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1981 Supreme(Cal) 225
High Court Of Calcutta
M. M. Dutt, A. K. Sarkar
MUSTT.NASIMA KHATUN - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Appeal 424 Of 1975
Decided On : 06/26/1981
MURSHED, P.ROY CHAUDHARY, S.C.Ukil, T.P.DAS
The Bengal Wakf Act, 1934 (as amended) does not violate the fundamental rights of the Muslim community under Articles 25, 26, or 27 of the Constitution.
Headnote:
WAKF - BENGAL WAKF ACT, 1934 (AS AMENDED) - SECTIONS 27(1)(F), 59 - VALIDITY - FREEDOM OF RELIGION - EDUCATION FUND - ARTICLE 25, 26, 27 OF THE CONSTITUTION - INTERPRETATION - APPLICABILITY.
Fact of the Case:
Appellants, Mutwallis of wakf-al-al-aulad, challenged the legality of demand notices issued by the Commissioner of Wakf under Section 59 of the Bengal Wakf Act, 1934 (as amended) for contributions to the wakf fund and education fund. They argued that the provisions of the Act violated their fundamental rights under Articles 14, 19, 25, 26, and 27 of the Constitution.
Finding of the Court:
The court upheld the validity of the Bengal Wakf Act, 1934 (as amended) and dismissed the appellants' challenges. It held that the Act does not infringe the fundamental rights of the Muslim community as guaranteed by Article 25 of the Constitution and that the creation of an Education Fund under Section 27(1)(f) for the education of poor and meritorious Muslim students does not violate Articles 26 or 27 of the Constitution.
Issues: 1. Whether the Bengal Wakf Act, 1934 (as amended) violates the fundamental rights of the Muslim community under Article 25 of the Constitution? 2. Whether the creation of an Education Fund under Section 27(1)(f) of the Act violates Articles 26 and 27 of the Constitution?
Ratio Decidendi: 1. The court held that the Bengal Wakf Act, 1934 (as amended) does not violate Article 25 of the Constitution because it protects and preserves the rights in matters of religion of citizens professing Islam. The court noted that the Act recognizes the concept of wakf-al-al-aulad under Islamic law, which allows for the creation of a wakf for the benefit of the wakif, their children, and descendants, provided the ultimate benefit is reserved for a religious, pious, or charitable purpose. 2. The court held that the creation of an Education Fund under Section 27(1)(f) of the Act does not violate Articles 26 or 27 of the Constitution. It reasoned that education of Muslim boys and girls is a secular matter unconnected with religion and that the provision does not interfere with the fundamental rights of the Muslim community to profess, practice, and propagate religion. The court also held that the contributions required to be made to the Education Fund are not taxes within the meaning of Article 27 but are fees realized for a secular purpose for the proper management of the Wakf property.
Final Decision: The court dismissed the appellants' appeals, holding that the Bengal Wakf Act, 1934 (as amended) is valid and constitutional.
( 1 ) THE appellants in these four appeals have challenged the propriety of the judgment of Sabyasachi Mukharji J. whereby the learned Judge discharged the Rules Nisi issued on the respective applications of the appellants under Article 226 of the Constitution.
( 2 ) THE appellants are Mutwallis of certain wakf estates claimed to be wakf-al-al-aulad. In Appeals Nos. 422 and 423 of 1975, the appellant in both these appeals, Shaikh Basir Ahmed, is the wakif in respect of two Wakfs-al-al-aulad and he constituted himself to be the first Mutwalli in respect of these two wakfs. The Commissioner of Wakf, West Bengal served demand notices under Section 59 of the Bengal Wakf, Act, 1934 as amended by the Bengal Wakf (Amendment) Act, 1973 demanding from the appellants certain amounts towards the contribution of wakf fund and education fund. The appellants being aggrieved by the said demand notices moved this Court under Article 226 of the Constitution challenging the legality of the same. In that connection, they also challenged the constitutional validity of the Bengal Wakf Act, 1934 as amended by the Bengal Wakf (Amendment) Act, 1973. It was contended by them that the provisions of the Bengal Wakf Act, 1934 as amended by the Bengal Wakf (Amendment) Act, 1973 are violative of the provisions of the Mahomedan Law of Wakf and was not law in force when the Constitution of India came into force and, as such, the same were invalid. Further, it was contended that the provisions of the said Acts were violative of Articles 14, 19, 25, 26 and 27 of the Constitution.
( 3 ) THE learned Judge overruled all the said contentions of the appellants and, as stated already, discharged the Rules Nisi. Hence these appeals.
( 4 ) MR, T. P. Das, learned counsel appearing on behalf of the appellants has strenuously urged that the said Acts infringed the fundamental rights guaranteed by Article 25 of the Constitution. Article 25 (1), inter alia, provides that all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. The learned Judge has referred to provisions of the Bengal Wakf Act, 1934 as amended by the said Amendment Act of 1973 and held that none of the provisions of the Act interferes or infringes the fundamental rights of the Mahomedan community as guaranteed by Article 25 of the Constitution.
( 5 ) THE same contention has been repeated before us on behalf of the appellants. It will, however, be seen presently that the Bengal Wakf Act, 1934 as amended does not in any way violate the provision of Article 25 of the Constitution; on the contrary, it protects and preserves the rights in matters of religion of the citizens professing Islam. In Abul Fata Mahomed v. Russomoy Dhur Chowdhury, (1894) 22 Ind App 76; the Privy Council took the view that a disposition in favour of the settlor and the members of his family and his descendants was not a disposition for a charitable purpose which was sine qua non for the creation of a valid wakf under the Mahomedan Law. Lord Hobhouse observed;". . . . . it would be doing wrong to the great law giver to suppose that he is thereby commending gifts for which the donor exercises no self-denial; in which he takes back with one hand what he appears to put away with the other; which are to form the centre of attraction for accumulations of income and further accessions of family property; which carefully protected so-called managers from being called to account; which seek to give to the donors and their family the enjoyment of property free from all liability to creditors; and which do not seek the benefit of others beyond the use of empty words. "reference may also be made in this connection to two earlier decisions of the Privy Council in Mahomed Ashanulla v. Amarchand Kundu, (1889) 17 Ind App 28 and Abdul Gafur v. Nizamuddin, (1892) 19 Ind App 170 where a somewhat similar view was expressed,
( 6 ) THE decision of the Privy Council in Abdu
