9911796707
TMI Blog2022 (10) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. 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 obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013), Civil Appeal No. 7846 of 2022 (Arising out of SLP (C) No. 14169 of 2013), Civil Appeal No. 7844 of 2022 (Arising out of SLP (C) No. 12271 of 2013), Civil Appeal No. 7845 of 2022 (Arising out of SLP (C) No. 12298 of 2013), Civil Appeal No. 7843 of 2022 (Arising out of SLP (C) No. 12260 of 2013), Civil Appeal Nos. 7840-7842 of 2022 (Arising out of SLP (C) Nos. 12310-12312 of 2013), Civil Appeal No. 7839 of 2022 (Arising out of SLP (C) No. 12307 of 2013), Civil Appeal Nos. 7836-7838 of 2022 (Arising out of SLP (C) Nos. 14177-14179 of 2013), Civil Appeal No. 7835 of 2022 (Arising out of SLP (C) No. 12281 of 2013), Civil Appeal No. 7834 of 2022 (Arising out of SLP (C) No. 12300 of 2013), Civil Appeal No. 7833 of 2022 (Arising out of SLP (C) No. 14176 of 2013), Civil Appeal No. 7832 of 2022 (Arising out of SLP (C) No. 12304 of 2013), Civil Appeal No. 7831 of 2022 (Arising out of SLP (C) No. 12277 of 2013), Civil Appeal No. 7830 of 2022 (Arising out of SLP (C) No. 1132 of 2017), Civil Appeal Nos. 7827-7829 of 2022 (Arising out of SLP (C) Nos. 32129-32131 of 2011) and Civil Appeal Nos. 7815-7826 of 2022 (Arising out of SLP (C) Nos. 19747-19758 of 2012) Hon'ble Judges K.M. Jose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nna, Pranay Thite, Advs., Kunal Verma, Praveen Kumar, Ankit Yadav, AORs, Tarun Mehra, Gaijala Bhaskar and Ratnesh Sharma, Advs. JUDGMENT 1. Leave granted. 2. Since the common questions arises in all these appeals, we deem it appropriate to dispose of the same by the following common judgment. 3. The facts leading up to the litigation need to be referred to at 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 4 of the Act. A Wakf Tribunal was constituted at Aurangabad by order dated 30.10.2000. On 04.01.2002, 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 judgment. The State forwarded the survey report which it received to the Board which was constituted on 07.05.2002. The Joint Parliamentary Committee (hereinafter referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 (3) Chairman, Wakf Board, Mumbai (4) Hafeezbhai Dhature, M.L.A. & Member of Wakf Board. (5) Principal Secretary & S.L.A.L. & J.D. (6) Charity Commissioner, M.S. Worli, Mumbai (7) Executive Officer, Wakf Board, Mumbai (8) Jt. Secy. R&F.D. (9) Shri Yusuf Muchhala, Sr. Counsel, High Court. (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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 7. Writ Petition No. 2906 of 2004 came to be filed by Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional Collector Chief Executive Officer Aurangabad 11. On 31.07.2006, a corrigendum was issued by the Board modifying the earlier list of Wakfs. Thereafter, on 25.04.2007, the Board issued another notification stating that the resolution which was dated 19.06.2006 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 31.07.2006. On 04.09.2008, the Government of Maharashtra appointed 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, there is yet another summersault by the Board insofar as it purported to cancel the corrigendum dated 05.05.2005 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 Maharashtra Govt. Gazette NOTIFICATION DATED 23.10.2008 No. MSBW/REG-240/3805/2008. Dated: 7.10.2008 NOTIFICATION By the Chief Executive Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective districts, and Tahsildars as 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: (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 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. By order and in the name of the Governor of Maharashtra. GEETA CHANDE Under Secretary to Government 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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: "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." 17. 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. 18. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntage of Shia Wakfs are found to exceed the percentage mentioned in the said Section (15 per cent) he contended. He would further contend that a survey need not precede the incorporation. 23. 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 State of Bombay, in view of the judgment of this Court in State of Kerala and Ors. v. Mar Appraem Kuri Co. Ltd. and Anr. (2012) 7 SCC 106, 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. 24. 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 yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the result of the survey commissioner is impressed upon us. The Act contemplates a duty with every Wakf whether created before or after the Act to register themselves with the Wakf Board. 29. 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 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 ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnarayanan, learned Senior Counsel, and would support them in their attempts at overturning the impugned judgment. 34. 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 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. 35. Shri Anil Anturkar, learned Senior Counsel, appears in SLP(C) No. 3136 of 2016. 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 Ors. (1979) 2 SCC 468 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto 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 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 Ors. v. Director of Endowments and Anr. (supra) which has been followed in Mohd. Khasim v. Mohd. Dastagir and Ors. (2006) 13 SCC 497. 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, 1963 SCC Online Mad 132. 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. 39 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors. (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 Ors. v. Director of Endowments and Anr. AIR 1963 SC 985 is commended for our acceptance. 42. Dr. Singhvi, learned Senior Counsel, also submitted that Section 13(2) incorporates a core democratic value and having regard to the distinction between the Sunnis and Shias, a need to have separate Boards cannot but be emphasised. 43. Shri Harish Salve, learned Senior Counsel appears in SLP(C) Nos. 31288-90 of 2011 and SLP(C) No. 1132 of 2017. He would 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 leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emise of their being registered as Muslim Public Trusts under the 1950 Act which is impermissible. 46. 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 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 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 carri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating 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. 49. 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. 50. Shri Vinay Navare, learned Senior Counsel would submit that the writ Petitioners in his case were worshippers who approached the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 perpetuity without there being any scope for revoking it, and further the property is inalienable subject to the law. 56. Before we deal with the various contentions, it is for us to have brief overview of the legislation affecting the institution of 'wakf' 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 most pious use of it, (whereupon) the prophet declared, 'tie up the property (asl or corpus) and devote the usufruct to human beings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, the only expression by which it can be construed is the word charity in its broadest sense. 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 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 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. To give money to free a slave, to give alms to the poor, to give to your children and kindred, are all sadakah. 60. 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: "It must be remembered also that a wakf is not a gratuitous transfer of property. It is a tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54 which we must notice is an 'improvement' over the Mussalman Wakf Act, 1923. Under the 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, 1950 governed 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 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); 62. Section 2(19) interestingly provides for the definition of the word 'wakf'. This is so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) exclusively to religious teaching or worship. 64. 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 enactments specified in Schedule-A and Schedule-AA shall be deemed to have been registered under this Act from the date on which this Act may be applied to them. The Deputy or Assistant Charity Commissioner of the region or sub-region within the limits of which a public trust had been registered under any of the said enactments shall issue notice to the trustee of such trust for the purpose of recording 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 prescribed record findings with the reason therefore. Such findings shall be in accordance with the entries in the registers already made under the said enactments subject 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication or of the High Court in appeal be final and conclusive." 68. Section 85 provides for repeal. It reads as follows: 85. Repeals: (1) The Religious Endowments Act, 1862, is hereby repealed. (2) On the date of the application of the provisions of this Act to any public trust or class of trusts Under Sub-section (4) of Section 1 hereinafter in this Section referred to an the said date the provisions of the Act specified in Schedule A which apply to such trust or class of trusts shall cease to apply to such trust or class of trusts. (3) Save as otherwise provided in this Section such repeal or cessation shall not in any way affect - (a) any right, title, interest, obligation or liability already acquired, accrued or incurred before the said date. (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 proceedings pending before any authority under the Mussalman Wakf Act, 1923 as amended by the Mussalman Wakf Bombay Amendment Act, 1935, the Bombay Public Trusts Registration Act, 1935, or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritable; and] (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; 72. 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 and any other objects of public utility sanctioned by the Muslim law;"" 73. 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 in Bill No. 32 of 1964 which culminated in the Amending Act 34 of 1964, 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' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead as under: "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 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 (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;" 78. 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 immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-- (i) a waqf by user but such waqf shall not cease to be a waqf by re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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; (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; (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. (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-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontained 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.-- (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 82. Section 8 provides that the Board has to bear the cost of the survey. 83. 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 Wakf Council.-- (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 irregular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Capital Territory of Delhi; (ii) Muslim Members of the State Legislature; (iii) Muslim members of the Bar Council of the concerned State or Union territory: Provided that in case there is no Muslim member of the Bar Council of a State or a Union territory, the State Government or the Union territory administration, as the case may be, may nominate any senior Muslim advocate from that State or the Union territory, and (iv) mutawallis of the auqaf having an annual income of rupees one lakh and above. Explanation I.--For the removal of doubts, it is hereby declared that the members from categories mentioned in Sub-clauses (i) to (iv), shall be elected from the electoral college constituted for each category. Explanation II.--For the removal of doubts it is hereby declared that in case a Muslim member ceases to be a Member of Parliament from the State or National Capital Territory of Delhi as referred to in Sub-clause (i) of Clause (b) or ceases to be a Member of the State Legislative Assembly as required Under Sub-clause (ii) of Clause (b), such member shall be deemed to have vacated the office of the member of the Board for the State or National Capital Territory of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... categories mentioned in Sub-clauses (i) to (iii) of Clause (b) of Sub-section (1), the State Government may nominate such persons as the members of the Board as it deems fit. (4) The number of elected members of the Board shall, at all times, be more than the nominated members of the Board except as provided Under Sub-section (3). (5) Xxx xxx xxx (6) In determining the number of Shia members or Sunni members of the Board, the State Government shall have regard to the number and value of Shia auqaf and Sunni auqaf to be administered by the Board and appointment of the members shall be made, so far as may be, in accordance with such determination. (7) * * * * * (8) Whenever the Board is constituted or reconstituted, the members of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board. (9) The members of the Board shall be appointed by the State Government by notification in the Official Gazette. 86. Section 15 provides that the Members of Board shall hold office for a period 5 years, as it stood, and the words 'from the date of notification referred to in Sub-section (9) of Section 14' was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he trust or society, as the case may be, either to register such property under this Act as waqf property or show cause why such property should not be so registered: Provided that in all such cases, notice of the action proposed to be taken under this Sub-section shall be given to the authority by whom the trust or society had been registered. (4) The Board shall, after duly considering such cause as may be shown in pursuance of notice issued Under Sub-section (3), pass such orders as it may think fit and the order so made by the Board, shall be final, unless it is revoked or modified by a Tribunal. 91. Under Section 41, the Board may compel a Muttawalli to apply for registration of a wakf or to supply any information or may itself cause the wakf to be registered or may at any time amend the register of auqaf. Section 43 is also crucial for appreciating the controversy before us. Section 43 reads as under: 43. Auqaf registered before the commencement of this Act deemed to be registered.-- Notwithstanding anything contained in this Chapter, where any waqf has been registered before the commencement of this Act, under any law for the time being in force, it shall not be nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 97. Directions by State Government.-- Subject to any directions issued by the Central Government Under Section 96, the State Government may, from time to time, give to the Board such general or special directions as the State Government thinks fit and in the performance of its functions, the Board shall comply with such directions: Provided that the State Government shall not issue any direction being contrary to any waqf deed or any usage; practice or custom of the waqf. 95. Section 102 deals with special provisions for reorganisation of certain Boards and Section 103 deals again with special provisions for establishment of Board for part of a State. Section 104 provides for donation made by a non-Muslim becoming part of the wakf. It reads as follows: 104. Application of Act to properties given or donated by persons not professing Islam for support of certain waqf.-- Notwithstanding anything contained in this Act where any movable or immovable property has been given or donated by any person not professing Islam for the support of a waqf being-- (a) a mosque, idgah, imambara, dargah, khangah or a maqbara; (b) a Muslim graveyard; (c) a choultry or a musafirkhana, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question inter alia as to whether there must be separate Sunni and Shia Boards. This is because Section 13(2) provides that the Government 'may' have Sunni Board and Shia Board if the conditions mentioned therein are present. The problem posed is the impossibility of finding out the solution to this question in the absence of relevant data. The only relevant data, according to the High Court, is what is yielded in the Survey Under Section 4. 98. We must first decide as to whether Section 13(2) provides for an inflexible and unalterable duty with the Government to establish separate Sunni and Shia Boards if the number of Shia Wakfs is in excess of 15 per cent of all the wakfs. Still further, will the Government be duty bound to constitute separate Boards for the two sects if the income from the Shia wakfs exceeds 15 per cent of the total income of all the wakfs put together. 99. The use of the word 'may' is not to be brushed aside with contempt or without due reference to the knowledge that legislature has knowingly used it. But we do bear in mind that the word 'may' indeed be capable of bearing an imperative meaning. In this regard we may refer to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kf. In the case of a Shia Wakf, the position may not be the same. At the same time, we must not also lose sight of the fact that both Sunni and Shia profess Islam as their faith. As regards the core belief of the oneness of God or Almighty and Prophet Mohammad being the last Messenger and the other fundamental tenets of the faith, there is little difference between a Sunni and a Shia. The Shia themselves have three branches, namely, Twelvers, Ismailis and Zaidis. With this brief background of the differences between sects of Islam, namely, Sunni and Shia, we must carry our discussion forward. In this case, the legislature itself has taken notice of the existence of two different sects of Islam, in Section 13(2). It has proceeded to provide for two separate Boards if a percentage of Wakfs of Shias as a ratio to the total number of wakfs exists. However, we are unable to perceive Section 13(2) as creating an inviolable duty with the Government to create Boards upon the magical figure of 15% mentioned in Section 13(2) being breached. It may be that, in a given case, it may be 16%. In another case it may be 30% or 40%. A wide range of possibilities representing both ends of the spectru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparate Boards. This overturns the fundamental basis on which the High court has proceeded. We may notice also in this regard that Section 13(2) of the Act inter alia reads as follows: "13(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, the State Government may, by notification in the Official Gazette, establish a Board of [Auqaf] each for Sunni [auqaf] and for Shia [auqaf] under such names as may be specified in the notification" 104. Section 32(2)(e) reads as follows: "32(2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be-- (e) to direct-- (i) the utilisation of the surplus income of a wakf consistent with the objects of a wakf; (ii) in what manner the income of a wakf, the objects of which are not evident from any written instrument, shall be utilized; (iii) in any case where any object of wakf has ceased to exist or has become i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al to achieve the objects of the Act. We have noticed that Section 32 contemplates various powers and functions with the Board. Section 36 gives a right or casts a duty as it were on Wakfs to get themselves registered with the Board. Section 40 provides for another important function of the Board. It must be in this regard not be ignored that there was severe criticism about the treatment that was being meted out to the Wakfs. Mutawallis were principally at the receiving end of the criticism in the form of allegations of indiscriminate alienations and encroachment on wakf property being ignored. 107. In the same breath we are duty bound to express our concern and ventilate our pain at noticing that amendment took place in the year 2013 after a good 18 years of the passing of the 1995 Act under which it was provided that where Wakf Boards are not appointed, it had to be appointed within a period of one year from the coming into force of the Amending Act 27 of 2013. This no doubt alerts us to the fact that the Act did not provide for any time limit with the Government to incorporate the Board. To this extent we acknowledge that the Act did not expressly provide for a sense of compel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e premise of our finding, but for reassurance, we also find in the facts of this case that the survey commissioner has reported that there were 20194 Wakfs in the State. The total number of Shia Wakfs were surveyed and found to be 203. This constitutes 1.005 per cent of the total number of Wakfs. This is a figure which does not even in any way approximate to the figure of 15 per cent contemplated in Section 13(2). Another plank of the reasoning of the High Court in interfering with the incorporation of the Board was that under the Act, the Board assumes a corporate form and it is imbued with perpetual succession. The High Court reasons that once a Board is created, there is no provision for putting an end to it and giving birth to a Sunni Board and a Shia Board. We may notice in this context that it is not difficult to imagine that in a given case a State may have a composite Board to begin with. A second or subsequent survey are contemplated and permitted Under Section 4(6). Take a situation where initially the number of Shia Wakfs or the income therefrom did not justify the creation of separate boards and there is a composite Board. Can it be the law that if a second or subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mulla Principles of Mahomedan Law (22nd Edition): "223. Imambara An imambara is an apartment in a private house or a building set apart like a private chapel for religious purposes. It is intended for the use of the owner and members of his family, though the public may be admitted with the permission of the owner. It may be the object of a valid waqf-178. Such a waqf is a private waqf and not a public waqf nor a trust for the purposes of Section 92 of the Code of Civil Procedure, but it may be proved that a particular imambara is a public waqf." 110. In such a case, that is Wakf by user, it would be a case of immemorial user. That is precisely the reason why the need to prove the dedication may be dispensed with, as the proof of it, may have been lost with the passage of time. 111. A Wakf can be created for attaining a public utility. The public utility must, however, be for an object sanctioned by Muslim law. Subject to said conditions, irrespective of whether the beneficiaries are Muslims or not, there could be a valid Wakf. This is the result of the amendment brought to Section 3(a) of the Wakf Act, 1954 by the Amendment Act of 1964 which we have already noticed. The very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Almighty and the devotion of the profits for the benefit of human beings.' As a result of the creation of a wakf, the right of wakif is extinguished and the ownership is transferred to the Almighty. The manager of the wakf is the mutawalli, the governor, superintendent, or curator. But in that capacity, he has no right in the property belonging to the wakf; the property is not vested in him and he is not a trustee in the legal sense". Therefore, there is no doubt that the wakf to which the Act applies is, in essential features, different from the trust as is known to English law." 113. Thereafter, the Court proceeded to analyse the Trust deed. The Court dwells on the effect of the trust deed in paragraph-16, 17 and 18: "16. It is also urged that the effect of clauses relating to the vesting of the property in the Appellants as trustees should be judged in the light of the character of the property with which the document deals. The subject-matter of the trust is moveable property and unless the said property was assigned to the Appellants, they would not have been able to deal with it, and that alone is the basis and the justification for the vesting provisions in the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous institutions not confined to any particular religion. Then look at Clause 3(c)(v). It provides that the trust property can be utilised for the advancement of any other object of general public utility, particularly in the State of Hyderabad. It is true that the settlor wanted the objects of general public utility in Hyderabad to be preferred and in that sense the document discloses a desire to prefer the objects of general public utility situated within the territorial limits of Hyderabad. But it is plain that it was farthest from the mind of the settlor to impose a limitation that the objects of general public utility should be confined to those recognised as such by Muslim law. It is thus clear that the outstanding feature of the trust disclosed by these provisions is plainly inconsistent with the concept of a wakf and that itself would Rule out the view that the document creates a wakf and not a comprehensive public charitable trust. 18. It is true that a large number of provisions contained in the document are consistent with the view that the document creates a wakf as much as they are consistent with the view that it creates a public charitable trust as distinguished fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l with the property in any manner they like, as well as clauses 18 and 24 which clothe them with authority to employ servants in their uncontrolled discretion and to appoint a Committee for management of the Trust, become more easily intelligible. In this connection, we may also notice the fact that the appointment of non-Muslims as trustees which is prohibited by the Act, is an indication that the Settlor did not regard the trust as falling within the said statutory prohibition; likewise, the scheme of management of the trust which the trustees are given liberty to adopt in administering the trust, is completely free from the Regulations based on Muslim law which the relevant Sections of the Act have prescribed. These several features of the trust support the conclusion that the trust is not a wakf and does not fall within the provisions of the Act. We have carefully considered all the relevant provisions of the document and we are satisfied that on a fair and reasonable construction, the document must be held to have created a trust for public charitable purposes, some of which are outside the limits of the wakf and so, the conclusion is inescapable that the trust created is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bar to a Mohammedan creating a simple English trust. It is not always necessary that in order to make a settlement of his properties, a Mohammedan has always to create a wakf. In fact, the said view has been expressed in a Division Bench decision of the Madras High Court in Kassimiah Charities Rajagiri v. Secy., Madras State Wakf Board [AIR 1964 Mad 18]. In the said case, while confronted with a similar question, the Division Bench observed that a Muslim can endow properties to charities either by adopting his favourite mode of creating a wakf or by endowing property conforming to the law of trusts. The question whether a particular endowment amounts to a wakf under the Mohammedan law or to a trust as recognised by modern jurisprudence, will have to be decided primarily on a true construction of the document establishing the charity. However, it has also been stated in the said decision that vesting of a power of alienation by way of exchange or sale under the document creating wakf is not inconsistent with the document constituting a wakf under the Muslim law. A dedication to a wakf will not, therefore, cease to be such merely because a power is reserved in the Mutwalli to exchang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to trusts to distribute prizes taken in war among the captors; and nothing in the second Chapter of this Act applies to trusts created before the said day. 119. It is, therefore, clear that nothing in the Trust Act would apply to the Wakf. Nor would the provisions of the Trust Act as such apply to public or private religious or charitable Trusts. 120. We may at this stage explore the law as it obtains in England in relation to public charities. The leading work on charities is Tudor on Charities (8th Edition). We deem it appropriate only to refer to certain aspects. The prevailing law as we understand in England is the Charities Act, 1993. We may refer to the connotation of the expression 'charity' and how it has been understood by the learned author at page 1: "For the purposes of the Charities Act 1993, "charity" means "any institution, corporate or not, which is established for charitable purposes and is subject to the control of the High Court in the exercise of the court's jurisdiction with respect to charities"; "institution" includes any trust or undertaking, and "charitable purposes" means "purposes which are ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso notice the oft-quoted enunciation of the four heads by Lord Macnaghten in the case of Income Tax Special Purposes Commissioners v. Pemsel (1891) A.C. 531, 583. The four heads have been classified as follows: (1) The relief of poverty; (2) the advancement of education; (3) The advancement of religion; (4) Other purposes beneficial to the community not falling under any of the preceding heads. 122. We may also notice as regards the fourth head, the following discussion: "On the other hand, Lord Macnaghten said that trusts falling under the fourth head "are not the less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed every charity that deserves the name must do either directly or indirectly...." 123. As regards the requirement of perpetuity in regard to a charitable trust, since we found a contention raised in the submissions of Dr. Singhvi that a charitable trust need not be perpetual, we find the following discussion under the head Duration: "A Charitable trust may be made to endure for any period which the author of the trust may desire. It may therefore be created for the application of the income i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in English law, is unknown in the Hindu System, pure and simple (J.G. Ghose, "Hindu Law," p. 276). Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind, and for all purposes considered meritorious in the Hindu social and religious system; to brahmans, goswamis, sanyasis, etc. When the gift was to a holy person, it carried with it in terms or by usage and custom certain obligations. Under the Hindu law the image of a deity of the Hindu pantheon is, as has been aptly called, a juristic entity," vested with the capacity of receiving gifts and holding property. Religious institutions, known under different names, are regarded as possessing the same "juristic" capacity, and gifts are made to them eo nomine. In many cases in Southern India, especially where the diffusion of Aryan Brahmanism was essential for bringing the Dravidian peoples under the religious Rule of the Hindu system, colleges and monasteries under the names of math were founded under spiritual teachers of recognized sanctity. These men had and have ample discretion in the application of the funds of the instit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ordinary mutawalli. But neither the sajjadanishin nor the mutawalli has any right in the property belonging to the wakf; the property is not vested in him and he is not a "trustee" in the technical sense. It was in view of this fundamental difference between the juridical conceptions on which the English law relating to trusts is based and those which form the foundations of the Hindu and the Mahommedan systems that the Indian Legislature in enacting the Indian Trusts Act (II. of 1882) deliberately exempted from its scope the Rules of law applicable to wakf and Hindu religious endowments. Section 1 of that Act, after declaring when it was to come into force and the areas over which it should extend "in the first instance," lays down, "but nothing herein contained affects the Rules of Mahommedan law as to wakf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments..... " Section 3 of the Act gives a definition of the word "trust" in terms familiar to English lawyers. It says: "A 'trust' is an obligation an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in section. The reason was that according to the customary law, where property was dedicated to a Hindu idol or mutt or to a Mohammedan wakf, the property vested in the idol or the institution or God, as the case may be, directly and that the shebait, mahant, mutawalli or other person who was in charge of the institution was simply a manager on behalf of the institution. As Section 10 did not apply unless these persons were trustees this judgment made recovery of properties of the above trusts from donees, from these managers, rather difficult. 37. The legislature therefore intervened and amended Section 10 for the purpose of getting over the effect of the above judgment. The Statement of Objects and Reasons to the Bill of 1929 makes this clear. It says: "The (Civil Justice) Committee's recommendation refers, it is understood, to the decisions of the Privy Council in Vidya Varuthi v. Baluswami AIR 1922 PC 123 : ILR 44 Mad 831] and Abdur Rahim v. Narayan Das Aurora [(1922) 50 IA 84] which lay down that a dharmakarta, mahant or manager of a Hindu religious property or the mutawalli or sajjadanashin in whom the management of Mohammedan religious endowment is vested, are not tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers of a trustee. He would contend that in the case of a Wakf, the dedication must be perpetual and irrevocable. We have already noticed that this proposition is only to be accepted and save as we have noticed in the case of a Wakf by a will which is revocable during the lifetime of the maker dedication is to have effect immediately and it is not transient. The reason is that the reward is believed to be given immediately as the dedication is made. No doubt, in the case of a will, during his lifetime it is open to revoke it but otherwise a Wakf must indeed be perpetual and irrevocable. A trust need not be perpetual and can be revoked in certain conditions submits Dr. Singhvi. We have noticed the passage from Tudor on Charities which appears to suggest that the requirement of perpetuity in a Wakf may not attach itself invariably to a public charity or a public charitable trust. It is a matter essentially to be decided on the terms of a document, if there is any. 129. Next, it is contended that in the case of a Wakf, property is inalienable whereas in the case of a Trust, a trustee is free to alienate the trust property. Though the Trust Act is not applicable in the case of a pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e waqf for acquisition of a property by a mutawalli in the name of his wife would amount to a breach of trust and the property so acquired would be treated as waqf property. A mutawalli is not allowed to sell, mortgage or lease the waqf property unless he obtains permission of court which has the general powers controlling the actions of mutawalli. Save and except as recognised by any custom, the law does not favour the right to act as mutawalli becoming heritable. When the mutawalli dies and the waqif is still alive, he possesses the right to appoint another and in his absence his curator and in the absence of both, the Court appoints the successor mutawalli. Mutawalli has no ownership rights or estate in the waqf property, he holds the property as a manager for fulfilling the purpose of waqf. Even a Sajjadanashin, who has larger interest in the usufruct has no right in the property endowed. These features distinguish a mutawalli from a shebait. The elements which render shebait-ship a property, are absent in mutawalli-ship and mutawalli-ship is an office." 132. Therefore, whatever may have been the position prior to 1995, under the Act, a sale is absolutely prohibited. We draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II, 218-219. These are: "(1) it must be perpetual; (2) absolute and unconditional; (3) possession must be given to the mowkoof (beneficiary) of the thing appropriated; and (4) it must be taken entirely out of the waqif or appropriator," The last condition has been expressed in direct and homely language by saying that the waqif must not eat out of the waqf. The case was one in which the settlor under the colour of fixing her salary as mutawalli really reserved for herself a portion of the income very much in excess of the salary fixed for future mutawallis. The case was not decided on this ground but the waqf was held to be invalid as the settlor had not parted with possession so as to comply with the third condition set out above. But though a Shia cannot provide for his own maintenance out of the waqf property he may provide for the maintenance of his family, children and dependants. This is recognised in s. (a) of the Wakf Act. But a Shia may provide for the expenses of Roza, Namaz, Haj, Ziarat, etc. to be performed after his death for his spiritual benefit. He may also reserve a life interest for a beneficiary in the usufruct of the property if the intention that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, would be that in the case of a Mutawalli of a Wakf or Manager of a Wakf or other person in charge of a Wakf, he can only be the manager of the property. This distinction we must not overlook forms the subject matter of the discussion in paragraph 20 of the judgment of this Court in Nawab Zain Yar Jung (Since Deceased) and Ors. v. Director of Endowments and Anr. (supra) which we have referred to. We have noticed that in the said case what was involved was a trust deed where property was vested with the trustee, no doubt, for the purposes mentioned therein. It is this which must indeed be the indispensable hallmark to distinguish a Trust from a Wakf. This distinction cannot be overlooked. A power of sale, being located appears incompatible with a Wakf but the same is not incongruous with a Trust. 136. It is true as contended by Mr. Gopal Sankarnarayanan, learned Senior Counsel, that with the amendment to Section 3(a) by giving a secular flavour to the definition of the word Beneficiary meaning thereby that the condition that the beneficiary must only belong to the Muslim community being removed, it has restored the law which it always was, viz., that in a case of a Wakf whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did attempt to persuade us to hold that with the amendment carried out to Section 3(a) way back in 1964 to the word 'beneficiary', little remains to distinguish a public Trust from a Wakf. At first blush, the argument may sound attractive. The argument is that since there can be a Wakf and the object of the wakf can be attainment of public utility and if the beneficiaries of the trust can belong to any faith and only requirement is that the object must be one which is sanctioned by Muslim law, then every public charitable Trust would be capable of being categorized as a Wakf. In other words, the argument appears to be premised on eschewing of the exterior and exploration of the very fundamentals of the transaction. The use of the word Trust by itself, it may be true cannot be decisive of the issue. The absence of the word Wakf is equally not determinative. It is a matter which must be considered with reference to the document, if any, the conduct of the parties and all other relevant aspects. 138. In this regard, he sought to draw our attention to the judgment of the High Court of Madras reported in AIR 1973 Madras 191. It is true that in the said case, the Court has refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property in question is not a Muslim Wakf. This is so according to learned Counsel because if beneficiary of an amenity includes anybody other than Muslim, it can be anything but a Muslim Wakf. It may be a public charity or a public trust, but beneficiary if includes non-Muslim it becomes of secular character which is not envisaged object of a Muslim Wakf. Reference was made to decision of Supreme Court in Nawab Zain Yar Jung v. Director of Endowments AIR 1953 SC 985 as well as Board of Muslim Wakf v. Radha Kishan (1979) 2 SCC 468 : AIR 1979 SC 289. This plea was raised apart from contending that Respondents have failed to prove that property was dedicated by a Muslim and was so dedicated to almighty as to vest the same in Him. I am prima facie of the view that both the parties have laboured under common impression that if the Muslims are only users of property it be treated as a Muslim Wakf and in the process necessary material in this regard for deciding the issue about existence of Wakf, if so, its nature and beneficiary who could claim right to its benefit had also not been brought on record. 62. The decisions in Nawab Zain Yar Jung (AIR 1963 SC 985) or other contemporar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or other may itself furnish some evidence of object. 140. Lastly, the judgment in Indian Institute of Islamic v. Delhi Wakf Board 2011 SCC OnLine Del 5567 of the High Court of Delhi speaking through Hon'ble Mr. Justice S. Ravindra Bhat, as His Lordship then was, is also placed before us. Therein, in fact, we may only notice after considering the case law on the point which included the decision of this Court in Nawab Zain Yar Jung (Since Deceased) and Ors. v. Director of Endowments and Anr. (supra) and the changes brought about in the law, it was inter alia held as follows: "66. It is thus clear - from the above discussion, that for a dedication to be a wakf it is not necessary that the benefit should flow only to Muslims, or a specific Section of the community; as long as the object of the dedication is the performance of a task, or function, which is considered to be charitable, under Muslim law, and the property, asset or thing is permanently dedicated. Here, it would be essential to go into what exactly is a "permanent dedication". The Privy Council, in one of its earlier decisions, i.e. Jewen Doss Sahoo v. Shah Kubeer-ood-deen ((1840) 2 MIA 390) explained the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 64, amending the words 'Beneficiary' making clear what was always the correct principle of Muslim law that fruits of a Wakf is not to be cribbed cabined and confined to the Muslim community would in the context of the object being public utility, narrow down the distinction between a trust and a wakf. In this regard, the aspect reflected in para 17 of the judgment of this Court in AIR 1963 SC 985 would indicate that the court was bearing in mind the injunction in Section 3(a) defining beneficiary in the unamended form. It does indicate that on the criteria of the unamended provisions of Section 3(a), the court found it to be not a wakf. The nomenclature and the form of the document can be indicative but not decisive. 143. Having held that there is a distinction between a public charitable Trust and Wakf, we must now move on to consider a more vexed issue and the controversy is this. Whether the survey which was conducted in the case Under Section 4 was valid and whether the list which was published on 13.11.2003 should have been interfered with? 144. It is an admitted case that the Act came into force on 01.01.1996. A person was appointed to carry out the survey by proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veral 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 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 respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). 145. 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 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. 146. We may at this juncture venture to notice the findings which 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: (2) The Board shall examine the report forwarded to it Under 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. 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 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. 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 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 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." "12. Upon the enforcement of the Wakf Act, 1995 it has become necessary for the Charity Commissioner's office to bifurcate such Muslim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioners state that their 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." 148. 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. 149. 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 institutions which were Wakfs. One way to look at the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. 154. After the filing of the writ petitions, on 11.08.2004 a meeting was held and we have already extracted the deliberations in paragraph 6 of this judgment. 155. 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. 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. 156. We have already adverted to what happened on 09.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Tribunal 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 in Radha Krishan Industries v. State of H.P. (2021) 6 SCC 771. 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) the order or pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 160. 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 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." 161. 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) sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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. 164. The Board must consist of a minimum of seven members. 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 are specified, the constitution of the Board was in breach of the injunction, which has democratic underpinnings, viz., that the elected members Under 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. 165. The answer of the Appellants ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the 1950 Act, who registered or registers a public Trust Under Section 18 of that Act. 168. 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 '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 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. 169. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined 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. 173. 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: 174. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. 178. 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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. 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. 180. We cannot be totally oblivious to the ground realities and we must also state our opinion on the legal position. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 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 the principle in Nawab Zain Yar Jung (Since Deceased) and Ors. v. Director of Endowments and Anr. (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. 185. 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 interfere otherwise with the judgment of the High Court. 186. 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 Board in the matter of discharge of its functions. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct is concerned. 193. In such circumstances, we dispose of the appeals as follows: The appeals are partly allowed. 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: 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 thos ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
