Constitutionality of Waqf Amendment Act | Day 4: Unregistered waqf properties squandered three chances, Union argues in stay hearing

‘Waqf by user was a statutory and not fundamental right’ 

The concept of ‘waqf by user’—a property considered waqf by reasons of its continued use—has been done away with under the amendment. Notably, the Act states that ‘waqf by user’ properties registered before 2025 will not be affected. Petitioners had argued that the registration of properties was never mandated until 1954 and that unregistered properties did not carry any penal consequences but for a fine that had to be paid by the mutawalli (administrator of the property). The new law, the petitioners claimed, would effectively denotify several unregistered ‘waqf by user’ properties, some of which had existed for centuries, as a consequence. 

Mehta countered this argument by suggesting that the Waqf Act of 1923 had introduced registration. He claimed that the 1923 law mandated mutawallis to provide the court within local limits with details of the waqf. Further, the law prescribed submission of account statements. The court would verify the details based on the Code of Civil Procedure, 1908 and publish a list of waqfs in its jurisdiction. “It is higher than registration,” Mehta stated. 

The 1954 Act introduced ‘waqf by user’. Section 4 stated that a Commissioner would survey all existing waqfs in the state. The Survey Commissioner’s report would be shared with the State Waqf Board which would publish a list of existing waqfs in the Official Gazette. There was a mechanism to voluntarily register the waqf if the property was missed by the Survey Commissioner. A tribunal could hear suits regarding a disputed waqf. Mehta stated that any ‘waqf by user’ property that was not registered under the 1923 Act had the opportunity to register under the 1954 Act. 

He then referred to a 1976 report published by the Waqf Inquiry Committee which stated that the “wilful failure” to register was a “a deeply prevalent malady affecting the administration of wakfs.” The committee had recommended that no suits be registered on behalf of an unregistered waqf. This suggestion was then codified under Section 87 of the Waqf Act, 1995. The counter affidavit of the Union adds that the 1995 Act gave “a last window for unregistered waqfs to get themselves registered.” Mehta  then pointed out that Section 87 was removed in an “interesting amendment” in 2013, months before the General Election.

Mehta contended that since there were these three opportunities to register a ‘waqf by user’, any claims that an unregistered property claiming to be a ‘waqf by user’ would be “fictitious”. He argued that ‘waqf by user’ was not a fundamental right but a statutory right which can be taken away. He also added that the establishment of a waqf or charity was not an essential religious practice. He pointed out that the majority of Muslims who are not financially sound do not create a waqf. “Will they cease to be Muslims?” he asked. 

‘Remedial provisions available to registered waqf properties’ 

Petitioners had argued that the authority of the Collector to determine whether a property was a waqf property or a government property would make the government a “judge in its own cause”. They contended that the waqf losing its character while a Collector determined its status violated the principles of natural justice. 

Mehta, on his part, argued that a revenue officer decides the status of a property for revenue records and does not determine title. Further, an aggrieved person could approach the Waqf Tribunal at any stage, with the option of appeal to the High Courts and the Supreme Court. He submitted that the possession of the property will not be lost, it will simply no longer be treated as a waqf. When the Bench observed that “status quo” would be maintained even if the property was under dispute, Mehta seemed to agree. 

Mehta then relied on Crawford Bayley & Co. v Union of India (2006), which observed that the appointment of an officer as an authority does not result in the doctrine of “no man can be a judge in his own cause”. It only comes into play if there is a personal bias or personal interest. He contended that the government has no option but to act through its officers. Moreover, relying on State of Andhra Pradesh v Andhra Pradesh Wakf Board (2022), Mehta stated that state governments have the right to protect their property through a writ court just like any individual. 

‘Waqfs are secular institutions’

One of the petitioners’ contentions was that the inclusion of non-Muslims in the Central Waqf Council and the State Waqf Board violated Article 26 of the Constitution. Mehta submitted that the Waqf Council operates pan-India and issues directions to State Boards. The State Boards only discharge “secular functions” which include auditing, accounting, litigation and succession. In its written submission, the Union contends that the power exercised by the State Boards is not “religious” and is not protected under Article 26. 

Mehta pointed out that the Waqf Act only governs the ‘mutwalli’, who is the administrative head of the waqf—it doesn’t cover the “sajjadanashin”, who is the spiritual head. 

He added that the Central Waqf Council consists of a maximum of four non-Muslim members, in contrast to the petitioners’ claims of majority non-Muslim members. Mehta submitted that the State Board, which discharged secular functions, could consist of a maximum of three non-Muslim members. 

According to the Union’s written note, the Board has “wide-ranging” functions which requires dealing with members of other faiths. Mehta then touched upon the comparison between a waqf and Hindu endowment. He stated that a Hindu endowment primarily deals with religious institutions such as temples, where even a pujari is appointed by the state government. This, he contended, does not apply to charitable institutions established by any religion. A charitable institution can be governed by persons belonging to other faiths. He stated that a waqf is a charitable institution which may undertake a range of activities including running mosques, cemeteries, schools and colleges. 

‘Waqf Boards impeded conservation activities of ancient monuments’

The petitioners had contended that Section 3D of the Amendment Act invalidated the waqf status of properties deemed to be protected under the Ancient Monuments Preservation Act, 1904 and the Ancient Monuments and Archaeological Sites and Remains Act, 1958. 

Mehta referred to Section 5(6) of the 1958 Act, which states that the recognition of a place of worship as an ancient monument would not “affect the use of any protected monument for customary religious observances.” 

Moreover, he submitted that there is a conflict between the Archaeological Survey of India (ASI) and the State Board over the properties. He pointed out that the JPC had received submissions from the ASI, which claimed that State Waqf Boards restricted maintenance and conservation activities at the monuments. Further, Mehta pointed out that waqf boards often take a “unilateral decision” that is contrary to the policy of the ASI. This “adversely hampers the authenticity and integrity” of the protected monuments, he claimed. 

 ‘No member of tribal community has approached Court’

The petitioners had also raised an issue around Section 3E, which states that land belonging to members of Scheduled Tribes cannot be declared or deemed waqf property. 

At the outset, Mehta pointed out that no member of the tribal community had approached the Court—only leaders who claimed to represent them had challenged the provision. He stated that there can be “no academic challenge to a statutory provision.” He further submitted that the provision effectively protected tribal land which was under “serious threat” due to the creation of waqfs. He claimed that cultural minorities in Islam are “distinct” and do not follow all religious practices.

Arguments will continue tomorrow