"How Careless The Government Has Been": Supreme Court Questions Maharashtra Govt. On The Constitution Of Waqf Board

The Supreme Court on Tuesday resumed hearing 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.Last week, the bench of Justices K. M. Joseph and Hrishikesh Roy had orally suggested to the counsel in the matter an alternative route for resolving the dispute- asking if the Maharashtra state Waqf Board can be left free to exercise its full power under section 40 of the 1995 Waqf Act with regard to the so-called trusts which, according to the Board, are hiding under the identity of a trust but are in substance a waqf, by undertaking an inquiry after giving individual notice to all of them.On Tuesday, Senior Advocate K. K. Venugopal for the Maharashtra state Waqf Board submitted, "We really need to find a solution that justice is done to both those who claim it to be a public trust and to the board. Your Lordships need to realise that a large number of lands have been classified as public trust and they have been transferred by the charity commissioner, huge buildings have come up on that, and therefore, now the question is how do you ensure that so far as the board is concerned, it is recouped-either the land comes back or today's value of the land is given. I think it will be unfair if, for 20-30 years, the lands have been transferred and buildings have come up on that and now it is ordered to demolish the buildings. In such a case, a just and fair solution would be to call upon them to pay the market value of the land as of today so that the funds of the trust are recouped, otherwise the authors of the trust will have to be to be asked to take away the material etc"Bench: "What you are saying is based on a lot of assumptions. You are assuming that the land is waqf land. Your statementMr. Venugopal: "These trusts have been passed from heir-to-heir for hundreds of years. The present trustees do not have any real interest in the purpose for which the trust has been created. This land has appreciated in value tremendously. In 1890, the land cost one lakh, today, it costs 1000 crores or so. Many of the lands are in very valuable areas like Colaba. If it is a public trust, then the heirs will transfer it at very high profit. Because they were never the authors of the trust and they are not interested in the purpose of the trust. And then they get this money, they keep it and use it. They will not invest that money in a similar purpose. So someone has to investigate all this, find out as to what has been done with these properties. An enquiry, after notice to the parties concerned- the beneficiaries, authors, authorities, trustees, has to be done to find out if it is really waqf property. And some of the lands are vast lands. In 1800s, vast lands were being dedicated as trusts. It could be trust, it could be waqf. Some solution has to be found. And section 40 (of the 1995 Waqf Act) is the real answer..."Section 40(1) of the Waqf Act states that the Board may itself collect information regarding any property which it has reason to believe to be waqf property and if any question arises whether a particular property is waqf property or not or whether a waqf is a Sunni waqf or a Shia waqf it may, after making such inquiry as it may deem fit, decide the question. Section 40 (2) says that the decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the Tribunal, be final. Section 40(3) provides that where the Board has any reason to believe that any property of any trust or society registered under any law is waqf property, the Board may hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is waqf property, call upon the trust or society either to register such property under the Waqf Act as waqf property or show cause why such property should not be so registered.The bench on Tuesday also criticised the state of Maharashtra for having been "careless" in the constitution of the Board.Bench: "The actual constitution of the board is given under section 14 (which says that the number of elected members of the Board shall, at all times, be more than the nominated members). You have nominated four members- one is Dilip Kumar, a film star and a Rajya Sabha member, another is Shabana Azmi, again a Rajya Sabha member, the third is somebody who is also nominated. Now how do you fit in the minimum category by 13.11.2003, on which the first list of waqfs comes out, for discharge of duty under section 5(2), the requirement being a correctly-constituted board? Because the minimum is seven and the seven have to be drawn from distinct categories. What do you say about there being no mutawalli at all? The government could have nominated one, there is a provision in section 14(3). You may say that a vacancy will not make it invalid, but can you stretch it to the extent of being in violation of the diktat that you ...

"How Careless The Government Has Been": Supreme Court Questions Maharashtra Govt. On The Constitution Of Waqf Board

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