MAHARASHTRA STATE BOARD OF WAKFS versus SHAIKH YUSUF BHAI CHAWLA & ORS. on 20 October 2022

SUPREME COURT REPORTS

[2022] 12 S.C.R.

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MAHARASHTRA STATE BOARD OF WAKFS

v.

SHAIKH YUSUF BHAI CHAWLA & ORS.

(Civil Appeal Nos. 7812-7814 of 2022)

B

OCTOBER 20, 2022

[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]

Wakfs – Wakf Act, 1995 – Bombay Public Trust Act, 1950 – Public Trust vis-à-vis Wakf – Distinction between a public TrustCand a Wakf – Discussed – Held: What was once a Wakf before the1950 Act, if it is registered under the 1950 Act, with thecommencement of the Act, such a public Trust would necessarilycome under the ambit of the Wakf Act, 1995 – There are publicTrusts registered under the 1950 Act which are in fact, Wakf whichfall under s.28 of the 1950 Act – They must come within the regimeDof the Central Act viz., the Wakf Act, 1995 – Conversely, a MuslimPublic Trust registered under the 1950 Act need not be a Wakf underthe Act – It would be certainly contrary to the unbroken line ofSupreme Court judgments which contemplate such a division betweentwo categories to paint all Muslim public Trusts with the same brushEand glean them as Wakfs – While it is open to a Muslim to create aWakf and ordinarily, there would be the prospect of a reward fordedicating property by way of Wakf, it would be entirely left to aMuslim to take a decision as to whether he should adopt the deviceprovided by an English Trust or make the familiar dedication byway of Wakf – As to whether an institution is a Wakf or a publicFTrust is a mixed question of fact and law – This means it becomes aduty of whosoever upon whom the duty falls, to ascertain whetherit is either and to carefully attend to the terms of the document bywhich the Trust is evidenced if there is such a document and findthe facts and thereafter the law must be applied – It is a matter to beGtested on a conspectus of various features and after complying withthe law as to whether what is registered as a public Trust is, in fact,a Wakf or not – All public Trusts which have been registered by wayof a deeming provision u/s.28 of the 1950 Act will necessarily haveto be treated as Wakfs – This is on the principle that once a Wakf iscreated unless it be a case where the title is extinguished by way of H

exercise of power of eminent domain by the State, the title of theAlmighty though by implication cannot cease.

Wakf Act, 1995 – Wakf – Constituent elements of – Held: Thefirst indispensable requirement is that there must be dedication –Dedication must be by a person who is the owner of the property –Dedication must be permanent – Permanent means that it cannot befor a period of time; it must be perpetual – A Wakf can be createdby a Will also – When a Wakf is created by a Will it is open to theWakif to revoke the will prior to his death – Save as aforesaid, aWakf cannot be revoked – A Wakf, again meaning the propertywhich is the subject matter of a Wakf cannot be alienated – Theobject of the Wakf must be such that it is approved by the Muslimlaw – The object must be religious, pious or charitable – It is not aconcept of piety religiousness or the charitable nature in the eyesof the entire world but what is in consonance with Muslim law –There is no prescribed mode of dedication – A Wakf need not be inwriting – As far as declaration is concerned, it can be inferred fromconduct – A Wakf, as defined includes Wakf by user – A Wakf canbe created for attaining a public utility – The public utility must,however, be for an object sanctioned by Muslim law – Subject tosaid conditions, irrespective of whether the beneficiaries are Muslimsor not, there could be a valid Wakf .

Wakf Act, 1995 – s.4 – Survey under the Act – Held: Themaking of survey is not a mere administrative act but it is to beinformed by a quasi-judicial inquiry – Also, the surveyor has thepower to find whether a particular institution is a Wakf.

Conclusion

Constitution of India, 1950 – Art. 226 – Power under –Exercise of – Effect of alternate remedy – Held: Article 226 confersa jurisdiction or a power on the High Courts – It is a power underthe Constitution – While a statute may provide for an alternate forumto which the High Court may relegate the party in an appropriatecase, the existence of an alternate remedy by itself cannot excludethe jurisdiction of the High Court under the Constitution.

Partly allowing the appeals, the Court

HELD: 1. As to whether an institution is a Wakf or a publicTrust is a mixed question of fact and law. This means it becomesa duty of whosoever upon whom the duty falls, to ascertain whether AB

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Ait is either and to carefully attend to the terms of the documentby which the Trust is evidenced if there is such a document andfind the facts and thereafter the law must be applied. Theparamount feature which perhaps would figure in this inquirywould be the properties being vested either by a Trust, in thecase of a Trust, for a trustee to deal with the property as such.BWhether there is no power of sale, or inalienability may be a factorwhich may tilt the matter in favour of the institution being a Wakfprovided other features which are indispensable are also present.[Para 142][567-C-E]

2. When the State Board of Wakfs has, in law, any reason toCbelieve that any property of any Trust registered under the IndianTrusts Act, 1882 or any society registered under the SocietiesRegistration Act 1860 or the property of any Trust registeredunder any other law, is wakf property, the Board is given certainpowers and responsibility. The Board is clothed with the powerDnotwithstanding anything contained in any of those laws, to holdan inquiry in regard to the said property. The said property mustbe understood to be a property of any Trust which is registeredin this case under the Bombay Public Trust Act because BombayPubic Trust Act would qualify as any other law. The holding of theinquiry is to be preceded by a notice of the proposed action to beEgiven to the authority by whom the Trust or the Society has beenregistered. It is not to be confused with the Trust or the Trustees.It means that the Wakf Board must give notice of the proposedaction to the Charity Commissioner as it is the authority underthe 1950 Act, who registered or registers a public Trust underFSection 18 of that Act. [Para 167][582-C-E]

3. When parliament made the Act in 1995, it was awarethat it would repeal the Wakf Act 1954. Section 40 of the WakfAct is a provision which corresponds to Section 27 of the earlierAct. Parliament must be presumed to know the laws which areGon the statute book. In fact, Parliament must be presumed tobe aware of all necessary facts which would give life to a law andmake it workable, fair and reasonable. Parliament must,therefore, be assumed to know that laws like the Bombay PublicTrust Act were on the statute book. It must be aware that the H

definition of public Trust such as is contemplated under theBombay Public Trust Act took within its sweep Wakfs. Section28 of the Bombay Public Trust Act, in fact, comes to mind.Section 28 of the 1950 Act contemplated that institutions whichwere Wakfs before the enactment of the 1950 Act would bedeemed to be public Trusts under Section 28 and would betreated as such under the said law. As far as other public Trustswhich are registered under the 1950 Act, no doubt, bearing inmind the fact that there is a distinction between a Trust and aWakf, it is a matter to be decided on the facts of each case as towhether what is ostensibly a Trust within the meaning of 1950Act is in substance a Wakf. [Para 169][583-A-D]

4. As far as Section 43 is concerned, it mandates for deemedregistration of Wakfs. Its meaning may be culled out. It mandatesthat notwithstanding anything contained in the chapter, whereany wakf has been registered before the commencement of thisAct, under any law for the time being in force, there is no need toregister the same under the provisions of this Act. Suchregistration is to be deemed to have been made under the Act.Since under Section 2 of the Act, the Act applies to every Wakfwhich is created, whether before or after the Act came into force,it means that whatever is Wakf as defined in the Act which ismade at any point of time, be it before or after 01.01.1996 mustbe registered under the Act [See Section 36]. Registration isintended to bring Wakfs under the close scrutiny of the competentauthority, be it the Board or the executive officers. The wholehistory of the legislation of Wakfs reflects the perception of thelegislature that property which is dedicated to the Almighty forcharitable, religious and pious purposes should be protected. Theprotection must be extended against the Mutawallis and otherswho may deal with the property and thereby, completely destroythe very original purpose of the founder. What would be used forpublic welfare, be it even of sections of a community for certaincases, would all be covered thereunder as provided in the Act.[Para 172 and 174][583-H; 584-A-B, C-E]

5. Section 112 of the Act provides for repeal. There is notmuch controversy that Section 112 by virtue of the repeal it AB

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Aprovides for would effect a repeal of the provisions of the 1950Act insofar as it relates to public Trusts which are Wakfs. TheCharity Commissioner, in effect, when it issued clarification whichwas challenged before the High Court also initially only statedthat according to Section 43 of the Act Wakfs which are registeredas Public Trusts should not be tried under the 1950 Act. There isBa distinction between a Trust and a Wakf. It is a matter to betested on a conspectus of various features and after complyingwith the law as to whether what is registered as a public Trust is,in fact, a Wakf or not. No doubt, all public Trusts which havebeen registered by way of a deeming provision under Section 28Cof the 1950 Act will necessarily have to be treated as Wakfs. Thisis on the principle that once a Wakf is created unless it be a casewhere the title is extinguished by way of exercise of power ofeminent domain by the State, the title of the Almighty though byimplication cannot cease. What was once a Wakf before the 1950Act, if it is registered under the 1950 Act, with the commencementDof the Act, such a public Trust would necessarily come under theambit of the Wakf Act, 1995. [Para 177 and 178][585-C-G; 586-A-B]

6. It is the appellant’s case that Wakf properties need to berigorously and lawfully regulated. However, there are public TrustsEregistered under the 1950 Act which are in fact, Wakf which fallunder Section 28 of the 1950 Act. They must undoubtedly comewithin the regime of the Central Act viz., the Wakf Act, 1995.The converse also must be stated and highlighted viz.; a MuslimPublic Trust registered under the 1950 Act need not be a WakfFunder the Act. It would be certainly contrary to the unbrokenline of judgments of this Court which contemplate such a divisionbetween two categories to paint all Muslim public Trusts withthe same brush and glean them as Wakfs. [Para 183][587-G-H;588-A-B]GNawab Zain Yar Jung (Since Deceased) and Others v.Director of Endowments and Another AIR 1963 SC 985: [1963] 1 SCR 469; Board of Muslim Wakfs, Rajasthanv. Radha Kishan and Others (1979) 2 SCC 468 : [1979]2 SCR 148 and Radha Krishan Industries v. State ofH.P. (2021) 6 SCC 771 – relied on.H

State of Kerala & Ors. v. Mar Appraem Kuri Co. Ltd. &Another (2012) 7 SCC 106 : [2012] 4 SCR 448;Madanuri Sri Rama Chandra Murthy v. Syed Jalal(2017) 13 SCC 174 : [2017] 5 SCR 294; RamjasFoundation and Another v. Union of India and Others(2010) 14 SCC 38 : [2010] 15 SCR 364; Mohd. Khasimv. Mohd. Dastagir and Others (2006) 13 SCC 497 :[2006] 10 Suppl. SCR 1157; The Kassimiah CharitiesRajagiri v. The Madras State Wakf Board 1963 SCCOnline Mad 132; Nawab Zain Yar Jung (SinceDeceased) and Others v. Director of Endowments andAnother AIR 1963 SC 985 : [1963] 1 SCR 469; WaliMohammed (Dead) by LRs. v. Rahmat Bee (Smt.) andOthers (1999) 3 SCC 145 : [1999] 1 SCR 852 - referredto.

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The Kassimiah Charities, Rajagiri represented by itshereditary trustee Sri. R.E.M.S. Abdul Hamid v. TheMadras State Wakf Board, represented by its SecretaryAIR 1964 Madras 18; Abul Fata Mahomed v. Russomoy(1894) 22 Cal. 619 : 22 I.A; Income Tax SpecialPurposes Commissioners v. Pemsel (1891) A.C. 531;Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar andothers AIR 1922 Privy Council 123; Kachchh WakfBoard & Anr. v. Kachchh Memon Jamat & Ors. 1997SCC Online Guj 220 - referred to.

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Baker, Re [Baker, Re, Nichols v. Baker (1890) 44 ChD 262 (CA); Julius v. Lord Bishop of Oxford (1880) 5AC 214 - referred to.

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488SUPREME COURT REPORTS

[2022] 12 S.C.R.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7812-B7814 of 2022.

From the Judgment and Order dated 21.09.2011 of the High Courtof Judicature at Bombay in WP No.2906/2004, WP Nos.357 899 of2011.

With

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Civil Appeal Nos.7930, 7929. 7928, 7927, 7926, 7925, 7924, 7923,7922, 7921, 7914-7920, 7911-7913, 7910, 7909, 7908, 7898-7907, 7896-7897, 7895, 7894, 7893, 7892, 7891, 7890, 7889, 7888, 7887, 7886, 7884-7885, 7872-7883, 7862-7871, 7855-7861, 7853-7854, 7852, 7851, 7850,7849, 7848, 7847, 7846, 7844, 7845, 7843, 7840-7842, 7839, 7836-7838,D7835, 7834, 7833, 7832, 7831, 7830, 7827-7829 and 7815-7826 of 2022.

Tushar Mehta, SG, K. M. Natraj, ASG, Anil Anturkar, GopalShankarnarayan, Vinay Navare, Harish N. Salve, Dama Sheshadri Naidu,Yusuf Hatim Muchhala, Dr. Abhishek Manu Singhvi, Murtaza Kachwala,K. K. Venugopal, Sr. Advs., Sudhanshu S. Choudhari, Abhay Anturkar,EHarshvardhan Suryavanshi, Tejasvi Kumar, Shrirang Katneshwarkar,Vaibhav Kulkarni, Syed Sarfaraz Karim, Ambar Qamaruddin, Javed R.Sheikh, Mohd. Irshad Hanif, Aarif Ali, Pankaj Tiwari, Ms. Shivani Viz,Mujahid Ahmad, Rizwan Ahmad, Syed Ahmed Saud, Daanish AhmedSyed, Mohd. Parvez Dabas, Uzmi Jameel Husain, Aqib Baig, Mohd.Shahib, Mujeebuddin Khan, M/S. Shakil Ahmad Syed, S. M. Jadhav,FBrij Kishor Shah, Adarsh Kumar Pandey, Ms. Shivani Rautela, Ms.Apurva, Satayam Singh, Yusuf Baugwala, Ms. Sana Baugwala, Ms.Gwen Karthika, Ms. Abha R. Sharma, Sachin Patil, Rahul Chitnis,Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bhagla,Gagan Gupta, Mrs. Bina Gupta, K. N. Rai, Shirish K. Deshpande, Ms.GRucha Pravin Mandlik, Mohit Gautam, A. Radhakrishnan, GauravAgrawal, Shishir Deshpande, Nilakanta Nayak, Amit Yadav, SakyaSingha Chaudhuri, P. N. Puri, Rudreshwar Singh, Kaushik Poddar, Ms.Isha Singh, K. R. Sasiprabhu, Mahesh Sahasranaman, Amey Nabar,Vishnu Sharma A.S., Ms. Shivali Chaudhary, Tushar Bhardwaj, PrakharAgarwal, Balaji Srinivasan, Amol Chitale, Nirnimesh Dube, Ejaz Maqbool,H

Pravartak Pathak, Ms. Nandini Deshpande, Yuvraj Satpute, Ms. AnkitaChaudhary, Sagheer A. Khan, G. D. Shaikh, Saif Zia, Sunil Kumar Verma,Ambar Qamaruddin, Moinuddin Algaus Shaikh, Abeezar Faizullabhoy,R. Sudhinder, Ms. Ekta Bhasin, Mustafa Hussain, L. Nidhi Ram Sharma,Nikhil Kumar Singh, Ashok Mathur, Alok Kumar Dwivedi, DesamSudhakarareddy, Ms. Sujata Kurdukar, Nitin S. Tambwekar, SeshatalpaSai Bandaru, K. Rajeev, Rajat Nair, Ms. Swati Ghildiyal, Shailesh Madiyal,Ms. Swarupama Chaturvedi, Mayank Pandey, Madhav Sinhal, NakulChengappa K.K., Amrish Kumar, Ankur Saigal, Anshuman Srivastava,Victor Das, Ms. Anwesha Padhi, Madhavi Agrawal, Kamakshi Sehgal,E. C. Agrawala, Javed R. Shaikh, Sudhanshu S. Choudhari, Ms. SuhasaniSen, Mahesh P. Shinde, Ms. Rucha A. Pande, Veeraragavan M., KamranShaikh, Sunil C. Chung,Hitesh Kumar Sharma, Akhileshwar Jha, Ms.Yamini Sharma, Ms. Niharika Dewivedi, Ms. Shweta Sand, C. M. Jha,T. Mahipal, Aaditya Aniruddha Pande, Mrs. Yugandhara Pawar Jha,Kunal Verma, Ashwin Nair, Ms. Lavanya Dhawan, Ritik Gupta, PunitKhanna, Pranay Thite, Kunal Verma, Praveen Kumar, Ankit Yadav,Tarun Mehra, Gaijala Bhaskar, Ratnesh Sharma, Advs. for the appearingparties.

The following Judgment of the Court was delivered:

JUDGMENT

1. Leave granted.

2. Since the common questions arises in all these appeals, wedeem it appropriate to dispose of the same by the following commonjudgment.

3. The facts leading up to the litigation need to be referred to atthe very beginning.

The Parliament enacted Wakf Act, 1995, (hereinafter referred tofor the purpose of brevity as, ‘the Act’). By order dated 01.12.1997, theGovernment of State of Maharashtra (hereinafter referred to as theState’) appointed a Survey Commissioner purporting to act under Section4 of the Act. A Wakf Tribunal was constituted at Aurangabad by orderdated 30.10.2000. On 04.01.2002, the State incorporated the MaharashtraState Board of Wakfs (hereinafter referred to as Board). Incidentally, itis noticed that four members came to be nominated by very samenotification, the details of which shall be evident in the course of the A

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Ajudgment. The State forwarded the survey report which it received tothe Board which was constituted on 07.05.2002.The Joint ParliamentaryCommittee (hereinafter referred to as ‘JPC’ for brevity) submitted areport on 08.07.2003.

4. At this juncture, it is apposite that we may notice anotherBdimension of the litigation which is the Bombay Public Trust Act, 1950rechristened as the Maharashtra Pubic Trust Act, 1950. The real lis inthis case surrounds the question as to whether the respondents beforeus who turned out to be the writ petitioners before the High Court arePublic Trusts or they are in essence or in substance, Wakfs under theMohammedan Law.C

The Charity Commissioner under the Bombay Public Trust Act,1950 (hereinafter referred to as ‘1950 Act’ for brevity), makes his entryon the stage by issuing a circular dated 24.07.2003 which reads as follows:

“Dated: 24.07.2003

DSub: The Muslim Wakfs/Trusts registered with the CharityCommissioner, and as per Section 43 of the Wakf Act, 1995.

CIRCULAR NO. 307 DATED 24.07.2003

According to Section 43 of the Wakf Act, 1995 WakfsEregistered as Public Trusts should not be tried under the BombayPublic Trust. Further orders may be awaited.

Sd/-

The Charity CommissionerMaharashtra State, Mumbai24.07.2003

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Sec. 43 of Act is as follows:

“Sec. 43 Wakfs registered before the commencement of the Actdemand to be registered – Notwithstanding anything contained inthis Chapter, where any wakf has been registered before thecommencement of this Act, under any law for the time being inforce, it shall not be necessary to register the Wakf under theprovisions of this Act and any such registration made before suchcommencement shall be deemed to be a registration made underthis Act.”

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5. On 13.11.2003, a list of Wakfs was published by the Board.The first writ petition came to be filed by one Anjuman-I-Islam on28.08.2003. A Challenge was laid to the circular issued by the CharityCommissioner. There was also a challenge thrown to the Constitution ofthe Board.

The High Court proceeded to stay the circular by order dated17.11.2003 qua the writ petitioner. A spate of writ petitions followed.They were drawn up in similar vein; orders of stay followed as well.

6. It would appear that there was a meeting held by the Law andJudiciary Department to discuss the problems of the Wakfs.A decisionwas taken on 11.08.2004 to constitute a Committee of the CharityCommissioner and two members of the Board. The following may benoted at this juncture itself as the result of the meeting which took placeon 11.08.2004:

“Meeting to discuss the problems of Wakfs cases was held todayi.e., on the 11.8.2004 at 12.00 noon under the Chairmanship ofHon’ble Minister (Law). The following dignitaries and officers ofGovernment were present in the chamber of Hon’ble Minister (Law):-

(1) Hon’ble Minister (Law)

(2) Hon’ble Minister, Aukaf

(3) Chairman, Wakf Board, Mumbai

(4) HafeezbhaiDhature, M.L.A. & Member of Wakf Board.

(5) Principal Secretary & S.L.A. L.& J.D.

(6) Charity Commissioner, M.S.Worli, Mumbai

(7) Executive Officer, Wakf Board, Mumbai

(8) Jt. Secy. R&F.D.

(9) shri Yusuf Muchhala, Sr. Counsel, High Court.

(10) Shri Viren Merchant, Chartered Accountant

(11) Jt. Secy L& J.D. (Shri Gomare)

(12) D.S. (Law L& J.D. (Shri Bangale),

(13) U.S. (Law), L& J.D. (Shri Patil)

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So many writ petitions have been filed before the Hon’ble HighCourt challenging the formation of Wakf Board. The Hon’ble HighCourt admitted the writ petitions and granted interim relief in favourof the petitioners restraining the Charity Commissioner fromtransferring the muslim trusts to Wakf Board and granted stay onthe Circular dated 24.7.03 issued by the Charity Commissioner.The Wakf Board is also restrained by the Hon’ble High Courtfrom collecting the contribution from the petitioners in these writpetitions. On the basis of the same, Association for Protection ofWakfs and Trusts has made representation to the Governmentwith a request to;

(1) direct the Wakf Board to cancel the notification declaring thelist of Wakf which are published on 13.11.03, the said notificationis not only full of mistakes but highly malicious.

(2) direct the Wakf Board to have a fresh survey done properlyascertaining Shiya and Sunni Wakf Boards and have the Surveymonitored by a competent and judicious senior officer.

(3) form a fresh Wakf Board after proper survey is concluded. Inthe meeting it was discussed as to whether the Wakf Board isconsituted legally as per the provisions of Wakf Act, 1995 andwhether it is possible for the Government and the Wakf Board tohave a fresh survey ascertaining Shiya Wakf and Sunni Wakf andwhether it is necessary to form a fresh the Wakf Board.

Following resolutions have been passed in the meeting:

(1) It is decided to constituted a committed under the Chairmanshipof Charity Commissioner including the two members from theWakf Board and two member of Charity Commissioner. Thiscommittee will study the work of charity organisations and WakfBoard constituted in Andhra Pradesh, Karnataka and UttarPradesh and decide which of the muslim trust registered underthe Bombay Public Trusts Act, 1950 are covered under the WakfAct and which comes under the Bombay Public Trusts Act andthat which of the Wakfs are Shiya Wakfs and Sunni Wakfs.

(2) It is not legally possible to extend the period of notificationafter 13.11.04. But the concerned trusts shall make an applicationto the said Committee stating their objections, reservations, if any.

(3) Wakf Board will give an advertisement in the newspapers torequesting the muslim trusts and wakfs to give information statingthat whether they are trust or Wakf and if it is a wakf, whether itis a Shiya Wakf or Sunni Wakf and the details of income of suchWakfs.

(4) Shri Yusuf Muchhala, Sr. Counsel High Court may submit thelist of Shiya Wakfs, Sunni Wakfs and Trusts belonging to theirAssociation to the Committee constituted under the Chairmanshipof Charity Commissioner. He made his submissions withoutprejudice to the rights and contentions of the petitioners in diversewrit petitions pending in the High Court at Judicature at Bombay,challenging the constitution of the wakfs Board, the surveycommissioner report and the list of Wakfs published byMaharashtra Wakf Board on 13.11.2003.

(5) Mr. Muchhnala will persuade their clients (petitioners) to co-operative with the said committee formed by the State Governmentand his clients will co-operative without prejudice to their rightsand contentions on the issues in the pending writ petitions.

(6) To bring uniformity in respect of the contribution collected foradministrative fund, the Wakf Board may take administrative fundcontribution annually at a rate of 2% for the gross annual incomeor of the gross annual collection or receipt as the same way inwhich the public trust administrative fund is being collected by theCharity Commissioner.

(7) The Wakf Board shall not take any further action in respect ofthe notification declaring the list of wakfs which was published on13.11.2003 until the report of the said Committee is submitted tothe State Government.

7. Writ Petition No. 2906 of 2004 came to be filed by Shaikh YusufBhai Chawla, a trustee of the Sir AdmjiPeerbhoy Sanatorium. Therein,the notification dated 04.01.2002 was sought to be put under a cloud.

8. On 08.02.2005, the Committee which we have just hereinbeforementioned submitted its report.It referred to the powers of the Boardunder Section 40 of the Act to decide whether the properties are WakfProperty or not.

9. On 09.03.2005, the Board passed a resolution. It reads asfollows:

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A“Charity Commissioner may be requested to transfer bifurcatedWakfs also with records of the Charity Commissioner, numbering918 from 1Mumbai Co. the Wakf Board and keep with CharityCommissioner 755 Trusts. Also it is resolved to accept the list ofPune District wherein 379 Wakfs are identified and 84 Trust. TheCharity Commissioner may be requested to transfer record andBproceeding of 379 Wakfs to Wakf Board and keep with his 84Trust, rest identification may be completed, this transfer is subjectto Boards Rights to consider matters under section 40 of the WakfAct, 1995.”

10. The Board, thereafter, issued a corrigendum purportingCapparently to act in terms of the resolution dated 09.03.2005. Thecorrigendum had the effect of abridging the list of Wakfs which waspublished on 13.11.2003. Most significantly, a number of Wakfs whichwere included in the List dated 13.11.2003 came to be excluded.On13.04.2006, the State wrote to the Board referring tothe letters of theDCharity Commissioner in which the Commissioner presented a newclassified list of Wakfs and Trusts. The Lists of Wakfs and Trusts werealso forwarded to the Board. The Board passed a resolution on19.06.2006. It accepted the list of Wakfs given by the CharityCommissioner.

“ANNEXURE-P-19

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Maharashtra State Board of Wakfs Dated 19.06.2006

Point No. 46 (reg): Bifurcation of Wakf and Trust as per Listfinalized by Committee appointed by the government publicationof Government Gazette:

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FResolution No.4.6: It is unanimously revolved that the report ofCharityCommissioner is received through Government ofMaharashtra of all Districts in Maharashtra. In principle it is agreedto publish the lists in Government Gazette, lists of bifurcated Wakfs.Again under section 40 of the Wakfs Act, the Board has power totake remaining Wakfs at any time in its period. Hon’ble ChairmanGis authorized to take final decision in this regard.

(M.Y. Patel)Additional CollectorChief Executive OfficerAurangabad”

11. On 31.07.2006, a corrigendum was issued by the Boardmodifying the earlier list of Wakfs. Thereafter, on 25.04.2007, the Boardissued another notification stating that the resolution which was dated19.06.2006 was cancelled. The reason given was that it was not as perthe business rules. It was also decided to cancel the corrigendum issuedon 31.07.2006. On 04.09.2008, the Government of Maharashtra appointedseven members to the Board. This notification, in turn, also formed thesubject matter of challenge in the High Court.

The membership of the Board stood reduced to four membersviz., two of the members who were originally appointed and two whowere from the lot who were subsequently appointed. On 23.10.2008,there is yet another summersault by theBoard insofar as it purported tocancel the corrigendum dated 05.05.2005 and it was therein declaredthat the original notification containing the List of Wakfs dated 13.11.2003was to remain intact:

“ANNEXURE-P- 25

Maharashtra Govt. GazetteNOTIFICATION DATED 23.10.2008

No.MSBW/REG-240/3805/2008.

Dated: 7 .10 .2008

NOTIFICATION

By the Chief Executive Officer

The list of Wakfs Properties of Mumbai & B.S.D. was publishedin Government Gazette dated 13.11.2003 as per Board Resolution3 dated 27.9.2003, under section 5 (1) and sub-section 3 of section4 of Central Wakf Act, 1995.

The corrigendum to the aforesaid Government Gazette notificationwas issued on 5.5.2005 with reference to the Maharashtra Stat·eBoard of Wakfs. Resolution No. 3 dated 9.3.2005, and the samewas published on 5.5.2005.

However, the Resolution No.3 dated 9.3.2005 was cancelled and·deleted by the Board in its meeting vide Resolution No. 17/2008dated 3.4.2008, and confirmed on 27.5.2008. Hence theCorrigendum No.MSBW/REGISTRATJON -73/ 1068/2005

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published on 5.5.2005 stands automatically cancelled. Thus theoriginal notification of List of Wakf Properties published on13.11.2003 remains as it is.

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(S.S.ALI QUADRI)Chief Executive OfficerMaharashtra State Board of Wakfs B

Aurangabad”

12. The JPC gave a report on 23.10.2008 indicating that the list ofWakfs as far as the State of Maharashtra is concerned, was published.The next development is to be noticed in the form of a notification datedC20.10.2010. We may notice its contents at this juncture itself.

“ANNEXURE-P-26,

MINORITIES DEVELOPMENT DEPARTMENTMantralaya, Mumbai 400 042, dated the 20th October 2010NOTIFICATION

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WAKF ACT, 1995

No. Wakf-2009/ C.R. 105/Desk-4. Whereas the Government ofMaharashtra vide Government Notification, Revenue and ForestsDepartment No. Wakf-1097/CR-95/L-3, dated the 1st December,1999 and No. WAKF. 1097 /CR-95/L- 3, dated the 29th September1999 appointed Survey Commissioners, Additional SurveyCommissioners and Assistant Survey Commissioners, respectively,for the purpose of making a survey of Wakfs existing. on the 1stday of January 1996 in the State of Maharashtra; E

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And Whereas, the Joint Parliamentary Committee receivedcomplaints that the survey was not conducted properly andtherefore, the Committee issued directions dated 20th October2008 to the State Government to conduct resurvey of the Wakfsin the State; G

And Whereas, the Government considers it expedient to appointDivisional Commissioners of Konkan, Nashik, Pune, Aurangabad,Amravati and Nagpur as Survey Commissioner for their respectivedivisions, District Additional Collectors of Konkan, Nashik, Pune,Aurangabad, Amravati and Nagpur as Additional Survey H

Commissioners for their respective districts, and Tahsildars asAssistant Survey Commissioner in their respective Talukas, to re-survey the Wakfs in the State of Maharashtra; Now, therefore, in exercise of the powers conferred by sub-section(1) of section 4 of the Wakf Act, 1995., the Government ofMaharashtra hereby appoints: -

(1) Divisional Commissioners of Konkan, Nashik, Pune,Aurangabad, Amravati and Nagpur Revenue Divisions, as SurveyCommissioner for their respective divisions,

(2) District Additional Collectors of Konkan, Nashik, Pune,Aurangabad, Amravati and Nagpur Districts, as Additional SurveyCommissioner for their respective Districts,

(3) Tahsildars of the Talukas, as Assistant Survey Commissionerfor their Talukas, for. conducting re-survey of the Wakfs in the State of Maharashtra.

By order and in the name of the Governor of Maharashtra.

GEETA CHANDE

Under Secretary to Government”

13. Writ Petition 357 was of 2011 was filed challenging the saidnotification.

There were other writ petitions also which were filed. Writ Petitionwas filed being Writ Petition No. 899/2011 challenging the circular ofthe Charity Commissioner and also the list of Wakfs were challenged.Pleadings were exchanged.Written notes of arguments were alsosubmitted.

The High Court has allowed the writ petitions. The findings of theHigh Court may be noticed at this stage.

14. The High Court broadly formulated four issues.

The High Court posed the question as to whether the incorporationof the Board was illegal. The contention which was urged before theHigh Court by the writ petitioners was that here is a case where the cartwas put before the horse. The law giver envisaged the conduct of surveyof the Wakfs. A survey of Wakfs in terms of the section 4 followed bythe publication of the List under Section 5 would reveal among other A

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Athings, the number of Wakfs in the State. Even more importantly, thesurvey would yield the necessary inputs so that the duty which was caston the Government under Section 13 of the Act could be performed.Section 13, it is the finding of the High Court cast a mandatory duty onthe Government to form two separate Boards viz., a Sunni Board ofWakf and a Shia Board of Wakf, if Section 13(2) was attracted.It wasBfound by the High Court that Section 13(2) contemplated that if 15 percent of the Wakfs were Shia Wakfs or the income from such Wakfs is inthe excess of 15 per cent of the total income, the law mandates thatthere must be separate Wakfs for the Sunnis and Shias respectively.The High Court proceeded to find that Section 13 contemplates that theCBoard is a body corporate and has perpetual succession. It was foundfurther that the Act does not contemplate a Board being formed underSection 13(1) and thereafter, a survey report being received and on thestrength of the contents of the survey report with reference to the criteriain Section 13(2), the Board which is originally put in place under Section 13(1) being extinguished and creation of two separate Boards for theDSunnis and the Shias as contemplated therein.

15. The Court found that the contention of the report being placedby the State apparently under Section 5 of the Act, viz., the requirementtherein that the Government on receipt of the report of the SurveyorEmust forward the report to the Board and therefore,the Board must bein place and that the survey need not precede the incorporation of theBoard was misplaced.

16. On the second aspect, the High Court posed the question asto the legality of the constitution of the Board. Section 14 provides forFthe constitution of the Board. The High Court drew support from thefact that, as on the date, it apparently considered the matter that therewere only two members and the law contemplated that there must be aminimum of seven members in the Board and here is what the HighCourt held:

G“It is thus clear that presently there are only two Members of theBoard. This position was not disputed before us. Perusal of Section14 makes it clear that a wakf Board having only two memberscannot be said to be properly constituted and· therefore, we haveto hold that the constitution of Wakf Board of Maharashtra is notin accordance with law.”H

17. Moving on, the High Court dealt with the complaint of the writpetitioners regarding the publication of the list itself on 13.11.2003. TheHigh Court largely drew on the report of the JPC itself.

18. Still later, the High Court found favour with the contention ofthe writ petitioners that here is a case where developments based on thefiling of the writ petitions cannot be overlooked. The development consistedof the constitution of the Bifurcation Committee which had the blessingsof the Government itself, and which Committee held meetings in whichthe Charity Commissioner of the Wakf Board also participated and certainpublic trusts were identified as public Trusts and others as Wakfs.

After finding that the survey conducted by the SurveyCommissioner was flawed, the High Court accepted the request of thewrit petitioners that since on 20.10.2020 resurvey was also ordered bythe Government when the resurvey is conducted, the writ petitionersmay be afforded an opportunity to place before the Survey Commissionerthe report of the Committee under which the writ petitioners apparentlywere identified as being actually public trusts.

19. Thereafter, the High Court, we may notice, in the context ofthe impact of the 1950 Act proceeded to make the following observations:

THE APPEALS

20. The appellants before us are the Board, State of Maharashtraand two others.

21. We heard Shri K. K. Venugopal, learned senior counselappearing on behalf of the Board along with Mr. Javed Shaikh, Mr.Sudhanshu S. Choudhari, Ms. Suhasini Sen, Mr. Mahesh P. Shinde, Ms.Rucha A. Pande, Mr. Veeraragavan M. and Mr. Kamran Shaikh, learnedcounsel. We have also heard Mr.GopalSankaranarayanan, learned seniorcounsel who also appeared for the Board.

We have heard Shri Rahul Chitnis learned counsel appearing onbehalf of the State.

Last, but not the least, we heard Shri Harish Salve, learned seniorcounsel appeared on behalf of the respondents-writ petitioners in C.A.No. 7830 of 2022 (@ SLP (C) No. 1132 of 2017)along with Mr.S.MaheshSahasranaman, Dr. Abhishek Manu Singhvi, learned seniorcounsel who appeared in C.A. Nos. 7812-7814 of 2022 (@ SLP (C)Nos. 31288-31290 of 2011) along with Mr. Murtaza Kachwalla, Mr.

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AMoinuddin Algaus Shaikh and Ms. Ekta Bhasin, learned counsel. Wealso heard Mr. Y. H. Muchhala, learned senior counsel along with Mr.Sagheer Khan and Mr. G. D. Shaikh, Mr. Seshadri Nadu, learned seniorcounsel, along with Mr. S. Mahesh Sahasranaman, also made hissubmissions.

We have further heard Shri Vinay Navare, learned senior counseland we have also heard Shri Anil Anturkar, learned senior counsel.

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22. Shri K.K.Venugopal, learned senior counsel for the Boardwould impugn the judgment on various grounds.

He would challenge the finding regarding the alleged illegality inCthe incorporation of the Board as unsustainable. There is no duty castunder Section 13(2) of the Act to have separate Boards if the percentageof Shia Wakfs are found toexceed the percentage mentioned in the saidsection (15 per cent) he contended. He would further contend that asurvey need not precede the incorporation.

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23. Learned senior counsel also did contend that, in fact, whenthe Wakf Act 1954 was enacted having regard to Article 254 of theConstitution, even treating the 1950 Act as a law which embraced aWakf as a public trust and provided for its regulation, the Wakf Act 1954being a self-contained Code even if it was not made applicable to theEState of Bombay, in view of the judgment of this Court in State of Kerala& Ors. v. Mar Appraem Kuri Co. Ltd.& Another,1 the mere makingof the law by Parliament attracted the doctrine of repugnancy. Therefore,since the Scheme of the Wakf Act, 1954 is completely irreconcilablewith the provisions of 1950 Act, it did not even survive the passing of theWakf Act, 1954.F

24. He would also after taking us through the factual developmentswhich we have adverted to already, contend that the Board was indeedvalidly constituted and the survey was conducted as per law. The SurveyCommissioner was appointed in 1997. It took the surveyor nearly fiveyears to submit his report. He would, in particular, point out that even theGJPC report which is the sole premise for finding the list flawed by theHigh Court, has observed that questionnaires were dispatched. This meantthat all parties were put on notice. It is not as if the writ petitioners wereput to prejudice. They had the right to approach the properly constituted

alternate forum viz., the Tribunal under Section 6 of the Act. No groundwhatsoever existed to invoke the extraordinary jurisdiction of the HighCourt under Article 226 of the Constitution. The question as to whetheran institution is a Wakf or a public trust as the writ petitioners claim is tobe dealt with by the duly constituted Tribunal only.

25. He would submit that as far as the corrigendum which wasissued on 05.05.2005 cutting down the width of the number of the Wakfswhich was included in the original list dated 13.11.2003 is concerned, itwas wrongly done. This fact was realised and the mistake came to berectified as we have noticed in the narration of facts.

26. He would further contend that what JPC complained aboutwas under-inclusion of the Wakfs. In other words, the JPC found thatthere were complaints about the large number of Wakfs which were leftout in the List of 13.11.2003. This did not detract from the validity or thecorrectness of the List dated 13.11.2003. As regards Wakfs includedtherein,it is contended,therefore, there arose no occasion for the HighCourt to set aside the List dated 13.11.2003. As regards the other findingsand directions which were given by the High Court, the learned seniorcounsel would contend that they are wholly untenable and cannot besustained.

27. With regard to the effect of Section 112 of the Act, Mr. K.K.Venugopal, learned senior counsel, would submit that Section 112 clearlybrings about a repeal of the law in relation to Wakfs in the 1950 Act.

28. Shri Gopal Sankaranarayanan, learned senior counsel, adoptedthe submissions made by the learned senior counsel Shri K. K. Venugopal.He would supplement, in particular, in his attack against the finding thatthe Wakf was not properly incorporated on the following grounds.

He would submit that a perusal of the Act would reveal that theAct has a definite scheme. It includes a provision for registration of theWakfs. The immediate need for creation of the Wakf Board which cannotawait the result of the survey commissioner is impressed upon us. TheAct contemplates a duty with every Wakf whether created before orafter the Act to register themselves with the Wakf Board.

29. Section 32 contemplates various powers and functions to bedischarged by the Board. The Board’s sanction is required under Section51 even for leasing the property. Therefore, there cannot be a hiatusfrom the date of the commencement of the Act and creation of the A

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AWakf Board, as it will defeat the sublime object of the Act. He has alsoargued that Section 103 and 106 would constitute a sufficient answer tothe findings of the High Court that the Act does not contemplate thecreation of second Wakf Board after the creation of the first compositeBoard. He would also point out that the report under the Survey underSection 4 of the Act is purely preliminary. It does not affect any legalBrights. The right of the Wakf which is included in the List publishedunder Section 5(2) of the Act cannot be preponed to the time when theSurvey Commissioner submits its report under Section 4(3) of the Act tothe Government. The right which the person aggrieved (as it standsamended in place of the ‘person interested in the Wakf’) has is thatCtheaggrieved person can approach the Tribunal under Section 6.

30. Therefore, no prejudice as such was caused to the writpetitioners that would have justified their knocking at the doors of theHigh Court under the extraordinary jurisdiction under Article 226 of theConstitution.

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31. He would also submit that there has been a different regimecreated from the previous one which fell for consideration before thisCourt in the case reported in Nawab Zain Yar Jung (Since Deceased)2and Othersv. Director of Endowments and Another. He would canvasfor the position that having regard to the effect of the amendment broughtEabout to the word ‘beneficiary’ in section 3(a) of the Wakf Act 1954 andits continuance in the present Avtar in Section 3(a) again of the Act, thefundamental premise on which the decision of this Court inNawab ZainYar Jung (Since Deceased) and Othersv. Director of Endowmentsand Another (supra) was rendered has been taken away.F32. In other words, according to him, in view of the fact that F32. In other words, according to him, in view of the fact thatthough prior to the amendment in 1964, the word beneficiary was definedin such a manner that a Muslim who purported to create a Wakf, thebenefit of which was available to all without reference to religion wastabooed,after the amendment, a Wakf which has for its object any publicutility which is sanctioned by Muslim law would pass muster as a validGWakf. This has brought about a complete change in the concept of Wakfand what is more important, its repercussions are pronounced with regardto the controversy at hand. In other words, he would submit that thevery case of the writ petitioners/ respondents has been that since their institutions are public religious or charitable trusts and therefore, theywere registered under the 1950 Act and they cannot be treated as Wakfs.Since, the very basis for the difference between the Wakf and a Trustas was perceived, by the Court in the said judgment having beingdeciphered with the pre-amendment definition of the word beneficiaryhas been removed, there cannot be any difficulty in the law getting atWakfs, in substance and bringing them under the firm control of the Act.He relies on case law which we shall refer to at the appropriate stage.

33. Mr. Javed Sheikh, learned counsel for the Board supplementedShri K. K. Venugopal and Mr. Gopal Sankarnarayanan, learned seniorcounsel, and would support them in their attempts at overturning theimpugned judgment.

34. Shri Rahul Chitnis, learned counsel for the State who appearsin certain special leave petitions would also attack the findings of theHigh Court on analogous grounds and he adopts the argument addressedby the learned senior counsel. He would submit that after the filing ofthe special leave petitions in this Court which took place in the year2011, the Government has ordered a second survey on 07.12.2016. Hewould point out that the order dated 20.10.2010 has been revoked.

35. Shri Anil Anturkar, learned senior counsel, appears in SLP(C)No. 3136 of 2016.

He would contend that though this Court has pronounced aboutthe ambit of Section 4 of the Wakf Act, 1954, in the decision reported inBoard of Muslim Wakfs, Rajasthan v. Radha Kishan and Others3 asfar as the present Act is concerned, he would submit that the complaintabout natural justice being violated may be farfetched and may not besustainable. He emphasised the impact of Section 43 of the Act whichprovides for deemed registration of Wakfs. He drew our attention tojudgment of this Court reported in Madanuri Sri Rama ChandraMurthy v. Syed Jalal4.

36. He would, in fact, go to the extent of contending that naturaljustice if it is to be observed to the extent canvassed, may render itimpermissible to obtain any fruitful results. He would further contendthat Wakfs would have been registered as deemed Wakfs under Section 3 (1979) 2 SCC 468

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A28 of the 1950 Act, being Wakfs prior to the 1950 Act. In that case,there can be no complaint at all as they would qualify as Wakfs evenunder the Act. This is for the reason once a wakf, always a Wakf.

37. He would also point out that Wakfs, which are registeredunder any law, are under Section 43 of the Act to be deemed registeredBunder the Act. Even they cannot have any complaint. He drew ourattention also to the judgment of this Court in Ramjas Foundation andAnother v. Union of India and Others5 (paragraph 31) to contend thatit is not the law that the Wakfs can be created only by Muslims and non-muslim can also create a Wakf. The only limitation is that it must bepermitted by law or countenanced by the law applicable the person whoCis a non-muslim to create such Wakf. He further contends, however,that there is a distinction between Public Trust and Wakf and the charitycommissioner was not justified in making over all the Muslim trusts andwhat is more, it was clearly impermissible for the Wakf Board to act onthe same and include them as Wakfs under the Act.D

38. Dr. A. M. Singhvi, learned senior counsel, would stoutly contestthe case of the appellants by pointing out that the appellant’s case is inthe teeth of an unbroken line of decisions of this Court bringing out theclear-cut distinction between a public Trust and a Wakf. He would submitthat his client Sir Adamji Peerbhoy Santorium was created under a schemeEsettled by order dated 16.06.1931 passed by the High Court of Bombayand which was registered under the 1950 Act. The respondents weretrustees of the aforesaid Public trust created by Muslims and they werenot Wakfs. He would submit that a Muslim would perhaps naturally leanin favour of creating a Wakf. This does not preclude him or prevent himfrom creating a public charitable Trust. Also, the confusion, according toFhim, was generated on account of Category B registered public Trustswhich are nothing but Public Trusts registered by Muslims being convertedenmasse into Wakfs under the Act. This is entirely unjustified. EveryWakf is a trust but every Public Trust is not a Wakf. He would submitthat a Wakf is perpetual and irrevocable whereas the Trust need not beGperpetual and may be revoked under certain conditions. Wakf propertyis inalienable. In the case of a trust, alienation of the Trust property isnot tabooed. The founder of a trust may himself be a beneficiary, whereasthe founder of a Wakf cannot reserve any benefit for himself. The powers of a Mutawalli (manager of the Wakf property) are very limited ascompared to the powers of a Trustee. He heavily drew upon the judgmentof this Court in Nawab Zain Yar Jung (Since Deceased) and Othersv.Director of Endowments and Another (supra) which has been followedin Mohd. Khasimv. Mohd. Dastagir and Others6. This is besidesdrawing support from the judgment of the Madras High Court reportedin The Kassimiah Charities Rajagiri v. The Madras State WakfBoard,7. He would support the judgment of the High Court and point outthat the survey report did not have a separate list of Shia Wakfs in 21districts out of 34 districts over which survey was conducted.

39. Several Muslims Trusts governed by common law were alsoerroneously included in the survey report as Wakfs. The survey reportfailed to indicate the gross income in respect of 15436 Wakf out of19987 Wakfs under survey.

40. The High Court was entirely justified in its reasoning particularlyas it involves even the report of the JPC. It is also contended that theBoard was not properly constituted having regard to the requirements ofdistinct categories from which the members must be drawn from for thevalid composition of the Board. The survey report, he insists is a sinequa non and must be a prelude to the valid incorporation of the Boardwhich discharges solemn functions which includes the power ofsuperintendence under Section 32, power of registration under Section36, maintenance of register under Section 37 and power of the Boardunder Section 40 to decide the matters mentioned therein.He raised aserious challenge to the composition of the Board and complains that itwas illegal.

41. The list notified on 13.11.2003 was afflicted with variousdiscrepancies which are highlighted. He further dwells upon thedevelopments following the Government’s decision to constituteBifurcation Committee.After taking us through the report, meetings,resolutions, corrigendum and notifications, it was contended that afterthe list of 13.11.2003, modified list was issued on 05.05.2005 which iscompletely based upon the resolution dated 09.03.2005 which in turnhas its premise in the meeting which took place on 11.08.2004. All of ittogether, he would submit, unerringly points out to the understanding of 6 (2006) 13 SCC 497

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Athe Government itself and what is more, the Board also that the surveywas highly flawed. Public Trusts per se which are clearly different fromWakfs were made over by charity commissioner again on amisapprehension of the legal position and came to be assimilated by theState and the Board. This mistake was discerned and amends made. Hewould therefore, submit that on no ground can this Court particularlyBhaving regard to the long passage of time, tinker with the exclusion ofPublic Trusts from the original list dated 13.11.2003. He would submitthat this is a matter of moment as the respondents- Public CharitableTrusts have been carrying out charitable work for several years andrecognized as such. Any attempt at upsetting the view, would in fact,Cresult in grave injustice. He urged us to draw support from the interimorder passed by this Court as well. According to him, in the interim orderwhich is reported in Maharashtra State Board of Wakfs v. Yusuf BhaiChawala and Others (2012) 6 SCC 328, this Court has clearlyappreciated the difference between a Public Trust and a Wakf andproceeded to provide only for protection for Wakfs per se as distinctDfrom Public trusts and this distinction noticed in the interim order whichis based in turn on the judgment of this Court in Nawab Zain Yar Jung(Since Deceased) and Others v. Director of Endowments andAnother8 is commended for our acceptance.

42. Dr. Singhvi, learned senior counsel, also submitted that SectionE13(2) incorporates a core democratic value and having regard to thedistinction between the Sunnnisand Shias, a need to have separate Boardscannot but be emphasised.

43. Shri Harish Salve, learned senior counsel appears in SLP(C)Nos. 31288-90 of 2011 and SLP (C)No. 1132 of 2017. He wouldFsubmit that the Muslim law recognises the concept of the English Trust.What is more, it also recognises the distinction between such a Trustand a Wakf. A Trust is known in Muslim legal terminology as amanaand it is not treated as a Wakf. The Muslim Personal Law (Sharia)Application Act 1937 in section 2 refers to both Trusts and WakfsGseparately. The definition in section 2(r) of the Wakf Act, 1995, onlyexplains the words Wakf and defines it but this does not mean that everytrust is to be transformed into a Wakf. A Wakf must fulfil certain legalattributes. It cannot encompass all Trusts created by a Muslim. The1950 Act is a secular law and there is no known principle that would compel a person to follow a customary law and deprive him of his rightsunder the secular law to create charity. The Constitution preservescustomary rights but did not take away the benefits available to membersof any community or faith under the secular law. He draws upon thejudgment of this Court in Mohd. Khasimv. Mohd. Dastagir andOthers(supra) relied on by the Dr.Abhishek Manu Singhvi, learned seniorcounsel, as well. This is besides, of course, drawing our attention to thejudgment of this Court in Nawab Zain Yar Jung (Since Deceased)and Othersv. Director of Endowments and Another(supra).

44. He would point out that the Mutawalli has no ownership rightor say in Wakf property. He is not in that respect a Trustee. In thisregard, he draws support from Tyabji on Muslim law. A Mutawalli is notentitled to deal with, that is dispose of or transfer off property, propertyof a Wakf being inalienable. This is recognised under Section 51 of theAct by the Amending Act 27 of 2013. A Wakf has three distinct features,viz., it is perpetual, inalienable and irrevocable. In the case of a Trust,property is transferable by the Trustee. He drew our attention to theprovisions of section 43 of the Act and he contends that it only providesthat it shall not be necessary for the Wakf which is already registeredunder any earlier law to register under the Act again. It does not meanthat what was a Muslim Public Trust before the Act would become aWakf.

45. Mr. Harish Salve, submits that Trusts created by Muslimswould continue to be administered by the Charity Commissioner, thoughafter the Act was enacted, the Muslim Wakfs may stand transferred tobe administered under the Act. He would support the various findingsgiven by the High Court. He would also submit that this is a case wherethe respondents have been roped in as Wakfs without any basis and onlyon the premise of their being registered as Muslim Public Trusts underthe 1950 Act which is impermissible.

46. Shri Y. H. Muchhala learned senior counsel, however, wouldessentially echo the same complaints about the contentions of theappellants. He would submit that section 97 of the Act clothes theGovernment with the power to issue directions which are binding on theBoard. This submission is made in the context of the constitution of theBifurcation Committee.He would, therefore, contend that the BifurcationCommittee which was constituted by the Government itself realising itsfollies has made amends for its errors and the Wakf Board which has A

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Aparticipated in proceedings of the Committee must be treated as actingunder the directions of the Government issued under Section 97 of theAct. The Board had no choice in law and the present appeals must betreated as premised on an infraction of the directions under Section 97of the Act which is impermissible. He would also submit that the historyof the institutions would show that they were all public Trusts per se andBcompletely distinguishable in law from Wakfs. It is glossing over thisfundamental distinction that the survey was carried out the, lists werepublished and illegalities sought to be perpetuated. The High Court hasset right the illegalities for which its power is unquestionable underConstitutional provisions. The mere fact that there is an alternate forumCprovided by the Act again in no manner impinged on the power of theHigh Court under Article 226 of the Constitution. He would also submitthat it would be wholly unfair and unjust for the appellants to persuadethis Court to retrace its steps at any rate from the list dated 05.05.2005.He would harp upon the fact that though power may be available under Section 40 of the Act, it is noteworthy that the section lay unutilised forDa long period of time. Authorities have proceeded on the basis that thejudgment of the High Court has reached justice to the parties and thisCourt may not interfere in the matter at any rate. He also has an alternaterequest that should this Court be persuaded to interfere in any manner,the rights of his parties may be protected with reference to the powersEavailable to this Court under Article 142 of the Constitution.

47. Mr. Y. H. Muchhala, learned senior counsel, submits that theSurvey Commissioner acted illegally. The notification of the Board wasillegal and lists dated 13.11.2003 and dated 30.12.2004 are not to befollowed being illegal. Charity is permissible and possible for a MuslimFwithout the creation of a Wakf. His case is in sync with the reasoning ofthe High Court that there would be a repeal of the 1950 Act only uponthe creation of a valid machinery to work the Act viz., there is a validincorporation of the Board and its proper constitution.

48. He would submit that there must be a proper finding about theGinstitution being a Wakf, even at the hands of the surveyor. That dutyhas been breached. In the facts of the case, he would support the judgmentof the High Court as being unexceptional. The Board was not functional,as on the date of the Notification dated 13.11.2003, the Board consistedof only Government nominees. The requirement that elected membersmust exceed nominated members stood observed only in its breach.H

Even today, there is no valid and effective machinery under the Actwhich has been created by the Government. The Government has beenappointing members without following the mandate of the law. The Actdoes not aim at codifying of the Muslim personnel law relating to Wakfat all. The Act merely provides for the creation of an administration orthe machinery for proper administration of Wakfs.He highlights the salientfeatures which distinguish a Wakf from a Trust and he would contendthat no merit exists in the appeals.

49. Shri Naidu, learned senior counsel, appearing for one of therespondents would also support the contentions and essentially adoptsthe contentions of the respondents and he would trace the history of theinstitution of Wakf and he would also contend that doing of charity isemphasized by the prophet and a public trust can also be set up withoutit being cataloged as a Wakf.

50. Shri VinaryNavare, learned senior counsel would submit thatthe writ petitioners in his case were worshippers who approached theHigh Court. When queried whether they were Sunni or Shia, he fairlypoints out that the writ petitioners were Sunnis by faith. Upon beingfurther queried how the Sunni worshippers can have a grievance overpublic Trusts which are essentially created by Shias, and when the entiregrievance in the case and the argument was essentially founded on theinjury caused to the Shia Wakfs, he would submit that the interest of theparties even as beneficiaries needs to be protected.

51. Shri Vinay Navare would submit also that his line of argumentis slightly different. He would submit that even assuming that there is noneed to constitute separate boards for Sunnis and Shias, there is astatutory duty that the Government must perform at the time when ittakes a decision to incorporate a Board to find out about the number ofSunni and Shia Wakfs. In this regard, he draws upon Section 14(6) ofthe Act and he would contend that thereunder, the members belongingto the Sunni and Shia sects are to be determined with reference to theirnumbers and value. Therefore, there must be some material if not thedata revealed in the survey to give effect to the legislative intent containedin Section 14(6). He was at pains to take us through three affidavits topoint out that there was admittedly no material to justify the Governmentto arrive at a conclusion that there is no need for a separate Shia Boardto deal with the Wakfs of the Shias.

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A52. In reply, Shri Gopal Sankarnarayanan, learned senior counsel,would, in particular, point out that this is a case where during the surveyunder Section 4, affected persons were served with a questionnaire andin this regard, he relies upon the very basis of the High Court which isthe report of the JPC.B53. In other words, the JPC refers to the fact that questionnaireswere dispatched. Therefore, he poses the question as to how wouldthere be infraction of principles of natural justice occasioned.

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54. He would further emphasise that Section 4 only provides for apreliminary survey and no rights are created or affected. He wouldCfurther point out that section 93 of the Wakf Act proscribes the makingof a compromise in any suit or other proceeding by the Board. He wouldpoint out that there have been cases where illegal compromise hashappened. This line of argument is taken in the context of his attackagainst the constitution of the Bifurcation Committee and its subsequentproceedings. In other words, he rubbishes the attempt on the part of theDrespondents to draw support from the abridging of the List dated13.11.2003 and 30.12.2004 by the making of the truncated List dated05.05.2005.

55. Shri Gopal Sankaranarayan, learned counsel would emphasisethat after the amendment to the word “beneficiary”, the world hasEchanged for Wakfs and trusts. He would contend that for a valid Wakfto come into existence,it is not the law that there must be dedication tothe Almighty as such. The requirements of a Wakf would be sufficientlysatisfied without any such firm dedication to the Almighty as such. Whatis required is the only employment of the property satisfying the differentFcriteria which obviously means property is actually used inperpetuitywithout there being any scope for revoking it, and further theproperty is inalienable subject to the law.

56. Before we deal with the various contentions, it is for us tohave brief overview of the legislation affecting the institution of ‘wakf’Gin the country. Wakf is an institution which is close to the heart of theMuslim community. There are various versions about its origin. Sufficeit is to notice one such.In his work, Mahommedan Law by Syed AmeerAli(4[th] Edition) at page 192, it is stated:

“Omar had acquired a piece of land in (the canton of) Khaibar,and proceeded to the prophet and sought his counsel, to make theH

most pious use of it, (whereupon) the prophet declared, ‘tie up theproperty (asl or corpus) and devote the usufruct to human beings,and it is not to be sold or made the subject of gift or inheritance;devote its produce to your children, your kindred, and the poor inthe way of God.’”

57. We may notice certain further statements contained in thebook “Mahommedan Law” by Syed Ameer Ali,at page 192:

“A Waqf is thus interwoven with the entire religious life and socialeconomy of the Mussulmans. “Trusts” in the Mussalman systemmay, for the sake of convenience be divided under three heads,that is, public, quasi-public and private. This will probably indicatethe division adoptedby the Arabian jurists, who group wakfs ortrusts under the following three heads, viz: - (a) Trusts in favourof the affluent and indigent alike (b) Trusts in favour of the affluentand then for the indigent (c) Trusts in favour of the indigent alone.Trust for public works of utility which are dedicated to the publicat large though classed under the first head, have a distinctivename. They are called wakfs for Masalih-ul-aamma and differ inone feature from other Wakfs.”

58. The wakif must be free. He must be an adult and sane. Theproperty must be certain. The declaration need not be in a particularform. The dedication must however exist. The dedication must not betransient but it must be permanent. The dedication must be for purposeswhich are regarded as pious, charitable or religious as per Muslim Law.

59. A Wakf-alal-aulad is also a Wakf. In fact, we find the followingstatement in the work of Syed Ameer Ali (supra) at pages 213, 214 and215:

“The word sadakah occurs so frequently in works dealing withMahommedan Law, and has such an important bearing on the constitutionof a wakf that an exact apprehension of its meaning is necessary to aproperty understanding of the rules relating to dedications in the Islamicsystem.

Richardson in his dictionary translates it as meaning an “alms-gift” and also as “property dedicated to pious uses.” Hamilton, thetranslator of the Persian version of the Hedayah, evidently thought thatthe word meant ‘alms’, to the poor; and this error has influenced allsubsequent conceptions.

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AAs a matter of fact, the word sadakah has a much larger meaningin the Mussulman system. It means, property speaking, a pious act:-”asmile in a neighbour’s face is sadakah; to help the weary is sadakah.”Probably, the only expression by which it can be construed is thewordcharity in its broadest sense.

BIn the Mussulman Law, however, it means an offering or giftmade with the object of obtaining the approval of the Almighty, or areward in the next world…”

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“the Prophet of God has declared that a pious offering to one’sCfamily to provide against their getting into want is more pious than givingalms to beggars.”

“Said, the Prophet of god, when a Moslem bestows on his familyand kindred, with the object of earning the approval of the Almighty, it issadakah, although he has not given to the poor but to his family andchildren”D

“The most excellent of sadakah is that which a man bestowsupon his family.”

“The greatest sadakah in point of rewards is that which yougive to your family.”

E“To give money to free a slave, to give alms to the poor, to give toyour children and kindred, are all sadakah.”

60. The moment dedication is made, the wakif is believed to earnhis reward. We may in this context notice the following statement fromthe work of Syed Ameer Ali at page 211:F“It must be remembered also that a wakf is not a gratuitous transfer F“It must be remembered also that a wakf is not a gratuitous transferof property. It is a transfer to the legal ownership of the Almightyfor substantial consideration, viz., His reward, which is obtainedthe moment the wakf is created. As will be seen afterwards, awakf takes effect like the emancipation of a slave. There is nopower of revocation nor can there be any reserve; and neitherGthe wakif nor any person deriving title from him can say afterwardsthat he had no intention to make a binding and irrevocable wakf.”

A case of Wakf—alal-aulad however reached the Privy CouncilinAbul Fata Mahomed v. Russomoy9. The Privy Council took the view H9 (1894) 22 Cal. 619 : 22 I.A.. 76

that it could not be treated as a legitimate wakf if the property was to beenjoyed by the descendants without end and the dedication to charitywas illusory or small.This led to considerable resentment among theMuslims. The MussalmanWakf Validating Act, 1913 came to be passed.This legitimised the institution of Wakf-alal-aulad. Another Act came tobe passed in the year 1930 which gave it retrospective effect. In themeantime, theMussalman Wakf Act, 1923 came to be passed. The saidAct came to be applied in the Bombay Presidency by the MussalmanWakf (Bombay Amendment)Act, 1935 (XVIII of 1935). There werecertain variations in the 1935 Act in the State of Bombay. The Act wasagain amended in 1945.

61. Bombay, it must be noticed was initially a Presidency beingunder the direct governance of the British Crown since the year 1859.In the year 1937, after the passing of the Government of India Act,1935, the Bombay Presidency became a province in British India. Withthe advent of Independence and under the Constitution, Bombay becamea Part A State. With the passing of the State Reorganisation Act, 1956,Bombay along with certain other parts which included the Marathwadaregion came to be constituted as the State of Maharashtra in the year1960. This reference is being made to notice the circumstances in theyear 1950, when the Bombay Public Trust Act, 1950 came to be passed.It was applicable to the then State of Bombay which incidentally alsoconsisted of parts of which formed the present State of Gujarat. In fact,it included even the territory which is today Sindh. While Marathwadaregion was not a part of Bombay State, Marathwada consisting essentiallyof six districts which were part of the Aurangabad Revenue Division,Marathwada was governed by the Wakf Act, 1954 which we must noticeis an ‘improvement’ over the MussalmanWakf Act, 1923. Under theWakf Act of 1923, the wakfs were not controlled by Wakf Boards assuch. The wakfs had to file returns to the courts. It is interesting to notehowever that in the Wakf Act 1923 as applicable in the State of Bombay,the law provided for a publication of list of wakfs. However, when 1950Act came to be enacted in Bombay State and since the Wakf Act, 1954was not applicable to the State, the Bombay Public Trust Act,1950governed the wakfs which were treated as public trusts. The BombayPublic Trust Act provided for the following definition of the word “PublicTrust” under Section 2(13). It reads as under:

2(13) “Public trust” means an express or constructive trust foreither a public religious or charitable purpose or both and includes AB

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514SUPREME COURT REPORTS

Aa temple, a math, a wakf, [a dharmada] or any other religious orcharitable endowment and a society formed either for a religiousor charitable purpose or for both and registered under the SocietiesRegistration Act, 1860 (XXI of 1860);

62. Section 2 (19) interestingly provides for the definition of theBword ‘wakf’. This is so that wakf as defined in the definition of publictrust is properly appreciated. ‘Wakf’ under Section 2 (19) of the 1950Act provided for a wakf which was defined as the permanent dedicationby a person professing Islam for the purpose recognised by MuslimLaw as pious, religious or charitable and it includes a wakf by user andgrants including Mashrut-ul-khidmat for any purpose recognised byCMuslim law as pious, religious or charitable. The wakf-alal-aulad to theextent to which property is dedicated for any purpose so recognisedwas also a wakf which would qualify as a public trust. However, it didnot include a wakf so described under section 3 of the Mussulman WakfValidating Act 1913 under which any benefit is for the time being claimableDfor himself by wakif or for any member of the family or descendant. Itis relevant and apposite to unravel the true purport of this definition. Wewould understand that what is covered as a public trust under the BombayPublic Trust Act is only a Muslim Public Trust. In this regard we wouldadvert to the following declaration of the law contained in the judgmentof this Court in AIR 1981 SC 798 at 799.E

“6.…Similarly, even the Mahomedan law recognises the existenceof a private trust which is also of a charitable nature and which isgenerally called waqf-allal-aulad, where the ultimate benefit isreserved to God but the property vests in the beneficiaries andFthe income from the property is used for the maintenance andsupport of the family of the founder and his descendants. In casethe family becomes extinct then the waqf becomes a public waqf,the property vesting in God. A public waqf under the Mahomedanlaw is called waqf-fi-sabi-lil-lah.”

G63. We may notice also that the definition of wakf in the BombayPublic Trust Act does not appear to refer to a wakf as one embracing apublic utility as the subject matter of a wakf. However, charitable purposehas however been defined in Section 9 of the 1950 Act. Therein,advancement of any other object of public utility is included. It reads asfollows:H

“9. Charitable Purposes. - For the purposes of this Act, a charitablepurpose includes-

(1) relief of poverty or distress,

(2) education,

(3) medical relief and

(4) the advancement of any other object of general public utility,-but does not include a purpose which relates (a) exclusively to sports, or (b) exclusively to religious teaching or worship.”

64. Section 28, being relevant, it is noticed. Section 28 reads asunder:

“28. Public trust previously registered under enactmentsspecified in schedule. —

(1) All public trusts registered under the provisions of any of theenactmentsspecified in Schedule-A and Schedule-AA shall bedeemed to have beenregistered under this Act from the date onwhich this Act may be applied tothem. The Deputy or AssistantCharity Commissioner of the region or sub-regionwithin the limitsof which a public trust had been registered under any of thesaidenactments shall issue notice to the trustee of such trust forthe purpose ofrecording entries relating to such trust in the registerkept under section 17 and shall after hearing the trustee and makingsuch inquiry as may be prescribedrecord findings with the reasontherefore. Such findings shall be in accordancewith the entries inthe registers already made under the said enactments subject to such changes as may be necessary or expedient.

(2) Any person aggrieved by way of the findings recorded undersub-section(1) may appeal to the Charity Commissioner.

(3) The provisions of this Chapter shall, so far as may be, apply tothemaking of entries in the register kept under section 17 and theentries so madeshall be final and conclusive.”

65. The next relevant provision to notice is Section 36. It reads asunder:

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A“36. [(1) [Notwithstanding anything contained in the instrumentof trust]. - (a) no sale, mortgage, exchange or gift of any immoveableproperty, and (b) no lease for a period exceeding ten years in case of agriculturalBland or for a period exceeding three years in the case of non-agricultural land or a building, belonging to public trust, shall bevalid without the previous sanction of the Charity Commissioner.

(2) The decision of the Charity Commissioner under sub-section(1) shall be communicated to the trustees and shall be publishedCin such manner as may be prescribed.

(3) Any person aggrieved by such decision may appeal to theGujarat Revenue Tribunal within thirty days from the date of itspublication.

(4) Such decision shall, subject to the provisions of sub-section(3) be final.”

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66. What is relevant from Section 36 is that in the case of a publictrust which includes a wakf under the Bombay Public Trust Act, theproperty of the wakf can be sold, the only requirement thereunder beingthe previous sanction of Charity Commissioner. We may at this junctureEobserve that it does not harmonise with one of the indispensablerequirements of a wakf under the Act that the property of the wakfcannot be alienated. Section 37 deals with the power of inspection andsupervision.

67. Section 38 deals with explanation being given by the trusteesFto the Charity Commissioner. Section 41A to 41E deals with variousadditional powers which have been conferred which include the powerof suspension, remission, dismissal of the trustees by the CharityCommissioner. Section 79 must be noticed in full. It reads as under:

“79. Decision of property as public trust property:- (1) Any question,Gwhether or not a trust exists and such trust is a public trust orparticular property is the property of such trust, shall be decidedby the Deputy or Assistant Charity Commissioner or the CharityCommissioner in appeal as provided by this Act. (2) The decisionof the Deputy or Assistant Charity Commissioner or the CharityHCommissioner in appeal, as the case may be, shall, unless set aside by the decision of the Court on application or of the HighCourt in appeal be final and conclusive.”

68. Section 85 provides for repeal. It reads as follows:

“85. Repeals:-

(1) The Religious Endowments Act, 1862, is hereby repealed.

(2) On the date of the application of the provisions of this Act toany public trustor class of trusts under sub-section (4) of section1 hereinafter in this sectionreferred to an the said date theprovisions of the Act specified in Schedule Awhich apply to suchtrust or class of trusts shall cease to apply to such trust orclass oftrusts.

(3) Save as otherwise provided in this section such repeal orcessation shall notin any way affect –

(a) any right, title, interest, obligation or liability already acquired,accruedor incurred before the said date.

(b) any legal proceedings or remedy in respect of such right, title,interest,obligation or liability, or

(c) anything duly done or suffered before the said date.

(4) Notwithstanding anything contained in sub-section (3) allproceedingspending before any authority under the MussalmanWakf Act, 1923 asamended by the Mussalman Wakf BombayAmendment Act, 1935, the Bombay Public Trusts RegistrationAct, 1935, or the Parsi Public Trusts Registration Act, 1936,immediately before the said date shall be transferred to the CharityCommissioner and any such proceedings shall be continued anddisposed of bythe Charity Commissioner or the Deputy or AssistantCharity Commissioner asthe Charity Commissioner may direct.In disposing of such proceedings the Charity Commissioner, theDeputy Charity Commissioner or the AssistantCharityCommissioner, as the case may be, shall have and exercise thesamepowers which were vested in and exercised by the Courtunder the MussalmanWakf Act, 1923 as amended by theMussalman Wakf (Bombay Amendment)Act, 1935, and by theRegistrars under the Bombay Public Trusts RegistrationAct, 1935,and the Parsi Public Trusts Registration Act, 1936, and shallpasssuch orders as may be just or proper.

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A(5) All records maintained by the authority or Court under any ofthe Actsreferred to in sub-section (4) shall be transferred to theCharity Commissioner orto the Deputy or Assistant CharityCommissioner as the Charity Commissionermay direct.”

69. Section 86 provides for further repeals and savings. SectionB85 refers to schedule A. We may notice that theMussalman Wakf Actof 1923 is one of the laws which is referred to in the said Schedule.

70. Section 87 declares that theAct will not apply to theMarathwada region. This is for the reason that it came under the ambitof the Wakf Act, 1954.C

71. As we have noticed,the Wakf Act 1954 was perceived as anevolution of the earlier Act. It was specifically intended to introduceuniformity in matters relating to wakfs all over the country. But thefactremains that in view of the conditional legislation contained as it didin Section 1 of the Act, providing for power in applying the Act to differentDstates on different dates and the power to apply itself being with theGovernment, the Act was not made applicable to the territory whichwas comprised in the erstwhile state of Bombay. The definition of ‘Wakf’in the 1954 Act must be noticed. It reads as follows:

“Wakf” means the permanent dedication by a person professingEIslam of any movable or immovable property for any purposerecognised by the Muslim law as pious, religious or charitable andincludes— (i) a wakf by user; 1[(ii) grants (including mashrut-ul-khidmat) for any purpose recognised by the Muslim law as pious,religious or charitable; and] (iii) a wakf-alal-aulad to the extent towhich the property is dedicated for any purpose recognised byFMuslim law as pious, religious or charitable; and “wakif” meansany person making such dedication;”

72. Section 3(a) defined the word ‘beneficiary’. It reads as follows:

“3(a) “beneficiary” means a person or object for whose benefit awakf is created and includes religious, pious and charitable objectsGand any other objects of public utility sanctioned by the Muslimlaw;””

73. In fact, there was an amendment brought out in 1964. Thewords “established for the benefit of Muslim community” was substitutedwith the words “sanctioned by the Muslim Law”. In the notes on clausesH

in Bill No.32 of 1964 which culminated in the Amending Act 34 of 1964,we notice:

“Clause 2- the definition of ‘beneficiary’ in Section 3(a) of theAct involves a deviation from the real concept of beneficiary underthe Muslim Law which makes no distinction between Muslimsand Non-Muslims in the matter of beneficiaries or disbursementof charity. It is to that extent inconsistent with the definition of‘wakf’ contained in the Act. Sub-clause (i) seeks to amend thedefinition of ‘beneficiary’ to remove this inconsistency.”

74. Section 4 provided for survey by the Survey Commissioner ofthe wakf‘property’ as pointed by Shri Gopal Sankaranarayan. We neednot refer to the said provision for the reason thatthe parimateria provisionof Section 4 is replicated as the same Section in the Act. The Act containedprovisions for power for control of the Board, registration of Wakfs andsuperintendence by the ‘civil court’. It provided in Section 6 that on thepublication of the list of wakf properties,any‘person interested in thewakf’could seek relief from the Court which was contemplated in Section6 of the Act. The Act was amended on three occasions. There werecomplaints about the results which the Act of 1954 was able to produce.This finally paved the way for the passing of the Act with which we areconcerned. It is passed in the year 1995. It came into force on 1.1.1996.This time around the State of Bombay which since 1960 had becomethe present State of Maharashtra which included the ‘Marathwada region’also came under the regime of the Act.

75. Section 2 of the Act reads as follows:

“2. Application of the Act. — Save as otherwise expresslyprovided under this Act, this Act shall applyto all auqafwhethercreated before or after the commencement of this Act:

Provided that nothing in this Act shall apply to Durgah KhawajaSaheb, Ajmer to which the DurgahKhawaja Saheb Act, 1955 (36of 1955) applies.”

(Emphasis supplied)

76. It is at once to be noticed thatthe Act shallapply to wakfswhich were created ‘before the Act’ was passed and it is also to applyto wakfs which were brought into existence after the Act.

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A77. Section 3(a) in the Act which defines the word ‘beneficiary’continues with the same definition as was present in the Wakf Act 1954after its amendment in the year 1964. We will comment on its significanceat the appropriate stage in the judgment. Section 3 (c) defines the word‘Board’ as follows:

B“3(c) “Board” means a Board of Wakfs established under4*[subsection (1), or as the case may be, under sub- section (1A)of section 9.”

Next, we would notice the definition of the word ‘wakf’ in Section3 (r) before its amendment by Act 27 of 2013. It read as under:C

“3(r). “Wakf” means the permanent dedication by a personprofessing Islam, of any movable or immovable property for anypurpose recognised by the Muslim Law as pious, religious orcharitable and includes –

(i) a wakf by user but such wakf shall not cease to be a wakfDby reason only of the user having ceased irrespective ofthe period of such cesser;

(ii) “grants”, including mashrut – ul-khidmat for any purposerecognised by the Muslim Law as pious, religious orcharitable; and E

(iii) A wakf-alal-aulad to the extent to which the property isdedicated for any purpose recognised by Muslim Law aspious, religious or charitable, and “wakif” means any person making such dedication;”

F78. It must also be noticed at this juncture that with effect fromthe date of the Act 27 of 2013 it has been substituted and as it standstoday.Section 3(r) reads as follows:

“3(r) “waqf” means the permanent dedication by any person, ofany movable or immovableproperty for any purpose recognisedGby the Muslim law as pious, religious or charitable andincludes—

(i) a waqf by user but such waqf shall not cease to be a waqf byreason only of the userhaving ceased irrespective of the period ofsuch cesser;

(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any otherHname entered in a revenuerecord;

(iii) “grants”, including mashrat-ul-khidmat for any purposerecognised by the Muslim law aspious, religious or charitable; and

(iv) a waqf-alal-aulad to the extent to which the property isdedicated for any purposerecognised by Muslim law as pious,religious or charitable, provided when the line of successionfails,the income of the waqf shall be spent for education, development,welfare and such otherpurposes as recognised by Muslim law,and“waqif” means any person making such dedication;”

79. Section 4 of Wakf Act, 1995, which is at the centre stage ofcontroversy must be adverted to:

“4. Preliminary survey of auqaf.—

(1) The State Government may, by notification in the OfficialGazette, appoint for the State a Survey Commissioner of Auqafand as many Additional or Assistant Survey Commissioners ofAuqaf as may be necessary for the purpose of making a surveyof 3 auqaf in the State.

1A) Every State Government shall maintain a list of auqaf referredto in sub-section (1) and the survey of auqaf shall be completedwithin a period of one year from the date of commencement ofthe Wakf (Amendment) Act, 2013 (27 of 2013), in case suchsurvey was not done before the commencement of the Wakf(Amendment) Act, 2013:

Provided that where no Survey Commissioner of Waqf has beenappointed, a Survey Commissioner for auqaf shall be appointedwithin three months from the date of such commencement.

(2) All Additional and Assistant Survey Commissioner of Auqafshall perform their functions under this Act under the generalsupervision and control of the Survey Commissioner of Auqaf.

(3) The Survey Commissioner shall, after making such inquiry ashe may consider necessary, submit his report, in respect of auqafexisting at the date of the commencement of this Act in the Stateor any part thereof, to the State Government containing thefollowing particulars, namely: —

(a) the number of auqaf in the State showing the Shia auqaf andSunni auqaf separately; A

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A(b) the nature and objects of each waqf;

(c) the gross income of the property comprised in each waqf;(d) the amount of land revenue, cesses, rates and taxes payablein respect of each waqf; (e) the expenses incurred in the realisation of the income and thepay or other remuneration of the mutawalli of each waqf; and B

(f) such other particulars relating to each waqf as may beprescribed.

(4) The Survey Commissioner shall, while making any inquiry,have the same powers as are vested in a civil court under theCode of Civil Procedure, 1908 (5 of 1908) in respect of thefollowing matters, namely: —

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(a) summoning and examining any witness; (b) requiring the discovery and production of any document; D

(c) requisitioning any public record from any court or office;(d) issuing commissions for the examination of any witness oraccounts; (e) making any local inspection or local investigation; E

(f) such other matters as may be prescribed.

(5) If, during any such inquiry, any dispute arises as to whether aparticular waqf is a Shia waqf or Sunni waqf and there are clearindications in the deed of waqf as to its nature, the dispute shall bedecided on the basis of such deed.

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(6) The State Government may, by notification in the OfficialGazette, direct the Survey Commissioner to make a second orsubsequent survey of waqf properties in the State and theprovisions of sub-sections (2), (3), (4) and (5) shall apply to suchsurvey as they apply to a survey directed under sub- section (1):

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Provided that no such second or subsequent survey shall be madeuntil the expiry of a period of ten years from the date on whichthe report in relation to the immediately previous survey wassubmitted under sub-section (3):

Provided further that the waqf properties already notified shallnot be reviewed again in subsequent survey except where the H

status of such property has been changed in accordance with theprovisions of any law.”

80. Section 5 is equally an integral part of the scheme. It reads asunder:

“5. Publication of list of auqaf.—

(1) On receipt of a report under sub-section (3) of section 4, theState Government shall forward a copy of the same to the Board.

(2) The Board shall examine the report forwarded to it under sub-section (1) and fordward it back to the Government within a periodof six months for publication in the Official Gazette] a list of Sunniauqaf or Shia auqaf in the State, whether in existence at thecommencement of this Act or coming into existence thereafter, towhich the report relates, and containing such other particulars asmay be prescribed.

(3) The revenue authorities shall—

(i) include the list of auqaf referred to in sub-section (2), whileupdating the land records; and

(ii) take into consideration the list of auqaf referred to in sub-section (2), while deciding mutation in the land records.

(4) The State Government shall maintain a record of the listspublished under sub-section (2) from time to time.”

81. Sections 6 and 7 reads as follows:

“6. Disputes regarding auqaf.—

(1) If any question arises whether a particular property specifiedas waqf property in the list of auqaf is waqf property or not orwhether a waqf specified in such list is a Shia waqf or Sunniwaqf, the Board or the mutawalli of the waqf or 7 [any personaggrieved] may institute a suit in a Tribunal for the decision of thequestion and the decision of the Tribunal in respect of such mattershall be final: Provided that no such suit shall be entertained bythe Tribunal after the expiry of one year from the date of thepublication of the list of auqaf:

Provided further that no suit shall be instituted before the Tribunalin respect of such properties notified in a second or subsequent A

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survey pursuant to the provisions contained in sub-section (6) ofsection 4.

(2) Notwithstanding anything contained in sub-section (1), noproceeding under this Act in respect of any waqf shall be stayedby reason only of the pendency of any such suit or of any appealor other proceeding arising out of such suit.

(3) The Survey Commissioner shall not be made a party to anysuit under sub-section (1) and no suit, prosecution or other legalproceeding shall lie against him in respect of anything which is ingood faith done or intended to be done in pursuance of this Act orany rules made thereunder.

(4) The list of auqaf shall, unless it is modified in pursuance of adecision of the Tribunal under sub-section (1), be final andconclusive.

(5) On and from the commencement of this Act in a State, no suitor other legal proceeding shall be instituted or commenced in acourt in that State in relation to any question referred to in sub-section (1).”

“7. Power of Tribunal to determine disputes regardingauqaf.—

(1) If, after the commencement of this Act, any question or disputearises, whether a particular property specified as waqf propertyin a list of auqaf is waqf property or not, or whether a waqfspecified in such list is a Shia waqf or a Sunni waqf, the Board orthe mutawalli of the waqf, or any person aggrieved by thepublication of the list of auqaf under section 5] therein, may applyto the Tribunal having jurisdiction in relation to such property, forthe decision of the question and the decision of the Tribunal thereonshall be final:

Provided that—

(a) in the case of the list of auqafrelating to any part of theState and published after the commencement of this Act nosuch application shall be entertained after the expiry of oneyear from the date of publication of the list of auqaf; and (b) in the case of the list of auqaf relating to any part of theState and published at any time within a period of one year immediately preceding the commencement of this Act, suchan application may be entertained by Tribunal within the periodof one year from such commencement: Provided further thatwhere any such question has been heard and finally decidedby a civil court in a suit instituted before such commencement,the Tribunal shall not re-open such question.

(2) Except where the Tribunal has no jurisdiction by reason of theprovisions of sub-section (5), no proceeding under this section inrespect of any 3 [waqf] shall be stayed by any court, tribunal orother authority by reason only of the pendency of any suit,application or appeal or other proceeding arising out of any suchsuit, application, appeal or other proceeding.

(3) The Chief Executive Officer shall not be made a party to anyapplication under sub-section (1).

(4) The list of auqaf and where any such list is modified inpursuance of a decision of the Tribunal under sub-section (1), thelist as so modified, shall be final.

(5) The Tribunal shall not have jurisdiction to determine any matterwhich is the subject-matter of any suit or proceeding instituted orcommenced in a civil court under sub-section (1) of section 6,before the commencement of the Act or which is the subject-matter of any appeal from the decree passed before suchcommencement in any such suit or proceeding or of any applicationfor revision or review arising out of such suit, proceeding or appeal,as the case may be.

(6) The Tribunal shall have the powers of assessment of damagesby unauthorised occupation of waqf property and to penalise suchunauthorised occupants for their illegal occupation of the waqfproperty and to recover the damages as arrears of land revenuethrough the Collector:

Provided that whosoever, being a public servant, fails in his lawfulduty to prevent or remove an encroachment, shall on convictionbe punishable with fine which may extend to fifteen thousandrupees for each such offence.”

82. Section 8 provides that the Board has to bear the cost of thesurvey.

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A83. Section 9 contemplates establishment and constitution ofCentral Wakf Council. Section 9 (4) alone need detain us and it reads asfollows:

“9. Establishment and constitution of CentralWakfCouncil.—

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(4) The State Government or, as the case may be, the Board,shall furnish information to the Council on the performance ofWaqf Boards in the State, particularly on their financialperformance, survey, maintenance of waqf deeds, revenuerecords, encroachment of waqf properties, annual reports andaudit reports in the manner and time as may be specified by theCouncil and it may suo motu call for information on specific issuesfrom the Board, if it is satisfied that there was prima facie evidenceof irregularity or violation of the provisions of this Act and if theCouncil is satisfied that such irregularity or violation of the Act isestablished, it may issue such directive, as considered appropriate,which shall be complied with by the concerned Board underintimation to the concerned State Government.”

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84. Next, we come to Chapter IV under which the first provisionis Section 13. It reads as follows:

E“13. Incorporation. —

(1) With effect from such date as the State Government may, bynotification the Official Gazette, appoint in this behalf, there shallbe established a Board of Auqaf under such name as may bespecified in the notification:

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Provided that in case where a Board of Waqf has not beenestablished, as required under this sub-section, a Board of Waqfshall, without prejudice to the provisions of this Act or any otherlaw for the time being in force, be established within six monthsfrom the date of commencement of the Wakf (Amendment) Act,2013 (27 of 2013).

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(2) Notwithstanding anything contained in sub-section (1), if theShia auqaf in any State constitute in number more than fifteen percent. of all the auqaf in the State or if the income of the propertiesof the Shia auqaf in the State constitutes more than fifteen percent. of the total income of properties of all the auqaf in the State, H

the State Government may, by notification in the Official Gazette,establish a Board of Auqaf each for Sunni auqaf and for Shiaauqaf under such names as may be specified in the notification.

(2A) Where a Board of Waqf is established under sub-section (2)of section 13, in the case of Shia waqf, the Members shall belongto the Shia Muslim and in the case of Sunni waqf, the Membersshall belong to the Sunni Muslim.

(3) The Board shall be a body corporate having perpetualsuccession and a common seal with power to acquire and holdproperty and to transfer any such property subject to such conditionsand restrictions as may be prescribed and shall by the said namesue and be sued.”

85. We must indeed refer to Section 14 which deals with thecomposition of Board. It reads as under:

“14. Composition of Board. — (1) The Board for a State and theNational Capital Territory of Delhi] shall consist of—

(a) a Chairperson;

(b) one and not more than two members, as the StateGovernment may think fit, to be elected from each of theelectoral colleges consisting of—

(i) Muslim Members of Parliament from the State or, asthe case may be, the National Capital Territory of Delhi;

(ii) Muslim Members of the State Legislature;

(iii) Muslim members of the Bar Council of the concernedState or Union territory: Provided that in case there is noMuslim member of the Bar Council of a State or a Unionterritory, the State Government or the Union territoryadministration, as the case may be, may nominate any seniorMuslim advocate from that State or the Union territory, and

(iv) mutawallis of the auqaf having an annual income ofrupees one lakh and above.

Explanation I.—For the removal of doubts, it is herebydeclared that the members from categories mentioned insub-clauses (i) to (iv), shall be elected from the electoralcollege constituted for each category.

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Explanation II.—For the removal of doubts it is herebydeclared that in case a Muslim member ceases to be aMember of Parliament from the State or National CapitalTerritory of Delhi as referred to in sub-clause (i) of clause(b) or ceases to be a Member of the State LegislativeAssembly as required under sub-clause (ii) of clause (b),such member shall be deemed to have vacated the officeof the member of the Board for the State or National CapitalTerritory of Delhi, as the case may be, from the date fromwhich such member ceased to be a Member of Parliamentfrom the State National Capital Territory of Delhi, or aMember of the State Legislative Assembly, as the case maybe;

(c) one person from amongst Muslims, who has professionalexperience in town planning or business management, socialwork, finance or revenue, agriculture and development activities,to be nominated by the State Government; (d) one person each from amongst Muslims, to be nominatedby the State Government from recognised scholars in Shia andSunni Islamic Theology; (e) one person from amongst Muslims, to be nominated by theState Government from amongst the officers of the StateGovernment not below the rank of Joint Secretary to the StateGovernment; (1A) No Minister of the Central Government or, as the case maybe, a State Government, shall be elected or nominated as a memberof the Board:

Provided that in case of a Union territory, the Board shall consistof not less than five and not more than seven members to beappointed by the Central Government from categories specifiedunder sub-clauses (i) to (iv) of clause (b) or clauses (c) to (e) insub-section (1):

Provided further that at least two Members appointed on the Boardshall be women:

Provided also that in every case where the system of mutawalliexists, there shall be one mutawalli as the member of the Board.

(2) Election of the members specified in clause (b) of sub-section(1) shall be held in accordance with the system of proportionalrepresentation by means of a single transferable vote, in suchmanner as may be prescribed:

Provided that where the number of Muslim Members of Parliament,the State Legislature or the State Bar Council, as the case maybe, is only one, such Muslim Member shall be declared to havebeen elected on the Board:

Provided further that where there are no Muslim Members in anyof the categories mentioned in sub-clauses (i) to (iii) of clause (b)of sub-section (1) the ex-Muslim Members of Parliament, theState Legislature or ex-member of the State Bar Council, as thecase may be, shall constitute the electoral college.

(3) Notwithstanding anything contained in this section, where theState Government is satisfied, for reasons to be recorded in writing,that it is not reasonably practicable to constitute an electoral collegefor any of the categories mentioned in sub-clauses (i) to (iii) ofclause (b) of sub-section (1), the State Government may nominatesuch persons as the members of the Board as it deems fit.

(4) The number of elected members of the Board shall, at alltimes, be more than the nominated members of the Board exceptas provided under sub-section (3).

(5) Xxxxxxxxx

(6) In determining the number of Shia members or Sunni membersof the Board, the State Government shall have regard to thenumber and value of Shia auqaf and Sunni auqaf to be administeredby the Board and appointment of the members shall be made, sofar as may be, in accordance with such determination.

(7) * * * * *

(8) Whenever the Board is constituted or reconstituted, themembers of the Board present at a meeting convened for thepurpose shall elect one from amongst themselves as theChairperson of the Board.

(9) The members of the Board shall be appointed by the StateGovernment by notification in the Official Gazette.”

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A86. Section 15 provides that the Members of Board shall holdoffice for a period 5 years, as it stood, and the words ‘from the date ofnotification referred to in sub-Section (9) of Section 14" was inserted byAct 27 of 2013.

87. Section 16 enumerates various disqualifications to be membersBof the Board. Section 17 deals with the meetings of the Board. Section19 provides for resignation of chairperson and Members. TheChairperson or a Member can be removed under Section 20. Section 22is significant as will be revealed later on. It reads as follows:

“22. Vacancies, etc., not to invalidate proceedings of theCBoard.—

No act or proceeding of the Board shall be invalid by reason onlyof the existence of any vacancy amongst its member or any defectin the constitution thereof.”

88. Section 32 provides for powers and functions of the BoardDand we will dwell upon it when it becomes appropriate.

89. Section 36 falls under chapter V and deals with registration ofwakfs. Section 39 (1) must be referred to as a prelude to the scope ofSection 40, which latter provision is, parimateria with Section 27 of theWakf Act, 1954. Section 39 inter alia reads as under:

E“39. Powers of Board in relation to auqaf which have ceasedto exist. —

(1) The Board shall, if it is satisfied that the objects or any partthereof, of a waqf have ceased to exist, whether such cessertook place before or after the commencement of this Act, causeFan inquiry to be held by the Chief Executive Officer, in theprescribed manner, to ascertain the properties and funds pertainingto such waqf.”

90. Section 40 reads as follows:

G“40. Decision if a property is wakf property. —

(1) The Board may itself collect information regarding any propertywhich it has reason to believe to be waqf property and if anyquestion arises whether a particular property is waqf property ornot or whether a waqf is a Sunni waqf or a Shia waqf, it may,after making such inquiry as it may deem fit, decide the question.

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(2) The decision of the Board on a question under sub-section (1)shall, unless revoked or modified by the Tribunal, be final.

(3) Where the Board has any reason to believe that any propertyof any trust or society registered in pursuance of the Indian TrustsAct, 1882 (2 of 1882) or under the Societies Registration Act,1860 (21 of 1860) or under any other Act, is waqf property, theBoard may notwithstanding anything contained in such Act, holdan inquiry in regard to such property and if after such inquiry theBoard is satisfied that such property is waqf property, call uponthe trust or society, as the case may be, either to register suchproperty under this Act as waqf property or show cause whysuch property should not be so registered: Provided that in allsuch cases, notice of the action proposed to be taken under thissub-section shall be given to the authority by whom the trust orsociety had been registered.

(4) The Board shall, after duly considering such cause as may beshown in pursuance of notice issued under sub-section (3), passsuch orders as it may think fit and the order so made by the Board,shall be final, unless it is revoked or modified by a Tribunal.”

91. Under Section 41, the Board may compel a Muttawalli toapply for registration of a wakf or to supply any information or mayitself cause the wakf to be registered or may at any time amend theregister of auqaf. Section 43 is also crucial for appreciating thecontroversy before us. Section 43 reads as under:

“43. Auqaf registered before the commencement of thisAct deemed to be registered. —

Notwithstanding anything contained in this Chapter, where anywaqf has been registered before the commencement of this Act,under any law for the time being in force, it shall not be necessaryto register the 1 [waqf] under the provisions of this Act and anysuch registration made before such commencement shall bedeemed to be a registration made under this Act.”

92. Section 51 deals with alienation of wakf property. It reads asunder:

“51. Alienation of wakf property without sanction of Boardto be void. —

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A(1) Notwithstanding anything contained in the waqf deed, anylease of any immovable property which is waqf property, shall bevoid unless such lease is effected with the prior sanction of theBoard: Provided that no mosque, dargah, khanqah, graveyard, orimambara shall be leased except any unused graveyards in theStates of Punjab, Haryana and Himachal Pradesh where suchBgraveyard has been leased out before the date of commencementof the Wakf (Amendment) Act, 2013 (27 of 2013).

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(1A) Any sale, gift, exchange, mortgage or transfer of waqfproperty shall be void ab initio: Provided that in case the Board issatisfied that any waqf property may be developed for the purposesCof the Act, it may, after recording reasons in writing, take up thedevelopment of such property through such agency and in suchmanner as the Board may determine and move a resolutioncontaining recommendation of development of such waqf property,which shall be passed by a majority of two-thirds of the totalDmembership of the Board: Provided further that nothing contained in this sub-section shall affect any acquisition of waqf propertiesfor a public purpose under the Land Acquisition Act, 1894 (1 of1894) or any other law relating to acquisition of land if suchacquisition is made in consultation with the Board: Provided alsothat—

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(a) the acquisition shall not be in contravention of the Places ofPublic Worship (Special Provisions) Act, 1991 (42 of 1991); (b) the purpose for which the land is being acquired shall beundisputedly for a public purpose; F(c) no alternative land is available which shall be considered asmore or less suitable for that purpose; and (d) to safeguard adequately the interest and objective of the waqf,the compensation shall be at the prevailing market value or asuitable land with reasonable solatium in lieu of the acquiredGproperty.”

93. Section 52 provides for power of recovery of wakf propertytransferred in contravention of Section 51.

94. Section 97 relied upon by Shri Y.H. Mucchawala, learnedSenior Counsel, reads as follows:H

“97. Directions by State Government. —

Subject to any directions issued by the Central Government undersection 96, the State Government may, from time to time, give tothe Board such general or special directions as the StateGovernment thinks fit and in the performance of its functions, theBoard shall comply with such directions:

Provided that the State Government shall not issue any directionbeing contrary to any waqf deed or any usage; practice or customof the waqf.”

95. Section 102 deals with special provisions for reorganisation ofcertain Boards and Section 103 deals again with special provisions forestablishment of Board for part of a State. Section 104 provides fordonation made by a non-Muslim becoming part of the wakf. It reads asfollows:

“104. Application of Act to properties given or donated by personsnot professing Islam for support of certain waqf.—

Notwithstanding anything contained in this Act where any movableor immovable property has been given or donated by any personnot professing Islam for the support of a waqf being—

(a) a mosque, idgah, imambara, dargah, khangah or a maqbara; (b) a Muslim graveyard;

(c) a choultry or a musafirkhana,

then such property shall be deemed to be comprised in that waqfand be alt in the same manner as the waqf in which it is socomprised.”

96. Section 104A inserted by Act 27 of 2013 prohibits sale, gift,exchange, mortgage or transfer of wakf property, movable or immovableto any other person.This is notwithstanding anything contained in theAct itself or any other law for the time being in force. Section 104Bdeals with restoration of wakf property in occupation of the Governmentto the wakf Board. Lastly, we may only notice Section 112 since it dealswith repeal and savings. It reads as under:

“112. Repeal and savings. —

(1) The Wakf Act, 1954 (29 of 1954) and the Wakf (Amendment)Act, 1984 (69 of 1984) are hereby repealed.

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A(2) Notwithstanding such repeal, anything done or any action takenunder the said Acts shall be deemed to have been done or takenunder the corresponding provisions of this Act.

(3) If, immediately before the commencement of this Act, in anyState, there is in force in that State, any law which corresponds toBthis Act that corresponding law shall stand repealed: Providedthat such repeal shall not affect the previous operation of thatcorresponding law, and subject thereto, anything done or any actiontaken in the exercise of any power conferred by or under thecorresponding law shall be deemed to have been done or taken inthe exercise of the powers conferred by or under this Act as ifCthis Act was in force on the day on which such things were doneor action was taken.”

97. Having set out the salient provisions of the Act, the time isripe for us to consider the contentions of the parties. The first contentionwhich has been raised relates to the very incorporation of the Board.DThe incorporation of the Board is an essential feature for the working ofthe Act. This is for the reason that the Board is thefulcrum aroundwhichthe whole control and regulation of the Wakfs is to take place. We havenoticed the terms of Section 13. The High Court has found that thenotification incorporating the appellant Board was flawed. The reasonwhich appealed to the High Court appears to be that it was not precededEby the survey contemplated under Section 4. To expatiate,it is the findingof the High Court that the Act contemplates the survey giving birth todata which is requisite and indispensable for the Government to legallydetermine the question inter alia as to whether there must be separateSunni and Shia Boards. This is because Section 13 (2) provides that theFGovernment ‘may’ have Sunni Board and Shia Board if the conditionsmentioned therein are present. The problem posed is the impossibility offinding out the solution to this question in the absence of relevant data.The only relevant data, according to the High Court, is what is yielded inthe Survey under Section 4.

98. We must first decide as to whether Section 13 (2) providesGfor an inflexible and unalterable duty with the Government to establishseparate Sunni and Shia Boards if the number of Shia Wakfs is in excessof 15 per cent of all the wakfs. Still further, will the Government be dutybound to constitute separate Boards for the two sects if the incomefrom the Shia wakfs exceeds 15 per cent of the total income of all theHwakfs put together.

99. The use of the word ‘may’ is not to be brushed aside withcontempt or without due reference to the knowledge that legislature hasknowingly used it. But we do bear in mind that the word ‘may’ indeed becapable of bearing an imperative meaning. In this regard we may referto the judgment in Baker, Re [Baker, Re, Nichols v. Baker10:

‘I think that great misconception is caused by saying that in somecases “may” means “must”. It never can mean “must”, so longas the English language retains its meaning; but it gives a power,and then it may be question in what cases, where a Judge hasa power given by him by the word “may”, it becomes his dutyto exercise it.’

100. We may also refer to the following observations made inJulius v. Lord Bishop of Oxford11:

‘The words “it shall be lawful” are not equivocal. They are plainand unambiguous. They are words merely making that legal andpossible which there would otherwise be no right or authority todo. They confer a faculty or power and they do not of themselvesdo more than confer a faculty or power. But there may besomething in the nature of the thing empowered to be done,something in the object for which it is to be done, somethingin the title of the person or persons for whose benefit thepower is to be exercised, which may couple the power with aduty, and make it the duty of the person in whom the power isreposed, to exercise that power when called upon to do so.’

101. Bearing in mind the tests which have been laid down, wemust pose the question as to whether there is anything in the object or inthe context that requires of us to not give ‘may’ its ordinary meaningwhich undoubtedly implies only a discretion. The search for the object inthe context undoubtedly transports us to explore the difference betweenSunnis and Shias.

102. The principle sect of Muslims in India are undoubtedly Sunnis.This is by way of population. The differences between Sunni and Shiahave a historical background.Though it may be true that it may haveoriginated on the basis of the ‘infallibility’ which is attributed to the twelvers 10 (1890) 44 Ch D 262 (CA)

11 (1880) 5 AC 214

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Aor the 12 Imams who were found to be blessed with infallibility, over aperiod of time, there have been differences which have developed whichgo to certain aspects of the practices of the faith as well. Closer home,in the institution of Wakf itself, for instance, in the case of Muslimsgoverned by the Hanafi School of Thought which it must be noticed ispart of the Sunni faith, delivery of possession may not be an indispensableBelement for the creation of a valid wakf. In the case of a Shia Wakf, theposition may not be the same. At the same time, we must not also losesight of the fact that both Sunni and Shia profess Islam as their faith. Asregards the core belief of the oneness of God or Almighty and ProphetMohammad being the last Messenger and the other fundamental tenetsCof the faith, there is little difference between aSunni and a Shia. TheShia themselves have three branches, namely, Twelvers, Ismailis andZaidis. With this brief background of the differences between sects ofIslam, namely, Sunni and Shia, we must carry our discussion forward. Inthis case, the legislature itself has taken notice of the existence of twodifferent sects of Islam, in Section 13 (2). It has proceeded to provideDfor two separate Boards if a percentage of Wakfs of Shias as a ratio tothe total number of wakfs exists. However, we are unable to perceiveSection 13 (2) as creating an inviolable duty with the Government tocreate Boards upon the magical figure of 15% mentioned in Section13(2) being breached. It may be that, in a given case, it may be 16%. InEanother case it may be 30% or 40%. A wide range of possibilitiesrepresenting both ends of the spectrum and all that lies in-between canbe imagined. We are unable to perceive any reason at all to burden theGovernment with the obligation to provide for separate Boards with allthe expenditure and other burdens that it entails, upon Shia Wakfs ortheir income either exceeding the percentage indicated in Section 13(2).F

103. There are other reasons as well, why we should not give aword importing a discretion, the force of a mandatory duty. In Section13(1), the lawgiver has used the word ‘shall’. Not unnaturally, in itssetting it bears a mandatory connotation. There must be a Board.Whenit comes to Section 13(2), the immediate neighbour, the choice of wordG‘may’ cannot be ordinarily set at naught. Section 4 of the Act may nowbe considered. Section 4 deals with the power to order a survey. Thesurvey is to be a survey in the State. The Surveyor is to submit a report.The report is to be submitted to the Government. The Governmentreceives the report under Section 4(3). Section 4 (3) does not speak ofHany other duty on the part of the Government on receipt of the report

except to forward it to the Wakf Board. This takes place under Section5 of the Act. The question which naturally arises, if a survey is to precede,the incorporation of Board then how can the Board be consulted? Howcan the Board then publish it, if it is not in existence before the survey?The High Court has proceeded to deal with it by stating that upon receiptof the survey report, it is not necessary to immediately send it over to theBoard. The learned counsel for the respondents would also emphasisebefore us that the view which would occasion a harmonious operationof all the provisions of the Act and fulfilling its object would be to adoptthe following course. Upon receipt of the report by the Governmentunder Section 4(3), the Government can constitute the Board under Section13. When it does this, it does justice to not only the demand of Section13(2), but also it would comply with the mandate of Section 14(6).Theargument is indeed attractive. However, we have found that the foundationof the reasoning of the High Court appears to be that Section 13(2)provides for an inexorable duty to form two separate Boards upon thepercentage mentioned in Section 13 (2) being exceeded. We have alreadyfound that we are unable to cull out any such mandatory duty to formtwo separate Boards. This overturns the fundamental basis on whichthe High court has proceeded. We may notice also in this regard thatSection 13(2) of the Act inter alia reads as follows:

“13(2) Notwithstanding anything contained in sub-section (1), ifthe Shia [auqaf] in any State constitute in number more than fifteenper cent. of all the [auqaf] in the State or if the income of theproperties of the Shia [auqaf] in the State constitutes more thanfifteen per cent. of the total income of properties of all the 1[auqaf] in the State, the State Government may, by notification inthe Official Gazette, establish a Board of [Auqaf] each for Sunni[auqaf] and for Shia [auqaf] under such names as may be specifiedin the notification”

104. Section 32(2)(e) reads as follows:

“32(2) Without prejudice to the generality of the foregoing power,the functions of the Board shall be—

(e) to direct—

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(ii) in what manner the income of a wakf, the objects of whichare not evident from any written instrument, shall be utilized; A

(iii) in any case where any object of wakf has ceased to exist orhas become incapable of achievement, that so much of the incomeof the wakf as was previously applied to that object shall be appliedBto any other object, which shall be similar, or nearly similar or tothe original object or for the benefit of the poor or for the purposeof promotion of knowledge and learning in the Muslim community:Provided that no direction shall be given under this clause withoutgiving the parties affected an opportunity of being heard.Explanation—For the purposes of this clause, the powers of theCBoard shall be exercised—

(i) in the case of a Sunni wakf, by the Sunni members of theBoard only; and

(ii) in the case of a Shia wakf, by the Shia members of the Boardonly: Provided that where having regard to the number of theSunni or Shia members in the Board and other circumstances, itappears to the Board that the power should not be exercised bysuch members only, it may co-opt such other Muslims being Sunnisor Shias, as the case may be, as it thinks fit, to be temporarymembers of the Board for exercising its powers under this clause;”

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This again indicates that the legislature has put in place a definitescheme and contemplated co-opting temporary Members of the twosects, where it was felt necessary.Equally, noteworthy is the fact thatSection 14(5) which was omitted only under Act 27 of 2013 and wastherefore relevant at the time when the High Court passed the impugnedFjudgment provided for the appointment of one Shia member in the caseof the Composite Board. Under Section 14(6) is concerned, it may betrue that at the time of constitution of the Board, the number of Wakfsand the ‘value’ of the Wakfs is to be considered. What Section 14 saysis with regard to establishment of Boards, the Government shall haveGregard to the number and value of the Shia and Sunni Wakfs to beadministered by the Board. We notice Gopal Sankaranarayanan’sargument about the distinction between the word ‘value’ as used in Section14(6) and ‘income’ employed in Section 13(2), as also Section 3(4).

105. From the inputs available from the Act, we would think thatthe said provision should not in our view compel us to form the view thatH

a survey under Section 4 must in all the cases be done first, and thereafteralone the Board should be incorporated.

106. We cannot be unmindful of the fact that the existence of theBoard is vital to achieve the objects of the Act. We have noticed thatSection 32 contemplates various powers and functions with the Board.Section 36 gives a right or casts a duty as it were on Wakfs to getthemselves registered with the Board. Section 40 provides for anotherimportant function of the Board. It must be in this regard not be ignoredthat there was severe criticism about the treatment that was being metedout to the Wakfs. Mutawallis were principally at the receiving end of thecriticism in the form of allegations of indiscriminate alienations andencroachment on wakf property being ignored.

107. In the same breath we are duty bound to express our concernand ventilate our pain at noticing that amendment took place in the year2013 after a good 18 years of the passing of the 1995 Act under whichit was provided that where Wakf Boards are not appointed, it had to beappointed within a period of one year from the coming into force of theAmending Act 27 of 2013. This no doubt alerts us to the fact that theAct did not provide for any time limit with the Government to incorporatethe Board. To this extent we acknowledge that the Act did not expresslyprovide for a sense of compelled urgency with the Government inincorporating the Board. But that in our view cannot detract from theactual existence of such a need for incorporating the Board at the earliest.We are also not unmindful of the fact that the Survey Commissionerappointed in 1997 and was in the process of submitting the survey report[in fact nearly three weeks after the incorporation of the Board on04.01.2002, the report is submitted on 31/01/2002]. But once we findthat thescheme of the Act contemplates the lawful incorporation of theBoard even without receipt of the Survey report, we cannot possiblyuphold the view taken by the High Court that the incorporation of theWakf Board on 04.01.2002 was illegal as there was no previous survey.

108. We may notice the role of the Board at the stage of section5(2). The Board ‘examines’ the report which is sent by the Government.We may notice and find that there is no requirement in law contrary tothe contentions raised by the writ petitioners that the report furnished bythe survey commissioner to the Government under Section 4(3) must bepublished. However, the Wakf Board is duty bound to ‘examine’ thecontents of the report sent to it and it can indeed make changes which A

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Amay be necessary and once the Wakf Board resolves to bring out thelist, the list is to be published. This is made subject to any modificationwhich may be made by the Tribunal under Section 6 of the Act. This inour view is essential to understand the purport of Section 13(2) of theAct as well. That is to say that when the legislature has contemplatedthe creation of separate Wakf Boards for Sunnis and Shias on the basisBof the number of Wakfs, Shia Wakfs being in excess of 15 per cent ofthe total number of wakfs or the income from Shia Wakfs being in excessof 15 per cent of the total income of the Wakfs, it is the list which hasbeen considered and published by the Wakf Board under Section 5(2)which can be material. This reinforces us in our belief that it is notCnecessary that a survey must precede the incorporation of the Board. Infact, the Wakf Act, 1954, was in operation in many of the States. It is notdifficult to imagine that surveys would have been conducted under theprevious enactment. So, it is not as if there may be absence of anymaterial in regard to matters contemplated under Section 13(2). Notthat it should form the premise of our finding, but for reassurance, weDalso find in the facts of this case that the survey commissioner hasreported that there were 20194 Wakfs in the State. The total number ofShia Wakfs were surveyed and found to be 203.This constitutes 1.005per cent of the total number of Wakfs. This is a figure which does noteven in any way approximate to the figure of 15 per cent contemplatedEin Section 13(2). Another plank of the reasoning of the High Court ininterfering with the incorporation of the Board was that under the Act,the Board assumes a corporate form and it is imbued with perpetualsuccession. The High Court reasons that once a Board is created, thereis no provision for putting an end to it and giving birth to a Sunni Boardand a Shia Board. We may notice in this context that it is not difficult toFimagine that in a given case a State may have a composite Board tobegin with. A second or subsequent surveyare contemplated and permittedunder Section 4(6).Take a situation where initially the number of ShiaWakfs or the income therefrom did not justify the creation of separateboards and there is a composite Board. Can it be the law that if a secondGor subsequent survey, which is permitted under the law, results in thepercentage of Shia Wakfs or income therefrom demands considerationof the question as to whether there should be two separate boards, it isrendered impossible by perpetual succession and corporate form thecomposite Boardassumed under the original incorporation? We are clearlyof the view that the existence of the original Board constituted underH

Section 13(1) cannot stand in the way of the constitution of two separateboards.Therefore, we do not think that there can be any legal hurdle inthe creation of two separate boards which may be necessitated on thebasis of the decision taken by the Government in the matter.

109. The next question which we must consider relates to theconstituent elements of a Wakf. From the definition which is available inthe Act, the first indispensable requirement is that there must be dedication.Dedication must be by a person who is the owner of the property.Dedication must be permanent.Permanent means that it cannot be for aperiod of time; it must be perpetual. It must be irrevocable. While onirrevocability, we may only indicate that a Wakf can be created by a willalso. But when a Wakf is created by a will it is open to the Wakif torevoke the will prior to his death. As to the effect of his death, the will,will bring into existence a Wakf but limited to 1/3 share unless the heirsotherwise agree. Save as aforesaid, a Wakf cannot be revoked. A Wakf,again meaning the property which is the subject matter of a Wakf cannotbe alienated. This is subject to what we will state when we discuss thedifferences between a Wakf and a Trust. The object of the Wakf mustbe such that it is approved by the Muslim law. The object must bereligious, pious or charitable and we hasten to again reiterate that it isnot a concept of piety religiousness or the charitable nature in the eyesof the entire world but what is in consonance with Muslim law. There isno prescribed mode of dedication. A Wakf need not be in writing. As faras declaration is concerned, it can be inferred from conduct. A Wakf, asdefined includes Wakf by user. This usually arises in public places likekabristan, Durgah, Takia. Takia means a resting place. It may not beany resting place but usually, it is associated with a graveyard.

It may be an Imambara. About Inambara we find the followingdiscussion in Mulla Principles of Mahomedan Law (22[nd] Edition):

“223. Imambara An imambara is an apartment in a private houseor a building set apart like a private chapel for religious purposes.It is intended for the use of the owner and members of his family,though the public may be admitted with the permission of theowner. It may be the object of a valid waqf-178. Such a waqf is aprivate waqf and not a public waqf nor a trust for the purposes ofs.92 of the Code of Civil Procedure, but it may be proved that aparticular imambara is a public waqf.”

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A110. In such a case, that is Wakf by user, it would be a case ofimmemorial user. That is precisely the reason why the need to prove thededication may be dispensed with, as the proof of it, may have been lostwith the passage of time.

111. A Wakf can be created for attaining a public utility. The publicButility must, however, be for an object sanctioned by Muslim law. Subjectto said conditions, irrespective of whether the beneficiaries are Muslimsor not, there could be a valid Wakf. This is the result of the amendmentbrought to Section 3(a) of the Wakf Act, 1954 by the Amendment Act of1964 which we have already noticed. The very same definition of Section3(a) after the amendment in 1964 has been replicated in the Act asCwell.However, this would not dispense with the indispensable requirements to create a Wakf.

to create a Wakf.

They include the requirement of permanent dedication. Even insuch Wakf, there must be a divesting of title of Wakf and vesting of titlein the Almighty. Shri Gopal Sankarnarayanan, learned senior counsel,Dlaid stress on this development viz., the amendment to the definition ofthe word ‘beneficiary’ in section 3(a) of Wakf Act, 1954 and oncontinuance of the same definition in the 1995 Act, to point out that thishas the result in law of removing the very foundation of the judgmentrelied upon by the writ petitioners viz., the decision of this Court reportedEin Nawab Zain Yar Jung (Since Deceased) and Others v. Director ofEndowments and Another(supra). In other words, even in the case ofa public charitable trust created by a Muslim, the intention of the Muslimbeing to provide for activities for the general welfare and which are,therefore, secular and it emphasises the creation of the institution forhuman beings irrespective of religion, then the difference between aFpublic Trust and a Wakf would cease to exist.

112. The time therefore is ripe now to examine the judgment ofthis Court in Nawab Zain Yar Jung (Since Deceased) and Others v.Director of Endowments and Another(supra). In the said case, a Benchof five learned Judges had the following facts inter alia before them.GFour appellants before the Court were trustees appointed by the Nizamof Hyderabad under a trust deed executed in 1954.They were initiallyconfronted with proceedings under the Hyderabad EndowmentRegulation 1348-F (1939). While litigation regarding the said provisionwas pending in this Court, developments took place in the form ofHproceedings to get them registered under the Wakf Act, 1954 by the Wakf Board. The contention raised by the appellants therein was, it wasnot a Wakf which the Court had before it but a Trust and what is more,a public charitable Trust. The Court made, we may notice, the followingobservations:

“12. Similarly, the Muslim law relating to trusts differsfundamentally from the English law. According to Mr Ameer Ali,“the Mohammadan law owes its origin to a rule laid down by theProphet of Islam; and means ‘the tying up of property in theownership of God the Almighty and the devotion of the profits forthe benefit of human beings.’ As a result of the creation of awakf, the right of wakif is extinguished and the ownership istransferred to the Almighty. The manager of the wakf is themutawalli, the governor, superintendent, or curator. But in thatcapacity, he has no right in the property belonging to the wakf; theproperty is not vested in him and he is not a trustee in the legalsense”. Therefore, there is no doubt that the wakf to which theAct applies is, in essential features, different from the trust as isknown to English law.”

113. Thereafter, the Court proceeded to analyse the Trustdeed.The Court dwells on the effect of the trust deed in paragraph-16,17 and 18:

“16. It is also urged that the effect of clauses relating to the vestingof the property in the appellants as trustees should be judged inthe light of the character of the property with which the documentdeals. The subject-matter of the trust is moveable property andunless the said property was assigned to the appellants, they wouldnot have been able to deal with it, and that alone is the basis andthe justification for the vesting provisions in the document.Therefore, too much importance should not be attached to thesaid provisions and it should not be held that since there is a vestingof legal title in the appellants, the transaction is a trust and not awakf. The pervading idea of the document is the dedication of theproperty to purposes recognised by Muslim law as valid for awakf and it is only as a means to give effect to that idea that theproperty has been vested in the appellants. That in brief, is themain argument in support of the plea that the trust is a wakf towhich the provisions of the Act apply.”

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“17. On the other hand, there are certain other broad features ofthe transaction which are wholly inconsistent with the notions ofa wakf. The outstanding impression which the document createsis that the settlor wanted to create a trust for charitable purposesand objects in a secular and comprehensive sense, unfettered andunrestricted by the religious considerations which govern thecreation of wakf. Even the clause on which Mr Pathak relies forthe purpose of showing the intention to dedicate the property toAlmighty makes it perfectly clear that amongst the objects forwhich the trust was created were included other charitablepurposes without distinction of religion, caste or creed, and thatobviously transgresses the limits prescribed by the requirementsof a valid wakf. The same comprehensive character of thecharitable purpose which the settlor has in mind is equallyemphatically brought out by clause 3(c)(ii). Clause 3 providesthat the Trustees shall hold and stand possessed of the Trust Fundupon the Trusts specified in sub-clauses (a) to (c). Sub-clause(c)(ii) refers to the maintenance, upkeep and support of publicreligious institutions, and otherwise for the advancement of religion,particularly in the State of Hyderabad; and it adds that the benefitof the present clause shall not be restricted to any particularreligion. A public charitable purpose which is not limited byconsiderations pertaining to one religion or another could not havebeen more eloquently expressed. The dominant intention of thesettlor in creating the trust was to help public charity in the bestsense of the words, “public charity” not confined to any caste,religion or creed; and it is in that sense that, the religious institutionswhich are within the purview of the trust are all religious institutionsnot confined to any particular religion. Then look at clause 3(c)(v).It provides that the trust property can be utilised for theadvancement of any other object of general public utility,particularly in the State of Hyderabad. It is true that the settlorwanted the objects of general public utility in Hyderabad to bepreferred and in that sense the document discloses a desire toprefer the objects of general public utility situated within theterritorial limits of Hyderabad. But it is plain that it was farthestfrom the mind of the settlor to impose a limitation that the objectsof general public utility should be confined to those recognised assuch by Muslim law. It is thus clear that the outstanding feature of the trust disclosed by these provisions is plainly inconsistentwith the concept of a wakf and that itself would rule out the viewthat the document creates a wakf and not a comprehensive publiccharitable trust.”

“18. It is true that a large number of provisions contained in thedocument are consistent with the view that the document createsa wakf as much as they are consistent with the view that it createsa public charitable trust as distinguished from wakf. It is, however,patent that there are some clause which are inconsistent with thefirst view, whereas with the latter view all the clauses areconsistent. In other words, if the construction for which the Boardcontends is accepted, some clauses would be defeated, whereasif the construction for which the respondents contend is upheld,all the clauses in the document become effective. In our opinion,it is an elementary rule of construction that if two constructionsare reasonably possible, the one which gives effect to all the clausesof the document must be preferred to that which defeats some ofthe clauses. It is not in dispute that if the document is held to be awakf, the directions in the document that charitable purposes shouldbe selected without distinction of religion, caste or creed, wouldobviously be defeated and that undoubtedly supports the conclusionthat the document evidences a public charitable trust and not awakf.”

114. Finally, we must, however, not overlook what this Court foundin the following paragraph:

“20. It is in this context that the other provisions about vestingmust be considered. The document calls the author of the trust asthe “Settlor” and the appellants as the “Trustees “and thatintroduces the concept of the Trust as contemplated by Englishlaw. Clause 1 of the document specifically assigns and transfersunto the appellants all those shares and securities described in theSchedule which are the subject-matter of the trust. This clause, interms, transfers the shares and securities to the Trustees and so,the legal title in respect of the subject-matter of the trust vests inthe Trustees. The argument that the provision for vesting had tobe made because the property in question is moveable property,does not carry conviction because the whole scheme of thedocument appears to be to vest the title in the trustees and gives A

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Athem absolute discretion to use the said property and its incomefor any of the charitable purposes specified in the document. Thus,the vesting provision has not been adopted as a means to carryout the intention to dedicate the property to the Almighty but itconstitutes the essential basis of the transaction and that is totransfer the legal title of the trust property to the trustees. In thatBsense, clause 14 which confers on the trustees absolute discretionto deal with the property in any manner they like, as well as clauses18 and 24 which clothe them with authority to employ servants intheir uncontrolled discretion and to appoint a Committee formanagement of the Trust, become more easily intelligible. In thisCconnection, we may also notice the fact that the appointment ofnon-Muslims as trustees which is prohibited by the Act, is anindication that the Settlor did not regard the trust as falling withinthe said statutory prohibition; likewise, the scheme of managementof the trust which the trustees are given liberty to adopt inadministering the trust, is completely free from the regulationsDbased on Muslim law which the relevant sections of the Act haveprescribed. These several features of the trust support theconclusion that the trust is not a wakf and does not fall within theprovisions of the Act. We have carefully considered all the relevantprovisions of the document and we are satisfied that on a fair andEreasonable construction, the document must be held to have createda trust for public charitable purposes, some of which are outsidethe limits of the wakf and so, the conclusion is inescapable thatthe trust created is not a wakf but a secular comprehensive publiccharitable trust. In that view of the matter, Section 3(1) of the Actcannot apply to the trust and its registration under Section 28 isFinvalid and inoperative.”

115. Therefore, this was a case where there was a documentwhich was styled as a trust deed.The trust purported to provide forrelief to the poor particularly in the State of Hyderabad. It contemplatedmaintenance and support to religious institutions otherwise forGadvancement of religion particularly in the State of Hyderabad. Mostimportantly, it was made clear that towards the said intent that the benefitof the clause was not to be restricted to any particular religion. Theother clauses also sought to provide relief on a secular basis. It wasintended to cater to the inhabitants of Hyderabad in particular withoutHany regard to religion. We are aware of the fact that at the time when the Court considered the case the prevailing definition of beneficiarywas what was contained in Section 3(a) in its unamended form. In otherwords, what this Court considered was the definition of beneficiary inSection 3(a) which ended up with the injunction that the beneficiarymust be a member of the Muslim community. It is after this judgmentthat in the year 1964 as we have noticed by the Amendment Act that thewords established‘for the benefit of the Muslim community’ weresubstituted with the words ‘for purposes sanctioned by the Muslim law’.

116. This judgment has also been followed by this Court in thedecision reported in Mohd. Khasimv. Mohd. Dastagir andOthers(supra). Therein, this Court held:

“31. The aforesaid directions run contrary to the concept of wakfand the more appropriate view appears to be that the executantintended to create a simple English trust. Although, in order tocreate a valid wakf it is not necessary to use the term “wakf” inthe document in question, except for providing for the performanceof certain religious ceremonies, pious and charitable duties, thereis no mention that the dedicator had ever intended that theproperties forming the subject-matter of the trust should constitutea wakf. The executant appears to have deliberately used theexpression “trustee” and not “Mutwalli” which would have endedthe controversy that has now arisen.”

“32. The law is quite clear that there is no bar to a Mohammedancreating a simple English trust. It is not always necessary that inorder to make a settlement of his properties, a Mohammedan hasalways to create a wakf. In fact, the said view has been expressedin a Division Bench decision of the Madras High Court inKassimiah Charities Rajagiri v. Secy., Madras State WakfBoard [AIR 1964 Mad 18] . In the said case, while confrontedwith a similar question, the Division Bench observed that a Muslimcan endow properties to charities either by adopting his favouritemode of creating a wakf or by endowing property conforming tothe law of trusts. The question whether a particular endowmentamounts to a wakf under the Mohammedan law or to a trust asrecognised by modern jurisprudence, will have to be decidedprimarily on a true construction of the document establishing thecharity. However, it has also been stated in the said decision thatvesting of a power of alienation by way of exchange or sale under A

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Athe document creating wakf is not inconsistent with the documentconstituting a wakf under the Muslim law. A dedication to a wakfwill not, therefore, cease to be such merely because a power isreserved in the Mutwalli to exchange the wakf lands with otherlands or to sell them and purchase other lands so that the lands sotaken in exchange or by purchase, might become the subject ofBthe wakf.”

117. In the later judgment, the Court has purported to place relianceon the judgment of the High Court of Madras reported in The KassimiahCharities, Rajagiri represented by its hereditary trustee Sri. R.E.M.S.Abdul Hamid v. The Madras State Wakf Board, represented by itsCSecretary AIR 1964 Madras 18.

Therefore, it is true as contended by Dr.Singhvi, learned seniorcounsel, and also Shri Harish Salve, learned senior counsel that this Courthas maintained a distinction between a public Trust and a Wakf. Theview taken by this Court has been that while it is open to a Muslim toDcreate a Wakf and ordinarily, there would be the prospect of a Rewardfor dedicating property by way of Wakf, it would be entirely left to aMuslim to take a decision as to whether he should adopt the deviceprovided by an EnglishTrust or make the familiar dedication by way ofWakf. It may be also true that there is merit in the contention of the writEpetitioners, that Article 25 provides a choice as to the manner in which aperson may exercise his rights viz., as to whether he should resort tocreating a Wakf or a Trust.

118. What we are called upon to decide is whether this position oflaw has in any manner been altered by the amendment to Section 3(a)of the Act.F

Here we may also refer to what is a public Trust and the conditionswhich have been projected in the submissions of Dr. Singhvi in particularqua a Wakf. The Indian Trusts Act, 1882 deals with private Trusts.Section 1 of the 1882 Act reads as follows:

“1. Short title. —This Act may be called the Indian Trusts Act,1882:

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Commencement. —and it shall come into force on the first day ofMarch, 1882.

Local extent. — It extends to the whole of India except the StateHof Jammu and Kashmir] and the Andaman and Nicobar Islands;

but the Central Government may, from time to time, by notificationin the Official Gazette, extend it to the, Andaman and NicobarIslands or to any part thereof.

Savings. —But nothing herein contained affects the rules ofMuhammadan law as to waqf, or the mutual relations of themembers of an undivided family as determined by any customaryor personal law, or applies to public or private religious or charitableendowments, or to trusts to distribute prizes taken in war amongthe captors; and nothing in the second Chapter of this Act appliesto trusts created before the said day.”

119. It is, therefore, clear that nothing in the Trust Act wouldapply to the Wakf. Nor would the provisions of the Trust Act as suchapply to public or private religious or charitable Trusts.

120. We may at this stage explore the law as it obtains in Englandin relation to public charities. The leading work on charities is Tudor onCharities (8[th] Edition). We deem it appropriate only to refer to certainaspects. The prevailing law as we understand in England is the CharitiesAct, 1993. We may refer to the connotation of the expression ‘charity’and how it has been understood by the learned author at page 1:

“For the purposes of the Charities Act 1993, “charity” means“any institution, corporate or not, which is established for charitablepurposes and is subject to the control of the High Court in theexercise of the court’s jurisdiction with respect to charities”;“institution” includes any trust or undertaking, and “charitablepurposes” means “purposes which are exclusively charitableaccording to the law of England and Wales.”

The essential elements for charitable status have been discussedunder the same heading at page 2:

“Although there is no one definition of charity, it is generallyaccepted that before any institution can be accepted as charitablethree conditions must be satisfied. First, the purposes of theinstitution must be within the spirit and intendment of the preambleto the Charitable Uses Act 1601. Secondly, the institution mustexist for the benefit of the public and, thirdly, it must be exclusivelycharitable.”

It may be noticed that the development of law relating to charityis traced to the Charitable Uses Act 1601 which is called the Statute of A

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AElizabeth I. Therein, as we have noticed the law, the preamble of theAct of 1601 assumes significance. We think it is appropriate to refer tothe samementioned at pages 2 and 3.

“The jurisdiction of the Court of Chancery and of its successor,the High Court of Justice, in respect of charities and charitableBtrusts is a separate head of equity, and charity law is founded lessupon statute than upon the principles evolved by those courts andembodied in case law. It has, however, long been the practice ofthe courts to look for guidance as to what purposes are charitableto the preamble to the Charitable Uses Act 1601 (commonlyreferred to as “the Statute of Elizabeth I”), which lists as charitable:C

“The relief of aged, impotent, and poor people; the maintenanceof sick and maimed soldiers and mariners, schools of learning,free schools and scholars of universities; the repair of bridges,havens, causeways, churches, sea banks and highways; theeducation and preferment of orphans; the relief, stock orDmaintenance of houses of correction; marriages of poor maids;supportation, aid and help of young tradesmen, handicraftsmenand persons decayed; the relief or redemption of prisoners orcaptives and the aid or ease of any poor inhabitants concerningpayments of fifteens, setting out of soldiers, and other taxes.”

EIt is stated therein that a trust “called to be charitable must haveobjects which are exclusively charitable.”

It is stated, “In four cases, the existence of a non-charitable purposewill not be fatal to charitable status for the relevant body”. We need notbe detained by the four cases as such.F

121. We may also notice the oft-quoted enunciation of the fourheads by Lord Macnaghten in the case of Income Tax Special PurposesCommissioners v. Pemsel(1891) A.C. 531, 583. The four heads havebeen classified as follows:(1)The relief of poverty;G

(2) the advancement of education;

(3) The advancement of religion;

(4) Other purposes beneficial to the community not falling underany of the preceding heads.

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122. We may also notice as regards the fourth head, the followingdiscussion:

“On the other hand, Lord Macnaghten said that trusts falling underthe fourth head “are not the less charitable in the eye of the law,because incidentally they benefit the rich as well as the poor, asindeed every charity that deserves the name must do either directlyor indirectly. …”

123. As regards the requirement of perpetuity in regard to acharitable trust, since we found a contention raised in the submissions ofDr. Singhvi that a charitable trust need not be perpetual, we find thefollowing discussion under the head Duration:

“A Charitable trust may be made to endure for any period whichthe author of the trust may desire. It may therefore be created forthe application of the income in perpetuity to the charitable purpose,or it may be so framed as to require the immediate distribution ofthe capital, or the exhaustion of capital and income, during a limitedor indefinite period. This exception to the rule that a trust for theapplication of income for an indefinite period is void as tending toa perpetuity is well established. It is founded upon grounds ofpublic policy, and is essential to the useful existence of charitabletrusts.

But to qualify for the benefit of the exemption from the ruleagainst perpetuities, a trust must be charitable within the legalmeaning of that word. Thus, a perpetual trust for the repair of atomb, not forming part of the fabric of a church, or for any otherobject or any institution or society not of a charitable character, isvoid. Similarly, a gift in perpetuity of the income of a legacy, forthe benefit of individuals answering a certain description, withoutany reference to age or poverty, is likewise void. There is noescape from the dilemma that a perpetual trust must be eithercharitable, or void as tending to a perpetuity.

The rule against perpetual duration cannot be evaded bymaking a charity the trustee. Thus, a condition attached to acharitable gift, constituting a trust in favour of objects not charitable,as, for instance, that the donor’s tomb should be repaired foreverout of the trust funds, or that the charity should grant a lease toprivate individuals ninety-five years hence, or a lease for ever tothe testator’s relatives, is void.”

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A124. In regard to powers and duties of Charity Trustees, it is statedas follows:

“The powers and duties of charity trustees, as defined in section97 of the Charities Act 1993 as those persons having the generalcontrol and management of the administration of a charity, areBgoverned by the legal structure adopted by the charity, the termsof the individual governing instrument and the relevant statutory provisions. …”

125. The concept of a public charity as understood in England isto be contrasted with the concept of a Trust in the background of apublic religious trust as understood in India. We turn to oft-quoted decisionof the Privy Council reported in Vidya Varuthi Thirtha Swamigalv.Baluswami Ayyar and others12:

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“It is also to be remembered that a “trust” in the sense in whichthe expression is used in English law, is unknown in the HinduSystem, pure and simple (J. G. Ghose, “Hindu Law,” p. 276).Hindu piety found expression in gifts to idols and imagesconsecrated and installed in temples, to religious institutions ofevery kind, and for all purposes considered meritorious in the Hindusocial and religious system; to brahmans, goswamis, sanyasis, etc.When the gift was to a holy person, it carried with it in terms or byusage and custom certain obligations. Under the Hindu law theimage of a deity of the Hindu pantheon is, as has been aptly called,a juristic entity,” vested with the capacity of receiving gifts andholding property. Religious institutions, known under differentnames, are regarded as possessing the same “juristic” capacity,and gifts are made to them eonomine. In many cases in SouthernIndia, especially where the diffusion of Aryan Brahmanism wasessential for bringing the Dravidian peoples under the religiousrule of the Hindu system, colleges and monasteries under thenames of math were founded under spiritual teachers of recognizedsanctity. These men had and have ample discretion in theapplication of the funds of the institution, but always subject tocetrain obligations and duties, equally governed by custom andusage. When the gift is directly to an idol or a temple, the seisin tocomplete the gift is necessarily effected by human agency. Called D

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by whatever name, he is only the manager and custodian of theidol or the institution. In almost every case he is given the right toa part of the usufruct, the mode of enjoyment and the amount ofthe usufruct depending again on usage and custom. In no casewas the property conveyed to or vested in him, nor is he a “trustee”in the English sense of the term, although in view of the obligationsand duties resting on him, he is answerable as a trustee in thegeneral sense for mal-administration.

The conception of a trust apart from a gift was introducedin India with the establishment of Moslem rule. And it is for thisreason that in many documents of later times in parts of the countrywhere Mahommedan influence has been pre-dominant, such asUpper India and the Carnatic, the expression wakf is used toexpress dedication.

But the Mahommedan law relating to trusts differsfundamentally from the English law. It owes its origin to a rulelaid down by the Prophet of Islam; and means “the tying up ofproperty in the ownership of God the Almighty and the devotionof the profits for the benefit of human beings.” When once it isdeclared that a particular property is wakf, or any such expressionis used as implies wakf, or the tenor of the document shows, as inthe case of Jewan Doss Sahu v. Shah Kubeeruddin20that adedication to pious or charitable purposes is meant, the right ofthe wakf is extinguished and the ownership is transferred to theAlmighty. The donor may name any meritorious object as therecipient of the benefit. The manager of the wakf is the mutawalli,the governor, superintendent, or curator. In Jewan Doss Sahu’sCase21the Judicial Committee call him “procurator.” That caserelated to a khankah, a Mahommedan institution analogous in manyrespects to a math where Hindu religious instruction is dispensed.The head of these khankhas, which exist in large numbers in India,is called a sajjadanishin. He is the teacher of religious doctrinesand rules of life, and the manager of the institution and theadministrator of its charities, and has in most cases a larger interestin the usufruct than an ordinary mutawalli. But neither thesajjadanishin nor the mutawalli has any right in the propertybelonging to the wakf; the property is not vested in him and he isnot a “trustee” in the technical sense.”

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“It was in view of this fundamental difference between thejuridical conceptions on which the English law relating to trusts isbased and those which form the foundations of the Hindu and theMahommedan systems that the Indian Legislature in enacting theIndian Trusts Act (II. Of 1882) deliberately exempted from itsscope the rules of law applicable to wakf and Hindu religiousendowments. Sect. 1 of that Act, after declaring when it was tocome into force and the areas over which it should extend “in thefirst instance,” lays down, “but nothing herein contained affectsthe rules of Mahommedan law as to wakf, or the mutual relationsof the members of an undivided family as determined by anycustomary or personal law, or applies to public or private religiousor charitable endowments. . . . . “ Sect. 3 of the Act gives adefinition of the word “trust” in terms familiar to English lawyers.It says:”A ‘trust’ is an obligation annexed to the ownership ofproperty, and arising out of a confidence reposed in and acceptedby the owner, or declared and accepted by him, for the benefit ofanother, or of another and the owner; the person who reposes ordeclares the confidence is called the ‘author of the trust’; theperson who accepts the confidence is called the ‘trustee’; theperson for whose benefit the confidence is accepted is called the‘beneficiary’; the subject-matter of the trust is called ‘trust-property’ or ‘trust-money’; the ‘beneficial interest’ or ‘interest’of the beneficiary is his right against the trustee as owner of thetrust-property; and the instrument, if any, by which the trust isdeclared is called the ‘instrument of trust.’”

126. What is only to be noticed is that the concept of trust was notunknown to the Muslims. In fact, as we have noticed in the discussionfrom Syed Ameer Ali on Muslim law, Wakf is described as a Trust.Incidentally, however, this judgment led to the amendment of Section 10of the Limitation Act, 1963. It is apposite that we notice the case andjudgment which was rendered therein which is reported in WaliMohammed (Dead) by LRs. v. Rahmat Bee (Smt.) and Others13.

The question which arose was whether the Mutawalli of a Wakfwould be a trustee. This Court after noticing the judgment of the PrivyCouncil in Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar andothers(supra), has discussed the impact it had in the following paragraphs:

“35. It will be seen that the main part of Section 10 states that noperiod of limitation applies for recovery of property from a trusteein whom the property is vested for a specific purpose, unless sucha person is an assignee for valuable consideration. The Explanationfurther states that it shall be deemed that a person managing theproperty of a Hindu, Muslim or Buddhist religious or charitableendowment is to be deemed to be a trustee in whom such propertyhas vested for a specific purpose. We shall explain these provisionsin some detail.

36. In Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar[AIR 1922 PC 123 : ILR 44 Mad 831] the Privy Council held thatproperty comprised in a Hindu or Mohammedan religious orcharitable endowment was not property vested in trust for aspecific purpose within the meaning of the said words in themain section. The reason was that according to the customarylaw, where property was dedicated to a Hindu idol or mutt or to aMohammedan wakf, the property vested in the idol or the institutionor God, as the case may be, directly and that the shebait, mahant,mutawalli or other person who was in charge of the institutionwas simply a manager on behalf of the institution. As Section 10did not apply unless these persons were trustees this judgmentmade recovery of properties of the above trusts from donees,from these managers, rather difficult.

37. The legislature therefore intervened and amended Section 10for the purpose of getting over the effect of the above judgment.The Statement of Objects and Reasons to the Bill of 1929 makesthis clear. It says:

“The (Civil Justice) Committee’s recommendation refers, it isunderstood, to the decisions of the Privy Council in VidyaVaruthi v. Baluswami [AIR 1922 PC 123 : ILR 44 Mad 831]and Abdur Rahim v. Narayan Das Aurora [(1922) 50 IA 84]which lay down that a dharmakarta, mahant or manager of aHindu religious property or the mutawalli or sajjadanashin inwhom the management of Mohammedan religious endowmentis vested, are not trustees within the meaning of the words asused in Section 10 of the Limitation Act, for the reason that theproperty does not vest in them. The result is that when a suit isbrought against a person, not being an assignee for valuable AB

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Aconsideration, endowments of this nature are not protected.The Committee’s recommendation is that Section 10 of theLimitation Act should be amended so as to put Hindu andMohammedan religious endowments on the same footing asother trust funds which definitely vest in a trustee.”

B127. Thus, the Mutawalli is treated as a trustee. But would theamendment made to Section 10 of the Limitation Act, 1963 make aMutawalli a trustee generally?

Our answer is an emphatic ‘No’. This is for the reason that thechange in Section 10 of the Limitation Act was effected to overcomeCthe judgment of the Privy Council, when it held that a Mutawalli wouldnot be a trustee and when in view of the requirement in Section 10 thatthe suit must be one against a person in whom the property has becomevested in trust for any specific purpose and as a Mutawalli would not bea trustee in law per se, the legislature brought in the explanation. Butwhat is striking are two features. Firstly, the change is brought by wayDof an Explanation. More importantly, the explanation begins with words“For the purpose of this section’ and proceeds to declare that “anyproperty comprised in a Hindu, Muslim or Buddhist religious or charitableendowment shall be deemed to be properly vested in trust for a specificpurpose and the manager of the property shall be deemed to be theEtrustee thereof.” Therefore, apart from it being an Explanation, it alsoon its very terms, limits the deeming fiction to the purpose sought to beattained in Section 10 of the Limitation Act.

128. Dr. Singhvi, learned Senior Counsel, would list fourdistinguishing features of a Trust in comparison with a Wakf:

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(i) A wakf is perpetual and irrevocable, whereas a trust neednot be perpetual and may also be revoked under certainconditions.

(ii) A wakf property is inalienable whereas a trust is free toalienate the trust property.G

(iii) The founder of a wakf cannot reserve any benefit forhimself, but the founder of a public trust may himself by abeneficiary.

(iv) The powers of a mutawalli (manager of the wakf property)are very limited as compared to the powers of a trustee.H

He would contend that in the case of a Wakf, the dedication mustbe perpetual and irrevocable. We have already noticed that this propositionis only to be accepted and save as we have noticed in the case of aWakf by a will which is revocable during the lifetime of the makerdedication is to have effect immediately and it is not transient. The reasonis that the reward is believed to be given immediately as the dedication ismade. No doubt, in the case of a will, during his lifetime it is open torevoke it but otherwise a Wakf must indeed be perpetual and irrevocable.Atrust need not be perpetual and can be revoked in certain conditions submitsDr. Singhvi. We have noticed the passage from Tudor on Charities whichappears to suggest that the requirement of perpetuity in a Wakf may notattach itself invariably to a public charity or a public charitable trust.

It is a matter essentially to be decided on the terms of a document,if there is any.

129. Next, it is contended that in the case of a Wakf, property isinalienable whereas in the case of a Trust, a trustee is free to alienatethe trust property. Though the Trust Act is not applicable in the case ofa public, religious or charitable Trust, it would appear to be the law thatthe principles enshrined in the provisions can be drawn upon. Section 37of the Indian Trusts Act, 1882, reads as follows:

“37. Power to sell in lots, and either by public auction or privatecontract. —Where the trustee is empowered to sell any trust-property, he may sell the same subject to prior charges or not, andeither together or in lots, by public auction or private contract, andeither at one time or at several times, unless the instrument oftrust otherwise directs.”

130. A perusal of Section 37 would reveal the following:

The trustee governed by the Indian Trusts Act, 1882, may effecta sale. The condition, however, is that the power of sale must beconferred by the trust deed. It all, therefore, boils down to the questionas to whether there is a power with the trustee under the document inquestion. However, it is significant to note that Dr. Singhvi may not becorrect if the contention is that the trustee has an absolute right of sale.At least it is not so under the Bombay Public Trust Act 1950. Section 36of the Bombay Public Trust Act declares that a sale by Trustee can bemade only after ‘previous’ sanction is obtained from the CharityCommissioner.In the case of a Wakf, however, undoubtedly the principle A

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Ais well entrenched and it is integral to the very concept of a Wakf,wherein, upon a dedication there is an implied transfer of the property tothe Almighty, which would in law render any alienation impermissible.The property would remain inalienable. However, interestingly, we maynotice the following discussion in Mulla Principles of Mahomedan law:

B“207. Power of mutawalli to sell or mortgage. A mutawalli has nopower, without the permission of the Court, to mortgage, sell orexchange waqf property or any part thereof, unless he is expresslyempowered by the deed of waqf to do so.”

131. However, learned author has also noted the change that hasCbeen brought about in section 51 of the Act and thereafter states asfollows:

“A mutawalli of a waqf although not a trustee in the true sense ofthe term is still bound by the various obligations of a trustee. Helike a trustee or a person standing in a fiduciary capacity, cannotDadvance his own interests or the interests of his close relations byvirtue of the position held by him. The use of the funds of thewaqf for acquisition of a property by a mutawalli in the name ofhis wife would amount to a breach of trust and the property soacquired would be treated as waqf property.

EA mutawalli is not allowed to sell, mortgage or lease thewaqf property unless he obtains permission of court which hasthe general powers controlling the actions of mutawalli. Save andexcept as recognised by any custom, the law does not favour theright to act as mutawalli becoming heritable. When the mutawallidies and the waqif is still alive, he possesses the right to appointFanother and in his absence his curator and in the absence of both,the Court appoints the successor mutawalli. Mutawalli has noownership rights or estate in the waqf property, he holds theproperty as a manager for fulfilling the purpose of waqf. Even aSajjadanashin, who has larger interest in the usufruct has no rightGin the property endowed.These features distinguish a mutawallifrom a shebait. The elements which render shebait-ship a property,are absent in mutawalli-ship and mutawalli-ship is an office.”

132. Therefore, whatever may have been the position prior to1995, under the Act, a sale is absolutely prohibited. We draw supportfrom Section 104A of the Act which, inter alia, prohibits alienation.H

133. It is contended by Dr. Singhvithat the founder of a Wakfcannot reserve any benefit for himself but the founder of a public trustmay become a beneficiary.

Hereinagain, we may notice the following discussion in Mulla onPrinciples of Mahomedan Law:

“192. Reservation of life interest for benefit of waqif (dedicator)(1) Under the Hanifi law, the waqif (dedicator) may provide forhis maintenance out of the income of the waqf property. He may,if he wishes, reserve even the whole income for himself for hislife.

On the amount of maintenance becoming not sufficient to makeboth ends meet, the amount of maintenance can be increased ona suit by a beneficiary against Mutawalli.

(2) Payment of waqifs debts. -Under the Hanafi law, the waqifmay provide for the payment of his debts out of the income of thewaqf property.

This was well established before the Wakf Validating Act, 1913,and it is now reproduced in s.3, Cl.(b) of the Act.

134. Under the Mahommedan law, a Wakif may provide for hismaintenance out of the income of the Wakf property. He may evenreserve the whole income for himself or his life. A different strand ofopinion has been expressed however as regards the Shia law.

We find the following discussion in Mulla on Principles ofMahomedan Law at page 228:

According to the Hanafi law, the settlor may reserve theusufruct of the endowed property of himself for his life. Accordingto the Shia law a waqf is not valid unless the settlor divests himselfof the ownership of the property and of everything in the natureof usufruct from the moment the waqf is created. Hence a settlorcannot, according to the law, reserve for himself a life-interest inthe income or any portion thereof: Baillie, II, 218-219. It has beenheld by the High Court of Allahabad that if the settlor reservesthe whole income for himself, the waqf is wholly void; but if hereserves a portion f the income i.e., one-third, the waqf is void asto one-third only to the corpus, but valid as to the remaining two-thirds. But in Abadi Begum v. Kaniz Zainab (AIR 1927 PC 2), the A

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Privy Council expressed the opinion that in such a case, the waqfwould be entirely void. Their Lordships approved the fourconditions governing the validity of a waqf under Shia lawas setout in Baillie’s Digest, II, 218-219. These are: “(1) it must beperpetual; (2) absolute and unconditional; (3) possession must begiven to the mowkoof(beneficiary) of the thing appropriated; and(4) it must be taken entirely out of the waqif or appropriator,” Thelast condition has been expressed in direct and homely languageby saying that the waqif must not eat out of the waqf. The casewas one in which the settlor under the colour of fixing her salaryas mutawalli really reserved for herself a portion of the incomevery much in excess of the salary fixed for future mutawallis.The case was not decided on this ground but the waqf was heldto be invalid as the settlor had not parted with possession so as tocomply with the third condition set out above.

But though a Shia cannot provide for his own maintenanceout of the waqf property he may provide for the maintenance ofhis family, children and dependants. This is recognised in s. (a) ofthe Wakf Act. But a Shia may provide for the expenses of Roza,Namaz, Haj, Ziarat, etc. to be performed after his death for hisspiritual benefit. He may also reserve a life interest for a beneficiaryin the usufruct of the property if the intention that the propertyshould become waqf on the settlor’s death is clear. If the settlor isthe first mutawalli he may lawfully take the remuneration of themutawalli. The High Court of Allahabad has held that a provisionthat the endowment shall not take effect till the death of the settlor’swife is valid, but this view of the law has been overruled by thePrivy council in Mt. Ali Begum v. Badr-ul-Islam Ali Khan, inwhich it was held that a direction that certain property shouldbecome waqf after the death of a person surviving the testatorwas invalid.

Again, according to the Shia law, a waqf is not valid, if itprovides for the payment of personal debts of the settlor. But aprovision for payment of debts charged on the estate is valid; inother words, a Shia may like a Sunni, make a valid waqf of propertywhich is subject to a mortgage.

In Syed Ali Zamin v. Syed Akbar Ali Khan (AIR 1937 PC127), the Judicial Committee held that the settlor has divested himself of all interest in the property dedicated though he hadappointed himself Mutawalli with uncontrolled powers ofmanagement. Whether he has so divested himself, is a questionof construction of the waqfnama, and is not to be confoundedwith the question whether there has been a transfer of possessionor change in the character of his own possession.”

135. Finally, we may take up the last distinction which is highlightedby Dr. Singhvi that it relates to the powers of the Mutawalli being verylimited as compared to the powers of a Trustee. It is true that Mutawalliis essentially a manager and administrator of the property which vests inAlmighty. A Trustee, on the other hand, is the person in whom the propertyvests. In the case of a private Trust, no doubt, as in respect of publicTrust, it consists of an obligation annexed to the ownership of propertyand arises from out of confidence reposed in a person or persons. Theyare the trustees.In the case of a private Trust, there must be a writtendocumentwhich must be registered in terms of Section 5 of the Act.In apublic religious or public charitable Trust, there need not be any documentas such to create a public charitable trust. The foundation, however,remains the confidence which is reposed in the Trustee/Trustees andthe apparent ownership that he possesses by havinglegal ownership beingvested in him/them. The most significant aspect, however, would be thatin the case of a Mutawalli of a Wakf or Manager of a Wakf or otherperson in charge of a Wakf, he can only be the manager of the property.This distinction we must not overlook forms the subject matter of thediscussion in paragraph 20 of the judgment of this Court inNawab ZainYar Jung (Since Deceased) and Othersv. Director of Endowmentsand Another(supra) which we have referred to. We have noticed thatin the said case what was involved was a trust deed where propertywas vested with the trustee, no doubt, for the purposes mentioned therein.It is this which must indeed be the indispensable hallmark to distinguisha Trust from a Wakf. This distinction cannot be overlooked. A power ofsale, being located appears incompatible with a Wakf but the same is notincongruous with a Trust.

136. It is true as contended by Mr. Gopal Sankarnarayanan, learnedsenior counsel, that with the amendment to Section 3(a) by giving asecular flavour to the definition of the word Beneficiary meaning therebythat the condition that the beneficiary must only belongto the Muslimcommunity being removed, it hasrestored the law which it always was, A

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Aviz., that in a case of a Wakf which was intended to achieve a publicutility, the beneficiaries need not be confined to the members of theMuslim faith and it was indeed secular all throughout in its applicationwhich is the reason for the amendment brought about in 1964. Thoughthe amendment was made in 1964, we would think that this was alwaysthe law. We see the following discussion in Syed Ameer Ali onBMohammedan Law at page 274:

“Another point worthy of attention in the Mussulman Law is thatevery trust for whatever purpose created is really and in fact forthe benefit of human beings. The religious and legal system ofIslam is founded essentially on the service and well-being ofhumanity. A dedication may be made for a mosque, - but the mosqueis intended for human beings to pray in; it may be for a school,intended for the instruction of students; for khankahs, where aparticular class of people congregate for religious exercises, andso forth. Every object, therefore, is intended for the spiritual,religious, moral, or material good of human beings. This is themeaning of the terse and sententious rule pronounced by theProphet “tie up the property and leave its usufruct free formankind.” A wakf once made for whatever object, has the effectof “detaining” the property in the custody of the Almighty, itsproduce along being applicable for the good of human beings.This is the meaning of the definition given by the law officers inthe case of Mohammed Sadik v. Mohammed Ali and Others, thatwakf implies “the relinquishment of the proprietary right in anyarticle of property such as land, tenements, &c., and consecratingit in such manner to the service of God that it may be of benefit tomen.” This definition was not invented by them but borrowedform the law-books, and must be read with the explanations givenin them.

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In the Islamic system there is no such ting as a dedication “solelyto the worship of God.” A dedication “solely to the worship ofGod” is an unmeaning phrase in Islam. The service of man andthe good of humanity constitute pre-eminently the service andworship of God. Everything which is dedicated to God is in realityfor the good of mankind; and everything which is dedicated forthe good of human beings, individually or collectively, is for theservice of God.”

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137. Shri Gopal Sankarnaryanan, learned Senior Counsel, didattempt to persuade us to hold that with the amendment carried out toSection 3(a) way back in 1964 to the word ‘beneficiary’, little remains todistinguish a public Trust from a Wakf. At first blush, the argument maysound attractive. The argument is that since there can be a Wakf andthe object of the wakf can be attainment of public utility and if thebeneficiaries of the trust can belong to any faith and only requirement isthat the object must be one which is sanctioned by Muslim law, thenevery public charitable Trust would be capable of being categorized as aWakf. In other words, the argument appears to be premised on eschewingof the exterior and exploration of the very fundamentals of the transaction.The use of the word Trust by itself, it may be true cannot be decisive ofthe issue. The absence of the word Wakf is equally not determinative. Itis a matter which must be considered with reference to the document, ifany, the conduct of the parties and all other relevant aspects.

138. In this regard, he sought to draw our attention to the judgmentof the High Court of Madras reported in AIR 1973 Madras 191. It istrue that in the said case, the Court has referred to the judgment inNawab Zain Yar Jung (Since Deceased) and Othersv. Director ofEndowments and Another(supra). It observes that this Court hasproceeded with the matter at a time when Section 3(a) had not beenamended. But we would think that even in the said case, the matterreally turned on the facts before the Court. However, to do justice toShri Gopal Sankaranarayanan, learned Senior Counsel, we may refer tothe following paragraphwherein after referring to the aforesaid decision,the court held:

“But the Wakf Act of 1954 has been amended by Act 34 of 1964under which the definition of ‘beneficiary’ and ‘wakf have beenamended by including wakf sanctioned by the Muslim law ascoming under the Wakf Act. In Syed Abdulla Sahib v. MadrasState Wakf Board[(3)]Kailasam J. has held that the coming intoforce of Act 34 of 1964 amending the Wakf Act of 1954 will haveto be taken into account and that the donation of an immoveablepro party even though by a person not professing Islam, would bea wakf, if the other conditions are fulfilled. Thus, the definitionsas amended have retrospective effect and apply to the wakf inthis case. In fact, the learned advocate for the appellant did notdispute the fact that if the charitable bequest created in this case AB

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Ais a wakf, it would come under the Wakf Act,though thebeneficiaries of the wakf may include non-Muslims.”

What is, however, decisive would be that it was on facts foundthat the compromise decree therein did create a Wakf.

B139. Learned counsel also sought to draw support from thejudgment of the learned Single Judge of the Gujarat High Court inKachchh Wakf Board &Anr. v. Kachchh Memon Jamat&Ors.14.Therein, the Court has, no doubt, inter alia, referred to as follows:

“50. In view of my aforesaid conclusion the appeal must succeed.CHowever, before parting with it, I may notice that learned Counselfor the respondent-plaintiff argued that both the courts below havecome to concurrent finding that, property in question was beingused for providing shelter or abode to any visitor without distinctionof caste or creed and this finding alone is sufficient to negativethe contention of respondents about existence of a Muslim WakfDand consequently entitling the plaintiffs to claim relief for declaringthe publication of list dated 6-5-1965 to be illegal and void and thatthe property in question is not a Muslim Wakf. This is so accordingto learned Counsel because if beneficiary of an amenity includesanybody other than Muslim, it can be anything but a Muslim Wakf.EIt may be a public charity or a public trust, but beneficiary if includesnon-Muslim it becomes of secular character which is not envisagedobject of a Muslim Wakf. Reference was made to decision ofSupreme Court in Nawab Zain Yar Jung v. Director ofEndowmentsAIR 1953 SC 985 as well as Board of Muslim Wakfv. Radha Kishan(1979) 2 SCC 468 : AIR 1979 SC 289. This pleaFwas raised apart from contending that respondents have failed toprove that property was dedicated by a Muslim and was sodedicated to almighty as to vest the same in Him. I am primafacie of the view that both the parties have laboured undercommon impression that if the Muslims are only users of propertyGit be treated as a Muslim Wakf and in the process necessarymaterial in this regard for deciding the issue about existence ofWakf, if so, its nature and beneficiary who could claim right to itsbenefit had also not been brought on record.

62. The decisions in Nawab Zain Yar Jung (AIR 1963 SC 985) orother contemporary decisions containing observation thatbeneficiary must be a member of Muslim Community has to beread in the context of definition of beneficiary in Section 3(a) ofthe Act of 1954 as it stood. Until it is amended by the Wakf,(Amendment) Act, 1964 w.e.f. 10-10-1964:

It reads:

“beneficiary means a person or object for whose benefit a Wakfis created and includes religious, pious and charitable object andany other object of public utility ‘established for the benefit ofMuslim Community’.”

65. In this light a Musafirkhana, if its dedication is for a religiouspurpose like providing shelter to pilgrims or to those who areperforming religious ceretnionies sanctioned by Muslim Law, mayperhaps can have its beneficiaries only members of Muslimcommunity. But if on the other hand if a property is dedicated asan amenity of general public utility or for charitable purpose toutilize its income for charitable purposes sanctioned by MuslimLaw, use of such amenity may not militate against its being aMuslim Wakf. In other words unless it is made clear with whatobject property is dedicated, it may not be possible to decide theexact nature of dedication, even if it be presumed in favour of theappellants that it was after grant of land was made to Kamruddin,he constructed the house and that house is being used asMusafirkhana or Sarai Dharmashala, a place of abode forwayfarers. Both parties, apparently having engrossed with userof property by Muslims only have not lead any evidence on thisvital aspect about ‘object of dedication of building’ of the issue. Inthis connection, it may also be noticed that it is not a case of lostgrant and user of property, since time immemorial but grant inspecific manner has been the contention of both sides, and userfrom that period by general public or Muslims. The pivot objectwith which dedication and use was being made is missing. In thisconnection, it is also significant to notice that according toBhagwadgomandal word ‘Dharmashala’ and ‘Musafirkhana’have been defined to mean one and same thing. Nothing therefore,may turn on the expression ‘Dharmashala’ in the letter of grant ofland without something more. Nor actual user contrary to the A

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Aobject of actual dedication will affect the nature of grant, thoughin the absence of clear evidence about object, long user in oneway or other may itself furnish some evidence of object.”

140. Lastly, the judgment in Indian Institute of Islamic v. DelhiWakf Board 2011 SCC OnLine Del 5567 of the High Court of DelhiBspeaking through Hon’ble Mr. Justice S. Ravindra Bhat, as His Lordshipthen was, is also placed before us. Therein, in fact, we may only noticeafter considering the case law on the point which included the decisionof this Court in Nawab Zain Yar Jung (Since Deceased) and Othersv.Director of Endowments and Another(supra) and the changes broughtabout in the law, it was inter alia held as follows:C

“66. It is thus clear - from the above discussion, that for a dedicationto be a wakf it is not necessary that the benefit should flow onlyto Muslims, or a specific section of the community; as long as theobject of the dedication is the performance of a task, or function,which is considered to be charitable, under Muslim law, and theDproperty, asset or thing is permanently dedicated. Here, it wouldbe essential to go into what exactly is a “permanent dedication”.The Privy Council, in one of its earlier decisions, i.eJewen DossSahoo v. Shah Kubeer-ood-deen ((1840) 2 MIA 390) explainedthe significance of the word ‘dedication’ and observed thus:

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“According to the two disciples, wakf signifies theappropriation of a particular article in such a manner assubjects it to the rule of divine property, whence theappropriator’s right in it is extinguished, and it becomes aproperty of God, by the advantage of it resulting to hisFcreatures. The two disciples therefore hold appropriation tobe absolute, though differing in this, that AbooYoosuf holdsthe appropriation to be absolute from the moment of itsexecution, whereas Mahomed holds it to be absolute only onthe delivery of it to a mutawalli, (or procurator,) and,consequently, that it cannot be disposed of by gift or sale,Gand that inheritance also does not obtain with respect to it…‘Bestow the actual land itself in charity in such a mannerthat it shall no longer be saleable or inheritable.’”

141. Drawing support from the judgment of this Court reported inMohd. Khasimv. Mohd. Dastagir and Others(supra) it was found in H

fact that what was projected as a Wakf was not a Wakf even though, itmight be a valid Trust.

Having noticed the facts of the judgment of the apex Court inNawab Zain Yar Jung (Since Deceased) and Othersv. Director ofEndowments and Another(supra) and as followed in Mohd. Khasimv.Mohd. Dastagir and Others(supra) and having borne in mind the changebrought about in Section 3(a), we are of the clear view that the lawwhich was declared in the decisions of this Court leaves it open to aMuslim to create a public Trust or a Wakf and it remains undisturbed.

142. As to whether an institution is a Wakf or a public Trust is amixed question of fact and law. This means it becomes a duty ofwhosoever upon whom the duty falls, to ascertain whether it is eitherand to carefully attend to the terms of the document by which the Trustis evidenced if there is such a document and find the facts and thereafterthe law must be applied. The paramount feature which perhaps wouldfigure in this inquiry would be the properties being vested either by aTrust, in the case of a Trust, for a trustee to deal with the property assuch.Whether there is no power of sale, or inalienabilitymay be a factorwhich may tilt the matter in favour of the institution being a Wakf providedother features which are indispensable are also present. It is no doubttrue that the Amending Act of 1964, amending the words ‘Beneficiary’making clear what was always the correct principle of Muslim law thatfruits of a Wakf is not to be cribbed cabined and confined to the Muslimcommunity would in the context of the object being public utility, narrowdown the distinction between a trust and a wakf.

In this regard, the aspect reflectedin para 17 of the judgment ofthis court in AIR 1963 SC 985 would indicate that the court was bearingin mind the injunction in Section 3(a) defining beneficiary in theunamended form. It does indicate that on the criteria of the unamendedprovisions of Section 3(a), the court found it to be not a wakf. Thenomenclature and the form of the document can be indicative but notdecisive.

143. Having held that there is a distinction between a publiccharitable Trust and Wakf, we must now move on to consider a morevexed issue and the controversy is this. Whether the survey which wasconducted in the case under Section 4 was valid and whether the listwhich was published on 13.11.2003 should have been interfered with?

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A144. It is an admitted case that the Act came into force on01.01.1996. A person was appointed to carry out the survey byproceedings dated 01.12.1997. The surveyor was tasked to carry outthe survey and he gave a report to the Government under Section 4(3)on 31.01.2002. It is also not disputed in the meantime, on 04.01.2002, theWakf Board was incorporated. As to how a survey should be conductedBunder Section 4 has been subject matter of the decision of this Court inBoard of Muslim Wakfs, Rajasthan v. Radha Kishan andOthers(supra). It may be apposite to refer to it for the reason that thoughthe survey in question was conducted under section 4 of the Wakf Act1954, the provisions of Section 4 in the present Act is essentiallyCparimateria with Section 4 of the earlier Act. Therein, the first questionwhich arose was whether the commissioner of Wakfs appointed underSection 4 had jurisdiction to enquire and find whether a certain propertyis Wakf property or not when such a dispute is raised by a stranger tothe Wakf. We need not be detained by the other question as it relates tothe effect of Section 6 on such a person. The Court went on to holdDinter alia as follows:

“22-A. It is needless to stress that the whole purpose of the surveyof wakf by the Commissioner of Wakfs under sub-section (1) ofSection 4 is to inform the Board of Wakfs, as to the existence ofthe existing wakfs in a State, in order that all such wakfs shouldEbe brought under the supervision and control of the Board ofWakfs.

23. While the High Court was, in our view, right in determiningthe scope of sub-section (1) of Section 6 of the Act, it was clearlyin error in curtailing the ambit and scope of an enquiry by theFCommissioner of Wakfs under sub-section (3) of Section 4 andthat by the Board of Wakfs under Section 27 of the Act.

25. The very heading of Chapter II and the caption to Section 4no doubt suggest that the Commissioner makes only a preliminarysurvey regarding existing wakfs and the list of wakfs prepared byhim is published by the Board and neither the Commissioner northe Board is required to make any enquiry regarding the characterof the property. That is to say, the making of survey is only anadministrative act and not a quasi-judicial Act. But, on a closerexamination, it is clear that while making a survey of the existingwakfs in a State under sub-section (1) of Section 4, the G

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Commissioner is required by sub-section (3) to submit a report tothe State Government in regard to the several matters referred toin clauses (a) to (f) thereof. There may be a dispute as betweenthe Board, the mutawalli or a person interested in the wakf, asregards (a) the existence of a wakf, i.e. whether a particularproperty is wakf property, (b) whether it is a Shia wakf or a Sunniwakf, (c) the extent of the property attached to the wakf, (d) thenature and object of the wakf, etc. While making such an enquiry,the Commissioner is invested by sub-section (4) with the powersvested in a civil court under the Code of Civil Procedure, 1908, inrespect of the summoning and examining of any witness, requiringthe discovery and production of any document, requisitioning anypublic record from any court or office, issuing commissions forthe examination of any witness or accounts, making any localinspection or local investigation, etc. In view of thesecomprehensive provisions, it is not disputed before us that theenquiry that the Commissioner makes for the purpose ofsubmission of his report under sub-section (3), while making asurvey of existing wakfs in the State under sub-section (1), is notpurely of an administrative nature but partakes of a quasi-judicialcharacter, in respect of the persons falling within the scope ofsub-section (1) of Section 6.

26. It would be illogical to hold that while making a survey ofwakf properties existing in the State a Commissioner of Wakfsappointed by the State Government under sub-section (1) ofSection 4, should have no power to enquire whether a particularproperty is wakf property or not. If we may refer to sub-section(1) of Section 4, so far as material, it reads:

“The State Government may, by notification in the OfficialGazette, appoint for the State a Commissioner of Wakfs ... forthe purpose of making a survey of wakf properties existing inthe State at the date of the commencement of this Act.”

It will be clear that the words “for the purpose of making a surveyof wakf properties” is a key to the construction of the section.The ordinary meaning of the word “survey”, as given in theRandom House Dictionary of English Language, is ‘to take ageneral or comprehensive view of or appraise, a situation’. If theCommissioner of Wakfs has the power to make a survey, it is but AB

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implicit that in the exercise of such power he should enquirewhether a wakf exists. The making of such an enquiry is anecessary concomitant of the power to survey. The High Courtwas clearly in error in observing:

“Except sub-section (5) there is nothing in Section 4 or in theBRules made by the State to show that the Commissioner isempowered to adjudicate on a question, if one arises, whethera particular property is a wakf property or not.”

27. We are of the opinion that the power of the Commissioner tosurvey wakf properties under sub-section (1) or to enquire andCinvestigate into the several matters set out in clauses (a) to (f) ofsub-section (3) cannot be curtailed by taking recourse to sub-section (5). The High Court was wholly wrong in understandingthe true implication of sub-section (5) of Section 4. It only laysdown that if, during any such enquiry, any dispute arises as toDwhether a particular wakf is a Shia wakf or a Sunni wakf, andthere are clear indications in the deed of wakf as to its nature, thedispute shall be decided on the basis of such deed. It, therefore,makes the wakf deed conclusive as to the nature of the wakf i.e.,whether it is a Shia or a Sunni wakf. In our view, sub-section (5)of Section 4 cannot be projected into sub-section (1) forEdetermining the question whether a certain property is a wakfproperty or not. Nor does it enter into an enquiry as to several ofthe matters adverted into some of the clauses of sub-section (3).

145. Therefore, we must proceed on the basis that the making ofsurvey is not a mere administrative act but it is to be informed by aFquasi-judicial inquiry. It is also the law that the surveyor has the powerto find whether a particular institution is a Wakf. The commissioner hasalso indeed to determine the aspects which have been mentioned inSection 4 specifically which we need not dilate upon.

146. We may at this juncture venture to notice the findings whichGhave been rendered by the High Court.

“18. The next question to be considered is whether the list ofwakfs prepared and published by the Wakf Board is valid or invalid.The list is prepared and published under sub-section 2 of Section5 of the Act. It reads as under:

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(2) The Board shall examine the report forwarded to it undersub-section (1) and publish in the Official Gazette a list of SunniWakfs or Shia Wakfs in the State, whether in existence at thecommencement of this Act or coming into existence thereafter,to which the report relates, and containing such other particularsas may be prescribed.

Thus, the list to be prepared by the Board is based on the reportof the survey which is conducted under Section 4 of the Act. Sofar as the survey conducted under the Act is concerned, the JointParliamentary Committee found that the survey was not conductedproperly. Following paragraphs 4.16, 4.17, 4.18 and 4.19 in theNinth Report of the Joint Parliamentary Committee in our opinionare relevant. They read as under:

4.16 The earlier JPC on Wakf, in its Eighth Report presentedon 29.07.2003 noted that the survey was almost completed,except in Bombay suburban District. However, it was allegedby the members of the public during the visit of the Committeethat the survey work had not been properly carried out and alarge number of Wakf properties had been left out. Itwas alsoinformed that even those properties which physically existedand were Wakf by user, were not included in the survey onflimsy grounds.

It was revealed that in the revenue records, the Wakf propertieswere mentioned in the name of Mutawallis or in the name oflessees and were not shown as Wakf properties which madethe sale of the properties easy. It was also informed that nophysical survey was done and only proformas were sent to theMutawallis for furnishing the details of the Wakf properties.The State Government had also admitted that there were errorsin identifying the Wakf properties. Later on, the StateGovernment informed that the survey in Bombay sub-urbanareas had also been completed and they supplied a list of theWakf properties surveyed to the then Committee. The lists soreceived prima facie showed the properties of Marathwadaregion; the Wakf properties in other regions were negligiblewhich might not be true. Keeping the situation in view, thethen Committee recommended that the provisions of the WakfAct, 1995 should be followed scrupulously for the survey of A

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Wakf properties and the procedure adopted be made transparentand open to the public, with a remedy to correct errors in thesurvey. The Survey Commissioner should undertake a physicalsurvey of all the Wakf properties after giving wide publicitythrough the media. The Committee further recommended thatafter the survey was completed, the lists of Wakf propertiesshould be published properly in the Official Gazette as requiredunder the Act. The Committee further recommended that theentries of Wakfs should be properly made in the revenuerecords.

4.17 The Committee, now in view of the flaws in the surveyundertaken earlier and the earlier Committee’s recommendation to correct errors in the survey, sought to know the presentstatus of survey during its visit undertaken in June, 2007. TheChief Executive Officer informed the Committee that theGovernment had initiated survey vide the GovernmentNotification dated 01.12.1997 through the Settlement

Commissioner. Despite complaints that the survey had not beendone properly and also the last Joint Parliamentary Committeehad asked the Government to undertake re-survey, it was yetto be undertaken.

4.18 Further explaining the position, the State Wakf Board, inits note giving the latest position of the survey submitted to theCommittee in July, 2008, as under:

“The survey of Wakfs and its properties was taken up by theGovernment of Maharashtra vide Revenue and ForestDepartment Notification No. WKF-1097/L- 3/CR95 dated01.12.1997 and survey was completed and submitted to theGovernment. Thus, the survey was completed before receiptof proceedings of the Joint Parliamentary Committee’s VII IthReport, which had suggested the survey to be carried out againin a transparent way. It has yet not been initiated.

. . . The decision to conduct fresh survey in a transparentmanner lies with the State Government.”

4.19 The Committee is surprised to see that it got the samereply even after one year. On being asked, the PrincipalSecretary, Minority Development, Government of Maharashtra, during her oral evidence tendered on 24.07.2008, assured theCommittee that the Survey Commissioner would be appointedwithin a month to take up the survey work. (emphasis supplied)

19. Thus, the Joint Parliamentary Committee found the survey tobe defective. The decision of the Joint Parliamentary Committeehas been accepted by the State Government when it issued theNotification dated 20th October, 2010. The reason that has beengiven by the State Government for ordering resurvey in theNotification dated 20th October, 201O is “ And whereas the JointParliamentary Committee received complaints that the survey wasnot conducted properly and therefore the Committee issueddirection dated 20th October, 201O to the State Government toconduct the resurvey of the wakfs in the State .............. “ .

20. Thus, even according to the State Government the Surveywas defective as the lists of wakfs prepared under sub-section 2of Section 5 were based on the survey report submitted on 31-1-2002 to the State Government, which the State Government itselffound to be defective, the only conclusion possible is that the listsof wakfs are defective and therefore, in our opinion, it would beappropriate to set aside those lists, so that fresh lists can beprepared by the wakf Board on the basis of the report of resurveywhich is ordered by Notification dated 20th October, 2010.”

147. We may notice that this is a case where the writ petitionswere filed in the High Court. In the findings rendered by the High Court,the High Court has not found that there has been a breach of the principlesof natural justice. This is not made out to be a case where there is a totalwant of jurisdiction either. Having made these preliminary observations,we may proceed to consider some of the allegations which have beenmade in the writ petitions:

“11. The Petitioners submit that it may be noticed that even aWakf created as per the provisions of the Muslim Law asapplicable to the wakf is also included within the definition of thepublic trust, as contained in Section 2(13) of the Bombay PublicTrust Act, 1950. Therefore, there are many Muslim trusts createdby the Muslim Settlers belonging to diverse schools of Muslimlaw under the common law and have appointed the trustees andgot the trust property vested in them. But all these Muslim public A

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charities/ endowments created as public trusts as per the provisionsof common law are also registered in ‘B’ category with the CharityCommissioner. There are indeed many Wakfs created by theMuslim Wakifs as per the school of Muslim Personal Lawapplicable to them and they are also registered in ‘B’ category bythe office of the Charity Commissioner. The petitioners say andsubmit that the above trusts are the Public Trusts as per thecommon law and not Wakfs as per the provisions of the MuslimPersonal Law applicable to the Settlors of the above Trusts andare registered under “B” category by the office of the CharityCommissioner.”

“12. Upon the enforcement of the Wakf Act, 1995 it has becomenecessary for the Charity Commissioner’s office to bifurcate suchMuslim Wakfs from the Muslim trusts. Instead of undertakingsuch exercise the Charity Commissioner proceeded to treat allthe endowments/ charities registered in “B” category as MuslimWakfs and issued a circular dated 24[th] July, 2003, bearing No.307 of 2003 whereby it directed its office not to exercise or dealwith any of the Muslim Public Trusts. The said circular inter aliastated that according to Section 43 of the Wakf Act, 1995, Wakfsregistered as the Public Trust should not be tried under the BombayPublic Trust Act, 1950 and that the further orders might be awaited.After issuance of this circular the office of the CharityCommissioner refu!led to entertain any application in respect ofthe Muslim Public Trusts, which are registered with it. Heretoannexed and marked as Exhibits ‘G’ & ‘G-1’ are the copies ofthe circular dated 24th July, 2003 bearing No. 307 of 2003 issuedby the Charity Commissioner along with its English translation.”

“14. Before stating the grounds it is al.so necessary to point outthat the respondent No.1 has appointed the Survey Commissioneras per the notification dated 1st December, 1997. The petitionerssay that the purported survey has been carried out by the SurveyCommissioner without giving any notice to the existing MuslimTrusts/ Wakfs. The petitioners have learnt that several MuslimTrusts/Wakfs have carried out correspondence with the SurveyCommissioner putting on record , that the Survey Commissionerhas not given any notice to the existing Muslim Trusts/ Wakfsabout the purported survey and that the Survey Commissioner should follow the rules of natural justice in identifying the MuslimTrusts/ Wakfs. Hereto annexed and marked as Exhibit ‘I’ is thecopy of the letter dated 14th August, 2003 written by one suchtrust viz. Anjuman-i-lslam. The petitioners state that the SurveyCommissioner i.e. Respondent No.3 by his letter dated 22ndAugust, 2003 informed Anjuman-i-lslam that he has submitted hisreport to Respondent No.1 on or about 31st January, 2002 in twosets. Hereto annexed and marked as Exhibit ‘J’ and ‘J-1’ is acopy of the letter dated 22nd August 2003 along with its Englishtranslation, written by Respondent No.3 to Anjuman-i-lslam. Thepetitioners state that the Survey Commissioner’s Report has notbeen made available to the public. The petitioners state that theirTrusts have not received intimation of any kind from the SurveyCommissioner about the purported survey and no opportunity hasbeen given to the petitioner’s trusts to put their say in the matter.”

148. From the writ petition which we are treating as the leadcase, our understanding of the complaint must be captured. The writpetitioners were very much aware that survey was ongoing.The noticeswere published in newspapers.Notices have been marked in the counteraffidavit.

149. We find from the counter affidavit of respondent No. 4 inSLP (C)No. 31288 of 2011 that one of the petitioners wrote a letter tothe Charity Commissioner, wherein, he spoke about the ongoing survey.There is also a reference to a letter written by the Commissioner appointedto carry out survey informing one of the writ petitioners that the surveyorhas already given his report. It would therefore appear that,notices werepublished. Notices were made available for the perusal of this Courtwith copies given to the counsel for respondents. We have perused thosenotices. Those notices would appear to elicit response frominstitutionswhich wereWakfs. One way to look at the matter is withreference to the specific dispute in this case. When the writ petitionerswere contending that they are not Wakfs but Public Trusts governed bythe 1950 Act, they could say that they were not affected by the notices.

150. In fact, they would appear to have adopted that stand asthey were in a manner of speaking aware of the exchanges between theWakf Board and the Charity Commissioner. No doubt, they could strictlyin law say that they have not been put on notice. They can indeed contendsince Bombay was not under the purview of the erstwhile Wakf Act A

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A1954, their institutions could not possibly have been under the glare ofscrutiny under the said Act. Therefore, they are institutions which mustbe more specifically put on notice. All the more, when they have a claimthat though theyhave been registered under the Public Trust Act, andthey were not registered for the reason that they were Wakfs but theywere registered because they were public Trusts and the distinctionBbetween the two is underlined.

151. We have already noticed that understandablythe petitionersdohold out that there are Wakfs which have been registered as publicTrusts. Their contention is that they were not among the Wakfs. Theinquiry before the Survey Commissioner lasted for nearly five years. ItCis true that the Survey Commissioner who has apparently kept in mindthe Wakf Act of 1954 which however, applied only to six districtscomprised in the Aurangabad division and constituted in the Marathwadaregion and might have collected information from the Revenue Officers.This is significant because if the property is treated as Wakf by way ofDpublication of a list under Section 5(2), the previous regime alsocontemplated the list forming the basis for making entries in the revenuerecords. Therefore, collecting the materials from the Revenue officerscannot be frowned upon.

152. Now, we must, before we pronounce on the impact of theEpreliminary survey also deal with the aspect about list which has beenbrought out on 13.11.2003.

153. The list which is characterised as final list by the appellantBoard has been published on 13.11.2003. It related to Bombay regionand another. We would think that in keeping with the appellant’s caseFthat this was indeed final. This means that in keeping with the scheme ofthe Act, its correctness could be tested before the Tribunal under Section6. The writ petitioners have chosen to approach the High Court withwrit petitions. What happened thereafter cannot be overlooked. Onewrit petition led to the filing of a spate of writ petitions as we havenoticed. What triggered the writ petitions, however, also needs to beGnoticed. The challenge was not laid as such to the list alone. The challengewas laid to the incorporation of the Board on 04.01.2002. Equally, theclarification issued by the Charity Commissioner whereby he sought todisown his functions in respect of public trusts because of the Act cominginto force, was challenged. The constitution of the Wakf Board was alsoHthe subject matter of challenge.

154. After the filing of the writ petitions, on 11.08.2004 a meetingwas held and we have already extracted the deliberations in paragraph6 of this judgment.

155. Thereafter there is an exchange of communications dated29.10.1994 and 16.02.2005. On 30.12.2004, another list of Wakfs waspublished.

The List dated 30.12.2004 was published in respect of areas otherthan Bombay and the other region which was the subject matter of listdated 13.11.2003.

156. We have already adverted to what happened on 09.03.2005and 05.05.2005.We may recapitulate the substance of the matter.Complaints were raised against the lists which were published by theSurvey Commissioner on 13.11.2003 and 30.12.2004. While the writpetitions regarding the same were pending, under the auspices of theGovernment, two ministers, Charity Commissioner, two members of theWakf Board and others, certain arrangements came to be made. Sincethe chief complaint was with respect to the writ petitioners who tookshelter on the score that they were Public Trusts registered under the1950 Act and had contended that they were not Wakfs, it was decidedthat out of the earlier number of public trusts treated as Wakfs, Muslimpublic trusts which were registered under the Bombay Public Trust Actshould be taken out of the category of Wakfs and they should continueto be treated as Public Trusts. However, it was made subject to availabilityof power under Section 40 of the Act. In other words, while the list waspublished under Section 5(2) of the Act on 13.11.2003 qua Bombay andanother list was published on 30.12.2004 in respect of other regions itcame to be interfered with and abridged by way of first corrigendum on05.05.2005, acting upon the meetings which preceded it, of whichnoteworthy is the resolution dated 09.03.2005 by the Board. We wouldhave thought the matter would end there.However, to make mattersmore convoluted, there were other developments and they are capturedin subsequent proceedings which took place on 09.06.2006 and31.07.2006 and finally, what the petitioners would claim to be anacceptance of their position by proceedings dated 19.05.2006 and whatis more which in turn was sought to be over-ridden by the notificationwhich was issued on 25.04.2007. By the last-mentioned communication,the Board purported to restore the list dated 13.11.2003 still further bythe 23.10.2008 notificationthe position obtaining as on 13.11.2003 and30.12.2004 was sought to be restored.

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A157. Now the time is ripe for us to consider the matter with greaterfocus on the litigation and the impugned judgment. The High Court haspurported to invoke its power under Article 226. The contention raisedby the appellants is that under the Act there is a remedy provided namely,a right to a person aggrieved to approach the Tribunal. The Tribunal iswell equipped to deal with vexed issues related to Wakf. It is a TribunalBspecially constituted for the said purpose. No prejudice is caused by themere publication of the list. Even dehors the publication of the list, theWakfs are otherwise covered. As far as the interference under Article226 is concerned, when a party has a remedy, in particular, we need toappropriately notice a very recent judgment of this Court reportedCinRadha Krishan Industries v. State of H.P.15.

Therein, this Court held inter alia as follows:

“27. The principles of law which emerge are that:

27.1. The power under Article 226 of the Constitution to issueDwrits can be exercised not only for the enforcement of fundamentalrights, but for any other purpose as well.

27.2. The High Court has the discretion not to entertain a writpetition. One of the restrictions placed on the power of the HighCourt is where an effective alternate remedy is available to theEaggrieved person.

27.3. Exceptions to the rule of alternate remedy arise where: (a)the writ petition has been filed for the enforcement of afundamental right protected by Part III of the Constitution; (b)there has been a violation of the principles of natural justice; (c)Fthe order or proceedings are wholly without jurisdiction; or (d)the vires of a legislation is challenged.

27.4. An alternate remedy by itself does not divest the High Courtof its powers under Article 226 of the Constitution in an appropriatecase though ordinarily, a writ petition should not be entertainedwhen an efficacious alternate remedy is provided by law.

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27.5. When a right is created by a statute, which itself prescribesthe remedy or procedure for enforcing the right or liability, resortmust be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution.This rule of exhaustion of statutory remedies is a rule of policy,convenience and discretion.

27.6. In cases where there are disputed questions of fact, theHigh Court may decide to decline jurisdiction in a writ petition.However, if the High Court is objectively of the view that thenature of the controversy requires the exercise of its writjurisdiction, such a view would not readily be interfered with.”

158. We have noticed that it is not a case where the Court hasfound that there is a violation of the fundamental rights as such. In thematter of interfering with the survey, what essentially weighed with theCourt is the report of the JPC.Apart from the same, we are not able tofind anything else in the judgment as forming the basis for setting asidethe list dated 13.11.2003. No doubt, the aspect relating to the constitutionof the Board is another matter. It clearly is not a case where there is acomplete absence of jurisdiction as it is not the case of the petitionersthat the Survey Commissioner was not having authority to carry out thesurvey.

159. This is a case of some significance. Facts which haveoccurred subsequent to the issuance of the list on 13.11.2003 and31.12.2004, take it out of the ordinary run of cases. We have noticed thefact for reasons which will remain a mystery to us, Government took itupon itself to convene meetings; a Committee was constituted describedas a Bifurcation Committee.The Committee saw merit in the contentionof the writ petitioners.The Charity Commissioner was roped in as amember. It is thereafter that strangely after the publication of the listswhich are claimed to be final lists under Section 5(2) on 13.11.2003 and30.12.2004 that the list dated 05.05.2005 is published and it is alsodescribed as another final list. All these lists have finally been sought tobe extinguished by virtue of the notifications dated 25.04.2007 and23.10.2008.

160. At this juncture, we must notice the following submissionswhich have been continually harped upon by the writ petitioners:

“The Survey Commissioner submitted report to the Govt. to theMaharashtra and the Govt. forwarded the same to theMaharashtra State Board of Wakfs Aurangabad the Board in its A

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Ameeting held on 27 September 2003 after deliberation resolved topublish list of Wakf under Section 5(2) of the Wakf Act 1995 andaccordingly Govt. Gazette was published on 13 November 2003.Also Govt. of Maharashtra vide its letter no Wakf-10/2002/CR-1/L-3 dated 19 August 2003 forwarded a list of the Trust obtainedfrom the Charity Commissioner Mumbai. These are also includedBas per Section 43 of the Wakf Act 1995 is published in the Govt.Gazette extra Ordinary in the State of Maharashtra.”

161. This means that the writ petitioners’ case is based on to agreat extent the mechanical manner in which upon receipt of the list ofpublic Trusts from the Charity Commissioner, the Wakf Board has notifiedCthem as Wakfs. Section 5(2) speaks about Wakf Board conducting aninquiry, or examining the manner. This certainly is not to be brushedaside as a matter of no moment. In fact, the whole idea of the Governmentplacing the report before the Wakf Board as has been canvassed by theappellants themselves to contend that a Wakf Board is very muchDcontemplated even prior to the Survey being held is that itmust dischargeits functions of examining the report under Section 5, before it is finallypublished.

162. It would appear to be a case where proceeding on the basisthat all the Muslim public Trusts registered under the 1950 Act must beEtreated as Wakfs, the Wakf Board has proceeded to notify all of them asWakfs. It is this which formed the subject matter of deliberations whichinvolved the Government, Wakf Board and Charity Commissioner. It is,accordingly, under the auspices of the Committee described as BifurcationCommittee that efforts were made to weed out those public Trusts whichfell not within the four walls of a Wakf and considering them assecularFtrusts. To a great extent, their claims being genuine is borne out by abare passing of Resolution on 09.03.2005. A fresh list was published on05.05.2005.

163. Now, we may, before we finally pronounce, also notice thecontention of the respondents-writ petitioners regarding the constitutionGof the Board.Section 14 provides for the constitution of the Board. Wehave already adverted to the provisions. It is not in dispute that when theBoard was constituted on 04.01.2002, there were only four members.Allthe four members were nominated. Two out of the four members wereapparently appointed in the category of Member of Parliament as, bothHbelonged to the Rajya Sabha. No doubt, there is a case that out of them viz., Shabana Azmi,the theatre person also fitted the bill of a Shia member.We must not be oblivious to the fact that Section 14(5) contemplated(the provision stands deleted by Act 27 of 2013) that there must be oneShia member in a composite board. After 04.01.2002 and before13.11.2002, there were in allseven members in the Board, including thefour notified in first notification, as three more were appointed prior to13.11.2003. One more person was appointed on 13.11.2003 whichaccording to the respondents was an attempt at complying with Section14(5) of the Act viz., for the first time, a Shia member made hisappearance in the Board. This is an aspect which was canvassed as oneof the grounds for not only challenging the constitution but to attack thepublication of the list of 13.11.2003. The contention taken was and stillpersevered in before us is that the Board had decided to notify the listeven prior to 13.11.2003 viz., on 27.09.2003. The Board itself thereforehad become functus officio after 27.09.2003 as far as the list is concerned,prior to 13.11.2003 when the eighth member was appointed.

164. The Board must consist of a minimum of seven members.Section 14 contemplates a maximum of 13 members. Not only must theBoard have seven members at the very minimum, they must be drawnfrom specific categories. Lastly, the complaint of the writ petitioners isthat apart from their not being drawn from the categories whicharespecified, the constitution of the Board was in breach of the injunction,which has democratic underpinnings, viz., that the elected members underSection 14(1)(b) (i-iv) must exceed the nominated members. Theexception to the same is located when power is exercised by the Boardfor reasons to be recorded in Section 14(3) of the Act.

165. The answer of the appellants apparently is that whatevermay be the defect, they are protected by Section 22 of the Act whereunder,any vacancy or any defect in the appointment notwithstanding, the sectionproclaims that it will not lead to the invalidity of the acts of the Board.

166. We will still further proceed to deal with certain other aspectsbefore we finally conclude. We must not omit to consider the impact ofSection 40 of the Act. Section 40 corresponds to Section 27 of the WakfAct 1954. Section 40(1) read with Section 40(2) provides for powerwith the Board to call for information and to find whether any Wakfproperty existed and whether it is a Sunni or a Shia Wakf. Section 40(2)provides that subject to the decision of the Tribunal to which the aggrievedparty may resort to, the decision of the Board is final. Section 40(3) is A

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Aeven more relevant to the dispute before this Court. No doubt, theremust be an inquiry conducted under Section 40 as may be deemed fit bythe Board, Section 40(3) must be carefully attended to for it gives veryvast powers to the Board. It provides for power when the Board has‘reasons to believe’.The expression ‘reasons to believe’ has been thesubject matter of a catena of decisions and it does not require referenceBto any authority to glean its connotation and we do not venture to dothat.

167. We proceed therefore, to hold that when the Board has, inlaw, any reason therefore to believe that any property of any Trustregistered under the Indian Trusts Act, 1882 or any society registeredCunder the Societies Registration Act 1860 or the property of any Trustregistered under any other law, is wakf property, the Board is givencertain powers and responsibility. The Board is clothed with the powernotwithstanding anything contained in any of those laws, to hold an inquiryin regard to the said property.The said property must be understood toDbe a property of any Trustwhich is registered in this case under theBombay Public Trust Act because Bombay Pubic Trust Act would qualifyas any other law. The holding of the inquiry is to be preceded by a noticeof the proposed action to be given to the authority by whom the Trust orthe Society has been registered. It is not to be confused with the Trust orthe Trustees.It means that the Wakf Board must give notice of theEproposed action to the Charity Commissioner as it is the authority underthe 1950 Act, who registered or registers a public Trust under Section 18of that Act.

168. Section 40 contemplates that the Board ‘if it is satisfied’ thatthe property is Wakf property, it is to call upon the Trust to either registerF‘such property’ under the Act as Wakf property or to show cause, whysuch property should not be so registered. In the first limb of this clause,an impression may be gathered that the Trust or society can bestraightway directed to register the property under the Act and there isno need to issue any notice to them. We would treat it as an omission ofGthe statute which must be filled up by the justice of the common law viz.,the principles of natural justice would indeed apply. This is besides issuingnotice to the authority which has registered the trust.Section 40(3)contemplates that the decision of the Board shall be final subject to thedecision to be rendered by the Tribunal.This section must be understoodin the following context.H

169. When parliament made the Act in 1995, it was aware that itwould repeal the Wakf Act 1954. Section 40 of the Wakf Act is a provisionwhich corresponds to Section 27 of the earlier Act. Parliament must bepresumed to know the laws which are on the statute book. In fact,Parliament must be presumed to be aware of all necessary facts whichwould give life to a law and make it workable, fair and reasonable.Parliament must, therefore, be assumed to know that laws like theBombay Public Trust Act were on the statute book. It must be awarethat the definition of public Trust such as is contemplated under theBombay Public Trust Act took within its sweep Wakfs. Section 28 of theBombay Public Trust Act, in fact, comes to mind. Section 28 of the 1950Act contemplated that institutions which were Wakfs before theenactment of the 1950 Act would be deemed to be public Trusts underSection 28 and would be treated as such under the said law. As far asother public Trusts which are registered under the 1950 Act, no doubt, inkeeping with what we have already observed and bearing in mind thefact that there is a distinction between a Trust and a Wakf, it is a matterto be decided on the facts of each case as to whether what is ostensiblya Trust within the meaning of 1950 Actis in substance a Wakf.

170. We must clarify here that what Section 40(3), in fact, statesis that if the Board has reason to believe that the property of any Trust isWakf property, it can hold enquiry and find such property to be Wakfproperty.

171. In this regard, we may notice that Section 30 of the 1950 Actcontemplates previous sanction for the sale of the property of the publicTrust. We may record that we are a little baffled and mystified by thisdeeming provision. This we feel for the reason that in the case of aWakf, property passes to the Almighty and to treat it as the property ofthe public Trust ill squares with the idea that the property also vests inthe Almighty. But we need not explore that matter further as we are notcalled upon to do so.Suffice it to say that despite the fact that the 1950Act has been enacted and Muslim pubic Trusts have been registered inwhat is described as Category B which is a category meant for MuslimPublic Trusts, the property of the said Trust as is described in Section40(3) can be found after due inquiry, to be the properties of a Wakf. Wemake this position clear.

172. As far as Section 43 is concerned, it mandates for deemedregistration of Wakfs. Its meaning may be culled out. It mandates that AB

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Anotwithstanding anything contained in the chapter, where any wakf hasbeen registered before the commencement of this Act,under any lawfor the time being in force, there is no need to register the same underthe provisions of this Act. Such registration is to be deemed to havebeen made under the Act.B173. Therefore, Shri Anil Anturkar, learned counsel, did refer to B173. Therefore, Shri Anil Anturkar, learned counsel, did refer tothe non-obstante clause in Section 43 being confined to the chapter inquestion viz., chapter V which provides for registration.In other words,it did not overflow its boundaries and impact the earlier provisions whichwere included in chapter II. The effect of Section 43 may be culled outas follows:C

174. Since under Section 2 of the Act, the Act applies to everyWakf which is created, whether before or after the Act came into force,it means that whatever is Wakf as defined in the Act which is made atany point of time, be it before or after 01.01.1996 must be registeredunder the Act [See Section 36]. Registration is intended to bring WakfsDunder the close scrutiny of the competent authority, be it the Board orthe executive officers. The whole history of the legislation of Wakfsreflects the perception of the legislature that property which is dedicatedto the Almighty for charitable, religious and pious purposes should beprotected. The protection must be extended against the Mutawallis andEothers who may deal with the property and thereby, completely destroythe very original purpose of the founder. What would be used for publicwelfare, be it even of sections of a community for certain cases, wouldall be covered thereunder as provided in the Act.

175. It is with this perception that we must view Section 43 andFthe High Court in the impugned judgment, also has referred to Section43 in the course of the argument against the incorporation of the Boardto hold that it merely provides for registration. We would think that theimportance of it lies in the fact that the registration has an important roleto play towards control and regulation of the Wakf by the competentbodies.G

176. Section 79 of the 1950 Act provides as follows:

“79. Decision of property as public trust property:- (1) Any question,whether or not a trust exists and such trust is a public trust orparticular property is the property of such trust, shall be decidedby theDeputy or Assistant Charity Commissioner or the CharityH

Commissioner in appeal as provided by this Act.(2) The decisionof the Deputy or Assistant Charity Commissioner or the CharityCommissioner in appeal, as the case may be, shall, unless setaside by the decision of the Court on application or of the HighCourt in appeal be final and conclusive.”

It provides for power with the deputy or the assistant CharityCommissioner to decide upon the issue as to whether a Trust exists andwhether such Trust is a public Trust or any particular property is a propertyof such trust. With the advent of the Wakf Act, 1995, the powers underSection 40 of the Act must be read as conferring authority with theWakf Board which must certainly prevail in regard to the matters whichare provided for therein.

177. This brings us to other aspect which has been canvassedbefore us. Section 112 of the Act provides for repeal. There is not muchcontroversy before us that Section 112 by virtue of the repeal it providesfor would effect a repeal of the provisions of the 1950 Act insofar as itrelates to public Trusts which are Wakfs. The Charity Commissioner, ineffect, when it issued clarification which was challenged before the HighCourt also initially only stated that according to Section 43 of the ActWakfs which are registered as Public Trusts should not be tried underthe 1950 Act. As far as this understanding of the Charity Commissionergoes subject to what we will presently indicate, we would take the viewthat there is a distinction between a Trust and a Wakf. We have alreadyhighlighted the differences.It is a matter to be tested on a conspectus ofvarious features and after complying with the law as to whether what isregistered as a public Trust is, in fact, a Wakf or not. No doubt, all publicTrusts which have been registered by way of a deeming provision underSection 28 of the 1950 Act will necessarily have to be treated as Wakfs.This is on the principle that once a Wakf is created unless it be a casewhere the title is extinguished by way of exercise of power of eminentdomain by the State, the title of the Almighty though by implication cannotcease. We can state the position otherwise to be that once a Wakf,always a Wakf.

178. We are not for a moment commenting on the aspect aboutacquisition of title by adverse possession. Nor are we going into thequestion which can be raised as a result of Section 107 of the Act bywhich Limitation Act hasnot been made applicable in respect of a suitforrecovery of possession but otherwise, we must hold that sans such A

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Afeatures, the Wakf would continue and it would remain perpetual,inalienable and irrevocable. Therefore, what was once a Wakf beforethe 1950 Act, if it is registered under the 1950 Act, with the commencementof the Act, such a public Trust would necessarily come under the ambitof the Wakf Act, 1995. It is pointed out by Shri Anil Anturkar, learnedsenior counsel, that such Wakfs would come within Section 43 and beBdeemed to be registered. We, however, make it clear that the passing ofthe Act will not affect the powers of the authorities in respect of publicTrusts registered under it which are not Wakfs.

179. Now, we may resume our discussion of the facts in greaterfocus.We notice that the High Court has interfered under Article 226. InCkeeping with what is laid down in the judgment we have referred to,perhaps it could be said that the High Court would have been betteradvised to relegate the parties to the Tribunal. There are however, certainaspects to it. Firstly, we may notice that this is not a case where thechallenge was laid only to the lists or the survey. Rather we have noticedDthat the challenge was laid to the very incorporation of the Board and itsconstitution. A challenge was also laid to the proceedings of the CharityCommissioner. These decisions which were impugned could not havebeen adjudicated by the Tribunal under Section 6 of the Act. The secondaspect which we cannot ignore is that as held by this Court, Article 226confers a jurisdiction or a power on the High Courts. It is a power underEthe Constitution. While it may be true that a statute may provide for analternate forum to which the High Court may relegate the party in anappropriate case, the existence of an alternate remedy by itself cannotexclude the jurisdiction of the High Court under the Constitution. Nodoubt, it has been a self-imposed restraint which is fairly faithfully adheredFto by the High Courts and it is largely a matter of discretion. We find thatthere are dicta which has held that on the basis of an alternate remedy,a writ petition is not maintainable. We would understand that the positionto be that a constitutional remedy cannot be barred or excluded as whenthe High Court exercises its power under Article 226, it cannot be a case of lack of inherent jurisdiction. No doubt, when High Courts strayGoutside the limits with reference to certain principles as have been laiddown in the decision which we have referred to, it can be corrected.Another factor which is to be borne in mind is that in a case where theHigh Court has entertained a matter and the matter comes for hearing inthis Court in the jurisdiction under Article 136, our woes are compoundedHby the long passage of time as is demonstrated by the facts of this case.

The judgment of the High Court was rendered in the year 2011. ThisCourt is hearing the matter after more than a decade. It is nearly twodecades after the filing of the writ petitions that this Court is hearing thematter.

180. We cannot be totally oblivious to the ground realities and wemust also state our opinion on the legal position.

We have understood the position to be that once a list is publishedwith the blessings of the Board, having considered the report in the mannerto be done by examining ‘the report’, interference with the same is onlypremised on a decision of the Tribunal in a properly constituted proceedingwithin the time as provided in Section 6. In this case if we are otherwiseinclined to interfere with the judgment, this would mean that we wouldhave to restore the lists dated 13.11.2003 and 30.12.2004. The positionon the ground, however, has been already stated viz., the filing of thewrit petitions, constitution of a Bifurcation Committee, variousproceedings, the exclusion of several trusts which are described as publicTrusts from the original lists and their restoration again. Yet anotherdevelopment which we cannot ignore is that the Government itself took itupon itself apparently on the basis of the report of the JPC to order resurveyon 20.10.2010. An interim order was passed by this Court in 2012.

181. However, Shri Rahul Chitnis, learned counsel for the State,would point out that the proceedings dated 20.10.2010 have beensubsequently cancelled by notification dated 06.12.2016. By the latterproceedings, a survey within the meaning of section 4(6) is taking place.

182. On the one hand, we have noticed the case of the writpetitioners to be that they were not given notice. We have also noticedtheir case based on the illegality in the constitution of the Committee.Several defects were pointed out by the learned senior counsel as notedin the survey. They include Shia Wakf being treated as Sunni andBoharatrusts being treated as Sunni Wakf. It is complained thatincomeof the properties has not been disclosed contrary to Section 4.

183. We articulate the choices which are available before us. It isthe appellant’s case that Wakf properties need to be rigorously andlawfully regulated. However, there are public Trusts registered underthe 1950 Act which are in fact, Wakf which fall under Section 28 of the1950 Act. They must undoubtedly come within the regime of the CentralAct viz., the Wakf Act, 1995. The converse also must be stated and A

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Ahighlighted viz.; a Muslim Public Trust registered under the 1950 Actneed not be a Wakf under the Act. It would be certainly contrary to theunbroken line of judgments of this Court which contemplate such a divisionbetween two categories to paint all Muslim public Trusts with the samebrush and glean them as Wakfs. We have elucidated the position howeverwith reference to the impact of the amendment to Section 3(a) of theBWakf Act, 1954.

184. At this juncture we must notice an interim order which hasbeen passed by this Court reported in 2012 (6) SCC 328. Much reliancewas sought by the learned senior counsel for the writ petition on the saidorder on the basis that it acknowledges the position of law flowing fromCthe principle in Nawab Zain Yar Jung (Since Deceased) and Othersv.Director of Endowments and Another(supra) and that it otherwisearticulates the law correctly. On the other hand, the appellants wouldpoint out that it is only an interim order and cannot detain this Court inanalyzing the issues.

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185. On the one hand, the case of the appellants is that therespondents must be relegated to approach the Tribunal against theirinclusion in the list by the proceedings dated 13.11.2003 or 30.12.2004whereas the case of the respondents is that if this Court interferes, theCourt may treat the proceedings dated 05.05.2005 as correct and notEinterfere otherwise with the judgment of the High Court.

186. Mr. Muchchwala, learned Senior Counsel, contended thatthe power under Section 97 is available to give binding directions to theBoard even as far as proceedings under Section 40 are concerned. Section97 contemplates power with the Government to issue directions to theFBoard in the matter of discharge of its functions. Section 32 deals withpowers and functions of the Board. It may be true that when the Boarddischarges its functions under Section 32 it may fall under the shadow ofsection 97. The Board may be bound but as far as Section 40 is concerned,it is meant to be a quasi-judicial proceeding as it is meant to be aproceeding where an inquiry is to be conducted by the Board to find outGwhether the property of the Trust is to be treated as the property of theWakfs.It contemplates issuance of notice, affording an opportunity ofnatural justice otherwise as indicated by us. To hold that the Board wouldbe bound by any direction in either manner, either in favour of the propertybeing treated as Wakf or the other way around or otherwise may not beHa correct understanding of the true boundaries of Section 40.

187. After considering the facts as aforesaid, we would think thatin the situation obtaining, particularly, after such a long passage of time,we cannot allow the impugned judgment of the High Court to be sustainedas it is.

188. As far as the incorporation of the Board is concerned, wehave found that it is not flawed.

Therefore, the judgment of the High Court to the extent that itsets aside the notification dated 04.01.2002, is found to be unsustainable.

The High Court has through the impugned judgments, set asidethe lists dated 13.11.2003 and 30.12.2004.

189. We cannot totally be unmindful of the fact that there wereseven members in the Board and also Section 22 appears to work as ashield against invalidation.

190. In view of the developments post the publication of the listdated 13.11.2003 and 30.12.2004 in the form of the formation of theBifurcation Committee and various proceedings, we cannot accept therequest of the respondents that the matter must again go back to theSurvey Commissioner who must be asked to look into the proceedingsof the Bifurcation Committee.

191. We must observe that the constitution of the BifurcationCommittee and various proceedings thereafter, would appear to be notproceedings which are strictly within the ambit of the Act as such. Therecannot also be plea of estoppel or equity against Statute.

192. But, at the same time, it would appear that both the CharityCommissioner and the Wakf Board were indeed proceeding under themisapprehension as far as the true purport of a Muslim public Trustregistered under the 1950 Act is concerned.

193. In such circumstances, we dispose of the appeals as follows:

The appeals are partly allowed.

The judgment of the High Court setting aside the notification dated04.01.2002, is set aside.

As far as lists dated 13.11.2003 and 30.12.2004 are concerned,we uphold the said lists subject to the following directions:

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AAs far as the writ petitioners in the High Court/respondents beforeus which have been registered as public Trusts under the 1950 Act andwhose cases have been found favour with by the Bifurcation Committee,the lists dated 13.11.2003 and 30.12.2004 will stand set aside. However,we direct that in regard to them, Board will take up their cases as if thematter is being dealt with at the stage when it was given the reportBunder Section 5(1) and examine their case after affording them anopportunity. The Board will afford them an opportunity and take a decisionand if they are found to be Wakfs, it will be open to the Board to causea list of Wakfs published/ regard them also.

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Still further, this is made conditional upon the respondents-writCpetitioners as aforesaid approaching the Wakf Board within the periodof eight weeks from today.

Such of those who do not approach within the period of eightweeks will forfeit their right and we make it clear that their inclusion inthe list dated 13.11.2003 or 30.12.2004 shall stand restored and it will beDtreated as final.

Still further, we direct that in regard to such of those who approachthe Board within the period as aforesaid, the Board will conclude theproceedings and take a decision expeditiously within a period of six monthsfrom the date on which they apply.

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We further make it clear that this order will not enure to the benefitof such of those falling within the category against whom the Tribunalhas already adjudicated and found them to be Wakfs. Needless to saysuch of those institutions will be free to work out their own remedies.

FInterim order dated 11.05.2012 operating since last 10 years willoperate till the time decision is taken by the Board.

We make it clear that the judgment will not in any manner dilutethe power which is available to the Wakf Board under Section 40 or forthat matter under any other provision of the Act.

GParties will bear their respective costs.

Bibhuti Bhushan Bose(Assisted by : Rahul Rathi, LCRA)

Appeals partly allowed.

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