Do Charitable Trusts Become Waqf Property Merely Because Settler Is A Muslim? Supreme Court To Decide Contours Of Waqf Act

A bench comprising Chief Justice of India NV Ramana, Justices Krishna Murari and Hima Kohli, while adjourning the matter to August 10, in their order noted that both  the Attorney General for India, appearing for the Maharashtra State Waqf Board and Mr.Harish Salve, appearing for the petitioners, agreed for a decision on the contours of the Bombay Public Charitable Trust and Waqf Act 1995, without going on the facts of each case.

Appearing for the Maharashtra State Board of Wakfs, Attorney General for India KK Venugopal submitted that the High Court in the impugned judgment had directed for application of the Bombay Public Trusts Act, 1950 to all the Muslim Public trusts till the incorporation of wakfs under the Waqf Act, 1950. He further contended that it was impossible for the High Court to grant jurisdiction to the Charity Commissioner to continue supervising Muslim Public Trusts including the registered Wakfs. AG also argued that the definition of Waqf in the Wakf Act, 1950 was wide when compared to the Bombay Public Trusts Act, 1950. Applying the principle of repugnancy under Article 254 of the Constitution, the Waqf Act will override the Public Trusts Act.

Senior Advocate Harish Salve submitted that the narrow issue which needed to be decided whether every trust should go into Waqf if the settler is a Muslim.

"This is the case of the Waqf Board and State. It must be limited to Waqf, merely because settler is Muslim and he vests in trustees thne you contine to be in public charity outside the Waqf act. This is the narrow issue," Senior Counsel said.

Considering the submissions of AG and Senior Advocate Harish Salve, the CJI said that, the court without going into the facts would only consider the legal issue pertaining to the contours of the Bombay Public Trust Act 1950 and Waqf Act, 1995.

"The questions which have been raised by the Attorney General and other side. Those we will decide first. Let us first decide the contours of the Act. Individual cases, surveys etc, were not concerned with those issues. We'll decide the applicability of the Wakf act," the CJI said.

In the impugned order, the bench of Justices DK Deshmukh and Anoop Mohta had set aside the circular issued by the State of Maharashtra by which it had constituted the Wakf Board that administers all Muslim religious trusts in the State under the Wakf Act and notification of the properties covered under Wakf. The bench had also directed the Charity Commissioner to continue supervising Muslim Public Trusts including the registered Wakfs and had also granted liberty to the states for taking steps which were not registered as Public Trusts. It had also declared as void a 2002 survey report which was submitted to the State.

On November 29, 2011 the bench headed by Justice Altamas Kabir had stayed the High Court's order which had dissolved the Board by holding it as "defective".

On May 11, 2012 the Apex Court had restrained all those in management of the Wakf properties from alienating and/or encumbering the Wakf properties during the pendency of the proceedings before this Court.

"In relation to Wakf properties, as distinct from Trusts created by Muslims, all concerned, including the Charity Commissioner, Mumbai, shall not permit any of the persons in management of such Wakf properties to either encumber or alienate any of the properties under their management, till a decision is rendered in the pending Special Leave Petitions," the Court had further ordered.

Case Title: Maharashtra State Board Of Wakfs V. Shaikh Yusuf Bhai Chawla & Ors.| Special Leave to Appeal (C) No(s). 31288-31290/2011