Can Waqf Board Exercise Full Power w.r.t. So-called Trusts, By Inquiry After Individual Notice to All?: SC Suggests
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The Supreme Court on Thursday 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, 1995The bench of Justices K. M. Joseph and Hrishikesh Roy orally suggested to the parties an alternative route for resolving the present controversy.The bench said to...
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The Supreme Court on Thursday 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
The bench of Justices K. M. Joseph and Hrishikesh Roy orally suggested to the parties an alternative route for resolving the present controversy.
The bench said to the advocates for the appellant-Maharashtra state Board of Waqfs, "Subject to our views on the validity of the incorporation of the board, as to the manner in which the survey has been conducted, there is a problem...there is a lock stock and barrel acceptance of whatever the charity commissioner makes over to you and treating it as a waqf and then saying that you go to the waqf tribunal. There is patent abdication of your responsibility under the law and then you drive them to the tribunal. On the other hand, if you do everything and make a proper enquiry, given the proper distinction, and then also if they have to go to the tribunal, then there is no difficulty"
Continuing, the bench explained, "So the other way of doing it is that, even assuming that this list ('List of Waqfs' published by the appellant-board while exercising its power under section 5(2) of the Waqf Act) is defective, the board retains the power under section 40(3) of the Waqf Act (which says 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), even with regard to the properties of so-called trusts registered under any law. If the board is left free to exercise its full power with regard to the so-called trusts which, according to you, are hiding under the identity of a trust but are in substance a waqf, then the board can undertake this inquiry after giving individual notice to all of them. Which means the board retains its control. We can do it today. We don't need to contemplate more. That would cut it short"
Bench: "The suggestion is that we may not agree with the High Court with regard to the theory that the survey should be completed first and then the board should be constituted. Further, we may not agree that there should be, mandatorily in all circumstances where there exist 15% Shia, a separate board. That we may not agree with. But even then three issues will arise, namely, the list being defective, the survey being defective, and this lock, stock and barrel accepting the report of the charity commissioner and treating all as waqf. Because there is an order passed by this court in 2012, a certain position is holding the field till today. If that is on the basis of the bifurcation, the number of institutions that have been treated as waqfs, the number of institutions that are being treated as trust, we will maintain that position, and we permit the waqf board to exercise its full power. It has its power, it doesn't need our nod for it"
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.
Senior Advocate K. K. Venugopal, for the appellant-Board: "So far as the section 4(5) is concerned (which provides that if, during the inquiry by the survey commissioner, 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), it requires only the looking at the document, that is the trust deed, whether it satisfies the definition of a waqf or not..."
Bench: "There is a problem with that. Waqf does not require a deed. You can have a waqf which is an oral waqf. What is required is a dedication. In the case of a trust deed, though 'trust' is not defined in the Public Trust Act, but 'public trust' has been defined. As per that, 'trust' can arise by constructive means also..."
Mr. Venugopal: "It is a very rare case that there would not be a deed. It has gone down to children to children to children, to heir to heir to heir which can only be done through an expression of deed"
Bench: "One way to deal with the controversy is to allow you to use your power under 40(3). The only requirement of 40(3) is that even if it is not there in the list of waqf, it is a trust registered under the Bombay Public Trust Act, but the board takes the view that it is a waqf, it has to follow the procedure, give individual notice, conduct enquiry...Once you have the number and we allow you to do that, because they (the opposite parties) are not concerned with the property which has been declared as waqf, they cannot have a concern. We can also say there is an implied repeal of the Bombay Public Trust Act. They would not have a problem, they would have to come over to the new regime under the 1995 (Waqf) Act"
Bench: "Procedure under 40 is a quasi-judicial procedure because it contemplates an enquiry and the board will come to a conclusion that it is a waqf property and does not come under the Public Trust Act. Because then you have a right of appeal to the tribunal. It is a matter of great moment that the enquiry must be independent. It cannot be abdication or dictation by an outside body like the government acting under 97 (of the Waqf Act, which says that the state government may, from time to time, give to the Board such general or special directions as it thinks fit and in the performance of its functions, the Board shall comply with such directions). For a quasi-judicial body under 40(3) to act in accordance with the government is a great danger. It would be so easy for the government to say...For example, you are a particular trust. You say you are running 6 to 8 schools. You have 15 trusts under you. There are a whole lot of convoluted set of facts. Your project that. The matter is going on before the waqf board. Evidence is produced. Then somebody goes to the government and the government gives a direction to the board that treat this as a public trust, or treat this as a waqf. Either way, both would be flawed. Because then you are robbing the quasi-judicial body of the duty that it has. Government cannot have that power"
However, as the Charity Commissioner was not represented before the Court, and the counsel for the state of Maharashtra sought time to seek instructions in the matter, the bench proceeded with the hearing.
Earlier on Thursday, Senior Advocate Harish Salve, for the respondents, had made his submissions- "I am on 3 broad issues- first, whether a settlement of property as a trust by a person born in the Muslim faith must necessarily be treated as a waqf. The answer to this plainly has to be 'no'. Nobody has argued that,they want your lordships to leave that question open. Second, whether the declaration of a property as a waqf property solely going by the religion of the Settler is illegal. What happened in the present case is that prior to the 95 Act, they were registered with the charity commissioner. Later, wherever the name suggested it was a Muslim Settler, they were en masse transferred to Waqf Act. It is plainly illegal. You can't do that. Third, whether the waqf board could have been constituted ab initio without the initial survey. There are provisions in the constitution of electoral colleges which depend on the number of waqf. Even within the Muslim community, there are two broad denominations. You have to know whether you must have a Shia member or not. This is an all-India Act- in some states, they (Shia Auqaf) may be sufficient so that you have to have a Shia member, it may be not so in other states"
On Tuesday, Mr. Venugopal had contended that the Waqf Act provides for filing a suit before the Waqf Tribunal, if the mutawalli of a Waqf or any interested person has a grievance regarding their wrongful inclusion in the list prepared by the Waqf Board. He had argued that the respondents failed to avail the statutory remedy and directly approached the High Court.
Mr. Salve: "The waqf tribunal can decide whether a particular settlement is a trust or a waqf, whether the boundaries are correctly defined, who are the trustees or the mutawalli, whether a property is waqf property. Here was a broad challenge saying that the whole thing is illegal root and branch. It is far beyond the jurisdiction of the waqf tribunal. This is not a matter which any statutory tribunal can decide, that is why we went to judicial review"
Mr. Salve further advanced, "In 13(2) of the Waqf Act, the 'may' must be read as 'shall' (13(2) states that 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 establish a Board of Auqaf each for Sunni auqaf and for Shia auqaf). It impinges on the rights of a community to have their own waqf board. If your lordships look at 14 for a moment, it says the board of a state shall consist of one and not more than two members which the government may think fit to be elected from each of the electoral colleges. And one of the electoral colleges is consisting of mutawallis of the auqaf having an annual income of rupees one lakh and above. 'Mutawallis' is a specific word. Trustees of a secular trust are not mutawalis...So we must first have a list of waqf, which will come up in the survey...This is my right of self governance. These persons are not cherry-picked by the government. The electoral colleges consist of Muslim members of the Parliament, of the state legislature, of the bar Council. And far-reaching powers are conferred on the waqf board; it is a democratisation of the process"
Bench: "From 16.8.2002, the board had seven members. Whether they have been appointed, nominated, selected in terms of section 14 of the Act? Whether the requirement of 14(5) was met (14(5) says that 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). The first question is if there is a shia member?"
An advocate for the Board advanced that actor Shabana Azmi is a Shia member
Mr. Salve: "Shabana Azmi is not a Shia. What is he saying?"
Advocate: "I am reading from Google. 'Shabana Azmi was born in a Shia family'..."
Mr. Salve: "Don't go by Google. You just Google on the phone and start reading in the court? This is a serious matter"
Bench: "If you go by that, somebody may say she is a non-believer"
Mr. Venugopal: "state of Maharashtra's counter-affidavit expressly says that Shabana Azmi, member of Maharashtra state Waqf Board, is shia"
Bench: "Has the high court dealt with this contention and found that she is not a shia?"
The advocates replied in the negative. It was indicated that apart from Azmi, there is another Shia member also.
Mr. Salve: "Can I show their own affidavit? There is an admission in the affidavit
You take a Sunni and appoint them as an eminent shia member? That is not fulfilling the law! Instead of websites and phones, let us open the counter affidavit. Also, on the same date that the list is published, you nominated someone as a Shia member? What is the use?"
Mr. Salve: "Survey Commissioner gave the report to the Maharashtra government and it forwarded the same to state Wakf Board. The list was published under section 5(2). Also, the government of Maharashtra forwarded the list of the trusts obtained from the charity commissioner and these are also included as per section 40(3). They have wholesale taken the charity commissioner's list which was based on his understanding of the names, and which obliterated the distinction between secular trust and waqf! Even if you had the committee, you had the wrong list. This is a fatal flaw. This is a very fundamental point!"
Mr. Salve: "Definition of 'waqf' in the 1995 Act, how it has to be construed- Please look at section 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'...The dedication must be with the intention that it will be governed by Muslim law. Because if it is read literally, what is pious purpose? Across religions, it is the same- relief to poor, medical relief, looking after pilgrims, whether you are pilgrims to Jerusalem or Mecca. All religions accept these as pious principles. It is not that any person who sets up a trust with purposes which overlap with the piety under the Islamic law will become a waqf. The cardinal feature of what is a waqf, we don't need to reinvent the wheel, this court has settled this"
Mr. Salve: "It is clear that a very important dimension of the matter is the distinction between a secular trust created by a Muslim and a waqf. The charity commissioner's list has influenced the making of the list of waqfs, that list must go. There has to be a section 4(1) list now. All of us must be heard before the survey commissioner. Then it will go to the board. Then if individual trusts or individual entities have an issue, that the tribunal can decide. And the survey is underway- once your lordships clarify the distinction between trust and waqf...This is a public good, the idea is not to run away from the board or to aggrandise with the board"
Bench: "What, according to you, is the procedure to be adopted by the survey commissioner under 4?"
Mr. Salve: "They have not framed any rules. But they give public notices, they ask people. The commissioner must go through the list. He must hear a shia trust or sunni trust, see the nature and object of every trust, gross income, land revenue, cesses, etc. But it has to be a participative procedure. I don't need to be wax-eloquent about the sensitivities of this issue. Nobody should feel we have been bundled up with somebody else. Because there are divides amongst us so far as these areas are concerned. I conclude by saying nobody is hurt by this process. The ultimate idea is not whether 'A' or 'B' wins. On the one hand, you have public charities which have the right of self governance. On the other hand, you have the government which is trying to regulate them for their own good. There is a waqf board of your own community, like a jury of your own peers. And creating a waqf board of your own community can only be sustained if it is limited strictly to those entities which are governed by that system of law. A secular trust cannot be governed by the kind of board which is constituted under the Act. Therefore, this distinction is of critical importance"
On Thursday, the bench inquired from Senior Advocate A. M. Singhvi, for 3 respondent-trusts, as to what the reality on the ground is today. "Fortunately, the interim order (of the Supreme Court) is governing the situation, otherwise, there would be a lot of discontent. En masse Sunni has become Shia. Ashrafi is classified not as Shia. Dawoodi Bohra is shown as Sunni. Your Lordships may judge what is the community reaction", Dr. Singhvi had responded
Case Title: Maharashtra State Board of Waqfs v. Shaikh Yusuf Bhai Chawla & Ors.