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2022 (10) TMI 1183 - SC - Indian LawsWhether the Respondents 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? - HELD THAT - Facts which have occurred subsequent to the issuance of the list on 13.11.2003 and 31.12.2004 take it out of the ordinary run of cases. It is noticed that 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 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. 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 it must discharge its functions of examining the report Under Section 5 before it is finally published. 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 as secular 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. 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 viz. Shabana Azmi the theatre person also fitted the bill of a Shia member. 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 all seven members in the Board including the four notified in first notification as three more were appointed prior to 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 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. 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 - 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. When parliament made the Act in 1995 it was aware that it 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. 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 - 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 Act is in substance a Wakf. Registration is intended to bring Wakfs 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. 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. 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. Thus 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 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. 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 - 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. The judgment of the High Court was rendered in the year 2011. This 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. The constitution of the Bifurcation 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 - Appeal allowed in part.
Issues Involved:
1. Legality of the incorporation of the Wakf Board. 2. Validity of the survey conducted under Section 4. 3. Validity of the lists of Wakfs published on 13.11.2003 and 30.12.2004. 4. Distinction between Public Trusts and Wakfs. 5. Jurisdiction of the High Court under Article 226 in the context of available alternate remedies. Analysis: 1. Legality of the Incorporation of the Wakf Board: The High Court found the incorporation of the Wakf Board on 04.01.2002 to be flawed due to the absence of a preceding survey under Section 4. The Court emphasized that the survey was necessary to determine whether separate Sunni and Shia Boards were required under Section 13(2). However, the Supreme Court held that the use of the word "may" in Section 13(2) indicates discretion rather than a mandatory duty. The Court noted that the Act does not require the survey to precede the incorporation of the Board and that the existence of the Board is vital for achieving the Act's objectives. Therefore, the incorporation of the Board was deemed legal. 2. Validity of the Survey Conducted Under Section 4: The High Court relied on the Joint Parliamentary Committee (JPC) report, which found the survey defective, to invalidate the lists published under Section 5(2). The Supreme Court acknowledged that the survey must be quasi-judicial and that the Survey Commissioner has the power to determine whether a property is a Wakf. However, the Court found that the High Court's reliance solely on the JPC report was insufficient to invalidate the survey. The Supreme Court emphasized the need for a detailed inquiry by the Wakf Board under Section 5(2) before publishing the final list. 3. Validity of the Lists of Wakfs Published on 13.11.2003 and 30.12.2004: The High Court invalidated these lists based on the defective survey and the improper constitution of the Board. The Supreme Court noted that the lists were subject to modification by the Tribunal under Section 6 and that the writ petitioners had approached the High Court instead of the Tribunal. The Court acknowledged the subsequent developments, including the formation of the Bifurcation Committee, which led to the exclusion of several trusts from the original lists. The Supreme Court upheld the lists dated 13.11.2003 and 30.12.2004 but allowed the writ petitioners to approach the Wakf Board for a fresh examination. 4. Distinction Between Public Trusts and Wakfs: The Supreme Court reiterated the distinction between Public Trusts and Wakfs, emphasizing that a Wakf must involve a permanent dedication of property for purposes recognized by Muslim law as pious, religious, or charitable. The Court noted that the amendment to Section 3(a) of the Wakf Act, 1954, did not obliterate the distinction between a Public Trust and a Wakf. The Court highlighted that the property of a Wakf vests in the Almighty, making it inalienable, whereas a Public Trust involves property vested in trustees with the power to alienate under certain conditions. 5. Jurisdiction of the High Court Under Article 226 in the Context of Available Alternate Remedies: The Supreme Court acknowledged that while the High Court has the discretion to entertain writ petitions, it should ordinarily relegate parties to alternate remedies provided by statute. The Court noted that the High Court had entertained the writ petitions due to the challenge to the incorporation and constitution of the Board, which could not be adjudicated by the Tribunal. The Supreme Court emphasized that the existence of an alternate remedy does not divest the High Court of its jurisdiction under Article 226 but is a matter of discretion. Conclusion: The Supreme Court partly allowed the appeals, setting aside the High Court's judgment invalidating the incorporation of the Wakf Board. The Court upheld the lists dated 13.11.2003 and 30.12.2004, subject to the writ petitioners approaching the Wakf Board for a fresh examination. The Court directed the Wakf Board to conclude the proceedings within six months and maintained the interim order until the Board's decision. The judgment clarified the distinction between Public Trusts and Wakfs and the scope of the High Court's jurisdiction under Article 226.
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