Can the Waqf Board claim your land? No and never

Waqf has been in the public storm of debates for all wrong reasons. The government has just recently tabled the Joint Parliamentary Report on amendments to the 1995 Waqf Bill (Waqf (Amendment) Bill, 2024). Rather than addressing the malpractices and dereliction of duties by the Waqf boards, the Bill has caused anxiety among the Muslims. Waqf properties are endowments made for public and religious causes. According to Islamic law, once earmarked as Waqf, the nature and utilities of such properties are impervious to changes, that property becomes mortmain property. Many misunderstandings and polarization have followed the Waqf Bill.

To add into the fire, many legal disputes across the country, have given the Waqf institution a communal dose. The Waqf Board can claim any land in the country, as many commentators have falsely peddled Waqf. They argue that Waqf institutions are a country within the country and it squarely contradicts the secular values of the nation. The communal vilifications have dallied the efforts to use the Waqf property for national and community benefits meaningfully. As Waqfs are instituted for public welfare, whose benefits can accrue to all citizens of the country without religious distinction, good governance of these institutions is justifiable.

How a property is fixed as Waqf

Now, let’s study how a property is fixed as Waqf.

Waqf Bill 1995 has in detail explained the process of Waqf registration. Article 40 of the Bill governs the institution of the Waqf.

Section (1) of the article reads that ‘Decision if a property is Waqf property.

The Board may itself collect information regarding any property which it has reason to believe to be Waqf property and if any question arises whether a particular property is Waqf property or not or whether a Waqf is a Sunni Waqf or a Shia Waqf, it may, after making such inquiry as it may deem fit, decide the question’.

From the wording of the section, it is clear that Waqf Boards can claim only such lands where dispute has arisen or the Board deems fit on the basis of evidences to claim as Waqf land. This snubs the arguments that all lands could be claimed by the Waqf Board as Waqf property.

Before going into the procedures to initiate such a process, let’s understand the nature of Waqf in India and how historical deeds made the Waqf a cumbersome legal process. According to available data, Waqf in India originated with the establishment of the Delhi Sultanate in 12th century. After that, royals, nobles, and wealthy people patronized the Waqf. Unlike in other counterparts in the Islamic world, Waqf grew haphazardly independent of state interference.

Such Waqfs without historical deeds as recognized as ‘Waqf by User’ in the 1913 Muslaman Waqf Act. The current Waqf amendment bats to dispense with this clause. As land titles in India are still not uniform and centralized, such a move to tamper with the living tradition of Waqf will result in the Muslim community losing rightful access to religious and public sites.

The advent of the British and the ushering in colonialism changed the state’s relation with the land. In order to maximize the return on land with the least investment, the Company Government started to regulate the lands through Permanent Settlement in 1793. The fragmentation of land due to company policies ruffled the feathers of the landed aristocracy, where access to the land determined social nobility and status.

In this changed political scenario, Muslims resorted to family Waqfs. Landed properties were registered as Waqf with well-defined governance to dodge crumbling administrative policies. The British were miffed at this religious entanglement and strived to regulate the process and derive fixed income from the land. In 1897, the Privy Council abolished the Family Waqf (Waqf Awlad). Gregory C. Kozlowski, in his book Muslim Endowments and Society in British India, has studied in detail this development. The Central Legislative Council brought out the Musalman Waqf Act in 1913 to nullify this Privy Council verdict. In Independent India, Waqf Boards were re-organized in 1954. An overhaul was attempted in the 1995 Waqf Amendment Act.

The legacy of Waqfs in India has to be taken into consideration before approaching the issue at hand. The problem with title deeds does not exclusively pertain to Muslim Waqf. Such legal wranglings are legal disputes in the cases of Hindu and Sikh endowments.

Provisions of the bill

Against this historical and legal background, let’s proceed further on the institution of Waqf property. As per section 1 of 40 of the 1995 Waqf Act, the Waqf Board can initiate proceedings to verify the disputes.
In the succeeding sections, the bill explains the due process for fixing a property as Waqf. Section 3 of Article 40 lays down the procedure. The section reads: “Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the Societies Registration Act, 1860 (21 of 1860) or under any other Act, is waqf property, the Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is waqf property, call upon the trust or society, as the case may be, either to register such property under this Act as waqf property or show cause why such property should not be so registered:
Provided that in all such cases, notice of the action proposed to be taken under this subsection shall be given to the authority by whom the trust or society had been registered.” According to the section, if the Waqf Board realizes a property as waqf with evidence, the Board can initiate the verifications.

Article 40 has to be read with Chapter VIII, which is judicial proceedings. So, The Waqf Board will approach the survey commissioner, who is a government official to asses the validity of the claims.
Chapter II explains the survey of Auqaf governs the process of assessing the land. As per the rules, the survey commissioner will look into the land deeds to verify the claim using historical data. A survey commissioner lists all properties declared as Waqf by conducting local investigations, summoning witnesses, and requisitioning public documents.Thus, claims that a Waqf Board can claim any property are erroneous, as the government is involved in all procedures. Waqf Board untangles the disputes using state bureaucracy. Waqf Boards are not conferred with independent rights to conduct land assessments.

If clients are not satisfied, Article 83 gives them the option to approach the Waqf tribunals. According to Section 83(9) of the Waqf Act, 1995, any party aggrieved by a decision or order of a Waqf Tribunal may file an appeal before the High Court. This provision allows individuals or entities dissatisfied with a Tribunal’s decision to seek redress in the High Court.

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Therefore, while the Waqf Tribunal’s decisions are generally final and binding, there are legal avenues available to challenge these decisions in the High Court, either through the appeals process outlined in the Waqf Act or, in specific cases, by filing a writ petition under the Constitution.

Conclusion

The claims of Waqf tribunals falling outside the formal legal system are also utterly rubbish. The Supreme Court has clarified the legal jurisdiction of tribunals in many seminal cases. (Chandra Kumar vs. Union of India 1997, S.P. Sampath Kumar vs. Union of India 1987, Union of India vs. R. Gandhi 2010). In these judgments, apex courts have clarified the judicial power of respective high courts on tribunals, Thus, aggrieved parties can approach the court.

From these analyses, it is clear that the Waqf Board can not claim any land as Waqf property. Waqf Boards are entitled to enquire into disputed lands and lands with historical evidence to confirm the legal status. Due process has to be followed in the process. Even High Courts can overturn the decision pronounced by Waqf Boards.