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
