State of U. P. v. Obaidur Rahman Khan — 1983 DIGILAW 868 (ALL)

ORDER M.P. Mehrotra, J. - This petition under Article 226 of the Constitution arises out of the proceedings under the Urban Land (Ceiling and Regulation) Act, 1976. It raises an interesting point regarding the interpretation of S. 19(l)(iv) of the said Act. The said provision is as follows: S. 19. "Chapter not to apply to certain lands- (1) Subject to the provisions of sub-section (2), nothing in this chapter shall apply to any vacant land held by x x x (iv) any public charitable or religious trust (including wakf) and required and used for any public charitable or religious purposes. Provided that the exemption under this clause shall apply only so long as such land continues to be required and used for such purpose by such trust." 2. The Petitioner before me is the State. The respondent No. 1 Mohammad Obaidur Rahman Khan filed a return under S. 6(1) of the Act. The return was filed by the respondent No. 1 claiming to be the Mutwalli of a wakf. It was filed in the status of an association. 3. The competent authority prepared a draft statement under S. 8(1) of the Act on the basis of the said statement filed under S. 6(1) of the Act. A copy of the said draft statement was served upon the respondent No. 1, who filed his objections under S. 8(3) of the Act. The Competent Authority thereafter decided the said objections by his order dated 26-3-1979. The objections were rejected. A true copy of the said order dated 26-3-1979 is annexure 1 to the petition. 4. An appeal was preferred against the said order by the respondent No. 1. The appeal was allowed by the appellate Court by its judgment dated 21-1-80, a true copy of which is annexure 2 to the petition. A certified copy of the said judgment is also on record. The appellate Court held that the wakf in question was entitled to the exemption under S. 19(1)(iv) of the Act and, therefore, there was no question of any vacant land being held by it in excess of the ceiling area: 5. Feeling aggrieved, the State has now court up in the instant petition-and in support thereof, I have heard Sri S. D. Dubey, learned Standing Counsel, and in opposition, Sri N. K. Kazmi and Sri G. N. Varma, learned counsel for respondent No. 1, have made their submissions. 6. Feeling aggrieved, the State has now court up in the instant petition-and in support thereof, I have heard Sri S. D. Dubey, learned Standing Counsel, and in opposition, Sri N. K. Kazmi and Sri G. N. Varma, learned counsel for respondent No. 1, have made their submissions. 6. The only point involved in this petition is whether the wakf in question is entitled to the benefit of exemption under S. 19(1)(iv) of the Act which provision has already been reproduced above. The appellate Court in its impugned judgment observed as follows: "According to the wakf deed the entire Kothi was to be transferred to the Aligarh Muslim University and the possession of appellant was only that of Mutwalli. Copy of the wakf deed which was before learned Competent Authority shall go to disclose that major income of waqf-alal-aulad was being spent in religious, pious and charitable purposes while the Mutwalli was entitled to 20% of net income." 7. Learned Standing Counsel disputed the correctness of this statement. The appellate Court's point of view seems to be contained in the following further passage which occurs in the impugned judgment. "He erred in holding that the waqf created the waqf for the maintenance of the members of his family and their descendants and so it cannot be considered as religious, pious or charitable. The point is well covered by Bibi Siddique Fatima v. Saiyed Mohammad Mahmood Hasan, AIR 1978 SC 1362 where it was held (Paras 14, 15 and 16). 'After the Validating Act of 1913. on the basis of the law as it prevailed even before, creation of a waqf for the purpose of the maintenance of the members of the waqifs family and their descendants is also a. charitable purpose. ....................According to Shia law the waqf is irrevocable after possession is given to the beneficiaries or the Mutwalli. The settlor divests himself of the ownership of the property and of everything in the nature of usufruct from the moment the wakf is created. In purely metaphorical sense the expression "ownership of God" is used b unlike Hindu law, since conception of personal God is not recognized, there is ownership of God or no property belongs to God in the jural sense. although "ownership of the property becomes reverted in God as he is originally the owner of all things" (vide page 523). In purely metaphorical sense the expression "ownership of God" is used b unlike Hindu law, since conception of personal God is not recognized, there is ownership of God or no property belongs to God in the jural sense. although "ownership of the property becomes reverted in God as he is originally the owner of all things" (vide page 523). The Shia authorities considered the property as transferred to the beneficiaries or to the object of the wakf. Strictly speaking, the ownership of the wakf property has no jural conception with any exactitude. The corpus is tied down and is made inalienable only the usufruct and the income From the corpus of the wakf property is available for carrying out the objects of the wakf.... A Mutwalli is like a manager rather than a trustee (see page 498). The Mutwalli so far as the wakf property is concerned, has to see that the beneficiaries got the advantage of usufruct. So exemption under Section 19(1)(iv) of the Act applies to waqf for the purpose of maintenance of the members of wagifs family and their descendants, and such waqf is also for a charitable purpose. A mere casual look at the waqf deed itself shows that it is well covered by S. 19(1)(iv) of the Act and its income is, being used for the purpose of the trust. There is nothing on record to show that the income of waqf is not being used for public religious, charitable or pious purposes." 8. For deciding the controversy, it is necessary that the deed by which the wakf was created should be looked into. A true copy of the wakf deed is annexure 3 to the petition. By this deed Habibur Rehman Khan, father of respondent No. 1, created the waqf in question, the wakf deed is a registered document and is dated 24-5-1945. In short, the main terms of the document are as follows: (i) The wakif, namely Habibur Rehman Khan, appointed himself as the first, Mutwalli of the wakf. After him, his son, namely, respondent No. 1, was nominated in the deed to be the next Mutwalli. After the death of respondent No. 1, the second son of the wakif, Mashoodar Rehman was to be the Mutwalli and thereafter, the eldest son of respondent No. 1 was to be the Mutwalli. After him, his son, namely, respondent No. 1, was nominated in the deed to be the next Mutwalli. After the death of respondent No. 1, the second son of the wakif, Mashoodar Rehman was to be the Mutwalli and thereafter, the eldest son of respondent No. 1 was to be the Mutwalli. Thereafter, the eldest son of the Mutwalli was to be the successor Mutwalli. In case, the line of the eldest son (respondent No. 1) became extinct, then the eldest son in the line of the second son Mashoodur Rehman was to be the Mutwalli. The said provision was subject to the condition that the eldest son was to be the Mutwalli whether he belonged to the line of the respondent No. 1 or to the line of his younger brother Mohammad Mashoodur Rehman. In has further been provided in the deed that if the lines of both the sons of the wakif became extinct then the Mutwalli was to be appointed from the line of the daughters of wakif. The eldest sin in the line of the daughters was to act as Mutwalli. Ultimately, it has been laid down in the deed that if no male member in the line of the male and female heirs of the wakif be in existence, then the Mutwalliship was to go to the Aligarh Muslim University or its successors. (ii) The income of the wakf was directed to be spent in the following manner: (a) As long as the wakif of the wakf was to act as the first Mutwalli of the wakf he had the full right to spend the income from the wakf properties on himself and his children. However, such spending was to be done by him as the Mutwalli of the wakf. It was also provided that he was to maintain the accounts of the income which he decided to spend on charities. However, no one was entitled to seek any accounts from him regarding the administration and accounts of the wakf properties. However, such spending was to be done by him as the Mutwalli of the wakf. It was also provided that he was to maintain the accounts of the income which he decided to spend on charities. However, no one was entitled to seek any accounts from him regarding the administration and accounts of the wakf properties. (b) After the death of the wakif, the successor Mutwallis were directed to spend the income from the wakf properties in the following manner: (i) Firstly, the Government revenue and other Government dues in respect of the wakf properties were to be paid; (ii) Secondly, the expenses for realising the income from the wakf properties and for administering and maintaining the said properties were to be defrayed; (iii) Thirdly, as long as the wakifs sons function as the Mutwallis, they were entitled to 20% in the net income of the wakf properties as haq toliyat (Manager's charges) and after the. death of the sons, the successor Mutwallis were to be entitled to only 10% of such net income as the Manager's charges. (iv) Fourthly, the residue, i.e. what remained after meeting the aforesaid expenses, was to be spent in the manner that 12% of the same was to be spent for the maintenance and the repairs and lighting of the mosque and the Idgah of the wakifs ancestors, for paying stipend to the Posh Imam and to the Muazzin of the said mosque. for paying stipends to the students who were needy and for extending financial aid to those who intended to go to the holy pilgrimage to Makka etc. and for extending help to the widows and the orphans; (v) Fifthly, a direction was given that a sum of Rs. 3000/- was to be spent every year for the maintenance and improvement of the Library situated at Habib Ganj and which was founded by the wakif. It was recited in the deed that the Library was about 65 years old and contained many books in various languages and it was housed in a solid building at Habib Ganj. The said sum of Rs. 3000/- every year was meant to meet the expenses in connection with the payment of salary to the staff, for the purchase and binding of the books and .for other necessary expenses. It was further recited that the sum of Rs. The said sum of Rs. 3000/- every year was meant to meet the expenses in connection with the payment of salary to the staff, for the purchase and binding of the books and .for other necessary expenses. It was further recited that the sum of Rs. 3000/-, roughly amounted to 6% of the then income from the wakf properties. A direction was given that in case the Mutwalli felt that the Library was not fully secure at Habib Ganj or that by its transfer to Aligarh proper it might render greater utility, then the Library was to be transferred to Aligarh and was to be given to the Muslim University or its successors for being maintained under its supervision and management. The University was to maintain and manage the Library which was to be known as Habibur Rehman Khan Sherwani Library. It was further directed that if the Library was. to be transferred to Aligarh before the Aligarh University obtained the Mutwalli-ship of the wakf, then the Mutwalli of the wakf was to erect a good building within the University campus with- the permission of the University. However, in case the Library was to be transferred from Habib Ganj to Aligarh after the University acquired the Mutwalliship of the wakf, then the University was bound to erect such a building for the Library-cum-Reading Room and the expenses for such constructions were to come out of the income of the wakf properties. The University was further directed to continue to spend Rs. 3000/- every year for the Library in the manner as stated above. (vi) Sixthly, it was directed that the remaining income of the wakf, i.e. what remained after meeting the aforesaid expenses, was to be divided amongst the heirs of the wakif. Such division was to be on the basis of the Muslim Law of inheritance. This direction was to operate till the Mutwalliship remained in the hands of the wakifs sons and grand-sons and the division of such remaining income was to be between the sons and the daughters and the widow in accordance with the Muslim Law of inheritance as stated above. It was further directed that after the death of the wakifs daughters, the latter's heirs or heirs of the wakifs widow would have no concern with or right in the aforesaid income from the trust properties. It was further directed that after the death of the wakifs daughters, the latter's heirs or heirs of the wakifs widow would have no concern with or right in the aforesaid income from the trust properties. The aforesaid remaining income of the wakif was to be divided by the Mutwalli between himself and his brothers in equal share. There are certain further directions as to how the division was to be made by the Mutwalli amongst-the descendants of the wakif. It is not necessary to go into the said details. However, it was provided that for the education of certain descendants of the wakif the Mutwalli could extend financial aid from the aforementioned 12% net income of the trust (as provided under cl.(iii) mentioned hereinbefore). Similar direction was given for giving financial help from the 12% net income under the said cl. (iii) regarding maintenance allowance to the widows of the descendants of the wakif and for the marriages of the daughters of such' descendants of the wakif. (vii) Seventhly, it was directed that where the Muslim University acquired the Mutwalliship of the wakf, then it was not to get the aforesaid 20% net income of the wakf as the Manager's charge. The entire net income was to be spent by the University for religious, educational purposes in the manner as directed in the said document. 9. Reading the terms of the aforesaid document, in my opinion, there can be no doubt that the dominant intention underlying the deed was to benefit the wakif and his heirs and descendants. Only 12% of the net income was earmarked for what can be interpreted to be charitable purpose in the manner in which the word 'charity' is understood in Law. Even if the amounts which were directed to be spent on the Library were to be treated as charity (this is highly doubtful because the Library was a private one and there is nothing in the documents to show that it was to,be treated as a public library) even then the position will remain that the percentage of the net income earmarked for charity would be about 18% (12% plus 6% approximately for the Library). The rest of the net income was meant for the personal benefit of the wakif and his heirs and descendants. The rest of the net income was meant for the personal benefit of the wakif and his heirs and descendants. It is true that there is a direction that in case no male member remains in existence in the lines of the male and the female heirs of the wakif,. then in such a situation the net income of the wakif was to be spent entirely for charitable purposes by the Muslim University acting as the Mutwalli of the wakf but that such an eventuality has not come into 'existence at present, is not disputed. 10. S. 19(1) of the Urban Land (Ceiling and Regulation) Act, 1976 in its various clauses lays down that vacant lands held by certain people or persons, or Institutions . shall be exempt from . the operation of Chap. III of the Act. It is S. 3 of this Chapter which has imposed ceiling on the extent of vacant land which a person can hold. Land in excess of such ceiling is to be taken over by the State in accordance with the procedure laid down in Chap. III. Cl.(iv) of S. 19(1) of the Act is the relevant provision which has to be interpreted in the present controversy. This provision will apply if the following conditions exist: (a) The vacant land is held by a Public Charitable or Religious trust (including the wakfs); (b) The vacant land held by such trust or wakf is required and used for any public, charitable or religious purposes; (c) The exemption under the clause shall apply only so long as such land continues to be required and used for such purposes by the trust (including the wakf) 11. The learned counsel for the respondent No. 1 contended that it is not necessary that the trust or the wakf must be required to spend its entire income from the trust or wakf properties for public, charitable or religious purposes. Even if a portion of such income is spent on any public, charitable or religious purposes, then the trust, including the wakf, will be entitled to the exemption under this clause. This argument of the learned counsel is related not only to the Muslim Wakfs but will be applicable even to the non-Muslim wakfs and trusts. Even if a portion of such income is spent on any public, charitable or religious purposes, then the trust, including the wakf, will be entitled to the exemption under this clause. This argument of the learned counsel is related not only to the Muslim Wakfs but will be applicable even to the non-Muslim wakfs and trusts. However, the learned counsel contended that so far as the Muslim wakfs are concerned, in view of the personal law of the Mahommedans the income which is directed to be spent on the heirs and descendants of the wakif, should be, deemed, to be spent on charity and, therefore, in the case of such wakfs, it should be held that the major portion of the. income of the wakfs is spent on charity. Hence, according to the learned counsel, if cl. (iv) were to be interpreted as laying down that the major portion of the income of the wakfs should be spent on charity, even then such a test will be satisfied in the case of the instant wakf. It has already been stated above that the major portion of the net income of the wakf was directed to be spent by the Mutwalli on the heirs and descendants of the wakif. Learned counsel for the respondent No. 1 in this connection made a reference to the well known controversy which preceded the enactment of the Mussalman Wakfs Validating Act, 1913. A reference was made to the dissenting judgment of Amir Ali, J in Bikani Mia's case, (1893) ILR 20 Cal 116. The said background has been noticed in the judgment of Gangeshwar Prasad, J in Abdul Rauf v. Shamsul Haq, AIR 1969 All 35 , in para 7 and onward. Learned Judge (Gangeshwar Prasad, J) summed up by observing as under: "This was the historical background.of Mussalman Wakfs Validating Act, 1913 and it was summed up by the Privy Council in Beli Ram & Brothers v. Chaudhri Mohammad Afzal, AIR 1948, PC 168. Learned Judge (Gangeshwar Prasad, J) summed up by observing as under: "This was the historical background.of Mussalman Wakfs Validating Act, 1913 and it was summed up by the Privy Council in Beli Ram & Brothers v. Chaudhri Mohammad Afzal, AIR 1948, PC 168. in the following words: "Before the passing of the Mussalman Wakf Validating Act (VI of 1913) it had been established by the decisions of this Board that a wakf was invalid if the gift to charity contained therein was illusory, whether because of the smallness of the proportion of the property allotted to the charity, or because the gift to charity was postponed for such a length of time as to make the prospect of charity ever taking problematical. The law on this point was altered by the said Act .............'". 12. Learned counsel for the respondent No. 1 further submitted that if the aim of the Legislature was to lay down that the entire or the major portion of the income of the wakf or the trust must be spent on charity (as the said word is understood in the English Law), then Cl. (iv) of S. 19(1) would have been differently worded. In this connection the learned counsel made a reference to certain corresponding provisions contained in other enactments. A reference was made to S. 6(1)(f) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960, which lays down as follows: "S. 6- Exemption on certain land from the imposition of ceiling -(1) Notwithstanding anything contained in this Act, land falling in any of the categories mentioned below shall not be taken into consideration for the purposes of determining the ceiling area applicable to, and surplus land of a tenure-holder, namely x x x (f) land held from before the 1st day of May, 1959, by or under a public religious or charitable wakf, trust, endowment or institution the income from which is wholly utilised for religious or charitable purposes, and not being a wakf, trust or endowment of which the beneficiaries, wholly or partly are settlers or members or his family or his descendants.". 13. A reference was also made to S. 4(3)(i) of the repealed Indian I.-T. Act, 1922 and to the corresponding law, contained in Sections 11. 12 and 13 of the current I.-T. Act. 1961. 13. A reference was also made to S. 4(3)(i) of the repealed Indian I.-T. Act, 1922 and to the corresponding law, contained in Sections 11. 12 and 13 of the current I.-T. Act. 1961. S. 4(3)(i) of the repealed I.-T. Act was amended from time to time but broadly speaking, it laid down that any income derived from property held under trust or other legal obligation wholly for the religious or charitable purposes. and in the case of property so held in part only for such purposes. the income applied, or finally set apart for application thereto, shall not be included in the total income of the person receiving them. 14. Some case law in reference to the aforesaid provision contained in S. 4(3)d) may be noticed hereunder. 15. In Umar Baksh v. Commissioner of Income Tax, Punjab, AIR 1931 Lah. 578. a Full Bench of the said Court was called upon to interpret the words 'religious and charitable purposes' used in the then Income-tax Act. The Full Bench laid down that the said words were to be judged not by, the personal law of the assessee but according to the general principles of construction applying to Statutes. 16. In Commissioner of Income Tax v. Humayun Raza, AIR 1936 Pat 532, a Division Bench of the Patna High Court followed the law laid down in the aforesaid Full Bench pronouncement of the Lahore High Court. 17. In Abubaker Abdul Rehman v. Commissioner of Income Tax, Bombay, (1939) 7 ITR 139 : AIR 1939 Bom. 195 the Bombay High Court also followed the aforesaid Full Bench decision of the Lahore High Court. 18. In Commr of Income-tax v. M. Jamal Mohammad Sahib, (1941) 9 ITR 375 : AIR 1941 Mad 535 a Full Bench of the Madras High Court laid down as follows: "The expression "charitable purposes" must be construed strictly. As the result of decisions in England spread over a long period the expression can only be applied 1 to a public charity. There is no such thing as a private charitable trust. There may be a private trust for religious purposes and that is why the amendment was made to S. 4(3) in 1939. It was made in order to put beyond all doubt the intention of the Legislature not to exempt even private trusts for religious purposes." 19. There is no such thing as a private charitable trust. There may be a private trust for religious purposes and that is why the amendment was made to S. 4(3) in 1939. It was made in order to put beyond all doubt the intention of the Legislature not to exempt even private trusts for religious purposes." 19. The Madras Full Bench also approved the dictum laid down in the aforesaid Full Bench decision of the Lahore High Court. 20. In Commissioner of Income Tax, Madras v. Aga Abbas Ali Shirazi, (1944) 12 ITR 179 : AIR 1944 Mad 292 , the Madras High Court followed its earlier Full Bench decision in (1941) 9 ITR 375 . 21. In Trustees of Gordhan Das Govind Ram Family Charitable Trust v. Commissioner of Income Tax (Central) Bombay, (1952) 21 ITR 231 : AIR 1952 Bom 346 , the Bombay High Court laid down as follows (at p. 347): "It may be that if the intention was clearly to benefit the public generally and incidentally or indirectly the members of the family of the settlor were also benefited then a view may be taken that the settlement was for a charitable purpose, but when you have a case in which the ordinary purpose of the settlor is to benefit the members of his family and remotely and indirectly to benefit the general public then it cannot be stated that the settlement is for a charitable purpose within the meaning of the Income-tax Act." 22. It is true that by the Central Amending Act VII of 1939 it was provided that that part of the income of a private religious trust which did not ensure for the benefit of the public was not exempt under section 4(3)(i) However, it should be seen that some of the aforesaid cases were decided before the said amendment effected in 1939 e.g. the aforesaid decision of the Lahore Full Bench and the decision of the Patna High Court referred to above, Apart from this aspect of the matter, it should be seen that what was emphasised in the aforesaid case law was that charitable objects and purposes were not to be interpreted in the light of the assessee's personal law. Therefore, the said case law can be said to be relevant even for deciding the controversy at hand. 23. Therefore, the said case law can be said to be relevant even for deciding the controversy at hand. 23. Apart from the Income-tax, there is some case law with reference to other taxing Statutes. I shall notice some of these cases. 24. In Nelliyil Umar Kutty, (1970)77 ITR 489, Kerala High Court followed the aforesaid Full Bench decision of the Lahore High Court and the aforesaid Full Bench decision of the Madras High Court for interpreting a corresponding provision in the Kerala Agricultural Income-tax Act, 1950. 25. In (1973) 88 ITR 47 , the Supreme Court had to interpret S. 5(1)(i) of the Wealth Tax Act, 1957. The said provision is as follows: "S. 5(1) Exemption in respect of certain Assets- (Subject to the provisions of Sub -Sec. (1-A) Wealth Tax shall not be payable by an assessee in respect of the following assets), and such assets shall not be included' in the net wealth of the assessee- (i) any property held by him under trust or other legal- obligation for any public purpose of a charitable or religious nature in India." The Supreme Court laid down as under (at p. 626) : "Now, let us turn to the other question viz. whether the trust in question can be considered as a trust created for public purpose of a charitable or religious nature. As seen earlier, the trust.in question was created primarily for the benefit of the members of the family of Gordhandas Govindram Seksaria. That is clear from the title given to the trust as well as from the various provisions to which we have made reference earlier. Therefore, it is not possible to hold that the trust in question is a trust for any public purpose. It is clearly a private trust. The character of the trust in question came to be considered by the Bombay High Court in Trustees of Gordhandas Govindram Family Charity Trust v. Commissioner of Income Tax, (1952) 21 ITR 231 : AIR 1952 Bom 346 under section 4(3)(i) of the Indian Income-tax Act. After examining the various provisions, the High Court opined that it was not a trust for charitable purpose within the meaning .of the Indian I.-T. Act, 1922. It was held that the primary' purpose of the settler was to benefit the members of his family and remotely and indirectly to benefit the general public. We agree with that conclusion." 26. After examining the various provisions, the High Court opined that it was not a trust for charitable purpose within the meaning .of the Indian I.-T. Act, 1922. It was held that the primary' purpose of the settler was to benefit the members of his family and remotely and indirectly to benefit the general public. We agree with that conclusion." 26. The Supreme Court had to interpret Section 4(vb) of the Kerala Agricultural Income-tax Act, 1950 in Abdul Sathar Haji Moosa Sait Dharmastapanam v. Commr. of Agricultural Income-tax, Kerala, (1973) 91 ITR 5 : AIR 1974 SC 1795 and observed as under. (Para 5) "From the above provisions it is clear that ths of the income of the B Schedule properties was primarily earmarked for the benefit of near relations of the testator. Hence, we are in agreement with the High Court that this part of the bequest cannot be considered as a public charitable trust. The scope of a provision similar to the one we are considering came up for consideration before us in Trustees of Gordhandas Govindram Family Trust. v. Commissioner of Income Tax, Civil Appeals Nos. 2382-2383 of 1969 decided on Nov. 18, 1972. Therein we have discussed the legal position. Following the ratio of that decision, we dismiss these appeals with costs.". 27. The case reported in Commissioner of Income Tax v. D.D. Deshpande, (1976) 102 ITR 390 (Bom) is clearly distinguishable. The dominant object of the trust in the said case, was held to be religious and charitable. Further. there was no direction in the trust deed that the poor members of the family of the settlor and their descendants should be given financial aid. A mere desire was expressed by the settlor in this behalf. It was held that the trust was entitled to the benefit of the exemption under Section 4(3)(i) of the Indian I. T. Act. 1922. 28. The following Supreme Court cases was also relied upon or referred to by the learned counsel for the parties : (i) Mohammad Ismail v. Sabir Ali, AIR 1962 SC 1722 . The Supreme Court had to consider the validity of a wakf-alal-aulad of Taluqdari property by a Mahmedan Taluqdar with reference to the provisions contained in the Oudh Estates Act, 1869. The Supreme Court had to consider the validity of a wakf-alal-aulad of Taluqdari property by a Mahmedan Taluqdar with reference to the provisions contained in the Oudh Estates Act, 1869. The majority view was pronounced by Wanchoo, J, who laid down as under: Two questions then arise when we have to consider the application of S. 12 to this wakf. The first is whether the purpose of this wakf is a religious or charitable purpose-within the meaning of S. 18 of the Act. Now what the wakf deed provides is that an insignificant portion of the income would be used for certain religious purposes, the rest of the income is to be used for the benefit of the wakif and his descendants from generation to generation and it is only when the line of the wakif is completely extinct that the whole of the income of the property could be utilised for what may be called charitable or religious purposes. It is urged however that even though the lion's share of the income of the property would be used for the descendants of the wakif, the wakf will still be a religious and charitable one, for the property immediately vests in God Almighty and is to be used for the benefit of His creatures, which of course, include the wakif and his descendants. Reliance in this connection is placed on the dissenting judgment in Bikani Mia v. Shuklal Poddat, (1893) ILR 20 Cal. 116 (FB) in which Ammer Ali, J expressed the view that a wakf in favour of the wakif and his descendants would be for charitable purposes under the Mahomedan Laws. It is enough to say that this was not the view of the majority of that Court. Further, in Abdul Fata Mahomed Ishak's cases, (1895)22 Ind. App. 76(PC), the Privy Council clearly held that a wakf under which the beneficiaries were the descendants of the wakif could not be treated as one for a charitable purpose even under the Mahomedan Law. Apart from this aspect of the matter, we are not here concerned with the Mahomedan law and what constitutes a charitable use under that law. We are concerned with a statute passed in 1869 by the British when they were rulers of this country and we have to interpret the English words used in that statute as understood by those who framed the statute. We are concerned with a statute passed in 1869 by the British when they were rulers of this country and we have to interpret the English words used in that statute as understood by those who framed the statute. The words with which we are concerned are "religious or charitable uses" which appear in S. 18 of the Act, and it would in our opinion require no persuasion to hold that the authority which was framing the Act could not have possibly intended that provision by wakf for ones children was provision for religious or charitable uses. The view taken by the Privy Council in Abdul Fata Mahomed Ishak's case, (1895) 22 Ind. App. 76 (PC) clearly shows that the authority responsible for the Act could never contemplate wakfs in. which the beneficiaries were the descendants of the wakif as wakfs for religious or charitable purposes. Further, the Act applies, as we have already mentioned, not -only to Mahomedan talukdars but talukdars of all religions and it could hardly be intended when the words "religious or charitable uses" were used in S. 18 that a wakf in which the beneficiaries were in the main the descendants of the wakif would be included in S. 18. Such wakfs could never be considered to be for charitable or religious purposes under Hindu law or the Christian law. In these circumstances it must be held that the wakf in the present case, though in theory it vests the property in God Almighty, is not for charitable or religious purposes. It must therefore be treated as 'a gift to God Almighty in which however for generations to come God Almighty would have no beneficial ownership. Nor do we think that the Wakf Validating Act of 1913 makes any difference to this position. That Act specifically provides by S. 3 that a Muslim can law-fully create a wakf-alal-aulad. This however does not mean that the purpose of such a wakf is a religious or charitable purpose. This is made clear by the proviso to S. 3, which provides that, the ultimate benefit in such a case must be for a religious or charitable purpose. The proviso would have been unnecessary if the purpose of a wakf-alal-aulad was recognised as religious or charitable by this law. The same in our opinion will follow from the provision in S. 4." (ii) In Mohd. S. Labbai v. Mohd. The proviso would have been unnecessary if the purpose of a wakf-alal-aulad was recognised as religious or charitable by this law. The same in our opinion will follow from the provision in S. 4." (ii) In Mohd. S. Labbai v. Mohd. Hanifa, AIR 1976 SC 1569 it was laid down as under : "The word "wakf" means detention or appropriation. According to the well recognised Hanafi School of Mahomedan Law when a Mahomedan dedicates his property for objects of charity or to God, he completely parts with the corpus which vests in God and never returns to the founder. Mahomedan Law contemplates two kinds of wakfs a wakf which is private in nature where although the ultimate object is public charity or God but the property vests in a set of beneficiaries chosen by the founder who appoints a Mutwalli to manage the wakf property. We are, however, not concerned with private wakfs which are normally known as wakf -alal-aulad. We are concerned with public wakf, i.e. dedication made for the purpose of public charity e.g. an Imam-Bada, a mosque, a Serai and the like.". (iii) Bibi Siddique Fatima v. Mahmood Hasan, AIR 1978 SC 1362 . This case was relied upon by the lower appellate Court for holding that the wakf in question was entitled to the benefit of S. 19(1)(iv) of the Urban Ceiling Act. In this case the controversy was regarding the ownership of a Kothi. While the plaintiff claimed title to the said kothi, the defendant asserted that it was wakf property as the same had been constructed by the Mutwalli of the wakf out of the wakf funds. In this context the nature of a wakf under the Mahomedan law was considered and the nature of the Mutwalli's rights and duties was also considered. The lower appellate Court has placed reliance on certain observations made by the Supreme Court in Para. Nos. 14 and 15 of the judgment. In my view, the said observations do not support the inference that a Mahomedan wakf-alal-aulad should be held to be a public charitable or religious trust (including wakfs). Earlier in para No. 13 of the said judgment, it was observed as follows : "It is undisputed in this case that a valid wakf was created by Smt. Sughra Begum. In my view, the said observations do not support the inference that a Mahomedan wakf-alal-aulad should be held to be a public charitable or religious trust (including wakfs). Earlier in para No. 13 of the said judgment, it was observed as follows : "It is undisputed in this case that a valid wakf was created by Smt. Sughra Begum. It is further indisputably clear from the waqf deed that except a portion of money which was to be spent for public, religious or charitable objects, the waqf was primarily of a private nature for the benefit of the settlor's family and their descendants, which is called wakf-alal-aulad. The ultimate object of the waqf was to spend income, if any, in the service of the Almighty God. In Abdul Fata Mohammad v. Russomoy, (1895) 22 Ind. App. 76 (PC) their Lordships of the Privy Council held that the gift to charity was illusory, and that the sole object of the settlor was to create a family settlement in perpetuity. The waqf of this kind was, therefore, invalid. The decision aforesaid caused considerable dissatisfaction in the Mahomedan community in India. This led to the passing of the Mussalman Wakf Validating Act, 1913 which was made retrospective in operation by a subsequent Act of 1930. In view of the Validating Act of 1913, the validity of the wakf was beyond the pale of challenge." It is obvious that the Supreme Court has treated the wakf-alal-aulad as a wakf of private nature. The observations which were made in paras. 14 and 15 of the judgment were made with reference to the nature of a wakf-alal-aulad in the background of the personal Mahomedan Law. Even in the same back-ground the Supreme Court has always treated wakfs -alal-aulad as a wakf of private nature. It will not be correct to hold that the distinction between a wakf of a private nature and a wakf of public nature stands obliterated because f the passing of the Mussalman Validating Wakf Act, 1913. The only effect of the passing of the Act was to give validity to the wakfs-alai-aulad which otherwise had been declared to be void as offending against the rule of perpetuity. It should be recalled that in Abdul Fateh Mohammad v. Russomoy, (1895) 22 Ind. App. 76 the Privy Council had declared such wakfs to be invalid. The Validating Act. The only effect of the passing of the Act was to give validity to the wakfs-alai-aulad which otherwise had been declared to be void as offending against the rule of perpetuity. It should be recalled that in Abdul Fateh Mohammad v. Russomoy, (1895) 22 Ind. App. 76 the Privy Council had declared such wakfs to be invalid. The Validating Act. 1913 nullified the effect of the said decision of the Privy Council and gave validity to such wakfs. However, this did not mean that all wakfs in the nature of wakf-alal-aulad became public wakfs. I have already pointed out that the Supreme Court's aforesaid decision reported in AIR 1962 SC 1722 has clearly laid down that the purpose of a wakf-alal-aulad cannot be recognised as religious or charitable. Further, in the aforesaid decision in AIR 1976 SC 1569 Fazal All. J has clearly laid down that the Mahomedan Law contemplates two kinds of wakfs-(1) a wakf which is private in nature and (2) a wakf which is public in nature. The wakf-alai-aulad has been held to be a wakf of private nature. The same is the view taken in Bibi Fatima v. Syed Mohd. Mahmood Khan, AIR 1978 SC 1362 , as is clear from the observations made in Para 13 of the said judgment, which have been referred to above. (IV) In Radhakanta Deb v. Commr. of Hindu Religious Endowments, AIR 1981, SC 798, Fazl Ali, J again laid down that the Mahomedan Law recognizes the existence of a private trust, which is also of a charitable nature and which is generally called wakf-alal-aulad where the ultimate benefit is reserved for God but the property vests in the beneficiaries and the income from the properties is used for the maintenance and support of the family of the founder and his descendants. In case the family becomes extinct then the wakf becomes a public wakf, the property passing in God. a public wakf under the Mahomedan Law is called 'Wagf-fi-sabi-lil -lah'. 29. It is not necessary to refer to other decisions of the Supreme Court such as AIR 1957 SC 133 , AIR 1963 SC 510 etc. where the controversy related to Hindu temples-whether they were public trusts or private trusts and the criterion which was applied was the right of the public to offer worship in the temple. 29. It is not necessary to refer to other decisions of the Supreme Court such as AIR 1957 SC 133 , AIR 1963 SC 510 etc. where the controversy related to Hindu temples-whether they were public trusts or private trusts and the criterion which was applied was the right of the public to offer worship in the temple. The controversy which we have to examine is a different one and the context of the controversy is also a different one. 30. I may mention here that the learned counsel for the respondent No. 1 placed before me a passage from Hamilton*s Translation of Hedaya (Second Edition 1870). The passage read as under : "According to the two disciples waqf signifies the appropriation of a particular article, in such a manner as subjects it to the rules of divine property, whence the appropriator's right in it is extinguished, and it becomes the property of God by the advantage of it resulting to his creatures. The two disciples, therefore, hold appropriation to be absolute: and. consequently, that it cannot be resumed or disposed of by gift or sale, and that inheritance also does not obtain the respect to it.". 31. While the aforesaid passage is instructive in giving an idea of the nature of a wakf in the Mahomedan Law, it should be seen that the controversy which relates to the interpretation of S. 19(1)(iv) of the Act has to be decided, not in the peculiar background of the Mahomedan Personal Law. but in the background which is a general one. In other words, the public charitable or religious trusts or wakfs which have been spoken of in the said provision of the Ceiling Act, are not referable to the trusts or wakfs of any particular religious section of the people. The Urban Land (Ceiling and Regulation) Act, 1976 is an enactment which is applicable to the entire population without any distinction of caste, creed or religion. It is en expropriatory legislation and its clear aim and object is to put a ceiling on the vacant land which a person can hold and to take away the excess vacant land from such a person. It is en expropriatory legislation and its clear aim and object is to put a ceiling on the vacant land which a person can hold and to take away the excess vacant land from such a person. Such excess land so taken away is to vest in the State and is to be distributed for the common good as laid down by the majority in Maharaosaheb Shri Bhim Singh Ji v. Union of India, AIR 1981 SC 234 . Like the taxing statute, such is the Income-tax Act, Wealth-Tax Act etc. it applies to all the sections of the population. For interpreting such an enactment I apprehend that it is not permissible to import the peculiar characteristics which are applicable under the personal law to any particular section of the population. In my view, the approach laid down in the Full Bench decision of the Lahore High Court in AIR 1931 Lah, 578 is apposite for interpreting the provision in question in the Ceiling Act. 32. I may state here that a reference was made to some other cases also but they have not been found to be of any help tome in deciding the controversy at hand, e.g. a reference was made to a Full Bench decision of this Court in Moattar Raza v. Joint Director of Consolidation, AIR 1970 All 509 , whereby the Division Bench pronouncement reported in AIR 1933 All 407 , Mohammad Qamar Shah Khan v. Mohd. Salamat Ali Khan was overruled. These cases relate to the rights of Mutwallis, whether the wakf properties vest in God or the beneficiaries and whether the Mutwalli can be treated as the owner of the property subject to the limitation that he cannot alienate the wakf property or whether he is a mere Manager of such property. All these questions really do not arise in the present case and I have, therefore, not found it necessary to make a reference to such cases. 33. I now take up the. contention of the learned counsel for respondent No. 1 that a different legislative intention should be spelled out from S. 19(1)(iv) of the Ceiling Act inasmuch as there is no provision there that the entire income of the trust or the wakf must be spent for public charitable or religious purpose unlike certain other. enactments where such a clear provision is made. enactments where such a clear provision is made. In my view, this contention is not tenable. It is true that in the U.P. Imposition of Ceiling on Land Holdings Act S. 6(1)(f) is explicit and it is clearly laid down therein that a benefit of the exemption under the said clause shall not be available to a wakf, trust or endowment of which the beneficiaries wholly or partly are settlors, or members of his family or his descendants. Similarly, in S. 13(b)(ii) of the IT Act, 1961 it was made clear that the benefit of the exemption under S. 11 of the said Act could not be extended to such trusts or endowments where the benefit of the trust accrued to the settlors or their relations. However, in my view, the mere fact that such a clear prohibition is not contained in S. 19(1)(iv) of the Act does not mean that a different intention under-lay the enactment of the said provision. Very often the Legislature feels it necessary to make certain aspects explicit in the statutory provision and to put the matter beyond any doubt or debate. The fact that such a prohibition is not explicitly provided does, not mean that it cannot be spelled out from the phraseology which has been used in S. 19(l)(iv) of the Act. It should be seen that S. 19(1)(iv) uses the expression "public charitable or religious trust (including wakf)". The further requirement is that the vacant land held by such trust is required and used for any public charitable or religious purpose and the proviso very clearly lays down that such exemption under this clause shall apply only so long as such land continues to be required and used for such purposes by such trusts. It is obvious that the clear accent is that it should be public charitable or religious trust and vacant land held by such trust should be required and used for public charitable or religious purpose. The benefit of exemption will last only till such time as the vacant land continues to be required and used for such purpose. In my view, these requirements laid down in the said provision are inconsistent with a wakf-alal-aulad of the kind which is involved in the present case where the dominant intention of the settlor was to benefit the Mutwalli and the settlors relations. In my view, these requirements laid down in the said provision are inconsistent with a wakf-alal-aulad of the kind which is involved in the present case where the dominant intention of the settlor was to benefit the Mutwalli and the settlors relations. Such a wakf cannot be treated as a public charitable or religious one, the benefits which are extended to the Mutwalli and the relations of the settlor (which, I have emphasised above, take up the major portion of the income of the wakf), cannot be treated as used for any public charitable or religious purpose. I should like to say that the words "any public charitable or religious purpose" occurring in this provision cannot be interpreted to mean that if any portion of the trust or wakf income is spent for a public charitable or religious purpose then such a trust or wakf should ne deemed to satisfy the requirement laid down in the said provision. The word 'any' does not mean a part or portion of the income of the trust or wakf. This word 'any' has been used to emphasise that out of a number of public charitable or religious purposes, the trust or the wakf may be concerned with any of such purposes. Such purposes can be many in number and if the trust or the wakf is meant for any of such public charitable or religious purpose, then the requirement will be satisfied. However, the requirement will not be satisfied if only part is utilised for such purpose. I should further make it clear that even though the discussion above is with reference to the income of the trust, strictly speaking, the provision does not refer directly to the income of the trust or the wakf, though indirectly the said criterion may come in. The requirement of the said provision is that the vacant land of such trust or wakf should be required and used for any public charitable or religious purpose. In the instant case, the direction was given by the Isettlor with reference to the income from the wakf properties and such income will be derived from all wakf properties including vacant land held by the wakf. Therefore, there is no harm in discussing the controversy with reference to the direction given in the wakf deed regarding the disposal of the income from the wakf properties. 34. Therefore, there is no harm in discussing the controversy with reference to the direction given in the wakf deed regarding the disposal of the income from the wakf properties. 34. I have already referred to the pronouncement of the Supreme Court in (1973)88 ITR 47 . As stated above, S. 5(1)(i) of the Wealth-Tax Act, 1957, comes to be interpreted in the said decision. The phraseology which has been used in the said provision of the j Wealth-Tax Act is significant. It is to a, ' great extent similar to the phraseology t which has been used in S. 19(l)(iv) of the Ceiling Act. In the said provision of the Wealth-Tax Act, it is not expressly stated that the entire benefit from the property should be utilised for the public purpose of a charitable or religious nature. The word 'any' has been used before the words "public purpose of a charitable or religious nature". If there were any validity in the aforesaid contention of the learned counsel for the respondent No. 1, then the Supreme Court would not have decided the case, Trustees of Gordhandas Govindram Family Charity Trust v. Commissioner of Income Tax, Bombay, (1973) 88 ITR 47 , in the manner it did. It seems to me that the said decision of the Supreme Court under the Wealth-Tax Act is completely destructive of the contention which has been raised by the learned counsel for respondent No. 1 in support of the impugned judgment of the appellate Court below. 35. Learned counsel for the respondent No. I sought to make a distinction between the words 'charitable or religious' and contended that in view of the phraseology used in S. 19(1)(iv) of the Act while the charitable trust has to be a public one, and religious trust including the wakf need not be a public one. In my view, this contention is. not correct. The word 'public' qualifies both the expressions "charitable or religious", which follow the said word. Moreover, in my view, a wakf-alai-aulad cannot be treated to be a religious wakf. 36. Lastly, I may refer to the decision of V.K. Khanna, J in State v. Aftab Ahmad Khan, 1982 All W.C. 617 . That learned Judge seems to have taken the view that a wakf-alal-aulad could not be treated to be a wakf for a charitable and religious purpose. 36. Lastly, I may refer to the decision of V.K. Khanna, J in State v. Aftab Ahmad Khan, 1982 All W.C. 617 . That learned Judge seems to have taken the view that a wakf-alal-aulad could not be treated to be a wakf for a charitable and religious purpose. However, the learned counsel for the respondent No. I contended that the same cannot be treated as the ratio of the said decision as the learned Judge was remanding the case with a direction that the wakf deed should be perused. I should like to make it clear that I have decided the controversy independently and apart from the aforesaid decision of the said learned Judge in the said case. Therefore, it is not necessary to decide what is the real ratio laid down in the said case decided by V.K. Khanna, J. 37. Accordingly, I allow this writ petition and hereby quash the impugned judgment of the appellate Court dated 21-1-1980 (annexure 2 to the petition). However, in my view, it will not be just and correct to allow the order of the Prescribed Authority to become final after such quashing of the appellate Court's judgment, as the appellate Court did not go into other controversies which were involved in the appeal before it and it allowed the appeal on the preliminary ground that the wakf in question was entitled to the exemption under S. 19(1)(iv) of the Act. Therefore, it seems to me just and proper that the case should be remanded to the appellate Court with a direction that the appeal shall now be disposed of on other grounds contained in the memorandum of appeal. While disposing of the appeal hereafter, the appellate Court shall not grant the benefit of S. 19(1)(iv) of the Act to the wakf in question. 38. There will be no order as to costs.