vote, then defendant 1 was properly elected. On 30th August 1914, an application was filed by one Dildar Hossain before the Wakf Commissioner, alleging that there had been a failure to elect a member of the committee and praying that the Wakf Board should proceed to fill the vacancy. The Commissioner of Wakfs thereupon heard the plaintiff, and defendants 1, 2, 3 and 4—defendant 3 being the manager of the wakf estate. Subsequently, the Wakf Board held that there was a failure to elect a member of the committee and defendant 1 was nominated to fill the vacancy.

4. On 20th July 1945, the present suit was instituted by the plaintiff, praying for a declaration that he had been duly elected at the meeting of 7th August 1944, and for a further declaration that the Wakf Board, in the circumstances, had no right to nominate defendant 1 as a member of the committee in the alleged vacancy. There was also a prayer for a permanent injunction restraining defendant 1, who had been nominated by the Wakf Board, from acting as a member of the committee.

5. The defence of defendants 1 and 2 was that the suit was not maintainable in the civil Court by reason of Sections 78 and 92 of the Bengal Wakf Act. Further, they contended that any election held on the basis of the so-called revised register, Exs. 10 and 10-A, was not valid and therefore that the Wakf Board had full power under Section 10 of the Religious Endowments Act, to appoint a member.

6. As I have already said, the trial Court came to the conclusion that the civil Court had jurisdiction to entertain the suit and overruled the defendants' objection on that ground. The Court however held that the election was not valid by reason of the fact that the list of voters prepared for the election had not been prepared according to the provisions of the Religious Endowments Act and the Rules made thereunder. In short, the trial Court appears to have been of the view that the list of voters prepared for this election was really a bogus list and in which the names of six persons who did in fact vote had been wrongly excluded.

7. The lower appellate Court, whilst upholding the finding of the learned Munsif on the question of jurisdiction, reversed his finding relating to the merits. In the view of the learned District Judge the old register of persons interested and entitled to vote had been legally and properly revised on 11th February 1944, and that list correctly showed the names of persons entitled to vote at the election. That being so, the six persons whose names had been omitted from this list had no right to vote and their votes could not be taken into account. He held that the plaintiff had been validly elected at the meeting and accordingly decreed his claim. As I have already stated, the learned Single. Judge disagreed with the lower appellate Court on both these points.

8. Whether the trial Court had jurisdiction to entertain this suit depends upon a construction of Section 10 of the Religious Endowments Act, 1863, an amended by Section 78 of the Bengal Wakf Act, 1934.

9. Section 10 of the Religious Endowments Act as it originally stood, was in these terms:

“Whenver any vacancy shall occur among the members of a committee appointed as above, a net? member shall be elected to fill the vacancy by the persons interested as above provided.

The remaining members of the committee shall as soon as possible, give public notice of such vacancy and shall fix a day, which shall not be later than three months from the data of such vacancy, for an election of a new member by the persons interested as above provided, under rules for elections which shall be framed by the Provincial Government.

And whoever shall be then elected, under the said rules, shall be a member of the committee to fill such vacancy.

If any vacancy as aforesaid shall not be filled up by such election as aforesaid within three months after it has occurred, the Civil Court, on the application of any person whatever, may appoint a person to fill the vacancy or may order that the vacancy be forthwith filled up by the remaining members of the committee, with which order it shall then be the duty of such remaining members to comply; and if this order be not complied with the Civil Court may appoint a member to fill the said vacancy.

(Explanation : In this section “Civil Court” means the principal Court of original civil jurisdiction in the district in which the mosques, temples or religious establishments for which the committee has been appointed or any of them are situate”).

10. It will be seen from the terms of the section that the Civil Court, on an application made to it, could appoint a person to fill a vacancy on a committee, if the vacancy had not been filled by election as provided by the Act within three months after it had occurred. In 1934, the Bengal Wakf Act was passed and Section 10 of the Religious Endowments Act was in effect amended. A direct amendment could not be made because the Religious Endowments Act was an All-India Act, whereas the amendment proposed was to apply only to Bengal. The amendment was effected by Section 78 of the Bengal Wakf Act, 1934, which is in these terms:

“After Section 23 of the Religious Endowments Act, 1863 the ollowing section shall be inserted, namely:

23A. Notwithstanding anything contained in this Act, the powers of the Civil Court under S. 5 and 10 shall ??? exercised in respect of any wakf property in Bengal by the Board of Waits appointed under the Bengal Wakf Act, 1934.”

11. In short, Section 78 of the Bengal Wakf Act adds Section 23-A to the Religious Endowments Act, 1863, and the effect of the addition of that section is to substitute in Bengal the words “Board of Wakfs appointed under the Bengal Wakf Act, 1934” for the words “Civil Court” in Section 5 and 10 of the Religious Endowments Act. In the present case it be clear, therefore, that if there was a failure to elect a member of the committee within three months of the death of Mr. Sbirazi, application could be made to the Wakf Board for appointment of a committee man to fill such vacancy.

12. The learned Single Judge held that the civil Court had no jurisdiction to entertain this suit, firstly on the ground that the civil Court had been superseded by the Wakf Board by reason of Section 78 of the Bengal Wakf Act, which had added Section 23-A to the Religious Endowments Act. I am wholly unable to agree with this view. All that Section 78 of the Bengal Wakf Act, did was to substitute the Wakf Board as the appointing authority for the civil Court. Under Section 10 of the Religious Endowments Act, the civil Court was the appointing authority in certain circumstances, and all that Section 78 of the Bengal Wakf Act, did was to substitute the Wakf Board as the appointing authority in those circumstances. I cannot see why that change would cause the jurisdiction of the civil Court to be ousted. It is true that it had been held in the Privy Council that the civil Court, acting under Section 10 of the Religious Endowments Act, was a Court whose decisions were revisable by the High Court (see Bala Krishna Udayar v. Vasudeva Aiyar, 44 I.A 261 : (A.I.R (4) 1917 P.C 71). Clearly, the decision of the Wakf Board would not be revisable, but that would because the Wakf Board is not a Court. The only change which S. 78 made was a change of the authority entitled to appoint. From that change it cannot possibly be inferred that it was the intention of the legislature to oust the jurisdiction of the civil Court in all matters arising under Section 10 of the Religious Endowments Act. It appears to me that there has been a confusion between the civil Court as a Court and the civil Court under Section 10 of the Religious Endowments Act as an appointing authority. As I have said, under S. 10 the Court was not acting strictly as a Court, but was an appointing authority though, as I have said, its decisions were held to be revisable.

13. The learned Judge was also of opinion that the jurisdiction of the civil Court in these matters was ousted by reason of Section 92 of the Bengal Wakf Act, 1934. That section is in these terms:

“No suit shall be brought in any Civil or Revenue Court to set aside or modify any order made under this Act and no suit, prosecution or legal proceeding shall lie against the Board or the commissioner or any other person appointed under this Act for anything which is in good faith done or intended to be done under this Act.”

14. The learned Single Judge appears to have thought that the act of the Wakf Board in appointing defendant 1 a member of the, committee was an act done under the Bengal Wakf Act. If it were on, then it might well be argued that the jurisdiction of the civil Court was ousted by reason of S. 92. In my view, however, it is clear that the act of the Wakf Board in appointing defendant 1 a member of the committee was not an act done under Bengal was Act. The argument was that as Section 78 of the Bengal Wakf Act, had substituted the Wakf Board for the civil Court as the appointing authority, then an act of the Wakf Board was an act under the Bengal Wakf Act. This argument is clearly untenable. As I have already said, all that Section 78 of the Bengal Wakf Act, did was to amend Section 10 of the Religious Endowments Act in so far as it applied to Bengal. What the Wakf Board did when it appointed defendant 1 as a member of the committee was what it was empowered to do under Section 10 of the Religious Endowments Act, as amended. Its order was an order under that Act and could never be construed as an order made under the Bengal Wakf Act. That being so, S. 92 cannot possibly apply to such an order and therefore the jurisdiction of the Civil Courts could not be ousted by reason of that section.

15. The learned Judge was also of opinion that the jurisdiction of the civil Court was ousted by reason of the fact that the special tribunal or special body created by the Religious Endowments Act was entitled to decide all questions of jurisdiction and a wrong decision could not be challenged in a civil Court. In the view of the learned Judge, the Bengal Wakf Board, before it could proceed to fill a vacancy on a committee, would have to decide whether or not that vacancy had not been filled for three months since it had occurred. It is quite clear that by Section 10 of the Religious Endowments Act, the Board could not act until there was a failure to fill the vacancy in the manner prescribed foe three months. According to the learned Single Judge, as the Board had to decide that question, it had jurisdiction to decide it rightly or wrongly and if it decided it wrongly, the matter was final and could not be questioned in a civil Court.

16. The learned Single Judge relied upon a well-known dictum of Lord Esher M.R in The Queen v. The Commissioners for Special Purposes of the Income-tax, (1888) 21 Q.B.D 313 at 319 : (57 L.J.Q.B 513) which in as follows:

“It will be said on the one side that their jurisdiction depends on the decision of that question and, applying a well-known formula that they cannot give themselves jurisdiction by a wrong decision on the facts. I have considered that formula with great care and, though it is correct enough for certain purposes I think its application is often misleading. When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shewn to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned, it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.”

17. The learned Single Judge was of opinion that Section 10 of the Religious Endowments Act, as amended, gave the Wakf Board jurisdiction to decide whether facts existed which gave them a right to fill a vacancy on the committee. If that were the true construction of S. 10, then it is clear that the civil Court would have no jurisdiction to question the appointment made by the Wakf Board.

18. The above observation of Lord Esher M.B was considered by their Lordships of the Privy Council in The King v. Nat Bell Liquors, Limited, (1922) 2 A.C 128 at p. 168. : (91 L.J.P.C 146). Lord Sumner, who delivered the judgment of the Board, observed:

“This misapprehension of the meaning of the Judicial Committee's opinion is probably due to the not infrequent confusion between facts essential to the existence of jurisdiction in the inferior Court which it is within the competence of that Court to inquire into and to determine and facts essential thereto which are only within the competence of the superior Court. As Lord Esher points cut in Reg v. Income-tax Commissioners, (1888) 21 Q.B.D 313, 319 : (57 L.J.Q.B 513), if a statute says that a tribunal shall have jurisdiction if certain facts exist, the tribunal has jurisdiction to enquire into the existence of these facts as well as into the questions to be heard; but while it decision is final, it jurisdiction is established the decision that its jurisdiction is established is open to examination on certiorari by a superior Court. On the other hand, the fact on which the presence or absence jurisdiction turns may itself be one which can only be determined a part of the general inquiry into the charge which is being heard. The following is a are instance of this. In an anonymous case reported in Anonymous, (1830) 1 B and Ad. 382 : (109 E.R 829 justices who had jurisdiction to hear a charge of common assault were precluded by statute from exercising it, if the evidence disclosed that the assault was accompanied by an attempt at felony. Although such an attempt was deposed to in the course of the evidence supporting the charge of assault, a rule to quash a conviction for a common assault was discharged upon the ground that. It was for the justices to decide whether they believed the part of the evidence which disclcse the attempt, and in they did not, their jurisdiction convict was not ousted by the statute. In the language of Coleridge, J., delivering the judgment of the Court in Bunbury v. Fuller (1853) 9 Ex. 111, 140 : (23 L.J Ex. 29), the rule is thus stated: ‘No Court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits on the case upon which the limit to its jurisdiction depends; and however its decision may be final on all particulars, making up together that subject-matter which, if true, is within its jurisdiction, and, however necessary in many cases' it may be for it to make a preliminary inquiry, whether some collateral matter be or be not within the limits, yet upon this preliminary question, its decision must always be open to inquiry in the superior Court.”

19. From these quotations it is clear that if a statute says that a tribunal shall have jurisdiction if certain facts exist, then though the tribunal can and must decide whether those facts exist before it exercises its jurisdiction, nevertheless its finding on jurisdiction is not final and can be challenged in a civil Court. If the question of jurisdiction is collateral to the merits of the case before the tribunal, then the decision on jurisdiction is not final, though the Court must arrive at a decision before it can consider the merits. On the other hand, where the question of jurisdiction is involved in the question of merits and the merits cannot be decided without at the same time deciding the question of jurisdiction, then it may be that the decision of the tribunal is final and cannot be questioned in a civil Court.

20. It appears to me that on the plain words, of Section 10 of the Religious Endowments Act, the committee were never intended to have complete and final jurisdiction to decide whether they could or could not fill a vacancy. Paragraph & of the section begins with these words:

“If any vacancy as aforesaid shall not be filled up by such election as aforesaid within three months after it has occurred, the Civil Court, (now the Wakf Board) on the application of any person whatever, may appoint a person to fill the vacancy….”

21. From those words, it is clear that the question, whether the facts exist which will give the Board a right to act is a matter collateral to what they have to decide when they fill a vacancy. The Board has first to decide whether a vacancy has not been filled within three months as required and when it hag decided that, it will then go into the merits' and decide who will be appointed to fill the vacancy. A decision as to who will be appointed to fill the vacancy in no way involves a decision upon the question of jurisdiction. The two questions are wholly apart and it appears to me that the present case falls within the observations, of Coleridge, J. which are cited with approval by Lord Sumner in the Privy Council case to which I have made reference. Further, it in dear from the words of S. 10 that this case falls within the observations of Lord Esher where he says:

“It (the legislature) may in effect say that, it a certain state of fact a exists and is shown to snob tribunal or body before it proceeds to do certain things it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of fact a exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.”

22. In Section 10 of the Religious Endowments Act, the legislature clearly says that if a certain state of facts exists and is shown to the Wakf Board to exist, then the Wakf Board may proceed to fill the vacancy. In such a case, it has always been held that the jurisdiction of the civil Court is not ousted and the jurisdiction of the Board to act can be challenged. Further, the words of S. 10 suggest that there must have been in fact a failure to fill a vacancy for three months before the Board can act. From the wording of the section, it is not sufficient if the Board thought that there had been such a failure to fill the vacancy for three months.

23. For these reasons I am satisfied that this suit was maintainable in the civil Court and the finding of the learned Single Judge to the contrary cannot be sustained.

24. The learned Single Judge was also of opinion that the learned Munsif was right on the merits and that his findings had not been properly considered or reversed by the learned lower appellate Court.

25. It is clear that the learned Munsif was of opinion that the election which took place on 7th August 1914 was held on a voters' list which had never been settled or revised by a properly constituted meeting of the committee. The Rules made under the Religious Endowments Act provide that a list of persons interested in the wakf must be maintained and that list must be revised by the committee every six months. Admittedly there was a list of persons interested in the wakf and up to 11th February 1944 that list was contained in a register, Ex. B. The learned Munsif held that Ex. B was the only genuine and effective list at the date of the election, 7th August 1944. The election, however, he held was not conducted under that list but under another list, Exs. 10 and 10-A, which the learned Munsif found had come into existence sometime between 11th February 1944 and the date of election. The learned Single Judge was of opinion that the learned District Judge had not come to a contrary view and that being so he held that the view of the learned Munsif must prevail. There can be no doubt that in a second appeal the findings of fact of the lower appellate Court bind this Court, and if this matter has been satisfactorily dealt with by the lower appellate Court, this Court cannot possibly interfere with such findings. It appears to me that: this question has been dealt with quite clearly by the learned District Judge. At page 30 of the paper-book he observed:

“I have carefully perused the evidence together with the facts and circumstances of the case and I am of opinion that Ex. 10 cannot be a truncated document and the election based on this revised list electoral roll (Ex. 10) cannot be invalid. The six persons whose names were not in the list had no right to vote. There is provision to revise the register of interested persons at the end of six months by the committee. Accordingly a meeting was held by the two members of the committee, presided over by Mr. Shirazi on 11th February 1944. This fact is admitted. Defendant 2 haves attended any meeting. It is true that there was no agenda for opening of a new register and neither there was any resolution to that effect; but there was an agenda for revision and resolution to that effect. The fact that the list was revised and Ex. 10 was prepared on that date cannot be denied. This list bears the signature of the two members including Mr. Shirazi and dated 11th February 1944 and it has been satisfactorily proved these are the genuine signatures. One significant fact to be noted is that though this revised list (Ex 10) excludes the names of the six and other members (whose names were in the original list) but it also includes the names of the new persons and some of those new persons actually voted for defendant 1.”

26. It appears to me that this is a clear finding that Exs. 10 and 10-A, so far from being a bogus list, was a genuine list revised, according to the rules, by the committee on 11th February 1944. The finding of the learned Munsif on this point is clearly overruled and as the finding is a finding of fact, the finding of the learned District Judge must be accepted as it is based on evidence and the learned Judge does not appear to have misdirected himself in law in approaching the evidence. That being so, the learned Single Judge had no right to hold as a fact that Exs. 10 and 10-A was not a genuine voters' list, prepared on 11th February 1944.

27. The learned Judge however was of opinion that even if this list was prepared at a meeting on 11th February 1944 it cannot be regarded as a proper list of persons interested in the Wakf. According to the learned Single Judge the meeting was not summoned to consider the drawing up of a new list, though he admits it was summoned for the purpose of revising the existing list. The learned Judge stresses the fact that the agenda of a meeting of a statutory body such as the managing committee must be clear and unambiguous and such as to bring to the mind of the persons to whom the agenda is sent what the proposed business of the meeting is. In the view of the learned Judge, the agenda sent to the members of the committee was not sufficiently clear and would not indicate to them that it was proposed to draw up a new list.

28. It is true a new register was prepared, but all that was done was to revise the old list, Ex. B. The names of certain persons were omitted from the list and the names of certain other persons added. It was a revision of the list which, according, to the rules, had to take place every six month. The agenda made it clear that such a revision was contemplated at the proposed meeting. The agenda made it clear that the list was to be revised or checked. That being be, it appears to me that the agenda was clear and unambiguous, particularly when it is remembered that it was addressed to three persons who knew or should know well the duties of committee members and what work was to be done at the various meetings of the committee. This was not an agenda addressed to a large number of persons to whom work on this committee was comparatively strange, but on the other hand, it was addressed to merely three members although it is true that one of them hardly ever attended a committee meeting if he attended at all. In my view, it cannot possibly be held that the meeting held on 11th February 1944, was improperly convened and therefore the list revised on that date could not be relied upon. It was properly convened and as defendant and Mr. Shirazi were present there was a majority which could properly remove any name from the list or add other names to it.

29. The learned Single Judge also appears to have thought that in making the new list, Exs. 10 and 10-a, the practice previously followed by the committee was not followed. The learned Judge was clear that Exs. 10 and 10-A were not genuine documents and naturally the practice followed by a committee in revising a genuine list would not have been followed in the list was bogus 1 find, as we are bound to hold, that the list was a genuine revised list and there is nothing whatever to show that the usual practice was not followed on 11th February 1944. For the reasons which I have given, I am satisfied that the view of the learned Single Judge cannot be maintained and that the view of the lower appellate Court must be affirmed.

30. In the result therefore this appeal is allowed the judgment and decree of the learned Single Judge are set aside and the decree of the lower appellate Court, allowing the plaintiff's claim, in restored. The appellant is entitled to his costs in all Courts against the contesting respondents, defendants 1 and 2.

31. No order need be made on the rule. The ad interim injunction is discharged.

Chakravartti, J.:— I agree.

V.B.B

32. Appeal allowed.