Summary
Muslim public trusts registered under the Bombay Public Trusts Act, 1950 challenged the incorporation of the Maharashtra State Board of Wakfs in 2002 and the lists of wakfs published in 2003 and 2004, which treated them as wakfs. The Bombay High Court quashed the incorporation and the lists. The Supreme Court partly allowed the appeals. A Board may be incorporated before the Section 4 survey, and Section 13(2) does not oblige the State to create separate Shia and Sunni Boards. Under Nawab Zain Yar Jung, a Muslim may create either a public trust or a wakf, and the 1964 amendment of "beneficiary" did not erase that distinction. Wakfs deemed public trusts under Section 28 of the 1950 Act remain wakfs. The lists were upheld, but the trusts favoured by the Bifurcation Committee were given a fresh hearing before the Board.
Issues
- Whether a State Board of Wakfs could be incorporated under Section 13 of the Wakf Act, 1995 before the survey under Section 4, and whether Section 13(2) mandates separate Shia and Sunni Boards.
- Whether Muslim public trusts registered under the Bombay Public Trusts Act, 1950 are necessarily wakfs, and whether the High Court rightly quashed the lists of wakfs under Article 226.
Provisions considered
- Sections 4, 5 and 13, Wakf Act, 1995The survey report must be forwarded to and examined by the Board under Section 5, so the Board may exist before the survey; 'may' in Section 13(2) confers a discretion, not a duty, to create separate Shia and Sunni Boards. (¶¶ 98, 102, 103, 105, 107, 108)
- Section 3(a) and (r), Wakf Act, 1995The 1964 amendment of 'beneficiary' allows a wakf for public utility to benefit non-Muslims, but the indispensable features of permanent, irrevocable dedication vesting in the Almighty remain, so the trust-wakf distinction survives. (¶¶ 109, 111, 136, 137, 141, 142)
- Sections 40 and 43, Wakf Act, 1995The Board may inquire, on notice to the registering authority and with natural justice to the trust, whether property of a trust registered under any law is wakf property; Section 43 deems wakfs already registered to be registered under the Act. (¶¶ 166, 167, 168, 170, 172, 176)
- Sections 2(13), 28 and 79, Bombay Public Trusts Act, 1950Wakfs deemed to be public trusts under Section 28 must be treated as wakfs ('once a wakf, always a wakf'), while other Muslim public trusts are not wakfs merely because they are registered under the 1950 Act. (¶¶ 61, 64, 169, 177, 178, 183)
- Section 22, Wakf Act, 1995Vacancies or defects in the Board's constitution do not invalidate its acts. (¶¶ 87, 165, 189)
Held
- The incorporation of the Board on 04.01.2002 was valid, as nothing requires a survey to precede it, and the Board's corporate existence does not bar later creation of separate Boards after a further survey. (¶¶ 107, 108, 188)
- Whether an institution is a trust or a wakf is a mixed question of fact and law to be decided on the instrument and conduct; vesting of property in trustees with a power of sale points to a trust, while inalienability and dedication to the Almighty point to a wakf. (¶¶ 135, 142)
- The survey is a quasi-judicial exercise, but the High Court set aside the lists resting mainly on the JPC report; though writ jurisdiction was not barred given challenges the Tribunal could not decide, the lists could ordinarily be questioned only before the Tribunal under Section 6. (¶¶ 145, 158, 179, 180)
- The Board had notified as wakfs, without examination, all Muslim public trusts the Charity Commissioner listed, and the Bifurcation Committee was not a proceeding under the Act; the Board's Section 40 inquiry is quasi-judicial and cannot be dictated by State directions under Section 97. (¶¶ 161, 162, 186, 191, 192)
Result
Appeals partly allowed; the High Court's quashing of the Board's incorporation set aside and the 2003 and 2004 lists upheld, except that for respondent trusts favoured by the Bifurcation Committee the lists stand set aside and the Board must hear and decide their status within six months if they apply within eight weeks; those not applying stand restored in the lists; Section 40 powers unaffected; parties to bear own costs.