The Allahabad High Court, on Friday, pulled up the authorities for their "lethargic attitude" and directed them to restore agricultural land which is illegally being used for the creation of religious structures.
"The authorities of the State and in particular, the Collector who is also a Revenue Court under the provisions of U.P. Act, 1950 read with U.P. Land Revenue Act 1901, is under obligation to ensure that the nature of agricultural land is not illegally changed and it is usurped for illegal purposes in the name of religion or right to profess religious customs...
... It is this casual, lethargic and soft approach on the part of the authorities whereby they allow certain sections of people to violate law which spread like an infectious disease and encourage others also to indulge in such activities and defy law. It is high time when the authorities must awake, become conscious of their rights, obligation and duties and take appropriate action for implementation of law and uphold rule of law. We make it clear that our observations are not confined to any one kind of religious endowment but if similar activities are found in respect of other religions, similar action must be taken with respect to them also and everyone must be dealt with equally and with same standards to maintain law," the Bench comprising Justice Sudhir Agarwal and Justice Ajit Kumar observed.
It then directed the Chief Secretary, Government of U.P., Lucknow to look into the matter and take necessary steps within a period of three months. The matter has been listed on 28 May for perusal of the compliance report.
The Court was hearing a Petition filed by one Mr. Mahmood Hussain demanding that he be permitted to offer Azan at his Madarsa, which he claimed housed a mosque. The District Magistrate had found that the land in question was agricultural land and that such land could not have been used for creating a Waqf and constructing a mosque.
This order had now been challenged, contending that the authorities could not have interfered with the religious activities of a minority community in view of the rights conferred upon them under Articles 25, 26, 29 and 30 of the Constitution of India.
The State, on the other hand, had contended that the land in question was agricultural land and hence, it vested in the State and would be governed by the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. A Waqf, it said, could not have been created on such land.
In view of the rival submissions, the Court listed down the following issues for its consideration:
(i) What is concept of Waqf and whether ownership of a property in Waqif is a necessary ingredient to create a valid Waqf?
(ii) Whether agricultural land governed by the provisions of Act, 1950 can be subject matter of creation of a Waqf by Tenureholder i.e. Bhumidhar with transferable rights?
(iii) Whether Act, 1950 contemplates creation of a Waqf by an individual over agricultural land which is vested in State so long as the land is governed by provisions of Act, 1950 or there is any provision making some exception?
(iv) If Tenure-holder proceeds to create a Waqf, the mere fact that Namaz had been offered or that such Waqf has been registered by Sunni Central Waqf Board or may be, by Shia Central Waqf Board, as the case may be, will it result in creation of a valid Waqf, having effect of taking away land from State and vesting in Allah?
(v) Whether registration of a Waqf with Sunni Central Waqf Board will take away the land from the State and District Magistrate/Collector will cease to have any jurisdiction to examine into correctness of such transaction when the land belongs to State of U.P. and governed by provisions of Act 1950?
The Court ruled that in order to constitute a Waqf, ownership of such land is mandatory, and opined, "... ownership of property of which wakf is to be constituted must vest in the Wakif but a Waqif himself does not possess the right to direct or vest the property in anyone including the Allah or Almighty."
Further, examining various authorities on the aspect, the Court noted that when a Waqf is created by the construction of a Mosque, "it ceases to be a property of builder and vests in God". It explained, "... a Waqf, therefore, is an unconditional and permanent dedication of property with implied detention in the ownership of God in such a manner that property of owner may be extinguished and its profit may revert to or be applied for the benefit of mankind except for the purposes prohibited by Islam."
Issues (ii) and (iii)
The Court noted that the Petitioner is only a tenure-holder and not the owner of the property. It further noted that since this was an agricultural land, it vests in the State.
The Court then opined that the Petitioner could not have created a Waqf on the land in question, observing, "...when the land vests in the State and Bhumidhar has transferable right only as a Tenure-holder and not owner of the land. By way of creation of Waqf, vesting of land in the God i.e. Almighty is not permissible since Waqif is not the owner of land and ownership having not vested in him cannot be vested in the God also."
Issues (iv) and (v)
The Court observed that the mere registration of property as a Waqf or mosque by the Sunni Central Board of Waqf cannot be considered conclusive, noting that the Waqf Act of 1995 is only a statute for administration of Waqf and not to create a Waqf.
It explained, "Waqf statutes thus neither create a Waqf nor extinguish the same if the same is already in existence. Converse too is also in as much as mere registration of property or a building as Waqf by the Board will not confer any validity regarding status of Waqf thereon if from the admitted facts it is evident that no valid Waqf was created by the Waqif and the necessary ingredients to constitute a valid Waqf, all or any of them are absent any other view would read something in the statute which is not there. It travels in the realm of casus omissus which normally this Court shall not presume unless there is a necessary compulsion to do so."
The Court, therefore, refused to allow the Petition, observing, " Therefore, a sheer illegal and unlawful act was performed by petitioner, and that too in the name of religion. He wants to retain the fruits of his unlawful activities and requires a mandate from this Court, which would amount to perpetuate illegality committed by petitioner.
In fact, entire members of community should have come forward against such unlawful act of petitioner, which was directly in the teeth of statute, but we find that a common practice is being followed almost in every religion, where in the name of religion, they usurp land of State and raise constructions thereon, knowing it well that it is not only illegal but a crime, still in the name of religion, everybody then works to refrain authorities from taking action, as a consequence of such illegal act. While sitting in Writ Jurisdiction under Article 226 of Constitution of India, we cannot allow such activities either to continue or perpetuate."