Can Waqf Board Exercise Full Power w.r.t. So-called Trusts, By Inquiry After Individual Notice to All?: SC Suggests

The Supreme Court on Thursday 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, 1995The bench of Justices K. M. Joseph and Hrishikesh Roy orally suggested to the parties an alternative route for resolving the present controversy.The bench said to the advocates for the appellant-Maharashtra state Board of Waqfs, "Subject to our views on the validity of the incorporation of the board, as to the manner in which the survey has been conducted, there is a problem...there is a lock stock and barrel acceptance of whatever the charity commissioner makes over to you and treating it as a waqf and then saying that you go to the waqf tribunal. There is patent abdication of your responsibility under the law and then you drive them to the tribunal. On the other hand, if you do everything and make a proper enquiry, given the proper distinction, and then also if they have to go to the tribunal, then there is no difficulty"Continuing, the bench explained, "So the other way of doing it is that, even assuming that this list ('List of Waqfs' published by the appellant-board while exercising its power under section 5(2) of the Waqf Act) is defective, the board retains the power under section 40(3) of the Waqf Act (which says 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), even with regard to the properties of so-called trusts registered under any law. If the board is left free to exercise its full power with regard to the so-called trusts which, according to you, are hiding under the identity of a trust but are in substance a waqf, then the board can undertake this inquiry after giving individual notice to all of them. Which means the board retains its control. We can do it today. We don't need to contemplate more. That would cut it short"Bench: "The suggestion is that we may not agree with the High Court with regard to the theory that the survey should be completed first and then the board should be constituted. Further, we may not agree that there should be, mandatorily in all circumstances where there exist 15% Shia, a separate board. That we may not agree with. But even then three issues will arise, namely, the list being defective, the survey being defective, and this lock, stock and barrel accepting the report of the charity commissioner and treating all as waqf. Because there is an order passed by this court in 2012, a certain position is holding the field till today. If that is on the basis of the bifurcation, the number of institutions that have been treated as waqfs, the number of institutions that are being treated as trust, we will maintain that position, and we permit the waqf board to exercise its full power. It has its power, it doesn't need our nod for it"Noting that the difference between Trusts and Waqfs appears to have been overlooked and the High Court has passed orders without taking into consideration the fact that the Charity Commissioner would not ordinarily have any jurisdiction to manage the Waqf properties, on May 11, 2012 the Apex Court had restrained all those in management of the Waqf properties from alienating and/or encumbering the Waqf properties during the pendency of the proceedings before this Court."In relation to Waqf properties, as distinct from Trusts created by Muslims, all concerned, including the Charity Commissioner, Mumbai, shall not permit any of the persons in management of such Waqf properties to either encumber or alienate any of the properties under their management, till a decision is rendered in the pending Special Leave Petitions," the Court had further ordered.Senior Advocate K. K. Venugopal, for the appellant-Board: "So far as the section 4(5) is concerned (which provides that if, during the inquiry by the survey commissioner, any dispute arises as to whether a particular waqf is a Shia waqf or Sunni waqf and there are clear indications in the deed of waqf as to its nature, the dispute shall be decided on the basis of such deed), it requires only the looking at the document, that is the trust deed, whether it satisfies the definition of a waqf or not..."Bench: "There is a problem with that. Waqf does not require a deed. You can have a waqf which is an oral waqf. What is required is a dedication. In the case of a trust deed, though 'trust' is not defined in the Public Trust Act, but 'public trust' has been defined. As per that, 'trust' can arise by constructive means also..."Mr. Venugopal: "It is a very rare case that there would not be a deed. It...

Can Waqf Board Exercise Full Power w.r.t. So-called Trusts, By Inquiry After Individual Notice to All?: SC Suggests

LIVELAW NEWS NETWORK

Tags