In Hameedali v. Chief Executive Officer and Ors, the Kerala High Court has stated that in cases relating to the Waqf Act, the parties must approach the Waqf Tribunal before moving to the High Court with writ petitions as the same adds to the pendency of cases.
The petitioner challenged the Waqf Board’s appointment of a returning officer to conduct an election to the Juma-ath Committee. The bench comprising Justices AK Jayasankaran Nambiar and Mohammad Nias CP stated that the Court is not inclined to interfere since an “efficacious” alternate remedy is available under the Waqf Act. The Court noted that the “time has come for this Court to stop entertaining writ petitions seeking directions relating to a Waqf and to insist that the party should first approach the authorities under the (Waqf) Act.”
The Court’s statement claiming the Waqf Tribunal to be an “efficacious” alternate remedy as provided under the Waqf Act is controversial as the Waqf Board is often criticized for having unlimited powers to snatch someone’s property without offering an unbiased judicious remedy.
Section 40 of the Waqf Act, 1995 empowers the Waqf Board to initiate an inquiry related to any property where the Board has a “reason to believe” that such property is a Waqf property and call upon the ‘owner’ to either register the property as the Waqf’s property or show cause why such property should not be registered as Waqf property. The section also allows the Waqf Board to pass such orders as it deems fit and will be final unless revoked by the Waqf Tribunal. Therefore, the Waqf Act puts the burden of proof on the aggrieved owner instead of the Waqf Board claiming such property’s ownership.
Section 83(5) of the Waqf Act, 1995 deems the Waqf Tribunal established under the Act as a ‘civil court’, and Section 83(7) of the Act states that the Waqf Tribunal’s decision will have the same force as a civil court. Section 85 of the Act bars the jurisdiction of civil courts to admit any matters related to the Waqf, Waqf’s properties, and other matters to be determined by the Tribunal.
The Waqf Boards, established under the Waqf Act, control 3,55,239 Waqf Estates, 8,67,799 immovable properties and 16,657 movable properties across India, according to the Waqf Asset Management System of India.
Combined, the Waqf Boards are the third largest land owners in India after the Army and the Railways.
The Waqf Act provides a wide range of powers to the Waqf Board, essentially making the Waqf Board the judge, jury and executioner, thereby, conferring a right on the Waqf Boards across the country to claim the ownership to any property on mere “belief”, put the burden of proof on the property’s owner without a proper recourse to adequate remedies.
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