TaxTMI 
TaxTMI 
2022 (10) TMI 1183
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....ising out of SLP (C) Nos. 19721-19723 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 A....
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....Aarif Ali, Pankaj Tiwari, Shivani Viz, 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....
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....he Respondents before us who turned out to be the writ Petitioners before the High Court are Public Trusts or they are in essence or in substance, Wakfs under the Mohammedan Law. 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 r....
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.... contribution from the Petitioners in these writ petitions. On the basis of the same, Association for Protection of Wakfs and Trusts has made representation to the Government with a request to; (1) direct the Wakf Board to cancel the notification declaring the list of Wakf which are published on 13.11.03, the said notification is not only full of mistakes but highly malicious. (2) direct the Wakf Board to have a fresh survey done properly ascertaining Shiya and Sunni Wakf Boards and have the Survey 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 Comm....
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....atorium. Therein, the notification dated 04.01.2002 was sought to be put under a cloud. 8. On 08.02.2005, the Committee which we have just hereinbefore mentioned submitted its report. It referred to the powers of the Board Under Section 40 of the Act to decide whether the properties are Wakf Property or not. 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. ....
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.... NOTIFICATION By the Chief Executive Officer The list of Wakfs Properties of Mumbai & B.S.D. was published in Government Gazette dated 13.11.2003 as per Board Resolution 3 dated 27.9.2003, Under Section 5(1) and Sub-section 3 of Section 4 of Central Wakf Act, 1995. The corrigendum to the aforesaid Government Gazette notification was issued on 5.5.2005 with reference to the Maharashtra State Board of Wakfs. Resolution 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 ....
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....fication. There were other writ petitions also which were filed. Writ Petition was filed being Writ Petition No. 899/2011 challenging the circular of the Charity Commissioner and also the list of Wakfs were challenged. Pleadings were exchanged. Written notes of arguments were also submitted. The High Court has allowed the writ petitions. The findings of the High Court may be noticed at this stage. 14. The High Court broadly formulated four issues. The High Court posed the question as to whether the incorporation of the Board was illegal. The contention which was urged before the High Court by the writ Petitioners was that here is a case where the cart was put before the horse. The law giver envisaged the conduct of survey of the Wakfs. A survey of Wakfs in terms of the Section 4 followed by the publication of the List Under Section 5 would reveal among other 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 B....
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.... where developments based on the filing of the writ petitions cannot be overlooked. The development consisted of the constitution of the Bifurcation Committee which had the blessings of the Government itself, and which Committee held meetings in which the Charity Commissioner of the Wakf Board also participated and certain public trusts were identified as public Trusts and others as Wakfs. After finding that the survey conducted by the Survey Commissioner was flawed, the High Court accepted the request of the writ Petitioners that since on 20.10.2020 resurvey was also ordered by the Government when the resurvey is conducted, the writ Petitioners may be afforded an opportunity to place before the Survey Commissioner the report of the Committee under which the writ Petitioners apparently were identified as being actually public trusts. 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. Jav....
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.... He would also after taking us through the factual developments which we have adverted to already, contend that the Board was indeed validly constituted and the survey was conducted as per law. The Survey Commissioner was appointed in 1997. It took the surveyor nearly five years to submit his report. He would, in particular, point out that even the JPC report which is the sole premise for finding the list flawed by the High Court, has observed that questionnaires were dispatched. This meant that all parties were put on notice. It is not as if the writ Petitioners were put to prejudice. They had the right to approach the properly constituted 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 concern....
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....f the Wakf which is included in the List published Under Section 5(2) of the Act cannot be preponed to the time when the Survey Commissioner submits its report Under Section 4(3) of the Act to the Government. The right which the person aggrieved (as it stands amended in place of the 'person interested in the Wakf') has is that the aggrieved person can approach the Tribunal Under Section 6. 30. Therefore, no prejudice as such was caused to the writ Petitioners that would have justified their knocking at the doors of the High Court under the extraordinary jurisdiction Under Article 226 of the Constitution. 31. He would also submit that there has been a different regime created from the previous one which fell for consideration before this Court in the case reported in Nawab Zain Yar Jung (Since Deceased) and 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....
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....s far as the present Act is concerned, he would submit that the complaint about natural justice being violated may be farfetched and may not be sustainable. He emphasised the impact of Section 43 of the Act which provides for deemed registration of Wakfs. He drew our attention to judgment of this Court reported in Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13 SCC 174. 36. He would, in fact, go to the extent of contending that natural justice if it is to be observed to the extent canvassed, may render it impermissible to obtain any fruitful results. He would further contend that Wakfs would have been registered as deemed Wakfs Under Section 28 of the 1950 Act, being Wakfs prior to the 1950 Act. In that case, there can be no complaint at all as they would qualify as Wakfs even under the Act. This is for the reason once a wakf, always a Wakf. 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 ....
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.... 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. Several Muslims Trusts governed by common law were also erroneously included in the survey report as Wakfs. The survey report failed to indicate the gross income in respect of 15436 Wakf out of 19987 Wakfs under survey. 40. The High Court was entirely justified in its reasoning particularly as it involves even the report of the JPC. It is also contended that the Board was not properly constituted having regard to the requirements of distinct categories from which the members must be drawn from for the valid composition of the Board. The survey report, he insists is a sine qua non and must be a prelude to the valid incorporation of the Board which discharges solemn functions which includes the power of superintendence Under Section 32, power of registration Under Section 36, maintenance of register Under Section 37 and power of the Board Under Section 40 to decid....
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....not 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 legal terminology as amana and it is not treated as a Wakf. The Muslim Personal Law (Sharia) Application Act 1937 in Section 2 refers to both Trusts and Wakfs separately. The definition in Section 2(r) of the Wakf Act, 1995, only explains the words Wakf and defines it but this does not mean that every trust is to be transformed into a Wakf. A Wakf must fulfil certain legal attributes. It cannot encompass all Trusts created by a Muslim. The 1950 Act is a secular law and there is no known principle that would 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) re....
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....treated as premised on an infraction of the directions Under Section 97 of the Act which is impermissible. He would also submit that the history of the institutions would show that they were all public Trusts per se and completely distinguishable in law from Wakfs. It is glossing over this fundamental distinction that the survey was carried out the, lists were published and illegalities sought to be perpetuated. The High Court has set right the illegalities for which its power is unquestionable under Constitutional provisions. The mere fact that there is an alternate forum provided by the Act again in no manner impinged on the power of the High Court Under Article 226 of the Constitution. He would also submit that it would be wholly unfair and unjust for the Appellants to persuade this Court to retrace its steps at any rate from the list dated 05.05.2005. 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....
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....points out that the writ Petitioners were Sunnis by faith. Upon being further queried how the Sunni worshippers can have a grievance over public Trusts which are essentially created by Shias, and when the entire grievance in the case and the argument was essentially founded on the injury caused to the Shia Wakfs, he would submit that the interest of the parties even as beneficiaries needs to be protected. 51. Shri Vinay Navare would submit also that his line of argument is slightly different. He would submit that even assuming that there is no need to constitute separate boards for Sunnis and Shias, there is a statutory duty that the Government must perform at the time when it takes a decision to incorporate a Board to find out about the number of Sunni and Shia Wakfs. In this regard, he draws upon Section 14(6) of the Act and he would contend that thereunder, the members belonging to the Sunni and Shia sects are to be determined with reference to their numbers and value. Therefore, there must be some material if not the data revealed in the survey to give effect to the legislative intent contained in Section 14(6). He was at pains to take us through three affidavits to point ou....
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....ork, 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, and it is not to be sold or made the subject of gift or inheritance; devote its produce to your children, your kindred, and the poor in the way of God" 57. We may notice certain further statements contained in the book "Mahommedan Law" by Syed Ameer Ali, at page 192: "A Waqf is thus interwoven with the entire religious life and social economy of the Mussulmans. "Trusts" in the Mussalman system may, for the sake of convenience be divided under three heads, that is, public, quasi-public and private. This will probably indicate the division 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 utili....
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....e 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 transfer to the legal ownership of the Almighty for substantial consideration, viz., His reward, which is obtained the moment the wakf is created. As will be seen afterwards, a wakf takes effect like the emancipation of a slave. There is no power of revocation nor can there be any reserve; and neither the wakif nor any person deriving title from him can say afterwards that he had no intention to make a binding and irrevocable wakf." A case of Wakf--alal-aulad however reached the Privy Council in Abul Fata Mahomed v. 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 Muss....
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....e 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 that wakf as defined in the definition of public trust is properly appreciated. 'Wakf' Under Section 2(19) of the 1950 Act provided for a wakf which was defined as the permanent dedication by a person professing Islam for the purpose recognised by Muslim Law as pious, religious or charitable and it includes a wakf by user and grants including Mashrut-ul-khidmat for any purpose recognised by Muslim law as pious, religious or charitable. The wakf-alal-aulad to the extent to which property is dedicated for any purpose so recognised was also a wakf which would qualify as a public trust. However, it did not include a wakf so described Under Section 3 of the Mussulman Wakf Validating Act 1913 under which any benefit is for the time being claimable for himself by wakif or for any member of the family or descendant. It is rele....
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....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 Chapter shall, so far as may be, apply to the making of entries in the register kept Under Section 17 and the entries so made shall be final and conclusive." 65. The next relevant provision to notice is Section 36. It reads as under: "36. [(1) [Notwithstanding anything contained in the instrument of trust].- (a) no sale, mortgage, exchange or gift of any immoveable property, and (b) no lease for a period exceeding ten years in case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building, belonging to public trust, shall be valid without the previous sanction of the Charity Commissioner. (2) The decision of the Charity Commissioner Under Sub-section (1) ....
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....st, 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 Parsi Public Trusts Registration Act, 1936, immediately before the said date shall be transferred to the Charity Commissioner and any such proceedings shall be continued and disposed of by the Charity Commissioner or the Deputy or Assistant Charity Commissioner as the Charity Commissioner may direct. In disposing of such proceedings the Charity Commissioner, the Deputy Charity Commissioner or the Assistant Charity Commissioner, as the case may be, shall have and exercise the same powers which 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 ....
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....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' contained in the Act. Sub-clause (i) seeks to amend the definition of 'beneficiary' to remove this inconsistency." 74. Section 4 provided for survey by the Survey Commissioner of the wakf 'property' as pointed by Shri Gopal Sankaranarayan. We need not refer to the said provision for the reason that the pari materia provision of Section 4 is replicated as the same Section in the Act. The Act contained provisions for power for control of the Board, registration of Wakfs and superintendence by the 'civil court'. It provided in Section 6 that on the publication of the list of wakf properties, any 'person interested in the wakf' could seek relief from the Cour....
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.... 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 reason only of the user having ceased irrespective of the period of such cesser; (ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record; (iii) "grants", including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and (iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law, and "waqif" means any person making s....
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.... (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-sections (2), (3), (4) and (5) shall apply to such survey as they apply to a survey directed Under Sub-section (1): Provided that no such second or subsequent survey shall be made until the expiry of a period of ten years from the date on which the report in relation to the immediately previous survey was submitted Under Sub-section (3): Provided further that the waqf properties already notified shall not be reviewed again in subsequent survey except where the status of such property has been changed in accordance with the....
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....m 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 in such list is a Shia waqf or a Sunni waqf, the Board or the mutawalli of the waqf, or any person aggrieved by the publication of the list of auqaf Under Section 5 therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final: Provided that-- (a) in the case of the list of auqaf rela....
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.... 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 irregularity or violation of the Act is established, it may issue such directive, as considered appropriate, which shall be complied with by the concerned Board under intimation to the concerned State Government." 84. Next, we come to Chapter IV under which the first provision is Section 13. It reads as follows: 13. Incorporation. -- ....
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.... 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 Delhi, as the case may be, from the date from which such member ceased to be a Member of Parliament from the State National Capital Territory of Delhi, or a Member of the State Legislative Assembly, as the case may be; (....
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.... 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 inserted by Act 27 of 2013. 87. Section 16 enumerates various disqualifications to be members of the Boa....
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....gister 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 necessary to register the ....
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....Senior Counsel, reads as follows: 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....
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....he Act contemplates the survey giving birth to data which is requisite and indispensable for the Government to legally determine 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 w....
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.... Sunni faith, delivery of possession may not be an indispensable element for the creation of a valid wakf. 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....
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....eing exceeded. We have already found that we are unable to cull out any such mandatory duty to form two separate 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 ar....
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.... in all the cases be done first, and thereafter alone the Board should be incorporated. 106. We cannot be unmindful of the fact that the existence of the Board is vital 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 ....
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....cted under the previous enactment. So, it is not as if there may be absence of any material in regard to matters contemplated Under Section 13(2). Not that it should form the 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....
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....ans a resting place. It may not be any resting place but usually, it is associated with a graveyard. It may be an Imambara. About Inambara we find the following discussion in 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 ....
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....the English law. According to Mr. Ameer Ali, "the Mohammedan law 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.' 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 prop....
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....ense of the words, "public charity" not confined to any caste, religion or creed; and it is in that sense that, the religious institutions which are within the purview of the trust are all religious 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 pro....
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....ntial basis of the transaction and that is to transfer the legal title of the trust property to the trustees. In that sense, Clause 14 which confers on the trustees absolute discretion to deal 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 docu....
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....ave deliberately used the expression "trustee" and not "Mutwalli" which would have ended the controversy that has now arisen. 32. The law is quite clear that there is no 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 wit....
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.... the Rules of Muhammadan law as to waqf, 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, or 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....
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....In four cases, the existence of a non-charitable purpose will not be fatal to charitable status for the relevant body". We need not be detained by the four cases as such. 121. We may also 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, w....
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....ndia. We turn to oft-quoted decision of the Privy Council reported in Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar and Ors. AIR 1922 Privy Council 123: "It is also to be remembered that a "trust" in the sense in which the expression is 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 religio....
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....jadanishin. He is the teacher of religious doctrines and Rules of life, and the manager of the institution and the administrator of its charities, and has in most cases a larger interest in the usufruct than an 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 cha....
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....eld that property comprised in a Hindu or Mohammedan religious or charitable endowment was not property vested in trust for a specific purpose within the meaning of the said words in the main 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....
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....f a wakf cannot reserve any benefit for himself, but the founder of a public trust may himself by a beneficiary. (iv) The powers of a mutawalli (manager of the wakf property) are very limited as compared to the powers 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 ....
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....still bound by the various obligations of a trustee. He like a trustee or a person standing in a fiduciary capacity, cannot advance his own interests or the interests of his close relations by virtue of the position held by him. The use of the funds of the 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 m....
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....as to the remaining two-thirds. But in Abadi Begum v. Kaniz Zainab (AIR 1927 PC 2), the Privy Council expressed the opinion that in such a case, the waqf would be entirely void. Their Lordships approved the four conditions governing the validity of a waqf under Shia law as set out in Baillie's Digest, 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 a....
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.... or public charitable Trust, there need not be any document as such to create a public charitable trust. The foundation, however, remains the confidence which is reposed in the Trustee/Trustees and the apparent ownership that he possesses by having legal ownership being vested in him/them. The most significant aspect, 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, lea....
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....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 human beings, individually or collectively, is for the service of God. 137. Shri Gopal Sankarnaryanan, learned Senior Counsel, 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 consid....
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.... 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 entitling the Plaintiffs to claim relief for declaring the publication of list dated 6-5-1965 to be illegal and void and that 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....
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....ave 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 actual dedication will affect the nature of grant, though in the absence of clear evidence about object, long user in one way 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 fu....
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....ested 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 provided other features which are indispensable are also present. It is no doubt true that the Amending Act of 1964, 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....
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....he 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 4, the Commissioner is required by Sub-section (3) to submit a report to the State Government in regard to the several matters referred to in Clauses (a) to (f) thereof. There may be a dispute as between the Board, the mutawalli or a person interested in the wakf, as regards (a) the existence of a wakf, i.e. whether a particular property is wakf property, (b) whether it is a Shia wakf or a Sunni 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....
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....rticular wakf is a Shia wakf or a Sunni wakf, and there are clear indications in the deed of wakf as to its nature, the dispute shall be decided on the basis of such deed. It, therefore, makes the wakf deed conclusive as to the nature of the wakf i.e., whether it is a Shia or a Sunni wakf. In our view, Sub-section (5) of Section 4 cannot be projected into Sub-section (1) for determining the question whether a certain property is a wakf property or not. Nor does it enter into an enquiry as to several of the matters adverted into some of the clauses of Sub-section (3). 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 B....
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....es and the procedure adopted be made transparent and open to the public, with a remedy to correct errors in the survey. The Survey Commissioner should undertake a physical survey of all the Wakf properties after giving wide publicity through the media. The Committee further recommended that after the survey was completed, the lists of Wakf properties should be published properly in the Official Gazette as required under the Act. The Committee further recommended that the entries of Wakfs should be properly made in the revenue records. 4.17 The Committee, now in view of the flaws in the survey undertaken earlier and the earlier Committee's recommendation to correct errors in the survey, sought to know the present status of survey during its visit undertaken in June, 2007. The Chief Executive Officer informed the Committee that the Government had initiated survey vide the Government 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 p....
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....ndings rendered by the High Court, the High Court has not found that there has been a breach of the principles of natural justice. This is not made out to be a case where there is a total want of jurisdiction either. Having made these preliminary observations, we may proceed to consider some of the allegations which have been made in the writ petitions: "11. The Petitioners submit that it may be noticed that even a Wakf created as per the provisions of the Muslim Law as applicable to the wakf is also included within the definition of the public trust, as contained in Section 2(13) of the Bombay Public Trust Act, 1950. Therefore, there are many Muslim trusts created by the Muslim Settlers belonging to diverse schools of Muslim law under the common law and have appointed the trustees and got the trust property vested in them. But all these Muslim public 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 ....
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..... 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 Commissioner's Report has not been made available to the public. The Petitioners 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. Ther....
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....fore 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 scheme of the Act, its correctness could be tested before the Tribunal Under Section 6. The writ Petitioners have chosen to approach the High Court with writ petitions. What happened thereafter cannot be overlooked. One writ petition led to the filing of a spate of writ petitions as we have noticed. What triggered the writ petitions, however, also needs to be noticed. The challenge was not laid as such to the list alone. The challenge was laid to the incorporation of the Board on 04.01.2002. Equally, the clarification issued by the Charity Commissioner whereby he sought to disown his functions in respect of public trusts because of the Act coming into force, was challenged. The constitution of the Wakf Board was also the subject matter of challenge. 154. After the filing o....
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....sition 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 Tribunal is well equipped to deal with vexed issues related to Wakf. It is 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....
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....ut 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 30.12.2004 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. 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 ....
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....f a Shia member. We must not be oblivious to the fact that Section 14(5) contemplated (the provision stands deleted by Act 27 of 2013) that there must be one Shia member in a composite board. After 04.01.2002 and before 13.11.2002, there were in all seven members in the Board, including the four notified in first notification, as three more were appointed prior to 13.11.2003. One more person was appointed on 13.11.2003 which according to the Respondents was an attempt at complying with Section 14(5) of the Act viz., for the first time, a Shia member made his appearance in the Board. This is an aspect which was canvassed as one of the grounds for not only challenging the constitution but to attack the publication of the list of 13.11.2003. The contention taken was and still persevered in before us is that the Board had decided to notify the list even prior to 13.11.2003 viz., on 27.09.2003. The Board itself therefore had become functus officio after 27.09.2003 as far as the list is concerned, prior to 13.11.2003 when the eighth member was appointed. 164. The Board must consist of a minimum of seven members. Section 14 contemplates a maximum of 13 members. Not only must the Board ....
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....an inquiry in regard to the said property. The said property must be understood to be a property of any Trust which is registered in this case under the Bombay Public Trust Act because Bombay Pubic Trust Act would qualify as any other law. The holding of the inquiry is to be preceded by a notice of the proposed action to be given to the authority by whom the Trust or the Society has been registered. It is not to be confused with the Trust or the Trustees. It means that the Wakf Board must give notice of the proposed action to the Charity Commissioner as it is the authority under the 1950 Act, who registered or registers a public Trust Under Section 18 of that Act. 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 ....
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....ore 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 meaning may be culled out. It mandates that notwithstanding anything contained in the chapter, where any wakf has been registered before the commencement of this Act, under any law for the time being in force, there is no need to register the same under the provisions of this Act. Such registration is to be deemed to have been made under the Act. 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 Se....
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.... 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 challenged before the High Court also initially only stated that according to Section 43 of the Act Wakfs which are registered as Public Trusts should not be tried under the 1950 Act. As far as this understanding of the Charity Commissioner goes subject to what we will presently indicate, we would take the view that there is a distinction between a Trust and a Wakf. We have already highlighted the differences. It is a matter to be tested on a conspectus of various features and after complying with the law as to whether what is registered as a public Trust is, in fact, a Wakf or not. No doubt, all public Trusts which have been registered by way of a deeming ....
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....y relegate the party in an appropriate case, the existence of an alternate remedy by itself cannot exclude the jurisdiction of the High Court under the Constitution. No doubt, it has been a self-imposed restraint which is fairly faithfully adhered to by the High Courts and it is largely a matter of discretion. We find that there are dicta which has held that on the basis of an alternate remedy, a writ petition is not maintainable. We would understand that the position to be that a constitutional remedy cannot be barred or excluded as when the High Court exercises its power Under Article 226, it cannot be a case of lack of inherent jurisdiction. No doubt, when High Courts stray outside the limits with reference to certain principles as have been laid down in the decision which we have referred to, it can be corrected. Another factor which is to be borne in mind is that in a case where the High Court has entertained a matter and the matter comes for hearing in this Court in the jurisdiction Under Article 136, our woes are compounded by the long passage of time as is demonstrated by the facts of this case. The judgment of the High Court was rendered in the year 2011. This Court is hea....
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....l 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 interim order which has been passed by this Court reported in 2012 (6) SCC 328. Much reliance was sought by the learned Senior Counsel for the writ petition on the said order on the basis that it acknowledges the position of law flowing from 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 ....
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.... 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 the true purport of a Muslim public Trust registered under the 1950 Act 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 ....