The Supreme Court on Friday stayed an Allahabad High Court order directing authorities to restore agricultural land which was illegally being used for the creation of religious structures.
While hearing a Petition filed by the U.P. Sunni Central Waqf Board, the Bench comprising Justice Kurian Joseph, Justice Mohan M. Shantanagoudar and Justice Navin Sinha also issued a notice to the Respondents and restricted the use of loudspeakers at the disputed premises.
The High Court judgment
The Petition challenges a judgment passed by the High Court in February this year on a Petition filed by one Mr. Mahmood Hussain, who had demanded 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 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.
The Court had sided with the State, ruling that the Petitioner was only a tenure-holder and not the owner of the property. It had further noted that since this was an agricultural land, it vests in the State.
It had 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."
Besides, the Court had also observed that 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.
The Appeal now challenges this judgment, relying inter alia on Section 85 of the Waqf Act, 1995 which bars jurisdiction of Civil Courts, revenue courts and other authorities from dealing with matters relating to Waqfs.
The Board further asserts that the High Court should have issued a notice to it as well, and should have granted it an opportunity to present its case, pointing out that it was the Petitioner board which had granted the certificate of registration to Mr. Hussain under Section 36 of Waqf Act, 1995. It relies on Section 90 of the Act, which mandates such issuance of notice to the Board.
Furthermore, it contends that the impugned judgment is per icuriam, as it fails to consider the judgment in the case of Mohd. Abu Zafar Mohammad v. Israr Ahmad and others, wherein a full Bench had ruled that "a Bhumidhar is capable of creating a Waqf of his Bhumidhari right in the land".
It relies on another judgment by a full Bench in the case of MoattarRaza and others v. Joint Director of Consolidation and others, wherein it was held that "bhumidhari rights would accrue in the land in favour of God or Waqf, under Section 18(1)(a) of the Zamindari Abolition and Land Reforms Act, provided that the mutwalli in question was cultivating the land as a mutwalli, i.e., as manager and agent of God or Waqf, who owned and held the land as an Intermediary on the relevant date."
With regard to the ruling that the mosque was build on an agricultural, the Board asserted that since the disputed land had not been used for agricultural purposes since 2010, there existed no need to get it declared so under Section 143 of U.P. Zamindari Abolition and Land Reforms Act, 1950. Besides, it points out that Section 154 of the 1950 Act, which prescribes restrictions on transfer by a Bhumidar, does not expressly bar dedication of the land by the Bhumidar to a Waqf.
It then asserts, "...Hon’ble High Court held that mere registration with a Waqf Board will not result in creation of valid Waqf if it is not otherwise a valid Waqf completely ignoring that once a Mosque is established, no change can be made as the mosque and its adjoining land becomes a permanent Waqf forever...
...Waqf is the permanent dedication by any person, of any movable and immovable property for any purpose recognized by the Muslim law as pious, religious or charitable and Bhumidar with transferable rights is permanent lease holder and hence he can permanently dedicate its property to Waqf."
Read the Order & Petition Here