{"id":28324,"date":"2011-09-29T00:00:00","date_gmt":"2011-09-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shaikh-yusuf-bhai-chawala-vs-state-of-maharashtra-on-29-september-2011"},"modified":"2018-12-09T08:21:36","modified_gmt":"2018-12-09T02:51:36","slug":"shaikh-yusuf-bhai-chawala-vs-state-of-maharashtra-on-29-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shaikh-yusuf-bhai-chawala-vs-state-of-maharashtra-on-29-september-2011","title":{"rendered":"Shaikh Yusuf Bhai Chawala vs State Of Maharashtra on 29 September, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shaikh Yusuf Bhai Chawala vs State Of Maharashtra on 29 September, 2011<\/div>\n
Bench: D.K. Deshmukh, Anoop V.Mohta<\/div>\n
                              1               WP2906.04\n                                                                Kambli\n\n\n         IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                            \n           ORDINARY ORIGINAL CIVIL JURISDICTION\n\n               WRIT PETITION NO. 2906 OF 2004\n\n\n\n\n                                    \n                             ...\n<\/pre>\n
     1.Shaikh Yusuf Bhai Chawala\n<\/p>\n
     2.Mudreka Bhai Saheb T.\n<\/p>\n
     3.Shaikh Yusuf Bhai Qasamjee<\/p>\n
     4.Shaikh Ismail M.F.Potia\n<\/p>\n
     5.Shaikh Abdul Tayeb Shaikh Qasimji
\n                                      …Petitioners<\/p>\n
         v\/s.\n<\/p>\n
     1.State of Maharashtra<\/p>\n
     2.Maharashtra State Board of Wakfs\n<\/p>\n
     3.The Settlement Commissioner
\n       and Director of Land Records,<\/p>\n
       Maharashtra State\n<\/p>\n
     4. Shahjzada Qaid Johar Bhai
\n        Saheb Ezuddin Saheb\n<\/p>\n
     5.Mustafa Bhai Saheb Safiyuddin\n<\/p>\n
     6.Shahzada Ali Asgar Bhai Saheb<\/p>\n
       Kalimuddin\n<\/p>\n
     7.Shaikh Ebrahim A.K.Faizullabhoy<\/p>\n
     8.Shaikh Mansoor Bhai M.J.Terai …Respondents<\/p>\n
                             WITH<\/p>\n
                 WRIT PETITION NO.899 OF 2011
\n                             …\n<\/p>\n
     1.Mrs.Zainub Moriswala\n<\/p>\n
     2.Mr.Zulfikar Moriswala<\/p>\n
     3.Mr.Yusuf Nagarwala
\n     Trustees of Rehmatbai Widow
\n     of Noorbhoy Jeewanji Morishwalla
\n     Charity Trusts                   …Petitioners<\/p>\n
                v\/s.\n<\/p>\n
                                    ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span><\/p>\n
                              2                  WP2906.04<\/p>\n
     1.State of Maharashtra\n<\/p>\n
     2.Maharashtra State Board of Wakfs\n<\/p>\n
     3.The Charity Commissioner,<\/p>\n
     4.The Settlement Commissioner
\n     and Director of Land Records\n<\/p>\n
     5.The Chief Executive Officer   …Respondents<\/p>\n
                           WITH<\/p>\n
              WRIT PETITION (L) NO.357 OF 2011<\/p>\n
                            …\n<\/p>\n
     1.Shaikh Yusuf Bhai Chawala\n<\/p>\n
     2.Shaikh Ismail M.F.Potia\n<\/p>\n
     3.Shaikh Mansoor Bhai M.J.Terai …Petitioners
\n          v\/s.\n<\/p>\n
     1.State of Maharashtra\n<\/p>\n
     2.Maharashtra State Board of Wakfs<\/p>\n
     3.The Charity Commissioner,\n<\/p>\n
     4.The Settlement Commissioner
\n     and Director of Land Records     …Respondents<\/p>\n
                            …\n<\/p>\n
     Mr.Y.H.Muchhala, Sr.Advocate with Mr.Sagheer Khan
\n     and Mr.Javed R. Patel and Mr.Vaibhav Nagvekar i\/b<\/p>\n
     Judicare Law Associates for the Petitioners in
\n     Writ Petition (L) No.357 of 2011 and Writ<\/p>\n
     Petition No.2906 of 2004.\n<\/p>\n
     Mr.Javed    Shaikh,    Special         Counsel              with
\n     Mr.R.M.Momin for Wakf Board.\n<\/p>\n
     Mr.Milind Sathe, Sr.Advocate with Ms.Jyoti Sinha
\n     i\/b   M\/s.Negandhi,   Shah  &   Himaytullah  for
\n     Petitioners in Writ Petition No.899 of 2011.\n<\/p>\n
     Mr.Ravi    Kadam,     Advocate   General    with
\n     Mr.S.R.Nargolkar Addl.G.P., Ms.Geeta Shastri,
\n     Mr.Milind More for Respondent No.1 in Writ
\n     Petition No.2906 of 2004, Respondents Nos. 13 &
\n     14 in WP (L) No.357 of 2011 and Respondents Nos.<\/span>
\n     1 & 3 in WP No.899 of 2011.<\/span>
\n                            …\n<\/p>\n
                                      ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span><\/p>\n
                                       3                     WP2906.04<\/p>\n
                                  CORAM: D.K.Deshmukh &
\n                                          Anoop V. Mohta, JJ<\/p>\n
                                  DATED: 21st September, 2011<\/p>\n
     JUDGMENT: (PER D.K.DESHMUKH, J.)<\/p>\n
     1.         The      subject          matter       of       all        these<\/p>\n
     Petitions is the same namely challenge to the<\/p>\n
     incorporation    ig  of Respondent No.2\/ Maharashtra<\/p>\n
     State     Board    of      Wakfs      and      things          connected<\/p>\n
     therewith.        Therefore, these petitions can be<\/p>\n
     conveniently disposed of by a common order.\n<\/p>\n
     2.         The     Petitioners        in     Writ       Petition          No.<\/p>\n
     2906 of 2004 are Muslims belonging to Shia Fatemi<\/p>\n
     Ismaili Tyebia Sect of Islam. They follow Shia<\/p>\n
     Fatimid    Ismaili      Tayebi       Schol      of     Muslim         Law.,<\/p>\n
     which    Shia     School     known      as     Fatimid          Law.        In<\/p>\n
     short, they are Shia Muslim.                  Petitioners Nos. 1<\/p>\n
     to   3    are     trusttes     of      “Sir        Admji        Peerbhoy<\/p>\n
     Santorium” created by a Scheme settled by this<\/p>\n
     court by its order dated 16-6-1931 in Suit No.<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span>
\n                                    4                  WP2906.04<\/p>\n
     1560 of 1927.      The said Trust is also registered<\/p>\n
     as a Public Trust under the Bombay Public Trust<\/p>\n
     Act.    The Petitioners Nos. 4 & 5 are trustees of<\/p>\n
     “Anjuman-i-Null         Bazaaar   Chhabdi         Bazaar          Niaz<\/p>\n
     Hussein Charitable Trust, which is registered as<\/p>\n
     a public Trust under the Bombay Public Trust Act.\n<\/p>\n
     3.         The Petitioners in Writ Petition No.899<\/p>\n
     of 2011 are also Dawoodi Bhora Muslims and they<\/p>\n
     are    trustees    of    Rehmatbai     widow       of      Noorbhoy<\/p>\n
     Jeewanji   Morishwalla       Charity    Trusts          registered<\/p>\n
     under the Bombay Public Trust Act.\n<\/p>\n
     4.         The    Petitioners     in   Writ       Petition          (L)<\/p>\n
     No.357 of 2011 are Muslims belonging to                           Shia<\/p>\n
     Fetemi Ismaili Tyebia sect. The Petitioners in<\/p>\n
     this petition are trustees of Sir Adamji Peerbhoy<\/p>\n
     Sanatorium, referred to above as also Anjuman-i-\n<\/p>\n
     Null    Bazzaar     Chhabdi       Bazaar        Niaz        Hussein<\/p>\n
     Charitable Trust, referred to above.\n<\/p>\n
     5.         In Writ Petition No.2906 of 2004 the<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span>
\n                                     5                   WP2906.04<\/p>\n
     Petitioners     are      challenging       the       Notification<\/p>\n
     dated    4-1-2002     issued       by    the     Government             of<\/p>\n
     Maharashtra. They are also seeking a directions<\/p>\n
     to the Government of Maharashtra to conduct a<\/p>\n
     fresh    survey     of       Wakfs       in     the       State         of<\/p>\n
     Maharashtra. They also challenge the notification<\/p>\n
     dated    13-11-2003      issued    by    the        Wakfs       Board,<\/p>\n
     whereby the list of         Wakfs was published.\n<\/p>\n
     .\n<\/p>\n
                In Writ Petition No.899 of 2011, the<\/p>\n
     Petitioners       challenge        the         Circular            dated<\/p>\n
     24-7-2003 issued by the Charity Commissioner of<\/p>\n
     State of Maharashtra stating therein that in view<\/p>\n
     of the provisions of           Section 43 of the                    Wakf<\/p>\n
     Act, the      Wakfs which are registered as Public<\/p>\n
     Trusts    would     cease    to     be    governed            by      the<\/p>\n
     provisions of the Public Trust Act.                   It is there<\/p>\n
     case that because the incorporation of the                         Wakfs<\/p>\n
     Board by Notification dated 4-1-2002 is itself<\/p>\n
     invalid and because they are not                    Wakfs within<\/p>\n
     the meaning of        Wakfs Act, they continue to be<\/p>\n
     governed by the provisions of the Bombay Public<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span>
\n                                     6                    WP2906.04<\/p>\n
     Trust Act.\n<\/p>\n
     .           The    Petitioners      in    Writ       Petition          (L)<\/p>\n
     No.357 of 2011 challenge the Notification dated<\/p>\n
     20th    October,    2010    issued        by     the        State        of<\/p>\n
     Maharashtra for resurvey of the                     Wakfs in the<\/p>\n
     State of Maharashtra. They also claim a direction<\/p>\n
     that the list of           Wakfs dated 13-11-2003 and<\/p>\n
     dated      30-12-2004
\n                   ig           stand     rectified         as     per      the<\/p>\n
     finding of the Five Members Committee. They also<\/p>\n
     seek a direction to the Charity Commissioner that<\/p>\n
     the     Charity    Commissioner       should          continue           to<\/p>\n
     supervise the working of the Trusts of which they<\/p>\n
     are trustees.\n<\/p>\n
     6.          The    aforesaid       reliefs     are      claimed          by<\/p>\n
     the    Petitioners    in    these        three      petitions            in<\/p>\n
     following factual background:\n<\/p>\n
     .           The Parliament enacted the                     Wakf Act,<\/p>\n
     1995 (hereinafter referred to as “the Act”).                           The<\/p>\n
     said Act came into force on 1st January, 1996. On<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span>
\n                                 7                  WP2906.04<\/p>\n
     1st December, 1997 the State Government issued a<\/p>\n
     Notification in exercise of its powers under sub-\n<\/p>\n
     section 1 of Section 4 of the              Wakf Act. That<\/p>\n
     Notification reads as under:\n<\/p>\n
           “In exercise of the powers conferred by
\n           sub-section (1) of section 4 of the Wakf
\n           Act, 1995 (43 of 1995), Governmentof
\n           Maharashtra hereby appoints,-<\/p>\n
           (a)      Settlement  Commissioner   and
\n           Director of Land Records, Maharashtra<\/p>\n
           State, Pune to be a Survey Commissioner
\n           of Wakfs; and<\/p>\n<\/blockquote>\n
           (b)      Additional   Commissioners   of
\n           Konkan, Nashik, Pune, Nagpur, Amravati
\n           and Aurangabad Revenue Divisions to be a
\n           Additional Survey Commissioner,<\/p>\n
           for the purpose of making a survey of
\n           Wakfs existing on the 1st day of January,<\/p>\n
           1996 in the State of Maharashtra.”\n<\/p><\/blockquote>\n
     The   Government    of         Maharashtra         issued            a<\/p>\n
     Notification   dated     4th     January,        2002.         That<\/p>\n
     Notification reads as under:\n<\/p>\n
           “In exercise of powers conferred by
\n           sub-clauses (i) and (iii) of clause (b)
\n           and clause (c) of sub-section (1) read
\n           with sub-section (3) of Section 14 of<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span>
\n                                    8                   WP2906.04<\/p>\n
             the Wakf Act, 1995 (43 of 1995), the
\n             Government of Maharashtra hereby,-\n<\/p><\/blockquote>\n
             (a) establishes a Board by the name of
\n             “The Maharashtra State Board of Wakfs”,
\n             having its Headquarters at Aurangabad;\n<\/p><\/blockquote>\n
             and<\/p>\n<\/blockquote>\n
             (b) nominates,-\n<\/p><\/blockquote>\n
               1. Shri Khan Yusuf Sarwar, Member of<\/p>\n
                  Parliament (Rajya Sabha);\n<\/p><\/blockquote>\n
               2. Smt.Shabana    Azmi,   Member    of
\n                  Parliament (Rajya Sabha);\n<\/p><\/blockquote>\n
               3. Shri Harun Aadam Solkar, Muslim Ex-
\n                  member of the Bar Council of the<\/p>\n
                  State; and\n<\/p><\/blockquote>\n
               4. Shri Chand Pasha Inamdar, Member of<\/p>\n
                  Muslim Organisation, to be the
\n                  Members of the said Board.\n<\/p><\/blockquote>\n
     .           Thus, by the Notification quoted above,<\/p>\n
     a    Wakf Board for the whole State of Maharashtra<\/p>\n
     with Headquarters at Auragabad was established<\/p>\n
     and four persons named in that Notification were<\/p>\n
     appointed     as    Members       of    that       Wakf        Board.\n<\/p>\n
     Pursuant to the Notification dated 1st December,<\/p>\n
     1997, quoted above, the Officers appointed to<\/p>\n
     conduct the survey, submitted the survey report<\/p>\n
     to   the    State   Government         on   31-1-2002.                 As<\/p>\n
     observed above, by Notification dated 4-1-2002,<\/p>\n
     four persons were appointed as Members of the<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span>
\n                                 9                  WP2906.04<\/p>\n
     Wakf Board.      Thereafter, appointment of members<\/p>\n
     of the      Wakf Board were made by Notification<\/p>\n
     dated 20-2-2002, 16-8-2002, 2-6-2002, 24-7-2002<\/p>\n
     and 13-11-2003.      On 24th July, 2003, the Charity<\/p>\n
     Commissioner of the State of Maharashtra issued a<\/p>\n
     Circular directing its office not to exercise<\/p>\n
     their powers under the Bombay Public Trust Act or<\/p>\n
     deal with any of the Muslims Public Trusts.                      The<\/p>\n
     said Circular stated that according to Section 43<\/p>\n
     of the     Wakf Act,      Wakf registered as public<\/p>\n
     trust should not be tried under the Bombay Public<\/p>\n
     Trust    Act   and   because   of   that      Circular           the<\/p>\n
     authorities under the Bombay Public Trust Act<\/p>\n
     refused to entertain any application or change<\/p>\n
     report submitted by the trustees of the Trusts,<\/p>\n
     which though registered under the Bombay Public<\/p>\n
     Trust Act,     according to the Charity Commissioner<\/p>\n
     and his sub-ordinate were Muslims Public Trusts.\n<\/p>\n
     There were several Writ Petitions filed in this<\/p>\n
     court    challenging   incorporation       of     the          Wakf<\/p>\n
     Board as also challenging its constitution and<\/p>\n
     appointment of various persons as its members.\n<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span><\/p>\n
                                       10                   WP2906.04\n\n     There     were     also        Petitions        in      this        court\n\n<\/pre>\n
     challenging the Circular issued by the Charity<\/p>\n
     Commissioner referred to above.                      On 13-11-2003,<\/p>\n
     the      Wakf    Board    published        a    list      of        Wakfs<\/p>\n
     treating all Muslims Public Trusts listed in<\/p>\n
     category in Maharashtra and suburban districts of<\/p>\n
     Maharashtra       by     the     Charity        Commissioner              as<\/p>\n
     Wakfs. Writ Petitions were filed in this court<\/p>\n
     challenging the list of
\n                      ig                   Wakfs prepared by the<\/p>\n
     Wakf Board.\n<\/p>\n
     7.         According to the Petitioners,                       trustees<\/p>\n
     of several Muslims Trusts, who felt aggrieved by<\/p>\n
     the list of        Wakf pulished by the                   Wakf Board<\/p>\n
     formed    an    Association       called       “Association             for<\/p>\n
     protection of Muslims            Wakfs and Trusts”.                   That<\/p>\n
     Association made a representation to the State<\/p>\n
     Government       requesting           it       to      cancel           the<\/p>\n
     Notification dated 13-11-2003.                  According to the<\/p>\n
     Petitioners, on 11th August, 2004, pursuant to the<\/p>\n
     representation made by the aforesaid Association,<\/p>\n
     a Committee under the Chairmanship of the Charity<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span>
\n                                         11                   WP2906.04<\/p>\n
     Commissioner was constituted to verify the list<\/p>\n
     of      Wakf published by the                 Wakf Board in the<\/p>\n
     light     of        the     representation            made        by       the<\/p>\n
     Association.           According to the Petitioners, this<\/p>\n
     Committee       bifurcated        the    list      of         Wakfs        and<\/p>\n
     submitted       the       bifurcated      list       to       the       State<\/p>\n
     Government. The State Government forwarded that<\/p>\n
     list    to     the        Wakf   Board.        According            to     the<\/p>\n
     Petitioners, the ig           Wakf Board by its Resolution<\/p>\n
     No.3 dated 9th March, 2005 unanimously resolved to<\/p>\n
     accept the report of the Bifurcation Committee<\/p>\n
     (Five    members          Committee)      which       was       appointed<\/p>\n
     under         the      Chairmanship           of        the         Charity<\/p>\n
     Commissioner.             According to the Petitioners, the<\/p>\n
     Wakf    Board       even    published     a     modified          list       of<\/p>\n
     Wakf     on     5th    May,      2005.        According            to      the<\/p>\n
     Petitioners, however, on 3rd April, 2008 the                             Wakf<\/p>\n
     Board passed a Resolution resolving to revoke the<\/p>\n
     rectified list of              Wakf dated 5th May, 2005.                     It<\/p>\n
     appears that, there were several complaints made<\/p>\n
     about     the         survey     conducted.                There         were<\/p>\n
     complaints made even with the Joint Parliamentary<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span>
\n                                        12                  WP2906.04<\/p>\n
     Committee and the Joint Parliamentary Committee<\/p>\n
     issued a direction on 20th October, 2008 to the<\/p>\n
     State Government to conduct resurvey of the Wakfs<\/p>\n
     in    the   State.          In    this    background,            on      20th<\/p>\n
     October, 2008 a Notification has been issued by<\/p>\n
     the State Government deciding                    to resurvey the<\/p>\n
     Wakfs in the State of Maharashtra and in exercise<\/p>\n
     of its power under sub-section (1) of Section 4<\/p>\n
     again appointing a survey officer for conducting<\/p>\n
     resurvey in the State of Maharashtra.\n<\/p>\n
     8.          In    these     facts,       these     Petitions           have<\/p>\n
     been filed.        By these Petitions the Petitioners<\/p>\n
     challenge        the     Notification           dated         4-1-2002,<\/p>\n
     whereby     the    Wakfs         Board    for      the       State         of<\/p>\n
     Maharashtra is constituted.               The Petitioners also<\/p>\n
     challenge constitution of the Wakf Board.                                The<\/p>\n
     Petitioners       also    challenge        the     list       of      Wakfs<\/p>\n
     prepared and published by the Wakf Board.                             It is<\/p>\n
     the   contention       of    the       Petitioners        that        while<\/p>\n
     conducting the re-survey the survey officer must<\/p>\n
     consider the report submitted by the Five Members<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span>
\n                                      13                   WP2906.04<\/p>\n
     Committee, which was constituted by the State<\/p>\n
     Government under the Chairmanship of the Charity<\/p>\n
     Commissioner      and    the    list      prepared        by      it    and<\/p>\n
     submitted    to    the         Wakf      Board     and       also       the<\/p>\n
     rectified list of          Wakfs which was prepared by<\/p>\n
     the    Wakf Board.        It is the contention of the<\/p>\n
     Petitioners      that    until       a   new      Wakf       Board        is<\/p>\n
     incorporated      and    the     list     of     the         Wakfs        is<\/p>\n
     published by the newly constituted
\n                    ig                                       Wakf Board,<\/p>\n
     because these      Wakfs are also              the Public Trusts<\/p>\n
     registered under the Bombay Public Trust Act, the<\/p>\n
     working of these trusts should be controlled and<\/p>\n
     supervised by the authorities of the Public Trust<\/p>\n
     Act.\n<\/p>\n
     9.          So     far         as        challenge           to         the\n\n\n\n\n\n     incorporation of the             Wakf Board in                State of\n\n<\/pre>\n
     Maharashtra is concerned, the Petitioners relying<\/p>\n
     on the scheme of the Act, particularly Section 4,<\/p>\n
     Section 13 and Section 14 of the Act submitted<\/p>\n
     that until the State Government has before it the<\/p>\n
     report of the survey, the State Government cannot<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span>
\n                                             14                    WP2906.04<\/p>\n
     take a decision in relation to the establishment<\/p>\n
     and    constitution       of       the            Wakf    Board        and      any<\/p>\n
     decision       taken     by       the         State        Government             to<\/p>\n
     incorporate the           Wakf Board in the absence of<\/p>\n
     survey report submitted by the Survey Officer in<\/p>\n
     invalid and inoperative.<\/p>\n
\n\n\n\n     10.             So     far        as        the    challenge            to      the\n\n\n\n\n                                       \n     constitution of the\n                      ig               Wakf Board is concerned, it\n\n     is    the    submission       of       the        Petitioners          that       in\n                    \n     order that constitution of                         the Wakf Board is\n\n<\/pre>\n
     valid, there must be at least seven members in<\/p>\n
     the Board. Therefore, the constitution of the<\/p>\n
     Board made on 4-1-2002 is invalid.                                In support<\/p>\n
     of its challenge to the validity of the list of<\/p>\n
     Wakfs       published    by       the             Wakf     Board,         it      is<\/p>\n
     submitted that that list was based on the survey<\/p>\n
     report       submitted       to    the        State        Government             on<\/p>\n
     31-1-2002.       As that report itself is found to be<\/p>\n
     defective by by the Joint Parliamentary Committee<\/p>\n
     as also by the State Government, the list of<\/p>\n
     Wakfs    based    on     that      report           obviously          is      also<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span>
\n                                       15                        WP2906.04<\/p>\n
     defective and therefore has to be set aside. It<\/p>\n
     is submitted that considering the importance of<\/p>\n
     survey and the purpose for which the survey is to<\/p>\n
     be conducted, the persons who may be interested<\/p>\n
     in      the        Wakfs        are         entitled              to        make<\/p>\n
     representations           to          the           survey             officer<\/p>\n
     representing their point of view and the survey<\/p>\n
     officer appointed under Section 4 is under a duty<\/p>\n
     to take into consideration such representations<\/p>\n
     made by the interested persons.                        It is submitted<\/p>\n
     that as the Committee under the Chairmanship was<\/p>\n
     constituted      by    the     State        Government             and      that<\/p>\n
     Committee prepared the list, that will be the<\/p>\n
     relevant material to be taken into consideration<\/p>\n
     by   the      survey     officer       while           conducting             the<\/p>\n
     resurvey pursuant to the Notification dated 20th<\/p>\n
     October, 2010.         It is submitted that the Muslims<\/p>\n
     Wakfs    which     are    registered              under        the      Bombay<\/p>\n
     Public     Trust   Act     are    to        be      governed           by     the<\/p>\n
     provisions of the Bombay Public Trust Act till<\/p>\n
     the machinery is in place constituted under the<\/p>\n
     Wakf Act to control the administration of the<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span>
\n                                         16                     WP2906.04<\/p>\n
     Wakfs   and      till       that   event         takes        place,         the<\/p>\n
     Charity     Commissioner           should          be      directed            to<\/p>\n
     entertain       the    applications            and      supervise            the<\/p>\n
     working of the Muslims Public Trusts, which are<\/p>\n
     registered under the Bombay Public Trust Act.\n<\/p>\n
     11.         We       have    heard       the      learned           Advocate<\/p>\n
     General on behalf of the State Government. In so<\/p>\n
     far as the challenge to the Notification dated<\/p>\n
     4-1-2002      incorporating             the      Public          Trust         is<\/p>\n
     concerned,       submission        of     the      learned          Advocate<\/p>\n
     General is that availability of the survey report<\/p>\n
     cannot be said to be a condition precedent for<\/p>\n
     the State Government to exercise its power of<\/p>\n
     incorporating         the      Wakf       Board.            The      learned<\/p>\n
     Advocate    General         relied       on     the     provisions             of<\/p>\n
     Section    13    of     the    Act.       The      learned         Advocate<\/p>\n
     General     also       invited          our     attention            to      the<\/p>\n
     provisions of Section 106 of the Act.                                        The<\/p>\n
     learned     Advocate         General          submitted          that        the<\/p>\n
     information in relation to the                            Wakfs can be<\/p>\n
     available       to    the     State       Government             not       only<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span>
\n                                      17                 WP2906.04<\/p>\n
     through the Survey Report, but also from other<\/p>\n
     soruces a       Wakf Board was in existence in a part<\/p>\n
     of the State under the Act repealed by                     Wakf Act,<\/p>\n
     1995, information with that Wakf Board can also<\/p>\n
     be used.           The learned Advocate General also<\/p>\n
     submitted that though it is true that initially<\/p>\n
     only four persons were appointed on the                             Wakf<\/p>\n
     Board, but however subsequently appointments were<\/p>\n
     made by the State Government.\n<\/p>\n
                     ig                              It is only in<\/p>\n
     Category under Section 14(1)(b)(iv) that there is<\/p>\n
     a     problem about electing the representatives,<\/p>\n
     otherwise,         the      representatives             from          all<\/p>\n
     categories were nominated on the               Wakf Board.\n<\/p>\n
     12.           Now, first taking up for consideration,<\/p>\n
     the     question      whether    the     Notification             dated<\/p>\n
     4-1-2002 incorporating the               Wakf Board for the<\/p>\n
     State    of    Maharashtra      is   valid      or     invalid          is<\/p>\n
     concerned,      for      consideration    of      this       question<\/p>\n
     sub-sections 1 to 3 of Section 4 of                  Wakf Act are<\/p>\n
     relevant.      They read as under:\n<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span><\/p>\n
                        18                WP2906.04<\/p>\n
      4(1) Preliminary survey of Wakfs.- The
\n      State Government may, by notification
\n      in the Official Gazette, appoint for<\/p>\n
      the State a Survey Commissioner of
\n      Wakfs   and   as   many    Additional   or
\n      Assistant    Survey    Commissioners    of<\/p>\n
      Wakfs as may be necessary for the
\n      purpose of making a survey of wakfs
\n      existing in the State at the date of
\n      the commencement of this Act.\n<\/p>\n
      (2) All     Additional    and    Assistant
\n      Survey Commissioners of Wakfs shall
\n      perform their functions under this Act
\n      under the general supervision and
\n      control of the Survey Commissioner of<\/p>\n
      wakfs.\n<\/p>\n
      (3) The Survey Commissioner shall,
\n      after making such inquiry as he may
\n      consider necessary, submit his report,<\/p>\n
      in respect of wakfs existing at the
\n      date of the commencement of this Act
\n      in the State or any part thereof, to
\n      the State Government containing the
\n      following particulars, namely:-\n<\/p>\n
      (a) the number of wakfs in the State<\/p>\n
      showing the Shia wakfs and Sunni wakfs
\n      separately:\n<\/p>\n
      (b) the nature and objects of each
\n      wakf;\n<\/p>\n
      (c) the gross income of the property
\n      comprised in each wakf;\n<\/p>\n
      (d)   the   amount  of  land   revenue,
\n      cesses, rates and taxes payable in
\n      respect of each wakf;\n<\/p>\n
      (e) the expenses incurred in the
\n      relisation of the income and the pay
\n      or other remuneration of the mutawalli
\n      of each wakf; and\n<\/p>\n
      (f) such other particulars relating to
\n      each wakf as may be prescribed.\n<\/p>\n
                               ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span><\/p>\n
                                     19               WP2906.04\n\n\n\n     .         Thus,      Section    4   vests    powers         in     the\n\n\n\n\n                                                                   \n<\/pre>\n
     State Government to appoint the survey officer<\/p>\n
     for the purpose of making “a survey of Wakfs<\/p>\n
     existing in the State at the date of commencement<\/p>\n
     of the Act.    The date of commencement of the Act<\/p>\n
     is 1-1-1996.      In making the survey, the survey<\/p>\n
     officers have to collect the information on the<\/p>\n
     number of Wakfs in the State and also to find out<\/p>\n
     how many of them are Shia Wakfs and how many of<\/p>\n
     them are Sunni Wakfs.           The survey officers have<\/p>\n
     to   collect   the    information     about       the      income,<\/p>\n
     expenditure, properties of such Wakfs.                         Under<\/p>\n
     Section 13 of the Wakf Act, the State Government<\/p>\n
     is empowered to establish a Board of Wakfs.                        The<\/p>\n
     State Government        has also been given power to<\/p>\n
     constitute a separate Wakf Board for Shia and<\/p>\n
     Sunni Wakfs,      under certain conditions specified<\/p>\n
     in the Act. The same Section provides that the<\/p>\n
     Wakf Board would be a body corporate                         having<\/p>\n
     perpetual succession and a common seal.                    Section<\/p>\n
     13 reads as under:\n<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:47:15 :::<\/span><\/p>\n
                                   20                WP2906.04<\/p>\n
              13. Incorporation.- (1) With effect<\/p>\n
              from such date as the State Government
\n              may, by notification in the Oficial
\n              Gazette, appoint in this behalf, there<\/p>\n
              shall be established a Board of Wakfs
\n              under such name as may be specified in
\n              the notification.\n<\/p>\n
              (2) Notwithstanding            anything
\n              contained in sub-section (1), if the
\n              Shia wakfs in any State constitute in
\n              number more than fifteen per cent of
\n              all the wakfs in the State or if the<\/p>\n
              income of the properties of the Shia
\n              Wakfs in the State Constitutes more<\/p>\n
              than fifteen percent of the total
\n              income of properties of all the Wakfs
\n              in the State, the State Government<\/p>\n
              may, by notification in the Official
\n              Gazette, establish a Board of Wakfs
\n              each for Sunni wakfs and for Shia
\n              wakfs under such names as may be
\n              specified in the notification.\n<\/p>\n
              (3) The   Board   shall   be  a  body<\/p>\n
              corporate having perpetual succession
\n              and a common seal with power to
\n              acquire and hold property and to
\n              transfer any such property subject to<\/p>\n
              such conditions and restrictions as
\n              may be prescribed and shall by the
\n              said name sue and be sued.\n<\/p>\n
     13.           Perusal of the above quoted provisions<\/p>\n
     of Section 13 shows that sub-section 1 of Section<\/p>\n
     13    vests    powers   in   the   State     Government             to<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                      21                       WP2906.04<\/p>\n
     establish a Board of Wakf. Sub-section 2 lays<\/p>\n
     down the manner in which that power is to be<\/p>\n
     exercised. At the time of taking a decision to<\/p>\n
     constitute       the    Board        of        Wakf,         the        State<\/p>\n
     Government has to          consider as to whether it<\/p>\n
     wants to constitute one Board of Wakf or in view<\/p>\n
     of the provisions of sub-section (2) of Section<\/p>\n
     13,   it    is   necessary      for       it      to     constitute             a<\/p>\n
     separate Board of Shia Wakfs.\n<\/p>\n
                       ig                              It was submitted<\/p>\n
     by the learned Advocate General that the power<\/p>\n
     conferred on the State Government by sub-section<\/p>\n
     2 of Section 13 is a discretionary power.                                   The<\/p>\n
     State Government may constitute a Shia Board or<\/p>\n
     may not constitute a Shia Board.                     In our opinion,<\/p>\n
     the submission is not well founded. Because once<\/p>\n
     it is established that Shia Wakfs in the                                State<\/p>\n
     constitutes in number more than fifteen percent<\/p>\n
     of the Wakfs in the State or if it is established<\/p>\n
     that the income of the properties of Shia Wakfs<\/p>\n
     in    the   State      constitutes         more          than       fifteen<\/p>\n
     percent of the total income of the properties of<\/p>\n
     all the Wakfs in the State, the State Government<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                      22                  WP2906.04<\/p>\n
     cannot deny constitution of a separate Wakf Board<\/p>\n
     for Shia Wakfs.           In that situation, the State<\/p>\n
     Government will have to constitute two Boards. In<\/p>\n
     our opinion, the provisions of sub-section 2 of<\/p>\n
     Section 13 have to be read with the provisions of<\/p>\n
     sub-section 3        of section 4 of the Act.                        Sub-\n<\/p>\n
     section 3 of Section 4 of the Act casts a duty on<\/p>\n
     the Survey Commissioner to collect information as<\/p>\n
     to the number of Shia
\n                    ig                    Wakfs and Sunni               Wakfs<\/p>\n
     separately.         He   is     also   required         to     collect<\/p>\n
     information     on       the    income,       expenditure              and<\/p>\n
     properties     of    Shia        Wakfs     and      Sunni            Wakf<\/p>\n
     separately.     A duty on the Survey Commissioner is<\/p>\n
     cast by sub-section (3) of Section 4 to collect<\/p>\n
     information in that regard obviously to enable<\/p>\n
     the State Government to take a decision, which is<\/p>\n
     contemplated by sub-section (2) of Section 13 of<\/p>\n
     the    Act.    In    our      opinion,    the       provisions           of<\/p>\n
     Section 13      and Section 4 will have to be read<\/p>\n
     together and the State Government will have to<\/p>\n
     wait    for   making        a   decision       in     relation           to<\/p>\n
     incorporation of         Wakf Board in the State till it<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                     23                    WP2906.04<\/p>\n
     receives the report of survey conducted under<\/p>\n
     Section    4.     Section      13     does     not      contemplate<\/p>\n
     constitution of additional Board for the Shia.\n<\/p>\n
     Section 13 contemplates constitution of one Board<\/p>\n
     for Shia and Sunni             Wakfs or constitution of<\/p>\n
     separate      Board     for    Shia      and     Sunni             Wakfs<\/p>\n
     depending on the number and income of Shia Wakfs<\/p>\n
     in the State.          In our opinion,            therefore, the<\/p>\n
     power to establish the
\n                      ig                 Wakf Board will have to<\/p>\n
     be exercised at the same time and it is at that<\/p>\n
     time   that     the    State   Government          will       have       to<\/p>\n
     decide whether it wants to have one Board for the<\/p>\n
     Shia and Sunni wakfs or taking into consideration<\/p>\n
     the    number and income of the              Wakfs        a separate<\/p>\n
     Board for Sunni           Wakfs and Shia                Wakfs. The<\/p>\n
     survey that is to be done under Section 4 is<\/p>\n
     survey     of    the     wakfs      as    on      the        date        of<\/p>\n
     commencement of the Act. There is no period fixed<\/p>\n
     by the Act for the state Government to order<\/p>\n
     survey. Whenever the State Government decides to<\/p>\n
     conduct survey, the survey in terms of Section<\/p>\n
     4(1) has to be survey of Wakfs on the date of<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                    24                 WP2906.04<\/p>\n
     commencement of the Act. The Act also does not<\/p>\n
     fix any time limit for the State Government to<\/p>\n
     exercise    its    power    of     establishing          the      Wakf<\/p>\n
     Board. There is no direct provision in the Act<\/p>\n
     which lays down that before establishment of the<\/p>\n
     Wakf Board under Section 13 the State Government<\/p>\n
     must make any order for survey. If the argument<\/p>\n
     of the State Government\/Respondent in this case<\/p>\n
     is accepted, it will have to be held that the<\/p>\n
     State Government can establish the Wakf Board<\/p>\n
     under Section 13 without ordering the survey. But<\/p>\n
     for preparing the list of Wakfs under Section<\/p>\n
     5(2)    survey    is   necessary.     Therefore,           can      the<\/p>\n
     State    Government      without     ordering         survey          in<\/p>\n
     exercise    of     its     power    under      Section          13(1)<\/p>\n
     establish   a     common    Wakf    Board     and      thereafter<\/p>\n
     order survey. If the report of survey received<\/p>\n
     after establishing the Wakf Board shows that the<\/p>\n
     number of Shia wakfs in the State is such that<\/p>\n
     according to Section 13(2), the Shia wakfs are<\/p>\n
     entitled to have a separate Shia Wakf Board, in<\/p>\n
     that situation the State Government will not be<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                       25                      WP2906.04<\/p>\n
     in a position to constitute a separate Board for<\/p>\n
     Shia Wakfs, because the Act does not contemplate<\/p>\n
     the Government establishing any additional Board<\/p>\n
     or     Boards.     It    also      does     not          provide        for<\/p>\n
     bifurcation of one Board into two Boards. Had it<\/p>\n
     been the intention of the Legislature to empower<\/p>\n
     the    State     Government      to     constitute          additional<\/p>\n
     Board,    it     would    have    made     the       provision          for<\/p>\n
     division or bifurcation of the existing Board,<\/p>\n
     because     without      bifurcating           or    dividing           the<\/p>\n
     existing        Board,    it     will     be        impossible            to<\/p>\n
     constitute        additional          Board.        If     the       State<\/p>\n
     Government has already constituted the unified<\/p>\n
     Board for both Shia and Sunni Wakfs, then if the<\/p>\n
     additional       Board     for     Shia     wakfs          is     to      be<\/p>\n
     constituted, it would be necessary to delete from<\/p>\n
     the unified Board, the Shia wakf. There is no<\/p>\n
     provision made in the Act for such bifurcation.\n<\/p>\n
     In such situation, therefore, in our opinion, the<\/p>\n
     State Government has to order survey first and<\/p>\n
     then     wait    for     the     survey    report           and      after<\/p>\n
     receiving the survey report the State Government<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                    26                    WP2906.04<\/p>\n
     has to take proper decision about establishment<\/p>\n
     of    Wakf     Board.     After           incorporating                  or<\/p>\n
     establishing a Board the State Government has to<\/p>\n
     take steps for constitution of the Wakf Board<\/p>\n
     immediately, because without making appointment<\/p>\n
     or   nominating   members      on    the      Wakf      Board        mere<\/p>\n
     establishment     of    the        Wakf    Board         surves          no<\/p>\n
     purpose. When the State Government considers the<\/p>\n
     question of constitution of the Wakf Board, it<\/p>\n
     has to take into consideration the provisions of<\/p>\n
     Section 14(6) of the Act. Section 14(6) reads as<\/p>\n
     under:-\n<\/p>\n
               14(6) In determining the number of Shia<\/p>\n
               members or Sunni members of the Board,
\n               the State Government shall have regard to
\n               the number and value of Shia Wakfs and
\n               Sunni Wakfs to be administered by the<\/p>\n
               Board and appointment of the members
\n               shall be made, so far as may be, in
\n               accordance with such determination.\n<\/p><\/blockquote>\n
     .           Thus, the number and value of Shia and<\/p>\n
     Sunni Wakfs become relevant for constitution of<\/p>\n
     the Wakf Board.     Authentic information can become<\/p>\n
     available to the State Government regarding the<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                       27                WP2906.04<\/p>\n
     number      and    value    of   the   Wakfs      only     from       the<\/p>\n
     report of the Survey Commissioner appointed under<\/p>\n
     Section 4 of the Act.\n<\/p>\n
     .                In this view of the matter, therefore,<\/p>\n
     in the present case as it is an admitted position<\/p>\n
     that the State Government issued the Notification<\/p>\n
     incorporating the            Wakf Board in the State of<\/p>\n
     Maharashtra on 4-1-2002, when it did not have<\/p>\n
     before      it    the   report   of    the    survey       conducted<\/p>\n
     under Section 4. That report became available to<\/p>\n
     the    State      Government      only       on   31-1-2002.            By<\/p>\n
     incorporating            Wakf    Board   in       the     State         of<\/p>\n
     Maharashtra on 4-1-2002, the                  State Government<\/p>\n
     denied to itself an opportunity to consider the<\/p>\n
     survey report to find out whether the information<\/p>\n
     disclosed by that report requires it to exercise<\/p>\n
     its power under sub-section 2 of Section 13 of<\/p>\n
     constituting a separate Board for Shia                          Wakfs.\n<\/p>\n
     In    our   opinion,       the   State   Government          was      not<\/p>\n
     justified in denying to itself the exercise of<\/p>\n
     power under sub-section 2 of Section 13 by not<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                      28                      WP2906.04<\/p>\n
     waiting to receive the survey report. The State<\/p>\n
     Government       itself       had     appointed            the        Survey<\/p>\n
     Officer in the year 1997 and it waited till 4th<\/p>\n
     January, 2002 to incorporate the Wakf Board when<\/p>\n
     it    was   to   receive       the    survey         report          on    31st<\/p>\n
     January.     The      only    reason      that        is      given        for<\/p>\n
     incorporating the            Wakf Board on 4-1-2002 is the<\/p>\n
     provisions       of    sub-section        1   of     Section          5.     It<\/p>\n
     reads as under:-\n<\/p>\n
                 5(1) On receipt of a report under sub-
\n                 section (3) of Section 4, the State
\n                 Government shall forward a copy of the
\n                 same to the Board.\n<\/p><\/blockquote>\n
     14.         It        was    submitted          by       the         learned<\/p>\n
     Advocate General relying on the provisions of<\/p>\n
     sub-section 1 of section 5 of the Act that sub-\n<\/p>\n
     section (1) of Section 5 casts obligation on the<\/p>\n
     State Government to forward a copy of the survey<\/p>\n
     report to the Board.                According to the learned<\/p>\n
     Advocate General, therefore, it is obligatory for<\/p>\n
     the    State     Government          to   constitute             a     Board<\/p>\n
     before it receives the survey report from the<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                      29                WP2906.04<\/p>\n
     survey officer, so that as soon as the report is<\/p>\n
     received, , copy of that report can be forwarded<\/p>\n
     to the Board.\n<\/p>\n
     .          In our opinion, this submission is not<\/p>\n
     well    founded.    The    words       “on    receipt         of     the<\/p>\n
     report” , in our opinion, do not imply that a<\/p>\n
     copy of the report is to be forwarded by the<\/p>\n
     State    Government
\n                     ig        immediately    on      receiving           the<\/p>\n
     report. The State Government on receiving the<\/p>\n
     report can consider the question of incorporating<\/p>\n
     the Board under Section 13 and on constituting<\/p>\n
     the Board can forward a copy of that report to<\/p>\n
     that Board.\n<\/p>\n
     .         In       our      opinion,         therefore,              the<\/p>\n
     Notification       dated    4-1-2002     incorporating               the<\/p>\n
     Wakf Board is contrary to the scheme of the Act<\/p>\n
     and is, therefore, liable to be set aside.<\/p>\n
\n\n\n\n     15.        So      far     as    the    challenge           to       the\n\n     constitution of          Wakf Board is concerned, it is\n\n\n\n\n                                             ::: Downloaded on - 09\/06\/2013 17:47:16 :::<\/span>\n                               30              WP2906.04\n\n<\/pre>\n
     Section 14 of the Act which is relevant. It reads<\/p>\n
     as under:-\n<\/p>\n
     14. Composition of Board.-\n<\/p>\n
         (1) The Board for a State and the Union
\n         Territory of Delhi shall consist of-\n<\/p><\/blockquote>\n
         (a) a Chairperson;\n<\/p><\/blockquote>\n
         (b) one and not more than two members, as
\n         the State Government may think fit, to be<\/p>\n
         elected from each of the electoral colleges
\n         consisting of-\n<\/p><\/blockquote>\n
         (i) Muslim Members of Parliament from the<\/p>\n
         State or, as the case may be, the Union
\n         Territory of Delhi;\n<\/p><\/blockquote>\n
         (ii)   Muslim    Members      of        the         State
\n         Legislature;\n<\/p><\/blockquote>\n
         (iii) Muslim Members of the Bar Council of
\n         the State, and<\/p>\n<\/blockquote>\n
         (iv) mutawallis of the Wakfs having an
\n         annual income of rupees one lakh and above;\n<\/p><\/blockquote>\n
         (c) one and not more than two members to be
\n         nominated    by    the    State   Government
\n         representing eminent Muslim Organisations;\n<\/p><\/blockquote>\n
                                    ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span><\/p>\n
                         31               WP2906.04<\/p>\n<\/blockquote>\n
      (d) one and not more than two members to be
\n      nominated by the State Government, each from<\/p>\n
      recognised scholars in Islamic Theology;\n<\/p><\/blockquote>\n
      (e) an officer of the State Government not,
\n      below the rank of Deputy Secretary.\n<\/p>\n
      (2) Election of the members specified in
\n      Clause (b) of sub-section (1) shall be held
\n      in   accordance    with   the   system   of
\n      proportional representation by means of a
\n      single transferable vote, in such manner as<\/p>\n
      may be prescribed:\n<\/p>\n
      Provided that where the number of Muslim
\n      Members of Parliament, the State Legislature<\/p>\n
      or the State Bar Council, as the case may
\n      be, is only one, such Muslim Member shall be
\n      declared to have been elected on the Board:\n<\/p>\n
      Provided further that where there are no
\n      Muslim Members in any of the categories<\/p>\n
      mentioned in sub-clauses (i) to (iii) of
\n      Clause (b) of sub-section (1) the ex-Muslim
\n      Members of Parliament, the State Legislature
\n      or ex-member of the State Bar Council, as<\/p>\n
      the case may be, shall constitute the
\n      electoral college.\n<\/p>\n
      (3) Notwithstanding anything contained in
\n      this section, where the State Government is<\/p>\n
      satisfied for reasons to be recorded in
\n      writing,    that  it   is    not  reasonably
\n      practicable    to constitute   an  electoral
\n      college for any of the categories mentioned
\n      in sub-clauses (i) to (iii) of Clause (b) of
\n      sub-section (1), the State Government may
\n      nominate such persons as the members of the<\/p>\n
                               ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                         32               WP2906.04<\/p>\n
      Board as it deems fit.\n<\/p>\n
      (4) The number of elected members of the
\n      Board shall, at all times be more than the
\n      nominated members of the Board except as<\/p>\n
      provided under sub-section (3).\n<\/p>\n
      (5) Where there are Shia Wakfs but no
\n      separate Shia Wakfs Board exists, at least<\/p>\n
      one of the members from the categories
\n      listed in sub-section (1), shall be a Shia
\n      Muslim.\n<\/p>\n
      (6) In determining the number of Shia
\n      members or Sunni members of the Board, the<\/p>\n
      State Government shall have regard to the
\n      number and value of Shia Wakfs and Sunni
\n      Wakfs to be administered by the Board and<\/p>\n
      appointment of the members shall be made, so
\n      far as may be, in accordance with such
\n      determination.\n<\/p>\n
      (7) In the case of the Union Territory other
\n      than Delhi, the Board shall consist of not<\/p>\n
      less than three and not more than five
\n      members to be appointed by the Central
\n      Government from amongst the categories of
\n      persons specified in sub-section (1):\n<\/p>\n
      Provided that there shall be one mutawalli
\n      as the member of the Board.\n<\/p>\n
      (8) Whenever the Board is constituted or
\n      reconstituted, the members of the Board
\n      present at a meeting convened for the
\n      purpose   shall  elect   one   from  amongst
\n      themselves as the Chairperson of the Board.\n<\/p>\n
                               ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span><\/p>\n
                                      33                    WP2906.04\n\n           (9) The members of the Board shall                                   be\n           appointed   by  the   State   Government                             by\n<\/pre>\n
           notification in the Official Gazette.\n<\/p>\n
     16.              It   is       common        ground           that         by\n\n     Notification      dated    4-1-2002         only      four       Members\n\n<\/pre>\n
     were appointed on the Board. Perusal of the above<\/p>\n
     quoted    provisions       show      that      Section          14(1)(b)<\/p>\n
     defines only the electoral colleges. It does not<\/p>\n
     lay down eligibility for being a candidate to be<\/p>\n
     elected from the electoral colleges defined by<\/p>\n
     Section 14(1)(b).         For example, it lays down that<\/p>\n
     one and not more than two members as may be<\/p>\n
     decided by the State Government may be elected<\/p>\n
     from the electoral colleges consisting of Muslims<\/p>\n
     Members of Parliament from the State.                            It does<\/p>\n
     not lay down as to who can be a candidate at such<\/p>\n
     election.       In any case, it does not lay down that<\/p>\n
     only the Muslims Members of Parliament from the<\/p>\n
     State can be a candidate to be elected from this<\/p>\n
     electoral colleges.            Same is the case with the<\/p>\n
     electoral college constituted under Section 14(1)<\/p>\n
     (b)(ii)     ,     (iii)    &      (iv).       Perusal           of       the<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                          34                   WP2906.04<\/p>\n
     Notification dated 4-1-2002, however, shows that<\/p>\n
     the State Government was under the impression<\/p>\n
     that    it    is    only     the     Muslims        members          of      the<\/p>\n
     Parliament from the State, who can be nominated<\/p>\n
     or elected from his constituency.                          Same is the<\/p>\n
     case with Section 14(1)(b)(iii) nomination. So<\/p>\n
     far as constitution of the Maharashtra Board is<\/p>\n
     concerned, we have been pointed out the Eighth<\/p>\n
     Report of the Joint Parliamentary Committee on<\/p>\n
     the functioning of the               Wakf Board. In paragraph<\/p>\n
     2.33 of that report it is observed “The Principal<\/p>\n
     Secretary      informed            that       the     Government              of<\/p>\n
     Maharashtra had              constituted Maharashtra State<\/p>\n
     Board    of    Wakfs.        The    Board       constituted             of      4<\/p>\n
     Members      i.e.   2   Members          of   Parliament,            1.      Ex-\n<\/p>\n
     Member of the bar Council of the State and one<\/p>\n
     Member from Muslim Organisation vide Government<\/p>\n
     Notification No.Wakf-10\/2001\/C.R.154\/L-3 dated 4th<\/p>\n
     January,      2002.     The    process         of     appointing            the<\/p>\n
     remaining members of the Board was underway. The<\/p>\n
     Sub-Committee asked him to check up from their<\/p>\n
     Law    Department       as    to     whether        the      Wakf       Board<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                       35                    WP2906.04<\/p>\n
     constituted     by    Maharashtra            Government           can       be<\/p>\n
     treated    as   the       wakf   Board        constituted             under<\/p>\n
     Section    14(1)     of    the        Wakf    Act,       1995,        which<\/p>\n
     requires minimum seven members for a Wakf Board<\/p>\n
     to be duly constituted and share their opinion<\/p>\n
     with the Sub-Committee”.\n<\/p>\n
     17.         So far as Ninth Report of the Joint<\/p>\n
     Parliamentary Committee on wakfs is concerned, it<\/p>\n
     is paragraph 3.32 and 3.33 of that report are<\/p>\n
     relevant. They read as under:\n<\/p>\n
               3.32 After the enactment of the Wakf
\n               Act, 1954, Maharashtra did not adopt
\n               the Act for the entire State of<\/p>\n
               Maharashtra. Only Marathwada Region of
\n               Maharastra had Wakf Board and in the<\/p>\n
               other region of Maharashtra, the Wakf
\n               properties were governed by the Bombay
\n               Public Trust Act. After the enactment
\n               of the Wakf Act, 1995, the State of<\/p>\n
               Maharashtra   adopted   the   Act   and
\n               implemented the Act for the entire
\n               State and constituted the Wakf Board.
\n               The present position of the Board is
\n               that six of its members have retired<\/p>\n
               and   two   have  resigned   in   2005.
\n               Currently, there are only two members
\n               in the Board. The Government with just
\n               two member on the Board cannot function
\n               and as such the Board practically does
\n               not exist.\n<\/p><\/blockquote>\n
                                                  ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span><\/p>\n
                                     36                     WP2906.04<\/p>\n
              3.33 The Principal Secretary, Minority
\n              Development, Government of Maharashtra,
\n              further submitted the position of the<\/p>\n
              Maharashtra Wakf Board before the
\n              Committee on the 24th July, 2008, and
\n              stated that the two members who had<\/p>\n
              resigned   in  2005   and  2007   would
\n              continue to be members as per the
\n              provisions of the Act, till their
\n              successors    were    appointed.    The<\/p>\n
              Committee was assured that the State
\n              Government would be able to constitute
\n              the Board within three months. As
\n              regards the elected members, it would
\n              take a little more time. The Committee<\/p>\n
              is unable to appreciate the explanation
\n              of the Principal Secretary. For all<\/p>\n
              practical purposes there is no Board in
\n              Maharashtra. The Government has neither
\n              appointed Administrator to discharge<\/p>\n
              the functions of the Board nor it has
\n              superseded the Board as per Section 99
\n              of the Wakf Act.(emphasis supplied)<\/p>\n
     It is thus clear that presently there are only<\/p>\n
     two Members of the Board. This position was not<\/p>\n
     disputed before us. Perusal of Section 14 makes<\/p>\n
     it    clear   that   a    wakf      Board      having         only       two<\/p>\n
     members cannot be said to be properly constituted<\/p>\n
     and    therefore,        we   have     to        hold        that        the<\/p>\n
     constitution of Wakf Board of Maharashtra is not<\/p>\n
     in accordance with law.\n<\/p><\/blockquote>\n
                                                 ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span><\/p>\n
                                   37                   WP2906.04<\/p>\n<\/blockquote>\n
     18.          The next question to be considered is<\/p>\n
     whether the list of wakfs prepared and published<\/p>\n
     by the Wakf Board is valid or invalid.                     The list<\/p>\n
     is prepared and published under sub-section 2 of<\/p>\n
     Section 5 of the Act. It reads as under:\n<\/p><\/blockquote>\n
             (2) The Board shall examine the report
\n             forwarded to it under sub-section (1)
\n             and publish in the Official Gazette a<\/p>\n
             list of Sunni Wakfs or Shia Wakfs in
\n             the State, whether in existence at the<\/p>\n
             commencement of this Act or coming into
\n             existence thereafter, to which the
\n             report relates, and containing such<\/p>\n
             other particulars as may be prescribed.\n<\/p><\/blockquote>\n<\/blockquote>\n
     Thus, the list to be prepared by the Board is<\/p>\n
     based   on    the   report   of   the      survey         which        is<\/p>\n
     conducted under Section 4 of the Act. So far as<\/p>\n
     the survey conducted under the Act is concerned,<\/p>\n
     the Joint Parliamentary Committee found that the<\/p>\n
     survey was not conducted properly.                        Following<\/p>\n
     paragraphs 4.16, 4.17, 4.18 and 4.19 in the Ninth<\/p>\n
     Report of the Joint Parliamentary Committee in<\/p>\n
     our opinion are relevant. They read as under:\n<\/p><\/blockquote>\n
                                             ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span><\/p>\n
                         38               WP2906.04<\/p>\n
      4.16 The earlier JPC on Wakf, in its
\n      Eighth Report, presented on 29.07.2003
\n      noted   that   the   survey   was   almost<\/p>\n
      completed, except in Bombay suburban
\n      District. However, it was alleged by
\n      the members of the public during the<\/p>\n
      visit of the Committee that the survey
\n      work had not been properly carried out
\n      and a large number of Wakf properties
\n      had been left out. It was also informed<\/p>\n
      that   even    those   properties    which
\n      physically existed and were Wakf by
\n      user, were not included in the survey
\n      on flimsy grounds. It was revealed that
\n      in   the   revenue   records,   the   Wakf<\/p>\n
      properties were mentioned in the name
\n      of Mutawallis or in the name of lessees<\/p>\n
      and were not shown as Wakf properties
\n      which made the sale of the properties
\n      easy. It was also informed that no<\/p>\n
      physical survey was done and only
\n      proformas were sent to the Mutawallis
\n      for furnishing the details of the Wakf
\n      properties. The State Government had
\n      also admitted that there were errors in<\/p>\n
      identifying the Wakf properties. Later
\n      on, the State Government informed that<\/p>\n
      the survey in Bombay sub-urban areas
\n      had   also   been   completed   and   they
\n      supplied a list of the Wakf properties
\n      surveyed to the then Committee. The<\/p>\n
      lists so received prima facie showed
\n      the properties of Marathwada region;\n<\/p><\/blockquote>\n
      the Wakf properties in other regions
\n      were negligible which might not be
\n      true. Keeping the situation in view,<\/p>\n
      the then Committee recommended that the
\n      provisions of the Wakf Act, 1995 should
\n      be followed scrupulously for the survey
\n      of Wakf properties and the procedure
\n      adopted be made transparent and open to
\n      the public, with a remedy to correct
\n      errors   in   the   survey.   The   Survey<\/p>\n
                               ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                        39                WP2906.04<\/p>\n
      Commissioner    should    undertake    a
\n      physical   survey   of  all   the   Wakf
\n      properties after giving wide publicity<\/p>\n
      through   the   media.   The   Committee
\n      further recommended that after the
\n      survey was completed, the lists of Wakf<\/p>\n
      properties should be published properly
\n      in the Official Gazette as required
\n      under the Act. The Committee further
\n      recommended that the entries of Wakfs<\/p>\n
      should be properly made in the revenue
\n      records.\n<\/p>\n
      4.17 The Committee, now in view of the
\n      flaws in the survey undertaken earlier<\/p>\n
      and     the      earlier      Committee’s
\n      recommendation to correct errors in the<\/p>\n
      survey, sought to know the present
\n      status of survey during its visit
\n      undertaken in June, 2007. The Chief<\/p>\n
      Executive     Officer    informed     the
\n      Committee   that   the   Government   had
\n      initiated survey vide the Government
\n      Notification dated 01.12.1997 through
\n      the Settlement Commissioner. Despite<\/p>\n
      complaints that the survey had not been
\n      done properly and also the last Joint<\/p>\n
      Parliamentary Committee had asked the
\n      Government to undertake re-survey, it
\n      was yet to be undertaken.\n<\/p>\n
      4.18 Further explaining the position,
\n      the State Wakf Board, in its note
\n      giving the latest position of the
\n      survey submitted to the Committee in
\n      July, 2008, as under:\n<\/p>\n
              “The survey of Wakfs and its
\n      properties   was   taken   up   by    the
\n      Government of          Maharashtra vide
\n      Revenue     and    Forest     Department
\n      Notification   No.  WKF-1097\/L-    3\/CR95
\n      dated   01.12.1997   and    survey    was<\/p>\n
                               ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                     40                  WP2906.04<\/p>\n
           completed   and    submitted    to   the
\n           Government.   Thus,   the   survey   was
\n           completed before receipt of proceedings<\/p>\n
           of   the           Joint   Parliamentary
\n           Committee’s VIIIth Report, which had
\n           suggested the survey to be       carried<\/p>\n
           out again in a transparent way. It has
\n           yet not been initiated.\n<\/p>\n
                   . . . The decision to conduct<\/p>\n
           fresh survey in a transparent manner
\n           lies with the State Government.”\n<\/p>\n
           4.19 The Committee is surprised to see
\n           that it got the same reply even after<\/p>\n
           one year. On being asked, the Principal
\n           Secretary,
\n                    ig    Minority     Development,
\n           Government of Maharashtra, during her
\n           oral evidence tendered on 24.07.2008,
\n           assured the Committee that the Survey<\/p>\n
           Commissioner would be appointed within
\n           a month to take up the survey work.
\n           (emphasis supplied)<\/p>\n
     19.       Thus, the Joint Parliamentary Committee<\/p>\n
     found the survey to be defective.                  The decision<\/p>\n
     of the Joint Parliamentary Committee has been<\/p>\n
     accepted by the State Government when it issued<\/p>\n
     the Notification dated 20th October, 2010.                          The<\/p>\n
     reason    that     has     been     given     by      the       State<\/p>\n
     Government       for     ordering      resurvey           in        the<\/p>\n
     Notification dated 20th October, 2010 is ” And<\/p>\n
     whereas      the       Joint   Parliamentary             Committee<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                    41                      WP2906.04<\/p>\n
     received    complaints       that    the      survey         was       not<\/p>\n
     conducted properly and therefore the Committee<\/p>\n
     issued direction dated 20th October, 2008 to the<\/p>\n
     State Government to conduct the resurvey of the<\/p>\n
     wakfs in the State…………..”                 .\n<\/p>\n
     20.         Thus,    even    according           to      the        State<\/p>\n
     Government the Survey was defective as the lists<\/p>\n
     of wakfs prepared under sub-section 2 of Section<\/p>\n
     5 were based on the survey report submitted on<\/p>\n
     31-1-2002     to    the   State     Government,           which        the<\/p>\n
     State Government itself found to be defective,<\/p>\n
     the only conclusion possible is that the lists of<\/p>\n
     wakfs   are    defective       and     therefore,              in      our<\/p>\n
     opinion, it would be appropriate to set aside<\/p>\n
     those lists, so that fresh lists can be prepared<\/p>\n
     by the wakf Board on the basis of the report of<\/p>\n
     resurvey which is ordered by Notification dated<\/p>\n
     20th October, 2010.\n<\/p>\n
     21.         Now,    taking   up     for    consideration               the<\/p>\n
     submission of the Petitioners that the survey<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                         42                    WP2906.04<\/p>\n
     officers who are conducting the survey pursuant<\/p>\n
     to    the    Notification         dated     20th       October,           2010<\/p>\n
     should        be         directed         to         consider               the<\/p>\n
     representations           that      may     be         made        by       the<\/p>\n
     Petitioners        as    also    other     persons          who      may      be<\/p>\n
     connected     with       the     Muslims    wakfs         and      also       to<\/p>\n
     consider     the    lists        prepared       by     the       Committee<\/p>\n
     constituted by the State Government under the<\/p>\n
     Chairmanship        of
\n                        ig      the     Charity         Commissioner               is<\/p>\n
     concerned, it is clear from the provisions of<\/p>\n
     Section 4 of the Act that for proper working of<\/p>\n
     the scheme of the Wakf Act, conducting of proper<\/p>\n
     and thorough             survey is absolutely necessary.\n<\/p>\n
     The Joint Parliamentary Committee in its report<\/p>\n
     has   also    noted       that    the     survey        plays        a    very<\/p>\n
     important         role      in      implementation                of        the<\/p>\n
     provisions of the Act and therefore, the survey<\/p>\n
     should       be    conducted            carefully           and        in       a<\/p>\n
     transparent manner.              In our opinion, therefore,<\/p>\n
     the survey officers who are conducting the survey<\/p>\n
     under Section 4 are under a duty to take into<\/p>\n
     consideration all relevant material including any<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                       43                 WP2906.04<\/p>\n
     material that may be placed before them by the<\/p>\n
     Petitioners, who are trustees of various Muslim<\/p>\n
     charities     as     also       other   similarly             situated<\/p>\n
     persons     who     are     connected      with        the       Muslim<\/p>\n
     charities.       So far as the report of the Committee<\/p>\n
     referred to above is concerned, that Committee<\/p>\n
     was constituted by the State Government and that<\/p>\n
     Committee had prepared a list.                 In our opinion,<\/p>\n
     as the material collected by the Committee would<\/p>\n
     be    relevant     for    the   purpose     of     preparing           the<\/p>\n
     survey report by the Survey Officer, in case a<\/p>\n
     copy of the report of the Committee is placed<\/p>\n
     before the Survey Officer by the Petitioners,<\/p>\n
     the survey officers cannot refuse to take that<\/p>\n
     material into consideration               In our opinion, a<\/p>\n
     direction in that regard has to be issued to the<\/p>\n
     Survey Officer.\n<\/p>\n
     22.         It was also urged before us relying on<\/p>\n
     the provisions of sub-section 6 of Section 4 that<\/p>\n
     the survey ordered by the Notification dated 20th<\/p>\n
     October,    2010     in     invalid.        In      our      opinion,<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                   44                  WP2906.04<\/p>\n
     however, that submission is not well founded.\n<\/p>\n
     Sub-section 6 of Section 4 operates in relation<\/p>\n
     to second or subsequent survey.              It contemplates<\/p>\n
     the first survey to be valid.                In the present<\/p>\n
     case, however, it has been found that the first<\/p>\n
     survey itself was not valid and it was defective.\n<\/p>\n
     In our opinion, therefore, exception cannot be<\/p>\n
     taken to the resurvey ordered by the Notification<\/p>\n
     dated   20th   October,
\n                     ig        2010    on   the      basis        of     the<\/p>\n
     provisions of     Sub-section 6 of Section 4 of the<\/p>\n
     Act.\n<\/p>\n
     23.        Now, the last question that requires to<\/p>\n
     be considered is whether having found that the<\/p>\n
     Notification incorporating         the Wakf Board to be<\/p>\n
     invalid, we can direct the Charity Commissioner<\/p>\n
     and the authorities under the Bombay Public Trust<\/p>\n
     Act to exercise their powers in relation to such<\/p>\n
     Muslims   Trust   as   may   be   registered           as     Public<\/p>\n
     Trust under the Bombay Public Trust Act.                    In that<\/p>\n
     regard, reliance was placed on the provisions of<\/p>\n
     Section 43 of the Wakf Act. It reads as under:\n<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span><\/p>\n
                                      45                  WP2906.04\n\n\n\n             43.      Wakfs         registered           before           the\n\n\n\n\n                                                                     \n             commencement      of    this    Act     deemed         to      be\n\n\n\n\n                                             \n             registered.-\n\n\n\n\n                                            \n<\/pre>\n
             Notwithstanding anything contained in this
\n             Chapter, where any Wakf has been registered
\n             before the commencement of this Act, under
\n             any law for the time being in force, it
\n             shall not be necessary to register the Wakf<\/p>\n
             under the provisions of this Act and any
\n             such   registration
\n                     ig             made   before   such
\n             commencement shall be deemed to be a
\n             registration made under this Act.\n<\/p>\n
     24.           Perusal of the provisions of Section 43<\/p>\n
     shows   that     if   a   particular        Trust    or     wakf       is<\/p>\n
     registered under any law for time being in force,<\/p>\n
     then    that      registration         is     deemed          to       be<\/p>\n
     registration made under the provisions of the<\/p>\n
     Act. This section deals only with the necessity<\/p>\n
     of registration of wakfs under the Act. It does<\/p>\n
     not lay down that after coming into force of the<\/p>\n
     Wakf    Act,    Muslim    Trusts     which     are      registered<\/p>\n
     under the Bombay Public Trust Act and under any<\/p>\n
     other State Law will cease to be governed by that<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                         46                      WP2906.04<\/p>\n
     Act, merely because the Wakf Act has come into<\/p>\n
     force.      It is possible to say that after a Wakf<\/p>\n
     Board is incorporated under the Wakf Act and it<\/p>\n
     becomes       effective     and         starts      controlling              the<\/p>\n
     affairs       of    the     Muslim            Trusts,         which          are<\/p>\n
     registered         under     the         Wakf       Act,        then         the<\/p>\n
     provisions of the Bombay Public Trust Act may<\/p>\n
     cease    to    operate      in     relation          to     such       public<\/p>\n
     trusts\/wakfs. But till that eventuality occurs ,<\/p>\n
     in    our     opinion,     it     would        be     in      the      public<\/p>\n
     interest that the affairs of such public trusts<\/p>\n
     are   governed      by     the   provisions            of     the      Bombay<\/p>\n
     Public Trust Act. If it is held that merely on<\/p>\n
     commencement of the Act in a State, without the<\/p>\n
     machinery      provided      by         the    Wakf       Act       becoming<\/p>\n
     operative, the provisions of the Bombay Public<\/p>\n
     Trust Act cease to operate in relation to the<\/p>\n
     Muslims Public Trusts, which are registered under<\/p>\n
     the Bombay Public Trust Act, it will result in<\/p>\n
     creating a vacum, inasmuch as, in the absence of<\/p>\n
     any machinery being effective under the Wakf Act,<\/p>\n
     the affairs of the Trust will not be controlled<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                        47                    WP2906.04<\/p>\n
     by    the     provisions     of        the   Wakf       Act      and       the<\/p>\n
     provisions of the Public Trust Act will also not<\/p>\n
     apply.        Therefore, in our opinion, it would be<\/p>\n
     appropriate to direct that till the Wakf Board is<\/p>\n
     established, incorporated and                   constituted under<\/p>\n
     the provisions of the Wakf Act and it becomes<\/p>\n
     operative, the provisions of the Bombay Public<\/p>\n
     Trust    Act    shall      apply       to    the     Muslims         Public<\/p>\n
     Trusts       which
\n                      ig  are   registered          under        the      Bombay<\/p>\n
     Public Trust Act.\n<\/p>\n
     25.           In the result, therefore, the petitions<\/p>\n
     succeed and are allowed.\n<\/p>\n
          (i)The    Notification        dated        4-1-2002           is      set<\/p>\n
            aside;\n<\/p>\n
          (ii) The lists of wakfs prepared and published<\/p>\n
            by the Wakf Board dated 13-11-2003 are set<\/p>\n
            aside.<\/p>\n
\n\n\n\n          (iii)       The    Survey         Officers         appointed            by\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 17:47:16 :::<\/span>\n                                   48                      WP2906.04\n\n       Notification         dated      20th    October,          2010       are\n\n       directed        to        take         into        consideration\n\n\n\n\n                                                                       \n       representations,           if      any,         made        by       the\n\n\n\n\n                                               \n       Petitioners      and       other        similarly           situated\n\n<\/pre>\n
       persons connected with the Muslims wakfs,<\/p>\n
       including the list prepared by the Committee<\/p>\n
       constituted by the State Government under<\/p>\n
       the      Chairmanship              of           the          Charity<\/p>\n
       Commissioner, while preparing and submitting<\/p>\n
       their      survey         reports          to         the        State<\/p>\n
       Government. The survey officer may also take<\/p>\n
       into consideration any list of the wakfs, if<\/p>\n
       prepared under the Act repealed by the 1995<\/p>\n
       Act.\n<\/p>\n
     (iv)      Until    a     new       Board        or      Boards         are<\/p>\n
       incorporated         under       the    Act      and      they       are<\/p>\n
       constituted          in         accordance             with          the<\/p>\n
       provisions      of    the        Act    and      the      Board        or<\/p>\n
       Boards start functioning in accordance with<\/p>\n
       the     provisions         of     the         Wakf       Act,        the<\/p>\n
       provisions of the Bombay Public Trust Act<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                          49                   WP2906.04<\/p>\n
           will    apply      to         the    such     Muslims         Public<\/p>\n
           Trusts,      which       are        registered        under         the<\/p>\n
           Bombay      Public      Trust       Act.          Rule     is     made<\/p>\n
           absolute accordingly.                No order as to costs.\n<\/p>\n
     26.          We   have        set    aside        the    Notification<\/p>\n
     dated 4-1-2002.           None of the actions taken or<\/p>\n
     orders passed by the Wakf Board constituted by<\/p>\n
     the Notification dated 4-1-2002 is challenged in<\/p>\n
     any of the petitions that have been decided by<\/p>\n
     this order.       Therefore, we are not pronouncing on<\/p>\n
     the validity or otherwise of the actions taken<\/p>\n
     and orders passed by the Wakf Board so far.                               The<\/p>\n
     validity     of   those       actions       and    orders        will       be<\/p>\n
     decided by the Forum before which the validity of<\/p>\n
     those actions or orders is challenged.\n<\/p>\n
     .       It is also made clear that the State of<\/p>\n
     Maharashtra is at liberty to take steps to make<\/p>\n
     such interim arrangements, as it may be advised,<\/p>\n
     to manage and to supervise the Wakf property and<\/p>\n
     other related aspects under the Wakf Act. The<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>
\n                                     50                 WP2906.04<\/p>\n
     decision and\/or action already taken including<\/p>\n
     the     pending    dispute     or    litigation          shall         be<\/p>\n
     governed by the Wakf Act.\n<\/p>\n
     27.         So far as Writ Petition (L) No.357 of<\/p>\n
     2011 is concerned, it is clarified that by this<\/p>\n
     judgment    we     have   not       considered       the       relief<\/p>\n
     claimed by prayer clause c(iii) in respect of<\/p>\n
     wakfs    list     dated
\n                      ig       30-12-2004.          Therefore,            the<\/p>\n
     Petitioners shall be at liberty either to file<\/p>\n
     fresh petition claiming that relief or claim that<\/p>\n
     relief in other pending matters.\n<\/p>\n
     28.         At the request of the learned Counsel<\/p>\n
     appearing for the Wakf Board, it is directed that<\/p>\n
     operation of this judgment shall remain stayed<\/p>\n
     for a period of 10 weeks from today. However,<\/p>\n
     during this period all the interim orders that<\/p>\n
     are   operating      as   on   today    shall       continue           to<\/p>\n
     operate.\n<\/p>\n
     (Anoop V. Mohta, J.)                    (D.K.Deshmukh J.)<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 17:47:16 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shaikh Yusuf Bhai Chawala vs State Of Maharashtra on 29 September, 2011 Bench: D.K. Deshmukh, Anoop V.Mohta 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-28324","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShaikh Yusuf Bhai Chawala vs State Of Maharashtra on 29 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shaikh-yusuf-bhai-chawala-vs-state-of-maharashtra-on-29-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shaikh Yusuf Bhai Chawala vs State Of Maharashtra on 29 September, 2011 - 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