MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH YUSUF BHAI CHAWLA & ORS.

The following Judgment of the Court was delivered: JUDGMENT E

1Copy pinpoint1. Leave granted.

2Copy pinpoint2. Since the common questions arises in all these appeals, we deem it appropriate to dispose of the same by the following common judgment.

3Copy pinpoint3. The facts leading up to the litigation need to be referred to at F the very beginning. The Parliament enacted Wakf Act, 1995, (hereinafter referred to for the purpose of brevity as, ‘the Act’). By order dated 01.12.1997, the Government of State of Maharashtra (hereinafter referred to as the State’) appointed a Survey Commissioner purporting to act under Section G 4 of the Act. A Wakf Tribunal was constituted at Aurangabad by order dated 30.10.2000. On 04.¹.2002, the State incorporated the Maharashtra State Board of Wakfs (hereinafter referred to as Board). Incidentally, it is noticed that four members came to be nominated by very same notification, the details of which shall be evident in the course of the H

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A judgment. The State forwarded the survey report which it received to the Board which was constituted on 07.⁵.2002.The Joint Parliamentary Committee (hereinafter referred to as ‘JPC’ for brevity) submitted a report on 08.⁷.2003.

4Copy pinpoint4. At this juncture, it is apposite that we may notice another B dimension of the litigation which is the Bombay Public Trust Act, 1950 rechristened as the Maharashtra Pubic Trust Act, 1950. The real lis in this case surrounds the question as to whether the respondents before us who turned out to be the writ petitioners before the High Court are Public Trusts or they are in essence or in substance, Wakfs under the Mohammedan Law. C The Charity Commissioner under the Bombay Public Trust Act, 1950 (hereinafter referred to as ‘1950 Act’ for brevity), makes his entry on the stage by issuing a circular dated 24.⁷.2003 which reads as follows: “Dated: 24.⁷.2003 D Sub: The Muslim Wakfs/Trusts registered with the Charity Commissioner, and as per Section 43 of the Wakf Act, 1995. CIRCULAR NO. 307 DATED 24.⁷.2003 According to Section 43 of the Wakf Act, 1995 Wakfs E registered as Public Trusts should not be tried under the Bombay Public Trust. Further orders may be awaited. Sd/- The Charity Commissioner Maharashtra State, Mumbai F 24.⁷.2003 Sec. 43 of Act is as follows: “Sec. 43 Wakfs registered before the commencement of the Act demand to be registered – Notwithstanding anything contained in G this Chapter, where any wakf has been registered before the commencement of this Act, under any law for the time being in force, it shall not be necessary to register the Wakf under the provisions of this Act and any such registration made before such commencement shall be deemed to be a registration made under this Act.” H

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5Copy pinpoint5. On 13.11.2003, a list of Wakfs was published by the Board. A The first writ petition came to be filed by one Anjuman-I-Islam on 28.08.2003. A Challenge was laid to the circular issued by the Charity Commissioner. There was also a challenge thrown to the Constitution of the Board. The High Court proceeded to stay the circular by order dated B 17.11.2003 qua the writ petitioner. A spate of writ petitions followed. They were drawn up in similar vein; orders of stay followed as well.

6Copy pinpoint6. It would appear that there was a meeting held by the Law and Judiciary Department to discuss the problems of the Wakfs.A decision was taken on 11.08.2004 to constitute a Committee of the Charity C Commissioner and two members of the Board. The following may be noted at this juncture itself as the result of the meeting which took place on 11.08.2004: “Meeting to discuss the problems of Wakfs cases was held today i.e., on the 11.8.2004 at 12.00 noon under the Chairmanship of D Hon’ble Minister (Law). The following dignitaries and officers of Government were present in the chamber of Hon’ble Minister (Law):- (1) Hon’ble Minister (Law) (2) Hon’ble Minister, Aukaf E (3) Chairman, Wakf Board, Mumbai (4) HafeezbhaiDhature, M.L.A. & Member of Wakf Board. (5) Principal Secretary & S.L.A. L.& J.D. (6) Charity Commissioner, M.S.Worli, Mumbai F

(7) Executive Officer, Wakf Board, Mumbai (8) Jt. Secy. R&F.D. (9) shri Yusuf Muchhala, Sr. Counsel, High Court. G (10) Shri Viren Merchant, Chartered Accountant (11) Jt. Secy L& J.D. (Shri Gomare) (12) D.S. (Law L& J.D. (Shri Bangale), (13) U.S. (Law), L& J.D. (Shri Patil) H

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A So many writ petitions have been filed before the Hon’ble High Court challenging the formation of Wakf Board. The Hon’ble High Court admitted the writ petitions and granted interim relief in favour of the petitioners restraining the Charity Commissioner from transferring the muslim trusts to Wakf Board and granted stay on the Circular dated 24.⁷.03 issued by the Charity Commissioner. B The Wakf Board is also restrained by the Hon’ble High Court from collecting the contribution from the petitioners in these writ petitions. On the basis of the same, Association for Protection of Wakfs and Trusts has made representation to the Government with a request to; C (1) direct the Wakf Board to cancel the notification declaring the list of Wakf which are published on 13.11.03, the said notification is not only full of mistakes but highly malicious. (2) direct the Wakf Board to have a fresh survey done properly ascertaining Shiya and Sunni Wakf Boards and have the Survey D monitored by a competent and judicious senior officer. (3) form a fresh Wakf Board after proper survey is concluded. In the meeting it was discussed as to whether the Wakf Board is consituted legally as per the provisions of Wakf Act, 1995 and whether it is possible for the Government and the Wakf Board to E have a fresh survey ascertaining Shiya Wakf and Sunni Wakf and whether it is necessary to form a fresh the Wakf Board. Following resolutions have been passed in the meeting: (1) It is decided to constituted a committed under the Chairmanship F of Charity Commissioner including the two members from the Wakf Board and two member of Charity Commissioner. This committee will study the work of charity organisations and Wakf Board constituted in Andhra Pradesh, Karnataka and Uttar Pradesh and decide which of the muslim trust registered under the Bombay Public Trusts Act, 1950 are covered under the Wakf G Act and which comes under the Bombay Public Trusts Act and that which of the Wakfs are Shiya Wakfs and Sunni Wakfs. (2) It is not legally possible to extend the period of notification after 13.11.04. But the concerned trusts shall make an application to the said Committee stating their objections, reservations, if any. H

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(3) Wakf Board will give an advertisement in the newspapers to requesting the muslim trusts and wakfs to give information stating that whether they are trust or Wakf and if it is a wakf, whether it is a Shiya Wakf or Sunni Wakf and the details of income of such Wakfs. (4) Shri Yusuf Muchhala, Sr. Counsel High Court may submit the list of Shiya Wakfs, Sunni Wakfs and Trusts belonging to their Association to the Committee constituted under the Chairmanship of Charity Commissioner. He made his submissions without prejudice to the rights and contentions of the petitioners in diverse writ petitions pending in the High Court at Judicature at Bombay, challenging the constitution of the wakfs Board, the survey commissioner report and the list of Wakfs published by Maharashtra Wakf Board on 13.11.2003. (5) Mr. Muchhnala will persuade their clients (petitioners) to co- operative with the said committee formed by the State Government and his clients will co-operative without prejudice to their rights and contentions on the issues in the pending writ petitions. (6) To bring uniformity in respect of the contribution collected for administrative fund, the Wakf Board may take administrative fund contribution annually at a rate of 2% for the gross annual income or of the gross annual collection or receipt as the same way in which the public trust administrative fund is being collected by the Charity Commissioner. (7) The Wakf Board shall not take any further action in respect of the notification declaring the list of wakfs which was published on 13.11.2003 until the report of the said Committee is submitted to the State Government.

7Copy pinpoint7. Writ Petition No. 2906 of 2004 came to be filed by Shaikh Yusuf Bhai Chawla, a trustee of the Sir AdmjiPeerbhoy Sanatorium. Therein, the notification dated 04.¹.2002 was sought to be put under a cloud.

8Copy pinpoint8. On 08.02.2005, the Committee which we have just hereinbefore mentioned submitted its report.It referred to the powers of the Board under Section 40 of the Act to decide whether the properties are Wakf Property or not.

9Copy pinpoint9. On 09.03.2005, the Board passed a resolution. It reads as follows: H

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A “Charity Commissioner may be requested to transfer bifurcated Wakfs also with records of the Charity Commissioner, numbering 918 from 1Mumbai Co. the Wakf Board and keep with Charity Commissioner 755 Trusts. Also it is resolved to accept the list of Pune District wherein 379 Wakfs are identified and 84 Trust. The Charity Commissioner may be requested to transfer record and proceeding of 379 Wakfs to Wakf Board and keep with his 84 Trust, rest identification may be completed, this transfer is subject to Boards Rights to consider matters under section 40 of the Wakf Act, 1995.”

10Copy pinpoint10. The Board, thereafter, issued a corrigendum purporting apparently to act in terms of the resolution dated 09.03.2005. The corrigendum had the effect of abridging the list of Wakfs which was published on 13.11.2003. Most significantly, a number of Wakfs which were included in the List dated 13.11.2003 came to be excluded.On 13.04.2006, the State wrote to the Board referring tothe letters of the D Charity Commissioner in which the Commissioner presented a new classified list of Wakfs and Trusts. The Lists of Wakfs and Trusts were also forwarded to the Board. The Board passed a resolution on 19.⁶.2006. It accepted the list of Wakfs given by the Charity Commissioner.

E “ANNEXURE-P-19 Maharashtra State Board of Wakfs Dated 19.⁶.2006 Point No. 46 (reg): Bifurcation of Wakf and Trust as per List finalized by Committee appointed by the government publication of Government Gazette: F Resolution No.4.⁶: It is unanimously revolved that the report of CharityCommissioner is received through Government of Maharashtra of all Districts in Maharashtra. In principle it is agreed to publish the lists in Government Gazette, lists of bifurcated Wakfs. Again under section 40 of the Wakfs Act, the Board has power to take remaining Wakfs at any time in its period. Hon’ble Chairman G is authorized to take final decision in this regard. (M.Y. Patel) Additional Collector Chief Executive Officer H Aurangabad”

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11Copy pinpoint11. On 31.⁷.2006, a corrigendum was issued by the Board A modifying the earlier list of Wakfs. Thereafter, on 25.04.2007, the Board issued another notification stating that the resolution which was dated 19.⁶.2006 was cancelled. The reason given was that it was not as per the business rules. It was also decided to cancel the corrigendum issued on 31.⁷.2006. On 04.09.2008, the Government of Maharashtra appointed B seven members to the Board. This notification, in turn, also formed the subject matter of challenge in the High Court. The membership of the Board stood reduced to four members viz., two of the members who were originally appointed and two who were from the lot who were subsequently appointed. On 23.10.2008, C there is yet another summersault by theBoard insofar as it purported to cancel the corrigendum dated 05.⁵.2005 and it was therein declared that the original notification containing the List of Wakfs dated 13.11.2003 was to remain intact: “ANNEXURE-P- 25 D Maharashtra Govt. Gazette NOTIFICATION DATED 23.10.2008 No.MSBW/REG-240/3805/2008. Dated: 7 .10 .2008 E NOTIFICATION By the Chief Executive Officer The list of Wakfs Properties of Mumbai & B.S.D. was published in Government Gazette dated 13.11.2003 as per Board Resolution F 3 dated 27.9.2003, under section 5 (1) and sub-section 3 of section 4 of Central Wakf Act, 1995. The corrigendum to the aforesaid Government Gazette notification was issued on 5.⁵.2005 with reference to the Maharashtra Stat·e Board of Wakfs. Resolution No. 3 dated 9.3.2005, and the same G was published on 5.⁵.2005. However, the Resolution No.3 dated 9.3.2005 was cancelled and· deleted by the Board in its meeting vide Resolution No. 17/2008 dated 3.4.2008, and confirmed on 27.⁵.2008. Hence the Corrigendum No.MSBW/REGISTRATJON -73/ 1068/2005 H

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A published on 5.⁵.2005 stands automatically cancelled. Thus the original notification of List of Wakf Properties published on 13.11.2003 remains as it is. (S.S.ALI QUADRI) Chief Executive Officer B Maharashtra State Board of Wakfs Aurangabad”

12Copy pinpoint12. The JPC gave a report on 23.10.2008 indicating that the list of Wakfs as far as the State of Maharashtra is concerned, was published. The next development is to be noticed in the form of a notification dated C 20.10.2010. We may notice its contents at this juncture itself. “ANNEXURE-P-26, MINORITIES DEVELOPMENT DEPARTMENT Mantralaya, Mumbai 400 042, dated the 20th October 2010 D NOTIFICATION WAKF ACT, 1995 No. Wakf-2009/ C.R. 105/Desk-4. Whereas the Government of Maharashtra vide Government Notification, Revenue and Forests E Department No. Wakf-1097/CR-95/L-3, dated the 1st December, 1999 and No. WAKF. 1097 /CR-95/L- 3, dated the 29th September 1999 appointed Survey Commissioners, Additional Survey Commissioners and Assistant Survey Commissioners, respectively, for the purpose of making a survey of Wakfs existing. on the 1st day of January 1996 in the State of Maharashtra; F And Whereas, the Joint Parliamentary Committee received complaints that the survey was not conducted properly and therefore, the Committee issued directions dated 20th October 2008 to the State Government to conduct resurvey of the Wakfs in the State; G And Whereas, the Government considers it expedient to appoint Divisional Commissioners of Konkan, Nashik, Pune, Aurangabad, Amravati and Nagpur as Survey Commissioner for their respective divisions, District Additional Collectors of Konkan, Nashik, Pune, Aurangabad, Amravati and Nagpur as Additional Survey H

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Commissioners for their respective districts, and Tahsildars as A Assistant Survey Commissioner in their respective Talukas, to re- survey the Wakfs in the State of Maharashtra; Now, therefore, in exercise of the powers conferred by sub-section (1) of section 4 of the Wakf Act, 1995., the Government of Maharashtra hereby appoints: - B (1) Divisional Commissioners of Konkan, Nashik, Pune, Aurangabad, Amravati and Nagpur Revenue Divisions, as Survey Commissioner for their respective divisions, (2) District Additional Collectors of Konkan, Nashik, Pune, Aurangabad, Amravati and Nagpur Districts, as Additional Survey C Commissioner for their respective Districts, (3) Tahsildars of the Talukas, as Assistant Survey Commissioner for their Talukas, for. conducting re-survey of the Wakfs in the State of Maharashtra. D By order and in the name of the Governor of Maharashtra. GEETA CHANDE Under Secretary to Government”

13Copy pinpoint13. Writ Petition 357 was of 2011 was filed challenging the said notification. There were other writ petitions also which were filed. Writ Petition was filed being Writ Petition No. 899/2011 challenging the circular of the Charity Commissioner and also the list of Wakfs were challenged. Pleadings were exchanged.Written notes of arguments were also submitted. The High Court has allowed the writ petitions. The findings of the High Court may be noticed at this stage.

14Copy pinpoint14. The High Court broadly formulated four issues. The High Court posed the question as to whether the incorporation of the Board was illegal. The contention which was urged before the High Court by the writ petitioners was that here is a case where the cart was put before the horse. The law giver envisaged the conduct of survey of the Wakfs. A survey of Wakfs in terms of the section 4 followed by the publication of the List under Section 5 would reveal among other H

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A things, the number of Wakfs in the State. Even more importantly, the survey would yield the necessary inputs so that the duty which was cast on the Government under Section 13 of the Act could be performed. Section 13, it is the finding of the High Court cast a mandatory duty on the Government to form two separate Boards viz., a Sunni Board of Wakf and a Shia Board of Wakf, if Section 13(2) was attracted.It was B found by the High Court that Section 13(2) contemplated that if 15 per cent of the Wakfs were Shia Wakfs or the income from such Wakfs is in the excess of 15 per cent of the total income, the law mandates that there must be separate Wakfs for the Sunnis and Shias respectively. The High Court proceeded to find that Section 13 contemplates that the C Board is a body corporate and has perpetual succession. It was found further that the Act does not contemplate a Board being formed under Section 13(1) and thereafter, a survey report being received and on the strength of the contents of the survey report with reference to the criteria in Section 13(2), the Board which is originally put in place under Section D 13(1) being extinguished and creation of two separate Boards for the Sunnis and the Shias as contemplated therein.

15Copy pinpoint15. The Court found that the contention of the report being placed by the State apparently under Section 5 of the Act, viz., the requirement therein that the Government on receipt of the report of the Surveyor E must forward the report to the Board and therefore,the Board must be in place and that the survey need not precede the incorporation of the Board was misplaced.

16Copy pinpoint16. On the second aspect, the High Court posed the question as to the legality of the constitution of the Board. Section 14 provides for F the constitution of the Board. The High Court drew support from the fact that, as on the date, it apparently considered the matter that there were only two members and the law contemplated that there must be a minimum of seven members in the Board and here is what the High Court held:

G “It is thus clear that presently there are only two Members of the Board. This position was not disputed before us. Perusal of Section 14 makes it clear that a wakf Board having only two members cannot be said to be properly constituted and· therefore, we have to hold that the constitution of Wakf Board of Maharashtra is not in accordance with law.” H

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17Copy pinpoint17. Moving on, the High Court dealt with the complaint of the writ petitioners regarding the publication of the list itself on 13.11.2003. The High Court largely drew on the report of the JPC itself.

18Copy pinpoint18. Still later, the High Court found favour with the contention of the writ petitioners that here is a case where developments based on the filing of the writ petitions cannot be overlooked. The development consisted of the constitution of the Bifurcation Committee which had the blessings of the Government itself, and which Committee held meetings in which the Charity Commissioner of the Wakf Board also participated and certain public trusts were identified as public Trusts and others as Wakfs. After finding that the survey conducted by the Survey C Commissioner was flawed, the High Court accepted the request of the writ petitioners that since on 20.10.2020 resurvey was also ordered by the Government when the resurvey is conducted, the writ petitioners may be afforded an opportunity to place before the Survey Commissioner the report of the Committee under which the writ petitioners apparently were identified as being actually public trusts. D

19Copy pinpoint19. Thereafter, the High Court, we may notice, in the context of the impact of the 1950 Act proceeded to make the following observations: THE APPEALS

20Copy pinpoint20. The appellants before us are the Board, State of Maharashtra E and two others.

21Copy pinpoint21. We heard Shri K. K. Venugopal, learned senior counsel appearing on behalf of the Board along with Mr. Javed Shaikh, Mr. Sudhanshu S. Choudhari, Ms. Suhasini Sen, Mr. Mahesh P. Shinde, Ms. Rucha A. Pande, Mr. Veeraragavan M. and Mr. Kamran Shaikh, learned counsel. We have also heard Mr.GopalSankaranarayanan, learned senior counsel who also appeared for the Board. We have heard Shri Rahul Chitnis learned counsel appearing on behalf of the State. Last, but not the least, we heard Shri Harish Salve, learned senior counsel appeared on behalf of the respondents-writ petitioners in C.A. No. 7830 of 2022 (@ SLP (C) No. 1132 of 2017)along with Mr. S.MaheshSahasranaman, Dr. Abhishek Manu Singhvi, learned senior counsel who appeared in C.A. Nos. 7812-7814 of 2022 (@ SLP (C) Nos. 31288-31290 of 2011) along with Mr. Murtaza Kachwalla, Mr. H

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A Moinuddin Algaus Shaikh and Ms. Ekta Bhasin, learned counsel. We also heard Mr. Y. H. Muchhala, learned senior counsel along with Mr. Sagheer Khan and Mr. G. D. Shaikh, Mr. Seshadri Nadu, learned senior counsel, along with Mr. S. Mahesh Sahasranaman, also made his submissions. B We have further heard Shri Vinay Navare, learned senior counsel and we have also heard Shri Anil Anturkar, learned senior counsel.

22Copy pinpoint22. Shri K.K.Venugopal, learned senior counsel for the Board would impugn the judgment on various grounds. He would challenge the finding regarding the alleged illegality in C the incorporation of the Board as unsustainable. There is no duty cast under Section 13(2) of the Act to have separate Boards if the percentage of Shia Wakfs are found toexceed the percentage mentioned in the said section (15 per cent) he contended. He would further contend that a survey need not precede the incorporation.

23Copy pinpoint23. Learned senior counsel also did contend that, in fact, when the Wakf Act 1954 was enacted having regard to Article 254 of the Constitution, even treating the 1950 Act as a law which embraced a Wakf as a public trust and provided for its regulation, the Wakf Act 1954 being a self-contained Code even if it was not made applicable to the E State of Bombay, in view of the judgment of this Court in State of Kerala & Ors. v. Mar Appraem Kuri Co. Ltd.& Another,1 the mere making of the law by Parliament attracted the doctrine of repugnancy. Therefore, since the Scheme of the Wakf Act, 1954 is completely irreconcilable with the provisions of 1950 Act, it did not even survive the passing of the Wakf Act, 1954. F

24Copy pinpoint24. He would also after taking us through the factual developments which we have adverted to already, contend that the Board was indeed validly constituted and the survey was conducted as per law. The Survey Commissioner was appointed in 1997. It took the surveyor nearly five years to submit his report. He would, in particular, point out that even the G JPC report which is the sole premise for finding the list flawed by the High Court, has observed that questionnaires were dispatched. This meant that all parties were put on notice. It is not as if the writ petitioners were put to prejudice. They had the right to approach the properly constituted

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alternate forum viz., the Tribunal under Section 6 of the Act. No ground whatsoever existed to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution. The question as to whether an institution is a Wakf or a public trust as the writ petitioners claim is to be dealt with by the duly constituted Tribunal only.

25Copy pinpoint25. He would submit that as far as the corrigendum which was issued on 05.⁵.2005 cutting down the width of the number of the Wakfs which was included in the original list dated 13.11.2003 is concerned, it was wrongly done. This fact was realised and the mistake came to be rectified as we have noticed in the narration of facts.

26Copy pinpoint26. He would further contend that what JPC complained about was under-inclusion of the Wakfs. In other words, the JPC found that there were complaints about the large number of Wakfs which were left out in the List of 13.11.2003. This did not detract from the validity or the correctness of the List dated 13.11.2003. As regards Wakfs included therein,it is contended,therefore, there arose no occasion for the High Court to set aside the List dated 13.11.2003. As regards the other findings and directions which were given by the High Court, the learned senior counsel would contend that they are wholly untenable and cannot be sustained.

27Copy pinpoint27. With regard to the effect of Section 112 of the Act, Mr. K.K. Venugopal, learned senior counsel, would submit that Section 112 clearly brings about a repeal of the law in relation to Wakfs in the 1950 Act.

28Copy pinpoint28. Shri Gopal Sankaranarayanan, learned senior counsel, adopted the submissions made by the learned senior counsel Shri K. K. Venugopal. He would supplement, in particular, in his attack against the finding that the Wakf was not properly incorporated on the following grounds. F He would submit that a perusal of the Act would reveal that the Act has a definite scheme. It includes a provision for registration of the Wakfs. The immediate need for creation of the Wakf Board which cannot await the result of the survey commissioner is impressed upon us. The Act contemplates a duty with every Wakf whether created before or G after the Act to register themselves with the Wakf Board.

29Copy pinpoint29. Section 32 contemplates various powers and functions to be discharged by the Board. The Board’s sanction is required under Section 51 even for leasing the property. Therefore, there cannot be a hiatus from the date of the commencement of the Act and creation of the H

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A Wakf Board, as it will defeat the sublime object of the Act. He has also argued that Section 103 and 106 would constitute a sufficient answer to the findings of the High Court that the Act does not contemplate the creation of second Wakf Board after the creation of the first composite Board. He would also point out that the report under the Survey under Section 4 of the Act is purely preliminary. It does not affect any legal rights. The right of the Wakf which is included in the List published under Section 5(2) of the Act cannot be preponed to the time when the Survey Commissioner submits its report under Section 4(3) of the Act to the Government. The right which the person aggrieved (as it stands amended in place of the ‘person interested in the Wakf’) has is that theaggrieved person can approach the Tribunal under Section 6.

30Copy pinpoint30. Therefore, no prejudice as such was caused to the writ petitioners that would have justified their knocking at the doors of the High Court under the extraordinary jurisdiction under Article 226 of the Constitution.

31Copy pinpoint31. He would also submit that there has been a different regime created from the previous one which fell for consideration before this Court in the case reported in Nawab Zain Yar Jung (Since Deceased) and Othersv. Director of Endowments and Another2. He would canvas for the position that having regard to the effect of the amendment brought E about to the word ‘beneficiary’ in section 3(a) of the Wakf Act 1954 and its continuance in the present Avtar in Section 3(a) again of the Act, the fundamental premise on which the decision of this Court in Nawab Zain Yar Jung (Since Deceased) and Othersv. Director of Endowments and Another (supra) was rendered has been taken away.

32Copy pinpoint32. In other words, according to him, in view of the fact that though prior to the amendment in 1964, the word beneficiary was defined in such a manner that a Muslim who purported to create a Wakf, the benefit of which was available to all without reference to religion was tabooed,after the amendment, a Wakf which has for its object any public utility which is sanctioned by Muslim law would pass muster as a valid G Wakf. This has brought about a complete change in the concept of Wakf and what is more important, its repercussions are pronounced with regard to the controversy at hand. In other words, he would submit that the very case of the writ petitioners/ respondents has been that since their

2 H AIR 1963 SC 985

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institutions are public religious or charitable trusts and therefore, they A were registered under the 1950 Act and they cannot be treated as Wakfs. Since, the very basis for the difference between the Wakf and a Trust as was perceived, by the Court in the said judgment having being deciphered with the pre-amendment definition of the word beneficiary has been removed, there cannot be any difficulty in the law getting at B Wakfs, in substance and bringing them under the firm control of the Act. He relies on case law which we shall refer to at the appropriate stage.

33Copy pinpoint33. Mr. Javed Sheikh, learned counsel for the Board supplemented Shri K. K. Venugopal and Mr. Gopal Sankarnarayanan, learned senior counsel, and would support them in their attempts at overturning the impugned judgment. C

34Copy pinpoint34. Shri Rahul Chitnis, learned counsel for the State who appears in certain special leave petitions would also attack the findings of the High Court on analogous grounds and he adopts the argument addressed by the learned senior counsel. He would submit that after the filing of the special leave petitions in this Court which took place in the year D 2011, the Government has ordered a second survey on 07.12.2016. He would point out that the order dated 20.10.2010 has been revoked.

35Copy pinpoint35. Shri Anil Anturkar, learned senior counsel, appears in SLP (C)No. 3136 of 2016. E He would contend that though this Court has pronounced about the ambit of Section 4 of the Wakf Act, 1954, in the decision reported in Board of Muslim Wakfs, Rajasthan v. Radha Kishan and Others3 as far as the present Act is concerned, he would submit that the complaint about natural justice being violated may be farfetched and may not be sustainable. He emphasised the impact of Section 43 of the Act which provides for deemed registration of Wakfs. He drew our attention to judgment of this Court reported in Madanuri Sri Rama Chandra Murthy v. Syed Jalal4.

36Copy pinpoint36. He would, in fact, go to the extent of contending that natural justice if it is to be observed to the extent canvassed, may render it impermissible to obtain any fruitful results. He would further contend that Wakfs would have been registered as deemed Wakfs under Section

3 (1979) 2 SCC 468 4 (2017) 13 SCC 174 H

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A 28 of the 1950 Act, being Wakfs prior to the 1950 Act. In that case, there can be no complaint at all as they would qualify as Wakfs even under the Act. This is for the reason once a wakf, always a Wakf.

37Copy pinpoint37. He would also point out that Wakfs, which are registered under any law, are under Section 43 of the Act to be deemed registered under the Act. Even they cannot have any complaint. He drew our attention also to the judgment of this Court in Ramjas Foundation and Another v. Union of India and Others⁵ (paragraph 31) to contend that it is not the law that the Wakfs can be created only by Muslims and non- muslim can also create a Wakf. The only limitation is that it must be permitted by law or countenanced by the law applicable the person who is a non-muslim to create such Wakf. He further contends, however, that there is a distinction between Public Trust and Wakf and the charity commissioner was not justified in making over all the Muslim trusts and what is more, it was clearly impermissible for the Wakf Board to act on the same and include them as Wakfs under the Act. D

38Copy pinpoint38. Dr. A. M. Singhvi, learned senior counsel, would stoutly contest the case of the appellants by pointing out that the appellant’s case is in the teeth of an unbroken line of decisions of this Court bringing out the clear-cut distinction between a public Trust and a Wakf. He would submit that his client Sir Adamji Peerbhoy Santorium was created under a scheme settled by order dated 16.⁶.1931 passed by the High Court of Bombay and which was registered under the 1950 Act. The respondents were trustees of the aforesaid Public trust created by Muslims and they were not Wakfs. He would submit that a Muslim would perhaps naturally lean in favour of creating a Wakf. This does not preclude him or prevent him from creating a public charitable Trust. Also, the confusion, according to him, was generated on account of Category B registered public Trusts which are nothing but Public Trusts registered by Muslims being converted enmasse into Wakfs under the Act. This is entirely unjustified. Every Wakf is a trust but every Public Trust is not a Wakf. He would submit that a Wakf is perpetual and irrevocable whereas the Trust need not be perpetual and may be revoked under certain conditions. Wakf property is inalienable. In the case of a trust, alienation of the Trust property is not tabooed. The founder of a trust may himself be a beneficiary, whereas the founder of a Wakf cannot reserve any benefit for himself. The powers

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of a Mutawalli (manager of the Wakf property) are very limited as compared to the powers of a Trustee. He heavily drew upon the judgment of this Court in Nawab Zain Yar Jung (Since Deceased) and Othersv. Director of Endowments and Another (supra) which has been followed in Mohd. Khasimv. Mohd. Dastagir and Others⁶. This is besides drawing support from the judgment of the Madras High Court reported in The Kassimiah Charities Rajagiri v. The Madras State Wakf Board,7. He would support the judgment of the High Court and point out that the survey report did not have a separate list of Shia Wakfs in 21 districts out of 34 districts over which survey was conducted.

39Copy pinpoint39. Several Muslims Trusts governed by common law were also erroneously included in the survey report as Wakfs. The survey report failed to indicate the gross income in respect of 15436 Wakf out of 19987 Wakfs under survey.

40Copy pinpoint40. The High Court was entirely justified in its reasoning particularly as it involves even the report of the JPC. It is also contended that the Board was not properly constituted having regard to the requirements of distinct categories from which the members must be drawn from for the valid composition of the Board. The survey report, he insists is a sine qua non and must be a prelude to the valid incorporation of the Board which discharges solemn functions which includes the power of superintendence under Section 32, power of registration under Section E 36, maintenance of register under Section 37 and power of the Board under Section 40 to decide the matters mentioned therein.He raised a serious challenge to the composition of the Board and complains that it was illegal.

41Copy pinpoint41. The list notified on 13.11.2003 was afflicted with various discrepancies which are highlighted. He further dwells upon the developments following the Government’s decision to constitute Bifurcation Committee.After taking us through the report, meetings, resolutions, corrigendum and notifications, it was contended that after the list of 13.11.2003, modified list was issued on 05.⁵.2005 which is completely based upon the resolution dated 09.03.2005 which in turn has its premise in the meeting which took place on 11.08.2004. All of it together, he would submit, unerringly points out to the understanding of

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A the Government itself and what is more, the Board also that the survey was highly flawed. Public Trusts per se which are clearly different from Wakfs were made over by charity commissioner again on a misapprehension of the legal position and came to be assimilated by the State and the Board. This mistake was discerned and amends made. He would therefore, submit that on no ground can this Court particularly having regard to the long passage of time, tinker with the exclusion of Public Trusts from the original list dated 13.11.2003. He would submit that this is a matter of moment as the respondents- Public Charitable Trusts have been carrying out charitable work for several years and recognized as such. Any attempt at upsetting the view, would in fact, result in grave injustice. He urged us to draw support from the interim order passed by this Court as well. According to him, in the interim order which is reported in Maharashtra State Board of Wakfs v. Yusuf Bhai Chawala and Others (2012) 6 SCC 328, this Court has clearly appreciated the difference between a Public Trust and a Wakf and proceeded to provide only for protection for Wakfs per se as distinct from Public trusts and this distinction noticed in the interim order which is based in turn on the judgment of this Court in Nawab Zain Yar Jung (Since Deceased) and Others v. Director of Endowments and Another8 is commended for our acceptance.

42Copy pinpoint42. Dr. Singhvi, learned senior counsel, also submitted that Section E 13(2) incorporates a core democratic value and having regard to the distinction between the Sunnnisand Shias, a need to have separate Boards cannot but be emphasised.

43Copy pinpoint43. Shri Harish Salve, learned senior counsel appears in SLP (C)Nos. 31288-90 of 2011 and SLP (C)No. 1132 of 2017. He would F submit that the Muslim law recognises the concept of the English Trust. What is more, it also recognises the distinction between such a Trust and a Wakf. A Trust is known in Muslim legal terminology as amana and it is not treated as a Wakf. The Muslim Personal Law (Sharia) Application Act 1937 in section 2 refers to both Trusts and Wakfs G separately. The definition in section 2(r) of the Wakf Act, 1995, only explains the words Wakf and defines it but this does not mean that every trust is to be transformed into a Wakf. A Wakf must fulfil certain legal attributes. It cannot encompass all Trusts created by a Muslim. The 1950 Act is a secular law and there is no known principle that would

H 8 AIR 1963 SC 985

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compel a person to follow a customary law and deprive him of his rights under the secular law to create charity. The Constitution preserves customary rights but did not take away the benefits available to members of any community or faith under the secular law. He draws upon the judgment of this Court in Mohd. Khasimv. Mohd. Dastagir and Others(supra) relied on by the Dr.Abhishek Manu Singhvi, learned senior counsel, as well. This is besides, of course, drawing our attention to the judgment of this Court in Nawab Zain Yar Jung (Since Deceased) and Othersv. Director of Endowments and Another(supra).

44Copy pinpoint44. He would point out that the Mutawalli has no ownership right or say in Wakf property. He is not in that respect a Trustee. In this regard, he draws support from Tyabji on Muslim law. A Mutawalli is not entitled to deal with, that is dispose of or transfer off property, property of a Wakf being inalienable. This is recognised under Section 51 of the Act by the Amending Act 27 of 2013. A Wakf has three distinct features, viz., it is perpetual, inalienable and irrevocable. In the case of a Trust, property is transferable by the Trustee. He drew our attention to the provisions of section 43 of the Act and he contends that it only provides that it shall not be necessary for the Wakf which is already registered under any earlier law to register under the Act again. It does not mean that what was a Muslim Public Trust before the Act would become a Wakf. E

45Copy pinpoint45. Mr. Harish Salve, submits that Trusts created by Muslims would continue to be administered by the Charity Commissioner, though after the Act was enacted, the Muslim Wakfs may stand transferred to be administered under the Act. He would support the various findings given by the High Court. He would also submit that this is a case where the respondents have been roped in as Wakfs without any basis and only F on the premise of their being registered as Muslim Public Trusts under the 1950 Act which is impermissible.

46Copy pinpoint46. Shri Y. H. Muchhala learned senior counsel, however, would essentially echo the same complaints about the contentions of the appellants. He would submit that section 97 of the Act clothes the G Government with the power to issue directions which are binding on the Board. This submission is made in the context of the constitution of the Bifurcation Committee.He would, therefore, contend that the Bifurcation Committee which was constituted by the Government itself realising its follies has made amends for its errors and the Wakf Board which has H

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A participated in proceedings of the Committee must be treated as acting under the directions of the Government issued under Section 97 of the Act. The Board had no choice in law and the present appeals must be treated as premised on an infraction of the directions under Section 97 of the Act which is impermissible. He would also submit that the history of the institutions would show that they were all public Trusts per se and completely distinguishable in law from Wakfs. It is glossing over this fundamental distinction that the survey was carried out the, lists were published and illegalities sought to be perpetuated. The High Court has set right the illegalities for which its power is unquestionable under Constitutional provisions. The mere fact that there is an alternate forum provided by the Act again in no manner impinged on the power of the High Court under Article 226 of the Constitution. He would also submit that it would be wholly unfair and unjust for the appellants to persuade this Court to retrace its steps at any rate from the list dated 05.⁵.2005. He would harp upon the fact that though power may be available under Section 40 of the Act, it is noteworthy that the section lay unutilised for D a long period of time. Authorities have proceeded on the basis that the judgment of the High Court has reached justice to the parties and this Court may not interfere in the matter at any rate. He also has an alternate request that should this Court be persuaded to interfere in any manner, the rights of his parties may be protected with reference to the powers E available to this Court under Article 142 of the Constitution.

47Copy pinpoint47. Mr. Y. H. Muchhala, learned senior counsel, submits that the Survey Commissioner acted illegally. The notification of the Board was illegal and lists dated 13.11.2003 and dated 30.12.2004 are not to be followed being illegal. Charity is permissible and possible for a Muslim F without the creation of a Wakf. His case is in sync with the reasoning of the High Court that there would be a repeal of the 1950 Act only upon the creation of a valid machinery to work the Act viz., there is a valid incorporation of the Board and its proper constitution.

48Copy pinpoint48. He would submit that there must be a proper finding about the G institution being a Wakf, even at the hands of the surveyor. That duty has been breached. In the facts of the case, he would support the judgment of the High Court as being unexceptional. The Board was not functional, as on the date of the Notification dated 13.11.2003, the Board consisted of only Government nominees. The requirement that elected members must exceed nominated members stood observed only in its breach. H

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Even today, there is no valid and effective machinery under the Act A which has been created by the Government. The Government has been appointing members without following the mandate of the law. The Act does not aim at codifying of the Muslim personnel law relating to Wakf at all. The Act merely provides for the creation of an administration or the machinery for proper administration of Wakfs.He highlights the salient features which distinguish a Wakf from a Trust and he would contend that no merit exists in the appeals.

49Copy pinpoint49. Shri Naidu, learned senior counsel, appearing for one of the respondents would also support the contentions and essentially adopts the contentions of the respondents and he would trace the history of the institution of Wakf and he would also contend that doing of charity is emphasized by the prophet and a public trust can also be set up without it being cataloged as a Wakf.

50Copy pinpoint50. Shri VinaryNavare, learned senior counsel would submit that the writ petitioners in his case were worshippers who approached the D High Court. When queried whether they were Sunni or Shia, he fairly points out that the writ petitioners were Sunnis by faith. Upon being further queried how the Sunni worshippers can have a grievance over public Trusts which are essentially created by Shias, and when the entire grievance in the case and the argument was essentially founded on the injury caused to the Shia Wakfs, he would submit that the interest of the parties even as beneficiaries needs to be protected.

51Copy pinpoint51. Shri Vinay Navare would submit also that his line of argument is slightly different. He would submit that even assuming that there is no need to constitute separate boards for Sunnis and Shias, there is a statutory duty that the Government must perform at the time when it takes a decision to incorporate a Board to find out about the number of Sunni and Shia Wakfs. In this regard, he draws upon Section 14(6) of the Act and he would contend that thereunder, the members belonging to the Sunni and Shia sects are to be determined with reference to their numbers and value. Therefore, there must be some material if not the data revealed in the survey to give effect to the legislative intent contained in Section 14(6). He was at pains to take us through three affidavits to point out that there was admittedly no material to justify the Government to arrive at a conclusion that there is no need for a separate Shia Board to deal with the Wakfs of the Shias. H

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52Copy pinpoint52. In reply, Shri Gopal Sankarnarayanan, learned senior counsel, would, in particular, point out that this is a case where during the survey under Section 4, affected persons were served with a questionnaire and in this regard, he relies upon the very basis of the High Court which is the report of the JPC.

53Copy pinpoint53. In other words, the JPC refers to the fact that questionnaires were dispatched. Therefore, he poses the question as to how would there be infraction of principles of natural justice occasioned.

54Copy pinpoint54. He would further emphasise that Section 4 only provides for a preliminary survey and no rights are created or affected. He would further point out that section 93 of the Wakf Act proscribes the making of a compromise in any suit or other proceeding by the Board. He would point out that there have been cases where illegal compromise has happened. This line of argument is taken in the context of his attack against the constitution of the Bifurcation Committee and its subsequent proceedings. In other words, he rubbishes the attempt on the part of the respondents to draw support from the abridging of the List dated 13.11.2003 and 30.12.2004 by the making of the truncated List dated 05.⁵.2005.

55Copy pinpoint55. Shri Gopal Sankaranarayan, learned counsel would emphasise that after the amendment to the word “beneficiary”, the world has changed for Wakfs and trusts. He would contend that for a valid Wakf to come into existence,it is not the law that there must be dedication to the Almighty as such. The requirements of a Wakf would be sufficiently satisfied without any such firm dedication to the Almighty as such. What is required is the only employment of the property satisfying the different criteria which obviously means property is actually used in perpetuitywithout there being any scope for revoking it, and further the property is inalienable subject to the law.

56Copy pinpoint56. Before we deal with the various contentions, it is for us to have brief overview of the legislation affecting the institution of ‘wakf’ G in the country. Wakf is an institution which is close to the heart of the Muslim community. There are various versions about its origin. Suffice it is to notice one such.In his work, Mahommedan Law by Syed Ameer Ali(4th Edition) at page 192, it is stated: “Omar had acquired a piece of land in (the canton of) Khaibar, and proceeded to the prophet and sought his counsel, to make the H

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most pious use of it, (whereupon) the prophet declared, ‘tie up the property (asl or corpus) and devote the usufruct to human beings, and it is not to be sold or made the subject of gift or inheritance; devote its produce to your children, your kindred, and the poor in the way of God.’”

57Copy pinpoint57. We may notice certain further statements contained in the book “Mahommedan Law” by Syed Ameer Ali,at page 192: “A Waqf is thus interwoven with the entire religious life and social economy of the Mussulmans. “Trusts” in the Mussalman system may, for the sake of convenience be divided under three heads, that is, public, quasi-public and private. This will probably indicate the division adoptedby the Arabian jurists, who group wakfs or trusts under the following three heads, viz: - (a) Trusts in favour of the affluent and indigent alike (b) Trusts in favour of the affluent and then for the indigent (c) Trusts in favour of the indigent alone. Trust for public works of utility which are dedicated to the public at large though classed under the first head, have a distinctive name. They are called wakfs for Masalih-ul-aamma and differ in one feature from other Wakfs.”

58Copy pinpoint58. The wakif must be free. He must be an adult and sane. The property must be certain. The declaration need not be in a particular form. The dedication must however exist. The dedication must not be transient but it must be permanent. The dedication must be for purposes which are regarded as pious, charitable or religious as per Muslim Law.

59Copy pinpoint59. A Wakf-alal-aulad is also a Wakf. In fact, we find the following statement in the work of Syed Ameer Ali (supra) at pages 213, 214 and 215: F “The word sadakah occurs so frequently in works dealing with Mahommedan Law, and has such an important bearing on the constitution of a wakf that an exact apprehension of its meaning is necessary to a property understanding of the rules relating to dedications in the Islamic system. G Richardson in his dictionary translates it as meaning an “alms- gift” and also as “property dedicated to pious uses.” Hamilton, the translator of the Persian version of the Hedayah, evidently thought that the word meant ‘alms’, to the poor; and this error has influenced all subsequent conceptions. H

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A As a matter of fact, the word sadakah has a much larger meaning in the Mussulman system. It means, property speaking, a pious act:-”a smile in a neighbour’s face is sadakah; to help the weary is sadakah.” Probably, the only expression by which it can be construed is the wordcharity in its broadest sense. B In the Mussulman Law, however, it means an offering or gift made with the object of obtaining the approval of the Almighty, or a reward in the next world…” Xxx xxx xxx “the Prophet of God has declared that a pious offering to one’s C family to provide against their getting into want is more pious than giving alms to beggars.” “Said, the Prophet of god, when a Moslem bestows on his family and kindred, with the object of earning the approval of the Almighty, it is sadakah, although he has not given to the poor but to his family and children” D “The most excellent of sadakah is that which a man bestows upon his family.” “The greatest sadakah in point of rewards is that which you give to your family.” E “To give money to free a slave, to give alms to the poor, to give to your children and kindred, are all sadakah.”

60Copy pinpoint60. The moment dedication is made, the wakif is believed to earn his reward. We may in this context notice the following statement from the work of Syed Ameer Ali at page 211: F “It must be remembered also that a wakf is not a gratuitous transfer of property. It is a transfer to the legal ownership of the Almighty for substantial consideration, viz., His reward, which is obtained the moment the wakf is created. As will be seen afterwards, a wakf takes effect like the emancipation of a slave. There is no power of revocation nor can there be any reserve; and neither G the wakif nor any person deriving title from him can say afterwards that he had no intention to make a binding and irrevocable wakf.” A case of Wakf—alal-aulad however reached the Privy Council in Abul Fata Mahomed v. Russomoy9. The Privy Council took the view 9 H (1894) 22 Cal. 619 : 22 I.A.. 76

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that it could not be treated as a legitimate wakf if the property was to be enjoyed by the descendants without end and the dedication to charity was illusory or small.This led to considerable resentment among the Muslims. The MussalmanWakf Validating Act, 1913 came to be passed. This legitimised the institution of Wakf-alal-aulad. Another Act came to be passed in the year 1930 which gave it retrospective effect. In the meantime, theMussalman Wakf Act, 1923 came to be passed. The said Act came to be applied in the Bombay Presidency by the Mussalman Wakf (Bombay Amendment)Act, 1935 (XVIII of 1935). There were certain variations in the 1935 Act in the State of Bombay. The Act was again amended in 1945.

61Copy pinpoint61. Bombay, it must be noticed was initially a Presidency being under the direct governance of the British Crown since the year 1859. In the year 1937, after the passing of the Government of India Act, 1935, the Bombay Presidency became a province in British India. With the advent of Independence and under the Constitution, Bombay became a Part A State. With the passing of the State Reorganisation Act, 1956, D Bombay along with certain other parts which included the Marathwada region came to be constituted as the State of Maharashtra in the year

1960. This reference is being made to notice the circumstances in the year 1950, when the Bombay Public Trust Act, 1950 came to be passed. It was applicable to the then State of Bombay which incidentally also consisted of parts of which formed the present State of Gujarat. In fact, E it included even the territory which is today Sindh. While Marathwada region was not a part of Bombay State, Marathwada consisting essentially of six districts which were part of the Aurangabad Revenue Division, Marathwada was governed by the Wakf Act, 1954 which we must notice is an ‘improvement’ over the MussalmanWakf Act, 1923. Under the F Wakf Act of 1923, the wakfs were not controlled by Wakf Boards as such. The wakfs had to file returns to the courts. It is interesting to note however that in the Wakf Act 1923 as applicable in the State of Bombay, the law provided for a publication of list of wakfs. However, when 1950 Act came to be enacted in Bombay State and since the Wakf Act, 1954 was not applicable to the State, the Bombay Public Trust Act, G 1950governed the wakfs which were treated as public trusts. The Bombay Public Trust Act provided for the following definition of the word “Public Trust” under Section 2(13). It reads as under: 2(13) “Public trust” means an express or constructive trust for either a public religious or charitable purpose or both and includes H

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A a temple, a math, a wakf, [a dharmada] or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860 (XXI of 1860);

62Copy pinpoint62. Section 2 (19) interestingly provides for the definition of the word ‘wakf’. This is so that wakf as defined in the definition of public trust is properly appreciated. ‘Wakf’ under Section 2 (19) of the 1950 Act provided for a wakf which was defined as the permanent dedication by a person professing Islam for the purpose recognised by Muslim Law as pious, religious or charitable and it includes a wakf by user and grants including Mashrut-ul-khidmat for any purpose recognised by Muslim law as pious, religious or charitable. The wakf-alal-aulad to the extent to which property is dedicated for any purpose so recognised was also a wakf which would qualify as a public trust. However, it did not include a wakf so described under section 3 of the Mussulman Wakf Validating Act 1913 under which any benefit is for the time being claimable for himself by wakif or for any member of the family or descendant. It is relevant and apposite to unravel the true purport of this definition. We would understand that what is covered as a public trust under the Bombay Public Trust Act is only a Muslim Public Trust. In this regard we would advert to the following declaration of the law contained in the judgment of this Court in AIR 1981 SC 798 at 799. “6.…Similarly, even the Mahomedan law recognises the existence of a private trust which is also of a charitable nature and which is generally called waqf-allal-aulad, where the ultimate benefit is reserved to God but the property vests in the beneficiaries and the income from the property is used for the maintenance and support of the family of the founder and his descendants. In case the family becomes extinct then the waqf becomes a public waqf, the property vesting in God. A public waqf under the Mahomedan law is called waqf-fi-sabi-lil-lah.”

63Copy pinpoint63. We may notice also that the definition of wakf in the Bombay Public Trust Act does not appear to refer to a wakf as one embracing a public utility as the subject matter of a wakf. However, charitable purpose has however been defined in Section 9 of the 1950 Act. Therein, advancement of any other object of public utility is included. It reads as follows: H

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“9. Charitable Purposes. - For the purposes of this Act, a charitable A purpose includes- (1) relief of poverty or distress, (2) education, (3) medical relief and B (4) the advancement of any other object of general public utility, but does not include a purpose which relates- (a) exclusively to sports, or (b) exclusively to religious teaching or worship.” C

64Copy pinpoint64. Section 28, being relevant, it is noticed. Section 28 reads as under: “28. Public trust previously registered under enactments specified in schedule. — (1) All public trusts registered under the provisions of any of the enactmentsspecified in Schedule-A and Schedule-AA shall be deemed to have beenregistered under this Act from the date on which this Act may be applied tothem. The Deputy or Assistant Charity Commissioner of the region or sub-regionwithin the limits of which a public trust had been registered under any of the saidenactments shall issue notice to the trustee of such trust for the purpose ofrecording entries relating to such trust in the register kept under section 17 and shall after hearing the trustee and making such inquiry as may be prescribedrecord findings with the reason therefore. Such findings shall be in accordancewith the entries in the registers already made under the said enactments subject F

to such changes as may be necessary or expedient. (2) Any person aggrieved by way of the findings recorded under sub-section(1) may appeal to the Charity Commissioner. (3) The provisions of this Chapter shall, so far as may be, apply to G themaking of entries in the register kept under section 17 and the entries so madeshall be final and conclusive.”

65Copy pinpoint65. The next relevant provision to notice is Section 36. It reads as under: H

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A “36. [(1) [Notwithstanding anything contained in the instrument of trust]. - (a) no sale, mortgage, exchange or gift of any immoveable property, and (b) no lease for a period exceeding ten years in case of agricultural land or for a period exceeding three years in the case of non- agricultural land or a building, belonging to public trust, shall be valid without the previous sanction of the Charity Commissioner. (2) The decision of the Charity Commissioner under sub-section (1) shall be communicated to the trustees and shall be published in such manner as may be prescribed. (3) Any person aggrieved by such decision may appeal to the Gujarat Revenue Tribunal within thirty days from the date of its publication.

D (4) Such decision shall, subject to the provisions of sub-section (3) be final.”

66Copy pinpoint66. What is relevant from Section 36 is that in the case of a public trust which includes a wakf under the Bombay Public Trust Act, the property of the wakf can be sold, the only requirement thereunder being the previous sanction of Charity Commissioner. We may at this juncture observe that it does not harmonise with one of the indispensable requirements of a wakf under the Act that the property of the wakf cannot be alienated. Section 37 deals with the power of inspection and supervision.

67Copy pinpoint67. Section 38 deals with explanation being given by the trustees to the Charity Commissioner. Section 41A to 41E deals with various additional powers which have been conferred which include the power of suspension, remission, dismissal of the trustees by the Charity Commissioner. Section 79 must be noticed in full. It reads as under: “79. Decision of property as public trust property:- (1) Any question, whether or not a trust exists and such trust is a public trust or particular property is the property of such trust, shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by this Act. (2) The decision of the Deputy or Assistant Charity Commissioner or the Charity H Commissioner in appeal, as the case may be, shall, unless set

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aside by the decision of the Court on application or of the High A Court in appeal be final and conclusive.”

68Copy pinpoint68. Section 85 provides for repeal. It reads as follows: “85. Repeals:- (1) The Religious Endowments Act, 1862, is hereby repealed. B (2) On the date of the application of the provisions of this Act to any public trustor class of trusts under sub-section (4) of section 1 hereinafter in this sectionreferred to an the said date the provisions of the Act specified in Schedule Awhich apply to such trust or class of trusts shall cease to apply to such trust orclass of C trusts. (3) Save as otherwise provided in this section such repeal or cessation shall notin any way affect – (a) any right, title, interest, obligation or liability already acquired, accruedor incurred before the said date. D (b) any legal proceedings or remedy in respect of such right, title, interest,obligation or liability, or (c) anything duly done or suffered before the said date. (4) Notwithstanding anything contained in sub-section (3) all proceedingspending before any authority under the Mussalman Wakf Act, 1923 asamended by the Mussalman Wakf Bombay Amendment Act, 1935, the Bombay Public Trusts Registration Act, 1935, or the Parsi Public Trusts Registration Act, 1936, immediately before the said date shall be transferred to the Charity Commissioner and any such proceedings shall be continued and disposed of bythe Charity Commissioner or the Deputy or Assistant Charity Commissioner asthe Charity Commissioner may direct. In disposing of such proceedings the Charity Commissioner, the Deputy Charity Commissioner or the AssistantCharity Commissioner, as the case may be, shall have and exercise the samepowers which were vested in and exercised by the Court under the MussalmanWakf Act, 1923 as amended by the Mussalman Wakf (Bombay Amendment)Act, 1935, and by the Registrars under the Bombay Public Trusts RegistrationAct, 1935, and the Parsi Public Trusts Registration Act, 1936, and shall passsuch orders as may be just or proper. H

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A (5) All records maintained by the authority or Court under any of the Actsreferred to in sub-section (4) shall be transferred to the Charity Commissioner orto the Deputy or Assistant Charity Commissioner as the Charity Commissionermay direct.”

69Copy pinpoint69. Section 86 provides for further repeals and savings. Section B 85 refers to schedule A. We may notice that theMussalman Wakf Act of 1923 is one of the laws which is referred to in the said Schedule.

70Copy pinpoint70. Section 87 declares that theAct will not apply to the Marathwada region. This is for the reason that it came under the ambit of the Wakf Act, 1954.

71Copy pinpoint71. As we have noticed,the Wakf Act 1954 was perceived as an evolution of the earlier Act. It was specifically intended to introduce uniformity in matters relating to wakfs all over the country. But the factremains that in view of the conditional legislation contained as it did in Section 1 of the Act, providing for power in applying the Act to different D states on different dates and the power to apply itself being with the Government, the Act was not made applicable to the territory which was comprised in the erstwhile state of Bombay. The definition of ‘Wakf’ in the 1954 Act must be noticed. It reads as follows: “Wakf” means the permanent dedication by a person professing E Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes— (i) a wakf by user; 1[(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 F Muslim law as pious, religious or charitable; and “wakif” means any person making such dedication;”

72Copy pinpoint72. Section 3(a) defined the word ‘beneficiary’. It reads as follows: “3(a) “beneficiary” means a person or object for whose benefit a wakf is created and includes religious, pious and charitable objects G and any other objects of public utility sanctioned by the Muslim law;””

73Copy pinpoint73. In fact, there was an amendment brought out in 1964. The words “established for the benefit of Muslim community” was substituted with the words “sanctioned by the Muslim Law”. In the notes on clauses H

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in Bill No.32 of 1964 which culminated in the Amending Act 34 of 1964, A we notice: “Clause 2- the definition of ‘beneficiary’ in Section 3(a) of the Act involves a deviation from the real concept of beneficiary under the Muslim Law which makes no distinction between Muslims and Non-Muslims in the matter of beneficiaries or disbursement of charity. It is to that extent inconsistent with the definition of ‘wakf’ contained in the Act. Sub-clause (i) seeks to amend the definition of ‘beneficiary’ to remove this inconsistency.”

74Copy pinpoint74. Section 4 provided for survey by the Survey Commissioner of the wakf‘property’ as pointed by Shri Gopal Sankaranarayan. We need not refer to the said provision for the reason thatthe parimateria provision of Section 4 is replicated as the same Section in the Act. The Act contained provisions for power for control of the Board, registration of Wakfs and superintendence by the ‘civil court’. It provided in Section 6 that on the publication of the list of wakf properties,any‘person interested in the wakf’could seek relief from the Court which was contemplated in Section 6 of the Act. The Act was amended on three occasions. There were complaints about the results which the Act of 1954 was able to produce. This finally paved the way for the passing of the Act with which we are concerned. It is passed in the year 1995. It came into force on 1.¹.1996. This time around the State of Bombay which since 1960 had become the present State of Maharashtra which included the ‘Marathwada region’ also came under the regime of the Act.

75Copy pinpoint75. Section 2 of the Act reads as follows: “2. Application of the Act. — Save as otherwise expressly provided under this Act, this Act shall applyto all auqafwhether created before or after the commencement of this Act: Provided that nothing in this Act shall apply to Durgah Khawaja Saheb, Ajmer to which the DurgahKhawaja Saheb Act, 1955 (36 of 1955) applies.” G (Emphasis supplied)

76Copy pinpoint76. It is at once to be noticed thatthe Act shallapply to wakfs which were created ‘before the Act’ was passed and it is also to apply to wakfs which were brought into existence after the Act. H

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77Copy pinpoint77. Section 3(a) in the Act which defines the word ‘beneficiary’ continues with the same definition as was present in the Wakf Act 1954 after its amendment in the year 1964. We will comment on its significance at the appropriate stage in the judgment. Section 3 (c) defines the word ‘Board’ as follows: B “3(c) “Board” means a Board of Wakfs established under 4*[subsection (1), or as the case may be, under sub- section (1A) of section 9.” Next, we would notice the definition of the word ‘wakf’ in Section 3 (r) before its amendment by Act 27 of 2013. It read as under: C “3(r). “Wakf” means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes – (i) a wakf by user but such wakf shall not cease to be a wakf D by reason only of the user having ceased irrespective of the period of such cesser; (ii) “grants”, including mashrut – ul-khidmat for any purpose recognised by the Muslim Law as pious, religious or charitable; and E (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;”

78Copy pinpoint78. It must also be noticed at this juncture that with effect from the date of the Act 27 of 2013 it has been substituted and as it stands today.Section 3(r) reads as follows: “3(r) “waqf” means the permanent dedication by any person, of any movable or immovableproperty for any purpose recognised by the Muslim law as pious, religious or charitable andincludes— (i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the userhaving ceased irrespective of the period of such cesser; (ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenuerecord;

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(iii) “grants”, including mashrat-ul-khidmat for any purpose recognised by the Muslim law aspious, religious or charitable; and (iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purposerecognised by Muslim law as pious, religious or charitable, provided when the line of successionfails, the income of the waqf shall be spent for education, development, welfare and such otherpurposes as recognised by Muslim law,and “waqif” means any person making such dedication;”

79Copy pinpoint79. Section 4 of Wakf Act, 1995, which is at the centre stage of controversy must be adverted to: “4. Preliminary survey of auqaf.— C

(1) The State Government may, by notification in the Official Gazette, appoint for the State a Survey Commissioner of Auqaf and as many Additional or Assistant Survey Commissioners of Auqaf as may be necessary for the purpose of making a survey of 3 auqaf in the State. D 1A) Every State Government shall maintain a list of auqaf referred to in sub-section (1) and the survey of auqaf shall be completed within a period of one year from the date of commencement of the Wakf (Amendment) Act, 2013 (27 of 2013), in case such survey was not done before the commencement of the Wakf E (Amendment) Act, 2013: Provided that where no Survey Commissioner of Waqf has been appointed, a Survey Commissioner for auqaf shall be appointed within three months from the date of such commencement. F (2) All Additional and Assistant Survey Commissioner of Auqaf shall perform their functions under this Act under the general supervision and control of the Survey Commissioner of Auqaf. (3) The Survey Commissioner shall, after making such inquiry as he may consider necessary, submit his report, in respect of auqaf existing at the date of the commencement of this Act in the State G or any part thereof, to the State Government containing the following particulars, namely: — (a) the number of auqaf in the State showing the Shia auqaf and Sunni auqaf separately; H

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A (b) the nature and objects of each waqf; (c) the gross income of the property comprised in each waqf; (d) the amount of land revenue, cesses, rates and taxes payable in respect of each waqf;

B (e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each waqf; and (f) such other particulars relating to each waqf as may be prescribed. (4) The Survey Commissioner shall, while making any inquiry, C have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely: — (a) summoning and examining any witness; (b) requiring the discovery and production of any document; D (c) requisitioning any public record from any court or office; (d) issuing commissions for the examination of any witness or accounts; (e) making any local inspection or local investigation; E (f) such other matters as may be prescribed. (5) If, during any such inquiry, any dispute arises as to whether a particular waqf is a Shia waqf or Sunni waqf and there are clear indications in the deed of waqf as to its nature, the dispute shall be decided on the basis of such deed. F (6) The State Government may, by notification in the Official Gazette, direct the Survey Commissioner to make a second or subsequent survey of waqf properties in the State and the provisions of sub-sections (2), (3), (4) and (5) shall apply to such survey as they apply to a survey directed under sub- section (1): G Provided that no such second or subsequent survey shall be made until the expiry of a period of ten years from the date on which the report in relation to the immediately previous survey was submitted under sub-section (3): Provided further that the waqf properties already notified shall H not be reviewed again in subsequent survey except where the

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status of such property has been changed in accordance with the A provisions of any law.”

80Copy pinpoint80. Section 5 is equally an integral part of the scheme. It reads as under: “5. Publication of list of auqaf.— B (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. (2) The Board shall examine the report forwarded to it under sub- section (1) and fordward it back to the Government within a period of six months for publication in the Official Gazette] a list of Sunni C auqaf or Shia auqaf in the State, whether in existence at the commencement of this Act or coming into existence thereafter, to which the report relates, and containing such other particulars as may be prescribed. (3) The revenue authorities shall— D (i) include the list of auqaf referred to in sub-section (2), while updating the land records; and (ii) take into consideration the list of auqaf referred to in sub- section (2), while deciding mutation in the land records. (4) The State Government shall maintain a record of the lists published under sub-section (2) from time to time.”

81Copy pinpoint81. Sections 6 and 7 reads as follows: “6. Disputes regarding auqaf.— (1) If any question arises whether a particular property specified as waqf property in the list of auqaf is waqf property or not or whether a waqf specified in such list is a Shia waqf or Sunni waqf, the Board or the mutawalli of the waqf or 7 [any person aggrieved] may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of auqaf: Provided further that no suit shall be instituted before the Tribunal in respect of such properties notified in a second or subsequent H

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A survey pursuant to the provisions contained in sub-section (6) of section 4. (2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any waqf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit. (3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder. (4) The list of auqaf shall, unless it is modified in pursuance of a decision of the Tribunal under sub-section (1), be final and conclusive. (5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court in that State in relation to any question referred to in sub- section (1).” “7. Power of Tribunal to determine disputes regarding auqaf.— E (1) If, after the commencement of this Act, any question or dispute arises, whether a particular property specified as waqf property in a list of auqaf is waqf property or not, or whether a waqf specified in such list is a Shia waqf or a Sunni waqf, the Board or the mutawalli of the waqf, or any person aggrieved by the F publication of the list of auqaf under section 5] therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final: Provided that— G (a) in the case of the list of auqafrelating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of auqaf; and (b) in the case of the list of auqaf relating to any part of the H State and published at any time within a period of one year

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immediately preceding the commencement of this Act, such A an application may be entertained by Tribunal within the period of one year from such commencement: Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question. B (2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this section in respect of any 3 [waqf] shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding. C

(3) The Chief Executive Officer shall not be made a party to any application under sub-section (1). (4) The list of auqaf and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the D list as so modified, shall be final. (5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of section 6, before the commencement of the Act or which is the subject- E matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be. (6) The Tribunal shall have the powers of assessment of damages by unauthorised occupation of waqf property and to penalise such unauthorised occupants for their illegal occupation of the waqf property and to recover the damages as arrears of land revenue through the Collector: Provided that whosoever, being a public servant, fails in his lawful duty to prevent or remove an encroachment, shall on conviction be punishable with fine which may extend to fifteen thousand rupees for each such offence.”

82Copy pinpoint82. Section 8 provides that the Board has to bear the cost of the survey. H

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83Copy pinpoint83. Section 9 contemplates establishment and constitution of Central Wakf Council. Section 9 (4) alone need detain us and it reads as follows: “9. Establishment and constitution of Central WakfCouncil.— B (4) The State Government or, as the case may be, the Board, shall furnish information to the Council on the performance of Waqf Boards in the State, particularly on their financial performance, survey, maintenance of waqf deeds, revenue records, encroachment of waqf properties, annual reports and audit reports in the manner and time as may be specified by the Council and it may suo motu call for information on specific issues from the Board, if it is satisfied that there was prima facie evidence of irregularity or violation of the provisions of this Act and if the Council is satisfied that such irregularity or violation of the Act is established, it may issue such directive, as considered appropriate, which shall be complied with by the concerned Board under intimation to the concerned State Government.”

84Copy pinpoint84. Next, we come to Chapter IV under which the first provision is Section 13. It reads as follows:

E “13. Incorporation. — (1) With effect from such date as the State Government may, by notification the Official Gazette, appoint in this behalf, there shall be established a Board of Auqaf under such name as may be specified in the notification: F Provided that in case where a Board of Waqf has not been established, as required under this sub-section, a Board of Waqf shall, without prejudice to the provisions of this Act or any other law for the time being in force, be established within six months from the date of commencement of the Wakf (Amendment) Act, 2013 (27 of 2013). G (2) Notwithstanding anything contained in sub-section (1), if the Shia auqaf in any State constitute in number more than fifteen per cent. of all the auqaf in the State or if the income of the properties of the Shia auqaf in the State constitutes more than fifteen per cent. of the total income of properties of all the auqaf in the State, H