[2022] 12 S.C.R. 482

A
B
C
D
E
F
G
H
482
SUPREME COURT REPORTS
[2022] 12 S.C.R.
482
MAHARASHTRA STATE BOARD OF WAKFS
v.
SHAIKH YUSUF BHAI CHAWLA & ORS.
(Civil Appeal Nos. 7812-7814 of 2022)
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
and a Wakf – Discussed – Held: What was once a Wakf before the
1950 Act, if it is registered under the 1950 Act, with the
commencement of the Act, such a public Trust would necessarily
come under the ambit of the Wakf Act, 1995 – There are public
Trusts registered under the 1950 Act which are in fact, Wakf which
fall under s.28 of the 1950 Act – They must come within the regime
of the Central Act viz., the Wakf Act, 1995 – Conversely, a Muslim
Public Trust registered under the 1950 Act need not be a Wakf under
the Act – It would be certainly contrary to the unbroken line of
Supreme Court judgments which contemplate such a division between
two categories to paint all Muslim public Trusts with the same brush
and glean them as Wakfs – While it is open to a Muslim to create a
Wakf and ordinarily, there would be the prospect of a reward for
dedicating property by way of Wakf, it would be entirely left to a
Muslim to take a decision as to whether he should adopt the device
provided by an English Trust or make the familiar dedication by
way of Wakf – As to whether an institution is a Wakf or a public
Trust is a mixed question of fact and law – This means it becomes a
duty of whosoever upon whom the duty falls, to ascertain whether
it is either and to carefully attend to the terms of the document by
which the Trust is evidenced if there is such a document and find
the facts and thereafter the law must be applied – It is a matter to be
tested on a conspectus of various features and after complying with
the law as to whether what is registered as a public Trust is, in fact,
a Wakf or not – All public Trusts which have been registered by way
of a deeming provision u/s.28 of the 1950 Act will necessarily have
to be treated as Wakfs – This is on the principle that once a Wakf is
created unless it be a case where the title is extinguished by way of
[2022] 12 S.C.R. 482

A
B
C
D
E
F
G
H
483
exercise of power of eminent domain by the State, the title of the
Almighty though by implication cannot cease.
Wakf Act, 1995 – Wakf – Constituent elements of – Held: The
first indispensable requirement is that there must be dedication –
Dedication must be by a person who is the owner of the property –
Dedication must be permanent – Permanent means that it cannot be
for a period of time; it must be perpetual – A Wakf can be created
by a Will also – When a Wakf is created by a Will it is open to the
Wakif to revoke the will prior to his death – Save as aforesaid, a
Wakf cannot be revoked – A Wakf, again meaning the property
which is the subject matter of a Wakf cannot be alienated – The
object of the Wakf must be such that it is approved by the Muslim
law – The object must be religious, pious or charitable – It is not a
concept of piety religiousness or the charitable nature in the eyes
of the entire world but what is in consonance with Muslim law –
There is no prescribed mode of dedication – A Wakf need not be in
writing – As far as declaration is concerned, it can be inferred from
conduct – A Wakf, as defined includes Wakf by user – A Wakf can
be created for attaining a public utility – The public utility must,
however, be for an object sanctioned by Muslim law – Subject to
said conditions, irrespective of whether the beneficiaries are Muslims
or not, there could be a valid Wakf .
Wakf Act, 1995 – s.4 – Survey under the Act – Held: The
making of survey is not a mere administrative act but it is to be
informed by a quasi-judicial inquiry – Also, the surveyor has the
power to find whether a particular institution is a Wakf.
Constitution of India, 1950 – Art. 226 – Power under –
Exercise of – Effect of alternate re

…