Wakfs – Wakf Act, 1995 – Bombay Public Trust Act, 1950 – Public Trust vis-à-vis Wakf – Distinction between a public Trust and a Wakf – Discussed – Held: What was once a Wakf before the 1950 Act, if it is registered under the 1950 Act, with the commencement of the Act, such a public Trust would necessarily come under the ambit of the Wakf Act, 1995 – There are public Trusts registered under the 1950 Act which are in fact, Wakf which fall under s.28 of the 1950 Act – They must come within the regime of the Central Act viz., the Wakf Act, 1995 – Conversely, a Muslim Public Trust registered under the 1950 Act need not be a Wakf under the Act – It would be certainly contrary to the unbroken line of Supreme Court judgments which contemplate such a division between two categories to paint all Muslim public Trusts with the same brush and glean them as Wakfs – While it is open to a Muslim to create a Wakf and ordinarily, there would be the prospect of a reward for dedicating property by way of Wakf, it would be entirely left to a Muslim to take a decision as to whether he should adopt the device provided by an English Trust or make the familiar dedication by way of Wakf – As to whether an institution is a Wakf or a public Trust is a mixed question of fact and law – This means it becomes a duty of whosoever upon whom the duty falls, to ascertain whether it is either and to carefully attend to the terms of the document by which the Trust is evidenced if there is such a document and find the facts and thereafter the law must be applied – It is a matter to be tested on a conspectus of various features and after complying with the law as to whether what is registered as a public Trust is, in fact, a Wakf or not – All public Trusts which have been registered by way of a deeming provision u/s.28 of the 1950 Act will necessarily have to be treated as Wakfs – This is on the principle that once a Wakf is created unless it be a case where the title is extinguished by way of exercise of power of eminent domain by the State, the title of the Almighty though by implication cannot cease.
Wakf Act, 1995 – Wakf – Constituent elements of – Held: The first indispensable requirement is that there must be dedication – Dedication must be by a person who is the owner of the property – Dedication must be permanent – Permanent means that it cannot be for a period of time; it must be perpetual – A Wakf can be created by a Will also – When a Wakf is created by a Will it is open to the Wakif to revoke the will prior to his death – Save as aforesaid, a Wakf cannot be revoked – A Wakf, again meaning the property which is the subject matter of a Wakf cannot be alienated – The object of the Wakf must be such that it is approved by the Muslim law – The object must be religious, pious or charitable – It is not a concept of piety religiousness or the charitable nature in the eyes of the entire world but what is in consonance with Muslim law – There is no prescribed mode of dedication – A Wakf need not be in writing – As far as declaration is concerned, it can be inferred from conduct – A Wakf, as defined includes Wakf by user – A Wakf can be created for attaining a public utility – The public utility must, however, be for an object sanctioned by Muslim law – Subject to said conditions, irrespective of whether the beneficiaries are Muslims or not, there could be a valid Wakf .
Wakf Act, 1995 – s.4 – Survey under the Act – Held: The making of survey is not a mere administrative act but it is to be informed by a quasi-judicial inquiry – Also, the surveyor has the power to find whether a particular institution is a Wakf. Constitution of India, 1950 – Art. 226 – Power under – Exercise of – Effect of alternate remedy – Held: Article 226 confers a jurisdiction or a power on the High Courts – It is a power under the Constitution – While a statute may provide for an alternate forum to which the High Court may relegate the party in an appropriate case, the existence of an alternate remedy by itself cannot exclude the jurisdiction of the High Court under the Constitution.
Partly allowing the appeals, the Court
HELD: 1. As to whether an institution is a Wakf or a public Trust is a mixed question of fact and law. This means it becomes a duty of whosoever upon whom the duty falls, to ascertain whether it is either and to carefully attend to the terms of the document by which the Trust is evidenced if there is such a document and find the facts and thereafter the law must be applied. The paramount feature which perhaps would figure in this inquiry would be the properties being vested either by a Trust, in the case of a Trust, for a trustee to deal with the property as such. Whether there is no power of sale, or inalienability may be a factor which may tilt the matter in favour of the institution being a Wakf provided other features which are indispensable are also present. [Para 142][567-C-E]
2. When the State Board of Wakfs has, in law, any reason to believe that any property of any Trust registered under the Indian Trusts Act, 1882 or any society registered under the Societies Registration Act 1860 or the property of any Trust registered under any other law, is wakf property, the Board is given certain powers and responsibility. The Board is clothed with the power notwithstanding anything contained in any of those laws, to hold an inquiry in regard to the said property. The said property must be understood to be a property of any Trust which is registered in this case under the Bombay Public Trust Act because Bombay Pubic Trust Act would qualify as any other law. The holding of the inquiry is to be preceded by a notice of the proposed action to be given to the authority by whom the Trust or the Society has been registered. It is not to be confused with the Trust or the Trustees. It means that the Wakf Board must give notice of the proposed action to the Charity Commissioner as it is the authority under the 1950 Act, who registered or registers a public Trust under Section 18 of that Act. [Para 167][582-C-E]
3. When parliament made the Act in 1995, it was aware that it would repeal the Wakf Act 1954. Section 40 of the Wakf Act is a provision which corresponds to Section 27 of the earlier Act. Parliament must be presumed to know the laws which are on the statute book. In fact, Parliament must be presumed to be aware of all necessary facts which would give life to a law and make it workable, fair and reasonable. Parliament must, therefore, be assumed to know that laws like the Bombay Public Trust Act were on the statute book. It must be aware that the definition of public Trust such as is contemplated under the Bombay Public Trust Act took within its sweep Wakfs. Section
28 of the Bombay Public Trust Act, in fact, comes to mind. Section 28 of the 1950 Act contemplated that institutions which were Wakfs before the enactment of the 1950 Act would be deemed to be public Trusts under Section 28 and would be treated as such under the said law. As far as other public Trusts which are registered under the 1950 Act, no doubt, bearing in mind the fact that there is a distinction between a Trust and a Wakf, it is a matter to be decided on the facts of each case as to whether what is ostensibly a Trust within the meaning of 1950 Act is in substance a Wakf. [Para 169][583-A-D]
4. As far as Section 43 is concerned, it mandates for deemed registration of Wakfs. Its meaning may be culled out. It mandates that notwithstanding anything contained in the chapter, where any wakf has been registered before the commencement of this Act, under any law for the time being in force, there is no need to register the same under the provisions of this Act. Such registration is to be deemed to have been made under the Act. Since under Section 2 of the Act, the Act applies to every Wakf which is created, whether before or after the Act came into force, it means that whatever is Wakf as defined in the Act which is made at any point of time, be it before or after 01.01.1996 must be registered under the Act [See Section 36]. Registration is intended to bring Wakfs under the close scrutiny of the competent authority, be it the Board or the executive officers. The whole history of the legislation of Wakfs reflects the perception of the legislature that property which is dedicated to the Almighty for charitable, religious and pious purposes should be protected. The protection must be extended against the Mutawallis and others who may deal with the property and thereby, completely destroy the very original purpose of the founder. What would be used for public welfare, be it even of sections of a community for certain cases, would all be covered thereunder as provided in the Act. [Para 172 and 174][583-H; 584-A-B, C-E]
5. Section 112 of the Act provides for repeal. There is not much controversy that Section 112 by virtue of the repeal it provides for would effect a repeal of the provisions of the 1950 Act insofar as it relates to public Trusts which are Wakfs. The Charity Commissioner, in effect, when it issued clarification which was challenged before the High Court also initially only stated that according to Section 43 of the Act Wakfs which are registered as Public Trusts should not be tried under the 1950 Act. There is a distinction between a Trust and a Wakf. It is a matter to be tested on a conspectus of various features and after complying with the law as to whether what is registered as a public Trust is, in fact, a Wakf or not. No doubt, all public Trusts which have been registered by way of a deeming provision under Section 28 of the 1950 Act will necessarily have to be treated as Wakfs. This is on the principle that once a Wakf is created unless it be a case where the title is extinguished by way of exercise of power of eminent domain by the State, the title of the Almighty though by implication cannot cease. What was once a Wakf before the 1950 Act, if it is registered under the 1950 Act, with the commencement of the Act, such a public Trust would necessarily come under the ambit of the Wakf Act, 1995. [Para 177 and 178][585-C-G; 586A-B]
6. It is the appellant’s case that Wakf properties need to be rigorously and lawfully regulated. However, there are public Trusts registered under the 1950 Act which are in fact, Wakf which fall under Section 28 of the 1950 Act. They must undoubtedly come within the regime of the Central Act viz., the Wakf Act, 1995. The converse also must be stated and highlighted viz.; a Muslim Public Trust registered under the 1950 Act need not be a Wakf under the Act. It would be certainly contrary to the unbroken line of judgments of this Court which contemplate such a division between two categories to paint all Muslim public Trusts with the same brush and glean them as Wakfs. [Para 183][587-G-H; 588-A-B]
Nawab Zain Yar Jung (Since Deceased) and Others v. Director of Endowments and Another AIR 1963 SC 985 : [1963] 1 SCR 469; Board of Muslim Wakfs, Rajasthan v. Radha Kishan and Others (1979) 2 SCC 468 : [1979]
2 SCR 148 and Radha Krishan Industries v. State of H.P. (2021) 6 SCC 771 – relied on.
State of Kerala & Ors. v. Mar Appraem Kuri Co. Ltd. & Another (2012) 7 SCC 106 : [2012] 4 SCR 448;
Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2017) 13 SCC 174 : [2017] 5 SCR 294; Ramjas
Foundation and Another v. Union of India and Others (2010) 14 SCC 38 : [2010] 15 SCR 364; Mohd. Khasim v. Mohd. Dastagir and Others (2006) 13 SCC 497 : [2006] 10 Suppl. SCR 1157; The Kassimiah Charities Rajagiri v. The Madras State Wakf Board 1963 SCC Online Mad 132; Nawab Zain Yar Jung (Since
Deceased) and Others v. Director of Endowments and Another AIR 1963 SC 985 : [1963] 1 SCR 469; Wali Mohammed (Dead) by LRs. v. Rahmat Bee (Smt.) and Others (1999) 3 SCC 145 : [1999] 1 SCR 852 - referred to.
The Kassimiah Charities, Rajagiri represented by its hereditary trustee Sri. R.E.M.S. Abdul Hamid v. The Madras State Wakf Board, represented by its Secretary AIR 1964 Madras 18; Abul Fata Mahomed v. Russomoy (1894) 22 Cal. 619 : 22 I.A; Income Tax Special Purposes Commissioners v. Pemsel (1891) A.C. 531; Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar and others AIR 1922 Privy Council 123; Kachchh Wakf Board & Anr. v. Kachchh Memon Jamat & Ors. 1997 SCC Online Guj 220 - referred to.
Baker, Re [Baker, Re, Nichols v. Baker (1890) 44 Ch D 262 (CA); Julius v. Lord Bishop of Oxford (1880) 5 AC 214 - referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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