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

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.

A B C D E F G H MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH YUSUF BHAI CHAWLA & ORS. 491

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.

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.

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.

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.

On 09.03.2005, the Board passed a resolution. It reads as follows: A B C D E F G H 494 SUPREME COURT REPORTS [2022] 12 S.C.R. A B C D E F G H

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.

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

MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH YUSUF BHAI CHAWLA & ORS. 495

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 the Board 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 A B C D E F G H 496 SUPREME COURT REPORTS [2022] 12 S.C.R. 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

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. MINORITIES DEVELOPMENT DEPARTMENT Mantralaya, Mumbai 400 042, dated the 20th October 2010 “ANNEXURE-P-26, 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 A B C D E F G H MAHARASHTRA STATE BOARD OF WAKFS v.

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.

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 A B C D E F G H 498 SUPREME COURT REPORTS [2022] 12 S.C.R. 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.

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.

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.

A B C D E F G H MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH YUSUF BHAI CHAWLA & ORS. 499

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.

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.

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

The appellants before us are the Board, State of Maharashtra and two others.

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. A B C D E F G H 500 SUPREME COURT REPORTS [2022] 12 S.C.R. A B C D E F G 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.

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.

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.

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. It took the surveyor nearly five years to submit his report. He would, in particular, point out that even the JPC report which is the sole premise for finding the list flawed by the High Court, has observed that questionnaires were dispatched. This meant that all parties were put on notice. It is not as if the writ petitioners were put to prejudice. They had the right to approach the properly constituted H 1 (2012) 7 SCC 106 MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH YUSUF BHAI CHAWLA & ORS. 501 alternate forum viz., the Tribunal under Section 6 of the Act. No ground whatsoever existed to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution. The question as to whether an institution is a Wakf or a public trust as the writ petitioners claim is to be dealt with by the duly constituted Tribunal only.

He would submit that as far as the corrigendum which was issued on 05.05.2005 cutting down the width of the number of the Wakfs which was included in the original list dated 13.11.2003 is concerned, it was wrongly done. This fact was realised and the mistake came to be rectified as we have noticed in the narration of facts.

He would further contend that what JPC complained about was under-inclusion of the Wakfs. In other words, the JPC found that there were complaints about the large number of Wakfs which were left out in the List of 13.11.2003. This did not detract from the validity or the correctness of the List dated 13.11.2003. As regards Wakfs included therein, it is contended, therefore, there arose no occasion for the High Court to set aside the List dated 13.11.2003. As regards the other findings and directions which were given by the High Court, the learned senior counsel would contend that they are wholly untenable and cannot be sustained.

With regard to the effect of Section 112 of the Act, Mr. K.K. Venugopal, learned senior counsel, would submit that Section 112 clearly brings about a repeal of the law in relation to Wakfs in the 1950 Act.

Shri Gopal Sankaranarayanan, learned senior counsel, adopted the submissions made by the learned senior counsel Shri K. K. Venugopal. He would supplement, in particular, in his attack against the finding that the Wakf was not properly incorporated on the following grounds. He would submit that a perusal of the Act would reveal that the Act has a definite scheme. It includes a provision for registration of the Wakfs. The immediate need for creation of the Wakf Board which cannot await the result of the survey commissioner is impressed upon us. The Act contemplates a duty with every Wakf whether created before or after the Act to register themselves with the Wakf Board.

Section 32 contemplates various powers and functions to be discharged by the Board. The Board’s sanction is required under Section 51 even for leasing the property. Therefore, there cannot be a hiatus from the date of the commencement of the Act and creation of the A B C D E F G H 502 SUPREME COURT REPORTS [2022] 12 S.C.R. A B C D E F G Wakf Board, as it will defeat the sublime object of the Act. He has also argued that Section 103 and 106 would constitute a sufficient answer to the findings of the High Court that the Act does not contemplate the creation of second Wakf Board after the creation of the first composite Board. He would also point out that the report under the Survey under Section 4 of the Act is purely preliminary. It does not affect any legal rights. The right of the Wakf which is included in the List published under Section 5(2) of the Act cannot be preponed to the time when the Survey Commissioner submits its report under Section 4(3) of the Act to the Government. The right which the person aggrieved (as it stands amended in place of the ‘person interested in the Wakf’) has is that theaggrieved person can approach the Tribunal under Section 6.

Therefore, no prejudice as such was caused to the writ petitioners that would have justified their knocking at the doors of the High Court under the extraordinary jurisdiction under Article 226 of the Constitution.

He would also submit that there has been a different regime created from the previous one which fell for consideration before this Court in the case reported in Nawab Zain Yar Jung (Since Deceased) and Othersv. Director of Endowments and Another2. He would canvas for the position that having regard to the effect of the amendment brought about to the word ‘beneficiary’ in section 3(a) of the Wakf Act 1954 and its continuance in the present Avtar in Section 3(a) again of the Act, the fundamental premise on which the decision of this Court in Nawab Zain Yar Jung (Since Deceased) and Othersv. Director of Endowments and Another (supra) was rendered has been taken away.

In other words, according to him, in view of the fact that though prior to the amendment in 1964, the word beneficiary was defined in such a manner that a Muslim who purported to create a Wakf, the benefit of which was available to all without reference to religion was tabooed, after the amendment, a Wakf which has for its object any public utility which is sanctioned by Muslim law would pass muster as a valid Wakf. This has brought about a complete change in the concept of Wakf and what is more important, its repercussions are pronounced with regard to the controversy at hand. In other words, he would submit that the very case of the writ petitioners/ respondents has been that since their H 2 AIR 1963 SC 985 MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH YUSUF BHAI CHAWLA & ORS. 503 institutions are public religious or charitable trusts and therefore, they were registered under the 1950 Act and they cannot be treated as Wakfs. Since, the very basis for the difference between the Wakf and a Trust as was perceived, by the Court in the said judgment having being deciphered with the pre-amendment definition of the word beneficiary has been removed, there cannot be any difficulty in the law getting at Wakfs, in substance and bringing them under the firm control of the Act. He relies on case law which we shall refer to at the appropriate stage.

Mr. Javed Sheikh, learned counsel for the Board supplemented Shri K. K. Venugopal and Mr. Gopal Sankarnarayanan, learned senior counsel, and would support them in their attempts at overturning the impugned judgment.

Shri Rahul Chitnis, learned counsel for the State who appears in certain special leave petitions would also attack the findings of the High Court on analogous grounds and he adopts the argument addressed by the learned senior counsel. He would submit that after the filing of the special leave petitions in this Court which took place in the year 2011, the Government has ordered a second survey on 07.12.2016. He would point out that the order dated 20.10.2010 has been revoked.

Shri Anil Anturkar, learned senior counsel, appears in SLP (C)No. 3136 of 2016. He would contend that though this Court has pronounced about the ambit of Section 4 of the Wakf Act, 1954, in the decision reported in Board of Muslim Wakfs, Rajasthan v. Radha Kishan and Others3 as far as the present Act is concerned, he would submit that the complaint about natural justice being violated may be farfetched and may not be sustainable. He emphasised the impact of Section 43 of the Act which provides for deemed registration of Wakfs. He drew our attention to judgment of this Court reported in Madanuri Sri Rama Chandra Murthy v. Syed Jalal4.

He would, in fact, go to the extent of contending that natural justice if it is to be observed to the extent canvassed, may render it impermissible to obtain any fruitful results. He would further contend that Wakfs would have been registered as deemed Wakfs under Section