The Gujarat High Court has held a Muslim trust registered under Bombay Public Trust Act as deemed to be a waqf under Section 43 Waqf Act, rejecting the trust's contention that the State Waqf Board's CEO had in 2011 held that the entity was not a waqf but a trust.

In doing so the court observed that the record did not indicate that the board had conducted an inquiry to reach this conclusion as contemplated under Section 40 of the Act.

The court was hearing an appeal by 'Muslim Kuza Farosh Jamat Trust' challenging an order issued by the Gujarat State Waqf Tribunal upholding Gujarat State Waqf Board's decision holding the appellant to be a waqf.

The trust claimed that it engages in charitable and welfare activities for the benefits of its members and Jamat / community / society wherein the land of Qabarstan came to be allotted to the applicant – Trust. 

In 1953 Charity Commissioner, Bombay held that Trust– Jamat is a public charitable trust and thereby held to be registered under the provisions of the Bombay Public Trust Act. The trust moved the District Court which dismissed its plea and attained finality. 

After 1995 Act was enacted the entire record of the appellant – Trust came to be transferred to the Waqf Board under Section 43 Waqf Act, 1995. The trust moved a representation to the board seeking delisting from the list of waqfs. In 2011 the CEO, of the Board accepted the trust's application and declared that it was not Waqf under Section 3(r) of the Waqf Act and thereby ordered to remit the record to the Charity Commissioner.

Eventually the board in its proceedings declared the appellant to be a trust, which was challenged by the appellant before the tribunal which led to a rejection. 

A division bench of Justice Ilesh J Vora and Justice RT Vachhani in its order noted that the appellant Trust came to be registered under the Bombay Public Trust Act, 1950 before the Charity Commissioner, Ahmedabad on 15/10/1952 with the object of "general welfare and for education of its community and Jamat" and thereby the Jamat came to be registered as Muslim Trust and the entry to that effect came to be registered under the “B” category. 

It noted that the same had continued till the Waqf Act, 1995 came into force.

The bench referred to Section 43 of the Waqf Act which states that if any waqf has been registered before the commencement of the Act under any law for the time being in force, then it shall not be necessary to register the waqf under the provisions of the Waqf Act and any such registration made before such commencement "shall be deemed to be a registration" made under Waqf Act. 

"Thus, it is expressly clear that in the aforesaid circumstances since the appellant – Trust – Jamat has already been registered for the purpose as enshrined therein and again after the enactment of the Waqf Act, 1995 came into force the same is not subject to any inquiry or decision as to whether the properties is a waqf property or not and therefore, under the aforesaid circumstances the provisions of Section 43 of the Waqf Act does apply to the facts of the case on hand," the court said.

The court said that the communication made by the CEO of the Waqf Board dated 27/04/2011, cannot be said to have been arrived at "by thorough inquiry" as claimed by the appellant under the provisions of Section 40 of the Waqf Act, 1995. The court said that it was nothing but a communication and the letter dated 27/04/2011 did not give any  indication as to the inquiry conducted by the then CEO.

"Therefore, the status of the trust remained the same as it falls under the provisions of Section 43 of the Waqf Act, 1995 and it has rightly been held by the Waqf Board while issuing the certificate dated 28/11/2017 and as confirmed by the Tribunal that applicant – Muslim Kuza Farosh Jamat Trust is a Waqf / Trust as fall within the jurisdiction of the Gujarat State Waqf Board as reflected from the documents produced by the parties where-from the notices issued by the Gujarat State Waqf Board, Gandhinagar demanding only contribution on a change report came to be considered by the Gujarat State Waqf Board by the appellant would negate the very contention raised by the appellant," the court held. 

The appellant argued that the order passed by the Waqf Tribunal is without jurisdiction as the key finding of the learned Tribunal rests on while exercising the jurisdiction under Section 43 of the Waqf Act which applies only in cases where there is already waqf registered under the Waqf Act, 1954. However, in the facts of the present case, in view of the order passed by the CEO dated 27/04/2011 and the challenge made by the appellant, the appellant – Trust – Jamat cannot be said to have effect of registration since inception e.g. registration under the Waqf Act, 1954.

Referring to Section 40 of the Waqf Act the court noted that the Board on its own may collect information with regard to the property for which it has reason to believe a Waqf property or the property of any trust or the society registered in pursuance of the Indian Trusts Act, 1882 or under any other Act and while taking these measures.

If an issue arises on whether the property is a Waqf property or not, then Board may after thorough inquiry decide the issue and such decision of the Board is considered to be final unless the same is revoked or moved by the Tribunal. However, as per the proviso, the Notice to the concerned person/s are required to be given.

The court noted that on account of the enactment of the Waqf Act, 1995 and as per the provisions of Section 43 of the Act, all Waqfs which were earlier under any law including the Bombay Public Trust Act were registered were deemed to be registered under the Waqf Act and thereby all such trust which also falls under “B” category under the Bombay Public Trust Act were transferred to the Waqf Board and accordingly the appellant – trust also came to be transferred therein.

"Much has been emphasized by the learned Advocate for the appellant that the Tribunal has no authority, power or jurisdiction to decide the issue as to whether the appellant – Trust – Jamat is a waqf or trust. However, considering the very stand as to the jurisdiction raised by the appellant and decided by this Court in the aforesaid CRA, the appellant has chosen to approach the Tribunal; instead thereof challenging the common order passed in the aforesaid CRA," the court held. 

The court said that the appellant participated in the proceedings before the Tribunal and it cannot now say that the Tribunal has no authority as the Tribunal has not ordered any inquiry required to be conducted under Section 40  Waqf Act.

The appeal was dismissed. 

Case title: MUSLIM KUZAFAROSH JAMAT THROUGH PRESIDENT v/s  GUJARAT STATE WAQF BOARD & ORS.

R/FIRST APPEAL NO. 3498 of 2025

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