Antilia Link to India’s top law Officer’s Protest

Antilia, the 27-storey house of Reliance Group chairman and the country’s second-richest man Mukesh Ambani and his family—built at a cost of Rs 15,000 crore—is one of the most recognisable buildings in the South Mumbai skyline and reportedly the most expensive private residence in the world.

Since its construction in the mid-2000s, Antilia has also been the subject of a long-running dispute over the legal validity of the sale of the land on which it stands, which earlier belonged to an orphanage of the Khoja Muslim community. The case, which is in the Supreme Court (SC), was the subject of an unusual controversy in August that largely went unreported by the media.

On August 1, attorney general (AG) KK Venugopal wrote a stern letter of protest to the SC registrar claiming that a “serious…attempt” had been made to “interfere in the due administration of justice” in a case before the apex court involving the Wakf Board of Maharashtra. In a follow-up letter sent to the apex court’s secretary general on August 8, he wrote that it appeared to him that there was an effort to ensure that he did not argue the case.

While the AG’s letters received some coverage in the press, what has gone unreported is the link between the controversy and Antilia.

Venugopal’s second letter suggests that the “beneficiaries” of the sale of Wakf-held lands to third parties might be “behind the events that have transpired…[and are] bent upon ensuring that the attorney general does not argue this case”. 

One such beneficiary is Antilia Commercial Private Limited, the Reliance Group company that owns the land on which Antilia was constructed. The sale of the land by the Currimbhoy Ebrahim Khoja Orphanage Trust in 2002 is the subject of the legal dispute. The case has been clubbed with the Wakf Board of Maharashtra case, which Venugopal’s letter referred to. The outcome of the Wakf Board case will determine whether the sale of the land is legal or not. 

Notably, the controversy arose after senior advocate Harish Salve, who often represents Reliance Group companies, sought an urgent hearing in another related matter soon after the Maha Vikas Aghadi (MVA) government of Congress, Nationalist Congress Party and Shiv Sena, led by Uddhav Thackeray, fell and was replaced by an alliance of the Bharatiya Janata Party (BJP) and a faction of Shiv Sena rebels led by current chief minister Eknath Shinde. But let us start from the beginning.

Is Maharashtra Wakf Board legally constituted?

The genesis of the dispute goes back to the mid-1990s. In 1995, the Union government passed The Wakf Act, which specified a legal framework to govern wakfs—defined by the Act as a “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”.

The Act called for state governments to carry out a survey to identify all the institutions that qualify as wakfs, and to constitute Boards of wakfs at the state level to act as their regulator. The concerned Board would take over this role from any other public body that earlier served a similar role, such as a state’s charity commissioner.

In this instance, the Maharashtra government appointed a panel of government officials to survey wakfs in the state on January 1, 1997. As the survey neared completion, the state government duly constituted the Maharashtra State Board of Wakfs on January 4, 2002, initially with four members. Subsequent notifications issued in 2002 and 2003 appointed several more members to the Board. The completed survey report was submitted to the state government on January 31, 2002. 

On November 13, 2002, the Wakf Board published a list of wakfs that come under its jurisdiction. Thereafter, the Maharashtra charity commissioner—a post set up under the Bombay Public Trusts Act, 1950—issued a notification declaring the transition of jurisdiction. The notification, issued on July 24, 2003, stated that wakfs registered as public trusts would cease to be governed by the provisions of the Public Trusts Act. 

Several petitions, mostly by trustees of various wakfs in the state, challenging the legality of the constitution of the Wakf Board were filed before the Bombay High Court (HC). The petitions argued that under the Wakf Act, the Board could only be constituted after the survey of wakfs was concluded and that by setting up the Board before receiving the survey report, the state government had violated the Act. Further, they argued that under the Act, the Board had to be constituted with, at least, seven members to begin with. 

The petitioners also challenged the charity commissioner’s notification and the list of wakfs published by the Board. Finally, and crucially, they argued that as long as the Wakf Board was not legally reconstituted, the wakfs should continue to be governed by the Public Trusts Act and come under the charity commissioner’s jurisdiction.

Alleged ‘Mischief’ in Sale of Wakf Land to Reliance

The last contention in particular wherein the HC petitioners sought that the charity commissioner’s jurisdiction over wakfs be reinstituted until a new wakf board is legally constituted was critical for those wakfs in particular that had sold their land or property in the period after the constitution of the Wakf Board. 

The orphanage was one such wakf and was one of the petitioners before the HC advancing these arguments. The circumstances in which the orphanage sold its land were clarified in an affidavit submitted to the HC by the CEO of the Wakf Board filed in August 2017 in a public interest litigation that challenged the sale of the orphanage land to Reliance.

That affidavit explained that the trustees of the orphanage had applied to the charity commissioner on April 4, 2002, seeking permission to sell its land to the Reliance Group company. The charity commissioner granted its permission on August 27, 2002. Note that, this is after the Wakf Board had already been constituted and the survey of wakfs, which included the orphanage, had been completed. 

The affidavit continues to state that the Wakf Board issued a notice on April 22, 2004, to both the orphanage and the Reliance Group company asking why action should not be taken against them under the Wakf Act for not seeking the permission of the Wakf Board before the sale. 

A suit was filed at the Wakf Tribunal against this notice in response by the orphanage. “During the pendency of the suit, the the-chairman of the Wakf Board, who was a political person, settled the matter…and it was decided that the Trustees would accept that the said Trust is a wakf and wakf fund as is applicable…would be paid to the Wakf Board,” the affidavit states. 

While the Trustees agreed and made the payment, a “mischief was committed by the then-chairman and the then-CEO” of the Board”, the affidavit says, “by passing a resolution dated 9 March, 2005, retrospectively ratifying the sale of the land. Thereafter, the Trust also played mischief by filing Writ Petition…challenging the list of wakfs stating that the said trust is not a wakf”.

That affidavit clarified the stand of the Wakf Board in the following manner: “… the permission granted by the charity commissioner to the sale on August 27, 2002, the sale dated November 21, 2002, and its ratification by resolution dated March 9, 2005, are illegal on the ground that…it is against the provisions of Wakf Act as no prior sanction from the wakf board was taken, the resolution…requires 2/3rd majority, which was not there and the permission requires to be published in an official gazette, which was not done. Therefore, the ratification is illegal and the properties need to be restored.”

Keep this argument in mind as we move on with the narrative. 

Bombay HC Annuls Wakf Board, Restores Charity Commissioner’s Jurisdiction

A Division Bench of the HC comprising Justices DK Deshmukh and Anoop V Mohta issued its verdict on the petitions challenging the constitution of the Wakf Board on September 21, 2011.

The verdict, which granted all of the petitioners’ pleas, found that the decision by the Maharashtra government to constitute the Wakf Board before receiving the report of the survey of wakfs was incorrect. The court held that this was because it would have been necessary for the government to consider the findings of the survey to determine whether separate Boards needed to be established for Shia wakfs and Sunni wakfs.

By constituting the Board before it had received the survey report, the government precluded this possibility as there was no legal provision to bifurcate the Wakf Board once it was established, the court observed. On this ground, the court set aside the notification of January 4, 2002, which had incorporated the Wakf Board. 

The court also noted that at the time of its constitution, the Board had only four members, and by the time of pronouncing its verdict, only two. This, the court held, was not in accordance with the Wakf Act, which calls for a minimum of seven members.

Then, on the list of wakfs published by the Board, the court noted that a Joint Parliamentary Committee on wakf had noted various discrepancies in the process of conducting the survey, which led to the production of the list. With the survey being found “defective”, the court set aside the list so produced.

Finally, on the question of restoring the charity commissioner’s jurisdiction, established under the Bombay Public Trust Act, the court held that without the machinery of the Wakf Act being operative, there would be a vacuum with the affairs of the wakfs not being regulated by any authority.

Therefore, the court held that it would be in the public interest for the provisions of the Bombay Public Trust Act to apply until the Wakf Board is properly established, incorporated and constituted under the provisions of the Wakf Act and becomes operative. Thus, the verdict effectively reinstituted the jurisdiction of the charity commissioner over Maharashtra’s wakfs.

Significantly, this judgment allowed the sale of wakf properties to different buyers authorised by the charity commissioner, including the sale of the orphanage land to the Reliance Group company.

This HC verdict was on a clutch of petitions filed by various petitioners who had argued on largely the same grounds. It did not, however, include the petition filed by the orphanage. 

That petition was ruled on in a later verdict issued by Justices SC Dharmadhikari and BP Colabawalla on August 26, 2015. That verdict noted that the issue at hand was identical to that dealt with in the earlier verdict and stated that it was the result of “some inadvertence on the part of the parties or the (court) registry” that led to the case not being heard along with the other petitions. 

This verdict ruled that the same directions issued in the earlier verdict applied to this case as well. By this point, however, the case had moved on to the SC, where the Maharashtra Wakf Board had filed an appeal.

Supreme Court stay order

The SC’s first action while hearing the Maharashtra Wakf Board’s appeal was to stay parts of the HC’s order in an interim ruling issued by Justices Altamas Kabir, Jasti Chelameswar and Ranjan Gogoi on May 11, 2012.

Specifically, the apex court’s interim order held that the HC verdict had overlooked the difference between a Muslim wakf and Trusts created by Muslims. The basic difference, the court said, is that wakf properties are dedicated to God, and the “wakif”, or dedicator, does not retain any title over wakf properties.

As far as Trusts are concerned, the SC observed, the properties are not vested in God. Though some of the objects of such Trusts are for running charitable organisations, such as hospitals, shelter homes, orphanages and charitable dispensaries, which are recognised as pious, they still do not divest the author of the Trust from the title of the properties in the Trust unless they relinquish such a title in favour of the Trust or the Trustees.

Due to this conceptual distinction, the apex court held that the charity commissioner would not have any jurisdiction over o management of wakf properties. Thus, the HC decision vesting vest the charity commissioner with jurisdiction over them was invalid in law. In these circumstances, the court held that the status quo should be maintained with regard to all wakf properties in the state.

The SC ordered that no wakf properties could be bought or sold until it ruled on the original issue. This ruling applied only to those properties that qualified as wakfs and did not include Trusts created by Muslims that did not qualify.

Notably, by this point, eminent senior advocates and law officers of the government had started arguing the case from both sides. Senior advocates Harish Salve and Rajeev Dhawan were among the advocates who appeared for the respondents, i.e. the various wakfs that had petitioned the HC, while Rohinton Nariman, then-solicitor general of India appeared for the Maharashtra State Board of Wakfs.

This stay order continues to be in force while hearings in the case have continued over the past decade.

Let us now return to the present and Venugopal’s letters.

An Unexplained Urgency

In June, a political crisis gripped Maharashtra with the Shinde faction breaking away from the MVA. By month-end, the faction allied with the BJP and taken over the reins of power in the state. This episode formed the backdrop for a series of sudden moves in the Wakf Board case, the genesis of which are unexplained.

First, on July 14, Salve “mentioned” one of the cases that is part of the clutch of appeals being heard by the SC. He sought an urgent hearing to decide upon the legal question of whether every charitable trust set up by a Muslim is to be considered a wakf or can the general law of charity outside wakf be applicable.

In his August 8 letter, Venugopal wrote that “the matters have been pending from the year 2011 and the transferees were all in peaceful possession of the properties that they had purchased…it did not appear that there was any urgency whatsoever as no one’s possession was being sought to be disturbed.” He added that “by looking at the issue (raised by Salve), one would find it difficult to find any urgency and what prompted the matter to be taken up for urgent disposal”.

It is worth noting that Venugopal is 91 and his term, due to end on June 30, had been extended for a further three months till September-end at that time. 

On July 18, the matter mentioned by Salve was listed before the apex court. Venugopal appeared in the hearing to inform the court that there were 57 connected cases with the main issue relating to the constitution of the Wakf Board. Then, according to Venugopal’s August 8 letter, all 57 matters were listed on July 25. At this hearing, he said that Salve asked for an urgent hearing of the cases. 

However, Salve and Venugopal had been appearing on opposite sides in an ongoing matter before the Delhi High Court involving Reliance Industries Limited where the claim by the government against the company was in the range of $1.5 billion, Venugopal wrote. Salve had finished his arguments and Venugopal was to commence his rejoinder on August 2 and was likely to argue for a few days, he wrote. So, after consulting their diaries, the two senior advocates agreed on August 10 as the next date of hearing for the Wakf Board cases.

Meanwhile, on July 27, Venugopal tested positive for COVID-19. On the same day, he received an email from Salve’s advocate on record that they would be mentioning the matter again to seek that the date of the next hearing be advanced to August 2. 

On July 29, Salve mentioned the matter seeking the advancement. Venugopal’s instructing counsel Javed Shaikh and his associate lawyer Gopal Sankaranarayanan informed the court that he was suffering from COVID-19. The court, led by the then-Chief Justice of India NV Ramana, said that it would check upon Venugopal’s health on August 2 before deciding when to proceed with the case. 

After 11 years of steady hearings, the case appeared to be moving forward in a tearing hurry.

At this juncture, Venugopal’s letter says, followed a series of “startling events”. On July 30, on his instructions, his written submissions were filed by his advocate on record Sudhanshu Choudhary. Shortly thereafter, however, Shaikh was informed orally that the Maharashtra government had issued a direction under the Wakf Act to remove him as special counsel in the Wakf matter though he received no formal intimation. “This was indeed shocking,” wrote Venugopal as no reason was given for this sudden change.

Subsequently on August 31, Choudhary circulated a letter seeking an adjournment of two weeks on account of Venugopal’s health. However, on the same day, Choudhary was asked to give a no-objection certificate to another advocate on record, Shashibhushan Adgaonkar, who wrote to the SC registrar general stating that he would be taking over the case. 

The letter stated that “the earlier advocate on record had circulated a letter seeking adjournment of two weeks on the count of health of learned attorney general. Since the matter is of urgent nature, the petitioner, Wakf Board, has made an alternate arrangement to go ahead with the matter. Hence, in view of the specific instructions from the petitioner, Wakf Board, I am not pressing the earlier letter for adjournment and (the) same may be treated as withdrawn”.

On August 1, Shaikh received a letter written by the Wakf Board on the instructions of the state department of minority affairs cancelling his appointment as special counsel in the case.

“Looking at the entirety of what has emerged,” Venugopal stated in his letter, which is public, “it seems that whoever is behind the events that have transpired, whether it is the beneficiaries of the transfer (of wakf properties) or anyone else, is bent upon ensuring that the attorney general does not argue this case.”

The AG continued: “It must be pointed out that not only is the legal question of importance, the transfer of the lands which have been permitted by the charity commissioner under the Bombay Public Trusts Act, 1950, in my opinion are wholly void.”

Noting that even though he was no longer being instructed on the case, he could still appear in the case as AG since the matter concerned the public interest, Venugopal sought that the adjournment he had sought be upheld. Ultimately, the matter was listed for hearing next on September 5, according to the SC website. As per the details on the website, Choudhary, not Adgaonkar, remains the advocate on record for the Wakf Board.

Why the Sudden Rush?

In an amazing twist of fate, Ambani’s home still stands tall on land that was bequeathed to the orphanage by Sir Currimbhoy Ebrahim in 1895, when the latter held the title of India’s richest man.

The occurrences that have taken place in the litigation are unusual. There are several questions that remain unanswered.

Why was there a sudden rush to complete proceedings in the case?

What prompted the apparent attempt at “interference” in the case? 

Why did the Maharashtra government seek to suddenly change the lawyers representing the Wakf Board and drop India’s top law officer, who also happens to be among the most senior and highly respected advocates in the country?

Was there a connection between the legal proceedings and the political change that took place in the state?

How significant is the link with Ambani and his family members, the high-profile beneficiaries of wakf property in one of the cases?

The writers are independent journalists.