Can Waqf Board Claim Any Property? All You Need To Know About Controversy Around Waqf Act

Centre is likely a Bill in Parliament to amend the Waqf Law which may limit the powers of Waqf boards to claim land. Here's a brief overview of powers of Wakf Board and the controversy surrounding it.

A man reads a notice put up on orders of Jammu and Kashmir Waqf Board's chairperson, at the main gate of Dargah Hazratbal Shrine

Source : PTI

The Centre is likely to introduce next week a Bill in Parliament to amend the Waqf Act 1995, in which it has proposed nearly 40 changes, including limiting the power of Waqf boards to claim land, restructuring board compositions, and ensuring proper verification processes.

 

Reportedly, the bill had been approved by the Union Cabinet and aims to address issues like disputed land claims. The new Bill is likely to also carry a provision for representation for women in Waqf bodies. Here's a brief overview of powers of Waqf Board under the current Act and the controversy surrounding it.

What is a Waqf?

A Waqf is the property dedicated in the name of God for religious and charitable purposes like Mosque, Dargah, graveyards, shelter homes, educational institutes and so on. The property is a permanent donation by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. The Waqf Act, of 1995 was enacted to regulate ‘auqaf’ (assets donated and notified as waqf) by a wakif — the person who dedicates a property for any purpose recognised by Muslim law as pious, religious or charitable. Later the said Act was amended in 2013 by the UPA government.

How A Property Becomes Waqf?

A property can become a Waqf by donation through a deed or instrument, or if it has been used for religious or charitable purposes for a long period of time, it can be deemed Waqf property. A non-Muslim can also create a waqf provided that the said individual professes Islam and the objective of creating the waqf has to be Islamic.

A survey commissioner under the 1995 Act lists all properties declared as Waqf after conducting a local investigation which may include summoning witnesses and asking for public documents, etc. A Mutawali is someone who manages the Waqf as a supervisor. 

What Are Functions Of Waqf Board?

A Waqf Board is a legal entity with power to acquire and hold property and also to transfer any such property. 

Under the current law, every State in India has a Waqf Board headed by a chairperson, one or two nominees from the state government, Muslim MLAs and MPs, Muslim members of the state Bar Council, recognised scholars of Islamic theology and mutawalis of any waqfs that has an annual income of Rs 1 lakh and above.

Law entrusts Waqf Boards with powers to administer the property and take measures for the recovery of lost properties and to sanction any transfer of immovable property of a waqf by way of sale, gift, mortgage, exchange or lease.

The sanction for sale, exchange or transfer can only happen if at least two thirds of the members of the Waqf Board vote in favour of such a transaction.

Controversy Around Powers Of Waqf Board

The origin of the Waqf system can be traced back to the aftermath of Partition. The newly formed Indian government placed under the Custodian Department the properties that were left behind by Muslims who went to Pakistan post Partition. These properties also included Waqf assets. These properties then were rented out to refugees from Pakistan at low costs which gave rise to the Waqf tenants’ system.

In 1954 the Jawaharlal Nehru government brought in the first Waqf Act to manage these properties. In 1995, the PV Narasimha Rao government enacted a new Waqf Act which was later amended in 2013 under the Manmohan Singh Government. The 2013 amendments gave Waqf Boards greater control.

Currently, there are 8.7 lakh properties spread across 9.4 lakh acres under control of Waqf Boards in India. Broader questions that arise around powers of Waqf Board are explained below:

1) Can Waqf Board Claim Any Property?

No, the Waqf Board cannot go on to claim any property. A Waqf Board can only claim the land that is recorded in the revenue department’s records before Partition. The Board has to prove that those lands are actually Waqf property.

Along with managing existing Waqf properties, the Boards also take steps to recover any Waqf that might have been lost with passage of time. This the Board can do by invoking the controversial Clause 40 of the Waqf Board Act.

2) What Is Section 40 Of Waqf Act?

As per Section 40 of the Waqf Act 1995 (as amended in 2013) the State Waqf Board is empowered to decide any question which arises as to whether a particular property is a Waqf property or not or whether a Waqf is a Sunni Waqf or a Shia Waqf.  The Board, after duly considering such cause as may be shown in pursuance of notice and after making an inquiry as it may deem fit, decides the case. The decision of the Board on a question under the said provision shall, unless revoked or modified by the Tribunal, be final.

3) PIL Against Waqf Board's Powers

This Section 40 has been in controversy for long as BJP leaders have time and again claimed that this gives unlimited powers to Waqf Board to acquire any property.

In 2023, BJP leader Ashwini Kumar Upadhyay filed a petition in the Supreme Court challenging the validity of provisions of Waqf Act 1995. He contended that there are no similar laws for followers of Hinduism, Buddhism, Jainism, Sikhism, Judaism, Bahaism, Zoroastrianism & Christianity. Hence, it is against the secularism, unity and integrity of India.

"The Waqf is not mentioned anywhere in the Constitution. However, if the Act is enacted to secure fundamental rights guaranteed under Articles 25-26, then it must be in consonance with the Articles 14-15. The Act has no Statement of Objects and Reasons. Yet, if it is enacted under Entry-10 and Entry-28 of the List-3 of the Schedule-7, then it must be gender neutral religion-neutral. likewise, If the impugned Act has been made to protect the rights guaranteed under Articles 29-30 then it has to cover all the minorities i.e., followers of Jainism, Buddhism, Sikhism, Judaism, Bahaism, Zoroastrianism, Christianity, and not only Islam," the petition contended.

He sought direction from court to Centre to  bring in a uniform code for Trust-Trustees, Charities- Charitable Institutions and Religious Endowments.

Upadhyay challenged the validity of certain provision of the Act which according to him "grants special status to Waqf properties denying equal status to Trust, Mutts, Akharas, Societies and confer unbridled powers to Waqf Boards to register any property as Waqf property."

What The Supreme Court Said?

The Supreme Court in April 2023, refused to entertain Upadhyay's PIL stating that that the constitutionality of a law passed by Parliament cannot be challenged in the abstract as a mere "academic exercise." The top court junked the PIL stating that Upadhyay has not shown any violation of his rights due to the Waqf Act.

The matter was heard by a bench headed by the current CJI DY Chandrachud and Justice Surya Kant. The bench remarked that it was a well settled principle that no court can impose a mandate on the Parliament to pass a law and it would amount to interfering in the functioning of the legislature.

The court also refused Upadhyay's request to read out a note and said that the bench didn't want this publicity stunt.

However, Advocate Ashwini Upadhyay continued that he has also challenged the constitutionality of the Waqf Act. The court then said that he will have to show a particular case of violation and challenges to legislation cannot be allowed in abstract. The petition was dismissed.