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"No Safeguards For Non-Islamic Properties From Inclusion Of Waqf": Plea In SC Challenges The Constitutional Validity of Waqf Act, 1995

Sanya Talwar
30 Aug 2020 11:26 AM GMT
No Safeguards For Non-Islamic Properties From Inclusion Of Waqf: Plea In SC Challenges The  Constitutional Validity of Waqf Act, 1995

A plea has been filed in the Supreme Court challenging the Constitutional validity of various provisions of the Waqf Act, 1995.

Filed by six petitioners on behalf of Advocates Hari Shankar Jain & Vishnu Shankar Jain, the petition contends that stipulated provisions of the Act grant special status to Waqf properties while no such safeguard exists for Trusts, Mutts, Akharas & Societies.

"In the impugned Act there is no safeguard for Hindus and non Islamic communities to save their religious and private properties from inclusion in the list of Waqf issued by the Government or by the Waqf Boards and Hindu and other religious communities are being discriminated and the impugned provisions violate Articles 14,15,25,27 and 300-A of the Constitution of India."

The plea states the provision made for inclusion of a property as Waqf is not in conformity with the principles of natural justice and the theme underlying Article 14 of the Constitution of India as no elaborate provision has been made in Sections 4, 5, 36 & 40 of the Act in order to identify and determine the status of a property as Waqf.

"In Section 40 a unique provision has been made authorizing the Waqf Boards to make an enquiry in respect of any land to find out as to whether the property is Waqf property or not. In case Waqf Board has reason to believe that any property of Trust or Society is a Waqf property it may call upon the Trust or Society to show cause as to why such property be not registered as Waqf property. The decision of the Board is final subject to any order passed by Tribunal" - Excerpt of Plea

Plea highlights that Waqf Boards have been given special powers in various Sections under the Act, such as Section 54 and 55 in matters of "removing encroachment", in section 89 for giving "two months notice before filing suit", in section 89 for "giving two months notice before filing suit" and in section 107 whereby the applicability of Limitation Act for recovery of possession is exempted for Waqf properties.

These rights and powers have not been given to Trustees, Managers, Shebaits, Mahants and persons managing and administering Trusts, Mutts, Temples, Akharas and religious properties, which is in clear violation of Article 15 & 15(1) of the Constitution, states Singh along with 5 other petitioners.

It is averred that there is no limitation for recovering Waqf properties whereas "similarly situated Hindu trust and endowments face the embargo of law of limitation, there is no similar provision available to Hindu trust to regain its lost property and further there is no provision to save the interest of properties belonging to non-Muhammdans from being illegally included in the list of Waqf"

Petitioner(s) state that Waqf has not been given any special status in the Constitution and thus, the same is at par with other charitable and religious institutions. "Thus, they cannot enjoy any special right over and above those applicable to Trusts, Charitable and Religious Institutions being run by Hindu community or nonIslamic religious group", it is aded.

In this backdrop, the plea contends that the State cannot make any law giving special status and rights to a "particular religious community" within the four corners of Constitutional provisions and State cannot show its inclination towards one religion in a Secular state as the definition of "Waqf" in the Shariat Act comes within the ambit of personal law of muslims relating to religion.

Petitioner(s) have contended that there is no provision for giving notice to the general public and to conduct open hearing to enable the affected persons or the persons have interest or title over the property to present their case as Section 4(3) only provides that survey Commissioner after making such enquiry as he may consider necessary submit his report in respect of auqaf existing at the date of commencement of this Act in the State.

"The Waqf Act has given wide and uncontrolled powers to Waqf Boards and Waqf properties have been placed over and above other charitable religious institutions. No other enactments (The Religious Endowment Act 1863, The Indian Trust Act 1882 and Charitable and Religious Trust Act 1920) has conferred such wide powers and status to Hindu religious institutions or non Islamic religious institutions."

In light of the above, the petitioners have sought issuance of appropriate direction or declaration that Parliament must not make any law beyond the scope of scope of Trust, Trust properties, charitable and religious endowments and religious institutions as enumerated in item 10 and 28 of list 3 of 7th Schedule and that it has no power to make any separate law for Waqf & Waqf properties. The prayers further stipulate:-

  1. Issue an appropriate writ, order, direction or declaration that any Rule, Notification, Order or Decision issued under the Waqf Act,1995 is not applicable to the properties belonging to, owned and possessed by Hindus or members of non-Islamic communities;
  2. Issue an appropriate writ, order, direction or declaration that the Tribunal or a quasi judicial forum cannot decide the dispute relating to property between two religious communities and same can be decided only by a court;
  3. Issue an appropriate writ, order or direction striking down Sections 4,5,8,9(1)(2)(a), 28,29,36,40,52,54,55,89,90,101 and 107 of Waqf Act,1995 for violating the provisions contained in Articles 14,15,25,26,27 and 300-A of the Constitution of India;
  4. Issue an appropriate writ, order or direction striking down Section 6,7 and 83 of the Waqf Act,1995 being in violation of Articles 14,15(1) and 323-A of the Constitution of India.
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