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Friday, May 11, 2012

There is a vast difference between Muslim Wakfs and Trusts created by Muslims. The basic difference is that Wakf properties are dedicated to God and the “Wakif” or dedicator, does not retain any title over the Wakf properties. As far as Trusts are concerned, the properties are not vested in God. Some of the objects of such Trusts are for running charitable organisations such as hospitals, shelter homes, orphanages and charitable dispensaries, which acts, though recognized as pious, do not divest the author of the Trust from the title of the properties in the Trust, unless he relinquishes such title in favour of the Trust or the Trustees. At times, the dividing line between Public Trusts and Wakfs may be thin, but the main factor always is that while Wakf properties vest in God Almighty, the Trust properties do not vest in God and the trustees in terms of Deed of Trust are entitled to deal with the same for the benefit of the Trust and its beneficiaries. 29. In the present case, the difference between Trusts and Wakfs appear to have been overlooked and the High Court has passed orders without taking into consideration the fact that the Charity Commissioner would not ordinarily have any jurisdiction to manage the Wakf properties. 30. In these circumstances, in our view, it would be in the interest of all concerned to maintain the status quo and to restrain all those in management of the Wakf properties from alienating and/or encumbering the Wakf properties during the pendency of the proceedings before this Court. The order of the High Court staying the operation of its judgment has led to the revival of interim orders which have rendered such stay otiose. The said order of stay cannot also be continued during the pendency of these proceedings in its present form. 31. Accordingly, at this stage, we direct that in relation to Wakf properties, as distinct from Trusts created by Muslims, all concerned, including the Charity Commissioner, Mumbai, shall not permit any of the persons in management of such Wakf properties to either encumber or alienate any of the properties under their management, till a decision is rendered in the pending Special Leave Petitions.


                               REPORTABLE | |

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

             SPECIAL LEAVE PETITION (C) Nos.31288-31290 of 2011





Maharashtra State Board of Wakfs     … Petitioner


           Vs.



Shaikh Yusuf Bhai Chawla & Ors.      … Respondents



                                    WITH


 SLP(C) Nos.32129-32131 of 2011, SLP(C) No.32636 of 2011, SLP(C) No.35196 of
                      2011 AND SLP(C) No.35198 of 2011



                                  O R D E R



ALTAMAS KABIR, J.


1.    These several Special Leave Petitions have been filed by the State  of
Maharashtra and other parties. While Special Leave Petition  (C)  Nos.31288-
31290,  Special  Leave  Petition  (C)  Nos.32129-32131  and  Special   Leave
Petition (C) No.32636, all of 2011, have been fled by the Maharashtra  State
Board of Wakfs, Special Leave Petition (C) Nos.35196 and 35198 of 2011  have
been filed by the Jamait Educational and Welfare Muslim  Minority  Education
Society and Maharashtra Muslim Lawyers’ Forum.

2.    The Special Leave Petitions are  directed  against  the  judgment  and
final order dated 21st September, 2011, passed by the Bombay High  Court  in
Writ Petition No.2906 of  2004,  Writ  Petition  No.357  of  2011  and  Writ
Petition (L) No.899 of 2011.  The impugned judgment of  the  High  Court  in
the aforesaid Writ  Petitions  is  the  outcome  of  the  challenge  to  the
formation of the Maharashtra State Board of Wakfs. As noticed  by  the  High
Court, the subject matter of all the Writ  Petitions,  and  thereby  of  the
Special Leave Petitions, relates to the challenge to  the  incorporation  of
the Maharashtra State Board of Wakfs and its impact upon the  Wakfs  created
by persons professing Islam, but belonging to different sects.

3.     The  Petitioners  in  Writ  Petition  No.2906  of  2004  are  Muslims
belonging to the Shia Fatemi Ismaili Tyebia  Sect  of  Islam  and  are  Shia
Muslims.  The Petitioner Nos.1 to 3 in the said Writ Petition  are  trustees
of “Sir Adamji Peerbhoy Sanatorium” established by a Scheme settled  by  the
Bombay High Court by an order dated 16th  June,  1931  in  Suit  No.1560  of
1927. The said Trust is registered  as  a  Public  Trust  under  the  Bombay
Public Trusts Act. The Petitioner Nos.4 and 5 are trustees of the  “Anjuman-
i-Null-Bazaar Chhabdi Bazar Niaz Hussein Charitable Trust”,  which  is  also
registered as a Public Trust under the Bombay Trusts  Act.  The  Petitioners
in Writ Petition No.899 of 2011 are Dawoodi Bohra Muslims and  claim  to  be
Trustees of Noorbhoy Jeewanji Morishwalla Charity  Trusts  registered  under
the Bombay Public Trusts Act. The Petitioners in Writ  Petition  (L)  No.357
of 2011 are Muslims belonging to the Shia Fatemi  Ismaili  Tyebia  sect  and
are  also  trustees  of  Sir  Adamji  Peerbhoy   Sanatorium,   referred   to
hereinabove. The Petitioner in  SLP  (C)  No.35196  of  2011  is  a  society
registered under the Societies Registration Act, 1860. All  the  members  of
the Trust profess Islam and are persons interested in  the  affairs  of  the
Wakf set in question by virtue of the provisions  of  Section  3(k)  of  the
Wakf Act, 1995.  Similarly, the Petitioners in SLP(C) No.35198 of  2011  are
a group of Muslim lawyers who have formed  a  Forum  and  are  also  persons
interested in the management of Wakf properties in terms of Section 3(k)  of
the Wakf Act, 1995.

4.    The grievance of the Writ Petitioners in these five Writ Petitions  is
the same. The Petitioners in Writ Petition No.2906 of 2004  have  challenged
the notification dated 4th  January,  2002,  issued  by  the  Government  of
Maharashtra and have also sought for a direction to the State Government  to
conduct a fresh survey of  Wakfs in the State of Maharashtra. Their  further
challenge is to notification  dated  13th  November,  2003,  issued  by  the
Maharashtra State Board of Wakfs publishing the list of Wakfs in  the  State
of Maharashtra.

5.    In Writ Petition No.899 of 2001, the Petitioners have  challenged  the
Circular dated 24th July, 2002, issued by the Charity  Commissioner  of  the
State of Maharashtra stating therein that  in  view  of  the  provisions  of
Section 43 of the Wakf Act, 1995, the Wakfs which were registered as  Public
Trusts would cease to be governed by the  provisions  of  the  Public  Trust
Act. It is the case of the Writ Petitioners that because  the  establishment
of the Maharashtra State Board  of  Wakfs  by  the  notification  dated  4th
January, 2002, was itself invalid, they continued  to  be  governed  by  the
provisions of the Bombay Public Trusts Act.

6.    The Petitioners in Writ Petition No.357 of 2011, have  challenged  the
notification issued by the State of Maharashtra on 20th October,  2010,  for
re-survey of the Wakfs in the State of  Maharashtra.   They  also  sought  a
direction that the Charity Commissioner should  continue  to  supervise  the
working of the Trusts of which they are trustees.

7.    After the Wakf Act, 1995, which came into force on 1st January,  1996,
was enacted, the State Government issued a  notification  on  1st  December,
1997, in exercise of its powers under Sub-Section (1) of Section  4  of  the
Wakf Act, 1995, whereby the State Government appointed :-

     a) Settlement Commissioner and Director of Land  Records,  Maharashtra
        State, Pune, to be  Survey Commissioner of Wakfs; and


     b) Additional Commissioners of Konkan, Nashik, Pune, Nagpur,  Amravati
        and  Aurangabad  Revenue  Divisions   to   be   Additional   Survey
        Commissioners, for the purpose of making a survey of Wakfs existing
        on the 1st day of January, 1996 in the State of Maharashtra.

8.     On  4th  January,  2002,  the  Government  of   Maharashtra,   by   a
notification of even date, in exercise of powers conferred by Section 14  of
the Wakf Act, 1995, established a Board by  the  name  of  “The  Maharashtra
State Board of Wakfs” with its headquarters at  Aurangabad.  The  Government
nominated four persons to be members of the State Board, namely :-

     a) Shri Khan Yusuf Sarwar, Member of Parliament (Rajya Sabha);


     b) Smt. Shabana Azmi, Member of Parliament (Rajya Sabha);


     c) Shri Harun Aadam Solkar, Muslim Ex-member of the Bar Council of the
        State; and


     d) Shri Chand Pasha Inamdar, Member of Muslim Organisation;

Thus, by the aforesaid Notification, a Wakf Board was  established  for  the
entire State of Maharashtra with its headquarters  at  Aurangabad  and  four
persons were named in the Notification as members of the said Board.

9.    Pursuant to the notification dated 1st December,  1997,  the  officers
appointed to conduct the survey, submitted a report to the State  Government
on 31st January, 2002. Thereafter, other members were appointed to the  Wakf
Board  by  different  notifications.   On  24th  July,  2003,  the   Charity
Commissioner of the State of Maharashtra issued  a  circular  directing  his
office not to exercise powers under the Bombay  Public   Trusts  Act  or  to
deal with any of the Muslim Public Trusts. The said circular mentioned  that
according to Section 43 of the Wakf  Act,  1995,  a  Wakf  registered  as  a
Public Trust should not be administered or governed under the Bombay  Public
Trusts  Act.   Several   Writ   Petitions   were   filed   challenging   the
establishment of  the  Board  and  also  challenging  its  constitution  and
appointment of various persons as its members. Objections  were  also  filed
in Court challenging the circular issued by  the  Charity  Commissioner.  On
13th November, 2003, the Wakf Board  published  a  list  of  Wakfs  treating
Muslim Public Trusts in Maharashtra and Suburban  districts  of  Maharashtra
as Wakfs.

10.   Several Writ Petitions  were  filed  challenging  the  list  of  Wakfs
prepared by the Wakf Board which came to be heard by the Bombay High  Court,
which set aside the notification dated 4th January, 2002, as also  the  list
of Wakfs prepared and published by the Maharashtra State Wakf Board on  13th
November, 2003. The Survey Officers appointed  by  notification  dated  20th
October, 2010, were directed to take into consideration representations,  if
any, made by the Petitioners and other similarly situated persons  connected
with the  Muslim  Wakfs,  including  the  list  prepared  by  the  Committee
constituted by the State Government under the chairmanship  of  the  Charity
Commissioner.  The Survey Officers were also given the option to  take  into
consideration any list of Wakfs, if prepared under  the  Act  of  1954.  The
crucial direction which appears  to  have  adversely  affected  the  special
leave petitioners is the direction that until a  new  Board  or  Boards  was
incorporated under the Wakf Act, 1995, and the Board started functioning  in
accordance with the provisions of  the  Wakf  Act,  the  provisions  of  the
Bombay Public Trusts Act would apply to such Muslim  Public  Trusts  as  are
registered under the Bombay Public Trusts Act. The High Court made it  clear
that although the notification dated 4th January, 2002, had been set  aside,
none of the actions taken or orders passed by the Wakf Board constituted  by
the notification dated 4th January, 2002, had been challenged or  set  aside
by  virtue  of  the  said  order.  By  the  impugned  order,  the  State  of
Maharashtra was given the  liberty  to  take  steps  to  make  such  interim
arrangements,  as  may  be  advised,  to  monitor  and  supervise  the  Wakf
properties and other related  aspects  under  the  Wakf  Act.  It  was  also
stipulated that the decision and/or  action  already  taken,  including  the
pending disputes and litigations would be governed by the Wakf Act, 1995.

11.   As far as Writ Petition (L) No.357 of 2011 is concerned, the  Division
Bench clarified that by the judgment in question it had not  considered  the
reliefs claimed with regard to the list of Wakfs dated 13th December,  2004.
Accordingly, the Petitioners were given the liberty either to file  a  fresh
petition claiming such relief, or to claim the said relief in other  pending
matters.

12.   It is these directions issued by the  Division  Bench  of  the  Bombay
High Court which have led  to  the  filing  of  the  present  Special  Leave
Petitions.

13.   One of the facets of the dispute,  which  was  thrown  up  during  the
hearing regarding continuance of the interim order in  a  modified  form  is
the creation of Wakfs under the Muslim law and the  creation  of  Trusts  by
persons professing the Muslim faith, which were not in the nature of  Wakfs,
but in the nature of English Trusts.

14.   Prior to the enactment of the Wakf Act, 1995, the  Central  Wakf  Act,
1954, was in force, but did not apply  to  some  of  the  States  which  had
Special Acts of their own, such as Uttar  Pradesh,  West  Bengal,  parts  of
Gujarat and Maharashtra and some of  the  North-Eastern  States.   The  said
States continued to  be  governed  by  their  own  Special  statutes,  which
provided for the administration of Wakfs in their respective States.  To  do
away with the disparity of the law relating to Wakfs  in  different  States,
the Central Government enacted a uniform law to  govern  all  Wakfs  in  the
country, which led to the enactment of  the  Wakf  Act,  1995,  whereby  all
other laws in force in any  stage  corresponding  to  the  said  Act,  stood
repealed.

15.   The judgment and order of the High Court  having  been  challenged  in
these various Special Leave Petitions, on  29th  November,  2011,  when  the
matters were taken up, we had directed notices to  issue  in  the  different
Special Leave Petitions and in the meantime directed that the  stay  granted
by the High Court on 21st September,  2011,  in  respect  of  its  judgment,
would remain operative.

16.   Thereafter, these matters have been taken up to consider whether  such
interim order of stay should be allowed  to  continue,  but  in  a  modified
manner   on account of the fact that by staying the operation of  the  final
judgment, the interim orders passed by the High Court were revived,  thereby
rendering the stay order meaningless.

17.   While considering the three sets of Special Leave  Petitions,  Special
Leave Petition (Civil) Nos.32129-32131  of  2011,  filed  by  the  State  of
Maharashtra, were taken up for consideration first.

18.   Appearing for the  Petitioner  State  of  Maharashtra,  Mr.  Rohington
Nariman, learned Solicitor General for India, submitted that the only  thing
which was required to be  considered  for  a  decision  as  to  whether  the
interim order shall continue, was whether a prima facie case had  been  made
out for grant of interim injunction to preserve the status  quo  ante  which
prevailed before the coming into operation  of  the  Wakf  Act,  1995.   Mr.
Nariman urged that the provisions of the Wakf  Act,  1954,  and  the  Bombay
Public Trusts Act, in relation to Wakf properties, stood repealed by  virtue
of Section 112 of the 1995 Act. Mr. Nariman submitted that  Section  112  of
the 1995 Act, which dealt with repeal and savings,  clearly  indicated  that
if immediately before the commencement of the Act in any  State,  there  was
in force in that State any law which corresponded with the  1995  Act,  that
corresponding law would stand repealed. The learned  A.S.G.  submitted  that
in the instant case, the corresponding law to the Wakf Act,  1995,  when  it
came into force, was the Maharashtra Wakf Act  and  the  provisions  of  the
Bombay Public  Trusts  Act  which  became  ineffective  on  account  of  the
provisions of Section 112(3) of the 1995 Act.  With the repeal of  the  said
two provisions, it was for the Board of Wakfs  established  under  the  1995
Act to continue in management of the Wakf properties  and  the  judgment  of
the High Court setting aside the establishment of Board could not  resurrect
the authority of the Charity Commissioner over  such  properties.  In  fact,
after the promulgation of the  Wakf  Act,  1995,  the  Charity  Commissioner
ceased to have any  control  over  Muslim  Wakfs,  even  if  they  had  been
registered with the Charity Commissioner  as  Public  Trusts.   Mr.  Nariman
submitted that at this interim stage only a  prima  facie  view  has  to  be
taken as to whether the interim  order  passed  by  this  Court  was  to  be
continued, pending the hearing of the Special Leave Petitions.

19.   On the other hand,  Dr.  Rajiv  Dhawan,  Senior  Advocate,  and  other
learned counsel who appeared for some of the  Respondents,  urged  that  the
learned Solicitor General had not made any submission  with  regard  to  the
balance of convenience and inconvenience and only confined  himself  to  the
question of whether a prima facie case has been made out for continuance  of
such interim injunction.  Learned counsel  submitted  that  the  matter  had
already been dealt with earlier and the  order  which  was  passed  on  30th
November, 2011, continuing the stay granted by  the  Bombay  High  Court  on
21st September, 2011, was based on consent. Furthermore, only three  of  the
parties had appeared before this  Court.   It  was  further  submitted  that
although there were several sales transactions involved  which  were  to  be
considered by the Charity Commissioner,  only  three  of  the  parties  were
before the Court and the parties which were also likely to  be  affected  by
any order passed in these matters should also be  given  an  opportunity  of
hearing, particularly because the prayer which had been asked for by way  of
interim relief was in fact the main relief itself. It was  urged  that  till
4th January, 2002, when the Board came into existence under  the  1995  Act,
there was no Wakf Board and even the Board created  at  a  later  stage  was
wholly illegal.

20.   The main thrust of the submissions made on behalf of  the  respondents
was that the circular issued by the Charity Commissioner  relinquishing  its
authority  over  the  Trusts  created  by  Muslims,  did  not  attract   the
provisions of the Wakf Act, 1995, which dealt with Wakf properties only  and
was not, therefore, entrusted with the jurisdiction over such Wakfs. It  was
also submitted that the Bifurcation Committee which  had  been  created  for
the purpose of separating Wakfs from Trusts and Shia and  Sunni  Wakfs,  was
an extra-legal Committee which was not contemplated under the provisions  of
the Wakf Act.  According to Dr.  Dhawan,  the  classification  of  Wakfs  as
“Shia” or “Sunni” or any dispute regarding whether a  Wakf  is  existing  or
not, could only be decided by the Wakf Tribunal under Sections 6  and  7  or
by the Wakf Board under Section 40 of the Wakf Act, 1995.

21.   On 4th September, 2008, the  State  of  Maharashtra  issued  a  notice
appointing 7 members to the Board, but  the  said  notification  was  struck
down by the Bombay High Court and the strength of the  Board  of  Wakfs  was
reduced to four members.  This was followed by a notification issued by  the
Wakf Board on 23rd February, 2008, cancelling its  corrigendum  notification
dated 5th May,  2005,  seeking  to  amend  the  list  of  Wakfs  dated  13th
November, 2003, thereby retaining its control over  the  said  Wakf  estates
indicated in the first list published earlier.  Dr. Dhawan urged  that  once
the order passed was agreed to by the parties, there  could  be  no  further
question of passing any interim order to stay the effect  of  the  order  of
the High Court passed on 21st September, 2011.

22.   Dr. Dhawan urged that since the survey of the Wakfs  and  the  various
denominations in respect thereof, was yet to  be  completed,  and  even  the
Board of  Wakfs  had  not  been  properly  constituted  in  accordance  with
Sections 13 and 14 of the 1995 Act, the provisions  of  Section  22  of  the
Act, which provides that no act or proceeding of the Board shall be  invalid
by reason only of the existence of any vacancy amongst its  members  or  any
defect in  the  constitution  thereof,  would  not  be  attracted.   Learned
counsel submitted that Section 22 of the Act would come into operation  only
after the Board had been duly constituted but not when the Board was yet  to
be constituted.  It was submitted that since the Wakf  Board  had  not  been
constituted fully, the list of Wakfs published by it cannot be  accepted  or
relied upon.  It was submitted that the interim order  passed  by  the  High
Court did not require any interference in  these  proceedings  even  at  the
interim stage.

23.   Mr. Salve, learned senior counsel appearing for the  Respondents  Nos.
1,2 and 3 in SLP (C) No. 31288 of 2011, submitted that during  the  pendency
of the Special Leave Petition in this Court, Wakf properties should  not  be
permitted to be alienated by either  the  Board  of  Wakfs  or  the  Charity
Commissioner, though, as far as Public Trusts  are  concerned,  they  should
not be treated as Wakfs, since the genesis of their existence was not  under
the law relating to Wakfs, but as English Trusts which are governed  by  the
Indian Trusts Act.

24.    Referring  to  paragraph  13  of  the  Special  Leave   Petition   in
SLP(C)Nos.31288-31290 of  2011,  Mr.  Salve  submitted  that  the  power  to
establish a Board of Wakfs was vested in the State Government under  Section
13 of the Wakf Act, 1995 and Sub-Section (2) thereof lays  down  the  manner
in which the power is to be exercised by the State  Government.   Mr.  Salve
pointed out that this provision provided for the appointment of two  Boards,
one, a Sunni Board and the other, a Shia Board, depending on the  number  of
Wakfs belonging to the two denominations. Accordingly,  one  would  have  to
wait till a survey, as contemplated under Section 4 of the Wakf  Act,  1995,
was completed.   Mr. Salve submitted that it would, therefore,  be  best  to
preserve the status quo until a final decision  was  taken  in  the  Special
Leave proceedings.

25.   Mr. Y.H. Muchhala, learned Senior Advocate, who appeared for  Anjuman-
i-Islam, adopted the submissions made by Mr. P.P. Rao, Dr.  Dhawan  and  Mr.
Salve, but submitted that in the absence of a validly constituted  Board  of
Wakfs, the Wakf Act, 1995, could not be said to  have  come  into  force  in
Maharashtra which continued to be governed  by  the  State  Government.  Mr.
Muchhala urged that for the purpose of management of the  Wakfs  within  the
State of Maharashtra, the system  of  management  prevailing  prior  to  the
enactment of the 1995 Act would continue to remain in operation.

26.   Having considered the submissions made on  behalf  of  the  respective
parties, we are restricting ourselves at this interim  stage  to  the  broad
outlines of the case made out by the respective parties and whether, in  the
background of the facts disclosed, the  stay  granted  by  the  Bombay  High
Court on 21st September, 2011 should continue in a modified form.

27.   Broadly speaking, the grievance of the Petitioners  in  these  Special
Leave Petitions is with regard to the vesting of powers  of  management  and
supervision  of  Muslim  Wakf  estates  in  Maharashtra   in   the   Charity
Commissioner  by  virtue  of  the  impugned  order  of   the   High   Court.
Undoubtedly, the Wakf Board was constituted  under  the  provisions  of  the
Wakf Act, 1995, but not at full strength as envisaged in Sections 13 and  14
of the aforesaid Act.  Whatever may be the reason, the factual  position  is
that today there is no properly constituted Board of  Wakfs  functioning  in
the State of Maharashtra. At the same time, the administration of  Wakfs  in
Maharashtra cannot be kept in vacuum.  The Bombay High  Court  did  what  it
thought best to ensure that there was no vacuum  in  the  administration  of
Wakf properties in Maharashtra by directing that till such  time  the  Board
was  properly  constituted,  the  Charity  Commissioner  would  continue  to
administer the Muslim Wakf properties, including English  Trust  properties,
which had already been registered  as  Trust  properties  with  the  Charity
Commissioner under the Bombay Public Trusts Act. As a  corollary,  the  list
of Wakfs published by the truncated Board of Wakfs was  also  set  aside  by
the Bombay High Court. The question is whether the  Bombay  High  Court  had
the  jurisdiction  to  make  such  orders  in  the  writ  jurisdiction   and
particularly to vest the management of all Wakf properties  in  the  Charity
Commissioner in view of the provisions of Section 112 and in particular Sub-
Section (3) thereof of the Wakf Act, 1995.

28.   Section 112 concerns repeal  and  savings.   By  virtue  of  the  said
provision, the 1954  Wakf  Act  and  the  1984  Wakf  (Amendment)  Act  were
repealed. Sub-Section (3) specifically provides as follows :-
      “112.   Repeal and Savings.  ……………………….
      (1)   xxx   xxx  xxx
      (2)   xxx   xxx  xxx
      (3) If immediately before the commencement of this Act, in any  State,
           there is in force in that State, any law  which  corresponds  to
           this Act, that corresponding law shall stand repealed.”

      Although, it cannot be said that the Bombay Public Trusts  Act  was  a
corresponding law and, therefore, stood repealed, it  cannot  also  be  said
that the same would be applicable to Wakf properties which were not  in  the
nature of public charities. There is a vast difference between Muslim  Wakfs
and Trusts created by Muslims. The basic difference is that Wakf  properties
are dedicated to God and the “Wakif”  or  dedicator,  does  not  retain  any
title over the  Wakf  properties.  As  far  as  Trusts  are  concerned,  the
properties are not vested in God.  Some of the objects of  such  Trusts  are
for running charitable  organisations  such  as  hospitals,  shelter  homes,
orphanages and charitable dispensaries, which  acts,  though  recognized  as
pious, do not divest  the  author  of  the  Trust  from  the  title  of  the
properties in the Trust, unless he relinquishes such title in favour of  the
Trust or the Trustees. At times, the dividing  line  between  Public  Trusts
and Wakfs may be thin, but  the  main  factor  always  is  that  while  Wakf
properties vest in God Almighty, the Trust properties do  not  vest  in  God
and the trustees in terms of Deed of Trust are entitled  to  deal  with  the
same for the benefit of the Trust and its beneficiaries.

29.   In the present case, the difference between Trusts  and  Wakfs  appear
to have been overlooked and the High Court has passed orders without  taking
into  consideration  the  fact  that  the  Charity  Commissioner  would  not
ordinarily have any jurisdiction to manage the Wakf properties.

30.   In these circumstances, in our view, it would be in  the  interest  of
all concerned to maintain the status  quo  and  to  restrain  all  those  in
management of the Wakf properties from  alienating  and/or  encumbering  the
Wakf properties during the pendency of the proceedings  before  this  Court.
The order of the High Court staying the operation of its  judgment  has  led
to the revival of interim orders which have rendered such stay otiose.   The
said order of stay cannot also be continued during  the  pendency  of  these
proceedings in its present form.

31.   Accordingly, at this  stage,  we  direct  that  in  relation  to  Wakf
properties, as distinct from  Trusts  created  by  Muslims,  all  concerned,
including the Charity Commissioner, Mumbai, shall  not  permit  any  of  the
persons in  management  of  such  Wakf  properties  to  either  encumber  or
alienate any of the properties under their management, till  a  decision  is
rendered in the pending Special Leave Petitions.



                                                     ………………………………………………………J.
                                     (ALTAMAS KABIR)





                                                     ………………………………………………………J.
                                     (J. CHELAMESWAR)



                                                     ………………………………………………………J.
                                     (RANJAN GOGOI)
New Delhi
Dated : 11.05.2012