What is Waqf? Well, it is one of the significant domains of Islamic Jurisprudence. The word has originated from Arabic Waqafa which means ‘to detain, hold or tie up’. In literal sense, waqf means confinement or prohibition. So, when a person dedicates his property for religious or charitable purposes, as per Islam, its sale is prohibited.
The legal definition of Waqf is stated under Section 3(r) of the Waqf Act 1995, wherein it is mentioned that Waqf is ‘permanent dedication, by any person, of any movable or immovable property, for any purpose recognised by the “Muslim law” as pious, religious, and charitable.
As per Sharia Law, once a Waqf is established and the property is dedicated to Waqf, it becomes Waqf property and the status quo never changes. A person who makes Waqf is known as Waqif. Section 3 of the Waqf Act states that “Waqif is a person making such a dedication”. Therefore, Waqif is a person who creates Waqf. It is important to reflect herein that the Waqf is the permanent dedication in the name of Allah for which a Mutawalli is appointed either by the Waqif or by a competent authority so as to manage Waqf.
Let’s now explore the three kinds of Waqf under Indian law:
Waqf by user: If a land/ building or any portion of it is permanently being used for religious or pious purposes with the knowledge of the owner of the property, such a property is called Waqf By User.
Waqf mashrat-ul khidmat: It is a public Waqf wherein the wakifs (the creator of Waqf) has devoted the property for the general benefit of the Muslim community, and means a grant stipulated for rendering services.
Waqfal-al-aulad: It means a Waqf created for the Waqif
family and children
Three things are sina quo non for the creation of the Waqf under the Indian law i.e. perpetuity, irrevocability and inalienability. An important thing that one must consider here is that while there is no set formality required for setting of Waqf, once a property has been declared as Waqf its ownership right vests with Allah, forever.
Origin of Waqf in India
The concept of Waqf in India can be traced to the advent of Islamic Rule, specifically, to the Delhi Sultanate when Sultan Muizuddin Sam Ghor dedicated two villages in favour of the Jama Masjid of Multan and handed over their administration to Shaikhul Islam. With the passage of time, Islamic dynasties flourished on the soil of Bharat, and the number of Waqf properties kept on increasing. During both the Sultanate and Mughal periods, sovereign as well as private individuals created Waqfs, which were duly supported by the administration – at the grassroots level the Waqfs were managed by Mutawallis and supervised by Qazis. Later, during the Mughal period, Waqfs were managed by Sadr-as-Sudur. The applicable law was Sharia, and the sitting judge was also committed to the Sharia law.
Waqf during British period
During their initial days of rule, Britishers refrained from interfering in the Hindu and Muslims endowments. The first regulation that was introduced during the British rule was Bengal Code Regulation XIX of 1810, which aimed at managing rents and produce for the upkeep of mosques, temples and public buildings. The Bengal Code was then followed by the Madras Code Regulation VII of 1817 having the same jurisprudence as of Bengal but limited to Madras Presidency. Much later, in 1863, government enacted the Religious Endowment Act of 1863, thus relieving these places of its direct control. It handed over the management of these bodies to the local committees, with court intervention, as and when needed.
Significantly, during the late 19th century, four judges of the Privy Council of London viz Lord Watson, Lord Hobhouse, Lord Shand and Sir Richard Couch, while hearing a matter subject to the Waqf property, observed (in their judgement) Waqf as “a perpetuity of the worst and the most pernicious kind” and declared it to be invalid. Hearing the case of Abdul Fateh Mohammad Vs Russomoy Dhur Chowdhary, they held that “…Waqf made for the aggrandisement of the family and the gift to charity is illusory, whether from small amount, uncertainty or remoteness is invalid…”. However, the Muslim jurists objected to the judgement stating that it opposed the Islamic law – the Mussalman Waqf Validating Act 1913, saved the illegal and arbitrary Waqf in India.
After 1947, the Waqf properties were managed by the Musaalman Waqf Validating Act of 1923. In 1954, the then Congress Government introduced the Waqf Act of 1954, set up the Waqf Board and centralised the administration of all Waqf properties. The Waqf Board was also vested with executive and Quasi-Judicial functions. The Act empowered the Wakf Board to supervise and remove Mutawallis, and to sanction in accordance with Muslim law, the alienation of Waqf property. In 1969, the Central Waqf Council of India was established to monitor State Waqf Boards (established under Section 9(1) of the Waqf Act of 1954). In 1984, the Waqf Inquiry Committee, in its report, called for restructuring of Waqf administration, which led to the introduction of Waqf Act 1995.
In many ways, the Waqf Act of 1954, can be seen as the beginning of the Muslim appeasement politics in the Independent India. More so, because no analogous body was set up either for Hindus, Sikhs or Christians at that time The Sikh Gurudwara Act is in no way akin to the Waqf Act as it only pertains to the management of Gurudwaras, not the management of property. It is also pivotal to mention here that the Religious Endowment Act 1863, was introduced for Hindu temples, and it put the Hindu temples directly under the control of the State.
Waqf Act of 1995
Enacted and implemented on November 22, 1995, with an objective to provide better administration of (Auqaf) and for matters connected therewith, this Act provides for the power and function of the Waqf Council, State Waqf Boards, Chief Executive Officers and Mutawallis. This amendment is considered to be one of the dangerous innovations pertaining to the term of Waqf Tribunal by providing it wide powers to decide matters pertaining to Waqf properties. The Waqf Tribunal consists of one Judicial Service personnel, one state Civil Service official and one person who has specialised knowledge of Muslim laws. Shockingly, the amendment bars the jurisdiction of civil courts in matters related to the Waqf. Also, the decision of the Waqf Tribunal is final and binding over the parties –no provision of appeal has been provided against the order the Waqf Tribunal.
So, we can easily say that the Waqf Tribunal has been given powers for the protection and better management of the Auqaf; the Tribunals have been established with arbitrary and wide powers not to grant justice like civil courts are but to protect Auqaf and to remain loyal to Waqf.
Major changes affected in Waqf legislation during 1954, 1995 and 2013
Definition of Waqf: Under the Act of 1954, the definition of Waqf was expanded – it included even those properties (used for religious and charitable purposes) that were not formally dedicated. In 1995, the definition was further expanded and included the properties as Waqf even if their usage (for religious and charitable purposes) had ceased! A major shift happened in in 2013, when the amendment allowed the dedication of property by “any person” not necessary belonging or professing Islam as their religion.
Judicial proceedings: Under the Waqf Act of 1954, the civil courts had the power to decide the disputes related to Waqf properties. In the 1995, the civil courts were robbed of this power, which was given to the Waqf Tribunal.
Cost of survey: Under the Waqf Act of 1954, the cost of survey was the responsibility of Mutawallis as funded by the Waqf property whereas the Waqf Act of 2013, directs the government to bear the cost of survey.
Composition of the Waqf Board: Under the Waqf Act of 1954, the Waqf Board membership was open to non-Muslims whereas under the Waqf Act of 1995, and 2013, the Board members could only be from the Muslim community.
Bar on Limitation Act: Under the 1995 Act, the applicability of the Limitation Act of 1963, has been barred and therefore law suits can be pursued without the involvement of the Limitation Act. Under the Act of 2013, it is provided that no law suit shall be entertained by the Waqf Tribunal after the expiry of one year from the publication of the list of Auqaf. Further, no provision of public notice is provided under the 2013 Act.
Major of the cases wherein Waqf arbitrarily and illegally claimed properties
The Waqf Board has often illegally claimed the possession of private as well as government properties as its own. By fraudulently and arbitrarily obtaining land and public property, it has now become the third-largest landowner in India, after the Armed Forces and the Railways. A few cases worth mentioning here are:
1. Thiruchenthurai Village in Tamil Nadu has been illegally declared by Tamil Nadu Waqf Board as Waqf property. Point to be noted here is that this village has a majority of Hindu population. As per reports available, TN Waqf Board has so far claimed seven Hindu villages as its own.
2. Surat Muncipal Corporation headquarters had been declared as Waqf property.
3. In July 2005, the Sunni Waqf Board claimed the right on the Taj Mahal as the Waqf property.
4. UP Sunni Waqf Board has claimed Kashi Vishwanath Temple as Waqf property.
5. A Shivalay in Lucknow had been registered as a Waqf property in collusion with the Uttar Pradesh Shia Central Waqf Board.
6. In Dwarka, the Waqf Board claimed two islands in Bet Dwarka as Waqf Property.
Judgement in some curious cases of Waqf claim:
1. In a recent judgement passed by the Madhya Pradesh High Court, Justice GS Ahluwalia (in the case of Archeological Survey of India Vs Chief Executive Officer & Ors ) overturned the order of the MP Waqf Board which claimed Burahnpur Fort as Waqf property. While rejecting the plea of the MP Waqf Board, Justice Ahluwalia observed “….Why not claim the Taj Mahal as Waqf property? Tomorrow you might say the entire India is Waqf property. It won’t work like this that you’ll issue notifications and the property will be yours….”
2. In the case of Waqf Board Rajasthan Vs Jindal Saw Limited, the Supreme Court, vide judgement dated 29.04.2022, categorically held “…in the absence of any proof of dedication or user, a dilapidated wall or platform cannot be conferred a status of a religious place for the purpose of offering prayers or namaaz…”.
3. In the case of Kolachi Ram Reddy Vs State of Andhra Pradesh, Telangana Court stated “…Waqf cannot claim property merely by issuing notification, but it has to produce evidence…”
4. In the case of Dhanna Ram Vs State of Rajasthan, the Rajasthan court observed “…..Chief Executive Officer has no power under Waqf Act, 1995 to issue any declaration of property to be a Waqf Property….” and therefore “the disputed land shall be continued to be used as burial place.”
Conclusion
Waqf Act is a special Act for religious properties subject to Islam. No such law exists for any other religion which is clearly a discrimination against other religions, in a country (India) of which the Constitution preamble speaks of secularism, and categorically states that the State has no religion in Article 12. Applicability of such jurisprudence is a strict violation of Article 14 of the Constitution of India as it establishes a special procedural system for religious properties to a particular class.
Notably, the Waqf Act doesn’t exist in any Islamic country like Turkey, Libiya, Egypt, Sudan, Lebanon, Syria, Jordan, Tunisia, and Iraq. There are no Waqfs in these countries. It is time everyone understands that the proposed amendments to the 1995 Waqf Act, in no way violate the essence of Article 25 and 26 of the Constitution of India. On the other hand, the very provisions of the 1995 Waqf Act are violative of Article 14, 19 and 25 and Article 300-A of the Constitution of India. Actually, need of the hour is to save the properties from the illegal acquisition by the Waqf and to bar the very applicability of this Act.
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