Every Public Trust Need Not Be A Wakf, Says Supreme Court While Hearing Maharashtra State Board Of Wakfs' Appeal

"The Wakf Board will not have jurisdiction over a public trust", a Bench of Justices KM Joseph and Hrishikesh Roy further remarked orally while considering a batch of 57 SLPs including the Maharashtra State Board Of Wakfs.

In July, the Court had agreed to decide on the issue as to whether every charitable trust established by someone professing Islam is necessarily a waqf-on the contours of the Bombay Public Trust Act 1950 and Waqf Act, 1995.

Appearing for the Maharashtra State Board of Wakfs, Former Attorney General for India and Senior Advocate KK Venugopal largely made the following submissions today:

• 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.
• It was impossible for the High Court to grant jurisdiction to the Charity Commissioner to continue supervising Muslim Public Trusts including the registered Wakfs.
• The definition of Waqf in the Wakf Act, 1950 was wide when compared to the Bombay Public Trusts Act, 1950.
• On the principle of repugnancy under Article 254 of the Constitution, the Waqf Act will override the Public Trusts Act.

It may be recalled that Venugopal had earlier raised a complaint before the former CJI NV Ramana that the Wakf Board had attempted to remove him as the lawyer (while he was the Attorney General) and had sought contempt action against the Board.

Venugopal, at the start of the hearing, threw light on why the Wakf Act, 1995 was enacted.

"The Act repealed the 1954 Act and was enacted to provide for better administration of Wakfs. The Act is a complete code dealing with the administration and supervision of Wakf and Wakf properties."

The Act provides for survey of Wakfs existing during the commencement of the Act by the Survey Commissioner of the Wakf. The Act also provides for a Board of Wakfs whose primary duty is to examine and notify the list of Wakfs prepared by the Survey Commissioner. The Act has also established a Wakfs Tribunal to decide disputes relating to Wakf and Wakf properties.

During the hearing, he said,

"Authorities are set up under the Act to settle the issue if a property is Waqf property or not…..Therefore, first would be the identification by the Board. If Board decision disputed, then civil court."

It was also pointed out that a very large section of Waqfs excluded by definition of Waqf as the definition in the Bombay Trusts Act, 1950 definition is different from the Wakq Act, 1954.

The High Court had quashed the constitution of the Maharashtra State Board of Wakfs on the ground that the on the date of constitution of the Board by the State government there was no survey report as to the number of Shia or Sunni Wakfs existing in the State.

"That as per the High Court firstly Survey report will have to be completed only thereafter Wakf Board can be incorporated. In 90% of the States, survey report is yet to be completed."

Venugopal also informed the Court that Board of Wakfs is not dependant on the report of the Survey Commissioner of Wakfs. It's not a condition precedent for the establishment of Board of Wakfs, he submitted while adding that survey is simply the process of identifying the subjects which would be controlled and supervised by the Wakf Board.

He also took the Bench through section 5 of the Act which requires the State government to forward the report of the Survey Commissioner of Wakfs to the Board, which is required to examine and publish the report as a list of Wakfs.

The High Court had directed that until survey is completed and the Wakf Board is constituted, the provisions of the Bombay Public Trusts Act, 1950 would continue to apply to all the Muslim Public Trusts.

It was submitted that the High Court had failed to appreciate that the Wakf Act, being a special Act would prevail over the State legislation of general nature.

Venugopal also objected to the High Court quashing the 'List of Wakfs' published by the petitioner while exercising its power under section 5(2) of the Wakf Act. The senior advocate submitted that this was because of an erroneous reading of the 9^th report of the Joint Parliamentary Committee.

"JPC finds that there was an under inclusion of Waqfs. This was accepted by the State. Whatever shown in the list, they cannot be treated as public trusts. Whether you set aside and restore it, it makes no difference. Prima facie, these are Waqfs. Charity Commissioner (under the Bombay Trusts Act) has no jurisdiction to deal with the matter. He should have left it to the Board and the Tribunal (under the Wakf Act)."

It is wholly illegal for the charity commissioner to have agreed to transfer these Waqfs, Venugopal pointed out.

Venugopal also took the Court through the members of the Board. "A non-muslim is disqualified. Members of board have to be Muslims and over 25 years."

Then, then Bench asked,

"What is the legal requirement... Originally it is that the Chairperson will be elected from among themselves. Such a law is not there… What is the ground that the High Court says that presently there only 2 members?.. We are on the question of composition of the Board."

Venugopal then relied on section 22 of the Wakf Act which state that vacancies will not to invalidate the proceedings of the court.

He also contended on the petitioner's wrongful inclusion in the 'List of Wakfs'. The Wakf Act provides for filing a suit before the Wakf Tribunal, if the mutawalli of a Wakf or any interested person has a grievance regarding the wrongful inclusion of Wakfs in the list prepared by the Wakf Board. The respondents filed to availed to avail the statutory remedy and directly approached the High Court, it was added.

As the hearing formed shape, the Bench opined that since there are many petitioners, it would be better there is clarity in the number of petitions and what's the prayer in each one.

"Which are the writ petitions challenging the Constitution of the Wakf Board, the incorporation and challenging to charity commissioner's notification? We need clarity of facts. There are 57 petitions."

The Court also went through the four findings of the High Court in the order. "….the incorporation of Waqf, that present number of board members is 2, that survey report is bad, last is para 2 which speaks on Bombay Public Trusts Act. These are findings that we have to deal with."

Going through the High Court order, Bench said that the a public trust is a larger circle.

"With great respect, public trust is a larger circle, Waqf is a smaller one. Every public trust need not be a Waqf. It's not merely a matter of registration. It's a shift from the Public Trust Act to a regime under Waqf"

The hearing will continue today.

Background

In the impugned order, the bench of Justices DK Deshmukh and Anoop Mohta of the High Court 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