9911796707
TMI Blog2022 (10) TMI 1183X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 of 2012), Civil Appeal No. 7910 of 2022 (Arising out of SLP (C) No. 19716 of 2012), Civil Appeal No. 7909 of 2022 (Arising out of SLP (C) No. 19717 of 2012), Civil Appeal No. 7908 of 2022 (Arising out of SLP (C) No. 19920 of 2012), Civil Appeal Nos. 7898-007907 of 2022 (Arising out of SLP (C) Nos. 19726-19735 of 2012), Civil Appeal Nos. 7896-007897 of 2022 (Arising out of SLP (C) Nos. 19719-19720 of 2012) (IX), Civil Appeal No. 7895 of 2022 (Arising out of SLP (C) No. 19725 of 2012), Civil Appeal No. 7894 of 2022 (Arising out of SLP (C) No. 19724 of 2012), Civil Appeal No. 7893 of 2022 (Arising out of SLP (C) No. 19759 of 2012), Civil Appeal No. 7892 of 2022 (Arising out of SLP (C) No. 35760 of 2012), Civil Appeal No. 7891 of 2022 (Arising out of SLP (C) No. 19775 of 2012), Civil Appeal No. 7890 of 2022 (Arising out of SLP (C) No. 35759 of 2012), Civil Appeal No. 7889 of 2022 (Arising out of SLP (C) No. 35777 of 2012), Civil Appeal No. 7888 of 2022 (Arising out of SLP (C) No. 35776 of 2012), Civil Appeal No. 7887 of 2022 (Arising out of SLP (C) No. 19781 of 2012), Civil Appeal No. 7886 of 2022 (Arising out of SLP (C) No. 19736 of 2012), Civil Appeal Nos. 7884-7885 of 2022 (Arisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mujahid Ahmad, Rizwan Ahmad, Syed Ahmed Saud, Daanish Ahmed Syed, Mohd. Parvez Dabas, Uzmi Jameel Husain, Aqib Baig, Mohd. Shahib, Advs., Shakil Ahmad Syed, AOR, S.M. Jadhav, Brij Kishor Shah, Adarsh Kumar Pandey, Shivani Rautela, Apurva, Satayam Singh, Advs., Vinay Navare, Sr. Adv., Yusuf Baugwala, Sana Baugwala, Gwen Karthika, Advs., Abha R. Sharma, Sachin Patil, AORs, Rahul Chitnis, Siddharth Dharmadhikari, Advs., Aaditya Aniruddha Pande, AOR, Bharat Bhagla, Adv., Gagan Gupta, Bina Gupta, K.N. Rai, Shirish K. Deshpande, A. Radhakrishnan, Gaurav Agrawal, Shishir Deshpande, AORs, Nilakanta Nayak, Amit Yadav, Advs., Sakya Singha Chaudhuri, AOR, P.N. Puri, AOR, Rudreshwar Singh, Kaushik Poddar, AOR, Isha Singh, Adv., Harish N. Salve, Dama Sheshadri Naidu, Sr. Advs., K.R. Sasiprabhu, AOR, Mahesh Sahasranaman, Amey Nabar, Vishnu Sharma A.S., Shivali Chaudhary, Tushar Bhardwaj, Prakhar Agarwal, Advs., Balaji Srinivasan, AOR, Amol Chitale, Adv., Nirnimesh Dube, AOR, Yusuf Hatim Muchhala, Sr. Adv., Ejaz Maqbool, AOR, Pravartak Pathak, Nandini Deshpande, Yuvraj Satpute, Adv., Ankita Chaudhary, AOR, Sagheer A. Khan, G.D. Shaikh, Saif Zia, Advs., Sunil Kumar Verma, AOR, Abhishek Manu Singhv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit Petitioners before the High Court are Public Trusts or they are in essence or in substance, Wakfs under the Mohammedan Law. The Charity Commissioner under the Bombay Public Trust Act, 1950 (hereinafter referred to as '1950 Act' for brevity), makes his entry on the stage by issuing a circular dated 24.07.2003 which reads as follows: Dated: 24.07.2003 Sub: The Muslim Wakfs/Trusts registered with the Charity Commissioner, and as per Section 43 of the Wakf Act, 1995. CIRCULAR No. 307 DATED 24.07.2003 According to Section 43 of the Wakf Act, 1995 Wakfs registered as Public Trusts should not be tried under the Bombay Public Trust. Further orders may be awaited. Sd/- The Charity Commissioner Maharashtra State, Mumbai 24.07.2003 Section 43 of Act is as follows: Section 43 Wakfs registered before the commencement of the Act demand to be registered - Notwithstanding anything contained in this Chapter, where any wakf has been registered before the commencement of this Act, under any law for the time being in force, it shall not be necessary to register the Wakf under the provisions of this Act and any such registration made before such commencement shall be dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el the notification declaring the list of Wakf which are published on 13.11.03, the said notification is not only full of mistakes but highly malicious. (2) direct the Wakf Board to have a fresh survey done properly ascertaining Shiya and Sunni Wakf Boards and have the Survey monitored by a competent and judicious senior officer. (3) form a fresh Wakf Board after proper survey is concluded. In the meeting it was discussed as to whether the Wakf Board is constituted legally as per the provisions of Wakf Act, 1995 and whether it is possible for the Government and the Wakf Board to have a fresh survey ascertaining Shiya Wakf and Sunni Wakf and whether it is necessary to form a fresh the Wakf Board. Following resolutions have been passed in the meeting: (1) It is decided to constituted a committed under the Chairmanship of Charity Commissioner including the two members from the Wakf Board and two member of Charity Commissioner. This committee will study the work of charity organisations and Wakf Board constituted in Andhra Pradesh, Karnataka and Uttar Pradesh and decide which of the muslim trust registered under the Bombay Public Trusts Act, 1950 are covered under the Wakf Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 9. On 09.03.2005, the Board passed a resolution. It reads as follows: "Charity Commissioner may be requested to transfer bifurcated Wakfs also with records of the Charity Commissioner, numbering 918 from 1Mumbai Co. the Wakf Board and keep with Charity Commissioner 755 Trusts. Also it is resolved to accept the list of Pune District wherein 379 Wakfs are identified and 84 Trust. The Charity Commissioner may be requested to transfer record and proceeding of 379 Wakfs to Wakf Board and keep with his 84 Trust, rest identification may be completed, this transfer is subject to Boards Rights to consider matters Under Section 40 of the Wakf Act, 1995." 10. The Board, thereafter, issued a corrigendum purporting apparently to act in terms of the resolution dated 09.03.2005. The corrigendum had the effect of abridging the list of Wakfs which was published on 13.11.2003. Most significantly, a number of Wakfs which were included in the List dated 13.11.2003 came to be excluded. On 13.04.2006, the State wrote to the Board referring to the letters of the Charity Commissioner in which the Commissioner presented a new classified list of Wakfs and Trusts. The Lists of Wakfs and Trusts were al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution No. 3 dated 9.3.2005, and the same was published on 5.5.2005. However, the Resolution No. 3 dated 9.3.2005 was cancelled and deleted by the Board in its meeting vide Resolution No. 17/2008 dated 3.4.2008, and confirmed on 27.5.2008. Hence the Corrigendum No. MSBW/REGISTRATION-73/1068/2005 published on 5.5.2005 stands automatically cancelled. Thus the original notification of List of Wakf Properties published on 13.11.2003 remains as it is. (S.S. ALI QUADRI) Chief Executive Officer Maharashtra State Board of Wakfs Aurangabad 12. The JPC gave a report on 23.10.2008 indicating that the list of Wakfs as far as the State of Maharashtra is concerned, was published. The next development is to be noticed in the form of a notification dated 20.10.2010. We may notice its contents at this juncture itself. ANNEXURE-P-26, MINORITIES DEVELOPMENT DEPARTMENT Mantralaya, Mumbai 400042, dated the 20th October 2010 NOTIFICATION WAKF ACT, 1995 No. Wakf-2009/C.R. 105/Desk-4. Whereas the Government of Maharashtra vide Government Notification, Revenue and Forests Department No. Wakf-1097/CR-95/L-3, dated the 1st December, 1999 and No. WAKF. 1097/CR-95/L-3, dated the 29th Sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the writ Petitioners was that here is a case where the cart was put before the horse. The law giver envisaged the conduct of survey of the Wakfs. A survey of Wakfs in terms of the Section 4 followed by the publication of the List Under Section 5 would reveal among other things, the number of Wakfs in the State. Even more importantly, the survey would yield the necessary inputs so that the duty which was cast on the Government Under Section 13 of the Act could be performed. Section 13, it is the finding of the High Court cast a mandatory duty on the Government to form two separate Boards viz., a Sunni Board of Wakf and a Shia Board of Wakf, if Section 13(2) was attracted. It was found by the High Court that Section 13(2) contemplated that if 15 per cent of the Wakfs were Shia Wakfs or the income from such Wakfs is in the excess of 15 per cent of the total income, the law mandates that there must be separate Wakfs for the Sunnis and Shias respectively. The High Court proceeded to find that Section 13 contemplates that the Board is a body corporate and has perpetual succession. It was found further that the Act does not contemplate a Board being formed Under Section 13(1) and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onducted, the writ Petitioners may be afforded an opportunity to place before the Survey Commissioner the report of the Committee under which the writ Petitioners apparently were identified as being actually public trusts. 19. Thereafter, the High Court, we may notice, in the context of the impact of the 1950 Act proceeded to make the following observations: THE APPEALS 20. The Appellants before us are the Board, State of Maharashtra and two others. 21. We heard Shri K.K. Venugopal, learned Senior Counsel appearing on behalf of the Board along with Mr. Javed Shaikh, Mr. Sudhanshu S. Choudhari, Ms. Suhasini Sen, Mr. Mahesh P. Shinde, Ms. Rucha A. Pande, Mr. Veeraragavan M. and Mr. Kamran Shaikh, learned Counsel. We have also heard Mr. Gopal Sankaranarayanan, learned Senior Counsel who also appeared for the Board. We have heard Shri Rahul Chitnis learned Counsel appearing on behalf of the State. Last, but not the least, we heard Shri Harish Salve, learned Senior Counsel appeared on behalf of the Respondents-writ Petitioners in C.A. No. 7830 of 2022 (@ SLP (C) No. 1132 of 2017) along with Mr. S. Mahesh Sahasranaman, Dr. Abhishek Manu Singhvi, learned Senior Counsel who appeared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alternate forum viz., the Tribunal Under Section 6 of the Act. No ground whatsoever existed to invoke the extraordinary jurisdiction of the High Court Under Article 226 of the Constitution. The question as to whether an institution is a Wakf or a public trust as the writ Petitioners claim is to be dealt with by the duly constituted Tribunal only. 25. He would submit that as far as the corrigendum which was issued on 05.05.2005 cutting down the width of the number of the Wakfs which was included in the original list dated 13.11.2003 is concerned, it was wrongly done. This fact was realised and the mistake came to be rectified as we have noticed in the narration of facts. 26. He would further contend that what JPC complained about was under-inclusion of the Wakfs. In other words, the JPC found that there were complaints about the large number of Wakfs which were left out in the List of 13.11.2003. This did not detract from the validity or the correctness of the List dated 13.11.2003. As regards Wakfs included therein, it is contended, therefore, there arose no occasion for the High Court to set aside the List dated 13.11.2003. As regards the other findings and directions which wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been a different regime created from the previous one which fell for consideration before this Court in the case reported in Nawab Zain Yar Jung (Since Deceased) and Ors. v. Director of Endowments and Anr. AIR 1963 SC 985. He would canvas for the position that having regard to the effect of the amendment brought about to the word 'beneficiary' in Section 3(a) of the Wakf Act 1954 and its continuance in the present Avtar in Section 3(a) again of the Act, the fundamental premise on which the decision of this Court in Nawab Zain Yar Jung (Since Deceased) and Ors. v. Director of Endowments and Anr. (supra) was rendered has been taken away. 32. In other words, according to him, in view of the fact that though prior to the amendment in 1964, the word beneficiary was defined in such a manner that a Muslim who purported to create a Wakf, the benefit of which was available to all without reference to religion was tabooed, after the amendment, a Wakf which has for its object any public utility which is sanctioned by Muslim law would pass muster as a valid Wakf. This has brought about a complete change in the concept of Wakf and what is more important, its repercussions are pronoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1950 Act, being Wakfs prior to the 1950 Act. In that case, there can be no complaint at all as they would qualify as Wakfs even under the Act. This is for the reason once a wakf, always a Wakf. 37. He would also point out that Wakfs, which are registered under any law, are Under Section 43 of the Act to be deemed registered under the Act. Even they cannot have any complaint. He drew our attention also to the judgment of this Court in Ramjas Foundation and Anr. v. Union of India and Ors. (2010) 14 SCC 38 (paragraph 31) to contend that it is not the law that the Wakfs can be created only by Muslims and non-muslim can also create a Wakf. The only limitation is that it must be permitted by law or countenanced by the law applicable the person who is a non-muslim to create such Wakf. He further contends, however, that there is a distinction between Public Trust and Wakf and the charity commissioner was not justified in making over all the Muslim trusts and what is more, it was clearly impermissible for the Wakf Board to act on the same and include them as Wakfs under the Act. 38. Dr. A.M. Singhvi, learned Senior Counsel, would stoutly contest the case of the Appellants by pointing out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Board was not properly constituted having regard to the requirements of distinct categories from which the members must be drawn from for the valid composition of the Board. The survey report, he insists is a sine qua non and must be a prelude to the valid incorporation of the Board which discharges solemn functions which includes the power of superintendence Under Section 32, power of registration Under Section 36, maintenance of register Under Section 37 and power of the Board Under Section 40 to decide the matters mentioned therein. He raised a serious challenge to the composition of the Board and complains that it was illegal. 41. The list notified on 13.11.2003 was afflicted with various discrepancies which are highlighted. He further dwells upon the developments following the Government's decision to constitute Bifurcation Committee. After taking us through the report, meetings, resolutions, corrigendum and notifications, it was contended that after the list of 13.11.2003, modified list was issued on 05.05.2005 which is completely based upon the resolution dated 09.03.2005 which in turn has its premise in the meeting which took place on 11.08.2004. All of it toget ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il certain legal attributes. It cannot encompass all Trusts created by a Muslim. The 1950 Act is a secular law and there is no known principle that would compel a person to follow a customary law and deprive him of his rights under the secular law to create charity. The Constitution preserves customary rights but did not take away the benefits available to members of any community or faith under the secular law. He draws upon the judgment of this Court in Mohd. Khasim v. Mohd. Dastagir and Ors. (supra) relied on by the Dr. Abhishek Manu Singhvi, learned Senior Counsel, as well. This is besides, of course, drawing our attention to the judgment of this Court in Nawab Zain Yar Jung (Since Deceased) and Ors. v. Director of Endowments and Anr. (supra). 44. He would point out that the Mutawalli has no ownership right or say in Wakf property. He is not in that respect a Trustee. In this regard, he draws support from Tyabji on Muslim law. A Mutawalli is not entitled to deal with, that is dispose of or transfer off property, property of a Wakf being inalienable. This is recognised Under Section 51 of the Act by the Amending Act 27 of 2013. A Wakf has three distinct features, viz., it is pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He would also submit that it would be wholly unfair and unjust for the Appellants to persuade this Court to retrace its steps at any rate from the list dated 05.05.2005. He would harp upon the fact that though power may be available Under Section 40 of the Act, it is noteworthy that the Section lay unutilised for a long period of time. Authorities have proceeded on the basis that the judgment of the High Court has reached justice to the parties and this Court may not interfere in the matter at any rate. He also has an alternate request that should this Court be persuaded to interfere in any manner, the rights of his parties may be protected with reference to the powers available to this Court Under Article 142 of the Constitution. 47. Mr. Y.H. Muchhala, learned Senior Counsel, submits that the Survey Commissioner acted illegally. The notification of the Board was illegal and lists dated 13.11.2003 and dated 30.12.2004 are not to be followed being illegal. Charity is permissible and possible for a Muslim without the creation of a Wakf. His case is in sync with the reasoning of the High Court that there would be a repeal of the 1950 Act only upon the creation of a valid machinery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to incorporate a Board to find out about the number of Sunni and Shia Wakfs. In this regard, he draws upon Section 14(6) of the Act and he would contend that thereunder, the members belonging to the Sunni and Shia sects are to be determined with reference to their numbers and value. Therefore, there must be some material if not the data revealed in the survey to give effect to the legislative intent contained in Section 14(6). He was at pains to take us through three affidavits to point out that there was admittedly no material to justify the Government to arrive at a conclusion that there is no need for a separate Shia Board to deal with the Wakfs of the Shias. 52. In reply, Shri Gopal Sankarnarayanan, learned Senior Counsel, would, in particular, point out that this is a case where during the survey Under Section 4, affected persons were served with a questionnaire and in this regard, he relies upon the very basis of the High Court which is the report of the JPC. 53. In other words, the JPC refers to the fact that questionnaires were dispatched. Therefore, he poses the question as to how would there be infraction of principles of natural justice occasioned. 54. He would furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rusts" in the Mussalman system may, for the sake of convenience be divided under three heads, that is, public, quasi-public and private. This will probably indicate the division adopted by the Arabian jurists, who group wakfs or trusts under the following three heads, viz: (a) Trusts in favour of the affluent and indigent alike (b) Trusts in favour of the affluent and then for the indigent (c) Trusts in favour of the indigent alone. Trust for public works of utility which are dedicated to the public at large though classed under the first head, have a distinctive name. They are called wakfs for Masalih-ul-aamma and differ in one feature from other Wakfs." 58. The wakif must be free. He must be an adult and sane. The property must be certain. The declaration need not be in a particular form. The dedication must however exist. The dedication must not be transient but it must be permanent. The dedication must be for purposes which are regarded as pious, charitable or religious as per Muslim Law. 59. A Wakf-alal-aulad is also a Wakf. In fact, we find the following statement in the work of Syed Ameer Ali (supra) at pages 213, 214 and 215: The word sadakah occurs so frequently in wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Wakf--alal-aulad however reached the Privy Council in Abul Fata Mahomed v. Russomoy (1894) 22 Cal. 619 : 22 I.A. 76. The Privy Council took the view that it could not be treated as a legitimate wakf if the property was to be enjoyed by the descendants without end and the dedication to charity was illusory or small. This led to considerable resentment among the Muslims. The Mussalman Wakf Validating Act, 1913 came to be passed. This legitimised the institution of Wakf-alal-aulad. Another Act came to be passed in the year 1930 which gave it retrospective effect. In the meantime, the Mussalman Wakf Act, 1923 came to be passed. The said Act came to be applied in the Bombay Presidency by the Mussalman Wakf (Bombay Amendment) Act, 1935 (XVIII of 1935). There were certain variations in the 1935 Act in the State of Bombay. The Act was again amended in 1945. 61. Bombay, it must be noticed was initially a Presidency being under the direct governance of the British Crown since the year 1859. In the year 1937, after the passing of the Government of India Act, 1935, the Bombay Presidency became a province in British India. With the advent of Independence and under the Constitution, Bombay b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the extent to which property is dedicated for any purpose so recognised was also a wakf which would qualify as a public trust. However, it did not include a wakf so described Under Section 3 of the Mussulman Wakf Validating Act 1913 under which any benefit is for the time being claimable for himself by wakif or for any member of the family or descendant. It is relevant and apposite to unravel the true purport of this definition. We would understand that what is covered as a public trust under the Bombay Public Trust Act is only a Muslim Public Trust. In this regard we would advert to the following declaration of the law contained in the judgment of this Court in AIR 1981 SC 798 at 799. 6....Similarly, even the Mahomedan law recognises the existence of a private trust which is also of a charitable nature and which is generally called waqf-allal-aulad, where the ultimate benefit is reserved to God but the property vests in the beneficiaries and the income from the property is used for the maintenance and support of the family of the founder and his descendants. In case the family becomes extinct then the waqf becomes a public waqf, the property vesting in God. A public waqf un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period exceeding three years in the case of non-agricultural land or a building, belonging to public trust, shall be valid without the previous sanction of the Charity Commissioner. (2) The decision of the Charity Commissioner Under Sub-section (1) shall be communicated to the trustees and shall be published in such manner as may be prescribed. (3) Any person aggrieved by such decision may appeal to the Gujarat Revenue Tribunal within thirty days from the date of its publication. (4) Such decision shall, subject to the provisions of Sub-section (3) be final." 66. What is relevant from Section 36 is that in the case of a public trust which includes a wakf under the Bombay Public Trust Act, the property of the wakf can be sold, the only requirement thereunder being the previous sanction of Charity Commissioner. We may at this juncture observe that it does not harmonise with one of the indispensable requirements of a wakf under the Act that the property of the wakf cannot be alienated. Section 37 deals with the power of inspection and supervision. 67. Section 38 deals with explanation being given by the trustees to the Charity Commissioner. Section 41A to 41E deals with var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch were vested in and exercised by the Court under the Mussalman Wakf Act, 1923 as amended by the Mussalman Wakf (Bombay Amendment) Act, 1935, and by the Registrars under the Bombay Public Trusts Registration Act, 1935, and the Parsi Public Trusts Registration Act, 1936, and shall pass such orders as may be just or proper. (5) All records maintained by the authority or Court under any of the Acts referred to in Sub-section (4) shall be transferred to the Charity Commissioner or to the Deputy or Assistant Charity Commissioner as the Charity Commissioner may direct. 69. Section 86 provides for further repeals and savings. Section 85 refers to Schedule A. We may notice that the Mussalman Wakf Act of 1923 is one of the laws which is referred to in the said Schedule. 70. Section 87 declares that the Act will not apply to the Marathwada region. This is for the reason that it came under the ambit of the Wakf Act, 1954. 71. As we have noticed, the Wakf Act 1954 was perceived as an evolution of the earlier Act. It was specifically intended to introduce uniformity in matters relating to wakfs all over the country. But the fact remains that in view of the conditional legislation containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that on the publication of the list of wakf properties, any 'person interested in the wakf' could seek relief from the Court which was contemplated in Section 6 of the Act. The Act was amended on three occasions. There were complaints about the results which the Act of 1954 was able to produce. This finally paved the way for the passing of the Act with which we are concerned. It is passed in the year 1995. It came into force on 1.1.1996. This time around the State of Bombay which since 1960 had become the present State of Maharashtra which included the 'Marathwada region' also came under the regime of the Act. 75. Section 2 of the Act reads as follows: 2. Application of the Act. -- Save as otherwise expressly provided under this Act, this Act shall apply to all auqaf whether created before or after the commencement of this Act: Provided that nothing in this Act shall apply to Durgah Khawaja Saheb, Ajmer to which the Durgah Khawaja Saheb Act, 1955 (36 of 1955) applies. (Emphasis supplied) 76. It is at once to be noticed that the Act shall apply to wakfs which were created 'before the Act' was passed and it is also to apply to wakfs which were brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans any person making such dedication;" 79. Section 4 of Wakf Act, 1995, which is at the centre stage of controversy must be adverted to: 4. Preliminary survey of auqaf.-- (1) The State Government may, by notification in the Official Gazette, appoint for the State a Survey Commissioner of Auqaf and as many Additional or Assistant Survey Commissioners of Auqaf as may be necessary for the purpose of making a survey of 3 auqaf in the State. 1A) Every State Government shall maintain a list of auqaf referred to in Sub-section (1) and the survey of auqaf shall be completed within a period of one year from the date of commencement of the Wakf (Amendment) Act, 2013 (27 of 2013), in case such survey was not done before the commencement of the Wakf (Amendment) Act, 2013: Provided that where no Survey Commissioner of Waqf has been appointed, a Survey Commissioner for auqaf shall be appointed within three months from the date of such commencement. (2) All Additional and Assistant Survey Commissioner of Auqaf shall perform their functions under this Act under the general supervision and control of the Survey Commissioner of Auqaf. (3) The Survey Commissioner shall, after making suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) On receipt of a report Under Sub-section (3) of Section 4, the State Government shall forward a copy of the same to the Board. (2) The Board shall examine the report forwarded to it Under Sub-section (1) and forward it back to the Government within a period of six months for publication in the Official Gazette] a list of Sunni auqaf or Shia auqaf in the State, whether in existence at the commencement of this Act or coming into existence thereafter, to which the report relates, and containing such other particulars as may be prescribed. (3) The revenue authorities shall-- (i) include the list of auqaf referred to in Sub-section (2), while updating the land records; and (ii) take into consideration the list of auqaf referred to in Sub-section (2), while deciding mutation in the land records. (4) The State Government shall maintain a record of the lists published Under Sub-section (2) from time to time. 81. Sections 6 and 7 reads as follows: 6. Disputes regarding auqaf.-- (1) If any question arises whether a particular property specified as waqf property in the list of auqaf is waqf property or not or whether a waqf specified in such list is a Shia waqf or Sunni waq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement: Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question. (2) Except where the Tribunal has no jurisdiction by reason of the provisions of Sub-section (5), no proceeding under this Section in respect of any waqf shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding. (3) The Chief Executive Officer shall not be made a party to any application Under Sub-section (1). (4) The list of auqaf and where any such list is modified in pursuance of a decision of the Tribunal Under Sub-section (1), the list as so modified, shall be final. (5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qf shall, without prejudice to the provisions of this Act or any other law for the time being in force, be established within six months from the date of commencement of the Wakf (Amendment) Act, 2013 (27 of 2013). (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. (2A) Where a Board of Waqf is established Under Sub-section (2) of Section 13, in the case of Shia waqf, the Members shall belong to the Shia Muslim and in the case of Sunni waqf, the Members shall belong to the Sunni Muslim. (3) The Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officers of the State Government not below the rank of Joint Secretary to the State Government; (1A) No Minister of the Central Government or, as the case may be, a State Government, shall be elected or nominated as a member of the Board: Provided that in case of a Union territory, the Board shall consist of not less than five and not more than seven members to be appointed by the Central Government from categories specified Under Sub-clauses (i) to (iv) of Clause (b) or Clauses (c) to (e) in Sub-section (1): Provided further that at least two Members appointed on the Board shall be women: Provided also that in every case where the system of mutawalli exists, there shall be one mutawalli as the member of the Board. (2) Election of the members specified in Clause (b) of Sub-section (1) shall be held in accordance with the system of proportional representation by means of a single transferable vote, in such manner as may be prescribed: Provided that where the number of Muslim Members of Parliament, the State Legislature or the State Bar Council, as the case may be, is only one, such Muslim Member shall be declared to have been elected on the Board: Provided further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when it becomes appropriate. 89. Section 36 falls under Chapter V and deals with registration of wakfs. Section 39(1) must be referred to as a prelude to the scope of Section 40, which latter provision is, pari materia with Section 27 of the Wakf Act, 1954. Section 39 inter alia reads as under: 39. Powers of Board in relation to auqaf which have ceased to exist. -- (1) The Board shall, if it is satisfied that the objects or any part thereof, of a waqf have ceased to exist, whether such cesser took place before or after the commencement of this Act, cause an inquiry to be held by the Chief Executive Officer, in the prescribed manner, to ascertain the properties and funds pertaining to such waqf. 90. Section 40 reads as follows: 40. Decision if a property is wakf property.-- (1) The Board may itself collect information regarding any property which it has reason to believe to be waqf property and if any question arises whether a particular property is waqf property or not or whether a waqf is a Sunni waqf or a Shia waqf, it may, after making such inquiry as it may deem fit, decide the question. (2) The decision of the Board on a question Under Sub-section (1) shall, unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here such graveyard has been leased out before the date of commencement of the Wakf (Amendment) Act, 2013 (27 of 2013). (1A) Any sale, gift, exchange, mortgage or transfer of waqf property shall be void ab initio: Provided that in case the Board is satisfied that any waqf property may be developed for the purposes of the Act, it may, after recording reasons in writing, take up the development of such property through such agency and in such manner as the Board may determine and move a resolution containing recommendation of development of such waqf property, which shall be passed by a majority of two-thirds of the total membership of the Board: Provided further that nothing contained in this Sub-section shall affect any acquisition of waqf properties for a public purpose under the Land Acquisition Act, 1894 (1 of 1894) or any other law relating to acquisition of land if such acquisition is made in consultation with the Board: Provided also that-- (a) the acquisition shall not be in contravention of the Places of Public Worship (Special Provisions) Act, 1991 (42 of 1991); (b) the purpose for which the land is being acquired shall be undisputedly for a public purpose; (c) no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment) Act, 1984 (69 of 1984) are hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the said Acts shall be deemed to have been done or taken under the corresponding provisions of this Act. (3) If, immediately before the commencement of this Act, in any State, there is in force in that State, any law which corresponds to this Act that corresponding law shall stand repealed: Provided that such repeal shall not affect the previous operation of that corresponding law, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under the corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act was in force on the day on which such things were done or action was taken. 97. Having set out the salient provisions of the Act, the time is ripe for us to consider the contentions of the parties. The first contention which has been raised relates to the very incorporation of the Board. The incorporation of the Board is an essential feature for the working of the Act. This is for the reason that the Board is the fulcrum around which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o right or authority to do. They confer a faculty or power and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so." 101. Bearing in mind the tests which have been laid down, we must pose the question as to whether there is anything in the object or in the context that requires of us to not give 'may' its ordinary meaning which undoubtedly implies only a discretion. The search for the object in the context undoubtedly transports us to explore the difference between Sunnis and Shias. 102. The principle sect of Muslims in India are undoubtedly Sunnis. This is by way of population. The differences between Sunni and Shia have a historical background. Though it may be true that it may have originated on the basis of the 'infallibility' which is attributed to the twelvers or the 12 Ima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act may now be considered. Section 4 deals with the power to order a survey. The survey is to be a survey in the State. The Surveyor is to submit a report. The report is to be submitted to the Government. The Government receives the report Under Section 4(3). Section 4(3) does not speak of any other duty on the part of the Government on receipt of the report except to forward it to the Wakf Board. This takes place Under Section 5 of the Act. The question which naturally arises, if a survey is to precede, the incorporation of Board then how can the Board be consulted? How can the Board then publish it, if it is not in existence before the survey? The High Court has proceeded to deal with it by stating that upon receipt of the survey report, it is not necessary to immediately send it over to the Board. The learned Counsel for the Respondents would also emphasise before us that the view which would occasion a harmonious operation of all the provisions of the Act and fulfilling its object would be to adopt the following course. Upon receipt of the report by the Government Under Section 4(3), the Government can constitute the Board Under Section 13. When it does this, it does justice t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Sunni or Shia members in the Board and other circumstances, it appears to the Board that the power should not be exercised by such members only, it may co-opt such other Muslims being Sunnis or Shias, as the case may be, as it thinks fit, to be temporary members of the Board for exercising its powers under this clause;" This again indicates that the legislature has put in place a definite scheme and contemplated co-opting temporary Members of the two sects, where it was felt necessary. Equally, noteworthy is the fact that Section 14(5) which was omitted only under Act 27 of 2013 and was therefore relevant at the time when the High Court passed the impugned judgment provided for the appointment of one Shia member in the case of the Composite Board. Under Section 14(6) is concerned, it may be true that at the time of constitution of the Board, the number of Wakfs and the 'value' of the Wakfs is to be considered. What Section 14 says is with regard to establishment of Boards, the Government shall have regard to the number and value of the Shia and Sunni Wakfs to be administered by the Board. We notice Gopal Sankaranarayanan's argument about the distinction betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. We may notice the role of the Board at the stage of Section 5(2). The Board 'examines' the report which is sent by the Government. We may notice and find that there is no requirement in law contrary to the contentions raised by the writ Petitioners that the report furnished by the survey commissioner to the Government Under Section 4(3) must be published. However, the Wakf Board is duty bound to 'examine' the contents of the report sent to it and it can indeed make changes which may be necessary and once the Wakf Board resolves to bring out the list, the list is to be published. This is made subject to any modification which may be made by the Tribunal Under Section 6 of the Act. This in our view is essential to understand the purport of Section 13(2) of the Act as well. That is to say that when the legislature has contemplated the creation of separate Wakf Boards for Sunnis and Shias on the basis of the number of Wakfs, Shia Wakfs being in excess of 15 per cent of the total number of wakfs or the income from Shia Wakfs being in excess of 15 per cent of the total income of the Wakfs, it is the list which has been considered and published by the Wakf Board Under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the constituent elements of a Wakf. From the definition which is available in the Act, the first indispensable requirement is that there must be dedication. Dedication must be by a person who is the owner of the property. Dedication must be permanent. Permanent means that it cannot be for a period of time; it must be perpetual. It must be irrevocable. While on irrevocability, we may only indicate that a Wakf can be created by a will also. But when a Wakf is created by a will it is open to the Wakif to revoke the will prior to his death. As to the effect of his death, the will, will bring into existence a Wakf but limited to 1/3 share unless the heirs otherwise agree. Save as aforesaid, a Wakf cannot be revoked. A Wakf, again meaning the property which is the subject matter of a Wakf cannot be alienated. This is subject to what we will state when we discuss the differences between a Wakf and a Trust. The object of the Wakf must be such that it is approved by the Muslim law. The object must be religious, pious or charitable and we hasten to again reiterate that it is not a concept of piety religiousness or the charitable nature in the eyes of the entire world but what is in conso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court reported in Nawab Zain Yar Jung (Since Deceased) and Ors. v. Director of Endowments and Anr. (supra). In other words, even in the case of a public charitable trust created by a Muslim, the intention of the Muslim being to provide for activities for the general welfare and which are, therefore, secular and it emphasises the creation of the institution for human beings irrespective of religion, then the difference between a public Trust and a Wakf would cease to exist. 112. The time therefore is ripe now to examine the judgment of this Court in Nawab Zain Yar Jung (Since Deceased) and Ors. v. Director of Endowments and Anr. (supra). In the said case, a Bench of five learned Judges had the following facts inter alia before them. Four Appellants before the Court were trustees appointed by the Nizam of Hyderabad under a trust deed executed in 1954. They were initially confronted with proceedings under the Hyderabad Endowment Regulation 1348-F (1939). While litigation regarding the said provision was pending in this Court, developments took place in the form of proceedings to get them registered under the Wakf Act, 1954 by the Wakf Board. The contention raised by the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the document creates is that the settlor wanted to create a trust for charitable purposes and objects in a secular and comprehensive sense, unfettered and unrestricted by the religious considerations which govern the creation of wakf. Even the Clause on which Mr. Pathak relies for the purpose of showing the intention to dedicate the property to Almighty makes it perfectly clear that amongst the objects for which the trust was created were included other charitable purposes without distinction of religion, caste or creed, and that obviously transgresses the limits prescribed by the requirements of a valid wakf. The same comprehensive character of the charitable purpose which the settlor has in mind is equally emphatically brought out by Clause 3(c)(ii). Clause 3 provides that the Trustees shall hold and stand possessed of the Trust Fund upon the Trusts specified in Sub-clauses (a) to (c). Sub-clause (c)(ii) refers to the maintenance, upkeep and support of public religious institutions, and otherwise for the advancement of religion, particularly in the State of Hyderabad; and it adds that the benefit of the present Clause shall not be restricted to any particular religion. A public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected without distinction of religion, caste or creed, would obviously be defeated and that undoubtedly supports the conclusion that the document evidences a public charitable trust and not a wakf." 114. Finally, we must, however, not overlook what this Court found in the following paragraph: "20. It is in this context that the other provisions about vesting must be considered. The document calls the author of the trust as the "Settlor" and the Appellants as the "Trustees "and that introduces the concept of the Trust as contemplated by English law. Clause 1 of the document specifically assigns and transfers unto the Appellants all those shares and securities described in the Schedule which are the subject-matter of the trust. This clause, in terms, transfers the shares and securities to the Trustees and so, the legal title in respect of the subject-matter of the trust vests in the Trustees. The argument that the provision for vesting had to be made because the property in question is moveable property, does not carry conviction because the whole scheme of the document appears to be to vest the title in the trustees and gives them absolute discretion to use the said property and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inhabitants of Hyderabad in particular without any regard to religion. We are aware of the fact that at the time when the Court considered the case the prevailing definition of beneficiary was what was contained in Section 3(a) in its unamended form. In other words, what this Court considered was the definition of beneficiary in Section 3(a) which ended up with the injunction that the beneficiary must be a member of the Muslim community. It is after this judgment that in the year 1964 as we have noticed by the Amendment Act that the words established 'for the benefit of the Muslim community' were substituted with the words 'for purposes sanctioned by the Muslim law'. 116. This judgment has also been followed by this Court in the decision reported in Mohd. Khasim v. Mohd. Dastagir and Ors. (supra). Therein, this Court held: "31. The aforesaid directions run contrary to the concept of wakf and the more appropriate view appears to be that the executant intended to create a simple English trust. Although, in order to create a valid wakf it is not necessary to use the term "wakf" in the document in question, except for providing for the performance of certain rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of a Reward for dedicating property by way of Wakf, it would be entirely left to a Muslim to take a decision as to whether he should adopt the device provided by an English Trust or make the familiar dedication by way of Wakf. It may be also true that there is merit in the contention of the writ Petitioners, that Article 25 provides a choice as to the manner in which a person may exercise his rights viz., as to whether he should resort to creating a Wakf or a Trust. 118. What we are called upon to decide is whether this position of law has in any manner been altered by the amendment to Section 3(a) of the Act. Here we may also refer to what is a public Trust and the conditions which have been projected in the submissions of Dr. Singhvi in particular qua a Wakf. The Indian Trusts Act, 1882 deals with private Trusts. Section 1 of the 1882 Act reads as follows: 1. Short title. --This Act may be called the Indian Trusts Act, 1882: Commencement. --and it shall come into force on the first day of March, 1882. Local extent. -- It extends to the whole of India except the State of Jammu and Kashmir] and the Andaman and Nicobar Islands; but the Central Government may, from time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efer to the same mentioned at pages 2 and 3. "The jurisdiction of the Court of Chancery and of its successor, the High Court of Justice, in respect of charities and charitable trusts is a separate head of equity, and charity law is founded less upon statute than upon the principles evolved by those courts and embodied in case law. It has, however, long been the practice of the courts to look for guidance as to what purposes are charitable to the preamble to the Charitable Uses Act 1601 (commonly referred to as "the Statute of Elizabeth I"), which lists as charitable: The relief of aged, impotent, and poor people; the maintenance of sick and maimed soldiers and mariners, schools of learning, free schools and scholars of universities; the repair of bridges, havens, causeways, churches, sea banks and highways; the education and preferment of orphans; the relief, stock or maintenance of houses of correction; marriages of poor maids; supportation, aid and help of young tradesmen, handicraftsmen and persons decayed; the relief or redemption of prisoners or captives and the aid or ease of any poor inhabitants concerning payments of fifteens, setting out of soldiers, and other taxes." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swering a certain description, without any reference to age or poverty, is likewise void. There is no escape from the dilemma that a perpetual trust must be either charitable, or void as tending to a perpetuity. The Rule against perpetual duration cannot be evaded by making a charity the trustee. Thus, a condition attached to a charitable gift, constituting a trust in favour of objects not charitable, as, for instance, that the donor's tomb should be repaired forever out of the trust funds, or that the charity should grant a lease to private individuals ninety-five years hence, or a lease for ever to the testator's relatives, is void." 124. In regard to powers and duties of Charity Trustees, it is stated as follows: "The powers and duties of charity trustees, as defined in Section 97 of the Charities Act 1993 as those persons having the general control and management of the administration of a charity, are governed by the legal structure adopted by the charity, the terms of the individual governing instrument and the relevant statutory provisions...." 125. The concept of a public charity as understood in England is to be contrasted with the concept of a Trust in the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here Mahommedan influence has been pre-dominant, such as Upper India and the Carnatic, the expression wakf is used to express dedication. But the Mahommedan law relating to trusts differs fundamentally from the English law. It owes its origin to a Rule laid down by the Prophet of Islam; and means "the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings." When once it is declared that a particular property is wakf, or any such expression is used as implies wakf, or the tenor of the document shows, as in the case of Jewan Doss Sahu v. Shah Kubeeruddin that a dedication to pious or charitable purposes is meant, the right of the wakf is extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit. The manager of the wakf is the mutawalli, the governor, superintendent, or curator. In Jewan Doss Sahu's Case the Judicial Committee call him "procurator." That case related to a khankah, a Mahommedan institution analogous in many respects to a math where Hindu religious instruction is dispensed. The head of these khankhas, which exist in larg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally, however, this judgment led to the amendment of Section 10 of the Limitation Act, 1963. It is apposite that we notice the case and judgment which was rendered therein which is reported in Wali Mohammed (Dead) by LRs. v. Rahmat Bee (Smt.) and Ors. (1999) 3 SCC 145. The question which arose was whether the Mutawalli of a Wakf would be a trustee. This Court after noticing the judgment of the Privy Council in Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar and Ors. (supra), has discussed the impact it had in the following paragraphs: 35. It will be seen that the main part of Section 10 states that no period of limitation applies for recovery of property from a trustee in whom the property is vested for a specific purpose, unless such a person is an assignee for valuable consideration. The Explanation further states that it shall be deemed that a person managing the property of a Hindu, Muslim or Buddhist religious or charitable endowment is to be deemed to be a trustee in whom such property has vested for a specific purpose. We shall explain these provisions in some detail. 36. In Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar [AIR 1922 PC 123 : ILR 44 Mad 831] the Privy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in whom the property has become vested in trust for any specific purpose and as a Mutawalli would not be a trustee in law per se, the legislature brought in the explanation. But what is striking are two features. Firstly, the change is brought by way of an Explanation. More importantly, the explanation begins with words "For the purpose of this section' and proceeds to declare that "any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be properly vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof." Therefore, apart from it being an Explanation, it also on its very terms, limits the deeming fiction to the purpose sought to be attained in Section 10 of the Limitation Act. 128. Dr. Singhvi, learned Senior Counsel, would list four distinguishing features of a Trust in comparison with a Wakf: (i) A wakf is perpetual and irrevocable, whereas a trust need not be perpetual and may also be revoked under certain conditions. (ii) A wakf property is inalienable whereas a trust is free to alienate the trust property. (iii) The founder of a wakf cannot reserve any ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsolute right of sale. At least it is not so under the Bombay Public Trust Act 1950. Section 36 of the Bombay Public Trust Act declares that a sale by Trustee can be made only after 'previous' sanction is obtained from the Charity Commissioner. In the case of a Wakf, however, undoubtedly the principle is well entrenched and it is integral to the very concept of a Wakf, wherein, upon a dedication there is an implied transfer of the property to the Almighty, which would in law render any alienation impermissible. The property would remain inalienable. However, interestingly, we may notice the following discussion in Mulla Principles of Mahomedan law: "207. Power of mutawalli to sell or mortgage. A mutawalli has no power, without the permission of the Court, to mortgage, sell or exchange waqf property or any part thereof, unless he is expressly empowered by the deed of waqf to do so." 131. However, learned author has also noted the change that has been brought about in Section 51 of the Act and thereafter states as follows: "A mutawalli of a waqf although not a trustee in the true sense of the term is still bound by the various obligations of a trustee. He like a trustee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3, Cl.(b) of the Act. 134. Under the Mahommedan law, a Wakif may provide for his maintenance out of the income of the Wakf property. He may even reserve the whole income for himself or his life. A different strand of opinion has been expressed however as regards the Shia law. We find the following discussion in Mulla on Principles of Mahomedan Law at page 228: According to the Hanafi law, the settlor may reserve the usufruct of the endowed property of himself for his life. According to the Shia law a waqf is not valid unless the settlor divests himself of the ownership of the property and of everything in the nature of usufruct from the moment the waqf is created. Hence a settlor cannot, according to the law, reserve for himself a life-interest in the income or any portion thereof: Baillie, II, 218-219. It has been held by the High Court of Allahabad that if the settlor reserves the whole income for himself, the waqf is wholly void; but if he reserves a portion of the income i.e., one-third, the waqf is void as to one-third only to the corpus, but valid as to the remaining two-thirds. But in Abadi Begum v. Kaniz Zainab (AIR 1927 PC 2), the Privy Council expressed the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh he had appointed himself Mutawalli with uncontrolled powers of management. Whether he has so divested himself, is a question of construction of the waqfnama, and is not to be confounded with the question whether there has been a transfer of possession or change in the character of his own possession. 135. Finally, we may take up the last distinction which is highlighted by Dr. Singhvi that it relates to the powers of the Mutawalli being very limited as compared to the powers of a Trustee. It is true that Mutawalli is essentially a manager and administrator of the property which vests in Almighty. A Trustee, on the other hand, is the person in whom the property vests. In the case of a private Trust, no doubt, as in respect of public Trust, it consists of an obligation annexed to the ownership of property and arises from out of confidence reposed in a person or persons. They are the trustees. In the case of a private Trust, there must be a written document which must be registered in terms of Section 5 of the Act. In a public religious or public charitable Trust, there need not be any document as such to create a public charitable trust. The foundation, however, remains the conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f human beings. This is the meaning of the terse and sententious Rule pronounced by the Prophet "tie up the property and leave its usufruct free for mankind." A wakf once made for whatever object, has the effect of "detaining" the property in the custody of the Almighty, its produce along being applicable for the good of human beings. This is the meaning of the definition given by the law officers in the case of Mohammed Sadik v. Mohammed Ali and Ors. that wakf implies "the relinquishment of the proprietary right in any Article of property such as land, tenements, & c., and consecrating it in such manner to the service of God that it may be of benefit to men." This definition was not invented by them but borrowed form the law-books, and must be read with the explanations given in them. In the Islamic system there is no such thing as a dedication "solely to the worship of God." A dedication "solely to the worship of God" is an unmeaning phrase in Islam. The service of man and the good of humanity constitute pre-eminently the service and worship of God. Everything which is dedicated to God is in reality for the good of mankind; and everything which is dedicated for the good of huma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinitions as amended have retrospective effect and apply to the wakf in this case. In fact, the learned Advocate for the Appellant did not dispute the fact that if the charitable bequest created in this case is a wakf, it would come under the Wakf Act, though the beneficiaries of the wakf may include non-Muslims." What is, however, decisive would be that it was on facts found that the compromise decree therein did create a Wakf. 139. Learned Counsel also sought to draw support from the judgment of the learned Single Judge of the Gujarat High Court in Kachchh Wakf Board and Anr. v. Kachchh Memon Jamat and Ors. 1997 SCC Online Guj 220. Therein, the Court has, no doubt, inter alia, referred to as follows: "50. In view of my aforesaid conclusion the appeal must succeed. However, before parting with it, I may notice that learned Counsel for the Respondent-Plaintiff argued that both the courts below have come to concurrent finding that, property in question was being used for providing shelter or abode to any visitor without distinction of caste or creed and this finding alone is sufficient to negative the contention of Respondents about existence of a Muslim Wakf and consequently e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith what object property is dedicated, it may not be possible to decide the exact nature of dedication, even if it be presumed in favour of the Appellants that it was after grant of land was made to Kamruddin, he constructed the house and that house is being used as Musafirkhana or Sarai Dharmashala, a place of abode for wayfarers. Both parties, apparently having engrossed with user of property by Muslims only have not lead any evidence on this vital aspect about 'object of dedication of building' of the issue. In this connection, it may also be noticed that it is not a case of lost grant and user of property, since time immemorial but grant in specific manner has been the contention of both sides, and user from that period by general public or Muslims. The pivot object with which dedication and use was being made is missing. In this connection, it is also significant to notice that according to Bhagwadgomandal word 'Dharmashala' and 'Musafirkhana' have been defined to mean one and same thing. Nothing therefore, may turn on the expression 'Dharmashala' in the letter of grant of land without something more. Nor actual user contrary to the object of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh, it might be a valid Trust. Having noticed the facts of the judgment of the apex Court in Nawab Zain Yar Jung (Since Deceased) and Ors. v. Director of Endowments and Anr. (supra) and as followed in Mohd. Khasim v. Mohd. Dastagir and Ors. (supra) and having borne in mind the change brought about in Section 3(a), we are of the clear view that the law which was declared in the decisions of this Court leaves it open to a Muslim to create a public Trust or a Wakf and it remains undisturbed. 142. As to whether an institution is a Wakf or a public Trust is a mixed question of fact and law. This means it becomes a duty of whosoever upon whom the duty falls, to ascertain whether it is either and to carefully attend to the terms of the document by which the Trust is evidenced if there is such a document and find the facts and thereafter the law must be applied. The paramount feature which perhaps would figure in this inquiry would be the properties being vested either by a Trust, in the case of a Trust, for a trustee to deal with the property as such. Whether there is no power of sale, or inalienability may be a factor which may tilt the matter in favour of the institution being a Wakf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to stress that the whole purpose of the survey of wakf by the Commissioner of Wakfs Under Sub-section (1) of Section 4 is to inform the Board of Wakfs, as to the existence of the existing wakfs in a State, in order that all such wakfs should be brought under the supervision and control of the Board of Wakfs. 23. While the High Court was, in our view, right in determining the scope of Sub-section (1) of Section 6 of the Act, it was clearly in error in curtailing the ambit and scope of an enquiry by the Commissioner of Wakfs Under Sub-section (3) of Section 4 and that by the Board of Wakfs Under Section 27 of the Act. 25. The very heading of Chapter II and the caption to Section 4 no doubt suggest that the Commissioner makes only a preliminary survey regarding existing wakfs and the list of wakfs prepared by him is published by the Board and neither the Commissioner nor the Board is required to make any enquiry regarding the character of the property. That is to say, the making of survey is only an administrative act and not a quasi-judicial Act. But, on a closer examination, it is clear that while making a survey of the existing wakfs in a State Under Sub-section (1) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the exercise of such power he should enquire whether a wakf exists. The making of such an enquiry is a necessary concomitant of the power to survey. The High Court was clearly in error in observing: "Except Sub-section (5) there is nothing in Section 4 or in the Rules made by the State to show that the Commissioner is empowered to adjudicate on a question, if one arises, whether a particular property is a wakf property or not." 27. We are of the opinion that the power of the Commissioner to survey wakf properties Under Sub-section (1) or to enquire and investigate into the several matters set out in Clauses (a) to (f) of Sub-section (3) cannot be curtailed by taking recourse to Sub-section (5). The High Court was wholly wrong in understanding the true implication of Sub-section (5) of Section 4. It only lays down that if, during any such enquiry, any dispute arises as to whether a particular wakf is a Shia wakf or a Sunni wakf, and there are clear indications in the deed of wakf as to its nature, the dispute shall be decided on the basis of such deed. It, therefore, makes the wakf deed conclusive as to the nature of the wakf i.e., whether it is a Shia or a Sunni wakf. In ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the name of lessees and were not shown as Wakf properties which made the sale of the properties easy. It was also informed that no physical survey was done and only proformas were sent to the Mutawallis for furnishing the details of the Wakf properties. The State Government had also admitted that there were errors in identifying the Wakf properties. Later on, the State Government informed that the survey in Bombay sub-urban areas had also been completed and they supplied a list of the Wakf properties surveyed to the then Committee. The lists so received prima facie showed the properties of Marathwada region; the Wakf properties in other regions were negligible which might not be true. Keeping the situation in view, the then Committee recommended that the provisions of the Wakf Act, 1995 should be followed scrupulously for the survey of Wakf properties and the procedure adopted be made transparent and open to the public, with a remedy to correct errors in the survey. The Survey Commissioner should undertake a physical survey of all the Wakf properties after giving wide publicity through the media. The Committee further recommended that after the survey was completed, the lists o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued direction dated 20th October, 2010 to the State Government to conduct the resurvey of the wakfs in the State............... 20. Thus, even according to the State Government the Survey was defective as the lists of wakfs prepared Under Sub-section 2 of Section 5 were based on the survey report submitted on 31-1-2002 to the State Government, which the State Government itself found to be defective, the only conclusion possible is that the lists of wakfs are defective and therefore, in our opinion, it would be appropriate to set aside those lists, so that fresh lists can be prepared by the wakf Board on the basis of the report of resurvey which is ordered by Notification dated 20th October, 2010. 147. We may notice that this is a case where the writ petitions were filed in the High Court. In the findings rendered by the High Court, the High Court has not found that there has been a breach of the principles of natural justice. This is not made out to be a case where there is a total want of jurisdiction either. Having made these preliminary observations, we may proceed to consider some of the allegations which have been made in the writ petitions: "11. The Petitioners submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the notification dated 1st December, 1997. The Petitioners say that the purported survey has been carried out by the Survey Commissioner without giving any notice to the existing Muslim Trusts/Wakfs. The Petitioners have learnt that several Muslim Trusts/Wakfs have carried out correspondence with the Survey Commissioner putting on record, that the Survey Commissioner has not given any notice to the existing Muslim Trusts/Wakfs about the purported survey and that the Survey Commissioner should follow the Rules of natural justice in identifying the Muslim Trusts/Wakfs. Hereto annexed and marked as Exhibit 'I' is the copy of the letter dated 14th August, 2003 written by one such trust viz. Anjuman-i-Islam. The Petitioners state that the Survey Commissioner i.e. Respondent No. 3 by his letter dated 22nd August, 2003 informed Anjuman-i-Islam that he has submitted his report to Respondent No. 1 on or about 31st January, 2002 in two sets. Hereto annexed and marked as Exhibit 'J' and 'J-1' is a copy of the letter dated 22nd August 2003 along with its English translation, written by Respondent No. 3 to Anjuman-i-Islam. The Petitioners state that the Survey Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich have been registered as public Trusts. Their contention is that they were not among the Wakfs. The inquiry before the Survey Commissioner lasted for nearly five years. It is true that the Survey Commissioner who has apparently kept in mind the Wakf Act of 1954 which however, applied only to six districts comprised in the Aurangabad division and constituted in the Marathwada region and might have collected information from the Revenue Officers. This is significant because if the property is treated as Wakf by way of publication of a list Under Section 5(2), the previous regime also contemplated the list forming the basis for making entries in the revenue records. Therefore, collecting the materials from the Revenue officers cannot be frowned upon. 152. Now, we must, before we pronounce on the impact of the preliminary survey also deal with the aspect about list which has been brought out on 13.11.2003. 153. The list which is characterised as final list by the Appellant Board has been published on 13.11.2003. It related to Bombay region and another. We would think that in keeping with the Appellant's case that this was indeed final. This means that in keeping with the schem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterfered with and abridged by way of first corrigendum on 05.05.2005, acting upon the meetings which preceded it, of which noteworthy is the resolution dated 09.03.2005 by the Board. We would have thought the matter would end there. However, to make matters more convoluted, there were other developments and they are captured in subsequent proceedings which took place on 09.06.2006 and 31.07.2006 and finally, what the Petitioners would claim to be an acceptance of their position by proceedings dated 19.05.2006 and what is more which in turn was sought to be over-ridden by the notification which was issued on 25.04.2007. By the last-mentioned communication, the Board purported to restore the list dated 13.11.2003 still further by the 23.10.2008 notification the position obtaining as on 13.11.2003 and 30.12.2004 was sought to be restored. 157. Now the time is ripe for us to consider the matter with greater focus on the litigation and the impugned judgment. The High Court has purported to invoke its power Under Article 226. The contention raised by the Appellants is that under the Act there is a remedy provided namely, a right to a person aggrieved to approach the Tribunal. The Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the fundamental rights as such. In the matter of interfering with the survey, what essentially weighed with the Court is the report of the JPC. Apart from the same, we are not able to find anything else in the judgment as forming the basis for setting aside the list dated 13.11.2003. No doubt, the aspect relating to the constitution of the Board is another matter. It clearly is not a case where there is a complete absence of jurisdiction as it is not the case of the Petitioners that the Survey Commissioner was not having authority to carry out the survey. 159. This is a case of some significance. 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. We have noticed the fact for reasons which will remain a mystery to us, Government took it upon itself to convene meetings; a Committee was constituted described as a Bifurcation Committee. The Committee saw merit in the contention of the writ Petitioners. The Charity Commissioner was roped in as a member. It is thereafter that strangely after the publication of the lists which are claimed to be final lists Under Section 5(2) on 13.11.2003 and 30.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Resolution on 09.03.2005. A fresh list was published on 05.05.2005. 163. Now, we may, before we finally pronounce, also notice the contention of the Respondents-writ Petitioners regarding the constitution of the Board. Section 14 provides for the constitution of the Board. We have already adverted to the provisions. It is not in dispute that when the Board was constituted on 04.01.2002, there were only four members. All the four members were nominated. Two out of the four members were apparently appointed in the category of Member of Parliament as, both belonged to the Rajya Sabha. No doubt, there is a case that out of them 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The expression 'reasons to believe' has been the subject matter of a catena of decisions and it does not require reference to any authority to glean its connotation and we do not venture to do that. 167. We proceed therefore, to hold that when the Board has, in law, any reason therefore to believe that any property of any Trust registered under the Indian Trusts Act, 1882 or any society registered under the Societies Registration Act 1860 or the property of any Trust registered under any other law, is wakf property, the Board is given certain powers and responsibility. The Board is clothed with the power notwithstanding anything contained in any of those laws, to hold an inquiry in regard to the said property. The said property must be understood to be a property of any Trust which is registered in this case under the Bombay Public Trust Act because Bombay Pubic Trust Act would qualify as any other law. The holding of the inquiry is to be preceded by a notice of the proposed action to be given to the authority by whom the Trust or the Society has been registered. It is not to be confused with the Trust or the Trustees. It means that the Wakf Board must give notice of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must clarify here that what Section 40(3), in fact, states is that if the Board has reason to believe that the property of any Trust is Wakf property, it can hold enquiry and find such property to be Wakf property. 171. In this regard, we may notice that Section 30 of the 1950 Act contemplates previous sanction for the sale of the property of the public Trust. We may record that we are a little baffled and mystified by this deeming provision. This we feel for the reason that in the case of a Wakf, property passes to the Almighty and to treat it as the property of the public Trust ill squares with the idea that the property also vests in the Almighty. But we need not explore that matter further as we are not called upon to do so. Suffice it to say that despite the fact that the 1950 Act has been enacted and Muslim pubic Trusts have been registered in what is described as Category B which is a category meant for Muslim Public Trusts, the property of the said Trust as is described in Section 40(3) can be found after due inquiry, to be the properties of a Wakf. We make this position clear. 172. As far as Section 43 is concerned, it mandates for deemed registration of Wakfs. Its meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by this Act.(2) The decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal, as the case may be, shall, unless set aside by the decision of the Court on application or of the High Court in appeal be final and conclusive." It provides for power with the deputy or the assistant Charity Commissioner to decide upon the issue as to whether a Trust exists and whether such Trust is a public Trust or any particular property is a property of such trust. With the advent of the Wakf Act, 1995, the powers Under Section 40 of the Act must be read as conferring authority with the Wakf Board which must certainly prevail in regard to the matters which are provided for therein. 177. This brings us to other aspect which has been canvassed before us. Section 112 of the Act provides for repeal. There is not much controversy before us that Section 112 by virtue of the repeal it provides for would effect a repeal of the provisions of the 1950 Act insofar as it relates to public Trusts which are Wakfs. The Charity Commissioner, in effect, when it issued clarification which was challe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this is not a case where the challenge was laid only to the lists or the survey. Rather we have noticed that the challenge was laid to the very incorporation of the Board and its constitution. A challenge was also laid to the proceedings of the Charity Commissioner. These decisions which were impugned could not have been adjudicated by the Tribunal Under Section 6 of the Act. The second aspect which we cannot ignore is that as held by this Court, Article 226 confers a jurisdiction or a power on the High Courts. It is a power under the Constitution. While it may be true that a statute may provide for an alternate forum to which the High Court may relegate the party in an appropriate case, the existence of an alternate remedy by itself cannot exclude the jurisdiction of the High Court under the Constitution. No doubt, it has been a self-imposed restraint which is fairly faithfully adhered to by the High Courts and it is largely a matter of discretion. We find that there are dicta which has held that on the basis of an alternate remedy, a writ petition is not maintainable. We would understand that the position to be that a constitutional remedy cannot be barred or excluded as when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Committee. Several defects were pointed out by the learned Senior Counsel as noted in the survey. They include Shia Wakf being treated as Sunni and Bohara trusts being treated as Sunni Wakf. It is complained that income of the properties has not been disclosed contrary to Section 4. 183. We articulate the choices which are available before us. It is the Appellant's case that Wakf properties need to be rigorously and lawfully regulated. However, there are public Trusts registered under the 1950 Act which are in fact, Wakf which fall Under Section 28 of the 1950 Act. They must undoubtedly come within the regime of the Central Act viz., the Wakf Act, 1995. The converse also must be stated and highlighted viz.; a Muslim Public Trust registered under the 1950 Act need not be a Wakf under the Act. It would be certainly contrary to the unbroken line of judgments of this Court which contemplate such a division between two categories to paint all Muslim public Trusts with the same brush and glean them as Wakfs. We have elucidated the position however with reference to the impact of the amendment to Section 3(a) of the Wakf Act, 1954. 184. At this juncture we must notice an int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the judgment of the High Court to the extent that it sets aside the notification dated 04.01.2002, is found to be unsustainable. The High Court has through the impugned judgments, set aside the lists dated 13.11.2003 and 30.12.2004. 189. We cannot totally be unmindful of the fact that there were seven members in the Board and also Section 22 appears to work as a shield against invalidation. 190. In view of the developments post the publication of the list dated 13.11.2003 and 30.12.2004 in the form of the formation of the Bifurcation Committee and various proceedings, we cannot accept the request of the Respondents that the matter must again go back to the Survey Commissioner who must be asked to look into the proceedings of the Bifurcation Committee. 191. We must observe that 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. 192. But, at the same time, it would appear that both the Charity Commissioner and the Wakf Board were indeed proceeding under the misapprehension as far as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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