Recently the entire nation was woken up to a shocking news that an entirely Hindu village in Tiruchendurai, Tamil Nadu, which includes an over 1500 year old Hindu temple, has been declared as Waqf property. This left the Hindus perplexed as to how a religion that came to this land in the 10th century can lay claim to land and a temple that predates even that religion! The Waqf Act is responsible for this travesty.
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We would like to draw your attention to the draconian aspects of The Waqf Act –
1. Waqf is a property endowment by a believer to be held by a trust for religious or charitable purposes. Going by the actual meaning of the word Waqf, the property is ‘detained’ in the service of Allah. So, the property and its usage are thereby governed my Islamic law.
2. However, the Waqf Act also mandates that the Government undertake a survey of all Waqf properties every 10 years. Who pays for the survey? The Taxpayer! Why should the tax payer (which is the majority community) pay for this?
3. The Waqf Act has the draconian provision wherein the Waqf board can take over any property without any intimation to the person who holds/resides on the land, which is what has happened in Tiruchendurai. The only recourse for the aggrieved person is to approach the Waqf tribunal.
4. The Waqf tribunal, as per section 83 of the act, is governed by Sharia law. How can a non-Muslim be forced to approach a tribunal governed by Islamic law to seek deliverance?
5. Section 85, is even worse. The civil courts have no jurisdiction over such disputes! It is pertinent to note that no other minority (Sikhs, Jains, Parsees..) has been granted such absolute powers!
6. The Waqf Act is not subject to the statute of limitations, which contravenes the Limitation Act of 1963. So one fine day, any Waqf Board can lay claim to any property.
7. This brings us to our final point. The Act bestows absolute powers on the Waqf board to lay claim on any property. This is why today, the Waqf properties are estimated to cover about 6 LAKH ACRES across the nation; and the third largest land owner! This is nothing but clandestine takeover of the nation’s resources, unfortunately protected by our own laws!
Hon’ble PM Shri. Narendra Modi ji recently said that we have to get rid of the colonial mindset. This colonial mindset is not limited to the Britsh. As long as this Mughal era exists, we wont be able to shed the colonial mindset. This is clear from the following two examples –
1. Former PM Manmohan Singh, had said that the minorities (read Muslims) have the first right on the resources of India.
2. The INC took this statement to heart and transferred 123 prime properties in Delhi to the Waqf board.
This goes against the secular credentials of this nation!
Indians believe that all Indians are equal before law. But what is unknown that some are more equal than the others! This is amply clear from the provisions and usage of the Waqf Act.
We demand equality. We demand justice. We demand that
1. The Waqf Act be repealed immediately.
2. All the properties held by the Waqf Boards across the country be taken over by the Government. Followed by,
3. High level committees be set up at the National and State levels to probe every such property so that it can be returned to their rightful heirs.
How Waqf Boards have become 3rd biggest land owners in India
The problem of illegal land encroachments in the name of religion isn’t new in India. It has been enumerated via a series of incidents how establishments such as the Central Wakf Board could be illegally gaining control of land by terming them as ‘Waqf’ properties.
The same board has time and again been accused of acquiring lands and public places by fraudulent means, and the relevance of their acts has rightly remained questionable.
Tamil Nadu Waqf Board now claims ownership of 7 Hindu-majority villages and a 1500-year-old temple
On September 11, OpIndia reported how Thiruchenthurai village near Trichy, Tamil Nadu has been designated as a waqf property by the Tamil Nadu Waqf Board. Thiruchenthurai is a village situated on the south bank of the Cauvery river in Tamil Nadu.
Days after news surfaced that the Waqf Board had encroached on an entire hamlet with a Hindu majority population in Tamil Nadu, Times Now has learnt that this village is not the only one. The report suggests that the Tamil Nadu Waqf board has claimed ownership of 7 such Hindu villages in the state. The villagers have additionally, alleged that the Waqf Board has also claimed that the 1500-year-old Sundareswarar Temple belongs to them.
Notably, the Waqf Board has placed posters across the villages claiming ownership of the village land.
Meanwhile, to refute the Waqf Board’s assertions, the locals displayed documents proving that the land had been in their family for centuries. The villagers were taken aback by the Islamic board’s claim to ownership of a centuries-old temple. They have urged the Tamil Nadu Chief Minister to intervene and assist them in stopping the Waqf Board from wrongfully snatching their property.
Supreme Court no to Ganesh puja at Bengaluru Idgah ground
Recently, the Supreme Court of India denied permission for the Ganesh Chaturthi celebrations at the Eidgah Maidan in Bengaluru after the Karnataka Waqf Board raised objections against such celebrations at the said location claiming ownership of the land. This has again brought into focus the prevalent practice of Waqf in an allegedly secular country and the functioning of the boards maintaining them.
While Bruhat Bengaluru Mahanagara Palike (BBMP) claimed that the land of the Eidgah is government land and the title was not transferred to any Muslim organisation, the Waqf Board claimed that it is Waqf property since the 1850s and once a Waqf property, it continues to remain a Waqf property till eternity. Waqf Board’s lawyer Dushyant Dave also argued that Waqf Act is an overriding law and there are no legislative powers over it, hence the Court can not pass an order on a Waqf property.
The Supreme Court then denied permission for Ganesh Chaturthi celebrations and asked to maintain the status quo on the site.
What is Waqf
The very literal meaning of Waqf is detention or confinement and prohibition. As per Islam, it is the property that is now available only for religious or charitable purposes, and any other use or sale of the property is prohibited. As per Sharia law, once Waqf is established, and the property is dedicated to Waqf, it remains as Waqf property forever.
Waqf means that the ownership of the property is now taken away from the person making Waqf and transferred and detained by Allah. As per Sharia, this property is now permanently dedicated to Allah, making Waqf irrevocable in nature.
‘Waqif’ is a person who creates a waqf for the beneficiary. As Waqf properties are bestowed upon Allah, in the absence of a physically tangible entity, a ‘mutawalli’ is appointed by the waqif, or by a competent authority, to manage or administer a Waqf.
The history of Waqf and Waqf Boards in India
In India, the history of Waqf can be traced back to the early days of the Delhi Sultanate when Sultan Muizuddin Sam Ghaor dedicated two villages in favour of the Jama Masjid of Multan and handed its administration to Shaikhul Islam. As the Delhi Sultanate and later Islamic dynasties flourished in India, the number of Waqf properties kept increasing in India.
There was a case made for the abolition of Waqfs in India in the late 19th Century when a dispute over a Waqf property ended up in the Privy Council of London during the days of the British Raj. The four British judges who heard the case described the Waqf as “a perpetuity of the worst and the most pernicious kind” and declared Waqf to be invalid.
However, the decision by the four judges was not accepted in India and the Mussalman Waqf Validating Act of 1913 saved the institution of Waqf in India. Since then, no attempt has been made to curb Waqfs, and Waqf Board is now the 3rd largest land owner in India after the Armed Forces and Indian Railways.
In fact, political vote banks have dictated that the institution of Waqf has only been strengthened post-independence. The Waqf Act of 1954 passed by the Nehru government provided a pathway toward the centralisation of Waqfs. Central Waqf Council of India, a statutory body was established in 1964 by the Government of India under this Waqf Act of 1954. This central body oversees the work under various state Waqf boards which were established under provisions of Section 9(1) of the Waqf Act, 1954. The Waqf Act was made even more favourable to Muslims in 1995 which as Advocate Dave pointed out, is an overriding law and there are no legislative powers over it.
The Waqf Act 1995
The Waqf Act, 1995 was enacted and implemented on November 22, 1995. This act provides for the power and functions of the Waqf Council, the State Waqf Boards, and the Chief Executive Officer, and also the duties of mutawalli.
This Act also describes the power and restrictions of a Waqf Tribunal that acts in lieu of a civil court under its jurisdiction. The Waqf Tribunals are deemed to be a civil court and required to exercise all the powers and functions exercised by a civil court under the Code of Civil Procedure, 1908. The decision of a Tribunal shall be final and binding on the parties. No suit or legal proceedings shall lie under any civil court which this act requires to be determined by a Tribunal. Thus, making the Waqf Tribunal decisions above any civil court.
Once a Waqf property, always a Waqf property
Since the ownership of the property is transferred to Allah from the waqif in the case of Waqf, and property can not be taken back from Allah, once a property becomes Waqf, it will always stay Waqf.
As seen in the case of Bengaluru Eidgah ground, even though there was no title transfer to any Muslim organisation as per the government, Waqf’s claims that it was a Waqf property from the 1850s means that it is now forever a Waqf property.
Recently, the Gujarat Waqf Board had staked claim to the Surat Municipal Corporation building which is now the property of the Waqf because the documents were not updated. As per Waqf, back during the Mughal era, the Surat Municipal Corporation building was a sarai and used during the Hajj travels. The property then belonged to British Empire during British rule. However, when India got independence in 1947, the properties were then shifted to the government of India. However, since the documents were not updated, the SMC building then became Waqf property, and as Waqf Board says, once a Waqf, always a Waqf.
In another bizarre case of staking a claim, Divya Bhaskar had reported that the Waqf Board had written an application to Gujarat High Court staking claim on the ownership of two islands in Bet Dwarka in Devbhoomi Dwarka. A perplexed High Court Judge refused to hear the application and asked the Board to revise its petition wondering how can Waqf stake a claim on land in Krishnanagri.
Another interesting aspect of Waqf is that an apartment in your housing society can any day turn into a mosque without any input from the other members of the society if the owner of that apartment decides to endow it as Waqf. Something similar happened in Shiv Shakti society in Surat where one of the plot owners registered his plot with the Gujarat Waqf Board, making it a holy place for Muslims, and people started offering Namaz there.
Petitions filed in Court challenging the constitutional validity of Waqf Act 1995
Petition filed by H.H. (Adv.) Hari Shankar Jain, Jitendra Singh and 6 others
A petition has been filed in the Supreme Court against the Waqf Act, 1995. The petition seeks that the Court should decide that Parliament does not have the power to make Waqf Act 1995 for Waqf and Waqf propertyti as the Parliament cannot frame laws for Trusts, Trust property and religious institutions.
This petition was filed by H.H. (Adv.) Hari Shankar Jain, Jitendra Singh and 6 others. Waqf law gives special status to Waqf propertyti however, the properties of Hindu Trusts, Ashrams and akhadas have not been given such a special status, the petition said. An old decision of the Andhra Pradesh High Court has been cited for this. It said the Waqf Board owns more land than the Indian Railways and the Ministry of Defense. Currently, the Waqf board has 8 lakh acres of land. So far, 6, 59, 877 properties in the country have been declared in the name of Waqf.
The petition alleges that in the last 10 years, the Waqf Board has encroached on the property of others and declared it as its land. The Waqf Board has the power to remove encroachments. There is no time limit for itti however, the property managers, caretakers, mahants, etc. of religious institutions like Hindu Trusts, Ashrams, akhadas, etc. have not been given such rights.
Stating that the Wakf Board is nothing but a religiously spirited group, Advocate Jain pointed out that the sheer basis for the formation of the Board itself is debatable.
Petition filed by Advocate Ashwini Upadhyay
The plea was filed by Advocate Ashwini Upadhyay. Ashwini Upadhyay stated in his plea that the Waqf Act is antithetical to Secularism in India. The PIL stated that the Act is made under the garb of managing waqf properties but there are no similar laws for followers of other religions. The PIL challenged the validity of various provisions under this act. Upadhyay pleaded that the Act is against secularism, unity, and integrity of the nation. He also highlighted that the Waqf is not mentioned anywhere in the Constitution.
In his plea, Ashwini Kumar Upadhyay had said, “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 petitioner argued that there is no safeguard for Hindus, Jains, Buddhists, Sikhs and other Communities to save their properties from inclusion in the list of Waqf issued by Waqf Boards. Therefore, Hindus, Jains, Buddhists, Sikhs, Bahais, Christians and Zoroastrians are discriminated.
Ashwini Kumar Upadhyay pointed how govt makes payments on Waqf Board but does not collect any revenue, and collects money from Hindu temples but does not spend anything on them. The plea said that the Waqf Board has Muslim MLA, MP, IAS Officer, town planner, advocates and scholars as its members who are paid from the public exchequer, despite the fact the Centre doesn’t collect any money from mosques or dargahs. “On the other hand, States collect around one lakh crores from four lakh temples but there are no similar provisions for Hindus. Thus, the Act offends Article 27,” Upadhyay argued in his petition.
The petition also seeks direction to the Central govt or the Law Commission of India to draft a ‘Uniform Code for Trust-Trustees and Charities-Charitable Institutions’ in spirit of Articles 14 and 15 and publish it for public debate and feedback.
The Delhi High Court issued a notice on 20th April 2022 in a plea challenging the constitutional validity of the Waqf Act 1995.
The relevance of Waqf in a secular country
A special Act for religious properties of only one religion when no such law exists for any other religion smacks of clear discrimination. As a proudly secular country, how do we reconcile with this? In fact, a PIL has been currently filed in the Delhi High Court asking this very question by Advocate Ashwini Kumar Upadhyay. Delhi HC has issued notice to the central government on this plea regarding the constitutional validity of Waqf.
Waqf is not even present in all the Islamic countries with places such as Turkey, Libya, Egypt, Sudan, Lebanon, Syria, Jordan, Tunisia, and Iraq having no Waqfs. However, in India, in a country mired with vote-bank politics, not only are Waqf Boards the largest urban landowners, but they also have an Act protecting them legally.