Plea To Transfer Cases Challenging Waqf Act : Supreme Court Asks Petitioner To File Proper Affidavit

The Supreme Court on Monday asked the petitioner seeking transfer of petitions challenging the Waqf Act to the Top Court from High Courts to file a "proper affidavit" detailing the other pending cases.A bench comprising Justices KM Joseph and Hrishikesh Roy was hearing the transfer petition filed by advocate Ashwini Upadhyaya. On the last hearing date, Justice Joseph had said that he was pained to note the petitioner linking the case to religion. The petitioner is challenging Waqf Act on the ground that it is violating the secular fabric of the country by conferring special powers to deal with properties dedicated as per Muslim law. The bench had on the last occassion pointed out that there are similar laws to deal with Hindu endowments and that such laws have provisions mandating that the members of the board should profess Hinduism. The bench had also said that the striking down of Waqf Act will only give benefit to encroachers.Today, the petitioner, appearing in person, argued that his plea should be heard by the top court, which is likely to finally pronounce on a similar question raised in Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla [SLP (Civil) 31288-312901] and other connected matters. Upadhyay claimed that several matters were pending before different Courts, which raised the same substantial question of law. Justice Joseph instructed the petitioner to file an affidavit with details of the cases. He categorically stated – "Have you pleaded these numbers? Unless you plead it, we cannot take note of this in this manner. You have to file a proper affidavit indicating which matters are pending. We have no problem if you file an affidavit. But the requirement of Article 139(1) cannot be diluted. We will not take note of this." Upadhyay attempted to underscore the urgency of his petition by referring to the Maharashtra State Board of Wakfs case which is scheduled to be taken up tomorrow. Justice Joseph repelled this argument – "The cases coming up from Bombay involve a different question altogether. There, the challenge is against a notification under the Waqf Act. There is no challenge against the Waqf Act." In response, Upadhyay said – "Because this has national ramifications, that is why I am requesting you to decide the validity and interpretation of the Act. If I succeed, then 1000 cases across the country will become infructuous. These I have been found through social media…I have also been getting calls. Jaipur Bench, Rajasthan High Court, Jabalpur Bench…" Justice Joseph responded – "Why don't you put this in your affidavit? There is a procedure for doing it. You will have to own up to your responsibility. File an affidavit." Upadhyay pressed on – "In the last hearing, Your Lordships said that there are similar laws for other communities as well. I respectfully submit that there are no similar laws for other communities." Justice Joseph put a prompt end to the discussion by refusing to examine the merits of the case. He clarified – "Now we do not have to get into that." The matter is listed again after four weeks.

Plea To Transfer Cases Challenging Waqf Act : Supreme Court Asks Petitioner To File Proper Affidavit

Awstika Das

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