1 WP2906.04
Kambli
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2906 OF 2004
...
1.Shaikh Yusuf Bhai Chawala
2.Mudreka Bhai Saheb T.
3.Shaikh Yusuf Bhai Qasamjee
4.Shaikh Ismail M.F.Potia
5.Shaikh Abdul Tayeb Shaikh Qasimji
…Petitioners
v/s.
1.State of Maharashtra
2.Maharashtra State Board of Wakfs
3.The Settlement Commissioner
and Director of Land Records,
Maharashtra State
4. Shahjzada Qaid Johar Bhai
Saheb Ezuddin Saheb
5.Mustafa Bhai Saheb Safiyuddin
6.Shahzada Ali Asgar Bhai Saheb
Kalimuddin
7.Shaikh Ebrahim A.K.Faizullabhoy
8.Shaikh Mansoor Bhai M.J.Terai …Respondents
WITH
WRIT PETITION NO.899 OF 2011
…
1.Mrs.Zainub Moriswala
2.Mr.Zulfikar Moriswala
3.Mr.Yusuf Nagarwala
Trustees of Rehmatbai Widow
of Noorbhoy Jeewanji Morishwalla
Charity Trusts …Petitioners
v/s.
::: Downloaded on – 09/06/2013 17:47:15 :::
2 WP2906.04
1.State of Maharashtra
2.Maharashtra State Board of Wakfs
3.The Charity Commissioner,
4.The Settlement Commissioner
and Director of Land Records
5.The Chief Executive Officer …Respondents
WITH
WRIT PETITION (L) NO.357 OF 2011
…
1.Shaikh Yusuf Bhai Chawala
2.Shaikh Ismail M.F.Potia
3.Shaikh Mansoor Bhai M.J.Terai …Petitioners
v/s.
1.State of Maharashtra
2.Maharashtra State Board of Wakfs
3.The Charity Commissioner,
4.The Settlement Commissioner
and Director of Land Records …Respondents
…
Mr.Y.H.Muchhala, Sr.Advocate with Mr.Sagheer Khan
and Mr.Javed R. Patel and Mr.Vaibhav Nagvekar i/b
Judicare Law Associates for the Petitioners in
Writ Petition (L) No.357 of 2011 and Writ
Petition No.2906 of 2004.
Mr.Javed Shaikh, Special Counsel with
Mr.R.M.Momin for Wakf Board.
Mr.Milind Sathe, Sr.Advocate with Ms.Jyoti Sinha
i/b M/s.Negandhi, Shah & Himaytullah for
Petitioners in Writ Petition No.899 of 2011.
Mr.Ravi Kadam, Advocate General with
Mr.S.R.Nargolkar Addl.G.P., Ms.Geeta Shastri,
Mr.Milind More for Respondent No.1 in Writ
Petition No.2906 of 2004, Respondents Nos. 13 &
14 in WP (L) No.357 of 2011 and Respondents Nos.
1 & 3 in WP No.899 of 2011.
…
::: Downloaded on – 09/06/2013 17:47:15 :::
3 WP2906.04
CORAM: D.K.Deshmukh &
Anoop V. Mohta, JJ
DATED: 21st September, 2011
JUDGMENT: (PER D.K.DESHMUKH, J.)
1. The subject matter of all these
Petitions is the same namely challenge to the
incorporation ig of Respondent No.2/ Maharashtra
State Board of Wakfs and things connected
therewith. Therefore, these petitions can be
conveniently disposed of by a common order.
2. The Petitioners in Writ Petition No.
2906 of 2004 are Muslims belonging to Shia Fatemi
Ismaili Tyebia Sect of Islam. They follow Shia
Fatimid Ismaili Tayebi Schol of Muslim Law.,
which Shia School known as Fatimid Law. In
short, they are Shia Muslim. Petitioners Nos. 1
to 3 are trusttes of “Sir Admji Peerbhoy
Santorium” created by a Scheme settled by this
court by its order dated 16-6-1931 in Suit No.
::: Downloaded on – 09/06/2013 17:47:15 :::
4 WP2906.04
1560 of 1927. The said Trust is also registered
as a Public Trust under the Bombay Public Trust
Act. The Petitioners Nos. 4 & 5 are trustees of
“Anjuman-i-Null Bazaaar Chhabdi Bazaar Niaz
Hussein Charitable Trust, which is registered as
a public Trust under the Bombay Public Trust Act.
3. The Petitioners in Writ Petition No.899
of 2011 are also Dawoodi Bhora Muslims and they
are trustees of Rehmatbai widow of Noorbhoy
Jeewanji Morishwalla Charity Trusts registered
under the Bombay Public Trust Act.
4. The Petitioners in Writ Petition (L)
No.357 of 2011 are Muslims belonging to Shia
Fetemi Ismaili Tyebia sect. The Petitioners in
this petition are trustees of Sir Adamji Peerbhoy
Sanatorium, referred to above as also Anjuman-i-
Null Bazzaar Chhabdi Bazaar Niaz Hussein
Charitable Trust, referred to above.
5. In Writ Petition No.2906 of 2004 the
::: Downloaded on – 09/06/2013 17:47:15 :::
5 WP2906.04
Petitioners are challenging the Notification
dated 4-1-2002 issued by the Government of
Maharashtra. They are also seeking a directions
to the Government of Maharashtra to conduct a
fresh survey of Wakfs in the State of
Maharashtra. They also challenge the notification
dated 13-11-2003 issued by the Wakfs Board,
whereby the list of Wakfs was published.
.
In Writ Petition No.899 of 2011, the
Petitioners challenge the Circular dated
24-7-2003 issued by the Charity Commissioner of
State of Maharashtra stating therein that in view
of the provisions of Section 43 of the Wakf
Act, the Wakfs which are registered as Public
Trusts would cease to be governed by the
provisions of the Public Trust Act. It is there
case that because the incorporation of the Wakfs
Board by Notification dated 4-1-2002 is itself
invalid and because they are not Wakfs within
the meaning of Wakfs Act, they continue to be
governed by the provisions of the Bombay Public
::: Downloaded on – 09/06/2013 17:47:15 :::
6 WP2906.04
Trust Act.
. The Petitioners in Writ Petition (L)
No.357 of 2011 challenge the Notification dated
20th October, 2010 issued by the State of
Maharashtra for resurvey of the Wakfs in the
State of Maharashtra. They also claim a direction
that the list of Wakfs dated 13-11-2003 and
dated 30-12-2004
ig stand rectified as per the
finding of the Five Members Committee. They also
seek a direction to the Charity Commissioner that
the Charity Commissioner should continue to
supervise the working of the Trusts of which they
are trustees.
6. The aforesaid reliefs are claimed by
the Petitioners in these three petitions in
following factual background:
. The Parliament enacted the Wakf Act,
1995 (hereinafter referred to as “the Act”). The
said Act came into force on 1st January, 1996. On
::: Downloaded on – 09/06/2013 17:47:15 :::
7 WP2906.04
1st December, 1997 the State Government issued a
Notification in exercise of its powers under sub-
section 1 of Section 4 of the Wakf Act. That
Notification reads as under:
“In exercise of the powers conferred by
sub-section (1) of section 4 of the Wakf
Act, 1995 (43 of 1995), Governmentof
Maharashtra hereby appoints,-(a) Settlement Commissioner and
Director of Land Records, MaharashtraState, Pune to be a Survey Commissioner
of Wakfs; and(b) Additional Commissioners of
Konkan, Nashik, Pune, Nagpur, Amravati
and Aurangabad Revenue Divisions to be a
Additional Survey Commissioner,for the purpose of making a survey of
Wakfs existing on the 1st day of January,1996 in the State of Maharashtra.”
The Government of Maharashtra issued a
Notification dated 4th January, 2002. That
Notification reads as under:
“In exercise of powers conferred by
sub-clauses (i) and (iii) of clause (b)
and clause (c) of sub-section (1) read
with sub-section (3) of Section 14 of::: Downloaded on – 09/06/2013 17:47:15 :::
8 WP2906.04the Wakf Act, 1995 (43 of 1995), the
Government of Maharashtra hereby,-(a) establishes a Board by the name of
“The Maharashtra State Board of Wakfs”,
having its Headquarters at Aurangabad;and
(b) nominates,-
1. Shri Khan Yusuf Sarwar, Member of
Parliament (Rajya Sabha);
2. Smt.Shabana Azmi, Member of
Parliament (Rajya Sabha);3. Shri Harun Aadam Solkar, Muslim Ex-
member of the Bar Council of theState; and
4. Shri Chand Pasha Inamdar, Member of
Muslim Organisation, to be the
Members of the said Board.. Thus, by the Notification quoted above,
a Wakf Board for the whole State of Maharashtra
with Headquarters at Auragabad was established
and four persons named in that Notification were
appointed as Members of that Wakf Board.
Pursuant to the Notification dated 1st December,
1997, quoted above, the Officers appointed to
conduct the survey, submitted the survey report
to the State Government on 31-1-2002. As
observed above, by Notification dated 4-1-2002,
four persons were appointed as Members of the
::: Downloaded on – 09/06/2013 17:47:15 :::
9 WP2906.04Wakf Board. Thereafter, appointment of members
of the Wakf Board were made by Notification
dated 20-2-2002, 16-8-2002, 2-6-2002, 24-7-2002
and 13-11-2003. On 24th July, 2003, the Charity
Commissioner of the State of Maharashtra issued a
Circular directing its office not to exercise
their powers under the Bombay Public Trust Act or
deal with any of the Muslims Public Trusts. The
said Circular stated that according to Section 43
of the Wakf Act, Wakf registered as public
trust should not be tried under the Bombay Public
Trust Act and because of that Circular the
authorities under the Bombay Public Trust Act
refused to entertain any application or change
report submitted by the trustees of the Trusts,
which though registered under the Bombay Public
Trust Act, according to the Charity Commissioner
and his sub-ordinate were Muslims Public Trusts.
There were several Writ Petitions filed in this
court challenging incorporation of the Wakf
Board as also challenging its constitution and
appointment of various persons as its members.
::: Downloaded on – 09/06/2013 17:47:15 :::
10 WP2906.04 There were also Petitions in this courtchallenging the Circular issued by the Charity
Commissioner referred to above. On 13-11-2003,
the Wakf Board published a list of Wakfs
treating all Muslims Public Trusts listed in
category in Maharashtra and suburban districts of
Maharashtra by the Charity Commissioner as
Wakfs. Writ Petitions were filed in this court
challenging the list of
ig Wakfs prepared by theWakf Board.
7. According to the Petitioners, trustees
of several Muslims Trusts, who felt aggrieved by
the list of Wakf pulished by the Wakf Board
formed an Association called “Association for
protection of Muslims Wakfs and Trusts”. That
Association made a representation to the State
Government requesting it to cancel the
Notification dated 13-11-2003. According to the
Petitioners, on 11th August, 2004, pursuant to the
representation made by the aforesaid Association,
a Committee under the Chairmanship of the Charity
::: Downloaded on – 09/06/2013 17:47:15 :::
11 WP2906.04Commissioner was constituted to verify the list
of Wakf published by the Wakf Board in the
light of the representation made by the
Association. According to the Petitioners, this
Committee bifurcated the list of Wakfs and
submitted the bifurcated list to the State
Government. The State Government forwarded that
list to the Wakf Board. According to the
Petitioners, the ig Wakf Board by its Resolution
No.3 dated 9th March, 2005 unanimously resolved to
accept the report of the Bifurcation Committee
(Five members Committee) which was appointed
under the Chairmanship of the Charity
Commissioner. According to the Petitioners, the
Wakf Board even published a modified list of
Wakf on 5th May, 2005. According to the
Petitioners, however, on 3rd April, 2008 the Wakf
Board passed a Resolution resolving to revoke the
rectified list of Wakf dated 5th May, 2005. It
appears that, there were several complaints made
about the survey conducted. There were
complaints made even with the Joint Parliamentary
::: Downloaded on – 09/06/2013 17:47:15 :::
12 WP2906.04Committee and the Joint Parliamentary Committee
issued a direction on 20th October, 2008 to the
State Government to conduct resurvey of the Wakfs
in the State. In this background, on 20th
October, 2008 a Notification has been issued by
the State Government deciding to resurvey the
Wakfs in the State of Maharashtra and in exercise
of its power under sub-section (1) of Section 4
again appointing a survey officer for conducting
resurvey in the State of Maharashtra.
8. In these facts, these Petitions have
been filed. By these Petitions the Petitioners
challenge the Notification dated 4-1-2002,
whereby the Wakfs Board for the State of
Maharashtra is constituted. The Petitioners also
challenge constitution of the Wakf Board. The
Petitioners also challenge the list of Wakfs
prepared and published by the Wakf Board. It is
the contention of the Petitioners that while
conducting the re-survey the survey officer must
consider the report submitted by the Five Members
::: Downloaded on – 09/06/2013 17:47:15 :::
13 WP2906.04Committee, which was constituted by the State
Government under the Chairmanship of the Charity
Commissioner and the list prepared by it and
submitted to the Wakf Board and also the
rectified list of Wakfs which was prepared by
the Wakf Board. It is the contention of the
Petitioners that until a new Wakf Board is
incorporated and the list of the Wakfs is
published by the newly constituted
ig Wakf Board,because these Wakfs are also the Public Trusts
registered under the Bombay Public Trust Act, the
working of these trusts should be controlled and
supervised by the authorities of the Public Trust
Act.
9. So far as challenge to the incorporation of the Wakf Board in State ofMaharashtra is concerned, the Petitioners relying
on the scheme of the Act, particularly Section 4,
Section 13 and Section 14 of the Act submitted
that until the State Government has before it the
report of the survey, the State Government cannot
::: Downloaded on – 09/06/2013 17:47:15 :::
14 WP2906.04take a decision in relation to the establishment
and constitution of the Wakf Board and any
decision taken by the State Government to
incorporate the Wakf Board in the absence of
survey report submitted by the Survey Officer in
invalid and inoperative.
10. So far as the challenge to the constitution of the ig Wakf Board is concerned, it is the submission of the Petitioners that in order that constitution of the Wakf Board isvalid, there must be at least seven members in
the Board. Therefore, the constitution of the
Board made on 4-1-2002 is invalid. In support
of its challenge to the validity of the list of
Wakfs published by the Wakf Board, it is
submitted that that list was based on the survey
report submitted to the State Government on
31-1-2002. As that report itself is found to be
defective by by the Joint Parliamentary Committee
as also by the State Government, the list of
Wakfs based on that report obviously is also
::: Downloaded on – 09/06/2013 17:47:15 :::
15 WP2906.04defective and therefore has to be set aside. It
is submitted that considering the importance of
survey and the purpose for which the survey is to
be conducted, the persons who may be interested
in the Wakfs are entitled to make
representations to the survey officer
representing their point of view and the survey
officer appointed under Section 4 is under a duty
to take into consideration such representations
made by the interested persons. It is submitted
that as the Committee under the Chairmanship was
constituted by the State Government and that
Committee prepared the list, that will be the
relevant material to be taken into consideration
by the survey officer while conducting the
resurvey pursuant to the Notification dated 20th
October, 2010. It is submitted that the Muslims
Wakfs which are registered under the Bombay
Public Trust Act are to be governed by the
provisions of the Bombay Public Trust Act till
the machinery is in place constituted under the
Wakf Act to control the administration of the
::: Downloaded on – 09/06/2013 17:47:15 :::
16 WP2906.04Wakfs and till that event takes place, the
Charity Commissioner should be directed to
entertain the applications and supervise the
working of the Muslims Public Trusts, which are
registered under the Bombay Public Trust Act.
11. We have heard the learned Advocate
General on behalf of the State Government. In so
far as the challenge to the Notification dated
4-1-2002 incorporating the Public Trust is
concerned, submission of the learned Advocate
General is that availability of the survey report
cannot be said to be a condition precedent for
the State Government to exercise its power of
incorporating the Wakf Board. The learned
Advocate General relied on the provisions of
Section 13 of the Act. The learned Advocate
General also invited our attention to the
provisions of Section 106 of the Act. The
learned Advocate General submitted that the
information in relation to the Wakfs can be
available to the State Government not only
::: Downloaded on – 09/06/2013 17:47:15 :::
17 WP2906.04through the Survey Report, but also from other
soruces a Wakf Board was in existence in a part
of the State under the Act repealed by Wakf Act,
1995, information with that Wakf Board can also
be used. The learned Advocate General also
submitted that though it is true that initially
only four persons were appointed on the Wakf
Board, but however subsequently appointments were
made by the State Government.
ig It is only in
Category under Section 14(1)(b)(iv) that there is
a problem about electing the representatives,
otherwise, the representatives from all
categories were nominated on the Wakf Board.
12. Now, first taking up for consideration,
the question whether the Notification dated
4-1-2002 incorporating the Wakf Board for the
State of Maharashtra is valid or invalid is
concerned, for consideration of this question
sub-sections 1 to 3 of Section 4 of Wakf Act are
relevant. They read as under:
::: Downloaded on – 09/06/2013 17:47:15 :::
18 WP2906.04
4(1) Preliminary survey of Wakfs.- The
State Government may, by notification
in the Official Gazette, appoint forthe State a Survey Commissioner of
Wakfs and as many Additional or
Assistant Survey Commissioners ofWakfs as may be necessary for the
purpose of making a survey of wakfs
existing in the State at the date of
the commencement of this Act.(2) All Additional and Assistant
Survey Commissioners of Wakfs shall
perform their functions under this Act
under the general supervision and
control of the Survey Commissioner ofwakfs.
(3) The Survey Commissioner shall,
after making such inquiry as he may
consider necessary, submit his report,in respect of wakfs existing at the
date of the commencement of this Act
in the State or any part thereof, to
the State Government containing the
following particulars, namely:-(a) the number of wakfs in the State
showing the Shia wakfs and Sunni wakfs
separately:(b) the nature and objects of each
wakf;(c) the gross income of the property
comprised in each wakf;(d) the amount of land revenue,
cesses, rates and taxes payable in
respect of each wakf;(e) the expenses incurred in the
relisation of the income and the pay
or other remuneration of the mutawalli
of each wakf; and(f) such other particulars relating to
each wakf as may be prescribed.::: Downloaded on – 09/06/2013 17:47:15 :::
19 WP2906.04 . Thus, Section 4 vests powers in theState Government to appoint the survey officer
for the purpose of making “a survey of Wakfs
existing in the State at the date of commencement
of the Act. The date of commencement of the Act
is 1-1-1996. In making the survey, the survey
officers have to collect the information on the
number of Wakfs in the State and also to find out
how many of them are Shia Wakfs and how many of
them are Sunni Wakfs. The survey officers have
to collect the information about the income,
expenditure, properties of such Wakfs. Under
Section 13 of the Wakf Act, the State Government
is empowered to establish a Board of Wakfs. The
State Government has also been given power to
constitute a separate Wakf Board for Shia and
Sunni Wakfs, under certain conditions specified
in the Act. The same Section provides that the
Wakf Board would be a body corporate having
perpetual succession and a common seal. Section
13 reads as under:
::: Downloaded on – 09/06/2013 17:47:15 :::
20 WP2906.04
13. Incorporation.- (1) With effect
from such date as the State Government
may, by notification in the Oficial
Gazette, appoint in this behalf, thereshall be established a Board of Wakfs
under such name as may be specified in
the notification.(2) Notwithstanding anything
contained in sub-section (1), if the
Shia wakfs in any State constitute in
number more than fifteen per cent of
all the wakfs in the State or if theincome of the properties of the Shia
Wakfs in the State Constitutes morethan fifteen percent of the total
income of properties of all the Wakfs
in the State, the State Governmentmay, by notification in the Official
Gazette, establish a Board of Wakfs
each for Sunni wakfs and for Shia
wakfs under such names as may be
specified in the notification.(3) The Board shall be a body
corporate having perpetual succession
and a common seal with power to
acquire and hold property and to
transfer any such property subject tosuch conditions and restrictions as
may be prescribed and shall by the
said name sue and be sued.13. Perusal of the above quoted provisions
of Section 13 shows that sub-section 1 of Section
13 vests powers in the State Government to
::: Downloaded on – 09/06/2013 17:47:16 :::
21 WP2906.04establish a Board of Wakf. Sub-section 2 lays
down the manner in which that power is to be
exercised. At the time of taking a decision to
constitute the Board of Wakf, the State
Government has to consider as to whether it
wants to constitute one Board of Wakf or in view
of the provisions of sub-section (2) of Section
13, it is necessary for it to constitute a
separate Board of Shia Wakfs.
ig It was submitted
by the learned Advocate General that the power
conferred on the State Government by sub-section
2 of Section 13 is a discretionary power. The
State Government may constitute a Shia Board or
may not constitute a Shia Board. In our opinion,
the submission is not well founded. Because once
it is established that Shia Wakfs in the State
constitutes in number more than fifteen percent
of the Wakfs in the State or if it is established
that the income of the properties of Shia Wakfs
in the State constitutes more than fifteen
percent of the total income of the properties of
all the Wakfs in the State, the State Government
::: Downloaded on – 09/06/2013 17:47:16 :::
22 WP2906.04cannot deny constitution of a separate Wakf Board
for Shia Wakfs. In that situation, the State
Government will have to constitute two Boards. In
our opinion, the provisions of sub-section 2 of
Section 13 have to be read with the provisions of
sub-section 3 of section 4 of the Act. Sub-
section 3 of Section 4 of the Act casts a duty on
the Survey Commissioner to collect information as
to the number of Shia
ig Wakfs and Sunni Wakfsseparately. He is also required to collect
information on the income, expenditure and
properties of Shia Wakfs and Sunni Wakf
separately. A duty on the Survey Commissioner is
cast by sub-section (3) of Section 4 to collect
information in that regard obviously to enable
the State Government to take a decision, which is
contemplated by sub-section (2) of Section 13 of
the Act. In our opinion, the provisions of
Section 13 and Section 4 will have to be read
together and the State Government will have to
wait for making a decision in relation to
incorporation of Wakf Board in the State till it
::: Downloaded on – 09/06/2013 17:47:16 :::
23 WP2906.04receives the report of survey conducted under
Section 4. Section 13 does not contemplate
constitution of additional Board for the Shia.
Section 13 contemplates constitution of one Board
for Shia and Sunni Wakfs or constitution of
separate Board for Shia and Sunni Wakfs
depending on the number and income of Shia Wakfs
in the State. In our opinion, therefore, the
power to establish the
ig Wakf Board will have tobe exercised at the same time and it is at that
time that the State Government will have to
decide whether it wants to have one Board for the
Shia and Sunni wakfs or taking into consideration
the number and income of the Wakfs a separate
Board for Sunni Wakfs and Shia Wakfs. The
survey that is to be done under Section 4 is
survey of the wakfs as on the date of
commencement of the Act. There is no period fixed
by the Act for the state Government to order
survey. Whenever the State Government decides to
conduct survey, the survey in terms of Section
4(1) has to be survey of Wakfs on the date of
::: Downloaded on – 09/06/2013 17:47:16 :::
24 WP2906.04commencement of the Act. The Act also does not
fix any time limit for the State Government to
exercise its power of establishing the Wakf
Board. There is no direct provision in the Act
which lays down that before establishment of the
Wakf Board under Section 13 the State Government
must make any order for survey. If the argument
of the State Government/Respondent in this case
is accepted, it will have to be held that the
State Government can establish the Wakf Board
under Section 13 without ordering the survey. But
for preparing the list of Wakfs under Section
5(2) survey is necessary. Therefore, can the
State Government without ordering survey in
exercise of its power under Section 13(1)
establish a common Wakf Board and thereafter
order survey. If the report of survey received
after establishing the Wakf Board shows that the
number of Shia wakfs in the State is such that
according to Section 13(2), the Shia wakfs are
entitled to have a separate Shia Wakf Board, in
that situation the State Government will not be
::: Downloaded on – 09/06/2013 17:47:16 :::
25 WP2906.04in a position to constitute a separate Board for
Shia Wakfs, because the Act does not contemplate
the Government establishing any additional Board
or Boards. It also does not provide for
bifurcation of one Board into two Boards. Had it
been the intention of the Legislature to empower
the State Government to constitute additional
Board, it would have made the provision for
division or bifurcation of the existing Board,
because without bifurcating or dividing the
existing Board, it will be impossible to
constitute additional Board. If the State
Government has already constituted the unified
Board for both Shia and Sunni Wakfs, then if the
additional Board for Shia wakfs is to be
constituted, it would be necessary to delete from
the unified Board, the Shia wakf. There is no
provision made in the Act for such bifurcation.
In such situation, therefore, in our opinion, the
State Government has to order survey first and
then wait for the survey report and after
receiving the survey report the State Government
::: Downloaded on – 09/06/2013 17:47:16 :::
26 WP2906.04has to take proper decision about establishment
of Wakf Board. After incorporating or
establishing a Board the State Government has to
take steps for constitution of the Wakf Board
immediately, because without making appointment
or nominating members on the Wakf Board mere
establishment of the Wakf Board surves no
purpose. When the State Government considers the
question of constitution of the Wakf Board, it
has to take into consideration the provisions of
Section 14(6) of the Act. Section 14(6) reads as
under:-
14(6) In determining the number of Shia
members or Sunni members of the Board,
the State Government shall have regard to
the number and value of Shia Wakfs and
Sunni Wakfs to be administered by theBoard and appointment of the members
shall be made, so far as may be, in
accordance with such determination.. Thus, the number and value of Shia and
Sunni Wakfs become relevant for constitution of
the Wakf Board. Authentic information can become
available to the State Government regarding the
::: Downloaded on – 09/06/2013 17:47:16 :::
27 WP2906.04number and value of the Wakfs only from the
report of the Survey Commissioner appointed under
Section 4 of the Act.
. In this view of the matter, therefore,
in the present case as it is an admitted position
that the State Government issued the Notification
incorporating the Wakf Board in the State of
Maharashtra on 4-1-2002, when it did not have
before it the report of the survey conducted
under Section 4. That report became available to
the State Government only on 31-1-2002. By
incorporating Wakf Board in the State of
Maharashtra on 4-1-2002, the State Government
denied to itself an opportunity to consider the
survey report to find out whether the information
disclosed by that report requires it to exercise
its power under sub-section 2 of Section 13 of
constituting a separate Board for Shia Wakfs.
In our opinion, the State Government was not
justified in denying to itself the exercise of
power under sub-section 2 of Section 13 by not
::: Downloaded on – 09/06/2013 17:47:16 :::
28 WP2906.04waiting to receive the survey report. The State
Government itself had appointed the Survey
Officer in the year 1997 and it waited till 4th
January, 2002 to incorporate the Wakf Board when
it was to receive the survey report on 31st
January. The only reason that is given for
incorporating the Wakf Board on 4-1-2002 is the
provisions of sub-section 1 of Section 5. It
reads as under:-
5(1) On receipt of a report under sub-
section (3) of Section 4, the State
Government shall forward a copy of the
same to the Board.14. It was submitted by the learned
Advocate General relying on the provisions of
sub-section 1 of section 5 of the Act that sub-
section (1) of Section 5 casts obligation on the
State Government to forward a copy of the survey
report to the Board. According to the learned
Advocate General, therefore, it is obligatory for
the State Government to constitute a Board
before it receives the survey report from the
::: Downloaded on – 09/06/2013 17:47:16 :::
29 WP2906.04survey officer, so that as soon as the report is
received, , copy of that report can be forwarded
to the Board.
. In our opinion, this submission is not
well founded. The words “on receipt of the
report” , in our opinion, do not imply that a
copy of the report is to be forwarded by the
State Government
ig immediately on receiving thereport. The State Government on receiving the
report can consider the question of incorporating
the Board under Section 13 and on constituting
the Board can forward a copy of that report to
that Board.
. In our opinion, therefore, the
Notification dated 4-1-2002 incorporating the
Wakf Board is contrary to the scheme of the Act
and is, therefore, liable to be set aside.
15. So far as the challenge to the constitution of Wakf Board is concerned, it is ::: Downloaded on - 09/06/2013 17:47:16 ::: 30 WP2906.04Section 14 of the Act which is relevant. It reads
as under:-
14. Composition of Board.-
(1) The Board for a State and the Union
Territory of Delhi shall consist of-(a) a Chairperson;
(b) one and not more than two members, as
the State Government may think fit, to beelected from each of the electoral colleges
consisting of-(i) Muslim Members of Parliament from the
State or, as the case may be, the Union
Territory of Delhi;(ii) Muslim Members of the State
Legislature;(iii) Muslim Members of the Bar Council of
the State, and(iv) mutawallis of the Wakfs having an
annual income of rupees one lakh and above;(c) one and not more than two members to be
nominated by the State Government
representing eminent Muslim Organisations;::: Downloaded on – 09/06/2013 17:47:16 :::
31 WP2906.04
(d) one and not more than two members to be
nominated by the State Government, each fromrecognised scholars in Islamic Theology;
(e) an officer of the State Government not,
below the rank of Deputy Secretary.(2) Election of the members specified in
Clause (b) of sub-section (1) shall be held
in accordance with the system of
proportional representation by means of a
single transferable vote, in such manner asmay be prescribed:
Provided that where the number of Muslim
Members of Parliament, the State Legislatureor the State Bar Council, as the case may
be, is only one, such Muslim Member shall be
declared to have been elected on the Board:Provided further that where there are no
Muslim Members in any of the categoriesmentioned in sub-clauses (i) to (iii) of
Clause (b) of sub-section (1) the ex-Muslim
Members of Parliament, the State Legislature
or ex-member of the State Bar Council, asthe case may be, shall constitute the
electoral college.(3) Notwithstanding anything contained in
this section, where the State Government issatisfied for reasons to be recorded in
writing, that it is not reasonably
practicable to constitute an electoral
college for any of the categories mentioned
in sub-clauses (i) to (iii) of Clause (b) of
sub-section (1), the State Government may
nominate such persons as the members of the::: Downloaded on – 09/06/2013 17:47:16 :::
32 WP2906.04Board as it deems fit.
(4) The number of elected members of the
Board shall, at all times be more than the
nominated members of the Board except asprovided under sub-section (3).
(5) Where there are Shia Wakfs but no
separate Shia Wakfs Board exists, at leastone of the members from the categories
listed in sub-section (1), shall be a Shia
Muslim.(6) In determining the number of Shia
members or Sunni members of the Board, theState Government shall have regard to the
number and value of Shia Wakfs and Sunni
Wakfs to be administered by the Board andappointment of the members shall be made, so
far as may be, in accordance with such
determination.(7) In the case of the Union Territory other
than Delhi, the Board shall consist of notless than three and not more than five
members to be appointed by the Central
Government from amongst the categories of
persons specified in sub-section (1):Provided that there shall be one mutawalli
as the member of the Board.(8) Whenever the Board is constituted or
reconstituted, the members of the Board
present at a meeting convened for the
purpose shall elect one from amongst
themselves as the Chairperson of the Board.::: Downloaded on – 09/06/2013 17:47:16 :::
33 WP2906.04 (9) The members of the Board shall be appointed by the State Government bynotification in the Official Gazette.
16. It is common ground that by Notification dated 4-1-2002 only four Memberswere appointed on the Board. Perusal of the above
quoted provisions show that Section 14(1)(b)
defines only the electoral colleges. It does not
lay down eligibility for being a candidate to be
elected from the electoral colleges defined by
Section 14(1)(b). For example, it lays down that
one and not more than two members as may be
decided by the State Government may be elected
from the electoral colleges consisting of Muslims
Members of Parliament from the State. It does
not lay down as to who can be a candidate at such
election. In any case, it does not lay down that
only the Muslims Members of Parliament from the
State can be a candidate to be elected from this
electoral colleges. Same is the case with the
electoral college constituted under Section 14(1)
(b)(ii) , (iii) & (iv). Perusal of the
::: Downloaded on – 09/06/2013 17:47:16 :::
34 WP2906.04Notification dated 4-1-2002, however, shows that
the State Government was under the impression
that it is only the Muslims members of the
Parliament from the State, who can be nominated
or elected from his constituency. Same is the
case with Section 14(1)(b)(iii) nomination. So
far as constitution of the Maharashtra Board is
concerned, we have been pointed out the Eighth
Report of the Joint Parliamentary Committee on
the functioning of the Wakf Board. In paragraph
2.33 of that report it is observed “The Principal
Secretary informed that the Government of
Maharashtra had constituted Maharashtra State
Board of Wakfs. The Board constituted of 4
Members i.e. 2 Members of Parliament, 1. Ex-
Member of the bar Council of the State and one
Member from Muslim Organisation vide Government
Notification No.Wakf-10/2001/C.R.154/L-3 dated 4th
January, 2002. The process of appointing the
remaining members of the Board was underway. The
Sub-Committee asked him to check up from their
Law Department as to whether the Wakf Board
::: Downloaded on – 09/06/2013 17:47:16 :::
35 WP2906.04constituted by Maharashtra Government can be
treated as the wakf Board constituted under
Section 14(1) of the Wakf Act, 1995, which
requires minimum seven members for a Wakf Board
to be duly constituted and share their opinion
with the Sub-Committee”.
17. So far as Ninth Report of the Joint
Parliamentary Committee on wakfs is concerned, it
is paragraph 3.32 and 3.33 of that report are
relevant. They read as under:
3.32 After the enactment of the Wakf
Act, 1954, Maharashtra did not adopt
the Act for the entire State ofMaharashtra. Only Marathwada Region of
Maharastra had Wakf Board and in theother region of Maharashtra, the Wakf
properties were governed by the Bombay
Public Trust Act. After the enactment
of the Wakf Act, 1995, the State ofMaharashtra adopted the Act and
implemented the Act for the entire
State and constituted the Wakf Board.
The present position of the Board is
that six of its members have retiredand two have resigned in 2005.
Currently, there are only two members
in the Board. The Government with just
two member on the Board cannot function
and as such the Board practically does
not exist.::: Downloaded on – 09/06/2013 17:47:16 :::
36 WP2906.04
3.33 The Principal Secretary, Minority
Development, Government of Maharashtra,
further submitted the position of theMaharashtra Wakf Board before the
Committee on the 24th July, 2008, and
stated that the two members who hadresigned in 2005 and 2007 would
continue to be members as per the
provisions of the Act, till their
successors were appointed. TheCommittee was assured that the State
Government would be able to constitute
the Board within three months. As
regards the elected members, it would
take a little more time. The Committeeis unable to appreciate the explanation
of the Principal Secretary. For allpractical purposes there is no Board in
Maharashtra. The Government has neither
appointed Administrator to dischargethe functions of the Board nor it has
superseded the Board as per Section 99
of the Wakf Act.(emphasis supplied)It is thus clear that presently there are only
two Members of the Board. This position was not
disputed before us. Perusal of Section 14 makes
it clear that a wakf Board having only two
members cannot be said to be properly constituted
and therefore, we have to hold that the
constitution of Wakf Board of Maharashtra is not
in accordance with law.
::: Downloaded on – 09/06/2013 17:47:16 :::
37 WP2906.04
18. The next question to be considered is
whether the list of wakfs prepared and published
by the Wakf Board is valid or invalid. The list
is prepared and published under sub-section 2 of
Section 5 of the Act. It reads as under:
(2) The Board shall examine the report
forwarded to it under sub-section (1)
and publish in the Official Gazette alist of Sunni Wakfs or Shia Wakfs in
the State, whether in existence at thecommencement of this Act or coming into
existence thereafter, to which the
report relates, and containing suchother particulars as may be prescribed.
Thus, the list to be prepared by the Board is
based on the report of the survey which is
conducted under Section 4 of the Act. So far as
the survey conducted under the Act is concerned,
the Joint Parliamentary Committee found that the
survey was not conducted properly. Following
paragraphs 4.16, 4.17, 4.18 and 4.19 in the Ninth
Report of the Joint Parliamentary Committee in
our opinion are relevant. They read as under:
::: Downloaded on – 09/06/2013 17:47:16 :::
38 WP2906.04
4.16 The earlier JPC on Wakf, in its
Eighth Report, presented on 29.07.2003
noted that the survey was almostcompleted, except in Bombay suburban
District. However, it was alleged by
the members of the public during thevisit of the Committee that the survey
work had not been properly carried out
and a large number of Wakf properties
had been left out. It was also informedthat even those properties which
physically existed and were Wakf by
user, were not included in the survey
on flimsy grounds. It was revealed that
in the revenue records, the Wakfproperties were mentioned in the name
of Mutawallis or in the name of lesseesand were not shown as Wakf properties
which made the sale of the properties
easy. It was also informed that nophysical survey was done and only
proformas were sent to the Mutawallis
for furnishing the details of the Wakf
properties. The State Government had
also admitted that there were errors inidentifying the Wakf properties. Later
on, the State Government informed thatthe survey in Bombay sub-urban areas
had also been completed and they
supplied a list of the Wakf properties
surveyed to the then Committee. Thelists so received prima facie showed
the properties of Marathwada region;
the Wakf properties in other regions
were negligible which might not be
true. Keeping the situation in view,
the then Committee recommended that the
provisions of the Wakf Act, 1995 should
be followed scrupulously for the survey
of Wakf properties and the procedure
adopted be made transparent and open to
the public, with a remedy to correct
errors in the survey. The Survey
::: Downloaded on – 09/06/2013 17:47:16 :::
39 WP2906.04
Commissioner should undertake a
physical survey of all the Wakf
properties after giving wide publicity
through the media. The Committee
further recommended that after the
survey was completed, the lists of Wakf
properties should be published properly
in the Official Gazette as required
under the Act. The Committee further
recommended that the entries of Wakfs
should be properly made in the revenue
records.
4.17 The Committee, now in view of the
flaws in the survey undertaken earlier
and the earlier Committee’s
recommendation to correct errors in the
survey, sought to know the present
status of survey during its visit
undertaken in June, 2007. The Chief
Executive Officer informed the
Committee that the Government had
initiated survey vide the Government
Notification dated 01.12.1997 through
the Settlement Commissioner. Despite
complaints that the survey had not been
done properly and also the last Joint
Parliamentary Committee had asked the
Government to undertake re-survey, it
was yet to be undertaken.
4.18 Further explaining the position,
the State Wakf Board, in its note
giving the latest position of the
survey submitted to the Committee in
July, 2008, as under:
“The survey of Wakfs and its
properties was taken up by the
Government of Maharashtra vide
Revenue and Forest Department
Notification No. WKF-1097/L- 3/CR95
dated 01.12.1997 and survey was
::: Downloaded on – 09/06/2013 17:47:16 :::
40 WP2906.04
completed and submitted to the
Government. Thus, the survey was
completed before receipt of proceedings
of the Joint Parliamentary
Committee’s VIIIth Report, which had
suggested the survey to be carried
out again in a transparent way. It has
yet not been initiated.
. . . The decision to conduct
fresh survey in a transparent manner
lies with the State Government.”
4.19 The Committee is surprised to see
that it got the same reply even after
one year. On being asked, the Principal
Secretary,
ig Minority Development,
Government of Maharashtra, during her
oral evidence tendered on 24.07.2008,
assured the Committee that the Survey
Commissioner would be appointed within
a month to take up the survey work.
(emphasis supplied)
19. Thus, the Joint Parliamentary Committee
found the survey to be defective. The decision
of the Joint Parliamentary Committee has been
accepted by the State Government when it issued
the Notification dated 20th October, 2010. The
reason that has been given by the State
Government for ordering resurvey in the
Notification dated 20th October, 2010 is ” And
whereas the Joint Parliamentary Committee
::: Downloaded on – 09/06/2013 17:47:16 :::
41 WP2906.04
received complaints that the survey was not
conducted properly and therefore the Committee
issued direction dated 20th October, 2008 to the
State Government to conduct the resurvey of the
wakfs in the State…………..” .
20. Thus, even according to the State
Government the Survey was defective as the lists
of wakfs prepared under sub-section 2 of Section
5 were based on the survey report submitted on
31-1-2002 to the State Government, which the
State Government itself found to be defective,
the only conclusion possible is that the lists of
wakfs are defective and therefore, in our
opinion, it would be appropriate to set aside
those lists, so that fresh lists can be prepared
by the wakf Board on the basis of the report of
resurvey which is ordered by Notification dated
20th October, 2010.
21. Now, taking up for consideration the
submission of the Petitioners that the survey
::: Downloaded on – 09/06/2013 17:47:16 :::
42 WP2906.04
officers who are conducting the survey pursuant
to the Notification dated 20th October, 2010
should be directed to consider the
representations that may be made by the
Petitioners as also other persons who may be
connected with the Muslims wakfs and also to
consider the lists prepared by the Committee
constituted by the State Government under the
Chairmanship of
ig the Charity Commissioner is
concerned, it is clear from the provisions of
Section 4 of the Act that for proper working of
the scheme of the Wakf Act, conducting of proper
and thorough survey is absolutely necessary.
The Joint Parliamentary Committee in its report
has also noted that the survey plays a very
important role in implementation of the
provisions of the Act and therefore, the survey
should be conducted carefully and in a
transparent manner. In our opinion, therefore,
the survey officers who are conducting the survey
under Section 4 are under a duty to take into
consideration all relevant material including any
::: Downloaded on – 09/06/2013 17:47:16 :::
43 WP2906.04
material that may be placed before them by the
Petitioners, who are trustees of various Muslim
charities as also other similarly situated
persons who are connected with the Muslim
charities. So far as the report of the Committee
referred to above is concerned, that Committee
was constituted by the State Government and that
Committee had prepared a list. In our opinion,
as the material collected by the Committee would
be relevant for the purpose of preparing the
survey report by the Survey Officer, in case a
copy of the report of the Committee is placed
before the Survey Officer by the Petitioners,
the survey officers cannot refuse to take that
material into consideration In our opinion, a
direction in that regard has to be issued to the
Survey Officer.
22. It was also urged before us relying on
the provisions of sub-section 6 of Section 4 that
the survey ordered by the Notification dated 20th
October, 2010 in invalid. In our opinion,
::: Downloaded on – 09/06/2013 17:47:16 :::
44 WP2906.04
however, that submission is not well founded.
Sub-section 6 of Section 4 operates in relation
to second or subsequent survey. It contemplates
the first survey to be valid. In the present
case, however, it has been found that the first
survey itself was not valid and it was defective.
In our opinion, therefore, exception cannot be
taken to the resurvey ordered by the Notification
dated 20th October,
ig 2010 on the basis of the
provisions of Sub-section 6 of Section 4 of the
Act.
23. Now, the last question that requires to
be considered is whether having found that the
Notification incorporating the Wakf Board to be
invalid, we can direct the Charity Commissioner
and the authorities under the Bombay Public Trust
Act to exercise their powers in relation to such
Muslims Trust as may be registered as Public
Trust under the Bombay Public Trust Act. In that
regard, reliance was placed on the provisions of
Section 43 of the Wakf Act. It reads as under:
::: Downloaded on – 09/06/2013 17:47:16 :::
45 WP2906.04
43. Wakfs registered before the
commencement of this Act deemed to be
registered.-
Notwithstanding anything contained in this
Chapter, where any Wakf has been registered
before the commencement of this Act, under
any law for the time being in force, it
shall not be necessary to register the Wakf
under the provisions of this Act and any
such registration
ig made before such
commencement shall be deemed to be a
registration made under this Act.
24. Perusal of the provisions of Section 43
shows that if a particular Trust or wakf is
registered under any law for time being in force,
then that registration is deemed to be
registration made under the provisions of the
Act. This section deals only with the necessity
of registration of wakfs under the Act. It does
not lay down that after coming into force of the
Wakf Act, Muslim Trusts which are registered
under the Bombay Public Trust Act and under any
other State Law will cease to be governed by that
::: Downloaded on – 09/06/2013 17:47:16 :::
46 WP2906.04
Act, merely because the Wakf Act has come into
force. It is possible to say that after a Wakf
Board is incorporated under the Wakf Act and it
becomes effective and starts controlling the
affairs of the Muslim Trusts, which are
registered under the Wakf Act, then the
provisions of the Bombay Public Trust Act may
cease to operate in relation to such public
trusts/wakfs. But till that eventuality occurs ,
in our opinion, it would be in the public
interest that the affairs of such public trusts
are governed by the provisions of the Bombay
Public Trust Act. If it is held that merely on
commencement of the Act in a State, without the
machinery provided by the Wakf Act becoming
operative, the provisions of the Bombay Public
Trust Act cease to operate in relation to the
Muslims Public Trusts, which are registered under
the Bombay Public Trust Act, it will result in
creating a vacum, inasmuch as, in the absence of
any machinery being effective under the Wakf Act,
the affairs of the Trust will not be controlled
::: Downloaded on – 09/06/2013 17:47:16 :::
47 WP2906.04
by the provisions of the Wakf Act and the
provisions of the Public Trust Act will also not
apply. Therefore, in our opinion, it would be
appropriate to direct that till the Wakf Board is
established, incorporated and constituted under
the provisions of the Wakf Act and it becomes
operative, the provisions of the Bombay Public
Trust Act shall apply to the Muslims Public
Trusts which
ig are registered under the Bombay
Public Trust Act.
25. In the result, therefore, the petitions
succeed and are allowed.
(i)The Notification dated 4-1-2002 is set
aside;
(ii) The lists of wakfs prepared and published
by the Wakf Board dated 13-11-2003 are set
aside.
(iii) The Survey Officers appointed by
::: Downloaded on - 09/06/2013 17:47:16 :::
48 WP2906.04
Notification dated 20th October, 2010 are
directed to take into consideration
representations, if any, made by the
Petitioners and other similarly situated
persons connected with the Muslims wakfs,
including the list prepared by the Committee
constituted by the State Government under
the Chairmanship of the Charity
Commissioner, while preparing and submitting
their survey reports to the State
Government. The survey officer may also take
into consideration any list of the wakfs, if
prepared under the Act repealed by the 1995
Act.
(iv) Until a new Board or Boards are
incorporated under the Act and they are
constituted in accordance with the
provisions of the Act and the Board or
Boards start functioning in accordance with
the provisions of the Wakf Act, the
provisions of the Bombay Public Trust Act
::: Downloaded on – 09/06/2013 17:47:16 :::
49 WP2906.04
will apply to the such Muslims Public
Trusts, which are registered under the
Bombay Public Trust Act. Rule is made
absolute accordingly. No order as to costs.
26. We have set aside the Notification
dated 4-1-2002. None of the actions taken or
orders passed by the Wakf Board constituted by
the Notification dated 4-1-2002 is challenged in
any of the petitions that have been decided by
this order. Therefore, we are not pronouncing on
the validity or otherwise of the actions taken
and orders passed by the Wakf Board so far. The
validity of those actions and orders will be
decided by the Forum before which the validity of
those actions or orders is challenged.
. It is also made clear that the State of
Maharashtra is at liberty to take steps to make
such interim arrangements, as it may be advised,
to manage and to supervise the Wakf property and
other related aspects under the Wakf Act. The
::: Downloaded on – 09/06/2013 17:47:16 :::
50 WP2906.04
decision and/or action already taken including
the pending dispute or litigation shall be
governed by the Wakf Act.
27. So far as Writ Petition (L) No.357 of
2011 is concerned, it is clarified that by this
judgment we have not considered the relief
claimed by prayer clause c(iii) in respect of
wakfs list dated
ig 30-12-2004. Therefore, the
Petitioners shall be at liberty either to file
fresh petition claiming that relief or claim that
relief in other pending matters.
28. At the request of the learned Counsel
appearing for the Wakf Board, it is directed that
operation of this judgment shall remain stayed
for a period of 10 weeks from today. However,
during this period all the interim orders that
are operating as on today shall continue to
operate.
(Anoop V. Mohta, J.) (D.K.Deshmukh J.)
::: Downloaded on – 09/06/2013 17:47:16 :::
