"How Careless The Government Has Been": Supreme Court Questions Maharashtra Govt. On The Constitution Of Waqf Board
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The Supreme Court on Tuesday resumed hearing 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.Last week, the bench of Justices K. M. Joseph and Hrishikesh Roy had orally suggested to the counsel in the matter an alternative route for resolving the dispute-...
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The Supreme Court on Tuesday resumed hearing 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.
Last week, the bench of Justices K. M. Joseph and Hrishikesh Roy had orally suggested to the counsel in the matter an alternative route for resolving the dispute- asking if the Maharashtra state Waqf Board can be left free to exercise its full power under section 40 of the 1995 Waqf Act with regard to the so-called trusts which, according to the Board, are hiding under the identity of a trust but are in substance a waqf, by undertaking an inquiry after giving individual notice to all of them.
On Tuesday, Senior Advocate K. K. Venugopal for the Maharashtra state Waqf Board submitted, "We really need to find a solution that justice is done to both those who claim it to be a public trust and to the board. Your Lordships need to realise that a large number of lands have been classified as public trust and they have been transferred by the charity commissioner, huge buildings have come up on that, and therefore, now the question is how do you ensure that so far as the board is concerned, it is recouped-either the land comes back or today's value of the land is given. I think it will be unfair if, for 20-30 years, the lands have been transferred and buildings have come up on that and now it is ordered to demolish the buildings. In such a case, a just and fair solution would be to call upon them to pay the market value of the land as of today so that the funds of the trust are recouped, otherwise the authors of the trust will have to be to be asked to take away the material etc"
Bench: "What you are saying is based on a lot of assumptions. You are assuming that the land is waqf land. Your statement
Mr. Venugopal: "These trusts have been passed from heir-to-heir for hundreds of years. The present trustees do not have any real interest in the purpose for which the trust has been created. This land has appreciated in value tremendously. In 1890, the land cost one lakh, today, it costs 1000 crores or so. Many of the lands are in very valuable areas like Colaba. If it is a public trust, then the heirs will transfer it at very high profit. Because they were never the authors of the trust and they are not interested in the purpose of the trust. And then they get this money, they keep it and use it. They will not invest that money in a similar purpose. So someone has to investigate all this, find out as to what has been done with these properties. An enquiry, after notice to the parties concerned- the beneficiaries, authors, authorities, trustees, has to be done to find out if it is really waqf property. And some of the lands are vast lands. In 1800s, vast lands were being dedicated as trusts. It could be trust, it could be waqf. Some solution has to be found. And section 40 (of the 1995 Waqf Act) is the real answer..."
Section 40(1) of the Waqf Act states that the Board may itself collect information regarding any property which it has reason to believe to be waqf property and if any question arises whether a particular property is waqf property or not or whether a waqf is a Sunni waqf or a Shia waqf it may, after making such inquiry as it may deem fit, decide the question. Section 40 (2) says that the decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the Tribunal, be final. Section 40(3) provides that where the Board has any reason to believe that any property of any trust or society registered under any law is waqf property, the Board may hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is waqf property, call upon the trust or society either to register such property under the Waqf Act as waqf property or show cause why such property should not be so registered.
The bench on Tuesday also criticised the state of Maharashtra for having been "careless" in the constitution of the Board.
Bench: "The actual constitution of the board is given under section 14 (which says that the number of elected members of the Board shall, at all times, be more than the nominated members). You have nominated four members- one is Dilip Kumar, a film star and a Rajya Sabha member, another is Shabana Azmi, again a Rajya Sabha member, the third is somebody who is also nominated. Now how do you fit in the minimum category by 13.11.2003, on which the first list of waqfs comes out, for discharge of duty under section 5(2), the requirement being a correctly-constituted board? Because the minimum is seven and the seven have to be drawn from distinct categories. What do you say about there being no mutawalli at all? The government could have nominated one, there is a provision in section 14(3). You may say that a vacancy will not make it invalid, but can you stretch it to the extent of being in violation of the diktat that you must have more elected members than nominated members? You have four nominated members. And only on the day you bring out the list, you nominated the fourth member as a Shia member. On the very day the list comes out, you appoint the first Shia member. The Shia member was appointed on the last date when the list came out, the finalisation of which took place earlier, so what was the use? When your constitution is so defective, and the list comes out on 13.11.2003, is there a board within the meaning of section 5(2) that could have examined it? When you don't have the essential members- mutawalli is not there...?"
Bench: "How careless the government has been. We are forced to comment that they have been absolutely careless. It is intolerable that you can treat the institutional waqf in this manner, that you don't care two hoots what happens"
The bench added to the counsel for the Waqf Board, "It is not your fault. Your originator is the government, you are only the progeny. Unfortunately, when you were created, they did not father you in the proper way. In between the creator and the progeny, there is the law and we are only concerned with it"
Earlier in the day, Senior Advocate Harish Salve, on the respondents side, had also replied to the bench's suggestion from last week.
Mr. Salve: "If one goes back to the fresh list which is being prepared, there are two concerns, one is that the waqf board has passed orders in the past and if you wipe the slate clean, you may be in a vacuum. So if, after the fresh list, there are certain settlements which were recognised as waqf in the old list and even in the new list, so by the principle, de facto those orders could be upheld. If the waqf board has made any orders with regard to an entity which turns out to be a trust, then that order go"
Mr. Salve: "Secondly, the whole confusion started because the Charity Commissioner (under the Bombay Public Trusts Act) went through his list and wherever he found a Muslim name, he copied it and said this is a waqf. Your Lordships may clarify that section 3(r) (definition of 'waqf' in the Waqf Act) will apply only to waqfs, and as to what is a 'waqf' has been very succinctly set out in the interim order passed by Your Lordships on 11th May, 2012. The reason I am saying this is because the waqf board insists that this is an interim order and it will dissolve when the matter is finally settled. That may be, but I am submitting that this principle which is set out very succinctly in the interim order and which is the reason why at the interim stage Your Lordships passed an elaborate order, this principle is unexceptionable. What shocks me is the waqf board's insistence that 'please clarify this order is no longer in force'. If this clarification also goes, then we are back to where we started from"
In the May 11, 2012 order, the Apex Court had noted that "There is a vast difference between Muslim Waqfs and Trusts created by Muslims. The basic difference is that Waqf properties are dedicated to God and the 'Waqif' or dedicator, does not retain any title over the Waqf properties. As far as Trusts are concerned, the properties are not vested in God. Some of the objects of such Trusts are for running charitable organisations such as hospitals, shelter homes, orphanages and charitable dispensaries, which acts, though recognized as pious, do not divest the author of the Trust from the title of the properties in the Trust, unless he relinquishes such title in favour of the Trust or the Trustees. At times, the dividing line between Public Trusts and Waqfs may be thin, but the main factor always is that while Waqf properties vest in God Almighty, the Trust properties do not vest in God and the trustees in terms of Deed of Trust are entitled to deal with the same for the benefit of the Trust and its beneficiaries". Noting that the difference between Trusts and Waqfs appears to have been overlooked and the High Court has passed orders without taking into consideration the fact that the Charity Commissioner would not ordinarily have any jurisdiction to manage the Waqf properties, on May 11, 2012 the Apex Court had restrained all those in management of the Waqf properties from alienating and/or encumbering the Waqf properties during the pendency of the proceedings before this Court."In relation to Waqf 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 Waqf 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.
Bench: "Once the central Act, the 95 Act has come, it prevails because it is in the concurrent list. And it is a self contained, exhaustive code. As to what a waqf is, it is to be discerned from the definition in the Act. The Act applies to all waqfs. Section 3 contemplates carrying out of a survey, a preliminary survey, and the report is to be submitted by the survey commissioner. The report is immediately not published, it is made over to the board, the board examines it. What is published is the list which is approved by the board. It gets final shape only after somebody moves the waqf tribunal within a period of one year of the publication of this and it is mentioned that unless modified by the Tribunal, the list is final. Now you take a case where in the list of waqfs, the survey commissioner does not include a certain waqf, or does not include certain properties as part of a waqf. A list of waqfs is not the same as a list of properties of waqf. This is important because even if the list is published by the survey commissioner and the board, but a particular waqf is missed out, what is the consequence? Then there is an obligation by virtue of section 36 (which provides that every waqf, whether created before or after the commencement of this Act, shall be registered at the office of the Board and the application for registration shall be made by the mutawalli), every person is bound to get it registered. It is pointed out it is punishable if you don't do that. So the fact that it is not there in the list may not derail the waqf board if it takes action against the mutawalli, the latter cannot say that because I am not in the list, I can slip out of the net. Section 40 is a provision which must be probed further. 40 subsection (1) is to be read with 40 subsection (2). 40 subsection (3) is to be read with 40(4). Subject to the party going to the tribunal, the power of the board to get the waqf property, if the board is of the view that it is actually waqf property, after following whatever is the procedure which includes principles of natural justice...also, what is provided specifically is that notice is to be given not to the trust but the authority which registers the trust, so that under the Bombay Trusts Act, it would be to the charity commissioner. So if there is a waqf which is not there in the list but the property is actually a waqf property, even if it is masquerading as something else, it doesn't matter, because they can get it. Even if it is registered under the Bombay Trust Act, even if it is disguised as a trust, once you have dedicated it, it cannot be alienated. The Act recognises the principle because it says that you cannot sell it"
Mr. Salve: "Today, we are grappling with list one. We are at section 4 stage, we have not reached section 5 stage. What concerns me is that perhaps the charity commissioner was misdirected because of the language of section 3(r)- 'permanent dedication' means the permanent dedication of the kind that makes it a waqf, that is, permanent dedication to God; that it cannot never be alienated, it must always remain for that service, the pious purpose. Trustees become legal owners, whereas here, the owner is God, the mutawalli is only the manager. That is the cardinal difference between a trust and a waqf. My concern is because the waqf board has so strongly argued that the interim order will come to an end, these observations of what is a waqf should find place in your lordships' judgment. Step number one is section 4, which is at the level of the state which gets a list drawn and gives it to the board. That is not conclusive, either way, of the waqfs included or excluded. Starting with section 36, there is a mandatory duty to register. 36(3) requires description of waqf properties. Once that is done, that enquiry is all-encompassing. Suppose I am a mutawalli, I come and say that these are my properties, you find in the investigation that there are some properties which have conveniently been left out, you can do it here under 36. There is a mandatory duty in 36 upon a person maintaining the waqf to get it registered. There is a corresponding power- 40 subsection (1) says the board itself is supposed to collect information if it has reason to believe...The board can look at wrongful additions and wrongful exclusions. It is not bound by the list. The power comes from section 40, the board does its enquiry and can say that your survey commissioner has excluded all this"
Bench: "The board may not be having the authority to delete, but only to bring in properties which may have been left out"
Mr. Salve: "Yes, I correct myself. The scratch-out is by the tribunal. But if somebody is left out, there is still a two-way duty- 36 doesn't let you off the hook, the mutawalli's independent Duty to register continues...Once the board is properly constituted, once the list is properly published, there will be no concern. All these fears are unfounded...If somebody is missed out, the board has the power under 40(1) and mutawalli has a duty under 36. If somebody is wrongly included, you can go to the tribunal"
Case Title: Maharashtra State Board of Waqfs v. Shaikh Yusuf Bhai Chawla & Ors.
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