The Supreme Court on Thursday clarified that all Muslim public trusts will not amount to a "waqf".
It said that there is a difference between 'waqf' and a public trust created by a Muslim. Hence, the Court "cannot paint all Muslim public trusts with the same brush as treat them as waqf".
The Supreme Court had 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 issue relating to waqf properties being rigorously and lawfully regulated, if there are public trusts registered under the Bombay Public Trusts Act which are in fact waqfs and which don't fall under section 28 of the Trust Act, they must undoubtedly come under the regime of central Act, the 1995 Waqf Act. The converse also must be stated and highlighted, namely, a muslim public trust, registered, need not be a waqf under the Act", held the bench.
Discussing the constituent elements of the waqf, the bench said, "From definition in the Waqf Act, the indispensable requirement is that there must be a dedication. The dedication must be done by the one who is the owner of the property. It must be permanent; permanent means it cannot be for a period of time, it must be perpetual. A waqf cannot be revoked. The property which is the subject matter of waqf cannot be alienated. The object of waqf must be such that is approved in Muslim law as religious , pious or charitable. It is not the concept of piety or reliousness or charitable nature of the entire world but what is so considered under Muslim law. There is no prescribed mode of dedication, it need not be in writing. If a waqf can be created by attaining and promoting a public utility, the public utility must however be for an object sanctioned in muslim law, and subject to the said condition, whether the beneficiary is Muslim or not, there could be a waqf...Even in the case of a public charitable trust created by a Muslim, the intention of the muslim being to provide for activities for the general welfare and which are secular and for, across the board, all human beings irrespective of religion, then the dichotomy between public trust and waqf would cease to exist".
The bench further observed, "This court has maintained the distinction between a public trust and a waqf. It would be left entirely to the muslim to take a decision as to whether he should adopt the course of a trust or make the dedication by way of waqf. The concept of trust is not unknown to muslims, waqf is described as a trust. A trust need not be perpetual and can be revoked under certain conditions. Atleast under the Bombay Public Trusts Act, sale of the property of a trust is permissible, though only by the previous sanction of the Charity Commissioner. While in case of a waqf, upon dedication, there is implied transfer of property in the Almighty and alienation is impermissible in law".
"We are of the clear view that the law declared in the decision of this court that leaves it open to a muslim to create a public trust or a waqf remains undisturbed.
As to whether an institution is a waqf or a public trust is a mixed question of fact and law. It becomes the duty of whosoever is required to ascertain which of the two it is to carefully attend to the terms of the documents and find the facts, and thereafter the law must be applied. The paramount feature which perhaps would matter in this inquiry would be that the property has been vested by the author of the trust, in the case of a trust, on the trustee; whether there is a power of sale- inalienability will be a factor which would tilt in favour of the institution being a waqf provided the other indispensable features are also present...It is a matter which must be considered with reference to the document, conduct of the parties and other relevant aspects", said the bench.
Partly allowing the appeals, the bench held that though there would be implied repeal of the Bombay Public Trusts Act so far as waqfs are concerned, the passage of the 1995 Waqf Act would not affect the power of the authority in respect of public trusts registered under the Bombay Public Trust Act which are not waqfs- "Section 112 of the Waqf Act provides for repeal. We would take the view that there is a distinction between public trust and waqf. We have already highlighted the difference, it is a matter to be decided on the basis of various features and applying the law as to whether what is registered as a public trust is in fact a waqf or not. No doubt, public trusts which have been registered by way of deemed provision of section 28 of the Bombay Public Trusts Act will have to be treated as waqf. We must hold that a waqf would continue to remain perpetual, inalienable and irrevocable. What was once a waqf registered under the Bombay Public Trust Act, with the passing of the Waqf Act, 1995, such public trust would necessarily be have to be registered under the 1995 Act".
Case details
Maharashtra State Board of Waqfs vs Shaikh Yusuf Bhai Chawla | 2022 LiveLaw (SC) 1003 | CA 7812-7814 OF 2022 | 20 October 2022 | Justices KM Joseph and Hrishikesh Roy
Headnotes
Wakf Act, 1995 - Bombay Public Trust Act, 1950 - There is a distinction between a public charitable Trust and Wakf - A Muslim Public Trust registered under the 1950 Act need not be a Wakf under the Act - However, there are public Trusts registered under the 1950 Act which are in fact, Wakf which fall under Section 28 of the 1950 Act. They must undoubtedly come within the regime of the the Wakf Act, 1995 - What was once a Wakf before the 1950 Act, if it is registered under the 1950 Act, with the commencement of the Act, such a public Trust would necessarily come under the ambit of the Wakf Act, 1995. (Para 178, 183)
Constitution of India,1950 ; Article 226 - Writ Jurisdiction - Existence of an alternate remedy by itself cannot exclude the writ jurisdiction of the High Court -A constitutional remedy cannot be barred or excluded as when the High Court exercises its power under Article 226, it cannot be a case of lack of inherent jurisdiction - Statute may provide for an alternate forum to which the High Court may relegate the party in an appropriate case- It has been a self-imposed restraint which is fairly faithfully adhered to by the High Courts and it is largely a matter of discretion - Referred to Radha Krishan Industries v. State of H.P. (2021) 6 SCC 771. (Para 179)
Wakf Act, 1995 ; Section 4 - The making of survey is not a mere administrative act but it is to be informed by a quasi-judicial inquiry. It is also the law that the surveyor has the power to find whether a particular institution is a Wakf. (Para 145)
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