Wakf- Community Members Want To Use Secular Law, It Can't Be Prohibited; Public Trust Act Will Apply to Muslim Public Trusts: Dr. Singhvi To Supreme Court

The Supreme Court on Wednesday 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.The bench of Justices K. M. Joseph and Hrishikesh Roy heard Senior Advocate Abhishek Manu Singhvi, for 3 respondent-trusts.Dr. Singhvi: "The issue no. 1 is whether a Muslim is capable of creating a public trust not being a waqf and whether such Muslim public trust is registered under the Public Trust Act. You cannot have a bootstrap argument saying that because it is picked up by the waqf board, whether it is waqf or trust, simply treat it as waqf. A jurisdictional question cannot be avoided in that manner. Every waqf is a trust of sorts but must obviously be created by a Muslim, but every trust even if created by a Muslim cannot be a waqf...the second issue is whether the Maharashtra Public Trusts Act is repealed by the Waqf Act. The answer is to the extent you are a waqf, it is repealed, but if you are a trust, no, it cannot be. You cannot put apples into a box of oranges and oranges into a box of plums. The repeal will apply to the extent of a waqf. Nobody is against applying the waqf act to a waqf, but not to a trust"Dr. Singhvi: "Every waqf is a trust created by a Muslim, but every trust created by Muslim is not a, need not be a waqf. That is the heart of the case. Waqf properties are dedicated to God and the dedicater does not retain any title over the property. As far as trusts are concerned, the properties are not vested in God. Some of the objects of such trusts are for running charitable organisations such as hospitals, shelter homes. Although it is recognised as pious, that does not divest the creator of the trust of the properties of the trust unless he relinquishes such title in favour of the trust or trustees. This is my basic submission which is based on 6-7 earlier judgments...The creator of a public trust can also be its beneficiary, which is not so in waqf. That is the most important difference"Dr. Singhvi: "As per section 2(13) of the Trust Act, 'Public Trust' means an express or constructive trust for either a public, religious or charitable purpose or both and includes a temple, a math, a wakf, church, synagogue, agiary or other place of public religious worship, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered. As per 2(19) of MPT Act, 'Waqf' means a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable. This was the position prior to the Waqf Act coming in. If you are a genuine waqf, you go to the Waqf Act. It is nobody's case that the Trust Act charity commissioner will start dealing with it. Waqf is defined at section 3(r) of the Waqf Act. You cannot, by misinclusion or misdeclaration of a non-waqf as waqf, bring in something where the condition precedent of entering the door is 3(r)...Suppose the community member wants to apply and use a secular law, you cannot say it is prohibited unless there is something special in the customary law...Yesterday, Mr. Venugopal (Senior Advocate K. K. Venugopal for the Maharashtra state Board of Waqfs, the appellant) said that the Waqf Act is an all-India Act. But can it deal with the issue of a person claiming that I am a fire temple or a Hindu temple but you declare me to be a waqf? You cannot say that because you have been declared a waqf, so you must go to a waqf board. If you are a Hindu Temple, can you be asked to go and argue your case before the waqf tribunal? If the law is dealing with temples or 'agyaris', it cannot be 'corresponding law' (so as to be repealed by the Waqf Act). It will be repealed where it is established that it is a waqf; the Public Trust Act will apply for trusts, MPT will have jurisdiction over Muslim public trusts"The submissions were then made on if the appellant-Board was validly constituted and if its composition was valid. The High Court had quashed the constitution of the Maharashtra state Board of Waqfs on the ground that 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 waqfs existing in the state. On Tuesday, Mr. Venugopal also informed the Court that Board of Wakfs is not dependant on the report of the Survey Commissioner of Wakfs; that it is not a condition precedent for the establishment of Board of Wakfs. He added 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 Waqf 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...

Wakf- Community Members Want To Use Secular Law, It Can't Be Prohibited; Public Trust Act Will Apply to Muslim Public Trusts: Dr. Singhvi To Supreme Court

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