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Waqf Act of 1995: Is this a law or UPA’s appeasement for vote banks?

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Sameer Jena
Sameer Jena
The author is a practicing lawyer based in Delhi.

Political expediencies have dictated that the institution of waqf has only been bolstered post-independence. In such a situation where pseudo-secular politics has become integral to the political fabric of a nation, there is no hope on the horizon.

Daughter’s wedding is a dream come true for every parent. Parents aspire of marrying their daughter with grandeur and spent their whole life accumulating wealth for the day. For very same cause a dutiful father struggle to sell a piece of his land in the hope of raising money for his daughter’s wedding but is not allowed by the authorities. He is told that the land is not his. After inspection he comes to know that not only he, no person living in the village has any right over their land. The reason: a board claims the land of the entire village as its own. Sounds like a filmy story, but it is true.

Recently, a very strange case emerged from Tiruchirappalli district of Tamil Nadu, where the State Waqf Board claims itself the owner of the entire village including all the farms, barns, and a 1500-years-old temple. The shocking case came to the fore when a local man, Rajagopal, a resident of Tiruchendurai village, tried to sell his land for his daughter’s wedding. While talking to the media Rajagopal told that the land has all the required documents but when he wanted to sell it, the Registrar Office told him that it belongs to the Waqf Board and he would have to take a no objection certificate from the Board to sell it.

Hindus constitute majority of the population in this village. There is also an ancient temple in the village which is said to be 1500 years old that is even before the religion of Islam came to existence. This is not just a matter of one village on which the State Waqf Board has declared its ownership, rather there are at least six such villages in Trichy district alone, which have been declared waqf property by the Board.

This is not a one-off story, rather similar stories happen in all parts of the country – some reported and most of them not. What is reported, people ignore those reports musing this is not their fight. The question is, how can the Waqf Board declare a Hindu majority village as its property. After all, in which law the Waqf Board has got permission for this arbitrariness. What gives the Waqf Board so many unlimited powers? It would, therefore, be interesting as well as relevant to know waqf, the Waqf Board, and with this whether this Board can claim its ownership on any land.

A Dictionary of Islam by Thomas Patrick Hughes explains waqf as “a term which in the language of the law signifies the appropriation or dedication of property to charitable uses and the service of God.” Merriam Webster defines Waqf as “Islamic endowment of property which is to be held in trust and used for a charitable or religious purpose.” According to Section 3(r) of the Waqf Act 1995, waqf means permanent dedication by any person, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable. In simple words, waqf is property given in the name of Allah for religious and charitable purposes.

The first law on the Waqf Act was made in 1923. The purpose of making this act was simply to make provision for the better management of waqf property and for ensuring the keeping and publication of proper accounts in respect of such properties only. After that amendments were made to the act from time to time. However, only after the amendments in 1995 and then in the year 2013, both by Congress Governments, the Board was bestowed a wide range of powers. Waqf Board is completely a religious body and despite this it was given the administrative right to grab the land and the judicial powers to settle disputes.

The waqfs are the biggest urban landlords in India. The zamindari of waqfs is unimaginably huge in terms of land in the country; it has the third largest ownership of land after the Indian Railways and the Defense Department. According to estimates made by the Sachar Committee in 2006, there are more than 4.9 lakh registered waqf properties comprising about six lakh acres of land whose approximate market value (then) was around Rs. 1.2 lakh crores. Large concentration of the wakf properties is found in West Bengal (148,200) followed by Uttar Pradesh (122,839).

The subject of wakf is relative to entry number 10 “Trust and trustees” and number 28 “Charities and charitable institutions, charitable and religious endowments and religious institutions” in the concurrent list attached to the Seventh Schedule to the Constitution of India. Supervision over the administration of waqfs is, therefore, the responsibility of both the Central and State Governments.

After the recent Tiruchirappalli incident people have insecurities about whether the Board can declare any property as waqf. What the law says about it? What is it like in the Waqf Act 1995 that makes it treacherous for the Hindus and the whole country?

According to Section 40 of the Act, if the Board has any reason to believe that the property is a waqf property, the Board can call upon the party either to register such property under this Act as waqf property or show cause the party why such property should not be so registered. Some supporters of this law argue that this section applies to the property of a Waqf Registered Trust or Registered Societies only and not to anyone’s private properties, which is not correct. The response to their claim can be the definitions in Section 3 of the Act which say “waqf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable, and “waqif” means any person making such dedication.

More, after a property is declared as waqf property, the person who is in possession will be considered encroacher as per Section 54, and Section 55 confers the Board with powers to direct the DM or SSP within the local limits of whose jurisdiction the property comes to vacate it, which the officer will be duty-bound to obey. In cases of recovery of waqf property, the Board can order to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it and on receipt of such order, the Collector shall pass an order directing the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order (Section 52 of the Act).

Interestingly, the order of the Waqf Board will have to be followed by the state machinery and the District Magistrates as per Sections 28 & 29. Now question arises whether such authority has been given to any other religious body, trust, and charitable institution in the country? People may be flabbergasted to know that as per Section 101 of the Act, the members and employees of the Waqf Board and every person holding any office in a waqf including mutawalli and members of its managing committee shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code (45 of 1860). The provisions are unfair and arbitrary, as there are no similar laws for any other religious community in the country.

Section 85 bars the aggrieved party to go to a civil court. Under this section, if any matter is related to waqf or waqf property, then a person cannot file a suit in any civil court, revenue court, and any other authority. The aggrieved party is forced to go to the Waqf Tribunal only. The constitution of the Waqf Tribunal is arbitrary and every matter of civil nature must be heard and decided by a civil court in a country govern by Constitution. Moreover, Section 89 says that in case of a suite the plaintiff will have to give two months’ notice to the Waqf Board.

Intriguingly, as per Section 90, in every suit or proceeding relating to a title to or possession of a waqf property or the right of a mutawalli or beneficiary, the court or the tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding. Icing on the cake. Section 107 ensures Limitation Act, 1963 not to apply for recovery of immovable property comprised in any waqf or for possession of any interest in such property.

The provisions of the Act grant special status to waqf properties and give the Waqf Board unbridled powers, while denying such powers to other religious institutions violate Articles 14 and 15 of the Constitution of India. This is against the secularism, unity, and integrity of the nation. In the form of autocratic laws like Waqf Act of 1995, not only land-jihad is being promoted, but by giving monopoly to this institution, the domination of Muslims is being established over India’s land resources. Many provisions in this Act have no place in a Constitution-driven state like India and should be revoked immediately. There are also other lines of reasoning that endorse the abolition of this institution in India.

Going back in history, the dispute over a waqf in the late Nineteenth century eventually went up to the highest court of appeal, namely the Privy Council in London. Hearing the appeal, a bench of four English judges (Lord Watson, Lord Hobhouse, Lord Shand, and Sir Richard Couch) of the Privy Council explained the waqf as “a perpetuity of the worst and the most pernicious kind” and pronounced it to be invalid. Say it’s a failure or a matter of disappointment that the Privy Council judgement was not accepted in India.

The Mussalman Wakf Validating Act, 1913 was enacted to save this institution in the country. This Act was legislated to statutorily supersede the position taken by the Privy Council in Abdul Fata Mahomed Ishak v. Russomoy Dhur Chowdhry [1894 (22) Cal 619 (PC)]. Then the Mussalman Wakf Validating Act, 1930 clarified that the Mussalman Wakf Validating Act, 1913 shall be deemed to apply to waqfs created before its commencement. Hence, the Validating Act of 1913 was given retrospective application by the 1930 Act.

Since then, no endeavor has been made to either abolish or curtail the inimical effects of this institution. On the contrary, the law was made more favorable to the Muslims with enactment of the Wakf Act of 1995. In fact, political expediencies have dictated that the institution of Waqf has only been bolstered post-independence. In such a situation where pseudo-secular politics has become integral to the political fabric of a nation there is no hope on the horizon. A relief from court is least expected considering court cannot issue a mandamus to the legislature or the Parliament to bring about an amendment in a legislation. One can only hope the current government has to come up with a solution by repealing this undemocratic law and bringing them all under the Indian Trusts Act, 1882.

I don’t concur with some people demanding the enactment of a “uniform code” for trusts, charitable institutions, and religious endowments across all faiths as there is already an Indian Trusts Act 1882 in force in the country. Let it be also very clear: Expecting the BJP-ruled Modi government to strike down this draconian statute is daydreaming, taking into account their success rate and position in matters relating to the Citizenship (Amendment) Act 2019, NRC Act, Farm Bills 2020, Uniform Civil Code (UCC), and others in past.

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Sameer Jena
Sameer Jena
The author is a practicing lawyer based in Delhi.
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