Every Public Trust Need Not Be A Wakf, Says Supreme Court While Hearing Maharashtra State Board Of Wakfs' Appeal

The Supreme Court of India on Tuesday orally opined that the Maharashtra State Board Of Wakfs's concern should be about protecting the Waqfs and not dealing with other public trusts. "The Wakf Board will not have jurisdiction over a public trust", a Bench of Justices KM Joseph and Hrishikesh Roy further remarked orally while considering a batch of 57 SLPs including the Maharashtra State Board Of Wakfs. In July, the Court had agreed to decide on the issue as to whether every charitable trust established by someone professing Islam is necessarily a waqf-on the contours of the Bombay Public Trust Act 1950 and Waqf Act, 1995. Appearing for the Maharashtra State Board of Wakfs, Former Attorney General for India and Senior Advocate KK Venugopal largely made the following submissions today: That the High Court, in the impugned judgment had directed for application of the Bombay Public Trusts Act, 1950 to all the Muslim Public trusts till the incorporation of wakfs under the Waqf Act, 1950. It was impossible for the High Court to grant jurisdiction to the Charity Commissioner to continue supervising Muslim Public Trusts including the registered Wakfs. The definition of Waqf in the Wakf Act, 1950 was wide when compared to the Bombay Public Trusts Act, 1950. On the principle of repugnancy under Article 254 of the Constitution, the Waqf Act will override the Public Trusts Act. It may be recalled that Venugopal had earlier raised a complaint before the former CJI NV Ramana that the Wakf Board had attempted to remove him as the lawyer (while he was the Attorney General) and had sought contempt action against the Board.Venugopal, at the start of the hearing, threw light on why the Wakf Act, 1995 was enacted. "The Act repealed the 1954 Act and was enacted to provide for better administration of Wakfs. The Act is a complete code dealing with the administration and supervision of Wakf and Wakf properties." The Act provides for survey of Wakfs existing during the commencement of the Act by the Survey Commissioner of the Wakf. The Act also provides for a Board of Wakfs whose primary duty is to examine and notify the list of Wakfs prepared by the Survey Commissioner. The Act has also established a Wakfs Tribunal to decide disputes relating to Wakf and Wakf properties. During the hearing, he said, "Authorities are set up under the Act to settle the issue if a property is Waqf property or not…..Therefore, first would be the identification by the Board. If Board decision disputed, then civil court." It was also pointed out that a very large section of Waqfs excluded by definition of Waqf as the definition in the Bombay Trusts Act, 1950 definition is different from the Wakq Act, 1954. The High Court had quashed the constitution of the Maharashtra State Board of Wakfs on the ground that the on the date of constitution of the Board by the State government there was no survey report as to the number of Shia or Sunni Wakfs existing in the State. "That as per the High Court firstly Survey report will have to be completed only thereafter Wakf Board can be incorporated. In 90% of the States, survey report is yet to be completed." Venugopal also informed the Court that Board of Wakfs is not dependant on the report of the Survey Commissioner of Wakfs. It's not a condition precedent for the establishment of Board of Wakfs, he submitted while adding that survey is simply the process of identifying the subjects which would be controlled and supervised by the Wakf Board. He also took the Bench through section 5 of the Act which requires the State government to forward the report of the Survey Commissioner of Wakfs to the Board, which is required to examine and publish the report as a list of Wakfs. The High Court had directed that until survey is completed and the Wakf Board is constituted, the provisions of the Bombay Public Trusts Act, 1950 would continue to apply to all the Muslim Public Trusts. It was submitted that the High Court had failed to appreciate that the Wakf Act, being a special Act would prevail over the State legislation of general nature. Venugopal also objected to the High Court quashing the 'List of Wakfs' published by the petitioner while exercising its power under section 5(2) of the Wakf Act. The senior advocate submitted that this was because of an erroneous reading of the 9th report of the Joint Parliamentary Committee. "JPC finds that there was an under inclusion of Waqfs. This was accepted by the State. Whatever shown in the list, they cannot be treated as public trusts. Whether you set aside and restore it, it makes no difference. Prima facie, these are Waqfs. Charity Commissioner (under the Bombay Trusts Act) has no jurisdiction to deal with the matter. He should have left it to the Board and the Tribunal (under the Wakf Act)." It is wholly illegal for the charity...

Every Public Trust Need Not Be A Wakf, Says Supreme Court While Hearing Maharashtra State Board Of Wakfs' Appeal

Rintu Mariam Biju

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