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Synopsis

A petition has been filed in the Rajasthan High Court by a Sunni Musalman Community, the Mafidaran Madaria Aalmeen (Fukran) Sansthan and others, against the property held by Waqf Board under the garb of managing ‘Waqf properties’. The plea says that it is against secularism, unity and integrity of the nation as there are no similar laws for followers of Hinduism, Buddhism, Jains, Sikhism, Judaism, Baha’ism and Zoroastrianism & Christianity.

It is the case of the petitioners that the property held by the Waqf Board under the garb of protecting properties is in complete violation of the Constitution of India, as it is not mentioned anywhere in the Constitution. It further says that it is against secularism, as there exists no such law in other religions. The plea further urges that the approximate number of registered Waqf properties in India so far is around 6.6 lakhs and accounts for around 8 lakh acres of land throughout the country, which makes Waqfs the third largest landholder after the Railways and Ministry of Defense.

In last 10 years, Waqf Boards have rapidly captured the lands of others and declared those properties as Waqf Property. Resulted at present there are 6,59,877 properties according to data released by Waqf Management System of India (WAMSI) working under Ministry of Minority Affairs., up to July, 2020 have been registered as Waqf Property for far covered around 8 lakh acres”, plea further adds.

The plea urges that if the act is to be enacted at all to secure fundamental rights guaranteed under Article 25 & 26, then it must be inconsonance with the Article 14 & 15 of the Constitution of India.

The petitioners contend in the plea that they belong to Fakir Community, and their forefathers were also Fakir and they use to NAMAZ on the place which is called “Takia”. According to the petitioners the actual meaning of Waqf as given under Section 3(5)(R) of the Waqf Act is that it 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. While what happens in general pertains to neither pious religious or charitable purposes, plea urges. Further provided that the actual reason of granting land has not at all been complied with.

Allegations that the plea puts forth:

The allegations that the aggrieved petitioners have alleged in their petition before the High Court are, that:

-the Religious Endowment Act, 1863, Indian Trustees Act, 1882, Charitable and Religious Act, 1990 are made to manage trusts and religious endowments of all communities. But rather than unifying them and making a “Uniform Code for Trust and Trustees, Charities and Charitable Institutions, Charitable and Religious Endowments and Religious Institution” The Centre as well as State has arbitrarily enacted the impugned religion –biased act against the basic tenets of Article 14 & 15.

-Waqf Board lacks the ability decide complicated questions of Civil Disputes relating to Title and Possession of property and instead the power of Civil Court to determine the issues relating to title has been taken away by creating Waqf Tribunal under Section 83 of the Act.

-Waqf Board, wherein the Muslim political persons, Offers, Town Planners, Mutawallies and other approachable persons are paid from the public exchequer, through Central Government as well as the State Government does not collect even a single rupees from any Mosque, Mazar, Dargah. On other hand, the States collect around 1 lakh crore rupees from the 4 lakhs Temples, but there are no similar provisions for Hindus. Thus, the Act offends Article 27 of the Constitution.

-the provision made for inclusion of a property as Waqf property is not in conformity with the principles of natural justice guaranteed under Article 14 of the Constitution of India.

- fate of properties of Trust, Mutts, Akharas and Societies are subject to will of Waqf Board and therefore, they have been place as Subordinates to Waqf Boards, which is against the spirit of Articles 14, 15, 26, 27 and 300-A of the Constitution of India.

Grounds of allegations:

The grounds of allegations with which the aggrieved petitioners have approached the Court are hereunder, that:

-Parliament cannot enact a separate law giving special status to Waqf properties which is not available to other communities governed by the Religious Endowment Act, 1853.

- Waqf Act has been made in addition to and in derogation of the different enactments applicable to TrustsReligious Endowments of all communities.

- they cannot enjoy any special right over and above those applicable to Trusts, Charitable and Religious Institutions being run by Hindu Community or non-Islamic religious group.

- Because no elaborate provision is made in section 4 (3) to verify as to whether the particular property is a Waqf property, when Waqf was created and in what manner or basis the property is being claimed to be Waqf property. There is no title dispute in regard to property either raised by any member of Muslim or Hindu Community.

Therefore, the plea seeks the High Court to pass directions and declare that the Centre can enact only uniform Law for Trust and Trustees, Charities and Charitable Institutions, and Religious Endowments and Institutions as enumerated the Constitution of India, and that they cannot make separate laws for Waqf and Waqf properties.