Whether Every Charitable Trust Established by Someone Professing Islam Is Waqf?: Supreme Court Starts Dictating The Order
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The Supreme Court on Wednesday began dictating its order 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 was dictating its order on the Maharashtra state Waqf Board's appeal against the 2011 decision of...
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The Supreme Court on Wednesday began dictating its order 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 was dictating its order on the Maharashtra state Waqf Board's appeal against the 2011 decision of the Bombay High Court where the High Court had quashed the constitution of the Maharashtra state Board of Waqfs on the ground that 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 waqfs existing in the state. 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.
The bench of Justices Joseph and Roy addressed the first contention regarding the incorporation of the Maharashtra state Waqf Board. The bench noted that the incorporation of the Waqf Board is essential for the working of the 1995 Waqf Act, that it is for the reason that the Board is a fulcrum around which the whole control of the waqfs is to take place.
'We are unable to perceive section 13(2) as creating an inviolable duty on the government to create separate boards for Shias and Sunnis upon the figure of 15% in section 13(2) being exceeded. In a given case, it may be, say, 16%, in another case, 40%'
The bench noted, "We have noticed that with respect to section 13 of the Waqf Act, the High Court has found that the notification incorporating the appellant-board was flawed as it was not preceded by survey under section 4 that the Act contemplates for providing the data which is requisite for the government to determine whether to constitute separate Sunni and Shia boards. Section 13(2) provides that the government may have separate sunni and shia boards if the conditions mentioned therein are met (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 government may establish a Board of Auqaf each for Sunni auqaf and for Shia auqaf). The problem posed is the impossibility of finding out the solution to this in absence of relevant data. According to the high court, the relevant data is the survey under section 4 and the government will be obliged to constitute separate boards for the 2 sects if the 15% criteria is met...The use of the word 'may' is not to be brushed aside without due reference to the knowledge that the legislature chooses its words...the search for the object and the context has taken us to the difference between sunni and shia. The principal sect of muslims in India are undoubtedly sunnis. This is by way of population. The difference between shias and sunnis may be in the philosophies and certain aspects of the practices as well. At the same time, we must not lose sight of the fact that both sunnis and shias profess Islam as their faith. As regards the fundamental belief of the oneness of God Almighty, Prophet Mohammad and other fundamental tenets of the faith, there is no or little difference between sunnis and shias. Shias themselves have branched out into 3 main branches- Ithna Asharis, Ismailis, Zaidis. It is with this special background of the difference between the subsects of islam we must carry the discussion forward. The legislature itself has taken legislative notice of the existence of the 2 different sub-sects in Islam in providing for 2 separate boards based on the percentage of waqfs of shia as a ratio to the total. However, we are unable to perceive section 13(2) as creating an inviolable duty on the government to create separate boards upon the figure of 15% in section 13(2) being exceeded. In a given case, it may be, say, 16%, in another case, 40%. There is a wide range between the 2 ends of the spectrum. We are unable to perceive any reason at all to burden the government with the obligation to provide for separate boards, with the expenditure that entails, if the shia waqfs exceed the percentage indicated in section 13(2)"
'In our view, a survey under section 4 must in all cases be done first and thereafter alone the Board can be incorporated'
The bench observed that section 4 deals with the survey of waqfs in the state, that the survey report is to be given to the state government which receives it under section 4(3)- "Section 4(3) does not speak about any other duty of the government except to forward it to the waqf board. Naturally, the question arises as to how, if the survey supersedes the incorporation of the board, for the working of the provisions as enacted, the board could be consulted. The High Court says upon receipt of the survey report, it is not necessary to immediately send it over to the board. Learned counsel for the respondents would also emphasise that the view which would best ensure the operation of all provisions of the Act and fulfill the object would be to adopt the following course- upon receipt of report by the government under 4(3), the government can constitute the board under section 13, doing full justice to complete the demand of 13(2) and to also comply with section 14(6). The argument is indeed attractive. However, the foundation of the reasoning of the high court appears to be that 13(2) provides for the duty to form 2 separate boards upon the percentage under 13(2) being exceeded. We are unable to allow any such mandatory duty to form two separate boards. This overturns the fundamental basis of the high court"
The bench continued to state, "As far as 14(6) (which 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) is concerned, at the time of constitution of the board, the number of waqfs and the value of the waqfs is to be considered...in our view, a survey in section 4 must in all cases be done first and thereafter alone the board can be incorporated. We cannot be totally unmindful to the fact that the existence of the board is vital to the Act in view of the powers and functions of board to regulate the activities of waqf, section 36 casts a duty on every waqf to get itself registered with the board, section 40 is another important function of the board...It is in these events that the incorporation of the waqf board at the earliest assumes importance"
"At same time, we are duty bound to express our concern and ventilate our pain at noticing that an amendment had to take place in 2013, after good 18 years of the passing of the Act in 95, under which it is provided that where waqf boards were not appointed, it had to be appointed within 1 year of the amending Act. This no doubt alerts us to the fact that the Act did not provide for any time limit for the government to incorporate a board. To this extent, we acknowledge that the Act did not provide for a sense of urgency qua the govt to constitute a board...We are also not unmindful of the fact that the survey commissioner was appointed in 97 and was in the process of submitting the report, and just 3 weeks before the report was submitted, the waqf board was constituted...We cannot stand in the way of the lawful incorporation of the board even without receipt of survey report. We can not possibly uphold the view taken by the high court that the incorporation of the waqf board was illegal", held the bench.
Case Title: Maharashtra State Board of Waqfs v. Shaikh Yusuf Bhai Chawla & Ors.
Argus Partners represented the Dawoodi Bohra Trusts in the lead petition and other related trusts.
The Argus team consisted of Abeezar Faizullabhoy (Senior Partner), Murtaza Kachwalla (Partner) and S.M. Algaus (Senior Associate).