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

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Commissioner is required by sub-section (3) to submit a report to A the State Government in regard to the several matters referred to in clauses (a) to (f) thereof. There may be a dispute as between the Board, the mutawalli or a person interested in the wakf, as regards (a) the existence of a wakf, i.e. whether a particular property is wakf property, (b) whether it is a Shia wakf or a Sunni B wakf, (c) the extent of the property attached to the wakf, (d) the nature and object of the wakf, etc. While making such an enquiry, the Commissioner is invested by sub-section (4) with the powers vested in a civil court under the Code of Civil Procedure, 1908, in respect of the summoning and examining of any witness, requiring the discovery and production of any document, requisitioning any public record from any court or office, issuing commissions for the examination of any witness or accounts, making any local inspection or local investigation, etc. In view of these comprehensive provisions, it is not disputed before us that the enquiry that the Commissioner makes for the purpose of submission of his report under sub-section (3), while making a survey of existing wakfs in the State under sub-section (1), is not purely of an administrative nature but partakes of a quasi-judicial character, in respect of the persons falling within the scope of sub-section (1) of Section 6.

26. It would be illogical to hold that while making a survey of wakf properties existing in the State a Commissioner of Wakfs appointed by the State Government under sub-section (1) of Section 4, should have no power to enquire whether a particular property is wakf property or not. If we may refer to sub-section (1) of Section 4, so far as material, it reads: F “The State Government may, by notification in the Official Gazette, appoint for the State a Commissioner of Wakfs ... for the purpose of making a survey of wakf properties existing in the State at the date of the commencement of this Act.” It will be clear that the words “for the purpose of making a survey G of wakf properties” is a key to the construction of the section. The ordinary meaning of the word “survey”, as given in the Random House Dictionary of English Language, is ‘to take a general or comprehensive view of or appraise, a situation’. If the Commissioner of Wakfs has the power to make a survey, it is but H

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A implicit that in the exercise of such power he should enquire whether a wakf exists. The making of such an enquiry is a necessary concomitant of the power to survey. The High Court was clearly in error in observing: “Except sub-section (5) there is nothing in Section 4 or in the B Rules made by the State to show that the Commissioner is empowered to adjudicate on a question, if one arises, whether a particular property is a wakf property or not.”

27. We are of the opinion that the power of the Commissioner to survey wakf properties under sub-section (1) or to enquire and investigate into the several matters set out in clauses (a) to (f) of sub-section (3) cannot be curtailed by taking recourse to sub- section (5). The High Court was wholly wrong in understanding the true implication of sub-section (5) of Section 4. It only lays down that if, during any such enquiry, any dispute arises as to whether a particular wakf is a Shia wakf or a Sunni wakf, and there are clear indications in the deed of wakf as to its nature, the dispute shall be decided on the basis of such deed. It, therefore, makes the wakf deed conclusive as to the nature of the wakf i.e., whether it is a Shia or a Sunni wakf. In our view, sub-section (5) of Section 4 cannot be projected into sub-section (1) for determining the question whether a certain property is a wakf property or not. Nor does it enter into an enquiry as to several of the matters adverted into some of the clauses of sub-section (3).

145Copy pinpoint145. Therefore, we must proceed on the basis that the making of survey is not a mere administrative act but it is to be informed by a F quasi-judicial inquiry. It is also the law that the surveyor has the power to find whether a particular institution is a Wakf. The commissioner has also indeed to determine the aspects which have been mentioned in Section 4 specifically which we need not dilate upon.

146Copy pinpoint146. We may at this juncture venture to notice the findings which G have been rendered by the High Court. “18. The next question to be considered is whether the list of wakfs prepared and published by the Wakf Board is valid or invalid. The list is prepared and published under sub-section 2 of Section 5 of the Act. It reads as under: H

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(2) The Board shall examine the report forwarded to it under A sub-section (1) and publish in the Official Gazette a list of Sunni Wakfs or Shia Wakfs 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. B Thus, the list to be prepared by the Board is based on the report of the survey which is conducted under Section 4 of the Act. So far as the survey conducted under the Act is concerned, the Joint Parliamentary Committee found that the survey was not conducted properly. Following paragraphs 4.16, 4.17, 4.18 and 4.19 in the Ninth Report of the Joint Parliamentary Committee in our opinion C are relevant. They read as under: 4.16 The earlier JPC on Wakf, in its Eighth Report presented on 29.07.2003 noted that the survey was almost completed, except in Bombay suburban District. However, it was alleged by the members of the public during the visit of the Committee D that the survey work had not been properly carried out and a large number of Wakf properties had been left out. Itwas also informed that even those properties which physically existed and were Wakf by user, were not included in the survey on flimsy grounds. E It was revealed that in the revenue records, the Wakf properties were mentioned in the name of Mutawallis or in the name of lessees and were not shown as Wakf properties which made the sale of the properties easy. It was also informed that no physical survey was done and only proformas were sent to the F Mutawallis for furnishing the details of the Wakf properties. The State Government had also admitted that there were errors in identifying the Wakf properties. Later on, the State Government informed that the survey in Bombay sub-urban areas had also been completed and they supplied a list of the Wakf properties surveyed to the then Committee. The lists so G received prima facie showed the properties of Marathwada region; the Wakf properties in other regions were negligible which might not be true. Keeping the situation in view, the then Committee recommended that the provisions of the Wakf Act, 1995 should be followed scrupulously for the survey of H

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A Wakf properties and the procedure adopted be made transparent and open to the public, with a remedy to correct errors in the survey. The Survey Commissioner should undertake a physical survey of all the Wakf properties after giving wide publicity through the media. The Committee further recommended that after the survey was completed, the lists of Wakf properties should be published properly in the Official Gazette as required under the Act. The Committee further recommended that the entries of Wakfs should be properly made in the revenue records. 4.17 The Committee, now in view of the flaws in the survey undertaken earlier and the earlier Committee’s recommendation to correct errors in the survey, sought to know the present status of survey during its visit undertaken in June, 2007. The Chief Executive Officer informed the Committee that the Government had initiated survey vide the Government D Notification dated 01.12.1997 through the Settlement Commissioner. Despite complaints that the survey had not been done properly and also the last Joint Parliamentary Committee had asked the Government to undertake re-survey, it was yet to be undertaken. E 4.18 Further explaining the position, the State Wakf Board, in its note giving the latest position of the survey submitted to the Committee in July, 2008, as under: “The survey of Wakfs and its properties was taken up by the Government of Maharashtra vide Revenue and Forest F Department Notification No. WKF-1097/L- 3/CR95 dated 01.12.1997 and survey was completed and submitted to the Government. Thus, the survey was completed before receipt of proceedings of the Joint Parliamentary Committee’s VII Ith Report, which had suggested the survey to be carried out again in a transparent way. It has yet not been initiated. G . . . The decision to conduct fresh survey in a transparent manner lies with the State Government.” 4.19 The Committee is surprised to see that it got the same reply even after one year. On being asked, the Principal Secretary, Minority Development, Government of Maharashtra, H

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during her oral evidence tendered on 24.07.2008, assured the A Committee that the Survey Commissioner would be appointed within a month to take up the survey work. (emphasis supplied)

19. Thus, the Joint Parliamentary Committee found the survey to be defective. The decision of the Joint Parliamentary Committee has been accepted by the State Government when it issued the B Notification dated 20th October, 2010. The reason that has been given by the State Government for ordering resurvey in the Notification dated 20th October, 201O is “ And whereas the Joint Parliamentary Committee received complaints that the survey was not conducted properly and therefore the Committee issued C direction dated 20th October, 201O to the State Government to conduct the resurvey of the wakfs in the State .............. “ .

20. Thus, even according to the State Government the Survey was defective as the lists of wakfs prepared under sub-section 2 of Section 5 were based on the survey report submitted on 31-1- D 2002 to the State Government, which the State Government itself found to be defective, the only conclusion possible is that the lists of wakfs are defective and therefore, in our opinion, it would be appropriate to set aside those lists, so that fresh lists can be prepared by the wakf Board on the basis of the report of resurvey which is ordered by Notification dated 20th October, 2010.” E

147Copy pinpoint147. We may notice that this is a case where the writ petitions were filed in the High Court. In the findings rendered by the High Court, the High Court has not found that there has been a breach of the principles of natural justice. This is not made out to be a case where there is a total want of jurisdiction either. Having made these preliminary observations, we may proceed to consider some of the allegations which have been made in the writ petitions: “11. The Petitioners submit that it may be noticed that even a Wakf created as per the provisions of the Muslim Law as applicable to the wakf is also included within the definition of the public trust, as contained in Section 2(13) of the Bombay Public Trust Act, 1950. Therefore, there are many Muslim trusts created by the Muslim Settlers belonging to diverse schools of Muslim law under the common law and have appointed the trustees and got the trust property vested in them. But all these Muslim public H

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A charities/ endowments created as public trusts as per the provisions of common law are also registered in ‘B’ category with the Charity Commissioner. There are indeed many Wakfs created by the Muslim Wakifs as per the school of Muslim Personal Law applicable to them and they are also registered in ‘B’ category by the office of the Charity Commissioner. The petitioners say and B submit that the above trusts are the Public Trusts as per the common law and not Wakfs as per the provisions of the Muslim Personal Law applicable to the Settlors of the above Trusts and are registered under “B” category by the office of the Charity Commissioner.” C “12. Upon the enforcement of the Wakf Act, 1995 it has become necessary for the Charity Commissioner’s office to bifurcate such Muslim Wakfs from the Muslim trusts. Instead of undertaking such exercise the Charity Commissioner proceeded to treat all the endowments/ charities registered in “B” category as Muslim D Wakfs and issued a circular dated 24th July, 2003, bearing No. 307 of 2003 whereby it directed its office not to exercise or deal with any of the Muslim Public Trusts. The said circular inter alia stated that according to Section 43 of the Wakf Act, 1995, Wakfs registered as the Public Trust should not be tried under the Bombay Public Trust Act, 1950 and that the further orders might be awaited. E After issuance of this circular the office of the Charity Commissioner refu!led to entertain any application in respect of the Muslim Public Trusts, which are registered with it. Hereto annexed and marked as Exhibits ‘G’ & ‘G-1’ are the copies of the circular dated 24th July, 2003 bearing No. 307 of 2003 issued F by the Charity Commissioner along with its English translation.” “14. Before stating the grounds it is al.so necessary to point out that the respondent No.1 has appointed the Survey Commissioner as per the notification dated 1st December, 1997. The petitioners say that the purported survey has been carried out by the Survey G Commissioner without giving any notice to the existing Muslim Trusts/ Wakfs. The petitioners have learnt that several Muslim Trusts/Wakfs have carried out correspondence with the Survey Commissioner putting on record , that the Survey Commissioner has not given any notice to the existing Muslim Trusts/ Wakfs about the purported survey and that the Survey Commissioner H

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should follow the rules of natural justice in identifying the Muslim A Trusts/ Wakfs. Hereto annexed and marked as Exhibit ‘I’ is the copy of the letter dated 14th August, 2003 written by one such trust viz. Anjuman-i-lslam. The petitioners state that the Survey Commissioner i.e. Respondent No.3 by his letter dated 22nd August, 2003 informed Anjuman-i-lslam that he has submitted his B report to Respondent No.1 on or about 31st January, 2002 in two sets. Hereto annexed and marked as Exhibit ‘J’ and ‘J-1’ is a copy of the letter dated 22nd August 2003 along with its English translation, written by Respondent No.3 to Anjuman-i-lslam. The petitioners state that the Survey Commissioner’s Report has not been made available to the public. The petitioners state that their C Trusts have not received intimation of any kind from the Survey Commissioner about the purported survey and no opportunity has been given to the petitioner’s trusts to put their say in the matter.”

148Copy pinpoint148. From the writ petition which we are treating as the lead case, our understanding of the complaint must be captured. The writ petitioners were very much aware that survey was ongoing.The notices were published in newspapers.Notices have been marked in the counter affidavit.

149Copy pinpoint149. We find from the counter affidavit of respondent No. 4 in SLP (C)No. 31288 of 2011 that one of the petitioners wrote a letter to the Charity Commissioner, wherein, he spoke about the ongoing survey. There is also a reference to a letter written by the Commissioner appointed to carry out survey informing one of the writ petitioners that the surveyor has already given his report. It would therefore appear that,notices were published. Notices were made available for the perusal of this Court with copies given to the counsel for respondents. We have perused those notices. Those notices would appear to elicit response from institutionswhich wereWakfs. One way to look at the matter is with reference to the specific dispute in this case. When the writ petitioners were contending that they are not Wakfs but Public Trusts governed by the 1950 Act, they could say that they were not affected by the notices. G

150Copy pinpoint150. In fact, they would appear to have adopted that stand as they were in a manner of speaking aware of the exchanges between the Wakf Board and the Charity Commissioner. No doubt, they could strictly in law say that they have not been put on notice. They can indeed contend since Bombay was not under the purview of the erstwhile Wakf Act H

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A 1954, their institutions could not possibly have been under the glare of scrutiny under the said Act. Therefore, they are institutions which must be more specifically put on notice. All the more, when they have a claim that though theyhave been registered under the Public Trust Act, and they were not registered for the reason that they were Wakfs but they were registered because they were public Trusts and the distinction B between the two is underlined.

151Copy pinpoint151. We have already noticed that understandablythe petitioners dohold out that there are Wakfs which have been registered as public Trusts. Their contention is that they were not among the Wakfs. The inquiry before the Survey Commissioner lasted for nearly five years. It C is true that the Survey Commissioner who has apparently kept in mind the Wakf Act of 1954 which however, applied only to six districts comprised in the Aurangabad division and constituted in the Marathwada region and might have collected information from the Revenue Officers. This is significant because if the property is treated as Wakf by way of publication of a list under Section 5(2), the previous regime also contemplated the list forming the basis for making entries in the revenue records. Therefore, collecting the materials from the Revenue officers cannot be frowned upon.

152Copy pinpoint152. Now, we must, before we pronounce on the impact of the preliminary survey also deal with the aspect about list which has been brought out on 13.11.2003.

153Copy pinpoint153. The list which is characterised as final list by the appellant Board has been published on 13.11.2003. It related to Bombay region and another. We would think that in keeping with the appellant’s case that this was indeed final. This means that in keeping with the scheme of the Act, its correctness could be tested before the Tribunal under Section

6. The writ petitioners have chosen to approach the High Court with writ petitions. What happened thereafter cannot be overlooked. One writ petition led to the filing of a spate of writ petitions as we have noticed. What triggered the writ petitions, however, also needs to be noticed. The challenge was not laid as such to the list alone. The challenge was laid to the incorporation of the Board on 04.01.2002. Equally, the clarification issued by the Charity Commissioner whereby he sought to disown his functions in respect of public trusts because of the Act coming into force, was challenged. The constitution of the Wakf Board was also the subject matter of challenge.

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154Copy pinpoint154. After the filing of the writ petitions, on 11.08.2004 a meeting A was held and we have already extracted the deliberations in paragraph 6 of this judgment.

155Copy pinpoint155. Thereafter there is an exchange of communications dated 29.10.1994 and 16.02.2005. On 30.12.2004, another list of Wakfs was published. B The List dated 30.12.2004 was published in respect of areas other than Bombay and the other region which was the subject matter of list dated 13.11.2003.

156Copy pinpoint156. We have already adverted to what happened on 09.03.2005 and 05.05.2005.We may recapitulate the substance of the matter. C Complaints were raised against the lists which were published by the Survey Commissioner on 13.11.2003 and 30.12.2004. While the writ petitions regarding the same were pending, under the auspices of the Government, two ministers, Charity Commissioner, two members of the Wakf Board and others, certain arrangements came to be made. Since the chief complaint was with respect to the writ petitioners who took shelter on the score that they were Public Trusts registered under the 1950 Act and had contended that they were not Wakfs, it was decided that out of the earlier number of public trusts treated as Wakfs, Muslim public trusts which were registered under the Bombay Public Trust Act should be taken out of the category of Wakfs and they should continue to be treated as Public Trusts. However, it was made subject to availability of power under Section 40 of the Act. In other words, while the list was published under Section 5(2) of the Act on 13.11.2003 qua Bombay and another list was published on 30.12.2004 in respect of other regions it came to be interfered with and abridged by way of first corrigendum on 05.05.2005, acting upon the meetings which preceded it, of which noteworthy is the resolution dated 09.03.2005 by the Board. We would have thought the matter would end there.However, to make matters more convoluted, there were other developments and they are captured in subsequent proceedings which took place on 09.06.2006 and 31.07.2006 and finally, what the petitioners would claim to be an acceptance of their position by proceedings dated 19.05.2006 and what is more which in turn was sought to be over-ridden by the notification which was issued on 25.04.2007. By the last-mentioned communication, the Board purported to restore the list dated 13.11.2003 still further by the 23.10.2008 notificationthe position obtaining as on 13.11.2003 and 30.12.2004 was sought to be restored. H

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157Copy pinpoint157. Now the time is ripe for us to consider the matter with greater focus on the litigation and the impugned judgment. The High Court has purported to invoke its power under Article 226. The contention raised by the appellants is that under the Act there is a remedy provided namely, a right to a person aggrieved to approach the Tribunal. The Tribunal is well equipped to deal with vexed issues related to Wakf. It is a Tribunal B specially constituted for the said purpose. No prejudice is caused by the mere publication of the list. Even dehors the publication of the list, the Wakfs are otherwise covered. As far as the interference under Article 226 is concerned, when a party has a remedy, in particular, we need to appropriately notice a very recent judgment of this Court reported C inRadha Krishan Industries v. State of H.P.15. Therein, this Court held inter alia as follows: “27. The principles of law which emerge are that: 27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. 27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person. 27.3. Exceptions to the rule of alternate remedy arise where: (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) F the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. 27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. G 27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking

15 H (2021) 6 SCC 771

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the discretionary remedy under Article 226 of the Constitution. A This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. 27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”

158Copy pinpoint158. We have noticed that it is not a case where the Court has found that there is a violation of the fundamental rights as such. In the matter of interfering with the survey, what essentially weighed with the Court is the report of the JPC.Apart from the same, we are not able to find anything else in the judgment as forming the basis for setting aside the list dated 13.11.2003. No doubt, the aspect relating to the constitution of the Board is another matter. It clearly is not a case where there is a D complete absence of jurisdiction as it is not the case of the petitioners that the Survey Commissioner was not having authority to carry out the survey.

159Copy pinpoint159. This is a case of some significance. Facts which have occurred subsequent to the issuance of the list on 13.11.2003 and E 31.12.2004, take it out of the ordinary run of cases. We have noticed the fact for reasons which will remain a mystery to us, Government took it upon itself to convene meetings; a Committee was constituted described as a Bifurcation Committee.The Committee saw merit in the contention of the writ petitioners.The Charity Commissioner was roped in as a member. It is thereafter that strangely after the publication of the lists F which are claimed to be final lists under Section 5(2) on 13.11.2003 and 30.12.2004 that the list dated 05.05.2005 is published and it is also described as another final list. All these lists have finally been sought to be extinguished by virtue of the notifications dated 25.04.2007 and 23.10.2008. G

160Copy pinpoint160. At this juncture, we must notice the following submissions which have been continually harped upon by the writ petitioners: “The Survey Commissioner submitted report to the Govt. to the Maharashtra and the Govt. forwarded the same to the Maharashtra State Board of Wakfs Aurangabad the Board in its H

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A meeting held on 27 September 2003 after deliberation resolved to publish list of Wakf under Section 5(2) of the Wakf Act 1995 and accordingly Govt. Gazette was published on 13 November 2003. Also Govt. of Maharashtra vide its letter no Wakf-10/2002/CR-1/ L-3 dated 19 August 2003 forwarded a list of the Trust obtained from the Charity Commissioner Mumbai. These are also included as per Section 43 of the Wakf Act 1995 is published in the Govt. Gazette extra Ordinary in the State of Maharashtra.”

161Copy pinpoint161. This means that the writ petitioners’ case is based on to a great extent the mechanical manner in which upon receipt of the list of public Trusts from the Charity Commissioner, the Wakf Board has notified them as Wakfs. Section 5(2) speaks about Wakf Board conducting an inquiry, or examining the manner. This certainly is not to be brushed aside as a matter of no moment. In fact, the whole idea of the Government placing the report before the Wakf Board as has been canvassed by the appellants themselves to contend that a Wakf Board is very much contemplated even prior to the Survey being held is that itmust discharge its functions of examining the report under Section 5, before it is finally published.

162Copy pinpoint162. It would appear to be a case where proceeding on the basis that all the Muslim public Trusts registered under the 1950 Act must be treated as Wakfs, the Wakf Board has proceeded to notify all of them as Wakfs. It is this which formed the subject matter of deliberations which involved the Government, Wakf Board and Charity Commissioner. It is, accordingly, under the auspices of the Committee described as Bifurcation Committee that efforts were made to weed out those public Trusts which fell not within the four walls of a Wakf and considering them assecular trusts. To a great extent, their claims being genuine is borne out by a bare passing of Resolution on 09.03.2005. A fresh list was published on 05.05.2005.

163Copy pinpoint163. Now, we may, before we finally pronounce, also notice the contention of the respondents-writ petitioners regarding the constitution of the Board.Section 14 provides for the constitution of the Board. We have already adverted to the provisions. It is not in dispute that when the Board was constituted on 04.01.2002, there were only four members.All the four members were nominated. Two out of the four members were apparently appointed in the category of Member of Parliament as, both belonged to the Rajya Sabha. No doubt, there is a case that out of them

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viz., Shabana Azmi,the theatre person also fitted the bill of a Shia member. A We must not be oblivious to the fact that Section 14(5) contemplated (the provision stands deleted by Act 27 of 2013) that there must be one Shia member in a composite board. After 04.01.2002 and before 13.11.2002, there were in allseven members in the Board, including the four notified in first notification, as three more were appointed prior to B 13.11.2003. One more person was appointed on 13.11.2003 which according to the respondents was an attempt at complying with Section 14(5) of the Act viz., for the first time, a Shia member made his appearance in the Board. This is an aspect which was canvassed as one of the grounds for not only challenging the constitution but to attack the publication of the list of 13.11.2003. The contention taken was and still C persevered in before us is that the Board had decided to notify the list even prior to 13.11.2003 viz., on 27.09.2003. The Board itself therefore had become functus officio after 27.09.2003 as far as the list is concerned, prior to 13.11.2003 when the eighth member was appointed.

164Copy pinpoint164. The Board must consist of a minimum of seven members. D Section 14 contemplates a maximum of 13 members. Not only must the Board have seven members at the very minimum, they must be drawn from specific categories. Lastly, the complaint of the writ petitioners is that apart from their not being drawn from the categories which arespecified, the constitution of the Board was in breach of the injunction, which has democratic underpinnings, viz., that the elected members under E Section 14(1)(b) (i-iv) must exceed the nominated members. The exception to the same is located when power is exercised by the Board for reasons to be recorded in Section 14(3) of the Act.

165Copy pinpoint165. The answer of the appellants apparently is that whatever may be the defect, they are protected by Section 22 of the Act whereunder, F any vacancy or any defect in the appointment notwithstanding, the section proclaims that it will not lead to the invalidity of the acts of the Board.

166Copy pinpoint166. We will still further proceed to deal with certain other aspects before we finally conclude. We must not omit to consider the impact of Section 40 of the Act. Section 40 corresponds to Section 27 of the Wakf G Act 1954. Section 40(1) read with Section 40(2) provides for power with the Board to call for information and to find whether any Wakf property existed and whether it is a Sunni or a Shia Wakf. Section 40(2) provides that subject to the decision of the Tribunal to which the aggrieved party may resort to, the decision of the Board is final. Section 40(3) is H

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A even more relevant to the dispute before this Court. No doubt, there must be an inquiry conducted under Section 40 as may be deemed fit by the Board, Section 40(3) must be carefully attended to for it gives very vast powers to the Board. It provides for power when the Board has ‘reasons to believe’.The expression ‘reasons to believe’ has been the subject matter of a catena of decisions and it does not require reference to any authority to glean its connotation and we do not venture to do that.

167Copy pinpoint167. We proceed therefore, to hold that when the Board has, in law, any reason therefore to believe that any property of any Trust registered under the Indian Trusts Act, 1882 or any society registered under the Societies Registration Act 1860 or the property of any Trust registered under any other law, is wakf property, the Board is given certain powers and responsibility. The Board is clothed with the power notwithstanding anything contained in any of those laws, to hold an inquiry in regard to the said property. The said property must be understood to be a property of any Trust which is registered in this case under the Bombay Public Trust Act because Bombay Pubic Trust Act would qualify as any other law. The holding of the inquiry is to be preceded by a notice of the proposed action to be given to the authority by whom the Trust or the Society has been registered. It is not to be confused with the Trust or the Trustees.It means that the Wakf Board must give notice of the proposed action to the Charity Commissioner as it is the authority under the 1950 Act, who registered or registers a public Trust under Section 18 of that Act.

168Copy pinpoint168. Section 40 contemplates that the Board ‘if it is satisfied’ that the property is Wakf property, it is to call upon the Trust to either register F ‘such property’ under the Act as Wakf property or to show cause, why such property should not be so registered. In the first limb of this clause, an impression may be gathered that the Trust or society can be straightway directed to register the property under the Act and there is no need to issue any notice to them. We would treat it as an omission of G the statute which must be filled up by the justice of the common law viz., the principles of natural justice would indeed apply. This is besides issuing notice to the authority which has registered the trust.Section 40(3) contemplates that the decision of the Board shall be final subject to the decision to be rendered by the Tribunal.This section must be understood in the following context. H

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169Copy pinpoint169. When parliament made the Act in 1995, it was aware that it A would repeal the Wakf Act 1954. Section 40 of the Wakf Act is a provision which corresponds to Section 27 of the earlier Act. Parliament must be presumed to know the laws which are on the statute book. In fact, Parliament must be presumed to be aware of all necessary facts which would give life to a law and make it workable, fair and reasonable. B Parliament must, therefore, be assumed to know that laws like the Bombay Public Trust Act were on the statute book. It must be aware that the definition of public Trust such as is contemplated under the Bombay Public Trust Act took within its sweep Wakfs. Section 28 of the Bombay Public Trust Act, in fact, comes to mind. Section 28 of the 1950 Act contemplated that institutions which were Wakfs before the enactment of the 1950 Act would be deemed to be public Trusts under Section 28 and would be treated as such under the said law. As far as other public Trusts which are registered under the 1950 Act, no doubt, in keeping with what we have already observed and bearing in mind the fact that there is a distinction between a Trust and a Wakf, it is a matter to be decided on the facts of each case as to whether what is ostensibly a Trust within the meaning of 1950 Actis in substance a Wakf.

170Copy pinpoint170. We must clarify here that what Section 40(3), in fact, states is that if the Board has reason to believe that the property of any Trust is Wakf property, it can hold enquiry and find such property to be Wakf property. E

171Copy pinpoint171. In this regard, we may notice that Section 30 of the 1950 Act contemplates previous sanction for the sale of the property of the public Trust. We may record that we are a little baffled and mystified by this deeming provision. This we feel for the reason that in the case of a Wakf, property passes to the Almighty and to treat it as the property of F the public Trust ill squares with the idea that the property also vests in the Almighty. But we need not explore that matter further as we are not called upon to do so.Suffice it to say that despite the fact that the 1950 Act has been enacted and Muslim pubic Trusts have been registered in what is described as Category B which is a category meant for Muslim G Public Trusts, the property of the said Trust as is described in Section 40(3) can be found after due inquiry, to be the properties of a Wakf. We make this position clear.

172Copy pinpoint172. As far as Section 43 is concerned, it mandates for deemed registration of Wakfs. Its meaning may be culled out. It mandates that H

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A notwithstanding anything contained in the chapter, where any wakf has been registered before the commencement of this Act,under any law for the time being in force, there is no need to register the same under the provisions of this Act. Such registration is to be deemed to have been made under the Act.

173Copy pinpoint173. Therefore, Shri Anil Anturkar, learned counsel, did refer to the non-obstante clause in Section 43 being confined to the chapter in question viz., chapter V which provides for registration.In other words, it did not overflow its boundaries and impact the earlier provisions which were included in chapter II. The effect of Section 43 may be culled out as follows: C

174Copy pinpoint174. Since under Section 2 of the Act, the Act applies to every Wakf which is created, whether before or after the Act came into force, it means that whatever is Wakf as defined in the Act which is made at any point of time, be it before or after 01.01.1996 must be registered under the Act [See Section 36]. Registration is intended to bring Wakfs D under the close scrutiny of the competent authority, be it the Board or the executive officers. The whole history of the legislation of Wakfs reflects the perception of the legislature that property which is dedicated to the Almighty for charitable, religious and pious purposes should be protected. The protection must be extended against the Mutawallis and others who may deal with the property and thereby, completely destroy the very original purpose of the founder. What would be used for public welfare, be it even of sections of a community for certain cases, would all be covered thereunder as provided in the Act.

175Copy pinpoint175. It is with this perception that we must view Section 43 and the High Court in the impugned judgment, also has referred to Section 43 in the course of the argument against the incorporation of the Board to hold that it merely provides for registration. We would think that the importance of it lies in the fact that the registration has an important role to play towards control and regulation of the Wakf by the competent bodies. G

176Copy pinpoint176. Section 79 of the 1950 Act provides as follows: “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 theDeputy or Assistant Charity Commissioner or the Charity H

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Commissioner in appeal as provided by this Act.(2) The decision A of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal, as the case may be, shall, unless set aside by the decision of the Court on application or of the High Court in appeal be final and conclusive.” It provides for power with the deputy or the assistant Charity B Commissioner to decide upon the issue as to whether a Trust exists and whether such Trust is a public Trust or any particular property is a property of such trust. With the advent of the Wakf Act, 1995, the powers under Section 40 of the Act must be read as conferring authority with the Wakf Board which must certainly prevail in regard to the matters which are provided for therein. C

177Copy pinpoint177. This brings us to other aspect which has been canvassed before us. Section 112 of the Act provides for repeal. There is not much controversy before us that Section 112 by virtue of the repeal it provides for would effect a repeal of the provisions of the 1950 Act insofar as it relates to public Trusts which are Wakfs. The Charity Commissioner, in effect, when it issued clarification which was challenged before the High Court also initially only stated that according to Section 43 of the Act Wakfs which are registered as Public Trusts should not be tried under the 1950 Act. As far as this understanding of the Charity Commissioner goes subject to what we will presently indicate, we would take the view that there is a distinction between a Trust and a Wakf. We have already highlighted the differences.It is a matter to be tested on a conspectus of various features and after complying with the law as to whether what is registered as a public Trust is, in fact, a Wakf or not. No doubt, all public Trusts which have been registered by way of a deeming provision under Section 28 of the 1950 Act will necessarily have to be treated as Wakfs. F This is on the principle that once a Wakf is created unless it be a case where the title is extinguished by way of exercise of power of eminent domain by the State, the title of the Almighty though by implication cannot cease. We can state the position otherwise to be that once a Wakf, always a Wakf. G

178Copy pinpoint178. We are not for a moment commenting on the aspect about acquisition of title by adverse possession. Nor are we going into the question which can be raised as a result of Section 107 of the Act by which Limitation Act hasnot been made applicable in respect of a suit forrecovery of possession but otherwise, we must hold that sans such H

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A features, the Wakf would continue and it would remain perpetual, inalienable and irrevocable. Therefore, what was once a Wakf before the 1950 Act, if it is registered under the 1950 Act, with the commencement of the Act, such a public Trust would necessarily come under the ambit of the Wakf Act, 1995. It is pointed out by Shri Anil Anturkar, learned senior counsel, that such Wakfs would come within Section 43 and be B deemed to be registered. We, however, make it clear that the passing of the Act will not affect the powers of the authorities in respect of public Trusts registered under it which are not Wakfs.

179Copy pinpoint179. Now, we may resume our discussion of the facts in greater focus.We notice that the High Court has interfered under Article 226. In C keeping with what is laid down in the judgment we have referred to, perhaps it could be said that the High Court would have been better advised to relegate the parties to the Tribunal. There are however, certain aspects to it. Firstly, we may notice that this is not a case where the challenge was laid only to the lists or the survey. Rather we have noticed that the challenge was laid to the very incorporation of the Board and its constitution. A challenge was also laid to the proceedings of the Charity Commissioner. These decisions which were impugned could not have been adjudicated by the Tribunal under Section 6 of the Act. The second aspect which we cannot ignore is that as held by this Court, Article 226 confers a jurisdiction or a power on the High Courts. It is a power under the Constitution. While it may be true that a statute may provide for an alternate forum to which the High Court may relegate the party in an appropriate case, the existence of an alternate remedy by itself cannot exclude the jurisdiction of the High Court under the Constitution. No doubt, it has been a self-imposed restraint which is fairly faithfully adhered to by the High Courts and it is largely a matter of discretion. We find that there are dicta which has held that on the basis of an alternate remedy, a writ petition is not maintainable. We would understand that the position to be that a constitutional remedy cannot be barred or excluded as when the High Court exercises its power under Article 226, it cannot be a case of lack of inherent jurisdiction. No doubt, when High Courts stray outside the limits with reference to certain principles as have been laid down in the decision which we have referred to, it can be corrected. Another factor which is to be borne in mind is that in a case where the High Court has entertained a matter and the matter comes for hearing in this Court in the jurisdiction under Article 136, our woes are compounded by the long passage of time as is demonstrated by the facts of this case.

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The judgment of the High Court was rendered in the year 2011. This A Court is hearing the matter after more than a decade. It is nearly two decades after the filing of the writ petitions that this Court is hearing the matter.

180Copy pinpoint180. We cannot be totally oblivious to the ground realities and we must also state our opinion on the legal position. B We have understood the position to be that once a list is published with the blessings of the Board, having considered the report in the manner to be done by examining ‘the report’, interference with the same is only premised on a decision of the Tribunal in a properly constituted proceeding within the time as provided in Section 6. In this case if we are otherwise inclined to interfere with the judgment, this would mean that we would have to restore the lists dated 13.11.2003 and 30.12.2004. The position on the ground, however, has been already stated viz., the filing of the writ petitions, constitution of a Bifurcation Committee, various proceedings, the exclusion of several trusts which are described as public Trusts from the original lists and their restoration again. Yet another development which we cannot ignore is that the Government itself took it upon itself apparently on the basis of the report of the JPC to order resurvey on 20.10.2010. An interim order was passed by this Court in 2012.

181Copy pinpoint181. However, Shri Rahul Chitnis, learned counsel for the State, would point out that the proceedings dated 20.10.2010 have been subsequently cancelled by notification dated 06.12.2016. By the latter proceedings, a survey within the meaning of section 4(6) is taking place.

182Copy pinpoint182. On the one hand, we have noticed the case of the writ petitioners to be that they were not given notice. We have also noticed their case based on the illegality in the constitution of the Committee. F Several defects were pointed out by the learned senior counsel as noted in the survey. They include Shia Wakf being treated as Sunni and Boharatrusts being treated as Sunni Wakf. It is complained thatincome of the properties has not been disclosed contrary to Section 4.

183Copy pinpoint183. We articulate the choices which are available before us. It is G the appellant’s case that Wakf properties need to be rigorously and lawfully regulated. However, there are public Trusts registered under the 1950 Act which are in fact, Wakf which fall under Section 28 of the 1950 Act. They must undoubtedly come within the regime of the Central Act viz., the Wakf Act, 1995. The converse also must be stated and H

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A highlighted viz.; a Muslim Public Trust registered under the 1950 Act need not be a Wakf under the Act. It would be certainly contrary to the unbroken line of judgments of this Court which contemplate such a division between two categories to paint all Muslim public Trusts with the same brush and glean them as Wakfs. We have elucidated the position however with reference to the impact of the amendment to Section 3(a) of the B Wakf Act, 1954.

184Copy pinpoint184. At this juncture we must notice an interim order which has been passed by this Court reported in 2012 (6) SCC 328. Much reliance was sought by the learned senior counsel for the writ petition on the said order on the basis that it acknowledges the position of law flowing from C the principle in Nawab Zain Yar Jung (Since Deceased) and Othersv. Director of Endowments and Another(supra) and that it otherwise articulates the law correctly. On the other hand, the appellants would point out that it is only an interim order and cannot detain this Court in analyzing the issues.

185Copy pinpoint185. On the one hand, the case of the appellants is that the respondents must be relegated to approach the Tribunal against their inclusion in the list by the proceedings dated 13.11.2003 or 30.12.2004 whereas the case of the respondents is that if this Court interferes, the Court may treat the proceedings dated 05.05.2005 as correct and not E interfere otherwise with the judgment of the High Court.

186Copy pinpoint186. Mr. Muchchwala, learned Senior Counsel, contended that the power under Section 97 is available to give binding directions to the Board even as far as proceedings under Section 40 are concerned. Section 97 contemplates power with the Government to issue directions to the F Board in the matter of discharge of its functions. Section 32 deals with powers and functions of the Board. It may be true that when the Board discharges its functions under Section 32 it may fall under the shadow of section 97. The Board may be bound but as far as Section 40 is concerned, it is meant to be a quasi-judicial proceeding as it is meant to be a proceeding where an inquiry is to be conducted by the Board to find out G whether the property of the Trust is to be treated as the property of the Wakfs.It contemplates issuance of notice, affording an opportunity of natural justice otherwise as indicated by us. To hold that the Board would be bound by any direction in either manner, either in favour of the property being treated as Wakf or the other way around or otherwise may not be H a correct understanding of the true boundaries of Section 40.

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187Copy pinpoint187. After considering the facts as aforesaid, we would think that A in the situation obtaining, particularly, after such a long passage of time, we cannot allow the impugned judgment of the High Court to be sustained as it is.

188Copy pinpoint188. As far as the incorporation of the Board is concerned, we have found that it is not flawed. B Therefore, the judgment of the High Court to the extent that it sets aside the notification dated 04.01.2002, is found to be unsustainable. The High Court has through the impugned judgments, set aside the lists dated 13.11.2003 and 30.12.2004. C

189Copy pinpoint189. We cannot totally be unmindful of the fact that there were seven members in the Board and also Section 22 appears to work as a shield against invalidation.

190Copy pinpoint190. In view of the developments post the publication of the list dated 13.11.2003 and 30.12.2004 in the form of the formation of the D Bifurcation Committee and various proceedings, we cannot accept the request of the respondents that the matter must again go back to the Survey Commissioner who must be asked to look into the proceedings of the Bifurcation Committee.

191Copy pinpoint191. We must observe that the constitution of the Bifurcation E Committee and various proceedings thereafter, would appear to be not proceedings which are strictly within the ambit of the Act as such. There cannot also be plea of estoppel or equity against Statute.

192Copy pinpoint192. But, at the same time, it would appear that both the Charity Commissioner and the Wakf Board were indeed proceeding under the F misapprehension as far as the true purport of a Muslim public Trust registered under the 1950 Act is concerned.

193Copy pinpoint193. In such circumstances, we dispose of the appeals as follows: The appeals are partly allowed. G The judgment of the High Court setting aside the notification dated 04.01.2002, is set aside. As far as lists dated 13.11.2003 and 30.12.2004 are concerned, we uphold the said lists subject to the following directions: H

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A As far as the writ petitioners in the High Court/respondents before us which have been registered as public Trusts under the 1950 Act and whose cases have been found favour with by the Bifurcation Committee, the lists dated 13.11.2003 and 30.12.2004 will stand set aside. However, we direct that in regard to them, Board will take up their cases as if the matter is being dealt with at the stage when it was given the report under Section 5(1) and examine their case after affording them an opportunity. The Board will afford them an opportunity and take a decision and if they are found to be Wakfs, it will be open to the Board to cause a list of Wakfs published/ regard them also. Still further, this is made conditional upon the respondents-writ petitioners as aforesaid approaching the Wakf Board within the period of eight weeks from today. Such of those who do not approach within the period of eight weeks will forfeit their right and we make it clear that their inclusion in the list dated 13.11.2003 or 30.12.2004 shall stand restored and it will be treated as final. Still further, we direct that in regard to such of those who approach the Board within the period as aforesaid, the Board will conclude the proceedings and take a decision expeditiously within a period of six months from the date on which they apply. E We further make it clear that this order will not enure to the benefit of such of those falling within the category against whom the Tribunal has already adjudicated and found them to be Wakfs. Needless to say such of those institutions will be free to work out their own remedies.

F Interim order dated 11.05.2012 operating since last 10 years will operate till the time decision is taken by the Board. We make it clear that the judgment will not in any manner dilute the power which is available to the Wakf Board under Section 40 or for that matter under any other provision of the Act. G Parties will bear their respective costs.

Bibhuti Bhushan Bose Appeals partly allowed. (Assisted by : Rahul Rathi, LCRA)