Whether Every Charitable Trust Created By A Muslim Becomes A Waqf Property? Supreme Court To Consider

The Special Leave Petitions which assailed Bombay High Court's dated September 22, 2011 was listed before the bench of Chief Justice of India NV Ramana, Justices Krishna Murari and Hima Kohli.

Senior Advocate Harish Salve, appearing for the petitioner, submitted that the issue which needs to be considered is whether every trust should go into Waqf if the settler is a Muslim. He also submitted that the State Government had reconstituted the Waqf Board and wanted a fresh survey for review of all the properties.

The Attorney General for India KK Venugopal pointed out that the impugned order had dissolved the State Waqf Board and requested the bench to confine to the issue of constitution of Waqf. The AG submitted that several other SLPs have been filed against the same order and urged the bench to list all of them together.

During the hearing, CJI Ramana referred to a 2-judge bench decision in the case Mohammed Khasim versus Mohammed Dastagir reported in 2006(13) SCC 497, in which it was held that there was no bar to a Muslim creating a simple English trust and that it is not always necessary that a trust created by a Muslim will always be a wakf.

The CJI quoted the following paragraph from the above judgment authored by Justice Altamas Kabir :

"The law is quite clear that there is no bar to a Mohammedan creating a simple English Trust. It is not always necessary that in order to make a settlement of his properties, a Mohammedan has always to create a wakf. In fact, the said view has been expressed in a Division Bench decision of the Madras High Court in Kassimiah Charities Rajagiri vs. Secretary, Madras State Wakf Board, AIR 1964 Madras 18. In the said case, while confronted with a similar question, the Division Bench observed that a Muslim can endow properties to charities either by adopting his favourite mode of creating a wakf or by endowing property conforming to the law of Trusts. The question whether a particular endowment amounts to a wakf under the Mohammedan Law or to a Trust as recognized by modern jurisprudence, will have to be decided primarily on a true construction of the document establishing the charity. However, it has also been stated in the said decision that vesting of a power of alienation by way of exchange or sale under the document creating wakf is not inconsistent with the document constituting a wakf under the Muslim Law. A dedication to a wakf will not, therefore, cease to be such merely because a power is reserved in the Mutwalli to exchange the wakf lands with other lands or to sell them and purchase other lands so that the lands so taken in exchange or by purchase, might become the subject of the wakf". 

The CJI observed that the issue seems to be settled by this decision.

High Court's decision

In the impugned judgment, the High Court bench of Justices DK Deshmukh and Anoop Mohta had set aside the circular issued by the State of Maharashtra by which it had constituted the Wakf Board that administers all Muslim religious trusts in the State under the Wakf Act and notification of the properties covered under Wakf. The High Court also directed that the provisions of the Bombay Public Trust Act 1950 will govern Muslim trusts till the Waqf Boards are reconstituted.

The High Court had also directed the Charity Commissioner to continue supervising Muslim Public Trusts including the registered Wakfs and had also granted liberty to the states for taking steps which were not registered as Public Trusts. It had also declared as void a 2002 survey report which was submitted to the State. This led to nearly 27,000 waqfs ceasing to exist. The petitiones argue that the High Court's verdict amounts to nullifying the Waqf Act 1995.

On November 29, 2011 the bench headed by Justice Altamas Kabir had stayed the High Court's order which had dissolved the Board by holding it as "defective".

On May 11, 2012 the Apex Court had restrained all those in management of the Wakf properties from alienating and/or encumbering the Wakf properties during the pendency of the proceedings before this Court.

"In relation to Wakf 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 Wakf 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.

Case Title: Maharashtra State Board Of Wakfs V. Shaikh Yusuf Bhai Chawla & Ors.| Special Leave to Appeal (C) No(s).31288-31290/2011