# MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH YUSUF BHAI CHAWLA & ORS

- **Citation:** [2022] 12 S.C.R. 482
- **Court:** Supreme Court of India
- **Decided:** 2022-10-20
- **Case number:** Civil Appeal Nos. 7812-7814 of 2022
- **Bench:** K. M. Joseph, Hrishikesh Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maharashtra-state-board-of-wakfs-v-shaikh-yusuf-bhai-chawla-ors-35447
- **Pages:** 109

## Headnote

Wakfs - Wakf Act, 1995 - Bombay Public Trust Act, 1950 -
 Public Trust vis-à-vis Wakf - Distinction between a public Trust
and a Wakf - Discussed - Held: What was once a Wakf before the
1950 Act, if it is registered under the 1950 Act, with the
commencement of the Act, such a public Trust would necessarily
come under the ambit of the Wakf Act, 1995 - There are public
Trusts registered under the 1950 Act which are in fact, Wakf which
fall under s.28 of the 1950 Act - They must come within the regime
of the Central Act viz., the Wakf Act, 1995 - Conversely, a Muslim
Public Trust registered under the 1950 Act need not be a Wakf under
the Act - It would be certainly contrary to the unbroken line of
Supreme Court judgments which contemplate such a division between
two categories to paint all Muslim public Trusts with the same brush
and glean them as Wakfs - While it is open to a Muslim to create a
Wakf and ordinarily, there would be the prospect of a reward for
dedicating property by way of Wakf, it would be entirely left to a
Muslim to take a decision as to whether he should adopt the device
provided by an English Trust or make the familiar dedication by
way of Wakf - As to whether an institution is a Wakf or a public
Trust is a mixed question of fact and law - This means it becomes a
duty of whosoever upon whom the duty falls, to ascertain whether
it is either and to carefully attend to the terms of the document by
which the Trust is evidenced if there is such a document and find
the facts and thereafter the law must be applied - It is a matter to be
tested on a conspectus of various features and after complying with
the 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 way
of a deeming provision u/s.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 case where the title is extinguished by way of
[2022] 12 S.C.R. 482
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exercise of power of eminent domain by the State, the title of the
Almighty though by implication cannot cease.
Wakf Act, 1995 - Wakf - Constituent elements of - Held: 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 a period of time; it must be perpetual - A Wakf can be created
by a Will also - When a Wakf is created by a Will it is open to the
Wakif to revoke the will prior to his death - Save as aforesaid, a
Wakf cannot be revoked - A Wakf, again meaning the property
which is the subject matter of a Wakf cannot be alienated - The
object of the Wakf must be such that it is approved by the Muslim
law - The object must be religious, pious or charitable - It is not a
concept of piety religiousness or the charitable nature in the eyes
of the entire world but what is in consonance with Muslim law -
There is no prescribed mode of dedication - A Wakf need not be in
writing - As far as declaration is concerned, it can be inferred from
conduct - A Wakf, as defined includes Wakf by user - A Wakf can
be created for attaining a public utility - The public utility must,
however, be for an object sanctioned by Muslim law - Subject to
said conditions, irrespective of whether the beneficiaries are Muslims
or not, there could be a valid Wakf .
Wakf Act, 1995 - s.4 - Survey under the Act - Held: The
making of survey is not a mere administrative act but it is to be
informed by a quasi-judicial inquiry - Also, the surveyor has the
power to find whether a particular institution is a Wakf.
Constitution of India, 1950 - Art. 226 - Power under -
Exercise of - Effect of alternate remedy - Held: Article 226 confers
a jurisdiction or a power on the High Courts - It is a power under
the Constitution - While a statute may provide for an alternate forum
to which the High Court may relegate the party in an ap

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MAHARASHTRA STATE BOARD OF WAKFS
v.
SHAIKH YUSUF BHAI CHAWLA & ORS.
(Civil Appeal Nos. 7812-7814 of 2022)
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 Trust
and a Wakf - Discussed - Held: What was once a Wakf before the
1950 Act, if it is registered under the 1950 Act, with the
commencement of the Act, such a public Trust would necessarily
come under the ambit of the Wakf Act, 1995 - There are public
Trusts registered under the 1950 Act which are in fact, Wakf which
fall under s.28 of the 1950 Act - They must come within the regime
of the Central Act viz., the Wakf Act, 1995 - Conversely, a Muslim
Public Trust registered under the 1950 Act need not be a Wakf under
the Act - It would be certainly contrary to the unbroken line of
Supreme Court judgments which contemplate such a division between
two categories to paint all Muslim public Trusts with the same brush
and glean them as Wakfs - While it is open to a Muslim to create a
Wakf and ordinarily, there would be the prospect of a reward for
dedicating property by way of Wakf, it would be entirely left to a
Muslim to take a decision as to whether he should adopt the device
provided by an English Trust or make the familiar dedication by
way of Wakf - As to whether an institution is a Wakf or a public
Trust is a mixed question of fact and law - This means it becomes a
duty of whosoever upon whom the duty falls, to ascertain whether
it is either and to carefully attend to the terms of the document by
which the Trust is evidenced if there is such a document and find
the facts and thereafter the law must be applied - It is a matter to be
tested on a conspectus of various features and after complying with
the 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 way
of a deeming provision u/s.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 case where the title is extinguished by way of
[2022] 12 S.C.R. 482
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exercise of power of eminent domain by the State, the title of the
Almighty though by implication cannot cease.
Wakf Act, 1995 - Wakf - Constituent elements of - Held: 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 a period of time; it must be perpetual - A Wakf can be created
by a Will also - When a Wakf is created by a Will it is open to the
Wakif to revoke the will prior to his death - Save as aforesaid, a
Wakf cannot be revoked - A Wakf, again meaning the property
which is the subject matter of a Wakf cannot be alienated - The
object of the Wakf must be such that it is approved by the Muslim
law - The object must be religious, pious or charitable - It is not a
concept of piety religiousness or the charitable nature in the eyes
of the entire world but what is in consonance with Muslim law -
There is no prescribed mode of dedication - A Wakf need not be in
writing - As far as declaration is concerned, it can be inferred from
conduct - A Wakf, as defined includes Wakf by user - A Wakf can
be created for attaining a public utility - The public utility must,
however, be for an object sanctioned by Muslim law - Subject to
said conditions, irrespective of whether the beneficiaries are Muslims
or not, there could be a valid Wakf .
Wakf Act, 1995 - s.4 - Survey under the Act - Held: The
making of survey is not a mere administrative act but it is to be
informed by a quasi-judicial inquiry - Also, the surveyor has the
power to find whether a particular institution is a Wakf.
Constitution of India, 1950 - Art. 226 - Power under -
Exercise of - Effect of alternate remedy - Held: Article 226 confers
a jurisdiction or a power on the High Courts - It is a power under
the Constitution - While a statute may provide for an alternate forum
to which the High Court may relegate the party in an appropriate
case, the existence of an alternate remedy by itself cannot exclude
the 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 public
Trust is a mixed question of fact and law. This means it becomes
a duty of whosoever upon whom the duty falls, to ascertain whether
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it is either and to carefully attend to the terms of the document
by which the Trust is evidenced if there is such a document and
find the facts and thereafter the law must be applied. The
paramount feature which perhaps would figure in this inquiry
would be the properties being vested either by a Trust, in the
case of a Trust, for a trustee to deal with the property as such.
Whether there is no power of sale, or inalienability may be a factor
which may tilt the matter in favour of the institution being a Wakf
provided 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 to
believe that any property of any Trust registered under the Indian
Trusts Act, 1882 or any society registered under the Societies
Registration Act 1860 or the property of any Trust registered
under any other law, is wakf property, the Board is given certain
powers and responsibility. The Board is clothed with the power
notwithstanding anything contained in any of those laws, to hold
an inquiry in regard to the said property. The said property must
be understood to be a property of any Trust which is registered
in this case under the Bombay Public Trust Act because Bombay
Pubic Trust Act would qualify as any other law. The holding of the
inquiry is to be preceded by a notice of the proposed action to be
given to the authority by whom the Trust or the Society has been
registered. It is not to be confused with the Trust or the Trustees.
It means that the Wakf Board must give notice of the proposed
action to the Charity Commissioner as it is the authority under
the 1950 Act, who registered or registers a public Trust under
Section 18 of that Act. [Para 167][582-C-E]
3. When parliament made the Act in 1995, it was aware
that it would repeal the Wakf Act 1954. Section 40 of the Wakf
Act is a provision which corresponds to Section 27 of the earlier
Act. Parliament must be presumed to know the laws which are
on the statute book. In fact, Parliament must be presumed to
be aware of all necessary facts which would give life to a law and
make it workable, fair and reasonable. Parliament must,
therefore, be assumed to know that laws like the Bombay Public
Trust Act were on the statute book. It must be aware that the
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definition of public Trust such as is contemplated under the
Bombay Public Trust Act took within its sweep Wakfs. Section
28 of the Bombay Public Trust Act, in fact, comes to mind.
Section 28 of the 1950 Act contemplated that institutions which
were Wakfs before the enactment of the 1950 Act would be
deemed to be public Trusts under Section 28 and would be
treated as such under the said law. As far as other public Trusts
which are registered under the 1950 Act, no doubt, bearing in
mind the fact that there is a distinction between a Trust and a
Wakf, it is a matter to be decided on the facts of each case as to
whether what is ostensibly a Trust within the meaning of 1950
Act is in substance a Wakf. [Para 169][583-A-D]
4. As far as Section 43 is concerned, it mandates for deemed
registration of Wakfs. Its meaning may be culled out. It mandates
that notwithstanding anything contained in the chapter, where
any wakf has been registered before the commencement of this
Act, under any law for the time being in force, there is no need to
register the same under the provisions of this Act. Such
registration is to be deemed to have been made under the Act.
Since under Section 2 of the Act, the Act applies to every Wakf
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 at any point of time, be it before or after 01.01.1996 must
be registered under the Act [See Section 36]. Registration is
intended to bring Wakfs under the close scrutiny of the competent
authority, be it the Board or the executive officers. The whole
history of the legislation of Wakfs reflects the perception of the
legislature that property which is dedicated to the Almighty for
charitable, religious and pious purposes should be protected. The
protection must be extended against the Mutawallis and others
who may deal with the property and thereby, completely destroy
the very original purpose of the founder. What would be used for
public welfare, be it even of sections of a community for certain
cases, 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 not
much controversy that Section 112 by virtue of the repeal it
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provides for would effect a repeal of the provisions of the 1950
Act insofar as it relates to public Trusts which are Wakfs. The
Charity Commissioner, in effect, when it issued clarification which
was challenged before the High Court also initially only stated
that according to Section 43 of the Act Wakfs which are registered
as Public Trusts should not be tried under the 1950 Act. There is
a distinction between a Trust and a Wakf. It is a matter to be
tested on a conspectus of various features and after complying
with 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 have
been registered by way of a deeming provision under Section 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 case
where the title is extinguished by way of exercise of power of
eminent domain by the State, the title of the Almighty though by
implication cannot cease. What was once a Wakf before the 1950
Act, if it is registered under the 1950 Act, with the commencement
of the Act, such a public Trust would necessarily come under the
ambit of the Wakf Act, 1995. [Para 177 and 178][585-C-G; 586A-B]
6. It is the appellant's case that Wakf properties need to be
rigorously and lawfully regulated. However, there are public Trusts
registered under the 1950 Act which are in fact, Wakf which fall
under Section 28 of the 1950 Act. They must undoubtedly come
within the regime of the Central Act viz., the Wakf Act, 1995.
The converse also must be stated and highlighted viz.; a Muslim
Public Trust registered under the 1950 Act need not be a Wakf
under the Act. It would be certainly contrary to the unbroken
line of judgments of this Court which contemplate such a division
between two categories to paint all Muslim public Trusts with
the same brush and glean them as Wakfs. [Para 183][587-G-H;
588-A-B]
Nawab 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, Rajasthan
v. Radha Kishan and Others (1979) 2 SCC 468 : [1979]
2 SCR 148 and Radha Krishan Industries v. State of
H.P. (2021) 6 SCC 771 - relied on.
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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; Ramjas
Foundation and Another v. Union of India and Others
(2010) 14 SCC 38 : [2010] 15 SCR 364; Mohd. Khasim
v. Mohd. Dastagir and Others (2006) 13 SCC 497 :
[2006] 10 Suppl. SCR 1157; The Kassimiah Charities
Rajagiri v. The Madras State Wakf Board 1963 SCC
Online Mad 132; Nawab Zain Yar Jung (Since
Deceased) and Others v. Director of Endowments and
Another AIR 1963 SC 985 : [1963] 1 SCR 469; Wali
Mohammed (Dead) by LRs. v. Rahmat Bee (Smt.) and
Others (1999) 3 SCC 145 : [1999] 1 SCR 852 - referred
to.
The Kassimiah Charities, Rajagiri represented by its
hereditary trustee Sri. R.E.M.S. Abdul Hamid v. The
Madras State Wakf Board, represented by its Secretary
AIR 1964 Madras 18; Abul Fata Mahomed v. Russomoy
(1894) 22 Cal. 619 : 22 I.A; Income Tax Special
Purposes Commissioners v. Pemsel (1891) A.C. 531;
Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar and
others AIR 1922 Privy Council 123; Kachchh Wakf
Board & Anr. v. Kachchh Memon Jamat & Ors. 1997
SCC Online Guj 220 - referred to.
Baker, Re [Baker, Re, Nichols v. Baker (1890) 44 Ch
D 262 (CA); Julius v. Lord Bishop of Oxford (1880) 5
AC 214 - referred to.
Case Law Reference
[2012] 4 SCR 448
referred to
Para 23
[1963] 1 SCR 469
relied on
Para 31
[1979] 2 SCR 148
relied on
Para 35
[2017] 5 SCR 294
referred to
Para 35
(2010) 14 SCC 38
referred to
Para 37
[2006] 10 Suppl. SCR 1157
referred to
Para 38
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH
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[1963] 1 SCR 469
referred to
Para 41
[1999] 1 SCR 852
referred to
Para 126
(2021) 6 SCC 771
relied on
Para 157
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 78127814 of 2022.
From the Judgment and Order dated 21.09.2011 of the High Court
of Judicature at Bombay in WP No.2906/2004, WP Nos.357 899 of
2011.
With
Civil Appeal Nos.7930, 7929. 7928, 7927, 7926, 7925, 7924, 7923,
7922, 7921, 7914-7920, 7911-7913, 7910, 7909, 7908, 7898-7907, 78967897, 7895, 7894, 7893, 7892, 7891, 7890, 7889, 7888, 7887, 7886, 78847885, 7872-7883, 7862-7871, 7855-7861, 7853-7854, 7852, 7851, 7850,
7849, 7848, 7847, 7846, 7844, 7845, 7843, 7840-7842, 7839, 7836-7838,
7835, 7834, 7833, 7832, 7831, 7830, 7827-7829 and 7815-7826 of 2022.
Tushar Mehta, SG, K. M. Natraj, ASG, Anil Anturkar, Gopal
Shankarnarayan, 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,
Harshvardhan 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 Ahmed
Syed, Mohd. Parvez Dabas, Uzmi Jameel Husain, Aqib Baig, Mohd.
Shahib, Mujeebuddin Khan, M/S. Shakil Ahmad Syed, S. M. Jadhav,
Brij 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.
Rucha Pravin Mandlik, Mohit Gautam, A. Radhakrishnan, Gaurav
Agrawal, Shishir Deshpande, Nilakanta Nayak, Amit Yadav, Sakya
Singha 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, Prakhar
Agarwal, Balaji Srinivasan, Amol Chitale, Nirnimesh Dube, Ejaz Maqbool,
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Pravartak Pathak, Ms. Nandini Deshpande, Yuvraj Satpute, Ms. Ankita
Chaudhary, 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, Desam
Sudhakarareddy, Ms. Sujata Kurdukar, Nitin S. Tambwekar, Seshatalpa
Sai Bandaru, K. Rajeev, Rajat Nair, Ms. Swati Ghildiyal, Shailesh Madiyal,
Ms. Swarupama Chaturvedi, Mayank Pandey, Madhav Sinhal, Nakul
Chengappa 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. Suhasani
Sen, Mahesh P. Shinde, Ms. Rucha A. Pande, Veeraragavan M., Kamran
Shaikh, 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, Punit
Khanna, Pranay Thite, Kunal Verma, Praveen Kumar, Ankit Yadav,
Tarun Mehra, Gaijala Bhaskar, Ratnesh Sharma, Advs. for the appearing
parties.
The following Judgment of the Court was delivered:
JUDGMENT
1. Leave granted.
2. Since the common questions arises in all these appeals, we
deem it appropriate to dispose of the same by the following common
judgment.
3. The facts leading up to the litigation need to be referred to at
the very beginning.
The Parliament enacted Wakf Act, 1995, (hereinafter referred to
for the purpose of brevity as, 'the Act'). By order dated 01.12.1997, the
Government of State of Maharashtra (hereinafter referred to as the
State') appointed a Survey Commissioner purporting to act under Section
4 of the Act. A Wakf Tribunal was constituted at Aurangabad by order
dated 30.10.2000. On 04.01.2002, the State incorporated the Maharashtra
State Board of Wakfs (hereinafter referred to as Board). Incidentally, it
is noticed that four members came to be nominated by very same
notification, the details of which shall be evident in the course of the
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH
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judgment. The State forwarded the survey report which it received to
the Board which was constituted on 07.05.2002.The Joint Parliamentary
Committee (hereinafter referred to as 'JPC' for brevity) submitted a
report on 08.07.2003.
4. At this juncture, it is apposite that we may notice another
dimension of the litigation which is the Bombay Public Trust Act, 1950
rechristened as the Maharashtra Pubic Trust Act, 1950. The real lis in
this case surrounds the question as to whether the respondents before
us who turned out to be the writ petitioners before the High Court are
Public Trusts or they are in essence or in substance, Wakfs under the
Mohammedan Law.
The Charity Commissioner under the Bombay Public Trust Act,
1950 (hereinafter referred to as '1950 Act' for brevity), makes his entry
on the stage by issuing a circular dated 24.07.2003 which reads as follows:
"Dated: 24.07.2003
Sub: The Muslim Wakfs/Trusts registered with the Charity
Commissioner, 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 Wakfs
registered as Public Trusts should not be tried under the Bombay
Public Trust. Further orders may be awaited.
Sd/-
The Charity Commissioner
Maharashtra State, Mumbai
24.07.2003
Sec. 43 of Act is as follows:
"Sec. 43 Wakfs registered before the commencement of the Act
demand to be registered - Notwithstanding anything contained in
this Chapter, where any wakf has been registered before the
commencement of this Act, under any law for the time being in
force, it shall not be necessary to register the Wakf under the
provisions of this Act and any such registration made before such
commencement shall be deemed to be a registration made under
this 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 on
28.08.2003. A Challenge was laid to the circular issued by the Charity
Commissioner. There was also a challenge thrown to the Constitution of
the Board.
The High Court proceeded to stay the circular by order dated
17.11.2003 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 and
Judiciary Department to discuss the problems of the Wakfs.A decision
was taken on 11.08.2004 to constitute a Committee of the Charity
Commissioner and two members of the Board. The following may be
noted at this juncture itself as the result of the meeting which took place
on 11.08.2004:
"Meeting to discuss the problems of Wakfs cases was held today
i.e., on the 11.8.2004 at 12.00 noon under the Chairmanship of
Hon'ble Minister (Law). The following dignitaries and officers of
Government 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)
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH
YUSUF BHAI CHAWLA & ORS.
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So many writ petitions have been filed before the Hon'ble High
Court challenging the formation of Wakf Board. The Hon'ble High
Court admitted the writ petitions and granted interim relief in favour
of the petitioners restraining the Charity Commissioner from
transferring the muslim trusts to Wakf Board and granted stay on
the Circular dated 24.7.03 issued by the Charity Commissioner.
The Wakf Board is also restrained by the Hon'ble High Court
from collecting the contribution from the petitioners in these writ
petitions. On the basis of the same, Association for Protection of
Wakfs and Trusts has made representation to the Government
with a request to;
(1) direct the Wakf Board to cancel the notification declaring the
list of Wakf which are published on 13.11.03, the said notification
is not only full of mistakes but highly malicious.
(2) direct the Wakf Board to have a fresh survey done properly
ascertaining Shiya and Sunni Wakf Boards and have the Survey
monitored by a competent and judicious senior officer.
(3) form a fresh Wakf Board after proper survey is concluded. In
the meeting it was discussed as to whether the Wakf Board is
consituted legally as per the provisions of Wakf Act, 1995 and
whether it is possible for the Government and the Wakf Board to
have a fresh survey ascertaining Shiya Wakf and Sunni Wakf and
whether 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 Chairmanship
of Charity Commissioner including the two members from the
Wakf Board and two member of Charity Commissioner. This
committee will study the work of charity organisations and Wakf
Board constituted in Andhra Pradesh, Karnataka and Uttar
Pradesh and decide which of the muslim trust registered under
the Bombay Public Trusts Act, 1950 are covered under the Wakf
Act and which comes under the Bombay Public Trusts Act and
that which of the Wakfs are Shiya Wakfs and Sunni Wakfs.
(2) It is not legally possible to extend the period of notification
after 13.11.04. But the concerned trusts shall make an application
to the said Committee stating their objections, reservations, if any.
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(3) Wakf Board will give an advertisement in the newspapers to
requesting the muslim trusts and wakfs to give information stating
that whether they are trust or Wakf and if it is a wakf, whether it
is a Shiya Wakf or Sunni Wakf and the details of income of such
Wakfs.
(4) Shri Yusuf Muchhala, Sr. Counsel High Court may submit the
list of Shiya Wakfs, Sunni Wakfs and Trusts belonging to their
Association to the Committee constituted under the Chairmanship
of Charity Commissioner. He made his submissions without
prejudice to the rights and contentions of the petitioners in diverse
writ petitions pending in the High Court at Judicature at Bombay,
challenging the constitution of the wakfs Board, the survey
commissioner report and the list of Wakfs published by
Maharashtra Wakf Board on 13.11.2003.
(5) Mr. Muchhnala will persuade their clients (petitioners) to cooperative with the said committee formed by the State Government
and his clients will co-operative without prejudice to their rights
and contentions on the issues in the pending writ petitions.
(6) To bring uniformity in respect of the contribution collected for
administrative fund, the Wakf Board may take administrative fund
contribution annually at a rate of 2% for the gross annual income
or of the gross annual collection or receipt as the same way in
which the public trust administrative fund is being collected by the
Charity Commissioner.
(7) The Wakf Board shall not take any further action in respect of
the notification declaring the list of wakfs which was published on
13.11.2003 until the report of the said Committee is submitted to
the State Government.
7. Writ Petition No. 2906 of 2004 came to be filed by Shaikh Yusuf
Bhai 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 hereinbefore
mentioned submitted its report.It referred to the powers of the Board
under Section 40 of the Act to decide whether the properties are Wakf
Property or not.
9. On 09.03.2005, the Board passed a resolution. It reads as
follows:
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH
YUSUF BHAI CHAWLA & ORS.
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"Charity Commissioner may be requested to transfer bifurcated
Wakfs also with records of the Charity Commissioner, numbering
918 from 1Mumbai Co. the Wakf Board and keep with Charity
Commissioner 755 Trusts. Also it is resolved to accept the list of
Pune District wherein 379 Wakfs are identified and 84 Trust. The
Charity Commissioner may be requested to transfer record and
proceeding of 379 Wakfs to Wakf Board and keep with his 84
Trust, rest identification may be completed, this transfer is subject
to Boards Rights to consider matters under section 40 of the Wakf
Act, 1995."
10. The Board, thereafter, issued a corrigendum purporting
apparently to act in terms of the resolution dated 09.03.2005. The
corrigendum had the effect of abridging the list of Wakfs which was
published on 13.11.2003. Most significantly, a number of Wakfs which
were included in the List dated 13.11.2003 came to be excluded.On
13.04.2006, the State wrote to the Board referring tothe letters of the
Charity Commissioner in which the Commissioner presented a new
classified list of Wakfs and Trusts. The Lists of Wakfs and Trusts were
also forwarded to the Board. The Board passed a resolution on
19.06.2006. It accepted the list of Wakfs given by the Charity
Commissioner.
"ANNEXURE-P-19
Maharashtra State Board of Wakfs Dated 19.06.2006
Point No. 46 (reg): Bifurcation of Wakf and Trust as per List
finalized by Committee appointed by the government publication
of Government Gazette:
Resolution No.4.6: It is unanimously revolved that the report of
CharityCommissioner is received through Government of
Maharashtra of all Districts in Maharashtra. In principle it is agreed
to publish the lists in Government Gazette, lists of bifurcated Wakfs.
Again under section 40 of the Wakfs Act, the Board has power to
take remaining Wakfs at any time in its period. Hon'ble Chairman
is authorized to take final decision in this regard.
(M.Y. Patel)
Additional Collector
Chief Executive Officer
Aurangabad"
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11. On 31.07.2006, a corrigendum was issued by the Board
modifying the earlier list of Wakfs. Thereafter, on 25.04.2007, the Board
issued another notification stating that the resolution which was dated
19.06.2006 was cancelled. The reason given was that it was not as per
the business rules. It was also decided to cancel the corrigendum issued
on 31.07.2006. On 04.09.2008, the Government of Maharashtra appointed
seven members to the Board. This notification, in turn, also formed the
subject matter of challenge in the High Court.
The membership of the Board stood reduced to four members
viz., two of the members who were originally appointed and two who
were from the lot who were subsequently appointed. On 23.10.2008,
there is yet another summersault by theBoard insofar as it purported to
cancel the corrigendum dated 05.05.2005 and it was therein declared
that the original notification containing the List of Wakfs dated 13.11.2003
was to remain intact:
"ANNEXURE-P- 25
Maharashtra Govt. Gazette
NOTIFICATION 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 published
in Government Gazette dated 13.11.2003 as per Board Resolution
3 dated 27.9.2003, under section 5 (1) and sub-section 3 of section
4 of Central Wakf Act, 1995.
The corrigendum to the aforesaid Government Gazette notification
was issued on 5.5.2005 with reference to the Maharashtra Stat·e
Board of Wakfs. Resolution No. 3 dated 9.3.2005, and the same
was 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. 17/2008
dated 3.4.2008, and confirmed on 27.5.2008. Hence the
Corrigendum No.MSBW/REGISTRATJON -73/ 1068/2005
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH
YUSUF BHAI CHAWLA & ORS.
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published on 5.5.2005 stands automatically cancelled. Thus the
original notification of List of Wakf Properties published on
13.11.2003 remains as it is.
(S.S.ALI QUADRI)
Chief Executive Officer
Maharashtra State Board of Wakfs
Aurangabad"
12. The JPC gave a report on 23.10.2008 indicating that the list of
Wakfs as far as the State of Maharashtra is concerned, was published.
The next development is to be noticed in the form of a notification dated
20.10.2010. We may notice its contents at this juncture itself.
"ANNEXURE-P-26,
MINORITIES DEVELOPMENT DEPARTMENT
Mantralaya, Mumbai 400 042, dated the 20th October 2010
NOTIFICATION
WAKF ACT, 1995
No. Wakf-2009/ C.R. 105/Desk-4. Whereas the Government of
Maharashtra vide Government Notification, Revenue and Forests
Department No. Wakf-1097/CR-95/L-3, dated the 1st December,
1999 and No. WAKF. 1097 /CR-95/L- 3, dated the 29th September
1999 appointed Survey Commissioners, Additional Survey
Commissioners and Assistant Survey Commissioners, respectively,
for the purpose of making a survey of Wakfs existing. on the 1st
day of January 1996 in the State of Maharashtra;
And Whereas, the Joint Parliamentary Committee received
complaints that the survey was not conducted properly and
therefore, the Committee issued directions dated 20th October
2008 to the State Government to conduct resurvey of the Wakfs
in the State;
And Whereas, the Government considers it expedient to appoint
Divisional Commissioners of Konkan, Nashik, Pune, Aurangabad,
Amravati and Nagpur as Survey Commissioner for their respective
divisions, District Additional Collectors of Konkan, Nashik, Pune,
Aurangabad, Amravati and Nagpur as Additional Survey
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Commissioners for their respective districts, and Tahsildars as
Assistant Survey Commissioner in their respective Talukas, to resurvey 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 of
Maharashtra hereby appoints: -
(1) Divisional Commissioners of Konkan, Nashik, Pune,
Aurangabad, Amravati and Nagpur Revenue Divisions, as Survey
Commissioner for their respective divisions,
(2) District Additional Collectors of Konkan, Nashik, Pune,
Aurangabad, Amravati and Nagpur Districts, as Additional Survey
Commissioner for their respective Districts,
(3) Tahsildars of the Talukas, as Assistant Survey Commissioner
for 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 said
notification.
There were other writ petitions also which were filed. Writ Petition
was filed being Writ Petition No. 899/2011 challenging the circular of
the Charity Commissioner and also the list of Wakfs were challenged.
Pleadings were exchanged.Written notes of arguments were also
submitted.
The High Court has allowed the writ petitions. The findings of the
High 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 incorporation
of the Board was illegal. The contention which was urged before the
High Court by the writ petitioners was that here is a case where the cart
was put before the horse. The law giver envisaged the conduct of survey
of the Wakfs. A survey of Wakfs in terms of the section 4 followed by
the publication of the List under Section 5 would reveal among other
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH
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things, the number of Wakfs in the State. Even more importantly, the
survey would yield the necessary inputs so that the duty which was cast
on 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 on
the Government to form two separate Boards viz., a Sunni Board of
Wakf and a Shia Board of Wakf, if Section 13(2) was attracted.It was
found by the High Court that Section 13(2) contemplated that if 15 per
cent of the Wakfs were Shia Wakfs or the income from such Wakfs is in
the excess of 15 per cent of the total income, the law mandates that
there must be separate Wakfs for the Sunnis and Shias respectively.
The High Court proceeded to find that Section 13 contemplates that the
Board is a body corporate and has perpetual succession. It was found
further that the Act does not contemplate a Board being formed under
Section 13(1) and thereafter, a survey report being received and on the
strength of the contents of the survey report with reference to the criteria
in Section 13(2), the Board which is originally put in place under Section
13(1) being extinguished and creation of two separate Boards for the
Sunnis and the Shias as contemplated therein.
15. The Court found that the contention of the report being placed
by the State apparently under Section 5 of the Act, viz., the requirement
therein that the Government on receipt of the report of the Surveyor
must forward the report to the Board and therefore,the Board must be
in place and that the survey need not precede the incorporation of the
Board was misplaced.
16. On the second aspect, the High Court posed the question as
to the legality of the constitution of the Board. Section 14 provides for
the constitution of the Board. The High Court drew support from the
fact that, as on the date, it apparently considered the matter that there
were only two members and the law contemplated that there must be a
minimum of seven members in the Board and here is what the High
Court held:
"It is thus clear that presently there are only two Members of the
Board. This position was not disputed before us. Perusal of Section
14 makes it clear that a wakf Board having only two members
cannot be said to be properly constituted and· therefore, we have
to hold that the constitution of Wakf Board of Maharashtra is not
in accordance with law."
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17. Moving on, the High Court dealt with the complaint of the writ
petitioners regarding the publication of the list itself on 13.11.2003. The
High Court largely drew on the report of the JPC itself.
18. Still later, the High Court found favour with the contention of
the writ petitioners that here is a case where developments based on the
filing of the writ petitions cannot be overlooked. The development consisted
of the constitution of the Bifurcation Committee which had the blessings
of the Government itself, and which Committee held meetings in which
the Charity Commissioner of the Wakf Board also participated and certain
public trusts were identified as public Trusts and others as Wakfs.
After finding that the survey conducted by the Survey
Commissioner was flawed, the High Court accepted the request of the
writ petitioners that since on 20.10.2020 resurvey was also ordered by
the Government when the resurvey is conducted, the writ petitioners
may be afforded an opportunity to place before the Survey Commissioner
the report of the Committee under which the writ petitioners apparently
were identified as being actually public trusts.
19. Thereafter, the High Court, we may notice, in the context of
the impact of the 1950 Act proceeded to make the following observations:
THE APPEALS
20. The appellants before us are the Board, State of Maharashtra
and two others.
21. We heard Shri K. K. Venugopal, learned senior counsel
appearing 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, learned
counsel. We have also heard Mr.GopalSankaranarayanan, learned senior
counsel who also appeared for the Board.
We have heard Shri Rahul Chitnis learned counsel appearing on
behalf of the State.
Last, but not the least, we heard Shri Harish Salve, learned senior
counsel 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 senior
counsel who appeared in C.A. Nos. 7812-7814 of 2022 (@ SLP (C)
Nos. 31288-31290 of 2011) along with Mr. Murtaza Kachwalla, Mr.
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH
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Moinuddin Algaus Shaikh and Ms. Ekta Bhasin, learned counsel. We
also heard Mr. Y. H. Muchhala, learned senior counsel along with Mr.
Sagheer Khan and Mr. G. D. Shaikh, Mr. Seshadri Nadu, learned senior
counsel, along with Mr. S. Mahesh Sahasranaman, also made his
submissions.
We have further heard Shri Vinay Navare, learned senior counsel
and we have also heard Shri Anil Anturkar, learned senior counsel.
22. Shri K.K.Venugopal, learned senior counsel for the Board
would impugn the judgment on various grounds.
He would challenge the finding regarding the alleged illegality in
the incorporation of the Board as unsustainable. There is no duty cast
under Section 13(2) of the Act to have separate Boards if the percentage
of Shia Wakfs are found toexceed the percentage mentioned in the said
section (15 per cent) he contended. He would further contend that a
survey need not precede the incorporation.
23. Learned senior counsel also did contend that, in fact, when
the Wakf Act 1954 was enacted having regard to Article 254 of the
Constitution, even treating the 1950 Act as a law which embraced a
Wakf as a public trust and provided for its regulation, the Wakf Act 1954
being a self-contained Code even if it was not made applicable to the
State 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 making
of the law by Parliament attracted the doctrine of repugnancy. Therefore,
since the Scheme of the Wakf Act, 1954 is completely irreconcilable
with the provisions of 1950 Act, it did not even survive the passing of the
Wakf Act, 1954.
24. He would also after taking us through the factual developments
which we have adverted to already, contend that the Board was indeed
validly constituted and the survey was conducted as per law. The Survey
Commissioner was appointed in 1997.