Delhi, India: On March 7, the Delhi High Court adjourned the Delhi Waqf Board’s (DWB) petition challenging the Government of India’s decision to take back the ownership of 123 properties which the Congress-led UPA government denotified on March 5, 2014, in DWB’s favour until March 15.
Justice Manoj Kumar Ohri said that the Court could not pass an order to maintain the status quo of possession of properties without hearing the other side and listed the matter for March 15. He said, “I have to hear them also …Nothing is going to happen. For the interim relief, do I not hear them?” Live Law reported.
DWB’s petition, filed through Advocate Wajeeh Shafiq, argued that the Government of India’s power to take back the ownership of 123 properties is not traceable to the Waqf Act, which is a complete code governing ‘waqf’ properties and has an overriding effect.
It is pertinent to note that the said properties are located in Delhi’s VVIP areas, such as Connaught Place, Mathura Road, Lodhi Road, Man Singh Road, Pandara Road, Ashoka Road, Janpath, Parliament House, Karol Bagh, Sadar Bazaar, Darya Ganj and Jangpura.
The Government of India’s decision comes after the Two Member Committee’s submissions. In 2018, the Government of India constituted the Two Member Committee, headed by Justice (retd), SP Garg, to reassess the status of said government properties. The Two Member Committee submitted that the DWB did not appear, or file representation, objections or claims related to the 123 properties before the Committee.
In light of Two Member Committee’s submissions, on February 8, 2023, the Land & Development Office (L&DO), Union Ministry for Housing and Urban Affairs, wrote a letter to the DWB informing them about the L&DO’s decision to “absolve” the DWB from all matters pertaining to the 123 properties.
The L&DO’s letter claimed that the Two Member Committee gave the DWB opportunities to “appear before the Committee or to file representation/written statement/objection” in support of their claim to the 123 properties as “waqf properties.” However, the letter continued that “no objections/representation or submission was submitted” by the DWB to the Two Member Committee.
The L&DO’s letter concluded, “It is evident from the above facts that Delhi Waqf Board does not have any stake in the listed properties, neither have they shown any interest in the properties nor filed any objections or claims. It is, therefore, decided to absolve Delhi Waqf Board from all matters pertaining to ‘123 Waqf Properties.’ Physical inspection of all 123 properties shall also be carried out.”
DWB’s First Attempt to Take Government Properties
The colonial government acquired said 123 properties between 1911 and 1915. The Government of India inherited the properties whose ownership vested with the colonial government after independence.
In 1970, the 123 properties were notified as “waqfs” in the Delhi Gazette on April 16, 1970, and December 31, 1970, under the Waqf Act 1954. The Delhi Development Authority (DDA) and L&DO challenged these notifications and filed declaratory suits claiming ownership of these government properties.
According to VHP’s complaint filed with the Election Commission of India (ECI) concerning the UPA government’s violation of the Model Code of Conduct dated March 18, 2014, the Government of India alleged “that the actual survey made by the officials of the Delhi Development Authority on the spot also does not show the existence of the Wakf and wakif as notified,” in the separate notices challenging DWB’s claims of ownership.
1984: Congress’s Attempt to Transfer 123 Properties to Waqf
In 1974, the Congress government constituted a committee under the Chairmanship of SMH Burney to consider the issues related to the government properties claimed to be waqfs and make recommendations. It is pertinent to note that SMH Burney was the DWB Chairman then.
On March 23, 1976, the Burney Committee submitted its report, declaring 123 properties as “waqfs” and making certain recommendations. The Burney Committee recommended that the Congress government hand over the “waqf properties” to the DWB. The Committee also recommended that the Government of India compensate the DWB for “graveyards where graves are not in existence”, after which the DWB will withdraw their claims.
In Savyasachi K Sahai v. Union of India [WP (C) No. 7955/2015], the Delhi High Court observed, “It is noteworthy thus that the Burney Committee report, which is dated 23rd March 1976 makes no reference to any construction of a mosque or dargahs on the subject land and only refers to a Muslim graveyard.”
The Committee declared two properties, one situated on the Vice President of India’s House’s lawns and the other located inside a wireless station, was proclaimed as waqf properties, even though the Committee was not allowed to enter the sensitive locations. However, the Congress government accepted Burney Committee’s recommendations and attempted to hand over 123 properties to the DWB in 1984.
On January 31, 1984, the Congress government decided to transfer 123 properties to the DWB in a Cabinet Meeting through a perpetual lease for a nominal annual rent of Rs. 1/- per acre. However, the Indraprastha Vishwa Hindu Parishad (IVHP) challenged the Congress government’s decision before its implementation. Therefore, the IVHP filed a writ petition before the Delhi High Court [WP (C) No. 1512/1984] to challenge the Congress government’s order to lease the government properties to DWB perpetually.
In pursuance of IVHP’s petition, on June 1, 1984, the Delhi High Court passed an interim order and granted a stay on the Congress government’s transfer of said properties to the DWB. The Delhi High Court said, “In the meantime, the status quo regarding the property should be maintained, and possession should be retained by the Government.” The Delhi High Court further directed the Congress government against the execution of lease deeds.
On January 12, 2011, the Delhi High Court disposed of IVHP’s writ petition and directed the Congress-led UPA government to have a fresh look and decide within 6 months.
2014: UPA Denotifies 123 properties
On March 2, 2014, the UPA government decided to transfer 123 properties to the DWB in a Cabinet Meeting. Accordingly, on March 5, 2014, the UPA government withdrew from the acquisition of the said government properties u/s 93 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013, which allowed the DWB to claim ownership of the said government properties.
The VHP filed a complaint with the ECI and moved the Delhi High Court against the UPA government’s decision to withdraw from the acquisition of 123 properties two months before the UPA government’s term ended.
It is pertinent to note that the Government of India inherited the said government properties from the colonial government, and their status remained unchanged till the UPA government’s notification for withdrawal from the acquisition on March 5, 2014, which allowed the DWB to claim ownership of the 123 properties.
