Holding

The Wakf Board was validly constituted, the High Court’s order setting it aside was unsustainable, and the wakf lists of 13‑Nov‑2003 and 30‑Dec‑2004 stand, subject to a fresh Board inquiry for trusts contesting their status.

Summary

The Maharashtra State Board of Wakfs was incorporated on 4 January 2002 and subsequently published lists of wakf properties on 13 November 2003 and 30 December 2004. Several Muslim public trusts challenged the Board’s constitution, the validity of the lists, and the applicability of Section 13(2) of the Wakf Act, 1995, arguing that a survey under Section 4 should have preceded the Board’s formation and that the Board’s composition violated the minimum‑member requirement. The Supreme Court held that the Board’s incorporation was lawful, that Section 13(2) confers discretion, not a mandatory duty, and that the High Court erred in setting aside the Board and the wakf lists. It affirmed the lists, subject to a fresh Board inquiry for those trusts that claim to be public trusts, and clarified the quasi‑judicial nature of the survey and the Board’s powers. The appeal was partly allowed, restoring the Board and the wakf lists while directing further proceedings.

Issues considered

The validity of the Wakf Board’s incorporation without a prior survey under Section 4 of the Wakf Act, 1995.
Whether Section 13(2) imposes a mandatory duty to create separate Sunni and Shia Boards when the 15% threshold is exceeded.
The correctness of the lists of wakf properties published on 13‑Nov‑2003 and 30‑Dec‑2004.
Whether Muslim public trusts registered under the Bombay Public Trust Act, 1950 are deemed wakfs under Section 28 and Section 43 of the Wakf Act, 1995.
The appropriateness of the High Court’s exercise of jurisdiction under Article 226 despite the existence of an alternate statutory remedy.
The requirement of a minimum of seven members on the Board and the effect of Section 22 on any vacancy or defect.

Legislation cited

Bombay Public Trust Act, 1950s. 2(13), s. 2(19), s. 28, s. 36, s. 79
Indian Trusts Act, 1882
Land Acquisition Act, 1894
Limitation Act, 1963
Places of Public Worship (Special Provisions) Act, 1991
Societies Registration Act, 1860
Wakf Act, 1954
Wakf Act, 1995s. 112, s. 13, s. 14, s. 22, s. 28, s. 32, s. 3(r), s. 4, s. 40, s. 43, s. 5, s. 51, s. 6, s. 97
Wakf (Amendment) Act, 1984
Wakf (Amendment) Act, 2013

Subjects

WakfPublic TrustBombay Public Trust ActSection 13(2) discretionary dutySurvey under Section 4Board incorporationArticle 226 jurisdictionDeeming provisionShia WakfSunni Wakf

Judgment

482 [2022]REPORTS
SUPREME COURT 12 S.C.R. 482 [2022] 12 S.C.R.

A MAHARASHTRA STATE BOARD OF WAKFS
v.
SHAIKH YUSUF BHAI CHAWLA & ORS.
(Civil Appeal Nos. 7812-7814 of 2022)
B OCTOBER 20, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Wakfs – Wakf Act, 1995 – Bombay Public Trust Act, 1950 –
Public Trust vis-à-vis Wakf – Distinction between a public Trust
C and a Wakf – Discussed – Held: What was once a Wakf before the
1950 Act, if it is registered under the 1950 Act, with the
commencement of the Act, such a public Trust would necessarily
come under the ambit of the Wakf Act, 1995 – There are public
Trusts registered under the 1950 Act which are in fact, Wakf which
fall under s.28 of the 1950 Act – They must come within the regime
D of the Central Act viz., the Wakf Act, 1995 – Conversely, a Muslim
Public Trust registered under the 1950 Act need not be a Wakf under
the Act – It would be certainly contrary to the unbroken line of
Supreme Court judgments which contemplate such a division between
two categories to paint all Muslim public Trusts with the same brush
E and glean them as Wakfs – While it is open to a Muslim to create a
Wakf and ordinarily, there would be the prospect of a reward for
dedicating property by way of Wakf, it would be entirely left to a
Muslim to take a decision as to whether he should adopt the device
provided by an English Trust or make the familiar dedication by
way of Wakf – As to whether an institution is a Wakf or a public
F Trust is a mixed question of fact and law – This means it becomes a
duty of whosoever upon whom the duty falls, to ascertain whether
it is either and to carefully attend to the terms of the document by
which the Trust is evidenced if there is such a document and find
the facts and thereafter the law must be applied – It is a matter to be
G tested on a conspectus of various features and after complying with
the law as to whether what is registered as a public Trust is, in fact,
a Wakf or not – All public Trusts which have been registered by way
of a deeming provision u/s.28 of the 1950 Act will necessarily have
to be treated as Wakfs – This is on the principle that once a Wakf is
created unless it be a case where the title is extinguished by way of
H
482
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 483
YUSUF BHAI CHAWLA & ORS.

exercise of power of eminent domain by the State, the title of the A
Almighty though by implication cannot cease.
Wakf Act, 1995 – Wakf – Constituent elements of – Held: The
first indispensable requirement is that there must be dedication –
Dedication must be by a person who is the owner of the property –
Dedication must be permanent – Permanent means that it cannot be B
for a period of time; it must be perpetual – A Wakf can be created
by a Will also – When a Wakf is created by a Will it is open to the
Wakif to revoke the will prior to his death – Save as aforesaid, a
Wakf cannot be revoked – A Wakf, again meaning the property
which is the subject matter of a Wakf cannot be alienated – The
object of the Wakf must be such that it is approved by the Muslim C
law – The object must be religious, pious or charitable – It is not a
concept of piety religiousness or the charitable nature in the eyes
of the entire world but what is in consonance with Muslim law –
There is no prescribed mode of dedication – A Wakf need not be in
writing – As far as declaration is concerned, it can be inferred from D
conduct – A Wakf, as defined includes Wakf by user – A Wakf can
be created for attaining a public utility – The public utility must,
however, be for an object sanctioned by Muslim law – Subject to
said conditions, irrespective of whether the beneficiaries are Muslims
or not, there could be a valid Wakf .
E
Wakf Act, 1995 – s.4 – Survey under the Act – Held: The
making of survey is not a mere administrative act but it is to be
informed by a quasi-judicial inquiry – Also, the surveyor has the
power to find whether a particular institution is a Wakf.
Constitution of India, 1950 – Art. 226 – Power under – F
Exercise of – Effect of alternate remedy – Held: Article 226 confers
a jurisdiction or a power on the High Courts – It is a power under
the Constitution – While a statute may provide for an alternate forum
to which the High Court may relegate the party in an appropriate
case, the existence of an alternate remedy by itself cannot exclude
the jurisdiction of the High Court under the Constitution. G
Partly allowing the appeals, the Court
HELD: 1. As to whether an institution is a Wakf or a public
Trust is a mixed question of fact and law. This means it becomes
a duty of whosoever upon whom the duty falls, to ascertain whether
H
484 SUPREME COURT REPORTS [2022] 12 S.C.R.

A it is either and to carefully attend to the terms of the document
by which the Trust is evidenced if there is such a document and
find the facts and thereafter the law must be applied. The
paramount feature which perhaps would figure in this inquiry
would be the properties being vested either by a Trust, in the
case of a Trust, for a trustee to deal with the property as such.
B
Whether there is no power of sale, or inalienability may be a factor
which may tilt the matter in favour of the institution being a Wakf
provided other features which are indispensable are also present.
[Para 142][567-C-E]
2. When the State Board of Wakfs has, in law, any reason to
C believe that any property of any Trust registered under the Indian
Trusts Act, 1882 or any society registered under the Societies
Registration Act 1860 or the property of any Trust registered
under any other law, is wakf property, the Board is given certain
powers and responsibility. The Board is clothed with the power
D notwithstanding anything contained in any of those laws, to hold
an inquiry in regard to the said property. The said property must
be understood to be a property of any Trust which is registered
in this case under the Bombay Public Trust Act because Bombay
Pubic Trust Act would qualify as any other law. The holding of the
inquiry is to be preceded by a notice of the proposed action to be
E given to the authority by whom the Trust or the Society has been
registered. It is not to be confused with the Trust or the Trustees.
It means that the Wakf Board must give notice of the proposed
action to the Charity Commissioner as it is the authority under
the 1950 Act, who registered or registers a public Trust under
F Section 18 of that Act. [Para 167][582-C-E]
3. When parliament made the Act in 1995, it was aware
that it would repeal the Wakf Act 1954. Section 40 of the Wakf
Act is a provision which corresponds to Section 27 of the earlier
Act. Parliament must be presumed to know the laws which are
G on the statute book. In fact, Parliament must be presumed to
be aware of all necessary facts which would give life to a law and
make it workable, fair and reasonable. Parliament must,
therefore, be assumed to know that laws like the Bombay Public
Trust Act were on the statute book. It must be aware that the

H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 485
YUSUF BHAI CHAWLA & ORS.

definition of public Trust such as is contemplated under the A
Bombay Public Trust Act took within its sweep Wakfs. Section
28 of the Bombay Public Trust Act, in fact, comes to mind.
Section 28 of the 1950 Act contemplated that institutions which
were Wakfs before the enactment of the 1950 Act would be
deemed to be public Trusts under Section 28 and would be
B
treated as such under the said law. As far as other public Trusts
which are registered under the 1950 Act, no doubt, bearing in
mind the fact that there is a distinction between a Trust and a
Wakf, it is a matter to be decided on the facts of each case as to
whether what is ostensibly a Trust within the meaning of 1950
Act is in substance a Wakf. [Para 169][583-A-D] C
4. As far as Section 43 is concerned, it mandates for deemed
registration of Wakfs. Its meaning may be culled out. It mandates
that notwithstanding anything contained in the chapter, where
any wakf has been registered before the commencement of this
Act, under any law for the time being in force, there is no need to D
register the same under the provisions of this Act. Such
registration is to be deemed to have been made under the Act.
Since under Section 2 of the Act, the Act applies to every Wakf
which is created, whether before or after the Act came into force,
it means that whatever is Wakf as defined in the Act which is
made at any point of time, be it before or after 01.01.1996 must E
be registered under the Act [See Section 36]. Registration is
intended to bring Wakfs under the close scrutiny of the competent
authority, be it the Board or the executive officers. The whole
history of the legislation of Wakfs reflects the perception of the
legislature that property which is dedicated to the Almighty for F
charitable, religious and pious purposes should be protected. The
protection must be extended against the Mutawallis and others
who may deal with the property and thereby, completely destroy
the very original purpose of the founder. What would be used for
public welfare, be it even of sections of a community for certain
cases, would all be covered thereunder as provided in the Act. G
[Para 172 and 174][583-H; 584-A-B, C-E]
5. Section 112 of the Act provides for repeal. There is not
much controversy that Section 112 by virtue of the repeal it

H
486 SUPREME COURT REPORTS [2022] 12 S.C.R.

A provides for would effect a repeal of the provisions of the 1950
Act insofar as it relates to public Trusts which are Wakfs. The
Charity Commissioner, in effect, when it issued clarification which
was challenged before the High Court also initially only stated
that according to Section 43 of the Act Wakfs which are registered
as Public Trusts should not be tried under the 1950 Act. There is
B
a distinction between a Trust and a Wakf. It is a matter to be
tested on a conspectus of various features and after complying
with the law as to whether what is registered as a public Trust is,
in fact, a Wakf or not. No doubt, all public Trusts which have
been registered by way of a deeming provision under Section 28
C of the 1950 Act will necessarily have to be treated as Wakfs. This
is on the principle that once a Wakf is created unless it be a case
where the title is extinguished by way of exercise of power of
eminent domain by the State, the title of the Almighty though by
implication cannot cease. What was once a Wakf before the 1950
Act, if it is registered under the 1950 Act, with the commencement
D
of the Act, such a public Trust would necessarily come under the
ambit of the Wakf Act, 1995. [Para 177 and 178][585-C-G; 586-
A-B]
6. It is the appellant’s case that Wakf properties need to be
rigorously and lawfully regulated. However, there are public Trusts
E registered under the 1950 Act which are in fact, Wakf which fall
under Section 28 of the 1950 Act. They must undoubtedly come
within the regime of the Central Act viz., the Wakf Act, 1995.
The converse also must be stated and highlighted viz.; a Muslim
Public Trust registered under the 1950 Act need not be a Wakf
F under the Act. It would be certainly contrary to the unbroken
line of judgments of this Court which contemplate such a division
between two categories to paint all Muslim public Trusts with
the same brush and glean them as Wakfs. [Para 183][587-G-H;
588-A-B]
G Nawab Zain Yar Jung (Since Deceased) and Others v.
Director of Endowments and Another AIR 1963 SC 985
: [1963] 1 SCR 469; Board of Muslim Wakfs, Rajasthan
v. Radha Kishan and Others (1979) 2 SCC 468 : [1979]
2 SCR 148 and Radha Krishan Industries v. State of
H.P. (2021) 6 SCC 771 – relied on.
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 487
YUSUF BHAI CHAWLA & ORS.

State of Kerala & Ors. v. Mar Appraem Kuri Co. Ltd. & A
Another (2012) 7 SCC 106 : [2012] 4 SCR 448;
Madanuri Sri Rama Chandra Murthy v. Syed Jalal
(2017) 13 SCC 174 : [2017] 5 SCR 294; Ramjas
Foundation and Another v. Union of India and Others
(2010) 14 SCC 38 : [2010] 15 SCR 364; Mohd. Khasim
B
v. Mohd. Dastagir and Others (2006) 13 SCC 497 :
[2006] 10 Suppl. SCR 1157; The Kassimiah Charities
Rajagiri v. The Madras State Wakf Board 1963 SCC
Online Mad 132; Nawab Zain Yar Jung (Since
Deceased) and Others v. Director of Endowments and
Another AIR 1963 SC 985 : [1963] 1 SCR 469; Wali C
Mohammed (Dead) by LRs. v. Rahmat Bee (Smt.) and
Others (1999) 3 SCC 145 : [1999] 1 SCR 852 - referred
to.
The Kassimiah Charities, Rajagiri represented by its
hereditary trustee Sri. R.E.M.S. Abdul Hamid v. The D
Madras State Wakf Board, represented by its Secretary
AIR 1964 Madras 18; Abul Fata Mahomed v. Russomoy
(1894) 22 Cal. 619 : 22 I.A; Income Tax Special
Purposes Commissioners v. Pemsel (1891) A.C. 531;
Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar and
others AIR 1922 Privy Council 123; Kachchh Wakf E
Board & Anr. v. Kachchh Memon Jamat & Ors. 1997
SCC Online Guj 220 - referred to.
Baker, Re [Baker, Re, Nichols v. Baker (1890) 44 Ch
D 262 (CA); Julius v. Lord Bishop of Oxford (1880) 5
AC 214 - referred to. F

Case Law Reference
[2012] 4 SCR 448 referred to Para 23
[1963] 1 SCR 469 relied on Para 31
G
[1979] 2 SCR 148 relied on Para 35
[2017] 5 SCR 294 referred to Para 35
(2010) 14 SCC 38 referred to Para 37
[2006] 10 Suppl. SCR 1157 referred to Para 38
H
488 SUPREME COURT REPORTS [2022] 12 S.C.R.

A [1963] 1 SCR 469 referred to Para 41
[1999] 1 SCR 852 referred to Para 126
(2021) 6 SCC 771 relied on Para 157
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7812-
B 7814 of 2022.
From the Judgment and Order dated 21.09.2011 of the High Court
of Judicature at Bombay in WP No.2906/2004, WP Nos.357 899 of
2011.
With
C
Civil Appeal Nos.7930, 7929. 7928, 7927, 7926, 7925, 7924, 7923,
7922, 7921, 7914-7920, 7911-7913, 7910, 7909, 7908, 7898-7907, 7896-
7897, 7895, 7894, 7893, 7892, 7891, 7890, 7889, 7888, 7887, 7886, 7884-
7885, 7872-7883, 7862-7871, 7855-7861, 7853-7854, 7852, 7851, 7850,
7849, 7848, 7847, 7846, 7844, 7845, 7843, 7840-7842, 7839, 7836-7838,
D 7835, 7834, 7833, 7832, 7831, 7830, 7827-7829 and 7815-7826 of 2022.
Tushar Mehta, SG, K. M. Natraj, ASG, Anil Anturkar, Gopal
Shankarnarayan, Vinay Navare, Harish N. Salve, Dama Sheshadri Naidu,
Yusuf Hatim Muchhala, Dr. Abhishek Manu Singhvi, Murtaza Kachwala,
K. K. Venugopal, Sr. Advs., Sudhanshu S. Choudhari, Abhay Anturkar,
E Harshvardhan Suryavanshi, Tejasvi Kumar, Shrirang Katneshwarkar,
Vaibhav Kulkarni, Syed Sarfaraz Karim, Ambar Qamaruddin, Javed R.
Sheikh, Mohd. Irshad Hanif, Aarif Ali, Pankaj Tiwari, Ms. Shivani Viz,
Mujahid Ahmad, Rizwan Ahmad, Syed Ahmed Saud, Daanish Ahmed
Syed, Mohd. Parvez Dabas, Uzmi Jameel Husain, Aqib Baig, Mohd.
Shahib, Mujeebuddin Khan, M/S. Shakil Ahmad Syed, S. M. Jadhav,
F
Brij Kishor Shah, Adarsh Kumar Pandey, Ms. Shivani Rautela, Ms.
Apurva, Satayam Singh, Yusuf Baugwala, Ms. Sana Baugwala, Ms.
Gwen Karthika, Ms. Abha R. Sharma, Sachin Patil, Rahul Chitnis,
Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bhagla,
Gagan Gupta, Mrs. Bina Gupta, K. N. Rai, Shirish K. Deshpande, Ms.
G Rucha Pravin Mandlik, Mohit Gautam, A. Radhakrishnan, Gaurav
Agrawal, Shishir Deshpande, Nilakanta Nayak, Amit Yadav, Sakya
Singha Chaudhuri, P. N. Puri, Rudreshwar Singh, Kaushik Poddar, Ms.
Isha Singh, K. R. Sasiprabhu, Mahesh Sahasranaman, Amey Nabar,
Vishnu Sharma A.S., Ms. Shivali Chaudhary, Tushar Bhardwaj, Prakhar
Agarwal, Balaji Srinivasan, Amol Chitale, Nirnimesh Dube, Ejaz Maqbool,
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 489
YUSUF BHAI CHAWLA & ORS.

Pravartak Pathak, Ms. Nandini Deshpande, Yuvraj Satpute, Ms. Ankita A
Chaudhary, Sagheer A. Khan, G. D. Shaikh, Saif Zia, Sunil Kumar Verma,
Ambar Qamaruddin, Moinuddin Algaus Shaikh, Abeezar Faizullabhoy,
R. Sudhinder, Ms. Ekta Bhasin, Mustafa Hussain, L. Nidhi Ram Sharma,
Nikhil Kumar Singh, Ashok Mathur, Alok Kumar Dwivedi, Desam
Sudhakarareddy, Ms. Sujata Kurdukar, Nitin S. Tambwekar, Seshatalpa
B
Sai Bandaru, K. Rajeev, Rajat Nair, Ms. Swati Ghildiyal, Shailesh Madiyal,
Ms. Swarupama Chaturvedi, Mayank Pandey, Madhav Sinhal, Nakul
Chengappa K.K., Amrish Kumar, Ankur Saigal, Anshuman Srivastava,
Victor Das, Ms. Anwesha Padhi, Madhavi Agrawal, Kamakshi Sehgal,
E. C. Agrawala, Javed R. Shaikh, Sudhanshu S. Choudhari, Ms. Suhasani
Sen, Mahesh P. Shinde, Ms. Rucha A. Pande, Veeraragavan M., Kamran C
Shaikh, Sunil C. Chung,Hitesh Kumar Sharma, Akhileshwar Jha, Ms.
Yamini Sharma, Ms. Niharika Dewivedi, Ms. Shweta Sand, C. M. Jha,
T. Mahipal, Aaditya Aniruddha Pande, Mrs. Yugandhara Pawar Jha,
Kunal Verma, Ashwin Nair, Ms. Lavanya Dhawan, Ritik Gupta, Punit
Khanna, Pranay Thite, Kunal Verma, Praveen Kumar, Ankit Yadav, D
Tarun Mehra, Gaijala Bhaskar, Ratnesh Sharma, Advs. for the appearing
parties.
The following Judgment of the Court was delivered:
JUDGMENT
E
1. Leave granted.
2. Since the common questions arises in all these appeals, we
deem it appropriate to dispose of the same by the following common
judgment.
3. The facts leading up to the litigation need to be referred to at F
the very beginning.
The Parliament enacted Wakf Act, 1995, (hereinafter referred to
for the purpose of brevity as, ‘the Act’). By order dated 01.12.1997, the
Government of State of Maharashtra (hereinafter referred to as the
State’) appointed a Survey Commissioner purporting to act under Section G
4 of the Act. A Wakf Tribunal was constituted at Aurangabad by order
dated 30.10.2000. On 04.01.2002, the State incorporated the Maharashtra
State Board of Wakfs (hereinafter referred to as Board). Incidentally, it
is noticed that four members came to be nominated by very same
notification, the details of which shall be evident in the course of the H
490 SUPREME COURT REPORTS [2022] 12 S.C.R.

A judgment. The State forwarded the survey report which it received to
the Board which was constituted on 07.05.2002.The Joint Parliamentary
Committee (hereinafter referred to as ‘JPC’ for brevity) submitted a
report on 08.07.2003.
4. At this juncture, it is apposite that we may notice another
B dimension of the litigation which is the Bombay Public Trust Act, 1950
rechristened as the Maharashtra Pubic Trust Act, 1950. The real lis in
this case surrounds the question as to whether the respondents before
us who turned out to be the writ petitioners before the High Court are
Public Trusts or they are in essence or in substance, Wakfs under the
Mohammedan Law.
C
The Charity Commissioner under the Bombay Public Trust Act,
1950 (hereinafter referred to as ‘1950 Act’ for brevity), makes his entry
on the stage by issuing a circular dated 24.07.2003 which reads as follows:
“Dated: 24.07.2003
D Sub: The Muslim Wakfs/Trusts registered with the Charity
Commissioner, and as per Section 43 of the Wakf Act, 1995.
CIRCULAR NO. 307 DATED 24.07.2003
According to Section 43 of the Wakf Act, 1995 Wakfs
E registered as Public Trusts should not be tried under the Bombay
Public Trust. Further orders may be awaited.
Sd/-
The Charity Commissioner
Maharashtra State, Mumbai
F 24.07.2003
Sec. 43 of Act is as follows:
“Sec. 43 Wakfs registered before the commencement of the Act
demand to be registered – Notwithstanding anything contained in
G 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 made before such
commencement shall be deemed to be a registration made under
this Act.”
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 491
YUSUF BHAI CHAWLA & ORS.

5. On 13.11.2003, a list of Wakfs was published by the Board. A
The first writ petition came to be filed by one Anjuman-I-Islam on
28.08.2003. A Challenge was laid to the circular issued by the Charity
Commissioner. There was also a challenge thrown to the Constitution of
the Board.
The High Court proceeded to stay the circular by order dated B
17.11.2003 qua the writ petitioner. A spate of writ petitions followed.
They were drawn up in similar vein; orders of stay followed as well.
6. It would appear that there was a meeting held by the Law and
Judiciary Department to discuss the problems of the Wakfs.A decision
was taken on 11.08.2004 to constitute a Committee of the Charity C
Commissioner and two members of the Board. The following may be
noted at this juncture itself as the result of the meeting which took place
on 11.08.2004:
“Meeting to discuss the problems of Wakfs cases was held today
i.e., on the 11.8.2004 at 12.00 noon under the Chairmanship of D
Hon’ble Minister (Law). The following dignitaries and officers of
Government were present in the chamber of Hon’ble Minister
(Law):-
(1) Hon’ble Minister (Law)
(2) Hon’ble Minister, Aukaf E
(3) Chairman, Wakf Board, Mumbai
(4) HafeezbhaiDhature, M.L.A. & Member of Wakf Board.
(5) Principal Secretary & S.L.A. L.& J.D.
(6) Charity Commissioner, M.S.Worli, Mumbai F

(7) Executive Officer, Wakf Board, Mumbai
(8) Jt. Secy. R&F.D.
(9) shri Yusuf Muchhala, Sr. Counsel, High Court.
G
(10) Shri Viren Merchant, Chartered Accountant
(11) Jt. Secy L& J.D. (Shri Gomare)
(12) D.S. (Law L& J.D. (Shri Bangale),
(13) U.S. (Law), L& J.D. (Shri Patil)
H
492 SUPREME COURT REPORTS [2022] 12 S.C.R.

A So many writ petitions have been filed before the Hon’ble High
Court challenging the formation of Wakf Board. The Hon’ble High
Court admitted the writ petitions and granted interim relief in favour
of the petitioners restraining the Charity Commissioner from
transferring the muslim trusts to Wakf Board and granted stay on
the Circular dated 24.7.03 issued by the Charity Commissioner.
B
The Wakf Board is also restrained by the Hon’ble High Court
from collecting the contribution from the petitioners in these writ
petitions. On the basis of the same, Association for Protection of
Wakfs and Trusts has made representation to the Government
with a request to;
C
(1) direct the Wakf Board to cancel the notification declaring the
list of Wakf which are published on 13.11.03, the said notification
is not only full of mistakes but highly malicious.
(2) direct the Wakf Board to have a fresh survey done properly
ascertaining Shiya and Sunni Wakf Boards and have the Survey
D
monitored by a competent and judicious senior officer.
(3) form a fresh Wakf Board after proper survey is concluded. In
the meeting it was discussed as to whether the Wakf Board is
consituted legally as per the provisions of Wakf Act, 1995 and
whether it is possible for the Government and the Wakf Board to
E have a fresh survey ascertaining Shiya Wakf and Sunni Wakf and
whether it is necessary to form a fresh the Wakf Board.
Following resolutions have been passed in the meeting:
(1) It is decided to constituted a committed under the Chairmanship
F of Charity Commissioner including the two members from the
Wakf Board and two member of Charity Commissioner. This
committee will study the work of charity organisations and Wakf
Board constituted in Andhra Pradesh, Karnataka and Uttar
Pradesh and decide which of the muslim trust registered under
the Bombay Public Trusts Act, 1950 are covered under the Wakf
G Act and which comes under the Bombay Public Trusts Act and
that which of the Wakfs are Shiya Wakfs and Sunni Wakfs.
(2) It is not legally possible to extend the period of notification
after 13.11.04. But the concerned trusts shall make an application
to the said Committee stating their objections, reservations, if any.
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 493
YUSUF BHAI CHAWLA & ORS.

(3) Wakf Board will give an advertisement in the newspapers to A
requesting the muslim trusts and wakfs to give information stating
that whether they are trust or Wakf and if it is a wakf, whether it
is a Shiya Wakf or Sunni Wakf and the details of income of such
Wakfs.
(4) Shri Yusuf Muchhala, Sr. Counsel High Court may submit the B
list of Shiya Wakfs, Sunni Wakfs and Trusts belonging to their
Association to the Committee constituted under the Chairmanship
of Charity Commissioner. He made his submissions without
prejudice to the rights and contentions of the petitioners in diverse
writ petitions pending in the High Court at Judicature at Bombay,
challenging the constitution of the wakfs Board, the survey C
commissioner report and the list of Wakfs published by
Maharashtra Wakf Board on 13.11.2003.
(5) Mr. Muchhnala will persuade their clients (petitioners) to co-
operative with the said committee formed by the State Government
and his clients will co-operative without prejudice to their rights D
and contentions on the issues in the pending writ petitions.
(6) To bring uniformity in respect of the contribution collected for
administrative fund, the Wakf Board may take administrative fund
contribution annually at a rate of 2% for the gross annual income
or of the gross annual collection or receipt as the same way in E
which the public trust administrative fund is being collected by the
Charity Commissioner.
(7) The Wakf Board shall not take any further action in respect of
the notification declaring the list of wakfs which was published on
13.11.2003 until the report of the said Committee is submitted to F
the State Government.
7. Writ Petition No. 2906 of 2004 came to be filed by Shaikh Yusuf
Bhai Chawla, a trustee of the Sir AdmjiPeerbhoy Sanatorium. Therein,
the notification dated 04.01.2002 was sought to be put under a cloud.
8. On 08.02.2005, the Committee which we have just hereinbefore G
mentioned submitted its report.It referred to the powers of the Board
under Section 40 of the Act to decide whether the properties are Wakf
Property or not.
9. On 09.03.2005, the Board passed a resolution. It reads as
follows: H
494 SUPREME COURT REPORTS [2022] 12 S.C.R.

A “Charity Commissioner may be requested to transfer bifurcated
Wakfs also with records of the Charity Commissioner, numbering
918 from 1Mumbai Co. the Wakf Board and keep with Charity
Commissioner 755 Trusts. Also it is resolved to accept the list of
Pune District wherein 379 Wakfs are identified and 84 Trust. The
Charity Commissioner may be requested to transfer record and
B
proceeding of 379 Wakfs to Wakf Board and keep with his 84
Trust, rest identification may be completed, this transfer is subject
to Boards Rights to consider matters under section 40 of the Wakf
Act, 1995.”
10. The Board, thereafter, issued a corrigendum purporting
C apparently to act in terms of the resolution dated 09.03.2005. The
corrigendum had the effect of abridging the list of Wakfs which was
published on 13.11.2003. Most significantly, a number of Wakfs which
were included in the List dated 13.11.2003 came to be excluded.On
13.04.2006, the State wrote to the Board referring tothe letters of the
D Charity Commissioner in which the Commissioner presented a new
classified list of Wakfs and Trusts. The Lists of Wakfs and Trusts were
also forwarded to the Board. The Board passed a resolution on
19.06.2006. It accepted the list of Wakfs given by the Charity
Commissioner.

E “ANNEXURE-P-19
Maharashtra State Board of Wakfs Dated 19.06.2006
Point No. 46 (reg): Bifurcation of Wakf and Trust as per List
finalized by Committee appointed by the government publication
of Government Gazette:
F Resolution No.4.6: It is unanimously revolved that the report of
CharityCommissioner is received through Government of
Maharashtra of all Districts in Maharashtra. In principle it is agreed
to publish the lists in Government Gazette, lists of bifurcated Wakfs.
Again under section 40 of the Wakfs Act, the Board has power to
take remaining Wakfs at any time in its period. Hon’ble Chairman
G
is authorized to take final decision in this regard.
(M.Y. Patel)
Additional Collector
Chief Executive Officer
H Aurangabad”
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 495
YUSUF BHAI CHAWLA & ORS.

11. On 31.07.2006, a corrigendum was issued by the Board A
modifying the earlier list of Wakfs. Thereafter, on 25.04.2007, the Board
issued another notification stating that the resolution which was dated
19.06.2006 was cancelled. The reason given was that it was not as per
the business rules. It was also decided to cancel the corrigendum issued
on 31.07.2006. On 04.09.2008, the Government of Maharashtra appointed
B
seven members to the Board. This notification, in turn, also formed the
subject matter of challenge in the High Court.
The membership of the Board stood reduced to four members
viz., two of the members who were originally appointed and two who
were from the lot who were subsequently appointed. On 23.10.2008,
C
there is yet another summersault by theBoard insofar as it purported to
cancel the corrigendum dated 05.05.2005 and it was therein declared
that the original notification containing the List of Wakfs dated 13.11.2003
was to remain intact:
“ANNEXURE-P- 25
D
Maharashtra Govt. Gazette
NOTIFICATION DATED 23.10.2008
No.MSBW/REG-240/3805/2008.
Dated: 7 .10 .2008 E
NOTIFICATION
By the Chief Executive Officer
The list of Wakfs Properties of Mumbai & B.S.D. was published
in Government Gazette dated 13.11.2003 as per Board Resolution
F
3 dated 27.9.2003, under section 5 (1) and sub-section 3 of section
4 of Central Wakf Act, 1995.
The corrigendum to the aforesaid Government Gazette notification
was issued on 5.5.2005 with reference to the Maharashtra Stat·e
Board of Wakfs. Resolution No. 3 dated 9.3.2005, and the same
G
was published on 5.5.2005.
However, the Resolution No.3 dated 9.3.2005 was cancelled and·
deleted by the Board in its meeting vide Resolution No. 17/2008
dated 3.4.2008, and confirmed on 27.5.2008. Hence the
Corrigendum No.MSBW/REGISTRATJON -73/ 1068/2005
H
496 SUPREME COURT REPORTS [2022] 12 S.C.R.

A published on 5.5.2005 stands automatically cancelled. Thus the
original notification of List of Wakf Properties published on
13.11.2003 remains as it is.
(S.S.ALI QUADRI)
Chief Executive Officer
B Maharashtra State Board of Wakfs
Aurangabad”
12. The JPC gave a report on 23.10.2008 indicating that the list of
Wakfs as far as the State of Maharashtra is concerned, was published.
The next development is to be noticed in the form of a notification dated
C
20.10.2010. We may notice its contents at this juncture itself.
“ANNEXURE-P-26,
MINORITIES DEVELOPMENT DEPARTMENT
Mantralaya, Mumbai 400 042, dated the 20th October 2010
D
NOTIFICATION
WAKF ACT, 1995
No. Wakf-2009/ C.R. 105/Desk-4. Whereas the Government of
Maharashtra vide Government Notification, Revenue and Forests
E Department No. Wakf-1097/CR-95/L-3, dated the 1st December,
1999 and No. WAKF. 1097 /CR-95/L- 3, dated the 29th September
1999 appointed Survey Commissioners, Additional Survey
Commissioners and Assistant Survey Commissioners, respectively,
for the purpose of making a survey of Wakfs existing. on the 1st
day of January 1996 in the State of Maharashtra;
F
And Whereas, the Joint Parliamentary Committee received
complaints that the survey was not conducted properly and
therefore, the Committee issued directions dated 20th October
2008 to the State Government to conduct resurvey of the Wakfs
in the State;
G
And Whereas, the Government considers it expedient to appoint
Divisional Commissioners of Konkan, Nashik, Pune, Aurangabad,
Amravati and Nagpur as Survey Commissioner for their respective
divisions, District Additional Collectors of Konkan, Nashik, Pune,
Aurangabad, Amravati and Nagpur as Additional Survey
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 497
YUSUF BHAI CHAWLA & ORS.

Commissioners for their respective districts, and Tahsildars as A
Assistant Survey Commissioner in their respective Talukas, to re-
survey the Wakfs in the State of Maharashtra;
Now, therefore, in exercise of the powers conferred by sub-section
(1) of section 4 of the Wakf Act, 1995., the Government of
Maharashtra hereby appoints: - B
(1) Divisional Commissioners of Konkan, Nashik, Pune,
Aurangabad, Amravati and Nagpur Revenue Divisions, as Survey
Commissioner for their respective divisions,
(2) District Additional Collectors of Konkan, Nashik, Pune,
Aurangabad, Amravati and Nagpur Districts, as Additional Survey C
Commissioner for their respective Districts,
(3) Tahsildars of the Talukas, as Assistant Survey Commissioner
for their Talukas,
for. conducting re-survey of the Wakfs in the State of Maharashtra. D
By order and in the name of the Governor of Maharashtra.
GEETA CHANDE
Under Secretary to Government”
13. Writ Petition 357 was of 2011 was filed challenging the said E
notification.
There were other writ petitions also which were filed. Writ Petition
was filed being Writ Petition No. 899/2011 challenging the circular of
the Charity Commissioner and also the list of Wakfs were challenged.
Pleadings were exchanged.Written notes of arguments were also
F
submitted.
The High Court has allowed the writ petitions. The findings of the
High Court may be noticed at this stage.
14. The High Court broadly formulated four issues.
The High Court posed the question as to whether the incorporation G
of the Board was illegal. The contention which was urged before the
High Court by the writ petitioners was that here is a case where the cart
was put before the horse. The law giver envisaged the conduct of survey
of the Wakfs. A survey of Wakfs in terms of the section 4 followed by
the publication of the List under Section 5 would reveal among other H
498 SUPREME COURT REPORTS [2022] 12 S.C.R.

A things, the number of Wakfs in the State. Even more importantly, the
survey would yield the necessary inputs so that the duty which was cast
on the Government under Section 13 of the Act could be performed.
Section 13, it is the finding of the High Court cast a mandatory duty on
the Government to form two separate Boards viz., a Sunni Board of
Wakf and a Shia Board of Wakf, if Section 13(2) was attracted.It was
B
found by the High Court that Section 13(2) contemplated that if 15 per
cent of the Wakfs were Shia Wakfs or the income from such Wakfs is in
the excess of 15 per cent of the total income, the law mandates that
there must be separate Wakfs for the Sunnis and Shias respectively.
The High Court proceeded to find that Section 13 contemplates that the
C Board is a body corporate and has perpetual succession. It was found
further that the Act does not contemplate a Board being formed under
Section 13(1) and thereafter, a survey report being received and on the
strength of the contents of the survey report with reference to the criteria
in Section 13(2), the Board which is originally put in place under Section
D 13(1) being extinguished and creation of two separate Boards for the
Sunnis and the Shias as contemplated therein.
15. The Court found that the contention of the report being placed
by the State apparently under Section 5 of the Act, viz., the requirement
therein that the Government on receipt of the report of the Surveyor
E must forward the report to the Board and therefore,the Board must be
in place and that the survey need not precede the incorporation of the
Board was misplaced.
16. On the second aspect, the High Court posed the question as
to the legality of the constitution of the Board. Section 14 provides for
F the constitution of the Board. The High Court drew support from the
fact that, as on the date, it apparently considered the matter that there
were only two members and the law contemplated that there must be a
minimum of seven members in the Board and here is what the High
Court held:

G “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.”
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 499
YUSUF BHAI CHAWLA & ORS.

17. Moving on, the High Court dealt with the complaint of the writ A
petitioners regarding the publication of the list itself on 13.11.2003. The
High Court largely drew on the report of the JPC itself.
18. Still later, the High Court found favour with the contention of
the writ petitioners that here is a case where developments based on the
filing of the writ petitions cannot be overlooked. The development consisted B
of the constitution of the Bifurcation Committee which had the blessings
of the Government itself, and which Committee held meetings in which
the Charity Commissioner of the Wakf Board also participated and certain
public trusts were identified as public Trusts and others as Wakfs.
After finding that the survey conducted by the Survey C
Commissioner was flawed, the High Court accepted the request of the
writ petitioners that since on 20.10.2020 resurvey was also ordered by
the Government when the resurvey is conducted, the writ petitioners
may be afforded an opportunity to place before the Survey Commissioner
the report of the Committee under which the writ petitioners apparently
were identified as being actually public trusts. D

19. Thereafter, the High Court, we may notice, in the context of
the impact of the 1950 Act proceeded to make the following observations:
THE APPEALS
20. The appellants before us are the Board, State of Maharashtra E
and two others.
21. We heard Shri K. K. Venugopal, learned senior counsel
appearing on behalf of the Board along with Mr. Javed Shaikh, Mr.
Sudhanshu S. Choudhari, Ms. Suhasini Sen, Mr. Mahesh P. Shinde, Ms.
Rucha A. Pande, Mr. Veeraragavan M. and Mr. Kamran Shaikh, learned F
counsel. We have also heard Mr.GopalSankaranarayanan, learned senior
counsel who also appeared for the Board.
We have heard Shri Rahul Chitnis learned counsel appearing on
behalf of the State.
Last, but not the least, we heard Shri Harish Salve, learned senior G
counsel appeared on behalf of the respondents-writ petitioners in C.A.
No. 7830 of 2022 (@ SLP (C) No. 1132 of 2017)along with Mr.
S.MaheshSahasranaman, Dr. Abhishek Manu Singhvi, learned senior
counsel who appeared in C.A. Nos. 7812-7814 of 2022 (@ SLP (C)
Nos. 31288-31290 of 2011) along with Mr. Murtaza Kachwalla, Mr. H
500 SUPREME COURT REPORTS [2022] 12 S.C.R.

A Moinuddin Algaus Shaikh and Ms. Ekta Bhasin, learned counsel. We
also heard Mr. Y. H. Muchhala, learned senior counsel along with Mr.
Sagheer Khan and Mr. G. D. Shaikh, Mr. Seshadri Nadu, learned senior
counsel, along with Mr. S. Mahesh Sahasranaman, also made his
submissions.
B We have further heard Shri Vinay Navare, learned senior counsel
and we have also heard Shri Anil Anturkar, learned senior counsel.
22. Shri K.K.Venugopal, learned senior counsel for the Board
would impugn the judgment on various grounds.
He would challenge the finding regarding the alleged illegality in
C the incorporation of the Board as unsustainable. There is no duty cast
under Section 13(2) of the Act to have separate Boards if the percentage
of Shia Wakfs are found toexceed the percentage mentioned in the said
section (15 per cent) he contended. He would further contend that a
survey need not precede the incorporation.
D 23. Learned senior counsel also did contend that, in fact, when
the Wakf Act 1954 was enacted having regard to Article 254 of the
Constitution, even treating the 1950 Act as a law which embraced a
Wakf as a public trust and provided for its regulation, the Wakf Act 1954
being a self-contained Code even if it was not made applicable to the
E State of Bombay, in view of the judgment of this Court in State of Kerala
& Ors. v. Mar Appraem Kuri Co. Ltd.& Another,1 the mere making
of the law by Parliament attracted the doctrine of repugnancy. Therefore,
since the Scheme of the Wakf Act, 1954 is completely irreconcilable
with the provisions of 1950 Act, it did not even survive the passing of the
Wakf Act, 1954.
F
24. He would also after taking us through the factual developments
which we have adverted to already, contend that the Board was indeed
validly constituted and the survey was conducted as per law. The Survey
Commissioner was appointed in 1997. It took the surveyor nearly five
years to submit his report. He would, in particular, point out that even the
G JPC report which is the sole premise for finding the list flawed by the
High Court, has observed that questionnaires were dispatched. This meant
that all parties were put on notice. It is not as if the writ petitioners were
put to prejudice. They had the right to approach the properly constituted

1
H (2012) 7 SCC 106
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 501
YUSUF BHAI CHAWLA & ORS.

alternate forum viz., the Tribunal under Section 6 of the Act. No ground A
whatsoever existed to invoke the extraordinary jurisdiction of the High
Court under Article 226 of the Constitution. The question as to whether
an institution is a Wakf or a public trust as the writ petitioners claim is to
be dealt with by the duly constituted Tribunal only.
25. He would submit that as far as the corrigendum which was B
issued on 05.05.2005 cutting down the width of the number of the Wakfs
which was included in the original list dated 13.11.2003 is concerned, it
was wrongly done. This fact was realised and the mistake came to be
rectified as we have noticed in the narration of facts.
26. He would further contend that what JPC complained about C
was under-inclusion of the Wakfs. In other words, the JPC found that
there were complaints about the large number of Wakfs which were left
out in the List of 13.11.2003. This did not detract from the validity or the
correctness of the List dated 13.11.2003. As regards Wakfs included
therein,it is contended,therefore, there arose no occasion for the High
Court to set aside the List dated 13.11.2003. As regards the other findings D
and directions which were given by the High Court, the learned senior
counsel would contend that they are wholly untenable and cannot be
sustained.
27. With regard to the effect of Section 112 of the Act, Mr. K.K.
Venugopal, learned senior counsel, would submit that Section 112 clearly E
brings about a repeal of the law in relation to Wakfs in the 1950 Act.
28. Shri Gopal Sankaranarayanan, learned senior counsel, adopted
the submissions made by the learned senior counsel Shri K. K. Venugopal.
He would supplement, in particular, in his attack against the finding that
the Wakf was not properly incorporated on the following grounds. F
He would submit that a perusal of the Act would reveal that the
Act has a definite scheme. It includes a provision for registration of the
Wakfs. The immediate need for creation of the Wakf Board which cannot
await the result of the survey commissioner is impressed upon us. The
Act contemplates a duty with every Wakf whether created before or G
after the Act to register themselves with the Wakf Board.
29. Section 32 contemplates various powers and functions to be
discharged by the Board. The Board’s sanction is required under Section
51 even for leasing the property. Therefore, there cannot be a hiatus
from the date of the commencement of the Act and creation of the H
502 SUPREME COURT REPORTS [2022] 12 S.C.R.

A Wakf Board, as it will defeat the sublime object of the Act. He has also
argued that Section 103 and 106 would constitute a sufficient answer to
the findings of the High Court that the Act does not contemplate the
creation of second Wakf Board after the creation of the first composite
Board. He would also point out that the report under the Survey under
Section 4 of the Act is purely preliminary. It does not affect any legal
B
rights. The right of the Wakf which is included in the List published
under Section 5(2) of the Act cannot be preponed to the time when the
Survey Commissioner submits its report under Section 4(3) of the Act to
the Government. The right which the person aggrieved (as it stands
amended in place of the ‘person interested in the Wakf’) has is that
C theaggrieved person can approach the Tribunal under Section 6.
30. Therefore, no prejudice as such was caused to the writ
petitioners that would have justified their knocking at the doors of the
High Court under the extraordinary jurisdiction under Article 226 of the
Constitution.
D 31. He would also submit that there has been a different regime
created from the previous one which fell for consideration before this
Court in the case reported in Nawab Zain Yar Jung (Since Deceased)
and Othersv. Director of Endowments and Another2. He would canvas
for the position that having regard to the effect of the amendment brought
E about to the word ‘beneficiary’ in section 3(a) of the Wakf Act 1954 and
its continuance in the present Avtar in Section 3(a) again of the Act, the
fundamental premise on which the decision of this Court in Nawab Zain
Yar Jung (Since Deceased) and Othersv. Director of Endowments
and Another (supra) was rendered has been taken away.

F 32. In other words, according to him, in view of the fact that
though prior to the amendment in 1964, the word beneficiary was defined
in such a manner that a Muslim who purported to create a Wakf, the
benefit of which was available to all without reference to religion was
tabooed,after the amendment, a Wakf which has for its object any public
utility which is sanctioned by Muslim law would pass muster as a valid
G Wakf. This has brought about a complete change in the concept of Wakf
and what is more important, its repercussions are pronounced with regard
to the controversy at hand. In other words, he would submit that the
very case of the writ petitioners/ respondents has been that since their

2
H AIR 1963 SC 985
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 503
YUSUF BHAI CHAWLA & ORS.

institutions are public religious or charitable trusts and therefore, they A
were registered under the 1950 Act and they cannot be treated as Wakfs.
Since, the very basis for the difference between the Wakf and a Trust
as was perceived, by the Court in the said judgment having being
deciphered with the pre-amendment definition of the word beneficiary
has been removed, there cannot be any difficulty in the law getting at
B
Wakfs, in substance and bringing them under the firm control of the Act.
He relies on case law which we shall refer to at the appropriate stage.
33. Mr. Javed Sheikh, learned counsel for the Board supplemented
Shri K. K. Venugopal and Mr. Gopal Sankarnarayanan, learned senior
counsel, and would support them in their attempts at overturning the
impugned judgment. C

34. Shri Rahul Chitnis, learned counsel for the State who appears
in certain special leave petitions would also attack the findings of the
High Court on analogous grounds and he adopts the argument addressed
by the learned senior counsel. He would submit that after the filing of
the special leave petitions in this Court which took place in the year D
2011, the Government has ordered a second survey on 07.12.2016. He
would point out that the order dated 20.10.2010 has been revoked.
35. Shri Anil Anturkar, learned senior counsel, appears in SLP
(C)No. 3136 of 2016.
E
He would contend that though this Court has pronounced about
the ambit of Section 4 of the Wakf Act, 1954, in the decision reported in
Board of Muslim Wakfs, Rajasthan v. Radha Kishan and Others3 as
far as the present Act is concerned, he would submit that the complaint
about natural justice being violated may be farfetched and may not be
sustainable. He emphasised the impact of Section 43 of the Act which F
provides for deemed registration of Wakfs. He drew our attention to
judgment of this Court reported in Madanuri Sri Rama Chandra
Murthy v. Syed Jalal4.
36. He would, in fact, go to the extent of contending that natural
justice if it is to be observed to the extent canvassed, may render it G
impermissible to obtain any fruitful results. He would further contend
that Wakfs would have been registered as deemed Wakfs under Section

3
(1979) 2 SCC 468
4
(2017) 13 SCC 174 H
504 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 28 of the 1950 Act, being Wakfs prior to the 1950 Act. In that case,
there can be no complaint at all as they would qualify as Wakfs even
under the Act. This is for the reason once a wakf, always a Wakf.
37. He would also point out that Wakfs, which are registered
under any law, are under Section 43 of the Act to be deemed registered
B under the Act. Even they cannot have any complaint. He drew our
attention also to the judgment of this Court in Ramjas Foundation and
Another v. Union of India and Others5 (paragraph 31) to contend that
it is not the law that the Wakfs can be created only by Muslims and non-
muslim can also create a Wakf. The only limitation is that it must be
permitted by law or countenanced by the law applicable the person who
C
is a non-muslim to create such Wakf. He further contends, however,
that there is a distinction between Public Trust and Wakf and the charity
commissioner was not justified in making over all the Muslim trusts and
what is more, it was clearly impermissible for the Wakf Board to act on
the same and include them as Wakfs under the Act.
D
38. Dr. A. M. Singhvi, learned senior counsel, would stoutly contest
the case of the appellants by pointing out that the appellant’s case is in
the teeth of an unbroken line of decisions of this Court bringing out the
clear-cut distinction between a public Trust and a Wakf. He would submit
that his client Sir Adamji Peerbhoy Santorium was created under a scheme
E settled by order dated 16.06.1931 passed by the High Court of Bombay
and which was registered under the 1950 Act. The respondents were
trustees of the aforesaid Public trust created by Muslims and they were
not Wakfs. He would submit that a Muslim would perhaps naturally lean
in favour of creating a Wakf. This does not preclude him or prevent him
from creating a public charitable Trust. Also, the confusion, according to
F
him, was generated on account of Category B registered public Trusts
which are nothing but Public Trusts registered by Muslims being converted
enmasse into Wakfs under the Act. This is entirely unjustified. Every
Wakf is a trust but every Public Trust is not a Wakf. He would submit
that a Wakf is perpetual and irrevocable whereas the Trust need not be
G perpetual and may be revoked under certain conditions. Wakf property
is inalienable. In the case of a trust, alienation of the Trust property is
not tabooed. The founder of a trust may himself be a beneficiary, whereas
the founder of a Wakf cannot reserve any benefit for himself. The powers

5
H (2010) 14 SCC 38
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 505
YUSUF BHAI CHAWLA & ORS.

of a Mutawalli (manager of the Wakf property) are very limited as A
compared to the powers of a Trustee. He heavily drew upon the judgment
of this Court in Nawab Zain Yar Jung (Since Deceased) and Othersv.
Director of Endowments and Another (supra) which has been followed
in Mohd. Khasimv. Mohd. Dastagir and Others6. This is besides
drawing support from the judgment of the Madras High Court reported
B
in The Kassimiah Charities Rajagiri v. The Madras State Wakf
Board,7. He would support the judgment of the High Court and point out
that the survey report did not have a separate list of Shia Wakfs in 21
districts out of 34 districts over which survey was conducted.
39. Several Muslims Trusts governed by common law were also
erroneously included in the survey report as Wakfs. The survey report C
failed to indicate the gross income in respect of 15436 Wakf out of
19987 Wakfs under survey.
40. The High Court was entirely justified in its reasoning particularly
as it involves even the report of the JPC. It is also contended that the
Board was not properly constituted having regard to the requirements of D
distinct categories from which the members must be drawn from for the
valid composition of the Board. The survey report, he insists is a sine
qua non and must be a prelude to the valid incorporation of the Board
which discharges solemn functions which includes the power of
superintendence under Section 32, power of registration under Section E
36, maintenance of register under Section 37 and power of the Board
under Section 40 to decide the matters mentioned therein.He raised a
serious challenge to the composition of the Board and complains that it
was illegal.
41. The list notified on 13.11.2003 was afflicted with various F
discrepancies which are highlighted. He further dwells upon the
developments following the Government’s decision to constitute
Bifurcation Committee.After taking us through the report, meetings,
resolutions, corrigendum and notifications, it was contended that after
the list of 13.11.2003, modified list was issued on 05.05.2005 which is
completely based upon the resolution dated 09.03.2005 which in turn G
has its premise in the meeting which took place on 11.08.2004. All of it
together, he would submit, unerringly points out to the understanding of

6
(2006) 13 SCC 497
7
1963 SCC Online Mad 132 H
506 SUPREME COURT REPORTS [2022] 12 S.C.R.

A the Government itself and what is more, the Board also that the survey
was highly flawed. Public Trusts per se which are clearly different from
Wakfs were made over by charity commissioner again on a
misapprehension of the legal position and came to be assimilated by the
State and the Board. This mistake was discerned and amends made. He
would therefore, submit that on no ground can this Court particularly
B
having regard to the long passage of time, tinker with the exclusion of
Public Trusts from the original list dated 13.11.2003. He would submit
that this is a matter of moment as the respondents- Public Charitable
Trusts have been carrying out charitable work for several years and
recognized as such. Any attempt at upsetting the view, would in fact,
C result in grave injustice. He urged us to draw support from the interim
order passed by this Court as well. According to him, in the interim order
which is reported in Maharashtra State Board of Wakfs v. Yusuf Bhai
Chawala and Others (2012) 6 SCC 328, this Court has clearly
appreciated the difference between a Public Trust and a Wakf and
proceeded to provide only for protection for Wakfs per se as distinct
D
from Public trusts and this distinction noticed in the interim order which
is based in turn on the judgment of this Court in Nawab Zain Yar Jung
(Since Deceased) and Others v. Director of Endowments and
Another8 is commended for our acceptance.
42. Dr. Singhvi, learned senior counsel, also submitted that Section
E 13(2) incorporates a core democratic value and having regard to the
distinction between the Sunnnisand Shias, a need to have separate Boards
cannot but be emphasised.
43. Shri Harish Salve, learned senior counsel appears in SLP
(C)Nos. 31288-90 of 2011 and SLP (C)No. 1132 of 2017. He would
F submit that the Muslim law recognises the concept of the English Trust.
What is more, it also recognises the distinction between such a Trust
and a Wakf. A Trust is known in Muslim legal terminology as amana
and it is not treated as a Wakf. The Muslim Personal Law (Sharia)
Application Act 1937 in section 2 refers to both Trusts and Wakfs
G separately. The definition in section 2(r) of the Wakf Act, 1995, only
explains the words Wakf and defines it but this does not mean that every
trust is to be transformed into a Wakf. A Wakf must fulfil certain legal
attributes. It cannot encompass all Trusts created by a Muslim. The
1950 Act is a secular law and there is no known principle that would

H 8
AIR 1963 SC 985
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 507
YUSUF BHAI CHAWLA & ORS.

compel a person to follow a customary law and deprive him of his rights A
under the secular law to create charity. The Constitution preserves
customary rights but did not take away the benefits available to members
of any community or faith under the secular law. He draws upon the
judgment of this Court in Mohd. Khasimv. Mohd. Dastagir and
Others(supra) relied on by the Dr.Abhishek Manu Singhvi, learned senior
B
counsel, as well. This is besides, of course, drawing our attention to the
judgment of this Court in Nawab Zain Yar Jung (Since Deceased)
and Othersv. Director of Endowments and Another(supra).
44. He would point out that the Mutawalli has no ownership right
or say in Wakf property. He is not in that respect a Trustee. In this
regard, he draws support from Tyabji on Muslim law. A Mutawalli is not C
entitled to deal with, that is dispose of or transfer off property, property
of a Wakf being inalienable. This is recognised under Section 51 of the
Act by the Amending Act 27 of 2013. A Wakf has three distinct features,
viz., it is perpetual, inalienable and irrevocable. In the case of a Trust,
property is transferable by the Trustee. He drew our attention to the D
provisions of section 43 of the Act and he contends that it only provides
that it shall not be necessary for the Wakf which is already registered
under any earlier law to register under the Act again. It does not mean
that what was a Muslim Public Trust before the Act would become a
Wakf.
E
45. Mr. Harish Salve, submits that Trusts created by Muslims
would continue to be administered by the Charity Commissioner, though
after the Act was enacted, the Muslim Wakfs may stand transferred to
be administered under the Act. He would support the various findings
given by the High Court. He would also submit that this is a case where
the respondents have been roped in as Wakfs without any basis and only F
on the premise of their being registered as Muslim Public Trusts under
the 1950 Act which is impermissible.
46. Shri Y. H. Muchhala learned senior counsel, however, would
essentially echo the same complaints about the contentions of the
appellants. He would submit that section 97 of the Act clothes the G
Government with the power to issue directions which are binding on the
Board. This submission is made in the context of the constitution of the
Bifurcation Committee.He would, therefore, contend that the Bifurcation
Committee which was constituted by the Government itself realising its
follies has made amends for its errors and the Wakf Board which has H
508 SUPREME COURT REPORTS [2022] 12 S.C.R.

A participated in proceedings of the Committee must be treated as acting
under the directions of the Government issued under Section 97 of the
Act. The Board had no choice in law and the present appeals must be
treated as premised on an infraction of the directions under Section 97
of the Act which is impermissible. He would also submit that the history
of the institutions would show that they were all public Trusts per se and
B
completely distinguishable in law from Wakfs. It is glossing over this
fundamental distinction that the survey was carried out the, lists were
published and illegalities sought to be perpetuated. The High Court has
set right the illegalities for which its power is unquestionable under
Constitutional provisions. The mere fact that there is an alternate forum
C provided by the Act again in no manner impinged on the power of the
High Court under Article 226 of the Constitution. He would also submit
that it would be wholly unfair and unjust for the appellants to persuade
this Court to retrace its steps at any rate from the list dated 05.05.2005.
He would harp upon the fact that though power may be available under
Section 40 of the Act, it is noteworthy that the section lay unutilised for
D
a long period of time. Authorities have proceeded on the basis that the
judgment of the High Court has reached justice to the parties and this
Court may not interfere in the matter at any rate. He also has an alternate
request that should this Court be persuaded to interfere in any manner,
the rights of his parties may be protected with reference to the powers
E available to this Court under Article 142 of the Constitution.
47. Mr. Y. H. Muchhala, learned senior counsel, submits that the
Survey Commissioner acted illegally. The notification of the Board was
illegal and lists dated 13.11.2003 and dated 30.12.2004 are not to be
followed being illegal. Charity is permissible and possible for a Muslim
F without the creation of a Wakf. His case is in sync with the reasoning of
the High Court that there would be a repeal of the 1950 Act only upon
the creation of a valid machinery to work the Act viz., there is a valid
incorporation of the Board and its proper constitution.
48. He would submit that there must be a proper finding about the
G institution being a Wakf, even at the hands of the surveyor. That duty
has been breached. In the facts of the case, he would support the judgment
of the High Court as being unexceptional. The Board was not functional,
as on the date of the Notification dated 13.11.2003, the Board consisted
of only Government nominees. The requirement that elected members
must exceed nominated members stood observed only in its breach.
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 509
YUSUF BHAI CHAWLA & ORS.

Even today, there is no valid and effective machinery under the Act A
which has been created by the Government. The Government has been
appointing members without following the mandate of the law. The Act
does not aim at codifying of the Muslim personnel law relating to Wakf
at all. The Act merely provides for the creation of an administration or
the machinery for proper administration of Wakfs.He highlights the salient
B
features which distinguish a Wakf from a Trust and he would contend
that no merit exists in the appeals.
49. Shri Naidu, learned senior counsel, appearing for one of the
respondents would also support the contentions and essentially adopts
the contentions of the respondents and he would trace the history of the
C
institution of Wakf and he would also contend that doing of charity is
emphasized by the prophet and a public trust can also be set up without
it being cataloged as a Wakf.
50. Shri VinaryNavare, learned senior counsel would submit that
the writ petitioners in his case were worshippers who approached the
D
High Court. When queried whether they were Sunni or Shia, he fairly
points out that the writ petitioners were Sunnis by faith. Upon being
further queried how the Sunni worshippers can have a grievance over
public Trusts which are essentially created by Shias, and when the entire
grievance in the case and the argument was essentially founded on the
injury caused to the Shia Wakfs, he would submit that the interest of the E
parties even as beneficiaries needs to be protected.
51. Shri Vinay Navare would submit also that his line of argument
is slightly different. He would submit that even assuming that there is no
need to constitute separate boards for Sunnis and Shias, there is a
statutory duty that the Government must perform at the time when it F
takes a decision to incorporate a Board to find out about the number of
Sunni and Shia Wakfs. In this regard, he draws upon Section 14(6) of
the Act and he would contend that thereunder, the members belonging
to the Sunni and Shia sects are to be determined with reference to their
numbers and value. Therefore, there must be some material if not the
G
data revealed in the survey to give effect to the legislative intent contained
in Section 14(6). He was at pains to take us through three affidavits to
point out that there was admittedly no material to justify the Government
to arrive at a conclusion that there is no need for a separate Shia Board
to deal with the Wakfs of the Shias.
H
510 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 52. In reply, Shri Gopal Sankarnarayanan, learned senior counsel,
would, in particular, point out that this is a case where during the survey
under Section 4, affected persons were served with a questionnaire and
in this regard, he relies upon the very basis of the High Court which is
the report of the JPC.
B 53. In other words, the JPC refers to the fact that questionnaires
were dispatched. Therefore, he poses the question as to how would
there be infraction of principles of natural justice occasioned.
54. He would further emphasise that Section 4 only provides for a
preliminary survey and no rights are created or affected. He would
C further point out that section 93 of the Wakf Act proscribes the making
of a compromise in any suit or other proceeding by the Board. He would
point out that there have been cases where illegal compromise has
happened. This line of argument is taken in the context of his attack
against the constitution of the Bifurcation Committee and its subsequent
proceedings. In other words, he rubbishes the attempt on the part of the
D respondents to draw support from the abridging of the List dated
13.11.2003 and 30.12.2004 by the making of the truncated List dated
05.05.2005.
55. Shri Gopal Sankaranarayan, learned counsel would emphasise
that after the amendment to the word “beneficiary”, the world has
E changed for Wakfs and trusts. He would contend that for a valid Wakf
to come into existence,it is not the law that there must be dedication to
the Almighty as such. The requirements of a Wakf would be sufficiently
satisfied without any such firm dedication to the Almighty as such. What
is required is the only employment of the property satisfying the different
F criteria which obviously means property is actually used in
perpetuitywithout there being any scope for revoking it, and further the
property is inalienable subject to the law.
56. Before we deal with the various contentions, it is for us to
have brief overview of the legislation affecting the institution of ‘wakf’
G in the country. Wakf is an institution which is close to the heart of the
Muslim community. There are various versions about its origin. Suffice
it is to notice one such.In his work, Mahommedan Law by Syed Ameer
Ali(4th Edition) at page 192, it is stated:
“Omar had acquired a piece of land in (the canton of) Khaibar,
and proceeded to the prophet and sought his counsel, to make the
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 511
YUSUF BHAI CHAWLA & ORS.

most pious use of it, (whereupon) the prophet declared, ‘tie up the A
property (asl or corpus) and devote the usufruct to human beings,
and it is not to be sold or made the subject of gift or inheritance;
devote its produce to your children, your kindred, and the poor in
the way of God.’”
57. We may notice certain further statements contained in the B
book “Mahommedan Law” by Syed Ameer Ali,at page 192:
“A Waqf is thus interwoven with the entire religious life and social
economy of the Mussulmans. “Trusts” in the Mussalman system
may, for the sake of convenience be divided under three heads,
that is, public, quasi-public and private. This will probably indicate C
the division adoptedby the Arabian jurists, who group wakfs or
trusts under the following three heads, viz: - (a) Trusts in favour
of the affluent and indigent alike (b) Trusts in favour of the affluent
and then for the indigent (c) Trusts in favour of the indigent alone.
Trust for public works of utility which are dedicated to the public
at large though classed under the first head, have a distinctive D
name. They are called wakfs for Masalih-ul-aamma and differ in
one feature from other Wakfs.”
58. The wakif must be free. He must be an adult and sane. The
property must be certain. The declaration need not be in a particular
form. The dedication must however exist. The dedication must not be E
transient but it must be permanent. The dedication must be for purposes
which are regarded as pious, charitable or religious as per Muslim Law.
59. A Wakf-alal-aulad is also a Wakf. In fact, we find the following
statement in the work of Syed Ameer Ali (supra) at pages 213, 214 and
215: F
“The word sadakah occurs so frequently in works dealing with
Mahommedan Law, and has such an important bearing on the constitution
of a wakf that an exact apprehension of its meaning is necessary to a
property understanding of the rules relating to dedications in the Islamic
system. G
Richardson in his dictionary translates it as meaning an “alms-
gift” and also as “property dedicated to pious uses.” Hamilton, the
translator of the Persian version of the Hedayah, evidently thought that
the word meant ‘alms’, to the poor; and this error has influenced all
subsequent conceptions. H
512 SUPREME COURT REPORTS [2022] 12 S.C.R.

A As a matter of fact, the word sadakah has a much larger meaning
in the Mussulman system. It means, property speaking, a pious act:-”a
smile in a neighbour’s face is sadakah; to help the weary is sadakah.”
Probably, the only expression by which it can be construed is the
wordcharity in its broadest sense.
B In the Mussulman Law, however, it means an offering or gift
made with the object of obtaining the approval of the Almighty, or a
reward in the next world…”
Xxx xxx xxx
“the Prophet of God has declared that a pious offering to one’s
C family to provide against their getting into want is more pious than giving
alms to beggars.”
“Said, the Prophet of god, when a Moslem bestows on his family
and kindred, with the object of earning the approval of the Almighty, it is
sadakah, although he has not given to the poor but to his family and
children”
D
“The most excellent of sadakah is that which a man bestows
upon his family.”
“The greatest sadakah in point of rewards is that which you
give to your family.”
E “To give money to free a slave, to give alms to the poor, to give to
your children and kindred, are all sadakah.”
60. The moment dedication is made, the wakif is believed to earn
his reward. We may in this context notice the following statement from
the work of Syed Ameer Ali at page 211:
F “It must be remembered also that a wakf is not a gratuitous transfer
of property. It is a transfer to the legal ownership of the Almighty
for substantial consideration, viz., His reward, which is obtained
the moment the wakf is created. As will be seen afterwards, a
wakf takes effect like the emancipation of a slave. There is no
power of revocation nor can there be any reserve; and neither
G the wakif nor any person deriving title from him can say afterwards
that he had no intention to make a binding and irrevocable wakf.”
A case of Wakf—alal-aulad however reached the Privy Council
in Abul Fata Mahomed v. Russomoy9. The Privy Council took the view
9
H (1894) 22 Cal. 619 : 22 I.A.. 76
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 513
YUSUF BHAI CHAWLA & ORS.

that it could not be treated as a legitimate wakf if the property was to be A
enjoyed by the descendants without end and the dedication to charity
was illusory or small.This led to considerable resentment among the
Muslims. The MussalmanWakf Validating Act, 1913 came to be passed.
This legitimised the institution of Wakf-alal-aulad. Another Act came to
be passed in the year 1930 which gave it retrospective effect. In the
B
meantime, theMussalman Wakf Act, 1923 came to be passed. The said
Act came to be applied in the Bombay Presidency by the Mussalman
Wakf (Bombay Amendment)Act, 1935 (XVIII of 1935). There were
certain variations in the 1935 Act in the State of Bombay. The Act was
again amended in 1945.
61. Bombay, it must be noticed was initially a Presidency being C
under the direct governance of the British Crown since the year 1859.
In the year 1937, after the passing of the Government of India Act,
1935, the Bombay Presidency became a province in British India. With
the advent of Independence and under the Constitution, Bombay became
a Part A State. With the passing of the State Reorganisation Act, 1956, D
Bombay along with certain other parts which included the Marathwada
region came to be constituted as the State of Maharashtra in the year
1960. This reference is being made to notice the circumstances in the
year 1950, when the Bombay Public Trust Act, 1950 came to be passed.
It was applicable to the then State of Bombay which incidentally also
consisted of parts of which formed the present State of Gujarat. In fact, E
it included even the territory which is today Sindh. While Marathwada
region was not a part of Bombay State, Marathwada consisting essentially
of six districts which were part of the Aurangabad Revenue Division,
Marathwada was governed by the Wakf Act, 1954 which we must notice
is an ‘improvement’ over the MussalmanWakf Act, 1923. Under the F
Wakf Act of 1923, the wakfs were not controlled by Wakf Boards as
such. The wakfs had to file returns to the courts. It is interesting to note
however that in the Wakf Act 1923 as applicable in the State of Bombay,
the law provided for a publication of list of wakfs. However, when 1950
Act came to be enacted in Bombay State and since the Wakf Act, 1954
was not applicable to the State, the Bombay Public Trust Act, G
1950governed the wakfs which were treated as public trusts. The Bombay
Public Trust Act provided for the following definition of the word “Public
Trust” under Section 2(13). It reads as under:
2(13) “Public trust” means an express or constructive trust for
either a public religious or charitable purpose or both and includes H
514 SUPREME COURT REPORTS [2022] 12 S.C.R.

A a temple, a math, a wakf, [a dharmada] or any other religious or
charitable endowment and a society formed either for a religious
or charitable purpose or for both and registered under the Societies
Registration Act, 1860 (XXI of 1860);
62. Section 2 (19) interestingly provides for the definition of the
B word ‘wakf’. This is so that wakf as defined in the definition of public
trust is properly appreciated. ‘Wakf’ under Section 2 (19) of the 1950
Act provided for a wakf which was defined as the permanent dedication
by a person professing Islam for the purpose recognised by Muslim
Law as pious, religious or charitable and it includes a wakf by user and
C grants including Mashrut-ul-khidmat for any purpose recognised by
Muslim law as pious, religious or charitable. The wakf-alal-aulad to the
extent to which property is dedicated for any purpose so recognised
was also a wakf which would qualify as a public trust. However, it did
not include a wakf so described under section 3 of the Mussulman Wakf
Validating Act 1913 under which any benefit is for the time being claimable
D for himself by wakif or for any member of the family or descendant. It
is relevant and apposite to unravel the true purport of this definition. We
would understand that what is covered as a public trust under the Bombay
Public Trust Act is only a Muslim Public Trust. In this regard we would
advert to the following declaration of the law contained in the judgment
E of this Court in AIR 1981 SC 798 at 799.
“6.…Similarly, even the Mahomedan law recognises the existence
of a private trust which is also of a charitable nature and which is
generally called waqf-allal-aulad, where the ultimate benefit is
reserved to God but the property vests in the beneficiaries and
F the income from the property is used for the maintenance and
support of the family of the founder and his descendants. In case
the family becomes extinct then the waqf becomes a public waqf,
the property vesting in God. A public waqf under the Mahomedan
law is called waqf-fi-sabi-lil-lah.”

G 63. We may notice also that the definition of wakf in the Bombay
Public Trust Act does not appear to refer to a wakf as one embracing a
public utility as the subject matter of a wakf. However, charitable purpose
has however been defined in Section 9 of the 1950 Act. Therein,
advancement of any other object of public utility is included. It reads as
follows:
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 515
YUSUF BHAI CHAWLA & ORS.

“9. Charitable Purposes. - For the purposes of this Act, a charitable A
purpose includes-
(1) relief of poverty or distress,
(2) education,
(3) medical relief and B
(4) the advancement of any other object of general public utility,
but does not include a purpose which relates-
(a) exclusively to sports, or
(b) exclusively to religious teaching or worship.”
C
64. Section 28, being relevant, it is noticed. Section 28 reads as
under:
“28. Public trust previously registered under enactments
specified in schedule. —
(1) All public trusts registered under the provisions of any of the D
enactmentsspecified in Schedule-A and Schedule-AA shall be
deemed to have beenregistered under this Act from the date on
which this Act may be applied tothem. The Deputy or Assistant
Charity Commissioner of the region or sub-regionwithin the limits
of which a public trust had been registered under any of the E
saidenactments shall issue notice to the trustee of such trust for
the purpose ofrecording entries relating to such trust in the register
kept under section 17 and shall after hearing the trustee and making
such inquiry as may be prescribedrecord findings with the reason
therefore. Such findings shall be in accordancewith the entries in
the registers already made under the said enactments subject F

to such changes as may be necessary or expedient.
(2) Any person aggrieved by way of the findings recorded under
sub-section(1) may appeal to the Charity Commissioner.
(3) The provisions of this Chapter shall, so far as may be, apply to G
themaking of entries in the register kept under section 17 and the
entries so madeshall be final and conclusive.”
65. The next relevant provision to notice is Section 36. It reads as
under:
H
516 SUPREME COURT REPORTS [2022] 12 S.C.R.

A “36. [(1) [Notwithstanding anything contained in the instrument
of trust]. -
(a) no sale, mortgage, exchange or gift of any immoveable
property, and
(b) no lease for a period exceeding ten years in case of agricultural
B land or for a period exceeding three years in the case of non-
agricultural land or a building, belonging to public trust, shall be
valid without the previous sanction of the Charity Commissioner.
(2) The decision of the Charity Commissioner under sub-section
(1) shall be communicated to the trustees and shall be published
C in such manner as may be prescribed.
(3) Any person aggrieved by such decision may appeal to the
Gujarat Revenue Tribunal within thirty days from the date of its
publication.

D (4) Such decision shall, subject to the provisions of sub-section
(3) be final.”
66. What is relevant from Section 36 is that in the case of a public
trust which includes a wakf under the Bombay Public Trust Act, the
property of the wakf can be sold, the only requirement thereunder being
the previous sanction of Charity Commissioner. We may at this juncture
E
observe that it does not harmonise with one of the indispensable
requirements of a wakf under the Act that the property of the wakf
cannot be alienated. Section 37 deals with the power of inspection and
supervision.
67. Section 38 deals with explanation being given by the trustees
F
to the Charity Commissioner. Section 41A to 41E deals with various
additional powers which have been conferred which include the power
of suspension, remission, dismissal of the trustees by the Charity
Commissioner. Section 79 must be noticed in full. It reads as under:
“79. Decision of property as public trust property:- (1) Any question,
G whether or not a trust exists and such trust is a public trust or
particular property is the property of such trust, shall be decided
by the Deputy or Assistant Charity Commissioner or the Charity
Commissioner in appeal as provided by this Act. (2) The decision
of the Deputy or Assistant Charity Commissioner or the Charity
H Commissioner in appeal, as the case may be, shall, unless set
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 517
YUSUF BHAI CHAWLA & ORS.

aside by the decision of the Court on application or of the High A
Court in appeal be final and conclusive.”
68. Section 85 provides for repeal. It reads as follows:
“85. Repeals:-
(1) The Religious Endowments Act, 1862, is hereby repealed. B
(2) On the date of the application of the provisions of this Act to
any public trustor class of trusts under sub-section (4) of section
1 hereinafter in this sectionreferred to an the said date the
provisions of the Act specified in Schedule Awhich apply to such
trust or class of trusts shall cease to apply to such trust orclass of C
trusts.
(3) Save as otherwise provided in this section such repeal or
cessation shall notin any way affect –
(a) any right, title, interest, obligation or liability already acquired,
accruedor incurred before the said date. D
(b) any legal proceedings or remedy in respect of such right, title,
interest,obligation or liability, or
(c) anything duly done or suffered before the said date.
(4) Notwithstanding anything contained in sub-section (3) all E
proceedingspending before any authority under the Mussalman
Wakf Act, 1923 asamended by the Mussalman Wakf Bombay
Amendment Act, 1935, the Bombay Public Trusts Registration
Act, 1935, or the Parsi Public Trusts Registration Act, 1936,
immediately before the said date shall be transferred to the Charity
Commissioner and any such proceedings shall be continued and F
disposed of bythe Charity Commissioner or the Deputy or Assistant
Charity Commissioner asthe Charity Commissioner may direct.
In disposing of such proceedings the Charity Commissioner, the
Deputy Charity Commissioner or the AssistantCharity
Commissioner, as the case may be, shall have and exercise the G
samepowers which were vested in and exercised by the Court
under the MussalmanWakf Act, 1923 as amended by the
Mussalman Wakf (Bombay Amendment)Act, 1935, and by the
Registrars under the Bombay Public Trusts RegistrationAct, 1935,
and the Parsi Public Trusts Registration Act, 1936, and shall
passsuch orders as may be just or proper. H
518 SUPREME COURT REPORTS [2022] 12 S.C.R.

A (5) All records maintained by the authority or Court under any of
the Actsreferred to in sub-section (4) shall be transferred to the
Charity Commissioner orto the Deputy or Assistant Charity
Commissioner as the Charity Commissionermay direct.”
69. Section 86 provides for further repeals and savings. Section
B 85 refers to schedule A. We may notice that theMussalman Wakf Act
of 1923 is one of the laws which is referred to in the said Schedule.
70. Section 87 declares that theAct will not apply to the
Marathwada region. This is for the reason that it came under the ambit
of the Wakf Act, 1954.
C 71. As we have noticed,the Wakf Act 1954 was perceived as an
evolution of the earlier Act. It was specifically intended to introduce
uniformity in matters relating to wakfs all over the country. But the
factremains that in view of the conditional legislation contained as it did
in Section 1 of the Act, providing for power in applying the Act to different
D states on different dates and the power to apply itself being with the
Government, the Act was not made applicable to the territory which
was comprised in the erstwhile state of Bombay. The definition of ‘Wakf’
in the 1954 Act must be noticed. It reads as follows:
“Wakf” means the permanent dedication by a person professing
E Islam of any movable or immovable property for any purpose
recognised by the Muslim law as pious, religious or charitable and
includes— (i) a wakf by user; 1[(ii) grants (including mashrut-ul-
khidmat) for any purpose recognised by the Muslim law as pious,
religious or charitable; and] (iii) a wakf-alal-aulad to the extent to
which the property is dedicated for any purpose recognised by
F Muslim law as pious, religious or charitable; and “wakif” means
any person making such dedication;”
72. Section 3(a) defined the word ‘beneficiary’. It reads as follows:
“3(a) “beneficiary” means a person or object for whose benefit a
wakf is created and includes religious, pious and charitable objects
G
and any other objects of public utility sanctioned by the Muslim
law;””
73. In fact, there was an amendment brought out in 1964. The
words “established for the benefit of Muslim community” was substituted
with the words “sanctioned by the Muslim Law”. In the notes on clauses
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 519
YUSUF BHAI CHAWLA & ORS.

in Bill No.32 of 1964 which culminated in the Amending Act 34 of 1964, A
we notice:
“Clause 2- the definition of ‘beneficiary’ in Section 3(a) of the
Act involves a deviation from the real concept of beneficiary under
the Muslim Law which makes no distinction between Muslims
and Non-Muslims in the matter of beneficiaries or disbursement B
of charity. It is to that extent inconsistent with the definition of
‘wakf’ contained in the Act. Sub-clause (i) seeks to amend the
definition of ‘beneficiary’ to remove this inconsistency.”
74. Section 4 provided for survey by the Survey Commissioner of
the wakf‘property’ as pointed by Shri Gopal Sankaranarayan. We need C
not refer to the said provision for the reason thatthe parimateria provision
of Section 4 is replicated as the same Section in the Act. The Act contained
provisions for power for control of the Board, registration of Wakfs and
superintendence by the ‘civil court’. It provided in Section 6 that on the
publication of the list of wakf properties,any‘person interested in the
D
wakf’could seek relief from the Court which was contemplated in Section
6 of the Act. The Act was amended on three occasions. There were
complaints about the results which the Act of 1954 was able to produce.
This finally paved the way for the passing of the Act with which we are
concerned. It is passed in the year 1995. It came into force on 1.1.1996.
This time around the State of Bombay which since 1960 had become E
the present State of Maharashtra which included the ‘Marathwada region’
also came under the regime of the Act.
75. Section 2 of the Act reads as follows:
“2. Application of the Act. — Save as otherwise expressly F
provided under this Act, this Act shall applyto all auqafwhether
created before or after the commencement of this Act:
Provided that nothing in this Act shall apply to Durgah Khawaja
Saheb, Ajmer to which the DurgahKhawaja Saheb Act, 1955 (36
of 1955) applies.” G
(Emphasis supplied)
76. It is at once to be noticed thatthe Act shallapply to wakfs
which were created ‘before the Act’ was passed and it is also to apply
to wakfs which were brought into existence after the Act.
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520 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 77. Section 3(a) in the Act which defines the word ‘beneficiary’
continues with the same definition as was present in the Wakf Act 1954
after its amendment in the year 1964. We will comment on its significance
at the appropriate stage in the judgment. Section 3 (c) defines the word
‘Board’ as follows:
B “3(c) “Board” means a Board of Wakfs established under
4*[subsection (1), or as the case may be, under sub- section (1A)
of section 9.”
Next, we would notice the definition of the word ‘wakf’ in Section
3 (r) before its amendment by Act 27 of 2013. It read as under:
C “3(r). “Wakf” means the permanent dedication by a person
professing Islam, of any movable or immovable property for any
purpose recognised by the Muslim Law as pious, religious or
charitable and includes –
(i) a wakf by user but such wakf shall not cease to be a wakf
D by reason only of the user having ceased irrespective of
the period of such cesser;
(ii) “grants”, including mashrut – ul-khidmat for any purpose
recognised by the Muslim Law as pious, religious or
charitable; and
E
(iii) A wakf-alal-aulad to the extent to which the property is
dedicated for any purpose recognised by Muslim Law as
pious, religious or charitable,
and “wakif” means any person making such dedication;”
F 78. It must also be noticed at this juncture that with effect from
the date of the Act 27 of 2013 it has been substituted and as it stands
today.Section 3(r) reads as follows:
“3(r) “waqf” means the permanent dedication by any person, of
any movable or immovableproperty for any purpose recognised
G by the Muslim law as pious, religious or charitable andincludes—
(i) a waqf by user but such waqf shall not cease to be a waqf by
reason only of the userhaving ceased irrespective of the period of
such cesser;
(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other
H name entered in a revenuerecord;
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 521
YUSUF BHAI CHAWLA & ORS.

(iii) “grants”, including mashrat-ul-khidmat for any purpose A
recognised by the Muslim law aspious, religious or charitable; and
(iv) a waqf-alal-aulad to the extent to which the property is
dedicated for any purposerecognised by Muslim law as pious,
religious or charitable, provided when the line of successionfails,
the income of the waqf shall be spent for education, development, B
welfare and such otherpurposes as recognised by Muslim law,and
“waqif” means any person making such dedication;”
79. Section 4 of Wakf Act, 1995, which is at the centre stage of
controversy must be adverted to:
“4. Preliminary survey of auqaf.— C

(1) The State Government may, by notification in the Official
Gazette, appoint for the State a Survey Commissioner of Auqaf
and as many Additional or Assistant Survey Commissioners of
Auqaf as may be necessary for the purpose of making a survey
of 3 auqaf in the State. D
1A) Every State Government shall maintain a list of auqaf referred
to in sub-section (1) and the survey of auqaf shall be completed
within a period of one year from the date of commencement of
the Wakf (Amendment) Act, 2013 (27 of 2013), in case such
survey was not done before the commencement of the Wakf E
(Amendment) Act, 2013:
Provided that where no Survey Commissioner of Waqf has been
appointed, a Survey Commissioner for auqaf shall be appointed
within three months from the date of such commencement.
F
(2) All Additional and Assistant Survey Commissioner of Auqaf
shall perform their functions under this Act under the general
supervision and control of the Survey Commissioner of Auqaf.
(3) The Survey Commissioner shall, after making such inquiry as
he may consider necessary, submit his report, in respect of auqaf
existing at the date of the commencement of this Act in the State G
or any part thereof, to the State Government containing the
following particulars, namely: —
(a) the number of auqaf in the State showing the Shia auqaf and
Sunni auqaf separately;
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522 SUPREME COURT REPORTS [2022] 12 S.C.R.

A (b) the nature and objects of each waqf;
(c) the gross income of the property comprised in each waqf;
(d) the amount of land revenue, cesses, rates and taxes payable
in respect of each waqf;

B (e) the expenses incurred in the realisation of the income and the
pay or other remuneration of the mutawalli of each waqf; and
(f) such other particulars relating to each waqf as may be
prescribed.
(4) The Survey Commissioner shall, while making any inquiry,
C have the same powers as are vested in a civil court under the
Code of Civil Procedure, 1908 (5 of 1908) in respect of the
following matters, namely: —
(a) summoning and examining any witness;
(b) requiring the discovery and production of any document;
D
(c) requisitioning any public record from any court or office;
(d) issuing commissions for the examination of any witness or
accounts;
(e) making any local inspection or local investigation;
E (f) such other matters as may be prescribed.
(5) If, during any such inquiry, any dispute arises as to whether a
particular waqf is a Shia waqf or Sunni waqf and there are clear
indications in the deed of waqf as to its nature, the dispute shall be
decided on the basis of such deed.
F
(6) The State Government may, by notification in the Official
Gazette, direct the Survey Commissioner to make a second or
subsequent survey of waqf properties in the State and the
provisions of sub-sections (2), (3), (4) and (5) shall apply to such
survey as they apply to a survey directed under sub- section (1):
G Provided that no such second or subsequent survey shall be made
until the expiry of a period of ten years from the date on which
the report in relation to the immediately previous survey was
submitted under sub-section (3):
Provided further that the waqf properties already notified shall
H not be reviewed again in subsequent survey except where the
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 523
YUSUF BHAI CHAWLA & ORS.

status of such property has been changed in accordance with the A
provisions of any law.”
80. Section 5 is equally an integral part of the scheme. It reads as
under:
“5. Publication of list of auqaf.—
B
(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.
(2) The Board shall examine the report forwarded to it under sub-
section (1) and fordward it back to the Government within a period
of six months for publication in the Official Gazette] a list of Sunni C
auqaf or Shia auqaf in the State, whether in existence at the
commencement of this Act or coming into existence thereafter, to
which the report relates, and containing such other particulars as
may be prescribed.
(3) The revenue authorities shall— D
(i) include the list of auqaf referred to in sub-section (2), while
updating the land records; and
(ii) take into consideration the list of auqaf referred to in sub-
section (2), while deciding mutation in the land records.
(4) The State Government shall maintain a record of the lists E
published under sub-section (2) from time to time.”
81. Sections 6 and 7 reads as follows:
“6. Disputes regarding auqaf.—
(1) If any question arises whether a particular property specified F
as waqf property in the list of auqaf is waqf property or not or
whether a waqf specified in such list is a Shia waqf or Sunni
waqf, the Board or the mutawalli of the waqf or 7 [any person
aggrieved] may institute a suit in a Tribunal for the decision of the
question and the decision of the Tribunal in respect of such matter G
shall be final: Provided that no such suit shall be entertained by
the Tribunal after the expiry of one year from the date of the
publication of the list of auqaf:
Provided further that no suit shall be instituted before the Tribunal
in respect of such properties notified in a second or subsequent
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524 SUPREME COURT REPORTS [2022] 12 S.C.R.

A survey pursuant to the provisions contained in sub-section (6) of
section 4.
(2) Notwithstanding anything contained in sub-section (1), no
proceeding under this Act in respect of any waqf shall be stayed
by reason only of the pendency of any such suit or of any appeal
B or other proceeding arising out of such suit.
(3) The Survey Commissioner shall not be made a party to any
suit under sub-section (1) and no suit, prosecution or other legal
proceeding shall lie against him in respect of anything which is in
good faith done or intended to be done in pursuance of this Act or
C any rules made thereunder.
(4) The list of auqaf shall, unless it is modified in pursuance of a
decision of the Tribunal under sub-section (1), be final and
conclusive.
(5) On and from the commencement of this Act in a State, no suit
D or other legal proceeding shall be instituted or commenced in a
court in that State in relation to any question referred to in sub-
section (1).”
“7. Power of Tribunal to determine disputes regarding
auqaf.—
E (1) If, after the commencement of this Act, any question or dispute
arises, whether a particular property specified as waqf property
in a list of auqaf is waqf property or not, or whether a waqf
specified in such list is a Shia waqf or a Sunni waqf, the Board or
the mutawalli of the waqf, or any person aggrieved by the
F publication of the list of auqaf under section 5] therein, may apply
to the Tribunal having jurisdiction in relation to such property, for
the decision of the question and the decision of the Tribunal thereon
shall be final:
Provided that—
G (a) in the case of the list of auqafrelating to any part of the
State and published after the commencement of this Act no
such application shall be entertained after the expiry of one
year from the date of publication of the list of auqaf; and
(b) in the case of the list of auqaf relating to any part of the
H State and published at any time within a period of one year
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 525
YUSUF BHAI CHAWLA & ORS.

immediately preceding the commencement of this Act, such A
an application may be entertained by Tribunal within the period
of one year from such commencement: Provided further that
where any such question has been heard and finally decided
by a civil court in a suit instituted before such commencement,
the Tribunal shall not re-open such question.
B
(2) Except where the Tribunal has no jurisdiction by reason of the
provisions of sub-section (5), no proceeding under this section in
respect of any 3 [waqf] shall be stayed by any court, tribunal or
other authority by reason only of the pendency of any suit,
application or appeal or other proceeding arising out of any such
suit, application, appeal or other proceeding. C

(3) The Chief Executive Officer shall not be made a party to any
application under sub-section (1).
(4) The list of auqaf and where any such list is modified in
pursuance of a decision of the Tribunal under sub-section (1), the D
list as so modified, shall be final.
(5) The Tribunal shall not have jurisdiction to determine any matter
which is the subject-matter of any suit or proceeding instituted or
commenced in a civil court under sub-section (1) of section 6,
before the commencement of the Act or which is the subject- E
matter of any appeal from the decree passed before such
commencement in any such suit or proceeding or of any application
for revision or review arising out of such suit, proceeding or appeal,
as the case may be.
(6) The Tribunal shall have the powers of assessment of damages F
by unauthorised occupation of waqf property and to penalise such
unauthorised occupants for their illegal occupation of the waqf
property and to recover the damages as arrears of land revenue
through the Collector:
Provided that whosoever, being a public servant, fails in his lawful
G
duty to prevent or remove an encroachment, shall on conviction
be punishable with fine which may extend to fifteen thousand
rupees for each such offence.”
82. Section 8 provides that the Board has to bear the cost of the
survey.
H
526 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 83. Section 9 contemplates establishment and constitution of
Central Wakf Council. Section 9 (4) alone need detain us and it reads as
follows:
“9. Establishment and constitution of Central
WakfCouncil.—
B (4) The State Government or, as the case may be, the Board,
shall furnish information to the Council on the performance of
Waqf Boards in the State, particularly on their financial
performance, survey, maintenance of waqf deeds, revenue
records, encroachment of waqf properties, annual reports and
C audit reports in the manner and time as may be specified by the
Council and it may suo motu call for information on specific issues
from the Board, if it is satisfied that there was prima facie evidence
of irregularity or violation of the provisions of this Act and if the
Council is satisfied that such irregularity or violation of the Act is
established, it may issue such directive, as considered appropriate,
D which shall be complied with by the concerned Board under
intimation to the concerned State Government.”
84. Next, we come to Chapter IV under which the first provision
is Section 13. It reads as follows:

E “13. Incorporation. —
(1) With effect from such date as the State Government may, by
notification the Official Gazette, appoint in this behalf, there shall
be established a Board of Auqaf under such name as may be
specified in the notification:
F Provided that in case where a Board of Waqf has not been
established, as required under this sub-section, a Board of Waqf
shall, without prejudice to the provisions of this Act or any other
law for the time being in force, be established within six months
from the date of commencement of the Wakf (Amendment) Act,
2013 (27 of 2013).
G
(2) Notwithstanding anything contained in sub-section (1), if the
Shia auqaf in any State constitute in number more than fifteen per
cent. of all the auqaf in the State or if the income of the properties
of the Shia auqaf in the State constitutes more than fifteen per
cent. of the total income of properties of all the auqaf in the State,
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 527
YUSUF BHAI CHAWLA & ORS.

the State Government may, by notification in the Official Gazette, A
establish a Board of Auqaf each for Sunni auqaf and for Shia
auqaf under such names as may be specified in the notification.
(2A) Where a Board of Waqf is established under sub-section (2)
of section 13, in the case of Shia waqf, the Members shall belong
to the Shia Muslim and in the case of Sunni waqf, the Members B
shall belong to the Sunni Muslim.
(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 to such conditions
and restrictions as may be prescribed and shall by the said name C
sue and be sued.”
85. We must indeed refer to Section 14 which deals with the
composition of Board. It reads as under:
“14. Composition of Board. — (1) The Board for a State and the
National Capital Territory of Delhi] shall consist of— D
(a) a Chairperson;
(b) one and not more than two members, as the State
Government may think fit, to be elected from each of the
electoral colleges consisting of—
E
(i) Muslim Members of Parliament from the State or, as
the case may be, the National Capital Territory of Delhi;
(ii) Muslim Members of the State Legislature;
(iii) Muslim members of the Bar Council of the concerned
State or Union territory: Provided that in case there is no F
Muslim member of the Bar Council of a State or a Union
territory, the State Government or the Union territory
administration, as the case may be, may nominate any senior
Muslim advocate from that State or the Union territory, and
(iv) mutawallis of the auqaf having an annual income of G
rupees one lakh and above.
Explanation I.—For the removal of doubts, it is hereby
declared that the members from categories mentioned in
sub-clauses (i) to (iv), shall be elected from the electoral
college constituted for each category. H
528 SUPREME COURT REPORTS [2022] 12 S.C.R.

A Explanation II.—For the removal of doubts it is hereby
declared that in case a Muslim member ceases to be a
Member of Parliament from the State or National Capital
Territory of Delhi as referred to in sub-clause (i) of clause
(b) or ceases to be a Member of the State Legislative
Assembly as required under sub-clause (ii) of clause (b),
B
such member shall be deemed to have vacated the office
of the member of the Board for the State or National Capital
Territory of Delhi, as the case may be, from the date from
which such member ceased to be a Member of Parliament
from the State National Capital Territory of Delhi, or a
C Member of the State Legislative Assembly, as the case may
be;
(c) one person from amongst Muslims, who has professional
experience in town planning or business management, social
work, finance or revenue, agriculture and development activities,
D to be nominated by the State Government;
(d) one person each from amongst Muslims, to be nominated
by the State Government from recognised scholars in Shia and
Sunni Islamic Theology;
(e) one person from amongst Muslims, to be nominated by the
E State Government from amongst the officers of the State
Government not below the rank of Joint Secretary to the State
Government;
(1A) No Minister of the Central Government or, as the case may
be, a State Government, shall be elected or nominated as a member
F of the Board:
Provided that in case of a Union territory, the Board shall consist
of not less than five and not more than seven members to be
appointed by the Central Government from categories specified
under sub-clauses (i) to (iv) of clause (b) or clauses (c) to (e) in
G sub-section (1):
Provided further that at least two Members appointed on the Board
shall be women:
Provided also that in every case where the system of mutawalli
exists, there shall be one mutawalli as the member of the Board.
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 529
YUSUF BHAI CHAWLA & ORS.

(2) Election of the members specified in clause (b) of sub-section A
(1) shall be held in accordance with the system of proportional
representation by means of a single transferable vote, in such
manner as may be prescribed:
Provided that where the number of Muslim Members of Parliament,
the State Legislature or the State Bar Council, as the case may B
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 categories mentioned in sub-clauses (i) to (iii) of clause (b)
of sub-section (1) the ex-Muslim Members of Parliament, the C
State Legislature or ex-member of the State Bar Council, as the
case may be, shall constitute the electoral college.
(3) Notwithstanding anything contained in this section, where the
State Government is satisfied, for reasons to be recorded in writing,
that it is not reasonably practicable to constitute an electoral college D
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 Board 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 E
as provided under sub-section (3).
(5) Xxx xxx xxx
(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 auqaf and Sunni auqaf to be administered F
by the Board and appointment of the members shall be made, so
far as may be, in accordance with such determination.
(7) * * * * *
(8) Whenever the Board is constituted or reconstituted, the
members of the Board present at a meeting convened for the G
purpose shall elect one from amongst themselves as the
Chairperson of the Board.
(9) The members of the Board shall be appointed by the State
Government by notification in the Official Gazette.”
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530 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 86. Section 15 provides that the Members of Board shall hold
office for a period 5 years, as it stood, and the words ‘from the date of
notification referred to in sub-Section (9) of Section 14" was inserted by
Act 27 of 2013.
87. Section 16 enumerates various disqualifications to be members
B of the Board. Section 17 deals with the meetings of the Board. Section
19 provides for resignation of chairperson and Members. The
Chairperson or a Member can be removed under Section 20. Section 22
is significant as will be revealed later on. It reads as follows:
“22. Vacancies, etc., not to invalidate proceedings of the
C Board.—
No act or proceeding of the Board shall be invalid by reason only
of the existence of any vacancy amongst its member or any defect
in the constitution thereof.”
88. Section 32 provides for powers and functions of the Board
D and we will dwell upon it when it becomes appropriate.
89. Section 36 falls under chapter V and deals with registration of
wakfs. Section 39 (1) must be referred to as a prelude to the scope of
Section 40, which latter provision is, parimateria with Section 27 of the
Wakf Act, 1954. Section 39 inter alia reads as under:
E
“39. Powers of Board in relation to auqaf which have ceased
to exist. —
(1) The Board shall, if it is satisfied that the objects or any part
thereof, of a waqf have ceased to exist, whether such cesser
took place before or after the commencement of this Act, cause
F
an inquiry to be held by the Chief Executive Officer, in the
prescribed manner, to ascertain the properties and funds pertaining
to such waqf.”
90. Section 40 reads as follows:
G “40. Decision if a property is wakf property. —
(1) The Board may itself collect information regarding any property
which it has reason to believe to be waqf property and if any
question arises whether a particular property is waqf property or
not or whether a waqf is a Sunni waqf or a Shia waqf, it may,
H after making such inquiry as it may deem fit, decide the question.
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 531
YUSUF BHAI CHAWLA & ORS.

(2) The decision of the Board on a question under sub-section (1) A
shall, unless revoked or modified by the Tribunal, be final.
(3) Where the Board has any reason to believe that any property
of any trust or society registered in pursuance of the Indian Trusts
Act, 1882 (2 of 1882) or under the Societies Registration Act,
1860 (21 of 1860) or under any other Act, is waqf property, the B
Board may notwithstanding anything contained in such Act, hold
an inquiry in regard to such property and if after such inquiry the
Board is satisfied that such property is waqf property, call upon
the trust or society, as the case may be, either to register such
property under this Act as waqf property or show cause why
such property should not be so registered: Provided that in all C
such cases, notice of the action proposed to be taken under this
sub-section shall be given to the authority by whom the trust or
society had been registered.
(4) The Board shall, after duly considering such cause as may be
shown in pursuance of notice issued under sub-section (3), pass D
such orders as it may think fit and the order so made by the Board,
shall be final, unless it is revoked or modified by a Tribunal.”
91. Under Section 41, the Board may compel a Muttawalli to
apply for registration of a wakf or to supply any information or may
itself cause the wakf to be registered or may at any time amend the E
register of auqaf. Section 43 is also crucial for appreciating the
controversy before us. Section 43 reads as under:
“43. Auqaf registered before the commencement of this
Act deemed to be registered. —
F
Notwithstanding anything contained in this Chapter, where any
waqf 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 1 [waqf] under the provisions of this Act and any
such registration made before such commencement shall be
deemed to be a registration made under this Act.” G
92. Section 51 deals with alienation of wakf property. It reads as
under:
“51. Alienation of wakf property without sanction of Board
to be void. —
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532 SUPREME COURT REPORTS [2022] 12 S.C.R.

A (1) Notwithstanding anything contained in the waqf deed, any
lease of any immovable property which is waqf property, shall be
void unless such lease is effected with the prior sanction of the
Board: Provided that no mosque, dargah, khanqah, graveyard, or
imambara shall be leased except any unused graveyards in the
States of Punjab, Haryana and Himachal Pradesh where such
B
graveyard has been leased out before the date of commencement
of the Wakf (Amendment) Act, 2013 (27 of 2013).
(1A) Any sale, gift, exchange, mortgage or transfer of waqf
property shall be void ab initio: Provided that in case the Board is
satisfied that any waqf property may be developed for the purposes
C of the Act, it may, after recording reasons in writing, take up the
development of such property through such agency and in such
manner as the Board may determine and move a resolution
containing recommendation of development of such waqf property,
which shall be passed by a majority of two-thirds of the total
D membership of the Board: Provided further that nothing contained
in this sub-section shall affect any acquisition of waqf properties
for a public purpose under the Land Acquisition Act, 1894 (1 of
1894) or any other law relating to acquisition of land if such
acquisition is made in consultation with the Board: Provided also
that—
E
(a) the acquisition shall not be in contravention of the Places of
Public Worship (Special Provisions) Act, 1991 (42 of 1991);
(b) the purpose for which the land is being acquired shall be
undisputedly for a public purpose;
F (c) no alternative land is available which shall be considered as
more or less suitable for that purpose; and
(d) to safeguard adequately the interest and objective of the waqf,
the compensation shall be at the prevailing market value or a
suitable land with reasonable solatium in lieu of the acquired
G property.”
93. Section 52 provides for power of recovery of wakf property
transferred in contravention of Section 51.
94. Section 97 relied upon by Shri Y.H. Mucchawala, learned
Senior Counsel, reads as follows:
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 533
YUSUF BHAI CHAWLA & ORS.

“97. Directions by State Government. — A
Subject to any directions issued by the Central Government under
section 96, the State Government may, from time to time, give to
the Board such general or special directions as the State
Government thinks fit and in the performance of its functions, the
Board shall comply with such directions: B
Provided that the State Government shall not issue any direction
being contrary to any waqf deed or any usage; practice or custom
of the waqf.”
95. Section 102 deals with special provisions for reorganisation of
certain Boards and Section 103 deals again with special provisions for C
establishment of Board for part of a State. Section 104 provides for
donation made by a non-Muslim becoming part of the wakf. It reads as
follows:
“104. Application of Act to properties given or donated by persons
not professing Islam for support of certain waqf.— D
Notwithstanding anything contained in this Act where any movable
or immovable property has been given or donated by any person
not professing Islam for the support of a waqf being—
(a) a mosque, idgah, imambara, dargah, khangah or a maqbara;
E
(b) a Muslim graveyard;
(c) a choultry or a musafirkhana,
then such property shall be deemed to be comprised in that waqf
and be alt in the same manner as the waqf in which it is so
comprised.” F
96. Section 104A inserted by Act 27 of 2013 prohibits sale, gift,
exchange, mortgage or transfer of wakf property, movable or immovable
to any other person.This is notwithstanding anything contained in the
Act itself or any other law for the time being in force. Section 104B
deals with restoration of wakf property in occupation of the Government G
to the wakf Board. Lastly, we may only notice Section 112 since it deals
with repeal and savings. It reads as under:
“112. Repeal and savings. —
(1) The Wakf Act, 1954 (29 of 1954) and the Wakf (Amendment)
Act, 1984 (69 of 1984) are hereby repealed. H
534 SUPREME COURT REPORTS [2022] 12 S.C.R.

A (2) Notwithstanding such repeal, anything done or any action taken
under the said Acts shall be deemed to have been done or taken
under the corresponding provisions of this Act.
(3) If, immediately before the commencement of this Act, in any
State, there is in force in that State, any law which corresponds to
B this Act that corresponding law shall stand repealed: Provided
that such repeal shall not affect the previous operation of that
corresponding law, and subject thereto, anything done or any action
taken in the exercise of any power conferred by or under the
corresponding law shall be deemed to have been done or taken in
the exercise of the powers conferred by or under this Act as if
C this Act was in force on the day on which such things were done
or action was taken.”
97. Having set out the salient provisions of the Act, the time is
ripe for us to consider the contentions of the parties. The first contention
which has been raised relates to the very incorporation of the Board.
D The incorporation of the Board is an essential feature for the working of
the Act. This is for the reason that the Board is thefulcrum aroundwhich
the whole control and regulation of the Wakfs is to take place. We have
noticed the terms of Section 13. The High Court has found that the
notification incorporating the appellant Board was flawed. The reason
which appealed to the High Court appears to be that it was not preceded
E by the survey contemplated under Section 4. To expatiate,it is the finding
of the High Court that the Act contemplates the survey giving birth to
data which is requisite and indispensable for the Government to legally
determine the question inter alia as to whether there must be separate
Sunni and Shia Boards. This is because Section 13 (2) provides that the
F Government ‘may’ have Sunni Board and Shia Board if the conditions
mentioned therein are present. The problem posed is the impossibility of
finding out the solution to this question in the absence of relevant data.
The only relevant data, according to the High Court, is what is yielded in
the Survey under Section 4.
98. We must first decide as to whether Section 13 (2) provides
G
for an inflexible and unalterable duty with the Government to establish
separate Sunni and Shia Boards if the number of Shia Wakfs is in excess
of 15 per cent of all the wakfs. Still further, will the Government be duty
bound to constitute separate Boards for the two sects if the income
from the Shia wakfs exceeds 15 per cent of the total income of all the
H wakfs put together.
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 535
YUSUF BHAI CHAWLA & ORS.

99. The use of the word ‘may’ is not to be brushed aside with A
contempt or without due reference to the knowledge that legislature has
knowingly used it. But we do bear in mind that the word ‘may’ indeed be
capable of bearing an imperative meaning. In this regard we may refer
to the judgment in Baker, Re [Baker, Re, Nichols v. Baker10:
‘I think that great misconception is caused by saying that in some B
cases “may” means “must”. It never can mean “must”, so long
as the English language retains its meaning; but it gives a power,
and then it may be question in what cases, where a Judge has
a power given by him by the word “may”, it becomes his duty
to exercise it.’
C
100. We may also refer to the following observations made in
Julius v. Lord Bishop of Oxford11:
‘The words “it shall be lawful” are not equivocal. They are plain
and unambiguous. They are words merely making that legal and
possible which there would otherwise be no right or authority to D
do. They confer a faculty or power and they do not of themselves
do more than confer a faculty or power. But there may be
something in the nature of the thing empowered to be done,
something in the object for which it is to be done, something
in the title of the person or persons for whose benefit the
power is to be exercised, which may couple the power with a E
duty, and make it the duty of the person in whom the power is
reposed, to exercise that power when called upon to do so.’
101. Bearing in mind the tests which have been laid down, we
must pose the question as to whether there is anything in the object or in
the context that requires of us to not give ‘may’ its ordinary meaning F
which undoubtedly implies only a discretion. The search for the object in
the context undoubtedly transports us to explore the difference between
Sunnis and Shias.
102. The principle sect of Muslims in India are undoubtedly Sunnis.
This is by way of population. The differences between Sunni and Shia G
have a historical background.Though it may be true that it may have
originated on the basis of the ‘infallibility’ which is attributed to the twelvers

10
(1890) 44 Ch D 262 (CA)
11
(1880) 5 AC 214 H
536 SUPREME COURT REPORTS [2022] 12 S.C.R.

A or the 12 Imams who were found to be blessed with infallibility, over a
period of time, there have been differences which have developed which
go to certain aspects of the practices of the faith as well. Closer home,
in the institution of Wakf itself, for instance, in the case of Muslims
governed by the Hanafi School of Thought which it must be noticed is
part of the Sunni faith, delivery of possession may not be an indispensable
B
element for the creation of a valid wakf. In the case of a Shia Wakf, the
position may not be the same. At the same time, we must not also lose
sight of the fact that both Sunni and Shia profess Islam as their faith. As
regards the core belief of the oneness of God or Almighty and Prophet
Mohammad being the last Messenger and the other fundamental tenets
C of the faith, there is little difference between aSunni and a Shia. The
Shia themselves have three branches, namely, Twelvers, Ismailis and
Zaidis. With this brief background of the differences between sects of
Islam, namely, Sunni and Shia, we must carry our discussion forward. In
this case, the legislature itself has taken notice of the existence of two
different sects of Islam, in Section 13 (2). It has proceeded to provide
D
for two separate Boards if a percentage of Wakfs of Shias as a ratio to
the total number of wakfs exists. However, we are unable to perceive
Section 13 (2) as creating an inviolable duty with the Government to
create Boards upon the magical figure of 15% mentioned in Section
13(2) being breached. It may be that, in a given case, it may be 16%. In
E another case it may be 30% or 40%. A wide range of possibilities
representing both ends of the spectrum and all that lies in-between can
be imagined. We are unable to perceive any reason at all to burden the
Government with the obligation to provide for separate Boards with all
the expenditure and other burdens that it entails, upon Shia Wakfs or
their income either exceeding the percentage indicated in Section 13(2).
F
103. There are other reasons as well, why we should not give a
word importing a discretion, the force of a mandatory duty. In Section
13(1), the lawgiver has used the word ‘shall’. Not unnaturally, in its
setting it bears a mandatory connotation. There must be a Board.When
it comes to Section 13(2), the immediate neighbour, the choice of word
G ‘may’ cannot be ordinarily set at naught. Section 4 of the Act may now
be considered. Section 4 deals with the power to order a survey. The
survey is to be a survey in the State. The Surveyor is to submit a report.
The report is to be submitted to the Government. The Government
receives the report under Section 4(3). Section 4 (3) does not speak of
H any other duty on the part of the Government on receipt of the report
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 537
YUSUF BHAI CHAWLA & ORS.

except to forward it to the Wakf Board. This takes place under Section A
5 of the Act. The question which naturally arises, if a survey is to precede,
the incorporation of Board then how can the Board be consulted? How
can the Board then publish it, if it is not in existence before the survey?
The High Court has proceeded to deal with it by stating that upon receipt
of the survey report, it is not necessary to immediately send it over to the
B
Board. The learned counsel for the respondents would also emphasise
before us that the view which would occasion a harmonious operation
of all the provisions of the Act and fulfilling its object would be to adopt
the following course. Upon receipt of the report by the Government
under Section 4(3), the Government can constitute the Board under Section
13. When it does this, it does justice to not only the demand of Section C
13(2), but also it would comply with the mandate of Section 14(6).The
argument is indeed attractive. However, we have found that the foundation
of the reasoning of the High Court appears to be that Section 13(2)
provides for an inexorable duty to form two separate Boards upon the
percentage mentioned in Section 13 (2) being exceeded. We have already
D
found that we are unable to cull out any such mandatory duty to form
two separate Boards. This overturns the fundamental basis on which
the High court has proceeded. We may notice also in this regard that
Section 13(2) of the Act inter alia reads as follows:
“13(2) Notwithstanding anything contained in sub-section (1), if
E
the Shia [auqaf] in any State constitute in number more than fifteen
per cent. of all the [auqaf] in the State or if the income of the
properties of the Shia [auqaf] in the State constitutes more than
fifteen per cent. of the total income of properties of all the 1
[auqaf] in the State, the State Government may, by notification in
the Official Gazette, establish a Board of [Auqaf] each for Sunni F
[auqaf] and for Shia [auqaf] under such names as may be specified
in the notification”
104. Section 32(2)(e) reads as follows:
“32(2) Without prejudice to the generality of the foregoing power,
G
the functions of the Board shall be—
(e) to direct—
(i) the utilisation of the surplus income of a wakf consistent with
the objects of a wakf;
H
538 SUPREME COURT REPORTS [2022] 12 S.C.R.

A (ii) in what manner the income of a wakf, the objects of which
are not evident from any written instrument, shall be utilized;
(iii) in any case where any object of wakf has ceased to exist or
has become incapable of achievement, that so much of the income
of the wakf as was previously applied to that object shall be applied
B to any other object, which shall be similar, or nearly similar or to
the original object or for the benefit of the poor or for the purpose
of promotion of knowledge and learning in the Muslim community:
Provided that no direction shall be given under this clause without
giving the parties affected an opportunity of being heard.
Explanation—For the purposes of this clause, the powers of the
C Board shall be exercised—
(i) in the case of a Sunni wakf, by the Sunni members of the
Board only; and
(ii) in the case of a Shia wakf, by the Shia members of the Board
D only: Provided that where having regard to the number of the
Sunni or Shia members in the Board and other circumstances, it
appears to the Board that the power should not be exercised by
such members only, it may co-opt such other Muslims being Sunnis
or Shias, as the case may be, as it thinks fit, to be temporary
members of the Board for exercising its powers under this clause;”
E
This again indicates that the legislature has put in place a definite
scheme and contemplated co-opting temporary Members of the two
sects, where it was felt necessary.Equally, noteworthy is the fact that
Section 14(5) which was omitted only under Act 27 of 2013 and was
therefore relevant at the time when the High Court passed the impugned
F judgment provided for the appointment of one Shia member in the case
of the Composite Board. Under Section 14(6) is concerned, it may be
true that at the time of constitution of the Board, the number of Wakfs
and the ‘value’ of the Wakfs is to be considered. What Section 14 says
is with regard to establishment of Boards, the Government shall have
G regard to the number and value of the Shia and Sunni Wakfs to be
administered by the Board. We notice Gopal Sankaranarayanan’s
argument about the distinction between the word ‘value’ as used in Section
14(6) and ‘income’ employed in Section 13(2), as also Section 3(4).
105. From the inputs available from the Act, we would think that
the said provision should not in our view compel us to form the view that
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 539
YUSUF BHAI CHAWLA & ORS.

a survey under Section 4 must in all the cases be done first, and thereafter A
alone the Board should be incorporated.
106. We cannot be unmindful of the fact that the existence of the
Board is vital to achieve the objects of the Act. We have noticed that
Section 32 contemplates various powers and functions with the Board.
Section 36 gives a right or casts a duty as it were on Wakfs to get B
themselves registered with the Board. Section 40 provides for another
important function of the Board. It must be in this regard not be ignored
that there was severe criticism about the treatment that was being meted
out to the Wakfs. Mutawallis were principally at the receiving end of the
criticism in the form of allegations of indiscriminate alienations and
encroachment on wakf property being ignored. C

107. In the same breath we are duty bound to express our concern
and ventilate our pain at noticing that amendment took place in the year
2013 after a good 18 years of the passing of the 1995 Act under which
it was provided that where Wakf Boards are not appointed, it had to be
appointed within a period of one year from the coming into force of the D
Amending Act 27 of 2013. This no doubt alerts us to the fact that the
Act did not provide for any time limit with the Government to incorporate
the Board. To this extent we acknowledge that the Act did not expressly
provide for a sense of compelled urgency with the Government in
incorporating the Board. But that in our view cannot detract from the E
actual existence of such a need for incorporating the Board at the earliest.
We are also not unmindful of the fact that the Survey Commissioner
appointed in 1997 and was in the process of submitting the survey report
[in fact nearly three weeks after the incorporation of the Board on
04.01.2002, the report is submitted on 31/01/2002]. But once we find
that thescheme of the Act contemplates the lawful incorporation of the F
Board even without receipt of the Survey report, we cannot possibly
uphold the view taken by the High Court that the incorporation of the
Wakf Board on 04.01.2002 was illegal as there was no previous survey.
108. We may notice the role of the Board at the stage of section
5(2). The Board ‘examines’ the report which is sent by the Government. G
We may notice and find that there is no requirement in law contrary to
the contentions raised by the writ petitioners that the report furnished by
the survey commissioner to the Government under Section 4(3) must be
published. However, the Wakf Board is duty bound to ‘examine’ the
contents of the report sent to it and it can indeed make changes which H
540 SUPREME COURT REPORTS [2022] 12 S.C.R.

A may be necessary and once the Wakf Board resolves to bring out the
list, the list is to be published. This is made subject to any modification
which may be made by the Tribunal under Section 6 of the Act. This in
our view is essential to understand the purport of Section 13(2) of the
Act as well. That is to say that when the legislature has contemplated
the creation of separate Wakf Boards for Sunnis and Shias on the basis
B
of the number of Wakfs, Shia Wakfs being in excess of 15 per cent of
the total number of wakfs or the income from Shia Wakfs being in excess
of 15 per cent of the total income of the Wakfs, it is the list which has
been considered and published by the Wakf Board under Section 5(2)
which can be material. This reinforces us in our belief that it is not
C necessary that a survey must precede the incorporation of the Board. In
fact, the Wakf Act, 1954, was in operation in many of the States. It is not
difficult to imagine that surveys would have been conducted under the
previous enactment. So, it is not as if there may be absence of any
material in regard to matters contemplated under Section 13(2). Not
that it should form the premise of our finding, but for reassurance, we
D
also find in the facts of this case that the survey commissioner has
reported that there were 20194 Wakfs in the State. The total number of
Shia Wakfs were surveyed and found to be 203.This constitutes 1.005
per cent of the total number of Wakfs. This is a figure which does not
even in any way approximate to the figure of 15 per cent contemplated
E in Section 13(2). Another plank of the reasoning of the High Court in
interfering with the incorporation of the Board was that under the Act,
the Board assumes a corporate form and it is imbued with perpetual
succession. The High Court reasons that once a Board is created, there
is no provision for putting an end to it and giving birth to a Sunni Board
and a Shia Board. We may notice in this context that it is not difficult to
F
imagine that in a given case a State may have a composite Board to
begin with. A second or subsequent surveyare contemplated and permitted
under Section 4(6).Take a situation where initially the number of Shia
Wakfs or the income therefrom did not justify the creation of separate
boards and there is a composite Board. Can it be the law that if a second
G or subsequent survey, which is permitted under the law, results in the
percentage of Shia Wakfs or income therefrom demands consideration
of the question as to whether there should be two separate boards, it is
rendered impossible by perpetual succession and corporate form the
composite Boardassumed under the original incorporation? We are clearly
of the view that the existence of the original Board constituted under
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 541
YUSUF BHAI CHAWLA & ORS.

Section 13(1) cannot stand in the way of the constitution of two separate A
boards.Therefore, we do not think that there can be any legal hurdle in
the creation of two separate boards which may be necessitated on the
basis of the decision taken by the Government in the matter.
109. The next question which we must consider relates to the
constituent elements of a Wakf. From the definition which is available in B
the Act, the first indispensable requirement is that there must be dedication.
Dedication must be by a person who is the owner of the property.
Dedication must be permanent.Permanent means that it cannot be for a
period of time; it must be perpetual. It must be irrevocable. While on
irrevocability, we may only indicate that a Wakf can be created by a will C
also. But when a Wakf is created by a will it is open to the Wakif to
revoke the will prior to his death. As to the effect of his death, the will,
will bring into existence a Wakf but limited to 1/3 share unless the heirs
otherwise agree. Save as aforesaid, a Wakf cannot be revoked. A Wakf,
again meaning the property which is the subject matter of a Wakf cannot
be alienated. This is subject to what we will state when we discuss the D
differences between a Wakf and a Trust. The object of the Wakf must
be such that it is approved by the Muslim law. The object must be
religious, pious or charitable and we hasten to again reiterate that it is
not a concept of piety religiousness or the charitable nature in the eyes
of the entire world but what is in consonance with Muslim law. There is E
no prescribed mode of dedication. A Wakf need not be in writing. As far
as declaration is concerned, it can be inferred from conduct. A Wakf, as
defined includes Wakf by user. This usually arises in public places like
kabristan, Durgah, Takia. Takia means a resting place. It may not be
any resting place but usually, it is associated with a graveyard.
F
It may be an Imambara. About Inambara we find the following
discussion in Mulla Principles of Mahomedan Law (22nd Edition):
“223. Imambara An imambara is an apartment in a private house
or a building set apart like a private chapel for religious purposes.
It is intended for the use of the owner and members of his family, G
though the public may be admitted with the permission of the
owner. It may be the object of a valid waqf-178. Such a waqf is a
private waqf and not a public waqf nor a trust for the purposes of
s.92 of the Code of Civil Procedure, but it may be proved that a
particular imambara is a public waqf.”
H
542 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 110. In such a case, that is Wakf by user, it would be a case of
immemorial user. That is precisely the reason why the need to prove the
dedication may be dispensed with, as the proof of it, may have been lost
with the passage of time.
111. A Wakf can be created for attaining a public utility. The public
B utility must, however, be for an object sanctioned by Muslim law. Subject
to said conditions, irrespective of whether the beneficiaries are Muslims
or not, there could be a valid Wakf. This is the result of the amendment
brought to Section 3(a) of the Wakf Act, 1954 by the Amendment Act of
1964 which we have already noticed. The very same definition of Section
3(a) after the amendment in 1964 has been replicated in the Act as
C well.However, this would not dispense with the indispensable requirements
to create a Wakf.
They include the requirement of permanent dedication. Even in
such Wakf, there must be a divesting of title of Wakf and vesting of title
in the Almighty. Shri Gopal Sankarnarayanan, learned senior counsel,
D laid stress on this development viz., the amendment to the definition of
the word ‘beneficiary’ in section 3(a) of Wakf Act, 1954 and on
continuance of the same definition in the 1995 Act, to point out that this
has the result in law of removing the very foundation of the judgment
relied upon by the writ petitioners viz., the decision of this Court reported
E in Nawab Zain Yar Jung (Since Deceased) and Others v. Director of
Endowments and Another(supra). In other words, even in the case of
a public charitable trust created by a Muslim, the intention of the Muslim
being to provide for activities for the general welfare and which are,
therefore, secular and it emphasises the creation of the institution for
human beings irrespective of religion, then the difference between a
F public Trust and a Wakf would cease to exist.
112. The time therefore is ripe now to examine the judgment of
this Court in Nawab Zain Yar Jung (Since Deceased) and Others v.
Director of Endowments and Another(supra). In the said case, a Bench
of five learned Judges had the following facts inter alia before them.
G Four appellants before the Court were trustees appointed by the Nizam
of Hyderabad under a trust deed executed in 1954.They were initially
confronted with proceedings under the Hyderabad Endowment
Regulation 1348-F (1939). While litigation regarding the said provision
was pending in this Court, developments took place in the form of
H proceedings to get them registered under the Wakf Act, 1954 by the
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 543
YUSUF BHAI CHAWLA & ORS.

Wakf Board. The contention raised by the appellants therein was, it was A
not a Wakf which the Court had before it but a Trust and what is more,
a public charitable Trust. The Court made, we may notice, the following
observations:
“12. Similarly, the Muslim law relating to trusts differs
fundamentally from the English law. According to Mr Ameer Ali, B
“the Mohammadan law owes its origin to a rule laid down by the
Prophet of Islam; and means ‘the tying up of property in the
ownership of God the Almighty and the devotion of the profits for
the benefit of human beings.’ As a result of the creation of a
wakf, the right of wakif is extinguished and the ownership is C
transferred to the Almighty. The manager of the wakf is the
mutawalli, the governor, superintendent, or curator. But in that
capacity, he has no right in the property belonging to the wakf; the
property is not vested in him and he is not a trustee in the legal
sense”. Therefore, there is no doubt that the wakf to which the
Act applies is, in essential features, different from the trust as is D
known to English law.”
113. Thereafter, the Court proceeded to analyse the Trust
deed.The Court dwells on the effect of the trust deed in paragraph-16,
17 and 18:
E
“16. It is also urged that the effect of clauses relating to the vesting
of the property in the appellants as trustees should be judged in
the light of the character of the property with which the document
deals. The subject-matter of the trust is moveable property and
unless the said property was assigned to the appellants, they would
not have been able to deal with it, and that alone is the basis and F
the justification for the vesting provisions in the document.
Therefore, too much importance should not be attached to the
said provisions and it should not be held that since there is a vesting
of legal title in the appellants, the transaction is a trust and not a
wakf. The pervading idea of the document is the dedication of the G
property to purposes recognised by Muslim law as valid for a
wakf and it is only as a means to give effect to that idea that the
property has been vested in the appellants. That in brief, is the
main argument in support of the plea that the trust is a wakf to
which the provisions of the Act apply.”
H
544 SUPREME COURT REPORTS [2022] 12 S.C.R.

A “17. On the other hand, there are certain other broad features of
the transaction which are wholly inconsistent with the notions of
a wakf. The outstanding impression which the document creates
is that the settlor wanted to create a trust for charitable purposes
and objects in a secular and comprehensive sense, unfettered and
unrestricted by the religious considerations which govern the
B
creation of wakf. Even the clause on which Mr Pathak relies for
the purpose of showing the intention to dedicate the property to
Almighty makes it perfectly clear that amongst the objects for
which the trust was created were included other charitable
purposes without distinction of religion, caste or creed, and that
C obviously transgresses the limits prescribed by the requirements
of a valid wakf. The same comprehensive character of the
charitable purpose which the settlor has in mind is equally
emphatically brought out by clause 3(c)(ii). Clause 3 provides
that the Trustees shall hold and stand possessed of the Trust Fund
upon the Trusts specified in sub-clauses (a) to (c). Sub-clause
D
(c)(ii) refers to the maintenance, upkeep and support of public
religious institutions, and otherwise for the advancement of religion,
particularly in the State of Hyderabad; and it adds that the benefit
of the present clause shall not be restricted to any particular
religion. A public charitable purpose which is not limited by
E considerations pertaining to one religion or another could not have
been more eloquently expressed. The dominant intention of the
settlor in creating the trust was to help public charity in the best
sense of the words, “public charity” not confined to any caste,
religion or creed; and it is in that sense that, the religious institutions
which are within the purview of the trust are all religious institutions
F
not confined to any particular religion. Then look at clause 3(c)(v).
It provides that the trust property can be utilised for the
advancement of any other object of general public utility,
particularly in the State of Hyderabad. It is true that the settlor
wanted the objects of general public utility in Hyderabad to be
G preferred and in that sense the document discloses a desire to
prefer the objects of general public utility situated within the
territorial limits of Hyderabad. But it is plain that it was farthest
from the mind of the settlor to impose a limitation that the objects
of general public utility should be confined to those recognised as
such by Muslim law. It is thus clear that the outstanding feature
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 545
YUSUF BHAI CHAWLA & ORS.

of the trust disclosed by these provisions is plainly inconsistent A
with the concept of a wakf and that itself would rule out the view
that the document creates a wakf and not a comprehensive public
charitable trust.”
“18. It is true that a large number of provisions contained in the
document are consistent with the view that the document creates B
a wakf as much as they are consistent with the view that it creates
a public charitable trust as distinguished from wakf. It is, however,
patent that there are some clause which are inconsistent with the
first view, whereas with the latter view all the clauses are
consistent. In other words, if the construction for which the Board
contends is accepted, some clauses would be defeated, whereas C
if the construction for which the respondents contend is upheld,
all the clauses in the document become effective. In our opinion,
it is an elementary rule of construction that if two constructions
are reasonably possible, the one which gives effect to all the clauses
of the document must be preferred to that which defeats some of D
the clauses. It is not in dispute that if the document is held to be a
wakf, the directions in the document that charitable purposes should
be selected without distinction of religion, caste or creed, would
obviously be defeated and that undoubtedly supports the conclusion
that the document evidences a public charitable trust and not a
wakf.” E

114. Finally, we must, however, not overlook what this Court found
in the following paragraph:
“20. It is in this context that the other provisions about vesting
must be considered. The document calls the author of the trust as F
the “Settlor” and the appellants as the “Trustees “and that
introduces the concept of the Trust as contemplated by English
law. Clause 1 of the document specifically assigns and transfers
unto the appellants all those shares and securities described in the
Schedule which are the subject-matter of the trust. This clause, in
terms, transfers the shares and securities to the Trustees and so, G
the legal title in respect of the subject-matter of the trust vests in
the Trustees. The argument that the provision for vesting had to
be made because the property in question is moveable property,
does not carry conviction because the whole scheme of the
document appears to be to vest the title in the trustees and gives H
546 SUPREME COURT REPORTS [2022] 12 S.C.R.

A them absolute discretion to use the said property and its income
for any of the charitable purposes specified in the document. Thus,
the vesting provision has not been adopted as a means to carry
out the intention to dedicate the property to the Almighty but it
constitutes the essential basis of the transaction and that is to
transfer the legal title of the trust property to the trustees. In that
B
sense, clause 14 which confers on the trustees absolute discretion
to deal with the property in any manner they like, as well as clauses
18 and 24 which clothe them with authority to employ servants in
their uncontrolled discretion and to appoint a Committee for
management of the Trust, become more easily intelligible. In this
C connection, we may also notice the fact that the appointment of
non-Muslims as trustees which is prohibited by the Act, is an
indication that the Settlor did not regard the trust as falling within
the said statutory prohibition; likewise, the scheme of management
of the trust which the trustees are given liberty to adopt in
administering the trust, is completely free from the regulations
D
based on Muslim law which the relevant sections of the Act have
prescribed. These several features of the trust support the
conclusion that the trust is not a wakf and does not fall within the
provisions of the Act. We have carefully considered all the relevant
provisions of the document and we are satisfied that on a fair and
E reasonable construction, the document must be held to have created
a trust for public charitable purposes, some of which are outside
the limits of the wakf and so, the conclusion is inescapable that
the trust created is not a wakf but a secular comprehensive public
charitable trust. In that view of the matter, Section 3(1) of the Act
cannot apply to the trust and its registration under Section 28 is
F
invalid and inoperative.”
115. Therefore, this was a case where there was a document
which was styled as a trust deed.The trust purported to provide for
relief to the poor particularly in the State of Hyderabad. It contemplated
maintenance and support to religious institutions otherwise for
G advancement of religion particularly in the State of Hyderabad. Most
importantly, it was made clear that towards the said intent that the benefit
of the clause was not to be restricted to any particular religion. The
other clauses also sought to provide relief on a secular basis. It was
intended to cater to the inhabitants of Hyderabad in particular without
H any regard to religion. We are aware of the fact that at the time when
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 547
YUSUF BHAI CHAWLA & ORS.

the Court considered the case the prevailing definition of beneficiary A
was what was contained in Section 3(a) in its unamended form. In other
words, what this Court considered was the definition of beneficiary in
Section 3(a) which ended up with the injunction that the beneficiary
must be a member of the Muslim community. It is after this judgment
that in the year 1964 as we have noticed by the Amendment Act that the
B
words established‘for the benefit of the Muslim community’ were
substituted with the words ‘for purposes sanctioned by the Muslim law’.
116. This judgment has also been followed by this Court in the
decision reported in Mohd. Khasimv. Mohd. Dastagir and
Others(supra). Therein, this Court held:
C
“31. The aforesaid directions run contrary to the concept of wakf
and the more appropriate view appears to be that the executant
intended to create a simple English trust. Although, in order to
create a valid wakf it is not necessary to use the term “wakf” in
the document in question, except for providing for the performance
of certain religious ceremonies, pious and charitable duties, there D
is no mention that the dedicator had ever intended that the
properties forming the subject-matter of the trust should constitute
a wakf. The executant appears to have deliberately used the
expression “trustee” and not “Mutwalli” which would have ended
the controversy that has now arisen.” E
“32. The law is quite clear that there is no bar to a Mohammedan
creating a simple English trust. It is not always necessary that in
order to make a settlement of his properties, a Mohammedan has
always to create a wakf. In fact, the said view has been expressed
in a Division Bench decision of the Madras High Court in F
Kassimiah Charities Rajagiri v. Secy., Madras State Wakf
Board [AIR 1964 Mad 18] . In the said case, while confronted
with a similar question, the Division Bench observed that a Muslim
can endow properties to charities either by adopting his favourite
mode of creating a wakf or by endowing property conforming to
the law of trusts. The question whether a particular endowment G
amounts to a wakf under the Mohammedan law or to a trust as
recognised by modern jurisprudence, will have to be decided
primarily on a true construction of the document establishing the
charity. However, it has also been stated in the said decision that
vesting of a power of alienation by way of exchange or sale under H
548 SUPREME COURT REPORTS [2022] 12 S.C.R.

A the document creating wakf is not inconsistent with the document
constituting a wakf under the Muslim law. A dedication to a wakf
will not, therefore, cease to be such merely because a power is
reserved in the Mutwalli to exchange the wakf lands with other
lands or to sell them and purchase other lands so that the lands so
taken in exchange or by purchase, might become the subject of
B
the wakf.”
117. In the later judgment, the Court has purported to place reliance
on the judgment of the High Court of Madras reported in The Kassimiah
Charities, Rajagiri represented by its hereditary trustee Sri. R.E.M.S.
Abdul Hamid v. The Madras State Wakf Board, represented by its
C Secretary AIR 1964 Madras 18.
Therefore, it is true as contended by Dr.Singhvi, learned senior
counsel, and also Shri Harish Salve, learned senior counsel that this Court
has maintained a distinction between a public Trust and a Wakf. The
view taken by this Court has been that while it is open to a Muslim to
D create a Wakf and ordinarily, there would be the prospect of a Reward
for dedicating property by way of Wakf, it would be entirely left to a
Muslim to take a decision as to whether he should adopt the device
provided by an EnglishTrust or make the familiar dedication by way of
Wakf. It may be also true that there is merit in the contention of the writ
E petitioners, that Article 25 provides a choice as to the manner in which a
person may exercise his rights viz., as to whether he should resort to
creating a Wakf or a Trust.
118. What we are called upon to decide is whether this position of
law has in any manner been altered by the amendment to Section 3(a)
of the Act.
F
Here we may also refer to what is a public Trust and the conditions
which have been projected in the submissions of Dr. Singhvi in particular
qua a Wakf. The Indian Trusts Act, 1882 deals with private Trusts.
Section 1 of the 1882 Act reads as follows:
G “1. Short title. —This Act may be called the Indian Trusts Act,
1882:
Commencement. —and it shall come into force on the first day of
March, 1882.
Local extent. — It extends to the whole of India except the State
H of Jammu and Kashmir] and the Andaman and Nicobar Islands;
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 549
YUSUF BHAI CHAWLA & ORS.

but the Central Government may, from time to time, by notification A
in the Official Gazette, extend it to the, Andaman and Nicobar
Islands or to any part thereof.
Savings. —But nothing herein contained affects the rules of
Muhammadan law as to waqf, or the mutual relations of the
members of an undivided family as determined by any customary B
or personal law, or applies to public or private religious or charitable
endowments, or to trusts to distribute prizes taken in war among
the captors; and nothing in the second Chapter of this Act applies
to trusts created before the said day.”
119. It is, therefore, clear that nothing in the Trust Act would C
apply to the Wakf. Nor would the provisions of the Trust Act as such
apply to public or private religious or charitable Trusts.
120. We may at this stage explore the law as it obtains in England
in relation to public charities. The leading work on charities is Tudor on
Charities (8th Edition). We deem it appropriate only to refer to certain
D
aspects. The prevailing law as we understand in England is the Charities
Act, 1993. We may refer to the connotation of the expression ‘charity’
and how it has been understood by the learned author at page 1:
“For the purposes of the Charities Act 1993, “charity” means
“any institution, corporate or not, which is established for charitable
E
purposes and is subject to the control of the High Court in the
exercise of the court’s jurisdiction with respect to charities”;
“institution” includes any trust or undertaking, and “charitable
purposes” means “purposes which are exclusively charitable
according to the law of England and Wales.”
The essential elements for charitable status have been discussed F
under the same heading at page 2:
“Although there is no one definition of charity, it is generally
accepted that before any institution can be accepted as charitable
three conditions must be satisfied. First, the purposes of the
institution must be within the spirit and intendment of the preamble G
to the Charitable Uses Act 1601. Secondly, the institution must
exist for the benefit of the public and, thirdly, it must be exclusively
charitable.”
It may be noticed that the development of law relating to charity
is traced to the Charitable Uses Act 1601 which is called the Statute of H
550 SUPREME COURT REPORTS [2022] 12 S.C.R.

A Elizabeth I. Therein, as we have noticed the law, the preamble of the
Act of 1601 assumes significance. We think it is appropriate to refer to
the samementioned at pages 2 and 3.
“The jurisdiction of the Court of Chancery and of its successor,
the High Court of Justice, in respect of charities and charitable
B trusts is a separate head of equity, and charity law is founded less
upon statute than upon the principles evolved by those courts and
embodied in case law. It has, however, long been the practice of
the courts to look for guidance as to what purposes are charitable
to the preamble to the Charitable Uses Act 1601 (commonly
referred to as “the Statute of Elizabeth I”), which lists as charitable:
C
“The relief of aged, impotent, and poor people; the maintenance
of sick and maimed soldiers and mariners, schools of learning,
free schools and scholars of universities; the repair of bridges,
havens, causeways, churches, sea banks and highways; the
education and preferment of orphans; the relief, stock or
D maintenance of houses of correction; marriages of poor maids;
supportation, aid and help of young tradesmen, handicraftsmen
and persons decayed; the relief or redemption of prisoners or
captives and the aid or ease of any poor inhabitants concerning
payments of fifteens, setting out of soldiers, and other taxes.”
E It is stated therein that a trust “called to be charitable must have
objects which are exclusively charitable.”
It is stated, “In four cases, the existence of a non-charitable purpose
will not be fatal to charitable status for the relevant body”. We need not
be detained by the four cases as such.
F
121. We may also notice the oft-quoted enunciation of the four
heads by Lord Macnaghten in the case of Income Tax Special Purposes
Commissioners v. Pemsel(1891) A.C. 531, 583. The four heads have
been classified as follows:
(1) The relief of poverty;
G
(2) the advancement of education;
(3) The advancement of religion;
(4) Other purposes beneficial to the community not falling under
any of the preceding heads.
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 551
YUSUF BHAI CHAWLA & ORS.

122. We may also notice as regards the fourth head, the following A
discussion:
“On the other hand, Lord Macnaghten said that trusts falling under
the fourth head “are not the less charitable in the eye of the law,
because incidentally they benefit the rich as well as the poor, as
indeed every charity that deserves the name must do either directly B
or indirectly. …”
123. As regards the requirement of perpetuity in regard to a
charitable trust, since we found a contention raised in the submissions of
Dr. Singhvi that a charitable trust need not be perpetual, we find the
following discussion under the head Duration: C
“A Charitable trust may be made to endure for any period which
the author of the trust may desire. It may therefore be created for
the application of the income in perpetuity to the charitable purpose,
or it may be so framed as to require the immediate distribution of
the capital, or the exhaustion of capital and income, during a limited
D
or indefinite period. This exception to the rule that a trust for the
application of income for an indefinite period is void as tending to
a perpetuity is well established. It is founded upon grounds of
public policy, and is essential to the useful existence of charitable
trusts.
But to qualify for the benefit of the exemption from the rule E
against perpetuities, a trust must be charitable within the legal
meaning of that word. Thus, a perpetual trust for the repair of a
tomb, not forming part of the fabric of a church, or for any other
object or any institution or society not of a charitable character, is
void. Similarly, a gift in perpetuity of the income of a legacy, for F
the benefit of individuals answering a certain description, without
any reference to age or poverty, is likewise void. There is no
escape from the dilemma that a perpetual trust must be either
charitable, or void as tending to a perpetuity.
The rule against perpetual duration cannot be evaded by
G
making a charity the trustee. Thus, a condition attached to a
charitable gift, constituting a trust in favour of objects not charitable,
as, for instance, that the donor’s tomb should be repaired forever
out of the trust funds, or that the charity should grant a lease to
private individuals ninety-five years hence, or a lease for ever to
the testator’s relatives, is void.” H
552 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 124. In regard to powers and duties of Charity Trustees, it is stated
as follows:
“The powers and duties of charity trustees, as defined in section
97 of the Charities Act 1993 as those persons having the general
control and management of the administration of a charity, are
B governed by the legal structure adopted by the charity, the terms
of the individual governing instrument and the relevant statutory
provisions. …”
125. The concept of a public charity as understood in England is
to be contrasted with the concept of a Trust in the background of a
C public religious trust as understood in India. We turn to oft-quoted decision
of the Privy Council reported in Vidya Varuthi Thirtha Swamigalv.
Baluswami Ayyar and others12:
“It is also to be remembered that a “trust” in the sense in which
the expression is used in English law, is unknown in the Hindu
D System, pure and simple (J. G. Ghose, “Hindu Law,” p. 276).
Hindu piety found expression in gifts to idols and images
consecrated and installed in temples, to religious institutions of
every kind, and for all purposes considered meritorious in the Hindu
social and religious system; to brahmans, goswamis, sanyasis, etc.
When the gift was to a holy person, it carried with it in terms or by
E usage and custom certain obligations. Under the Hindu law the
image of a deity of the Hindu pantheon is, as has been aptly called,
a juristic entity,” vested with the capacity of receiving gifts and
holding property. Religious institutions, known under different
names, are regarded as possessing the same “juristic” capacity,
F and gifts are made to them eonomine. In many cases in Southern
India, especially where the diffusion of Aryan Brahmanism was
essential for bringing the Dravidian peoples under the religious
rule of the Hindu system, colleges and monasteries under the
names of math were founded under spiritual teachers of recognized
sanctity. These men had and have ample discretion in the
G application of the funds of the institution, but always subject to
cetrain obligations and duties, equally governed by custom and
usage. When the gift is directly to an idol or a temple, the seisin to
complete the gift is necessarily effected by human agency. Called

12
H AIR 1922 Privy Council 123
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 553
YUSUF BHAI CHAWLA & ORS.

by whatever name, he is only the manager and custodian of the A
idol or the institution. In almost every case he is given the right to
a part of the usufruct, the mode of enjoyment and the amount of
the usufruct depending again on usage and custom. In no case
was the property conveyed to or vested in him, nor is he a “trustee”
in the English sense of the term, although in view of the obligations
B
and duties resting on him, he is answerable as a trustee in the
general sense for mal-administration.
The conception of a trust apart from a gift was introduced
in India with the establishment of Moslem rule. And it is for this
reason that in many documents of later times in parts of the country
where Mahommedan influence has been pre-dominant, such as C
Upper India and the Carnatic, the expression wakf is used to
express dedication.
But the Mahommedan law relating to trusts differs
fundamentally from the English law. It owes its origin to a rule
laid down by the Prophet of Islam; and means “the tying up of D
property in the ownership of God the Almighty and the devotion
of the profits for the benefit of human beings.” When once it is
declared that a particular property is wakf, or any such expression
is used as implies wakf, or the tenor of the document shows, as in
the case of Jewan Doss Sahu v. Shah Kubeeruddin20 that a E
dedication to pious or charitable purposes is meant, the right of
the wakf is extinguished and the ownership is transferred to the
Almighty. The donor may name any meritorious object as the
recipient of the benefit. The manager of the wakf is the mutawalli,
the governor, superintendent, or curator. In Jewan Doss Sahu’s
Case21 the Judicial Committee call him “procurator.” That case F
related to a khankah, a Mahommedan institution analogous in many
respects to a math where Hindu religious instruction is dispensed.
The head of these khankhas, which exist in large numbers in India,
is called a sajjadanishin. He is the teacher of religious doctrines
and rules of life, and the manager of the institution and the G
administrator of its charities, and has in most cases a larger interest
in the usufruct than an ordinary mutawalli. But neither the
sajjadanishin nor the mutawalli has any right in the property
belonging to the wakf; the property is not vested in him and he is
not a “trustee” in the technical sense.”
H
554 SUPREME COURT REPORTS [2022] 12 S.C.R.

A “It was in view of this fundamental difference between the
juridical conceptions on which the English law relating to trusts is
based and those which form the foundations of the Hindu and the
Mahommedan systems that the Indian Legislature in enacting the
Indian Trusts Act (II. Of 1882) deliberately exempted from its
scope the rules of law applicable to wakf and Hindu religious
B
endowments. Sect. 1 of that Act, after declaring when it was to
come into force and the areas over which it should extend “in the
first instance,” lays down, “but nothing herein contained affects
the rules of Mahommedan law as to wakf, or the mutual relations
of the members of an undivided family as determined by any
C customary or personal law, or applies to public or private religious
or charitable endowments. . . . . “ Sect. 3 of the Act gives a
definition of the word “trust” in terms familiar to English lawyers.
It says:”A ‘trust’ is an obligation annexed to the ownership of
property, and arising out of a confidence reposed in and accepted
by the owner, or declared and accepted by him, for the benefit of
D
another, or of another and the owner; the person who reposes or
declares the confidence is called the ‘author of the trust’; the
person who accepts the confidence is called the ‘trustee’; the
person for whose benefit the confidence is accepted is called the
‘beneficiary’; the subject-matter of the trust is called ‘trust-
E property’ or ‘trust-money’; the ‘beneficial interest’ or ‘interest’
of the beneficiary is his right against the trustee as owner of the
trust-property; and the instrument, if any, by which the trust is
declared is called the ‘instrument of trust.’”
126. What is only to be noticed is that the concept of trust was not
F unknown to the Muslims. In fact, as we have noticed in the discussion
from Syed Ameer Ali on Muslim law, Wakf is described as a Trust.
Incidentally, however, this judgment led to the amendment of Section 10
of the Limitation Act, 1963. It is apposite that we notice the case and
judgment which was rendered therein which is reported in Wali
Mohammed (Dead) by LRs. v. Rahmat Bee (Smt.) and Others13.
G
The question which arose was whether the Mutawalli of a Wakf
would be a trustee. This Court after noticing the judgment of the Privy
Council in Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar and
others(supra), has discussed the impact it had in the following paragraphs:

H 13
(1999) 3 SCC 145
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 555
YUSUF BHAI CHAWLA & ORS.

“35. It will be seen that the main part of Section 10 states that no A
period of limitation applies for recovery of property from a trustee
in whom the property is vested for a specific purpose, unless such
a person is an assignee for valuable consideration. The Explanation
further states that it shall be deemed that a person managing the
property of a Hindu, Muslim or Buddhist religious or charitable
B
endowment is to be deemed to be a trustee in whom such property
has vested for a specific purpose. We shall explain these provisions
in some detail.
36. In Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar
[AIR 1922 PC 123 : ILR 44 Mad 831] the Privy Council held that
property comprised in a Hindu or Mohammedan religious or C
charitable endowment was not property vested in trust for a
specific purpose within the meaning of the said words in the
main section. The reason was that according to the customary
law, where property was dedicated to a Hindu idol or mutt or to a
Mohammedan wakf, the property vested in the idol or the institution D
or God, as the case may be, directly and that the shebait, mahant,
mutawalli or other person who was in charge of the institution
was simply a manager on behalf of the institution. As Section 10
did not apply unless these persons were trustees this judgment
made recovery of properties of the above trusts from donees,
from these managers, rather difficult. E

37. The legislature therefore intervened and amended Section 10
for the purpose of getting over the effect of the above judgment.
The Statement of Objects and Reasons to the Bill of 1929 makes
this clear. It says:
F
“The (Civil Justice) Committee’s recommendation refers, it is
understood, to the decisions of the Privy Council in Vidya
Varuthi v. Baluswami [AIR 1922 PC 123 : ILR 44 Mad 831]
and Abdur Rahim v. Narayan Das Aurora [(1922) 50 IA 84]
which lay down that a dharmakarta, mahant or manager of a
Hindu religious property or the mutawalli or sajjadanashin in G
whom the management of Mohammedan religious endowment
is vested, are not trustees within the meaning of the words as
used in Section 10 of the Limitation Act, for the reason that the
property does not vest in them. The result is that when a suit is
brought against a person, not being an assignee for valuable H
556 SUPREME COURT REPORTS [2022] 12 S.C.R.

A consideration, endowments of this nature are not protected.
The Committee’s recommendation is that Section 10 of the
Limitation Act should be amended so as to put Hindu and
Mohammedan religious endowments on the same footing as
other trust funds which definitely vest in a trustee.”
B 127. Thus, the Mutawalli is treated as a trustee. But would the
amendment made to Section 10 of the Limitation Act, 1963 make a
Mutawalli a trustee generally?
Our answer is an emphatic ‘No’. This is for the reason that the
change in Section 10 of the Limitation Act was effected to overcome
C the judgment of the Privy Council, when it held that a Mutawalli would
not be a trustee and when in view of the requirement in Section 10 that
the suit must be one against a person in whom the property has become
vested in trust for any specific purpose and as a Mutawalli would not be
a trustee in law per se, the legislature brought in the explanation. But
what is striking are two features. Firstly, the change is brought by way
D of an Explanation. More importantly, the explanation begins with words
“For the purpose of this section’ and proceeds to declare that “any
property comprised in a Hindu, Muslim or Buddhist religious or charitable
endowment shall be deemed to be properly vested in trust for a specific
purpose and the manager of the property shall be deemed to be the
E trustee thereof.” Therefore, apart from it being an Explanation, it also
on its very terms, limits the deeming fiction to the purpose sought to be
attained in Section 10 of the Limitation Act.
128. Dr. Singhvi, learned Senior Counsel, would list four
distinguishing features of a Trust in comparison with a Wakf:
F (i) A wakf is perpetual and irrevocable, whereas a trust need
not be perpetual and may also be revoked under certain
conditions.
(ii) A wakf property is inalienable whereas a trust is free to
alienate the trust property.
G
(iii) The founder of a wakf cannot reserve any benefit for
himself, but the founder of a public trust may himself by a
beneficiary.
(iv) The powers of a mutawalli (manager of the wakf property)
are very limited as compared to the powers of a trustee.
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 557
YUSUF BHAI CHAWLA & ORS.

He would contend that in the case of a Wakf, the dedication must A
be perpetual and irrevocable. We have already noticed that this proposition
is only to be accepted and save as we have noticed in the case of a
Wakf by a will which is revocable during the lifetime of the maker
dedication is to have effect immediately and it is not transient. The reason
is that the reward is believed to be given immediately as the dedication is
B
made. No doubt, in the case of a will, during his lifetime it is open to
revoke it but otherwise a Wakf must indeed be perpetual and irrevocable.A
trust need not be perpetual and can be revoked in certain conditions submits
Dr. Singhvi. We have noticed the passage from Tudor on Charities which
appears to suggest that the requirement of perpetuity in a Wakf may not
attach itself invariably to a public charity or a public charitable trust. C
It is a matter essentially to be decided on the terms of a document,
if there is any.
129. Next, it is contended that in the case of a Wakf, property is
inalienable whereas in the case of a Trust, a trustee is free to alienate
the trust property. Though the Trust Act is not applicable in the case of D
a public, religious or charitable Trust, it would appear to be the law that
the principles enshrined in the provisions can be drawn upon. Section 37
of the Indian Trusts Act, 1882, reads as follows:
“37. Power to sell in lots, and either by public auction or private
contract. —Where the trustee is empowered to sell any trust- E
property, he may sell the same subject to prior charges or not, and
either together or in lots, by public auction or private contract, and
either at one time or at several times, unless the instrument of
trust otherwise directs.”
130. A perusal of Section 37 would reveal the following: F
The trustee governed by the Indian Trusts Act, 1882, may effect
a sale. The condition, however, is that the power of sale must be
conferred by the trust deed. It all, therefore, boils down to the question
as to whether there is a power with the trustee under the document in
question. However, it is significant to note that Dr. Singhvi may not be G
correct if the contention is that the trustee has an absolute right of sale.
At least it is not so under the Bombay Public Trust Act 1950. Section 36
of the Bombay Public Trust Act declares that a sale by Trustee can be
made only after ‘previous’ sanction is obtained from the Charity
Commissioner.In the case of a Wakf, however, undoubtedly the principle
H
558 SUPREME COURT REPORTS [2022] 12 S.C.R.

A is well entrenched and it is integral to the very concept of a Wakf,
wherein, upon a dedication there is an implied transfer of the property to
the Almighty, which would in law render any alienation impermissible.
The property would remain inalienable. However, interestingly, we may
notice the following discussion in Mulla Principles of Mahomedan law:
B “207. Power of mutawalli to sell or mortgage. A mutawalli has no
power, without the permission of the Court, to mortgage, sell or
exchange waqf property or any part thereof, unless he is expressly
empowered by the deed of waqf to do so.”
131. However, learned author has also noted the change that has
C been brought about in section 51 of the Act and thereafter states as
follows:
“A mutawalli of a waqf although not a trustee in the true sense of
the term is still bound by the various obligations of a trustee. He
like a trustee or a person standing in a fiduciary capacity, cannot
D advance his own interests or the interests of his close relations by
virtue of the position held by him. The use of the funds of the
waqf for acquisition of a property by a mutawalli in the name of
his wife would amount to a breach of trust and the property so
acquired would be treated as waqf property.

E A mutawalli is not allowed to sell, mortgage or lease the
waqf property unless he obtains permission of court which has
the general powers controlling the actions of mutawalli. Save and
except as recognised by any custom, the law does not favour the
right to act as mutawalli becoming heritable. When the mutawalli
dies and the waqif is still alive, he possesses the right to appoint
F another and in his absence his curator and in the absence of both,
the Court appoints the successor mutawalli. Mutawalli has no
ownership rights or estate in the waqf property, he holds the
property as a manager for fulfilling the purpose of waqf. Even a
Sajjadanashin, who has larger interest in the usufruct has no right
G in the property endowed.These features distinguish a mutawalli
from a shebait. The elements which render shebait-ship a property,
are absent in mutawalli-ship and mutawalli-ship is an office.”
132. Therefore, whatever may have been the position prior to
1995, under the Act, a sale is absolutely prohibited. We draw support
from Section 104A of the Act which, inter alia, prohibits alienation.
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 559
YUSUF BHAI CHAWLA & ORS.

133. It is contended by Dr. Singhvithat the founder of a Wakf A
cannot reserve any benefit for himself but the founder of a public trust
may become a beneficiary.
Hereinagain, we may notice the following discussion in Mulla on
Principles of Mahomedan Law:
“192. Reservation of life interest for benefit of waqif (dedicator) B
(1) Under the Hanifi law, the waqif (dedicator) may provide for
his maintenance out of the income of the waqf property. He may,
if he wishes, reserve even the whole income for himself for his
life.
On the amount of maintenance becoming not sufficient to make C
both ends meet, the amount of maintenance can be increased on
a suit by a beneficiary against Mutawalli.
(2) Payment of waqifs debts. -Under the Hanafi law, the waqif
may provide for the payment of his debts out of the income of the
waqf property. D
This was well established before the Wakf Validating Act, 1913,
and it is now reproduced in s.3, Cl.(b) of the Act.
134. Under the Mahommedan law, a Wakif may provide for his
maintenance out of the income of the Wakf property. He may even
E
reserve the whole income for himself or his life. A different strand of
opinion has been expressed however as regards the Shia law.
We find the following discussion in Mulla on Principles of
Mahomedan Law at page 228:
According to the Hanafi law, the settlor may reserve the F
usufruct of the endowed property of himself for his life. According
to the Shia law a waqf is not valid unless the settlor divests himself
of the ownership of the property and of everything in the nature
of usufruct from the moment the waqf is created. Hence a settlor
cannot, according to the law, reserve for himself a life-interest in
the income or any portion thereof: Baillie, II, 218-219. It has been G
held by the High Court of Allahabad that if the settlor reserves
the whole income for himself, the waqf is wholly void; but if he
reserves a portion f the income i.e., one-third, the waqf is void as
to one-third only to the corpus, but valid as to the remaining two-
thirds. But in Abadi Begum v. Kaniz Zainab (AIR 1927 PC 2), the H
560 SUPREME COURT REPORTS [2022] 12 S.C.R.

A Privy Council expressed the opinion that in such a case, the waqf
would be entirely void. Their Lordships approved the four
conditions governing the validity of a waqf under Shia lawas set
out in Baillie’s Digest, II, 218-219. These are: “(1) it must be
perpetual; (2) absolute and unconditional; (3) possession must be
given to the mowkoof(beneficiary) of the thing appropriated; and
B
(4) it must be taken entirely out of the waqif or appropriator,” The
last condition has been expressed in direct and homely language
by saying that the waqif must not eat out of the waqf. The case
was one in which the settlor under the colour of fixing her salary
as mutawalli really reserved for herself a portion of the income
C very much in excess of the salary fixed for future mutawallis.
The case was not decided on this ground but the waqf was held
to be invalid as the settlor had not parted with possession so as to
comply with the third condition set out above.
But though a Shia cannot provide for his own maintenance
D out of the waqf property he may provide for the maintenance of
his family, children and dependants. This is recognised in s. (a) of
the Wakf Act. But a Shia may provide for the expenses of Roza,
Namaz, Haj, Ziarat, etc. to be performed after his death for his
spiritual benefit. He may also reserve a life interest for a beneficiary
in the usufruct of the property if the intention that the property
E should become waqf on the settlor’s death is clear. If the settlor is
the first mutawalli he may lawfully take the remuneration of the
mutawalli. The High Court of Allahabad has held that a provision
that the endowment shall not take effect till the death of the settlor’s
wife is valid, but this view of the law has been overruled by the
F Privy council in Mt. Ali Begum v. Badr-ul-Islam Ali Khan, in
which it was held that a direction that certain property should
become waqf after the death of a person surviving the testator
was invalid.
Again, according to the Shia law, a waqf is not valid, if it
G provides for the payment of personal debts of the settlor. But a
provision for payment of debts charged on the estate is valid; in
other words, a Shia may like a Sunni, make a valid waqf of property
which is subject to a mortgage.
In Syed Ali Zamin v. Syed Akbar Ali Khan (AIR 1937 PC
H 127), the Judicial Committee held that the settlor has divested
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 561
YUSUF BHAI CHAWLA & ORS.

himself of all interest in the property dedicated though he had A
appointed himself Mutawalli with uncontrolled powers of
management. Whether he has so divested himself, is a question
of construction of the waqfnama, and is not to be confounded
with the question whether there has been a transfer of possession
or change in the character of his own possession.”
B
135. Finally, we may take up the last distinction which is highlighted
by Dr. Singhvi that it relates to the powers of the Mutawalli being very
limited as compared to the powers of a Trustee. It is true that Mutawalli
is essentially a manager and administrator of the property which vests in
Almighty. A Trustee, on the other hand, is the person in whom the property
C
vests. In the case of a private Trust, no doubt, as in respect of public
Trust, it consists of an obligation annexed to the ownership of property
and arises from out of confidence reposed in a person or persons. They
are the trustees.In the case of a private Trust, there must be a written
documentwhich must be registered in terms of Section 5 of the Act.In a
public religious or public charitable Trust, there need not be any document D
as such to create a public charitable trust. The foundation, however,
remains the confidence which is reposed in the Trustee/Trustees and
the apparent ownership that he possesses by havinglegal ownership being
vested in him/them. The most significant aspect, however, would be that
in the case of a Mutawalli of a Wakf or Manager of a Wakf or other
E
person in charge of a Wakf, he can only be the manager of the property.
This distinction we must not overlook forms the subject matter of the
discussion in paragraph 20 of the judgment of this Court in Nawab Zain
Yar Jung (Since Deceased) and Othersv. Director of Endowments
and Another(supra) which we have referred to. We have noticed that
in the said case what was involved was a trust deed where property F
was vested with the trustee, no doubt, for the purposes mentioned therein.
It is this which must indeed be the indispensable hallmark to distinguish
a Trust from a Wakf. This distinction cannot be overlooked. A power of
sale, being located appears incompatible with a Wakf but the same is not
incongruous with a Trust. G
136. It is true as contended by Mr. Gopal Sankarnarayanan, learned
senior counsel, that with the amendment to Section 3(a) by giving a
secular flavour to the definition of the word Beneficiary meaning thereby
that the condition that the beneficiary must only belongto the Muslim
community being removed, it hasrestored the law which it always was,
H
562 SUPREME COURT REPORTS [2022] 12 S.C.R.

A viz., that in a case of a Wakf which was intended to achieve a public
utility, the beneficiaries need not be confined to the members of the
Muslim faith and it was indeed secular all throughout in its application
which is the reason for the amendment brought about in 1964. Though
the amendment was made in 1964, we would think that this was always
the law. We see the following discussion in Syed Ameer Ali on
B
Mohammedan Law at page 274:
“Another point worthy of attention in the Mussulman Law is that
every trust for whatever purpose created is really and in fact for
the benefit of human beings. The religious and legal system of
Islam is founded essentially on the service and well-being of
C
humanity. A dedication may be made for a mosque, - but the mosque
is intended for human beings to pray in; it may be for a school,
intended for the instruction of students; for khankahs, where a
particular class of people congregate for religious exercises, and
so forth. Every object, therefore, is intended for the spiritual,
D religious, moral, or material good of human beings. This is the
meaning of the terse and sententious rule pronounced by the
Prophet “tie up the property and leave its usufruct free for
mankind.” A wakf once made for whatever object, has the effect
of “detaining” the property in the custody of the Almighty, its
produce along being applicable for the good of human beings.
E
This is the meaning of the definition given by the law officers in
the case of Mohammed Sadik v. Mohammed Ali and Others, that
wakf implies “the relinquishment of the proprietary right in any
article of property such as land, tenements, &c., and consecrating
it in such manner to the service of God that it may be of benefit to
F men.” This definition was not invented by them but borrowed
form the law-books, and must be read with the explanations given
in them.
In the Islamic system there is no such ting as a dedication “solely
to the worship of God.” A dedication “solely to the worship of
G God” is an unmeaning phrase in Islam. The service of man and
the good of humanity constitute pre-eminently the service and
worship of God. Everything which is dedicated to God is in reality
for the good of mankind; and everything which is dedicated for
the good of human beings, individually or collectively, is for the
service of God.”
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 563
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137. Shri Gopal Sankarnaryanan, learned Senior Counsel, did A
attempt to persuade us to hold that with the amendment carried out to
Section 3(a) way back in 1964 to the word ‘beneficiary’, little remains to
distinguish a public Trust from a Wakf. At first blush, the argument may
sound attractive. The argument is that since there can be a Wakf and
the object of the wakf can be attainment of public utility and if the
B
beneficiaries of the trust can belong to any faith and only requirement is
that the object must be one which is sanctioned by Muslim law, then
every public charitable Trust would be capable of being categorized as a
Wakf. In other words, the argument appears to be premised on eschewing
of the exterior and exploration of the very fundamentals of the transaction.
The use of the word Trust by itself, it may be true cannot be decisive of C
the issue. The absence of the word Wakf is equally not determinative. It
is a matter which must be considered with reference to the document, if
any, the conduct of the parties and all other relevant aspects.
138. In this regard, he sought to draw our attention to the judgment
of the High Court of Madras reported in AIR 1973 Madras 191. It is D
true that in the said case, the Court has referred to the judgment in
Nawab Zain Yar Jung (Since Deceased) and Othersv. Director of
Endowments and Another(supra). It observes that this Court has
proceeded with the matter at a time when Section 3(a) had not been
amended. But we would think that even in the said case, the matter
E
really turned on the facts before the Court. However, to do justice to
Shri Gopal Sankaranarayanan, learned Senior Counsel, we may refer to
the following paragraphwherein after referring to the aforesaid decision,
the court held:
“But the Wakf Act of 1954 has been amended by Act 34 of 1964
F
under which the definition of ‘beneficiary’ and ‘wakf have been
amended by including wakf sanctioned by the Muslim law as
coming under the Wakf Act. In Syed Abdulla Sahib v. Madras
State Wakf Board(3) Kailasam J. has held that the coming into
force of Act 34 of 1964 amending the Wakf Act of 1954 will have
to be taken into account and that the donation of an immoveable G
pro party even though by a person not professing Islam, would be
a wakf, if the other conditions are fulfilled. Thus, the definitions
as amended have retrospective effect and apply to the wakf in
this case. In fact, the learned advocate for the appellant did not
dispute the fact that if the charitable bequest created in this case
H
564 SUPREME COURT REPORTS [2022] 12 S.C.R.

A is a wakf, it would come under the Wakf Act,though the
beneficiaries of the wakf may include non-Muslims.”
What is, however, decisive would be that it was on facts found
that the compromise decree therein did create a Wakf.

B 139. Learned counsel also sought to draw support from the
judgment of the learned Single Judge of the Gujarat High Court in
Kachchh Wakf Board &Anr. v. Kachchh Memon Jamat&Ors. 14 .
Therein, the Court has, no doubt, inter alia, referred to as follows:
“50. In view of my aforesaid conclusion the appeal must succeed.
C However, before parting with it, I may notice that learned Counsel
for the respondent-plaintiff argued that both the courts below have
come to concurrent finding that, property in question was being
used for providing shelter or abode to any visitor without distinction
of caste or creed and this finding alone is sufficient to negative
the contention of respondents about existence of a Muslim Wakf
D and consequently entitling the plaintiffs to claim relief for declaring
the publication of list dated 6-5-1965 to be illegal and void and that
the property in question is not a Muslim Wakf. This is so according
to learned Counsel because if beneficiary of an amenity includes
anybody other than Muslim, it can be anything but a Muslim Wakf.
E It may be a public charity or a public trust, but beneficiary if includes
non-Muslim it becomes of secular character which is not envisaged
object of a Muslim Wakf. Reference was made to decision of
Supreme Court in Nawab Zain Yar Jung v. Director of
EndowmentsAIR 1953 SC 985 as well as Board of Muslim Wakf
v. Radha Kishan(1979) 2 SCC 468 : AIR 1979 SC 289. This plea
F
was raised apart from contending that respondents have failed to
prove that property was dedicated by a Muslim and was so
dedicated to almighty as to vest the same in Him. I am prima
facie of the view that both the parties have laboured under
common impression that if the Muslims are only users of property
G it be treated as a Muslim Wakf and in the process necessary
material in this regard for deciding the issue about existence of
Wakf, if so, its nature and beneficiary who could claim right to its
benefit had also not been brought on record.

14
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MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 565
YUSUF BHAI CHAWLA & ORS.

62. The decisions in Nawab Zain Yar Jung (AIR 1963 SC 985) or A
other contemporary decisions containing observation that
beneficiary must be a member of Muslim Community has to be
read in the context of definition of beneficiary in Section 3(a) of
the Act of 1954 as it stood. Until it is amended by the Wakf,
(Amendment) Act, 1964 w.e.f. 10-10-1964:
B
It reads:
“beneficiary means a person or object for whose benefit a Wakf
is created and includes religious, pious and charitable object and
any other object of public utility ‘established for the benefit of
Muslim Community’.” C
65. In this light a Musafirkhana, if its dedication is for a religious
purpose like providing shelter to pilgrims or to those who are
performing religious ceretnionies sanctioned by Muslim Law, may
perhaps can have its beneficiaries only members of Muslim
community. But if on the other hand if a property is dedicated as D
an amenity of general public utility or for charitable purpose to
utilize its income for charitable purposes sanctioned by Muslim
Law, use of such amenity may not militate against its being a
Muslim Wakf. In other words unless it is made clear with what
object property is dedicated, it may not be possible to decide the
exact nature of dedication, even if it be presumed in favour of the E
appellants that it was after grant of land was made to Kamruddin,
he constructed the house and that house is being used as
Musafirkhana or Sarai Dharmashala, a place of abode for
wayfarers. Both parties, apparently having engrossed with user
of property by Muslims only have not lead any evidence on this F
vital aspect about ‘object of dedication of building’ of the issue. In
this connection, it may also be noticed that it is not a case of lost
grant and user of property, since time immemorial but grant in
specific manner has been the contention of both sides, and user
from that period by general public or Muslims. The pivot object
with which dedication and use was being made is missing. In this G
connection, it is also significant to notice that according to
Bhagwadgomandal word ‘Dharmashala’ and ‘Musafirkhana’
have been defined to mean one and same thing. Nothing therefore,
may turn on the expression ‘Dharmashala’ in the letter of grant of
land without something more. Nor actual user contrary to the H
566 SUPREME COURT REPORTS [2022] 12 S.C.R.

A object of actual dedication will affect the nature of grant, though
in the absence of clear evidence about object, long user in one
way or other may itself furnish some evidence of object.”
140. Lastly, the judgment in Indian Institute of Islamic v. Delhi
Wakf Board 2011 SCC OnLine Del 5567 of the High Court of Delhi
B speaking through Hon’ble Mr. Justice S. Ravindra Bhat, as His Lordship
then was, is also placed before us. Therein, in fact, we may only notice
after considering the case law on the point which included the decision
of this Court in Nawab Zain Yar Jung (Since Deceased) and Othersv.
Director of Endowments and Another(supra) and the changes brought
about in the law, it was inter alia held as follows:
C
“66. It is thus clear - from the above discussion, that for a dedication
to be a wakf it is not necessary that the benefit should flow only
to Muslims, or a specific section of the community; as long as the
object of the dedication is the performance of a task, or function,
which is considered to be charitable, under Muslim law, and the
D
property, asset or thing is permanently dedicated. Here, it would
be essential to go into what exactly is a “permanent dedication”.
The Privy Council, in one of its earlier decisions, i.eJewen Doss
Sahoo v. Shah Kubeer-ood-deen ((1840) 2 MIA 390) explained
the significance of the word ‘dedication’ and observed thus:
E “According to the two disciples, wakf signifies the
appropriation of a particular article in such a manner as
subjects it to the rule of divine property, whence the
appropriator’s right in it is extinguished, and it becomes a
property of God, by the advantage of it resulting to his
F creatures. The two disciples therefore hold appropriation to
be absolute, though differing in this, that AbooYoosuf holds
the appropriation to be absolute from the moment of its
execution, whereas Mahomed holds it to be absolute only on
the delivery of it to a mutawalli, (or procurator,) and,
consequently, that it cannot be disposed of by gift or sale,
G
and that inheritance also does not obtain with respect to it
…‘Bestow the actual land itself in charity in such a manner
that it shall no longer be saleable or inheritable.’”
141. Drawing support from the judgment of this Court reported in
Mohd. Khasimv. Mohd. Dastagir and Others(supra) it was found in
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 567
YUSUF BHAI CHAWLA & ORS.

fact that what was projected as a Wakf was not a Wakf even though, it A
might be a valid Trust.
Having noticed the facts of the judgment of the apex Court in
Nawab Zain Yar Jung (Since Deceased) and Othersv. Director of
Endowments and Another(supra) and as followed in Mohd. Khasimv.
Mohd. Dastagir and Others(supra) and having borne in mind the change B
brought about in Section 3(a), we are of the clear view that the law
which was declared in the decisions of this Court leaves it open to a
Muslim to create a public Trust or a Wakf and it remains undisturbed.
142. As to whether an institution is a Wakf or a public Trust is a
mixed question of fact and law. This means it becomes a duty of C
whosoever upon whom the duty falls, to ascertain whether it is either
and to carefully attend to the terms of the document by which the Trust
is evidenced if there is such a document and find the facts and thereafter
the law must be applied. The paramount feature which perhaps would
figure in this inquiry would be the properties being vested either by a
D
Trust, in the case of a Trust, for a trustee to deal with the property as
such.Whether there is no power of sale, or inalienabilitymay be a factor
which may tilt the matter in favour of the institution being a Wakf provided
other features which are indispensable are also present. It is no doubt
true that the Amending Act of 1964, amending the words ‘Beneficiary’
making clear what was always the correct principle of Muslim law that E
fruits of a Wakf is not to be cribbed cabined and confined to the Muslim
community would in the context of the object being public utility, narrow
down the distinction between a trust and a wakf.
In this regard, the aspect reflectedin para 17 of the judgment of
this court in AIR 1963 SC 985 would indicate that the court was bearing F
in mind the injunction in Section 3(a) defining beneficiary in the
unamended form. It does indicate that on the criteria of the unamended
provisions of Section 3(a), the court found it to be not a wakf. The
nomenclature and the form of the document can be indicative but not
decisive.
G
143. Having held that there is a distinction between a public
charitable Trust and Wakf, we must now move on to consider a more
vexed issue and the controversy is this. Whether the survey which was
conducted in the case under Section 4 was valid and whether the list
which was published on 13.11.2003 should have been interfered with?
H
568 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 144. It is an admitted case that the Act came into force on
01.01.1996. A person was appointed to carry out the survey by
proceedings dated 01.12.1997. The surveyor was tasked to carry out
the survey and he gave a report to the Government under Section 4(3)
on 31.01.2002. It is also not disputed in the meantime, on 04.01.2002, the
Wakf Board was incorporated. As to how a survey should be conducted
B
under Section 4 has been subject matter of the decision of this Court in
Board of Muslim Wakfs, Rajasthan v. Radha Kishan and
Others(supra). It may be apposite to refer to it for the reason that though
the survey in question was conducted under section 4 of the Wakf Act
1954, the provisions of Section 4 in the present Act is essentially
C parimateria with Section 4 of the earlier Act. Therein, the first question
which arose was whether the commissioner of Wakfs appointed under
Section 4 had jurisdiction to enquire and find whether a certain property
is Wakf property or not when such a dispute is raised by a stranger to
the Wakf. We need not be detained by the other question as it relates to
the effect of Section 6 on such a person. The Court went on to hold
D
inter alia as follows:
“22-A. It is needless to stress that the whole purpose of the survey
of wakf by the Commissioner of Wakfs under sub-section (1) of
Section 4 is to inform the Board of Wakfs, as to the existence of
the existing wakfs in a State, in order that all such wakfs should
E be brought under the supervision and control of the Board of
Wakfs.
23. While the High Court was, in our view, right in determining
the scope of sub-section (1) of Section 6 of the Act, it was clearly
in error in curtailing the ambit and scope of an enquiry by the
F Commissioner of Wakfs under sub-section (3) of Section 4 and
that by the Board of Wakfs under Section 27 of the Act.
25. The very heading of Chapter II and the caption to Section 4
no doubt suggest that the Commissioner makes only a preliminary
survey regarding existing wakfs and the list of wakfs prepared by
G him is published by the Board and neither the Commissioner nor
the Board is required to make any enquiry regarding the character
of the property. That is to say, the making of survey is only an
administrative act and not a quasi-judicial Act. But, on a closer
examination, it is clear that while making a survey of the existing
H wakfs in a State under sub-section (1) of Section 4, the
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 569
YUSUF BHAI CHAWLA & ORS.

Commissioner is required by sub-section (3) to submit a report to A
the State Government in regard to the several matters referred to
in clauses (a) to (f) thereof. There may be a dispute as between
the Board, the mutawalli or a person interested in the wakf, as
regards (a) the existence of a wakf, i.e. whether a particular
property is wakf property, (b) whether it is a Shia wakf or a Sunni
B
wakf, (c) the extent of the property attached to the wakf, (d) the
nature and object of the wakf, etc. While making such an enquiry,
the Commissioner is invested by sub-section (4) with the powers
vested in a civil court under the Code of Civil Procedure, 1908, in
respect of the summoning and examining of any witness, requiring
the discovery and production of any document, requisitioning any C
public record from any court or office, issuing commissions for
the examination of any witness or accounts, making any local
inspection or local investigation, etc. In view of these
comprehensive provisions, it is not disputed before us that the
enquiry that the Commissioner makes for the purpose of
D
submission of his report under sub-section (3), while making a
survey of existing wakfs in the State under sub-section (1), is not
purely of an administrative nature but partakes of a quasi-judicial
character, in respect of the persons falling within the scope of
sub-section (1) of Section 6.
26. It would be illogical to hold that while making a survey of E
wakf properties existing in the State a Commissioner of Wakfs
appointed by the State Government under sub-section (1) of
Section 4, should have no power to enquire whether a particular
property is wakf property or not. If we may refer to sub-section
(1) of Section 4, so far as material, it reads: F
“The State Government may, by notification in the Official
Gazette, appoint for the State a Commissioner of Wakfs ... for
the purpose of making a survey of wakf properties existing in
the State at the date of the commencement of this Act.”
It will be clear that the words “for the purpose of making a survey G
of wakf properties” is a key to the construction of the section.
The ordinary meaning of the word “survey”, as given in the
Random House Dictionary of English Language, is ‘to take a
general or comprehensive view of or appraise, a situation’. If the
Commissioner of Wakfs has the power to make a survey, it is but H
570 SUPREME COURT REPORTS [2022] 12 S.C.R.

A implicit that in the exercise of such power he should enquire
whether a wakf exists. The making of such an enquiry is a
necessary concomitant of the power to survey. The High Court
was clearly in error in observing:
“Except sub-section (5) there is nothing in Section 4 or in the
B Rules made by the State to show that the Commissioner is
empowered to adjudicate on a question, if one arises, whether
a particular property is a wakf property or not.”
27. We are of the opinion that the power of the Commissioner to
survey wakf properties under sub-section (1) or to enquire and
C investigate into the several matters set out in clauses (a) to (f) of
sub-section (3) cannot be curtailed by taking recourse to sub-
section (5). The High Court was wholly wrong in understanding
the true implication of sub-section (5) of Section 4. It only lays
down that if, during any such enquiry, any dispute arises as to
D whether a particular wakf is a Shia wakf or a Sunni wakf, and
there are clear indications in the deed of wakf as to its nature, the
dispute shall be decided on the basis of such deed. It, therefore,
makes the wakf deed conclusive as to the nature of the wakf i.e.,
whether it is a Shia or a Sunni wakf. In our view, sub-section (5)
of Section 4 cannot be projected into sub-section (1) for
E determining the question whether a certain property is a wakf
property or not. Nor does it enter into an enquiry as to several of
the matters adverted into some of the clauses of sub-section (3).
145. Therefore, we must proceed on the basis that the making of
survey is not a mere administrative act but it is to be informed by a
F quasi-judicial inquiry. It is also the law that the surveyor has the power
to find whether a particular institution is a Wakf. The commissioner has
also indeed to determine the aspects which have been mentioned in
Section 4 specifically which we need not dilate upon.
146. We may at this juncture venture to notice the findings which
G have been rendered by the High Court.
“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:
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MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 571
YUSUF BHAI CHAWLA & ORS.

(2) The Board shall examine the report forwarded to it under A
sub-section (1) and publish in the Official Gazette a list of Sunni
Wakfs or Shia Wakfs in the State, whether in existence at the
commencement of this Act or coming into existence thereafter,
to which the report relates, and containing such other particulars
as may be prescribed.
B
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 C
are relevant. They read as under:
4.16 The earlier JPC on Wakf, in its Eighth Report presented
on 29.07.2003 noted that the survey was almost completed,
except in Bombay suburban District. However, it was alleged
by the members of the public during the visit of the Committee D
that the survey work had not been properly carried out and a
large number of Wakf properties had been left out. Itwas also
informed that even those properties which physically existed
and were Wakf by user, were not included in the survey on
flimsy grounds. E
It was revealed that in the revenue records, the Wakf properties
were mentioned in the name of Mutawallis or in the name of
lessees and were not shown as Wakf properties which made
the sale of the properties easy. It was also informed that no
physical survey was done and only proformas were sent to the F
Mutawallis for furnishing the details of the Wakf properties.
The State Government had also admitted that there were errors
in identifying the Wakf properties. Later on, the State
Government informed that the survey in Bombay sub-urban
areas had also been completed and they supplied a list of the
Wakf properties surveyed to the then Committee. The lists so G
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 H
572 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 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 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
B
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
C 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
D 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.
E 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
F Department Notification No. WKF-1097/L- 3/CR95 dated
01.12.1997 and survey was completed and submitted to the
Government. Thus, the survey was completed before receipt
of proceedings of the Joint Parliamentary Committee’s VII Ith
Report, which had suggested the survey to be carried out again
in a transparent way. It has yet not been initiated.
G
. . . 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, Minority Development, Government of Maharashtra,
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 573
YUSUF BHAI CHAWLA & ORS.

during her oral evidence tendered on 24.07.2008, assured the A
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 B
Notification dated 20th October, 2010. The reason that has been
given by the State Government for ordering resurvey in the
Notification dated 20th October, 201O is “ And whereas the Joint
Parliamentary Committee received complaints that the survey was
not conducted properly and therefore the Committee issued
C
direction dated 20th October, 201O 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-
D
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.” E
147. We may notice that this is a case where the writ petitions
were filed in the High Court. In the findings rendered by the High Court,
the High Court has not found that there has been a breach of the principles
of natural justice. This is not made out to be a case where there is a total
want of jurisdiction either. Having made these preliminary observations, F
we may proceed to consider some of the allegations which have been
made in the writ petitions:
“11. The Petitioners submit that it may be noticed that even a
Wakf created as per the provisions of the Muslim Law as
applicable to the wakf is also included within the definition of the G
public trust, as contained in Section 2(13) of the Bombay Public
Trust Act, 1950. Therefore, there are many Muslim trusts created
by the Muslim Settlers belonging to diverse schools of Muslim
law under the common law and have appointed the trustees and
got the trust property vested in them. But all these Muslim public
H
574 SUPREME COURT REPORTS [2022] 12 S.C.R.

A charities/ endowments created as public trusts as per the provisions
of common law are also registered in ‘B’ category with the Charity
Commissioner. There are indeed many Wakfs created by the
Muslim Wakifs as per the school of Muslim Personal Law
applicable to them and they are also registered in ‘B’ category by
the office of the Charity Commissioner. The petitioners say and
B
submit that the above trusts are the Public Trusts as per the
common law and not Wakfs as per the provisions of the Muslim
Personal Law applicable to the Settlors of the above Trusts and
are registered under “B” category by the office of the Charity
Commissioner.”
C
“12. Upon the enforcement of the Wakf Act, 1995 it has become
necessary for the Charity Commissioner’s office to bifurcate such
Muslim Wakfs from the Muslim trusts. Instead of undertaking
such exercise the Charity Commissioner proceeded to treat all
the endowments/ charities registered in “B” category as Muslim
D Wakfs and issued a circular dated 24th July, 2003, bearing No.
307 of 2003 whereby it directed its office not to exercise or deal
with any of the Muslim Public Trusts. The said circular inter alia
stated that according to Section 43 of the Wakf Act, 1995, Wakfs
registered as the Public Trust should not be tried under the Bombay
Public Trust Act, 1950 and that the further orders might be awaited.
E
After issuance of this circular the office of the Charity
Commissioner refu!led to entertain any application in respect of
the Muslim Public Trusts, which are registered with it. Hereto
annexed and marked as Exhibits ‘G’ & ‘G-1’ are the copies of
the circular dated 24th July, 2003 bearing No. 307 of 2003 issued
F by the Charity Commissioner along with its English translation.”
“14. Before stating the grounds it is al.so necessary to point out
that the respondent No.1 has appointed the Survey Commissioner
as per the notification dated 1st December, 1997. The petitioners
say that the purported survey has been carried out by the Survey
G Commissioner without giving any notice to the existing Muslim
Trusts/ Wakfs. The petitioners have learnt that several Muslim
Trusts/Wakfs have carried out correspondence with the Survey
Commissioner putting on record , that the Survey Commissioner
has not given any notice to the existing Muslim Trusts/ Wakfs
about the purported survey and that the Survey Commissioner
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 575
YUSUF BHAI CHAWLA & ORS.

should follow the rules of natural justice in identifying the Muslim A
Trusts/ Wakfs. Hereto annexed and marked as Exhibit ‘I’ is the
copy of the letter dated 14th August, 2003 written by one such
trust viz. Anjuman-i-lslam. The petitioners state that the Survey
Commissioner i.e. Respondent No.3 by his letter dated 22nd
August, 2003 informed Anjuman-i-lslam that he has submitted his
B
report to Respondent No.1 on or about 31st January, 2002 in two
sets. Hereto annexed and marked as Exhibit ‘J’ and ‘J-1’ is a
copy of the letter dated 22nd August 2003 along with its English
translation, written by Respondent No.3 to Anjuman-i-lslam. The
petitioners state that the Survey Commissioner’s Report has not
been made available to the public. The petitioners state that their C
Trusts have not received intimation of any kind from the Survey
Commissioner about the purported survey and no opportunity has
been given to the petitioner’s trusts to put their say in the matter.”
148. From the writ petition which we are treating as the lead
case, our understanding of the complaint must be captured. The writ D
petitioners were very much aware that survey was ongoing.The notices
were published in newspapers.Notices have been marked in the counter
affidavit.
149. We find from the counter affidavit of respondent No. 4 in
SLP (C)No. 31288 of 2011 that one of the petitioners wrote a letter to E
the Charity Commissioner, wherein, he spoke about the ongoing survey.
There is also a reference to a letter written by the Commissioner appointed
to carry out survey informing one of the writ petitioners that the surveyor
has already given his report. It would therefore appear that,notices were
published. Notices were made available for the perusal of this Court
with copies given to the counsel for respondents. We have perused those F
notices. Those notices would appear to elicit response from
institutionswhich wereWakfs. One way to look at the matter is with
reference to the specific dispute in this case. When the writ petitioners
were contending that they are not Wakfs but Public Trusts governed by
the 1950 Act, they could say that they were not affected by the notices. G
150. In fact, they would appear to have adopted that stand as
they were in a manner of speaking aware of the exchanges between the
Wakf Board and the Charity Commissioner. No doubt, they could strictly
in law say that they have not been put on notice. They can indeed contend
since Bombay was not under the purview of the erstwhile Wakf Act H
576 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 1954, their institutions could not possibly have been under the glare of
scrutiny under the said Act. Therefore, they are institutions which must
be more specifically put on notice. All the more, when they have a claim
that though theyhave been registered under the Public Trust Act, and
they were not registered for the reason that they were Wakfs but they
were registered because they were public Trusts and the distinction
B
between the two is underlined.
151. We have already noticed that understandablythe petitioners
dohold out that there are Wakfs which have been registered as public
Trusts. Their contention is that they were not among the Wakfs. The
inquiry before the Survey Commissioner lasted for nearly five years. It
C is true that the Survey Commissioner who has apparently kept in mind
the Wakf Act of 1954 which however, applied only to six districts
comprised in the Aurangabad division and constituted in the Marathwada
region and might have collected information from the Revenue Officers.
This is significant because if the property is treated as Wakf by way of
D publication of a list under Section 5(2), the previous regime also
contemplated the list forming the basis for making entries in the revenue
records. Therefore, collecting the materials from the Revenue officers
cannot be frowned upon.
152. Now, we must, before we pronounce on the impact of the
E preliminary survey also deal with the aspect about list which has been
brought out on 13.11.2003.
153. The list which is characterised as final list by the appellant
Board has been published on 13.11.2003. It related to Bombay region
and another. We would think that in keeping with the appellant’s case
F that this was indeed final. This means that in keeping with the scheme of
the Act, its correctness could be tested before the Tribunal under Section
6. The writ petitioners have chosen to approach the High Court with
writ petitions. What happened thereafter cannot be overlooked. One
writ petition led to the filing of a spate of writ petitions as we have
noticed. What triggered the writ petitions, however, also needs to be
G noticed. The challenge was not laid as such to the list alone. The challenge
was laid to the incorporation of the Board on 04.01.2002. Equally, the
clarification issued by the Charity Commissioner whereby he sought to
disown his functions in respect of public trusts because of the Act coming
into force, was challenged. The constitution of the Wakf Board was also
H the subject matter of challenge.
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 577
YUSUF BHAI CHAWLA & ORS.

154. After the filing of the writ petitions, on 11.08.2004 a meeting A
was held and we have already extracted the deliberations in paragraph
6 of this judgment.
155. Thereafter there is an exchange of communications dated
29.10.1994 and 16.02.2005. On 30.12.2004, another list of Wakfs was
published. B
The List dated 30.12.2004 was published in respect of areas other
than Bombay and the other region which was the subject matter of list
dated 13.11.2003.
156. We have already adverted to what happened on 09.03.2005
and 05.05.2005.We may recapitulate the substance of the matter. C
Complaints were raised against the lists which were published by the
Survey Commissioner on 13.11.2003 and 30.12.2004. While the writ
petitions regarding the same were pending, under the auspices of the
Government, two ministers, Charity Commissioner, two members of the
Wakf Board and others, certain arrangements came to be made. Since
the chief complaint was with respect to the writ petitioners who took D
shelter on the score that they were Public Trusts registered under the
1950 Act and had contended that they were not Wakfs, it was decided
that out of the earlier number of public trusts treated as Wakfs, Muslim
public trusts which were registered under the Bombay Public Trust Act
should be taken out of the category of Wakfs and they should continue E
to be treated as Public Trusts. However, it was made subject to availability
of power under Section 40 of the Act. In other words, while the list was
published under Section 5(2) of the Act on 13.11.2003 qua Bombay and
another list was published on 30.12.2004 in respect of other regions it
came to be interfered with and abridged by way of first corrigendum on
05.05.2005, acting upon the meetings which preceded it, of which F
noteworthy is the resolution dated 09.03.2005 by the Board. We would
have thought the matter would end there.However, to make matters
more convoluted, there were other developments and they are captured
in subsequent proceedings which took place on 09.06.2006 and
31.07.2006 and finally, what the petitioners would claim to be an
G
acceptance of their position by proceedings dated 19.05.2006 and what
is more which in turn was sought to be over-ridden by the notification
which was issued on 25.04.2007. By the last-mentioned communication,
the Board purported to restore the list dated 13.11.2003 still further by
the 23.10.2008 notificationthe position obtaining as on 13.11.2003 and
30.12.2004 was sought to be restored. H
578 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 157. Now the time is ripe for us to consider the matter with greater
focus on the litigation and the impugned judgment. The High Court has
purported to invoke its power under Article 226. The contention raised
by the appellants is that under the Act there is a remedy provided namely,
a right to a person aggrieved to approach the Tribunal. The Tribunal is
well equipped to deal with vexed issues related to Wakf. It is a Tribunal
B
specially constituted for the said purpose. No prejudice is caused by the
mere publication of the list. Even dehors the publication of the list, the
Wakfs are otherwise covered. As far as the interference under Article
226 is concerned, when a party has a remedy, in particular, we need to
appropriately notice a very recent judgment of this Court reported
C inRadha Krishan Industries v. State of H.P.15.
Therein, this Court held inter alia as follows:
“27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue
D writs can be exercised not only for the enforcement of fundamental
rights, but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a writ
petition. One of the restrictions placed on the power of the High
Court is where an effective alternate remedy is available to the
E aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where: (a)
the writ petition has been filed for the enforcement of a
fundamental right protected by Part III of the Constitution; (b)
there has been a violation of the principles of natural justice; (c)
F the order or proceedings are wholly without jurisdiction; or (d)
the vires of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the High Court
of its powers under Article 226 of the Constitution in an appropriate
case though ordinarily, a writ petition should not be entertained
when an efficacious alternate remedy is provided by law.
G
27.5. When a right is created by a statute, which itself prescribes
the remedy or procedure for enforcing the right or liability, resort
must be had to that particular statutory remedy before invoking

15
H (2021) 6 SCC 771
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 579
YUSUF BHAI CHAWLA & ORS.

the discretionary remedy under Article 226 of the Constitution. A
This rule of exhaustion of statutory remedies is a rule of policy,
convenience and discretion.
27.6. In cases where there are disputed questions of fact, the
High Court may decide to decline jurisdiction in a writ petition.
However, if the High Court is objectively of the view that the B
nature of the controversy requires the exercise of its writ
jurisdiction, such a view would not readily be interfered with.”

158. We have noticed that it is not a case where the Court has
found that there is a violation of the fundamental rights as such. In the C
matter of interfering with the survey, what essentially weighed with the
Court is the report of the JPC.Apart from the same, we are not able to
find anything else in the judgment as forming the basis for setting aside
the list dated 13.11.2003. No doubt, the aspect relating to the constitution
of the Board is another matter. It clearly is not a case where there is a D
complete absence of jurisdiction as it is not the case of the petitioners
that the Survey Commissioner was not having authority to carry out the
survey.
159. This is a case of some significance. Facts which have
occurred subsequent to the issuance of the list on 13.11.2003 and E
31.12.2004, take it out of the ordinary run of cases. We have noticed the
fact for reasons which will remain a mystery to us, Government took it
upon itself to convene meetings; a Committee was constituted described
as a Bifurcation Committee.The Committee saw merit in the contention
of the writ petitioners.The Charity Commissioner was roped in as a
member. It is thereafter that strangely after the publication of the lists F
which are claimed to be final lists under Section 5(2) on 13.11.2003 and
30.12.2004 that the list dated 05.05.2005 is published and it is also
described as another final list. All these lists have finally been sought to
be extinguished by virtue of the notifications dated 25.04.2007 and
23.10.2008. G
160. At this juncture, we must notice the following submissions
which have been continually harped upon by the writ petitioners:
“The Survey Commissioner submitted report to the Govt. to the
Maharashtra and the Govt. forwarded the same to the
Maharashtra State Board of Wakfs Aurangabad the Board in its H
580 SUPREME COURT REPORTS [2022] 12 S.C.R.

A meeting held on 27 September 2003 after deliberation resolved to
publish list of Wakf under Section 5(2) of the Wakf Act 1995 and
accordingly Govt. Gazette was published on 13 November 2003.
Also Govt. of Maharashtra vide its letter no Wakf-10/2002/CR-1/
L-3 dated 19 August 2003 forwarded a list of the Trust obtained
from the Charity Commissioner Mumbai. These are also included
B
as per Section 43 of the Wakf Act 1995 is published in the Govt.
Gazette extra Ordinary in the State of Maharashtra.”
161. This means that the writ petitioners’ case is based on to a
great extent the mechanical manner in which upon receipt of the list of
public Trusts from the Charity Commissioner, the Wakf Board has notified
C them as Wakfs. Section 5(2) speaks about Wakf Board conducting an
inquiry, or examining the manner. This certainly is not to be brushed
aside as a matter of no moment. In fact, the whole idea of the Government
placing the report before the Wakf Board as has been canvassed by the
appellants themselves to contend that a Wakf Board is very much
D contemplated even prior to the Survey being held is that itmust discharge
its functions of examining the report under Section 5, before it is finally
published.
162. It would appear to be a case where proceeding on the basis
that all the Muslim public Trusts registered under the 1950 Act must be
E treated as Wakfs, the Wakf Board has proceeded to notify all of them as
Wakfs. It is this which formed the subject matter of deliberations which
involved the Government, Wakf Board and Charity Commissioner. It is,
accordingly, under the auspices of the Committee described as Bifurcation
Committee that efforts were made to weed out those public Trusts which
fell not within the four walls of a Wakf and considering them assecular
F trusts. To a great extent, their claims being genuine is borne out by a
bare passing of Resolution on 09.03.2005. A fresh list was published on
05.05.2005.
163. Now, we may, before we finally pronounce, also notice the
contention of the respondents-writ petitioners regarding the constitution
G of the Board.Section 14 provides for the constitution of the Board. We
have already adverted to the provisions. It is not in dispute that when the
Board was constituted on 04.01.2002, there were only four members.All
the four members were nominated. Two out of the four members were
apparently appointed in the category of Member of Parliament as, both
H belonged to the Rajya Sabha. No doubt, there is a case that out of them
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 581
YUSUF BHAI CHAWLA & ORS.

viz., Shabana Azmi,the theatre person also fitted the bill of a Shia member. A
We must not be oblivious to the fact that Section 14(5) contemplated
(the provision stands deleted by Act 27 of 2013) that there must be one
Shia member in a composite board. After 04.01.2002 and before
13.11.2002, there were in allseven members in the Board, including the
four notified in first notification, as three more were appointed prior to
B
13.11.2003. One more person was appointed on 13.11.2003 which
according to the respondents was an attempt at complying with Section
14(5) of the Act viz., for the first time, a Shia member made his
appearance in the Board. This is an aspect which was canvassed as one
of the grounds for not only challenging the constitution but to attack the
publication of the list of 13.11.2003. The contention taken was and still C
persevered in before us is that the Board had decided to notify the list
even prior to 13.11.2003 viz., on 27.09.2003. The Board itself therefore
had become functus officio after 27.09.2003 as far as the list is concerned,
prior to 13.11.2003 when the eighth member was appointed.
164. The Board must consist of a minimum of seven members. D
Section 14 contemplates a maximum of 13 members. Not only must the
Board have seven members at the very minimum, they must be drawn
from specific categories. Lastly, the complaint of the writ petitioners is
that apart from their not being drawn from the categories which
arespecified, the constitution of the Board was in breach of the injunction,
which has democratic underpinnings, viz., that the elected members under E
Section 14(1)(b) (i-iv) must exceed the nominated members. The
exception to the same is located when power is exercised by the Board
for reasons to be recorded in Section 14(3) of the Act.
165. The answer of the appellants apparently is that whatever
may be the defect, they are protected by Section 22 of the Act whereunder, F
any vacancy or any defect in the appointment notwithstanding, the section
proclaims that it will not lead to the invalidity of the acts of the Board.
166. We will still further proceed to deal with certain other aspects
before we finally conclude. We must not omit to consider the impact of
Section 40 of the Act. Section 40 corresponds to Section 27 of the Wakf G
Act 1954. Section 40(1) read with Section 40(2) provides for power
with the Board to call for information and to find whether any Wakf
property existed and whether it is a Sunni or a Shia Wakf. Section 40(2)
provides that subject to the decision of the Tribunal to which the aggrieved
party may resort to, the decision of the Board is final. Section 40(3) is H
582 SUPREME COURT REPORTS [2022] 12 S.C.R.

A even more relevant to the dispute before this Court. No doubt, there
must be an inquiry conducted under Section 40 as may be deemed fit by
the Board, Section 40(3) must be carefully attended to for it gives very
vast powers to the Board. It provides for power when the Board has
‘reasons to believe’.The expression ‘reasons to believe’ has been the
subject matter of a catena of decisions and it does not require reference
B
to any authority to glean its connotation and we do not venture to do
that.
167. We proceed therefore, to hold that when the Board has, in
law, any reason therefore to believe that any property of any Trust
registered under the Indian Trusts Act, 1882 or any society registered
C under the Societies Registration Act 1860 or the property of any Trust
registered under any other law, is wakf property, the Board is given
certain powers and responsibility. The Board is clothed with the power
notwithstanding anything contained in any of those laws, to hold an inquiry
in regard to the said property. The said property must be understood to
D be a property of any Trust which is registered in this case under the
Bombay Public Trust Act because Bombay Pubic Trust Act would qualify
as any other law. The holding of the inquiry is to be preceded by a notice
of the proposed action to be given to the authority by whom the Trust or
the Society has been registered. It is not to be confused with the Trust or
the Trustees.It means that the Wakf Board must give notice of the
E proposed action to the Charity Commissioner as it is the authority under
the 1950 Act, who registered or registers a public Trust under Section 18
of that Act.
168. Section 40 contemplates that the Board ‘if it is satisfied’ that
the property is Wakf property, it is to call upon the Trust to either register
F ‘such property’ under the Act as Wakf property or to show cause, why
such property should not be so registered. In the first limb of this clause,
an impression may be gathered that the Trust or society can be
straightway directed to register the property under the Act and there is
no need to issue any notice to them. We would treat it as an omission of
G the statute which must be filled up by the justice of the common law viz.,
the principles of natural justice would indeed apply. This is besides issuing
notice to the authority which has registered the trust.Section 40(3)
contemplates that the decision of the Board shall be final subject to the
decision to be rendered by the Tribunal.This section must be understood
in the following context.
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 583
YUSUF BHAI CHAWLA & ORS.

169. When parliament made the Act in 1995, it was aware that it A
would repeal the Wakf Act 1954. Section 40 of the Wakf Act is a provision
which corresponds to Section 27 of the earlier Act. Parliament must be
presumed to know the laws which are on the statute book. In fact,
Parliament must be presumed to be aware of all necessary facts which
would give life to a law and make it workable, fair and reasonable.
B
Parliament must, therefore, be assumed to know that laws like the
Bombay Public Trust Act were on the statute book. It must be aware
that the definition of public Trust such as is contemplated under the
Bombay Public Trust Act took within its sweep Wakfs. Section 28 of the
Bombay Public Trust Act, in fact, comes to mind. Section 28 of the 1950
Act contemplated that institutions which were Wakfs before the C
enactment of the 1950 Act would be deemed to be public Trusts under
Section 28 and would be treated as such under the said law. As far as
other public Trusts which are registered under the 1950 Act, no doubt, in
keeping with what we have already observed and bearing in mind the
fact that there is a distinction between a Trust and a Wakf, it is a matter
D
to be decided on the facts of each case as to whether what is ostensibly
a Trust within the meaning of 1950 Actis in substance a Wakf.
170. We must clarify here that what Section 40(3), in fact, states
is that if the Board has reason to believe that the property of any Trust is
Wakf property, it can hold enquiry and find such property to be Wakf
property. E

171. In this regard, we may notice that Section 30 of the 1950 Act
contemplates previous sanction for the sale of the property of the public
Trust. We may record that we are a little baffled and mystified by this
deeming provision. This we feel for the reason that in the case of a
Wakf, property passes to the Almighty and to treat it as the property of F
the public Trust ill squares with the idea that the property also vests in
the Almighty. But we need not explore that matter further as we are not
called upon to do so.Suffice it to say that despite the fact that the 1950
Act has been enacted and Muslim pubic Trusts have been registered in
what is described as Category B which is a category meant for Muslim G
Public Trusts, the property of the said Trust as is described in Section
40(3) can be found after due inquiry, to be the properties of a Wakf. We
make this position clear.
172. As far as Section 43 is concerned, it mandates for deemed
registration of Wakfs. Its meaning may be culled out. It mandates that H
584 SUPREME COURT REPORTS [2022] 12 S.C.R.

A notwithstanding anything contained in the chapter, where any wakf has
been registered before the commencement of this Act,under any law
for the time being in force, there is no need to register the same under
the provisions of this Act. Such registration is to be deemed to have
been made under the Act.
B 173. Therefore, Shri Anil Anturkar, learned counsel, did refer to
the non-obstante clause in Section 43 being confined to the chapter in
question viz., chapter V which provides for registration.In other words,
it did not overflow its boundaries and impact the earlier provisions which
were included in chapter II. The effect of Section 43 may be culled out
as follows:
C
174. Since under Section 2 of the Act, the Act applies to every
Wakf which is created, whether before or after the Act came into force,
it means that whatever is Wakf as defined in the Act which is made at
any point of time, be it before or after 01.01.1996 must be registered
under the Act [See Section 36]. Registration is intended to bring Wakfs
D under the close scrutiny of the competent authority, be it the Board or
the executive officers. The whole history of the legislation of Wakfs
reflects the perception of the legislature that property which is dedicated
to the Almighty for charitable, religious and pious purposes should be
protected. The protection must be extended against the Mutawallis and
E others who may deal with the property and thereby, completely destroy
the very original purpose of the founder. What would be used for public
welfare, be it even of sections of a community for certain cases, would
all be covered thereunder as provided in the Act.
175. It is with this perception that we must view Section 43 and
F the High Court in the impugned judgment, also has referred to Section
43 in the course of the argument against the incorporation of the Board
to hold that it merely provides for registration. We would think that the
importance of it lies in the fact that the registration has an important role
to play towards control and regulation of the Wakf by the competent
bodies.
G
176. Section 79 of the 1950 Act provides as follows:
“79. Decision of property as public trust property:- (1) Any question,
whether or not a trust exists and such trust is a public trust or
particular property is the property of such trust, shall be decided
by theDeputy or Assistant Charity Commissioner or the Charity
H
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 585
YUSUF BHAI CHAWLA & ORS.

Commissioner in appeal as provided by this Act.(2) The decision A
of the Deputy or Assistant Charity Commissioner or the Charity
Commissioner in appeal, as the case may be, shall, unless set
aside by the decision of the Court on application or of the High
Court in appeal be final and conclusive.”
It provides for power with the deputy or the assistant Charity B
Commissioner to decide upon the issue as to whether a Trust exists and
whether such Trust is a public Trust or any particular property is a property
of such trust. With the advent of the Wakf Act, 1995, the powers under
Section 40 of the Act must be read as conferring authority with the
Wakf Board which must certainly prevail in regard to the matters which
are provided for therein. C

177. This brings us to other aspect which has been canvassed
before us. Section 112 of the Act provides for repeal. There is not much
controversy before us that Section 112 by virtue of the repeal it provides
for would effect a repeal of the provisions of the 1950 Act insofar as it
relates to public Trusts which are Wakfs. The Charity Commissioner, in D
effect, when it issued clarification which was challenged before the High
Court also initially only stated that according to Section 43 of the Act
Wakfs which are registered as Public Trusts should not be tried under
the 1950 Act. As far as this understanding of the Charity Commissioner
goes subject to what we will presently indicate, we would take the view E
that there is a distinction between a Trust and a Wakf. We have already
highlighted the differences.It is a matter to be tested on a conspectus of
various features and after complying with the law as to whether what is
registered as a public Trust is, in fact, a Wakf or not. No doubt, all public
Trusts which have been registered by way of a deeming provision under
Section 28 of the 1950 Act will necessarily have to be treated as Wakfs. F
This is on the principle that once a Wakf is created unless it be a case
where the title is extinguished by way of exercise of power of eminent
domain by the State, the title of the Almighty though by implication cannot
cease. We can state the position otherwise to be that once a Wakf,
always a Wakf. G
178. We are not for a moment commenting on the aspect about
acquisition of title by adverse possession. Nor are we going into the
question which can be raised as a result of Section 107 of the Act by
which Limitation Act hasnot been made applicable in respect of a suit
forrecovery of possession but otherwise, we must hold that sans such H
586 SUPREME COURT REPORTS [2022] 12 S.C.R.

A features, the Wakf would continue and it would remain perpetual,
inalienable and irrevocable. Therefore, what was once a Wakf before
the 1950 Act, if it is registered under the 1950 Act, with the commencement
of the Act, such a public Trust would necessarily come under the ambit
of the Wakf Act, 1995. It is pointed out by Shri Anil Anturkar, learned
senior counsel, that such Wakfs would come within Section 43 and be
B
deemed to be registered. We, however, make it clear that the passing of
the Act will not affect the powers of the authorities in respect of public
Trusts registered under it which are not Wakfs.
179. Now, we may resume our discussion of the facts in greater
focus.We notice that the High Court has interfered under Article 226. In
C keeping with what is laid down in the judgment we have referred to,
perhaps it could be said that the High Court would have been better
advised to relegate the parties to the Tribunal. There are however, certain
aspects to it. Firstly, we may notice that this is not a case where the
challenge was laid only to the lists or the survey. Rather we have noticed
D that the challenge was laid to the very incorporation of the Board and its
constitution. A challenge was also laid to the proceedings of the Charity
Commissioner. These decisions which were impugned could not have
been adjudicated by the Tribunal under Section 6 of the Act. The second
aspect which we cannot ignore is that as held by this Court, Article 226
confers a jurisdiction or a power on the High Courts. It is a power under
E the Constitution. While it may be true that a statute may provide for an
alternate forum to which the High Court may relegate the party in an
appropriate case, the existence of an alternate remedy by itself cannot
exclude the jurisdiction of the High Court under the Constitution. No
doubt, it has been a self-imposed restraint which is fairly faithfully adhered
F to by the High Courts and it is largely a matter of discretion. We find that
there are dicta which has held that on the basis of an alternate remedy,
a writ petition is not maintainable. We would understand that the position
to be that a constitutional remedy cannot be barred or excluded as when
the High Court exercises its power under Article 226, it cannot be a
case of lack of inherent jurisdiction. No doubt, when High Courts stray
G outside the limits with reference to certain principles as have been laid
down in the decision which we have referred to, it can be corrected.
Another factor which is to be borne in mind is that in a case where the
High Court has entertained a matter and the matter comes for hearing in
this Court in the jurisdiction under Article 136, our woes are compounded
H by the long passage of time as is demonstrated by the facts of this case.
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 587
YUSUF BHAI CHAWLA & ORS.

The judgment of the High Court was rendered in the year 2011. This A
Court is hearing the matter after more than a decade. It is nearly two
decades after the filing of the writ petitions that this Court is hearing the
matter.
180. We cannot be totally oblivious to the ground realities and we
must also state our opinion on the legal position. B
We have understood the position to be that once a list is published
with the blessings of the Board, having considered the report in the manner
to be done by examining ‘the report’, interference with the same is only
premised on a decision of the Tribunal in a properly constituted proceeding
within the time as provided in Section 6. In this case if we are otherwise C
inclined to interfere with the judgment, this would mean that we would
have to restore the lists dated 13.11.2003 and 30.12.2004. The position
on the ground, however, has been already stated viz., the filing of the
writ petitions, constitution of a Bifurcation Committee, various
proceedings, the exclusion of several trusts which are described as public
Trusts from the original lists and their restoration again. Yet another D
development which we cannot ignore is that the Government itself took it
upon itself apparently on the basis of the report of the JPC to order resurvey
on 20.10.2010. An interim order was passed by this Court in 2012.
181. However, Shri Rahul Chitnis, learned counsel for the State,
would point out that the proceedings dated 20.10.2010 have been E
subsequently cancelled by notification dated 06.12.2016. By the latter
proceedings, a survey within the meaning of section 4(6) is taking place.
182. On the one hand, we have noticed the case of the writ
petitioners to be that they were not given notice. We have also noticed
their case based on the illegality in the constitution of the Committee. F
Several defects were pointed out by the learned senior counsel as noted
in the survey. They include Shia Wakf being treated as Sunni and
Boharatrusts being treated as Sunni Wakf. It is complained thatincome
of the properties has not been disclosed contrary to Section 4.
183. We articulate the choices which are available before us. It is G
the appellant’s case that Wakf properties need to be rigorously and
lawfully regulated. However, there are public Trusts registered under
the 1950 Act which are in fact, Wakf which fall under Section 28 of the
1950 Act. They must undoubtedly come within the regime of the Central
Act viz., the Wakf Act, 1995. The converse also must be stated and
H
588 SUPREME COURT REPORTS [2022] 12 S.C.R.

A highlighted viz.; a Muslim Public Trust registered under the 1950 Act
need not be a Wakf under the Act. It would be certainly contrary to the
unbroken line of judgments of this Court which contemplate such a division
between two categories to paint all Muslim public Trusts with the same
brush and glean them as Wakfs. We have elucidated the position however
with reference to the impact of the amendment to Section 3(a) of the
B
Wakf Act, 1954.
184. At this juncture we must notice an interim order which has
been passed by this Court reported in 2012 (6) SCC 328. Much reliance
was sought by the learned senior counsel for the writ petition on the said
order on the basis that it acknowledges the position of law flowing from
C the principle in Nawab Zain Yar Jung (Since Deceased) and Othersv.
Director of Endowments and Another(supra) and that it otherwise
articulates the law correctly. On the other hand, the appellants would
point out that it is only an interim order and cannot detain this Court in
analyzing the issues.
D 185. On the one hand, the case of the appellants is that the
respondents must be relegated to approach the Tribunal against their
inclusion in the list by the proceedings dated 13.11.2003 or 30.12.2004
whereas the case of the respondents is that if this Court interferes, the
Court may treat the proceedings dated 05.05.2005 as correct and not
E interfere otherwise with the judgment of the High Court.
186. Mr. Muchchwala, learned Senior Counsel, contended that
the power under Section 97 is available to give binding directions to the
Board even as far as proceedings under Section 40 are concerned. Section
97 contemplates power with the Government to issue directions to the
F Board in the matter of discharge of its functions. Section 32 deals with
powers and functions of the Board. It may be true that when the Board
discharges its functions under Section 32 it may fall under the shadow of
section 97. The Board may be bound but as far as Section 40 is concerned,
it is meant to be a quasi-judicial proceeding as it is meant to be a
proceeding where an inquiry is to be conducted by the Board to find out
G whether the property of the Trust is to be treated as the property of the
Wakfs.It contemplates issuance of notice, affording an opportunity of
natural justice otherwise as indicated by us. To hold that the Board would
be bound by any direction in either manner, either in favour of the property
being treated as Wakf or the other way around or otherwise may not be
H a correct understanding of the true boundaries of Section 40.
MAHARASHTRA STATE BOARD OF WAKFS v. SHAIKH 589
YUSUF BHAI CHAWLA & ORS.

187. After considering the facts as aforesaid, we would think that A
in the situation obtaining, particularly, after such a long passage of time,
we cannot allow the impugned judgment of the High Court to be sustained
as it is.
188. As far as the incorporation of the Board is concerned, we
have found that it is not flawed. B
Therefore, the judgment of the High Court to the extent that it
sets aside the notification dated 04.01.2002, is found to be unsustainable.
The High Court has through the impugned judgments, set aside
the lists dated 13.11.2003 and 30.12.2004. C
189. We cannot totally be unmindful of the fact that there were
seven members in the Board and also Section 22 appears to work as a
shield against invalidation.
190. In view of the developments post the publication of the list
dated 13.11.2003 and 30.12.2004 in the form of the formation of the D
Bifurcation Committee and various proceedings, we cannot accept the
request of the respondents that the matter must again go back to the
Survey Commissioner who must be asked to look into the proceedings
of the Bifurcation Committee.
191. We must observe that the constitution of the Bifurcation E
Committee and various proceedings thereafter, would appear to be not
proceedings which are strictly within the ambit of the Act as such. There
cannot also be plea of estoppel or equity against Statute.
192. But, at the same time, it would appear that both the Charity
Commissioner and the Wakf Board were indeed proceeding under the F
misapprehension as far as the true purport of a Muslim public Trust
registered under the 1950 Act is concerned.
193. In such circumstances, we dispose of the appeals as follows:
The appeals are partly allowed. G
The judgment of the High Court setting aside the notification dated
04.01.2002, is set aside.
As far as lists dated 13.11.2003 and 30.12.2004 are concerned,
we uphold the said lists subject to the following directions:
H
590 SUPREME COURT REPORTS [2022] 12 S.C.R.

A As far as the writ petitioners in the High Court/respondents before
us which have been registered as public Trusts under the 1950 Act and
whose cases have been found favour with by the Bifurcation Committee,
the lists dated 13.11.2003 and 30.12.2004 will stand set aside. However,
we direct that in regard to them, Board will take up their cases as if the
matter is being dealt with at the stage when it was given the report
B
under Section 5(1) and examine their case after affording them an
opportunity. The Board will afford them an opportunity and take a decision
and if they are found to be Wakfs, it will be open to the Board to cause
a list of Wakfs published/ regard them also.
Still further, this is made conditional upon the respondents-writ
C petitioners as aforesaid approaching the Wakf Board within the period
of eight weeks from today.
Such of those who do not approach within the period of eight
weeks will forfeit their right and we make it clear that their inclusion in
the list dated 13.11.2003 or 30.12.2004 shall stand restored and it will be
D treated as final.
Still further, we direct that in regard to such of those who approach
the Board within the period as aforesaid, the Board will conclude the
proceedings and take a decision expeditiously within a period of six months
from the date on which they apply.
E
We further make it clear that this order will not enure to the benefit
of such of those falling within the category against whom the Tribunal
has already adjudicated and found them to be Wakfs. Needless to say
such of those institutions will be free to work out their own remedies.

F Interim order dated 11.05.2012 operating since last 10 years will
operate till the time decision is taken by the Board.
We make it clear that the judgment will not in any manner dilute
the power which is available to the Wakf Board under Section 40 or for
that matter under any other provision of the Act.
G Parties will bear their respective costs.

Bibhuti Bhushan Bose Appeals partly allowed.
(Assisted by : Rahul Rathi, LCRA)

H