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A Grave Issue

In a controversial order, the Delhi High Court has refused to stay the transfer of a cemetery belonging to the Waqf Board to the ITBP. Also in question are 123 other properties of the Board.

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Recently, the Delhi High Court refused to stay the transfer of a graveyard in the national capital, purportedly belonging to the Waqf Board, in favour of the Indo Tibetan Border Police (ITBP) by the central government.

 The court of Justice Yashwant Varma sought a response from the centre upon a plea alleging that the government had appointed a two-member committee to re-examine the status of 123 properties, which includes the Qadeemi Qabristan. Plus, the government had not shared the report of the previously constituted one-member committee with the Waqf Board despite the fact that it was a stakeholder in the aforesaid properties.

Justice Varma observed that there was no ground to grant the interim injunction as the allotment was made sometime in 2020. “The mere fact that the petitioner asserts having derived knowledge of the aforesaid fact only recently would not detract from the allotment having been made more than two years ago,” the Court noted.

Further, the Court observed that no irreparable loss or injury had been caused in the case as the land in question has not been fettered away or alienated with, but was under the control of the Union government by way of being in possession of a central paramilitary force. “I am presently not inclined to grant a stay. This is not a place for stay. It is not like the property has gone to private people. We can ask Union to hand it back,” Justice Varma orally remarked, while noting that in case the petitioner ultimately succeeded in the present writ petition, appropriate directions for restitution can always be framed and the allotment can be cancelled.

The matter is slated for next hearing on April 28, 2022.

The backdrop of the issue relates to 123 properties, mainly mosques and graveyards, which were de-notified from the land acquisition process in 2014 and were to be reverted to the Waqf Board. However, the Indraprastha Vishva Hindu Parishad filed a petition before the Delhi High Court challenging the notification passed by the government, wherein the centre was asked to treat the petition as a representation and to take a decision on the same at the earliest.

The government had in 2016 constituted a one-member committee, which submitted its report in 2017. In August 2018, the government appointed a two-member committee to make concrete recommendations after going through the report of the one-member committee. However, the said committee never functioned. Thereafter, in November 2021, the Delhi Development Authority issued a public notice intimating appointment of a fresh two-member committee and inviting representations from all concerned stakeholders in respect of the 123 properties in question.

The present petition has been filed by Advocate Wajeeh Shafiq on behalf of the Delhi Waqf Board. It challenged the constitution of a two-member committee by the centre to re-examine the status of the 123 properties which were de-notified by the centre in 2014 in exercise of powers under Section 93 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and reverted to the Waqf Board.

The petition has pointed out that this is the second such committee constituted for the said purpose, even though a report by the one-member committee was already submitted in 2017. “The whole malafide purpose of appointment of Committee after Committee is to maintain confusion in respect of the title of the petitioner with regard to these waqf properties,” claimed the petitioner.

It was further pointed out in the petition that taking advantage of the matter hanging in fire, the centre transferred a portion of the properties in question, which is Qadeemi Qabristan located at South Inderpat, Mathura Road, to the Indo Tibetan Border Police. The plea stated that once the properties have been de-notified under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, there is no provision in law to recall the order for withdrawal from acquisition.

It is contended that the Waqf properties sought to be acquired were Waqf by user from time immemorial and that the possession of these properties was never taken over. It is further contended that the properties continue to be used for religious observances by the Muslim Community. “The properties never left their Waqf Character and are governed by the provisions of the Waqf Act, 1995, which prohibit alienation of the Waqf Properties,” the plea read.

 The petition further stated that the question as to whether any property specified as Waqf property in the list is Waqf property or not can only be adjudicated by the Waqf Tribunal constituted under Section 83 of the Act, and its decision in this regard shall be final. It added that even the claims of individual persons with regard to any Waqf property can be adjudicated by the Waqf Tribunal only.

The plea averred: “Undisputedly the petitioner is a stakeholder in respect of those 123 waqf properties as those properties are registered and Gazette Notified Waqf properties since more than half a century; are in possession and control of the petitioner through Mutawallis/Managing Committees; are religious properties where religious practices are continuing this day also; were found to be waqf not only by the Delhi Administration appointed Survey Commissioner but also by multiple enquiry committees appointed from time to time; were de-notified by the Union of India in favour of the petitioner in exercise of its powers under Section 93 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.”

“Thus, there is nothing that recently appointed Two Members’ Committee can do in respect of the waqf properties in question,” asserted the plea.

In light of the above, the plea prayed for a direction to the centre to supply the report of the one-member committee to the Waqf Board and to take a fresh decision on the report after affording a reasonable opportunity to the Waqf Board to make submissions. In addition, it also prayed for quashing of the allotment of the graveyard made in favour of ITBP by the centre.

—By Banshika Garg and India Legal Bureau

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