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Wakf- Community Members Want To Use Secular Law, It Can't Be Prohibited; Public Trust Act Will Apply to Muslim Public Trusts: Dr. Singhvi To Supreme Court
LIVELAW NEWS NETWORK
12 Oct 2022 9:11 PM IST
The Supreme Court on Wednesday 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 heard Senior Advocate Abhishek Manu Singhvi, for 3 respondent-trusts.Dr. Singhvi: "The issue no. 1 is whether...
The Supreme Court on Wednesday 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 heard Senior Advocate Abhishek Manu Singhvi, for 3 respondent-trusts.
Dr. Singhvi: "The issue no. 1 is whether a Muslim is capable of creating a public trust not being a waqf and whether such Muslim public trust is registered under the Public Trust Act. You cannot have a bootstrap argument saying that because it is picked up by the waqf board, whether it is waqf or trust, simply treat it as waqf. A jurisdictional question cannot be avoided in that manner. Every waqf is a trust of sorts but must obviously be created by a Muslim, but every trust even if created by a Muslim cannot be a waqf...the second issue is whether the Maharashtra Public Trusts Act is repealed by the Waqf Act. The answer is to the extent you are a waqf, it is repealed, but if you are a trust, no, it cannot be. You cannot put apples into a box of oranges and oranges into a box of plums. The repeal will apply to the extent of a waqf. Nobody is against applying the waqf act to a waqf, but not to a trust"
Dr. Singhvi: "Every waqf is a trust created by a Muslim, but every trust created by Muslim is not a, need not be a waqf. That is the heart of the case. Waqf properties are dedicated to God and the dedicater does not retain any title over the property. 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. Although it is recognised as pious, that does not divest the creator of the trust of the properties of the trust unless he relinquishes such title in favour of the trust or trustees. This is my basic submission which is based on 6-7 earlier judgments...The creator of a public trust can also be its beneficiary, which is not so in waqf. That is the most important difference"
Dr. Singhvi: "As per section 2(13) of the Trust Act, 'Public Trust' means an express or constructive trust for either a public, religious or charitable purpose or both and includes a temple, a math, a wakf, church, synagogue, agiary or other place of public religious worship, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered. As per 2(19) of MPT Act, 'Waqf' means a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable. This was the position prior to the Waqf Act coming in. If you are a genuine waqf, you go to the Waqf Act. It is nobody's case that the Trust Act charity commissioner will start dealing with it. Waqf is defined at section 3(r) of the Waqf Act. You cannot, by misinclusion or misdeclaration of a non-waqf as waqf, bring in something where the condition precedent of entering the door is 3(r)...Suppose the community member wants to apply and use a secular law, you cannot say it is prohibited unless there is something special in the customary law...Yesterday, Mr. Venugopal (Senior Advocate K. K. Venugopal for the Maharashtra state Board of Waqfs, the appellant) said that the Waqf Act is an all-India Act. But can it deal with the issue of a person claiming that I am a fire temple or a Hindu temple but you declare me to be a waqf? You cannot say that because you have been declared a waqf, so you must go to a waqf board. If you are a Hindu Temple, can you be asked to go and argue your case before the waqf tribunal? If the law is dealing with temples or 'agyaris', it cannot be 'corresponding law' (so as to be repealed by the Waqf Act). It will be repealed where it is established that it is a waqf; the Public Trust Act will apply for trusts, MPT will have jurisdiction over Muslim public trusts"
The submissions were then made on if the appellant-Board was validly constituted and if its composition was valid. 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. On Tuesday, Mr. Venugopal also informed the Court that Board of Wakfs is not dependant on the report of the Survey Commissioner of Wakfs; that it is not a condition precedent for the establishment of Board of Wakfs. He added 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 Waqf 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 by Mr. Venugopal 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.
Dr. Singhvi: "The Purpose of the Waqf Act is to prevent unnecessary intra- minority strife. There should not in the Shia group any discontentment that we are governed in our waqf by an entity which is not having a proper survey representation. It is nobody's argument even on the other side that there are no Shias of any number in Maharashtra. Now there is no survey, it is a case of putting the cart before the horse"
Section 13(1) of the Waqf Act provides that there shall be established a Board of Auqaf under such name as may be specified. Section 13(2) states that notwithstanding anything contained in sub-section (1), 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. Section 4(1) provides that the state government may appoint for the state a Survey Commissioner of auqaf for the purpose of making a survey of auqaf in the state. Section 4(3) says that the Survey Commissioner shall, after making such inquiry as he may consider necessary, submit his report, in respect of auqaf existing at the date of the commencement of this Act in the state or any part thereof, to the state government containing certain stipulated particulars. Section 5(1) says that on receipt of a report under sub-section (3) of Section 4, the state government shall forward a copy of the same to the Board. Section 5(2) says that the Board shall examine the report forwarded to it and forward it back to the government within a period of six months for publication in the Official Gazette a list of Sunni auqaf or Shia auqaf in the state, whether in existence at the commencement of this Act or coming into existence thereafter, to which the report relates, and containing such other particulars as may be prescribed.
Bench: "So if it is more than 15%, it is mandatory to have a separate board?"
Dr. Singhvi: "My answer is 'yes'. The purpose is that there should not be discontent, dissatisfaction and strife that he is not governed by me, I am not governed by him.
And for that, as per Section 13(2), you would do the survey first, you would find the income first"
Bench: "Read section 13 in a slightly different scenario. We begin with a scenario where there is no survey before the board is constituted, as in the instant case. Now the most important consideration is the use of the word 'may' in a section where the legislature clearly expresses its intention that it will be mandatory to have a board. But whether it would be necessary to have a second board, they have a different opinion..."
Dr. Singhvi: "Why have they said 15%? What is this purpose? The purpose is that you are recognising 2 sub-sections of the minority community. This purpose of creating harmony by having these two communities governed by separate boards will be lost if it is taken to be a condition subsequent and that too a discretionary one"
Bench: "Shia and Sunni are actually denominations of the same community, if we may call them so. The fundamental tenets of the faith may converge. That is a different issue. But it is not that you are having a disparate group like Hindus and Muslims. It is not like they are putting oranges with apples. You must always look at it from the administrative point of view. If you are going to have a board separately for Shias, it all depends upon the facts. So as in this case, after the board is constituted, the survey comes, then the High Court's reasoning is that how can you put the cart before the horse, how can you have the incorporation before the survey. So this overlooks the fundamental aspects that you have to have 5(1), that you have to have a board, before 5(2) happens. Until and unless you have a board which examines...The interpretation accepted by the High Court involves actually avoiding section 5. Without the board put in place, how will..."
Dr. Singhvi: "The simple answer is that you incorporate a board unless you have a state where you know for a fact that there is 1 Shia or 2 Sunnis. If you cross the threshold of 13(1) read with 13(2), then you have no discretion. 13(2) says that the moment you find a number which is touching what you call the threshold inflection point of 15%, then you should have two boards and not one board. That one in 13(1) is at least one.
Bench: "Suppose there is one board which is constituted before the survey, the government has nominated both Shias and Sunnis. Shias are also there on the board. Take this as a hypothetical example. Then the number of the survey comes and it is justified in your view for the application of section 13(2) that a separate board is to be created. Then the question will arise that you already have a board which is giving good representation, not exactly in terms of population or income, but there is representation...?"
Dr. Singhvi: "Then are we not rewriting 13(2) or repealing it by application?"
Bench: "No, we are not. The words in 15% are that it is the condition precedent indispensable for having a separate board. You cannot have a separate board unless you have 15. At the moment you cross 15, the use of the word 'may'..."
Dr. Singhvi: "It is like the Hindu example. Large and disparate sections of the Hindus would not like to be under a common law, though there may not be any permanent fight between them. Similarly, sometimes the Shia will coincide with the fundamentals of the Sunni. There may also be differences, strife and discontent"
Bench: "If you look at section 14(5) which came to be deleted by the 2013 amendment. This was the provision which existed at the relevant time when the matter was decided by the High Court (Prior to omission, it read that where there are Shia wakfs but no separate Shia Wakfs Board exists, at least one of the members shall be a Shia Muslim)"
Dr. Singhvi: "When you have 1% or 14% Shias, this is the answer. But not when you have 15%"
Bench: "Please look at 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)"
Dr. Singhvi: "The idea is that you deserve a separate board if you are 15. But if you are below 14, it is not that you will be completely ignored, you must have some representations"
Bench: "Take an example that the board is constituted first without any survey. If you find out later that there are more than 15% shia, then you can have a separate board. Is there any problem with that? Because the High Court says you cannot separate the board..."
Dr. Singhvi: "State government is the one which commissions the survey, it receives the report, it constitutes the board. This is clearly intended to be prior"
Bench: "In a waqf board which is constituted, can there be reconstitution?"
Dr. Singhvi: "It is a question of establishment of a board of shias and a separate board of sunnis"
Bench: "See section 14(8) (which says that whenever the Board is constituted or re-constituted, the members of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board)...Why we are putting this question to you, there is a purpose. You have a situation where you have a board constituted predominantly of Sunni members. You take a case where it is found to be less than 15%. Your only legal requirement is of 1 shia member. Now take the case of exceeding 15%. Now instead of having a separate board, the government can reconstitute the board"
Dr. Singhvi: "In this situation, where you are more than 15%, I am the government, I get the survey, I read the survey where I find it is 25%. I still constitute one board. Now you are putting to me why it can not be cured by reconstitution of the board. But none of the permutations and combinations will satisfy the substratum condition"
Bench: "Take a case where shias say the income is 16%. Just 1% above the 15. Take another example where it is not just one percent above but it is 50%. There you may have a cause of action, justiciability of the particular decision not to reconstitute. It cannot be one cap fitting all sizes...Is there any obstacle, if the board was to be constituted prior to the survey, and then the survey report comes and it is in excess of 15%, and so the government decides to have a separate board? Legally, is it possible?"
Bench: "The Central Act provides for a complete code. There is a repeal under 112 (of the Waqf Act) and this Act comes into force. It is the procedure which the Parliament has put in place for conducting a preliminary survey, followed by the board being consulted, and finally, with the views of the board, the final list is published. It is only when the final list comes, after consulting the board, which must therefore be in position...it is based upon the final list whether you must have a second board or a third board"
Dr. Singhvi: "The survey received by the state government will tell you whether you have 15% or not"
Bench: "The board is not just a mechanical exercise or routine exercise of power. The Act says it has to 'examine'..."
Dr. Singhvi: "Once we have a Shia board and a Sunni board, we are entitled to have a report, we are entitled to examine it, that report will have so much information about shias and sunnies"
Bench: "13(2) is relatable to 5(1) or 5(2)? (Dr. Singhvi replies 'section 4'. The bench says 'no')...4 is preliminary survey. So there is something which has to be done after that to make it a final survey. Preliminary survey is to be forwarded to the board by the state government"
Dr. Singhvi: "The sequence is state government is entitled to create Waqf boards. The state government initiates a survey, the object of the survey is to inform, educate and enlighten. The next step is that the survey will give you the details of the nature and object of the waqfs, the number of waqfs of Shias and Sunni separately, the gross income of each waqf, the amount of land revenue and cesses. So much information will be in the survey. The next step is the report goes to the state government. After the state government has received it, since I have done it to educate and enlighten myself, I have this wealth of information, then I must decide whether I want 2 boards or one board in order to give meaning to ten other sections of this Act. The very object of this act is replete- waqf, Shia, Sunni, 15%. I have got the information, whatever is the information, I must create one board. Only 2% shias, I will give two shias on the board. 16% shias, I create two boards"
Bench: "The problem with that is on receipt of the report under section 4(3), the state government then forwards it to the board. So it is already constituted. Take the situation in this case as the board is already constituted..."
Dr. Singhvi: "That is the wrong situation"
Bench: "Take your own interpretation that the board is constituted on the basis of this preliminary report. Now you see section 5. The board shall examine the report forwarded. The figures which are there in the preliminary report under 4(3), they attained finality for the constitution of the board under 13(2) only after the board is constituted"
Dr. Singhvi: "They attained finality not for that purpose alone but they attained finality for all purposes at the 13(1) stage. But 5(2) will apply for the second and subsequent survey if the board believes that there is a change in demography requiring it. It will be dealt with under section 4(6) of the Waqf Act. If you created the board, it does not mean it is a supine spectator, it can change. There is one application of mind for the creation of the board. There is another application to post-board creation, which board also read the report and maybe says that we need a second survey or hat we don't need a second survey"
Bench: "A second survey cannot be done except after expiry of 20 years"
Dr. Singhvi: "It can also say that we have now found that the actual figures published in the survey are totally wrong and we are referring it to the government to reconsider that has nothing to do with the initial constitution"
Bench: "More than15 or less than 15 will only emerge after the board sends it back after examining it. At that stage, 13(2) will kick in. Otherwise the government will be acting on an inchoate state"
Case Title: Maharashtra State Board Of Waqfs v. Shaikh Yusuf Bhai Chawla & Ors.
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