All Muslim Public Trusts Not Waqf: Supreme Court

The Supreme Court on Thursday clarified that all Muslim public trusts will not amount to a "waqf".It said that there is a difference between 'waqf' and a public trust created by a Muslim. Hence, the Court "cannot paint all Muslim public trusts with the same brush as treat them as waqf".The Supreme Court had on Wednesday began dictating its order 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 was dictating its order on the Maharashtra state Waqf Board's appeal against the 2011 decision of the Bombay High Court where 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. 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."The issue relating to waqf properties being rigorously and lawfully regulated, if there are public trusts registered under the Bombay Public Trusts Act which are in fact waqfs and which don't fall under section 28 of the Trust Act, they must undoubtedly come under the regime of central Act, the 1995 Waqf Act. The converse also must be stated and highlighted, namely, a muslim public trust, registered, need not be a waqf under the Act", held the bench.Discussing the constituent elements of the waqf, the bench said, "From definition in the Waqf Act, the indispensable requirement is that there must be a dedication. The dedication must be done by the one who is the owner of the property. It must be permanent; permanent means it cannot be for a period of time, it must be perpetual. A waqf cannot be revoked. The property which is the subject matter of waqf cannot be alienated. The object of waqf must be such that is approved in Muslim law as religious , pious or charitable. It is not the concept of piety or reliousness or charitable nature of the entire world but what is so considered under Muslim law. There is no prescribed mode of dedication, it need not be in writing. If a waqf can be created by attaining and promoting a public utility, the public utility must however be for an object sanctioned in muslim law, and subject to the said condition, whether the beneficiary is Muslim or not, there could be a waqf...Even in the case of a public charitable trust created by a Muslim, the intention of the muslim being to provide for activities for the general welfare and which are secular and for, across the board, all human beings irrespective of religion, then the dichotomy between public trust and waqf would cease to exist".The bench further observed, "This court has maintained the distinction between a public trust and a waqf. It would be left entirely to the muslim to take a decision as to whether he should adopt the course of a trust or make the dedication by way of waqf. The concept of trust is not unknown to muslims, waqf is described as a trust. A trust need not be perpetual and can be revoked under certain conditions. Atleast under the Bombay Public Trusts Act, sale of the property of a trust is permissible, though only by the previous sanction of the Charity Commissioner. While in case of a waqf, upon dedication, there is implied transfer of property in the Almighty and alienation is impermissible in law"."We are of the clear view that the law declared in the decision of this court that leaves it open to a muslim to create a public trust or a waqf remains undisturbed.As to whether an institution is a waqf or a public trust is a mixed question of fact and law. It becomes the duty of whosoever is required to ascertain which of the two it is to carefully attend to the terms of the documents and find the facts, and thereafter the law must be applied. The paramount feature which perhaps would matter in this inquiry would be that the property has been vested by the author of the trust, in the case of a trust, on the trustee; whether there is a power of sale- inalienability will be a factor which would tilt in favour of the institution being a waqf provided the other indispensable features are also present...It is a matter which must be considered with reference to the document, conduct of the parties and other relevant aspects", said the bench.Partly allowing the appeals, the bench held that though there would be implied repeal of the Bombay Public Trusts Act so far as waqfs are concerned, the passage of the 1995 Waqf Act would not affect the power of the authority in respect of public trusts registered under the Bombay Public Trust Act which are not waqfs- "Section 112 of the Waqf Act provides for repeal. We would take the view that there is a distinction...

All Muslim Public Trusts Not Waqf: Supreme Court

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All Muslim Public Trusts Not Waqf: Supreme Court

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