Maharashtra State Board of Wakfs Vs Shaikh Yusuf Bhai Chawla .

11 May 2012
Supreme Court
Download

MAHARASHTRA STATE BOARD OF WAKFS Vs SHAIKH YUSUF BHAI CHAWLA .

Bench: ALTAMAS KABIR,J. CHELAMESWAR,RANJAN GOGOI
Case number: SLP(C) No.-031288-031290 / 2011
Diary number: 34968 / 2011
Advocates: SUDHANSHU S. CHOUDHARI Vs EJAZ MAQBOOL

Page 1

REPORTABL E

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.

Page 2

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

Page 3

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

Page 4

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

Page 5

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

Page 6

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,

Page 7

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

Page 8

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);

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.

Page 9

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

Page 10

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

Page 11

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

Page 12

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

Page 13

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,

Page 14

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.

Page 15

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

Page 16

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

Page 17

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.

Page 18

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,

Page 19

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.

Page 20

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

Page 21

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

Page 22

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

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

Page 23

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

Page 24

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

Page 25

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.

Page 26

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

Page 27

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

Page 28

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

Page 29

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