The Gujarat High Court has held that a Muslim trust registered under the Bombay Public Trust Act can be treated as a waqf under Section 43 of the Waqf Act, 1995.
A division bench of Justice Ilesh J Vora and Justice R T Vachhani rejected the claim of Muslim Kuza Farosh Jamat Trust that it was only a charitable trust and that the Gujarat State Waqf Board had already declared in 2011 that it was not a waqf.
The court said the 2011 communication from the Waqf Board’s CEO did not show that a proper inquiry had been conducted before reaching that conclusion.
Trust Registered Before Waqf Act
The trust was registered with the Charity Commissioner, Ahmedabad, on October 15, 1952, under the Bombay Public Trust Act, 1950. Its stated objectives included the “general welfare and for education of its community and Jamat”.
In 1953, the Charity Commissioner, Bombay, recognised the Jamat as a public charitable trust. The registration continued until the Waqf Act, 1995 came into force.
After the 1995 law was enacted, the trust’s records were transferred to the Gujarat State Waqf Board under Section 43 of the Act.
The trust later asked the Waqf Board to remove its name from the list of waqfs. In 2011, the then CEO accepted the request and said the trust was not a waqf under the Act. The records were sent back to the Charity Commissioner.
The Waqf Board later again treated the entity as a waqf. The trust challenged the decision before the Gujarat State Waqf Tribunal, but the tribunal rejected its plea.
Court Explains Section 43
The High Court referred to Section 43 of the Waqf Act, which provides that waqfs registered under an earlier law before the 1995 Act came into force are deemed to be registered under the Waqf Act.
The bench said that because the trust had already been registered under the Bombay Public Trust Act and was covered by the relevant provisions, Section 43 applied to it.
“Since the appellant Trust Jamat has already been registered for the purpose as enshrined therein… the provisions of Section 43 of the Waqf Act do apply to the facts of the case,” the court said.
The court also rejected the trust’s argument that the 2011 decision by the Waqf Board CEO amounted to a proper inquiry under Section 40 of the Waqf Act.
No Record of Proper Inquiry
The court said the April 27, 2011 communication could not be treated as a decision reached after a “thorough inquiry”.
According to the bench, the letter did not explain what inquiry had been conducted by the then CEO before concluding that the trust was not a waqf.
“Therefore, the status of the trust remained the same as it falls under the provisions of Section 43 of the Waqf Act,” the court held.
The court also noted that the Waqf Board had subsequently issued a certificate in November 2017 treating Muslim Kuza Farosh Jamat Trust as a waqf or trust falling within its jurisdiction.
Appeal Dismissed
The trust had also argued that the Waqf Tribunal did not have jurisdiction to decide whether it was a waqf or a trust.
The High Court rejected this argument, noting that the trust had participated in the tribunal proceedings and could not later question its authority.
“Much has been emphasized” by the appellant regarding the tribunal’s jurisdiction, the court observed, but noted that the trust had itself approached the tribunal and participated in the proceedings.
The Gujarat High Court ultimately dismissed the appeal and upheld the Waqf Board’s decision treating Muslim Kuza Farosh Jamat Trust as a waqf within its jurisdiction.
