MAHARASHTRA STATE BOARD OF WAKFSversusSHAIKH YUSUF BHAI CHAWLA & ORS.

                       [2012] 5 S.C.R. 1014


A         MAHARASHTRA STATE BOARD OF WAKFS
                                 V.
             SHAIKH YUSUF BHAI CHAWLA & ORS.
      (Special Leave Petition (C) Nos.31288-31290 of 2011)
                           MAY 11, 2012
B
          [ALTAMAS KABIR, J. CHELAMESWAR AND
                   RANJAN GOGOi, JJ.]
        WAKF ACT, 1995: s.112 - Writ petitions before High
  Court challenging formation of Maharashtra State Board of
C Wakfs and notification issued by Board publishing list of
  Wakfs in the State of Maharashtra - High Court allowed the
  writ petitions with direction that until a new Board is
  incorporated under the 1995 Act and the Board started
  functioning in accordance with the 1995 Act, the provisions
D of the Bombay Public Trusts Act would apply to such Muslim
  Public Trusts as are registered under the Bombay Public
   Trusts Act and the Charity Commissioner would continue to
  administer the Muslim Wakf properties - Further, State
  Government was given liberty to take steps to make such
E interim' arrangements to monitor and supervise the Wakf
  properties and other related aspects under the 1995 Act -
  Special leave petitions - Whether High Court has jurisdiction
  to make such orders in the writ jurisdiction and particularly to
  vest the management of all Wakf properties in the Charity
F Commissioner in view of the provisions of s. 112 and in
  particular sub-section (3) thereof of the 1995 Act - Held: The
  Wakf Board was constituted under the provisions of the 1995
  Act, but not at full strength as envisaged in ss. 13 and 14 of
  the said Act - Whatever may be the reason, the factual
G position is that there is no properly constituted Board of Wakfs
  functioning in the State of Maharashtra - At the same time,
  the administration of Wakfs in Maharashtra cannot be kept
  in vacuum - Although, it cannot be said that the Bombay
  Public Trusts Act was a corresponding law and, therefore,
H                               1014
   MAHARASHTRA STATE BOARD OF WAKFS v.                   1015
        SHAIKH YUSUF BHAI CHAWLA

stood repealed, it cannot also be said that the same would        A
be applicable to Wakf properties which were not in the nature
of public charities - There is a vast difference between Muslim
Wakfs and Trusts created by Muslims which was overlooked
by High Court and orders were passed by High Court without
taking into consideration the fact that the Charity               B
Commissioner would not ordinarily have any jurisdiction to
manage the Wakf properties - In these circumstances, it would
be in the interest of all concerned to maintain the status quo
and to restrain all those in management of the Wakfproperties
from alienating and/or encumbering the Wakf properties            c
during the pendency of the proceedings before this Court -
Directions passed that in relation to Wakf properties, as
distinct from Trusts created by Muslims, all concerned,
including the Charity Commissioner shall not permit any of
the persons in management of such Wakf properties to either       0
encumber or alienate any of the properties under their
management, till a decision is rendered in the pending
special leave petitions - Bombay Public Trusts Act, 1950.

    CIVIL APPELLATE JURISDICTION: SLP (C) No. 31288-
31290 of 2011 etc.                                                E

    From the Judgment & Order dated 21.09.2011 of the High
Court of Judicature at Bomaby in Writ Petition No. 2906 of
2004, 899 and 357 of 2011.
                            WITH                                  F
SLP (C) Nos. 32129-32131, 32636, 35196 and 35198 of
2011.

      R.F. Nariman, S.G., Ranjit Kumar, K.K. Venugopal, Vinod
A. Bobde, P.P. Rao, Yusuf Hatim Muchhala, Dr. Rajeev              G
Dhawan, Sudhanshu S. Choudhari, Javed Shaikh, Sunil
Upadhyaya, Sanjay V. Kharde, Shivaji M. Jadhav, Sachin J.
Patil, Asha Gopalan Nair, Javed R. Shaikh, Mohd. lrshad Hanif,
Mohd. Adeel Siddiqui, Shakil Ahmed Syed, Shuaib-uddin,
Mohd. Parvez Dabas, Moonis Abbasi, Huzefa A. Ahmadi, Ejaz         H
    1016    SUPREME COURT REPORTS                 [2012] 5 S.C.R.


A Maqbool, Sakshi Banga, Mrigank Prabhakar, Apeksha Sharan,
  Garima Kapoor, Sagheer A. Khan, Husnain Kazi, Kavin Gulati,
  Rashmi Singh, Anupam Mishra, T. Mahipal, Aman Vachhler,
  Ashutosh Dubey, Dhiraj, Love K. Sharma, Vriti Anand, P.N. Puri,
  Praveen Kumar, Vinay Navare, Abha R. Sharma, Sana Yusuf
B Baugwala, Chinmoy Khaladkar, V.P. Dube, D.P. Sali, Vimal
  Chandra S. Dave for the appearing parties.

        The order of the Court was delivered by

        ALTAMAS KABIR, J. 1. These several Special Leave
C Petitions have been filed by the State of Maharashtra and other
  parties. While Special Leave Petition (C) Nos.31288-31290,
  Special Leave Petition (C) Nos.32129-32131 and Special
  Leave Petition (C) No.32636', all of 2011, have been fled by
  the Maharashtra State Board of Wakfs, Special Leave Petition
D (C) Nos.35196 and 35198 of 2011 have been filed by the
  Jamait Educational and Welfare Muslim Minority Education
  Society and Maharashtra Muslim Lawyers' Forum.

       2. The Special Leave Petitions are directed against the
E judgment and final order dated 21st September, 2011, passed
  by the Bombay High Court in Writ Petition No.2906 of 2004,
  Writ Petition No.357 of 2011 and Writ Petition (L) No.899 of
  2011. The impugned judgment of the High Court in the
  aforesaid Writ Petitions is the outcome of the challenge to the
  formation of the Maharashtra State Board of Wakfs. As noticed
F by the High Court, the subject matter of all the Writ Petitions,
  and thereby of the Special Leave Petitions, relates to the
  challenge to the incorporation of the Maharashtra State Board
  of Wakfs and its impact upon the Wakfs created by persons
  professing Islam, but belonging to different sects.
G
       3. The Petitioners in Writ Petition No.2906 of 2004 are
  Muslims belonging to the Shia Fatemi lsmaili Tyebia Sect of
  Islam and are Shia Muslims. The Petitioner Nos.1 to 3 in the
  said Writ Petition are trustees of "Sir Adamji Peerbhoy
H Sanatorium" established by a Scheme settled by the Bombay
  MAHARASHTRA STATE BOARD OF WAKFS v.       1017
SHAIKH YUSUF BHAI CHAWLA [ALTAMAS KABIR, J.]

High Court by an order dated 16th June, 1931 in Suit No.1560         A
of 1927. The said Trust is registered as a Public Trust under
the Bombay Public Trusts Act. The Petitioner Nos.4 and 5 are
trustees of the "Anjuman-i-Null-Bazaar Chhabdi Bazar Niaz
Hussein Charitable Trust", which is also registered as a Public
Trust under the Bombay Trusts Act. The Petitioners in Writ           B
Petition No.899 of 2011 are Dawoodi Bohra Muslims and claim
to be Trustees of Noorbhoy Jeewanji Morishwalla Charity Trusts
registered under the Bombay Public Trusts Act. The Petitioners
in Writ Petition (L) No.357 of 2011 are Muslims belonging to
the Shia Fatemi lsmaili Tyebia sect and are also trustees of         c
Sir Adamji Peerbhoy Sanatorium, referred to hereinabove. The
Petitioner in SLP (C) No.35196 of 2011 is a society registered
under the Societies Registration Act, 1860. All the members
of the Trust profess Islam and are persons interested in the
affairs of the Wakf set in question by virtue of the provisions of
                                                                     0
Section 3(k) of the Wakf Act, 1995. Similarly, the Petitioners
in SLP(C) No.35198 of 2011 are a group of Muslim lawyers
who have formed a Forum and are also persons interested in
the management of Wakf properties in terms of Section 3(k)
of the Wakf Act, 1995.
                                                                     E
     4. The grievance of the Writ Petitioners in these five Writ
Petitions is the same. The Petitioners in Writ Petition No.2906
of 2004 have challenged the notification dated 4th January,
2002, issued by the Government of Maharashtra and have also
sought for a direction to the State Government to conduct a          F
fresh survey of Wakfs in the State of Maharashtra. Their further
challenge is to notification dated 13th November, 2003, issued
by the Maharashtra State Board of Wakfs publishing the list of
Wakfs in the State of Maharashtra.
                                                                     G
     5. In Writ Petition No.899 of 2001, the Petitioners have
challenged the Circular dated 24th July, 2002, issued by the
Charity Commissioner of the State of Maharashtra stating
therein that in view of the provisions of Section 43 of the Wakf
Act, 1995, the Wakfs which were registered as Public Trusts          H
    1018         SUPREME COURT REPORTS               [2012] 5 S.C.R.


A would cease to be governed by the provisions of the Public
  Trust Act. It is the case of the Writ Petitioners that because the
  establishment of the Maharashtra State Board of Wakfs by the
  notification dated 4th January, 2002, was itself invalid, they
  continued to be governed by the provisions of the Bombay
B Public Trusts Act.

        6. The Petitioners in Writ Petition No.357 of 2011, have
   challenged the notification issued by the State of Maharashtra .
   on 20th October, 2010, for re-survey of the Wakfs in the State
C ·of Maharashtra. They also sought a direction that the Charity
   Commissioner should continue to supervise the working of the
   Trusts of which they are trustees.

        7. After the Wakf Act, 1995, which came into force on 1st
  January, 1996, was enacted, the State Government issued a
D notification on 1st December, 1997, in exercise of its powers
  under Sub-Section (1) of Section 4 of the Wakf Act, 1995,
  whereby the State Government appointed :-

           (a)    Settlement Commissioner and Director of Land
                  Records, Maharashtra State, Pune, to be Survey
E
                  Commissioner of Wakfs; and

           (b)    Additional Commissioners of Konkan, Nashik,
                  Pune, Nagpur, Amravati and Aurangabad Revenue
                  Divisions to be Additional Survey Commissioners,
F                 for the purpose of making a survey of Wakfs
                  existing on the 1st day of January, 1996 in the State
                  of Maharashtra.
       8. On 4th January, 2002, the Government of Maharashtra,
G by a notification of even date, in exercise of powers conferred
  by Section 14 of the Wakf Act, 1995, established a Board by
  the name of "The Maharashtra State Board of Wakfs" with its
  headquarters at Aurangabad. The Government nominated four
  persons to be members of the State Board, namely :-
H        (a)      Shri Khan Yusuf Sarwar, Member of Parliament
  MAHARASHTRA STATE BOARD OF WAKFS v.        1019
SHAIKH YUSUF BHAI CHAWLA [ALTAMAS KABIR, J.]

            (Rajya Sabha);                                           A
      (b)   Smt. Shabana Azmi, Member of Parliament (Rajya
            Sabha);

      (c)   Shri Harun Aadam Solkar, Muslim Ex-member of
            the Bar Council of the State; and                        B

      (d)   Shri Chand Pasha lnamdar, Member of Muslim
            Organisation;

Thus, by the aforesaid Notification, a Wakf Board was
established for the entire State of Maharashtra with its             C
headquarters at Aurangabad and four persons were named if!
the Notification as members of the said Board.

      9. Pursuant to the notification dated 1st December, 1997,
the officers appointed to conduct the survey, submitted a report     D
to the State Government on 31st January, 2002. Thereafter,
other members were appointed to the Wakf Board by different
notifications. On 24th July, 2003, the Charity Commissioner of
the State of Maharashtra issued a circular directing his office
not to exercise powers under the Bombay Public Trusts Act or         E
to deal with any of the Muslim Public Trusts. The said circular
mentioned that according to Section 43 of the Wakf Act, 1995,
a Wakf registered as a Public Trust should not be administered
or governed under the Bombay Public Trusts Act. Several Writ
Petitions were filed challenging the establishment of the Board      F
and also challenging its constitution and appointment of various
persons as its members. Objections were also filed in Court
challenging the circular issued by the Charity Commissioner.
On 13th November, 2003, the Wakf Board published a list of
Wakfs treating Muslim Public Trusts in Maharashtra and               G
Suburban districts of Maharashtra as Wakfs.

     10. Several Writ Petitions were filed challenging the list of
Wakfs prepared by the Wakf Board which came to be heard
by the Bombay High Court, which set aside the notification
                                                                     H
    1020     SUPREME COURT REPORTS                  [2012] 5 S.C.R.


A dated 4th January, 2002, as also the list of Wakfs prepared and
  published by the Maharashtra State Wakf Board on 13th
  November, 2003. The Survey Officers appointed by notification
  dated 20th October, 2010, were directed to take into
  consideration representations, if any, made by the Petitioners
B and other similarly situated persons connected with the Muslim
  Wakfs, including the list prepared by the Committee constituted
  by the State Government under the chairmanship of the 'Charity
  Commissioner. The Survey Officers were also given the option
  to take into consideration any list of Wakfs, if prepared under
C the Act of 1954. The crucial direction which appears to have
  adversely affected the special leave petitioners is the direction
  that until a new Board or Boards was incorporated under the
  Wakf Act, 1995, and the Board started functioning in
  accordance with the provisions of the Wakf Act, the provisions
  of the Bombay Public Trusts Act would apply to such Muslim
D Public Trusts as are registered under the Bombay Public Trusts
  Act. The High Court made it clear that although the notification
  dated 4th January, 2002, had been set aside, none of the
  actions taken or orders passed by the Wakf Board constituted
  by the notification dated 4th January, 2002, had been
E challenged or set aside by virtue of the said order. By the
  impugned order, the State of Maharashtra was given the liberty
  to take steps to make such interim arrangements, as may be
  advised, to monitor and supervise the Wakf properties and
  other related aspects under the Wakf Act. It was also stipulated
F that the decision and/or action already taken, including the
  pending disputes and litigations would be governed by the
  Wakf Act, 1995.

       11. As far as Writ Petition (L) No.357 of 2011 is concerned,
G the Division Bench clarified that by the judgment in question it
  had not considered the reliefs claimed with regard to the list of
  Wakfs dated 13th December, 2004. Accordingly, the
  Petitioners were given the liberty either to file a fresh petition
  claiming such relief, or to claim the said relief in other pendil')g
H
  MAHARASHTRA STATE BOARD OF WAKFS v.       1021
SHAIKH YUSUF BHAI CHAWLA [ALTAMAS KABIR, J.]

matters.                                                             A

    12. It is these directions issued by the Division Bench of
the Bombay High Court which have led to the filing of the
present Special Leave Petitions.

      13. One of the facets of the dispute, which was thrown up      B
during the hearing regarding continuance of the interim order
in a modified form is the creation of Wakfs under the Muslim
law and the creation of Trusts by persons professing the Muslim
faith, which were not in the nature of Wakfs, but in the nature of
English Trusts.                                                      C

      14. Prior to the enactment of the Wakf Act, 1995, the
Central Wakf Act, 1954, was in force, but did not apply to some
of the States which had Special Acts of their own, such as Uttar
Pradesh, West Bengal, parts of Gujarat and Maharashtra and           D
some of the North-Eastern States. The said States continued
to be governed by their own Special statutes, which provided
for the administration of Wakfs in their respective States. To
do away with the disparity of the law relating to Wakfs in
different States, the Central Government enacted a uniform law       E
to govern all Wakfs in the country, which led to the enactment
of the Wakf Act, 1995, whereby all other laws in force in any
stage corresponding to the said Act, stood repealed.

     15. The judgment and order of the High Court having been
challenged in these various Special Leave Petitions, on 29th         F
November, 2011, when the matters were taken up, we had
directed notices to issue in the different Special Leave Petitions
and in the meantime directed that the stay granted by the High
Court on 21st Sep(ember, 2011, in respect of its judgment,
would remain operative.                                              G

     16. Thereafter, these matters have been taken up to
consider whether such interim order of stay should be allowed
to continue, but in a modified manner on account of the fact that
by staying the operation of the final judgment, the interim orders   H
    1022     SUPREME COURT REPORTS                [2012] 5 S.C.R.


A passed by the High Court were revived, thereby rendering the
  stay order meaningless.

        17. While considering the three sets of Special Leave
  Petitions, Special Leave Petition (Civil) Nos.32129-32131 of
B 2011, filed by the State of Maharashtra, were taken up for
  consideration first.

        18. Appearing for the Petitioner State of Maharashtra, Mr.
   Rohington Nariman, learned Solicitor General for India,
  submitted that the only thing which was required to be
C considered for a decision as to whether the interim order shall
  continue, was whether a prima facie case had been made out
  for grant of interim injunction to preserve the status quo ante
  which prevailed before the coming into operation of the Wakf
  Act, 1995. Mr. Nariman urged that the provisions of the Wakf
D Act, 1954, and the Bombay Public Trusts Act, in relation to
  Wakf properties, stood repealed by virtue of Section 112 of the
  1995 Act. Mr. Nariman submitted that Section 112 of the 1995
  Act, which dealt with repeal and savings, clearly indicated that
  if immediately before the commencement of the Act in any
E State, there was in force in that State any law which
  corresponded with the 1995 Act, that corresponding law would
  stand repealed. The learned A.S.G. submitted that in the instant
  case, the corresponding law to the Wakf Act, 1995, when it
  came into force, was the Maharashtra Wakf Act and the
F provisions of the Bombay Public Trusts Act which became
  ineffective on account of the provisions of Section 112(3) of the
  1995 Act. With the repeal of the said two provisions, it was for
  the Board of Wakfs established under the 1995 Act to continue
  in management of the Wakf properties and the judgment of the
G High Court setting aside the establishment of Board could not
  resurrect the authority of the Charity Commissioner over such
  properties. In fact, after the promulgation of the Wakf Act, 1995,
  the Charity Commissioner ceased to have any control over
  Muslim Wakfs, even if they had been registered with the Charity
  Commissioner as Public Trusts. Mr. Nariman submitted that at
H
  MAHARASHTRA STATE BOARD OF WAKFS v.        1023
SHAIKH YUSUF BHAI CHAWLA [ALTAMAS KABIR, J.]

this interim stage only a prima facie view has to be taken as       A
to whether the interim order passed by this Court was to be
continued, pending the hearing of the Special Leave Petitions.

      19. On the other hand, Dr. Rajiv Dhawan, Senior Advocate,
and other learned counsel who appeared for some of the
Respondents, urged that the learned Solicitor General had not       B
made any submission with regard to the balance of
convenience and inconvenience and only confined himself to
the question of whether a prima facie case has been made out
for continuance of such interim injunction. Learned counsel
submitted that the matter had already been dealt with earlier       C
and the order which was passed on 30th November, 2011,
continuing the stay granted by the Bombay High Court on 21st
September, 2011, was based on consent. Furthermore, only
three of the parties had appeared before this Court. It was
further submitted that although there were several sales            D
transactions involved which were to be considered by the
Charity Commissioner, only three of the parties were before the
Court and the parties which were also likely to be affected by
any order passed in these matters should also be given an
opportunity of hearing, particularly because the prayer which had   E
been asked for by way of interim relief was in fact the main
relief itself. It was urged that till 4th January, 2002, when the
Board came into existence under the 1995 Act, there was no
Wakf Board and even the Board created at a later stage was
wholly illegal.                                                     F

     20. The main thrust of the submissions made on behalf of
the respondents was that the circular issued by the Charity
Commissioner relinquishing its authority over the Trusts created
by Muslims, did not attract the provisions of the Wakf Act, 1995,   G
which dealt with Wakf properties only and was not, therefore,
entrusted with the jurisdiction over such Wakfs. It was also
submitted that the Bifurcation Committee which had been
created for the purpose of separating Wakfs from Trusts and
Shia and Sunni Wakfs, was an extra-legal Committee which
                                                                    H
    1024    SUPREME COURT REPORTS                [2012) 5 S.C.R.


A was not contemplated under the provisions of the Wakf Act.
  According to Dr. Dhawan, the classification of Wakfs as "Shia"
  or "Sunni" or any dispute regarding whether a Wakf is existing
  or not, could only be decided by the Wakf Tribunal under
  Sections 6 and 7 or by the Wakf Board under Section 40 of
B the Wakf Act, 1995.

        21. On 4th September, 2008, the State of Maharashtra·
  issued a notice appointing 7 members to the Board, but the
  said notification was struck down by the Bombay High Court
  and the strength of the Board of Wakfs was reduced to four
C members. This was followed by a notification issued by the
  Wakf Board on 23rd February, 2008, cancelling its corrigendum
  notification dated 5th May, 2005, seeking to amend the list of
  Wakfs dated 13th November, 2003, thereby retaining its control
  over the said Wakf estates indicated in the first list published
D earlier. Dr. Dhawan urged that once the order passed was
  agreed to by the parties, there could be no further question of
  passing any interim order to stay the effect of the order of the
  High Court passed on 21st September, 2011.

E      22. Dr. Dhawan urged that since the survey of the Wakfs
  and the various denominations in respect thereof, was yet to
  be completed, and even the Board of Wakfs had not been
  properly constituted in accordance with Sections 13 and 14 of
  the 1995 Act, the provisions of Section 22 of the Act, which
F provides that no act or proceeding of the Board shall be invalid
  by reason only of the existence of any vacancy amongst its
  members or any defect in the constitution thereof, would not be
  attracted. Learned counsel submitted that Section 22 of the Act
  would come into operation only after the Board had been duly
  constituted but not when the Board was yet to be constituted. It
G was submitted that since the Wakf Board had not been
  constituted fully, the list of Wakfs published by it cannot be
  accepted or relied upon. It was submitted that the interim order
  passed by the High Court did not require any interference in
  these proceedings even at the interim stage.
H
  MAHARASHTRA STATE BOARD OF WAKFS v.       1025
SHAIKH YUSUF BHAI CHAWLA [ALTAMAS KABIR, J.]

     23. Mr. Salve, learned senior counsel appearing for the           A
Respondents Nos. 1,2 and 3 in SLP (C) No. 31288 of 2011,
submitted that during the pendency of the Special Leave
Petition in this Court, Wakf properties should not be permitted
to- be alienated by either the Board of Wakfs or the Charity
Commissioner, though, as far as Public Trusts are concerned,           B
they should not be treated as Wakfs, since the genesis of their
existence was not under the law relating to Wakfs, but as
English Trusts which are governed by the Indian Trusts Act.

       24. Referring to paragraph 13 of the Special Leave
Petition in SLP(C)Nos.31288-31290 of 2011, Mr. Salve                   C
submitted that the power to establish a Board of Wakfs was
vested in the State Government under Section 13 of the Wakf
Act, 1995 and Sub-Section (2) thereof lays down the manner
in which the power is to be exercised by the State Government.
Mr. Salve pointed out that this provision provided for the             D
appointment of two Boards, one, a Sunni Board and the other,
a Shia Board, depending on the number of Wakfs belonging
to the two denominations. Accordingly, one would have to wait
till a survey, as contemplated under Section 4 of the Wakf Act,
1995, was completed. Mr. Salve submitted that ft would,                E
therefore, be best to preserve the status quo until a final decision
was taken in the Special Leave proceedings.

      25. Mr. Y.H. Muchhala, learne(:I Senior Advocate, who
appeared for Anjuman-i-lslam, adopted the submissions made             F
by Mr. P.P. Rao, Dr. Dhawan and Mr. Salve, but submitted that
in the absence of a validly constituted Board of Wakfs, the Wakf
Act, 1995, could not be said to have come into force in
Maharashtra which continued to be governed by the State
Government. Mr. Muchhala urged that for the purpose of                 G
management of the Wakfs within the State of Maharashtra, the
system of management prevailing prior to the enactment of the
1995 Act would continue to remain in operation.

     26. Having considered the submissions made on behalf
of the respective parties, we are restricting ourselves at this        H
    1026     SUPREME COURT REPORTS                [2012] 5 S.C.R.


A   interim stage to the broad outlines of the case made out by the
    respective parties and whether, in the background of tr.e facts
    disclosed, the stay granted by the Bombay High Court on 21st
    September, 2011 should continue in a modified form.

B       27. Broadly speaking, the grievance of .the Petitioners in
  these Special Leave Petitions is with mgard to the vesting of
  powers of management and supervision of Muslim Wakf
  estates in Maharashtra in the Charity Commissioner by virtue
  of the impugned order of the High Court. Undoubtedly, the Wakf
  Board was constituted under the provisions of the Wakf Act,
C 1995, but not at full strength as envisaged in Sections 13 and
  14 of the aforesaid Act. Whatever may be the reason, the
  factual position is that today there is no properly constituted
  Board of Wakfs functioning in the State of Maharashtra. At the
  same time, the administration of Wakfs in Maharashtra cannot
D be kept in vacuum. The Bombay High Court did what it thought
  best to ensure that there was no vacuum in the administration
  of Wakf properties in Maharashtra by directing that till such time
  the Board was properly constituted, the Charity Commissioner
  would continue to administer the Muslim Wakf properties,
E including English Trust properties, which had already been
  registered as Trust properties with the Charity Commissioner
  under the Bombay Public Trusts Act. As a corollary, the list of
  Wakfs published by the truncated Board of Wakfs was also set
  aside by the Bombay High Court. The question is whether the
F Bombay High Court had the jurisdiction to make such orders
  in the writ jurisdiction and particularly to vest the management
  of all Wakf properties in the Charity Commissioner in view of
  the provisions of Section 112 and in particular Sub-Section (3)
  thereof of the Wakf Act, 1995.
G
        28. Section 112 concerns repeal and savings. By virtue
  of the said provision, the 1954 Wakf Act and the 1984 Wakf
  (Amendment) Act were repealed. Sub-Section (3) specifically
  provides as follows :-

H
  MAHARASHTRA STATE BOARD OF WAKFS v.         1027
SHAIKH YUSUF BHAI CHAWLA. [ALTAMAS KABIR, J.]

      "112. Repeal and Savings. .. . . .. . .. .. . ... ... .. . .. . .. . .   A
      (1)    )()()( )()()(         )()()(

      (2)    )()()(   )()()(      )()()(


      (3)    If immediately before the commencement of this                    B
             Act, in any State, there is in force in that State, any
             law which corresponds to this Act, that
             corresponding law shall stand repealed."

     Although, it cannot be said that the Bombay Public Trusts                 C
Act was a corresponding law and, therefore, stood repealed,
it cannot also be said that the same would be applicable to
Wakf properties which were not in the nature of public charities.
There is a vast difference between Muslim Wakfs and Trusts
created by Muslims. The basic difference is that Wakf                          D
properties are dedicated to God and the "Wakif' or dedicator,
does not retain any title over the Wakf properties. As far as
Trusts are concerned, the properties are not vested in God.
Some of the objects of such Trusts are for running charitable
organisations such as hospitals, shelter homes, orphanages
and charitable dispensaries, which acts, though recognized as                  E
pious, do not divest the author of the Trust from the title of the
properties in the Trust, unless he relinquishes such title in favour
of the Trust or the Trustees. At times, the dividing line between
Public Trusts and Wakfs may be thin, but the main factor always
is that while Wakf properties vest in God Almighty, the Trust                  F
properties do not vest in God and the trustees in terms of Deed
of Trust are entitled to deal with the same for the benefit of the
Trust and its beneficiaries.

    29. In the present case, the difference between Trusts and                 G
Wakfs appear to have been overlooked and the High Court has
passed orders without taking into consideration the fact that the
Charity Commissioner would not ordinarily have any jurisdiction
to manage the Wakf properties.
                                                                               H
    1028     SUPREME COURT REPORTS                [2012] 5 S.C.R.


A      30. In these circumstances, in our view, it would be in the
  interest of all concerned to maintain the status quo and to
  restrain all those in management of the Wakf properties from
  alienating and/or encumbering the Wakf properties during the
  pendency of the proceedings before this Court. The order of
B the High Court staying the operation of its judgment has led to
  the revival of interim orders which have rendered such stay
  otiose. The said order of stay cannot also be continued during
  the pendency of these proceedings in its present form.

C      31. Accordingly, at this stage, we direct that in relation to
  Wakf properties, as distinct from Trusts created by Muslims,
  all concerned, including the Charity Commissioner, Mumbai,
  shall not permit any of the persons in management of such
  Wakf properties to either encumber or alienate any of the
  properties under their management, till a decision is rendered
D in the pending Special Leave Petitions.

    D.G.                                           Matter pending.