The Uttarakhand High Court dismissed a Public Interest Litigation (PIL) filed seeking direction to the respondents not to resort to indiscriminate and arbitrary demolition of places of worship, shrines, mazars, etc. of Muslim Community dehors the provisions of Places of Worship (Special Provisions) Act, 1991 & Uttarakhand Policy for Removal, Relocation and Regularization of Unauthorized Religious Structures on Public Streets, Public Parks and Other Public Places, 2016.
The Division Bench of Chief Justice Vipin Sanghi and Justice Rakesh Thapliyal noted that under the Muslim Law, a waqf can be created in several ways but primarily by permanent dedication of any movable and immovable property by a person professing Islam for any purpose recognized by Muslim Law as pious, religious or charitable purpose and in the absence of such dedication it can be presumed to have come into existence by long use. Dedication of his property by a Muslim is, however, essential.
“Ordinarily, a waqf is brought into existence by any express dedication of movable or immovable property for religious or charitable purpose as recognized by Muslim Law. Once such dedication is made, the property sought to be dedicated gets divested from the wakif, i.e. the person creating or dedicating it. The waqf so created acquires a permanent nature and cannot be revoked or rescinded subsequently. The property of the waqf is unalienable and cannot be sold or transferred for private purpose.
The dedication resulting in the creation of a waqf may, at times, in the absence of an express dedication, may also be reasonably inferred from the facts and circumstances of the case such as long usage of the property as a waqf property, provided it has been put to use for religious or public charitable purposes.
The dedication must not be transient, but it must be permanent. The dedication must be for purposes which are regarded as pious, charitable or religious as per Muslim Law”, the Bench observed.
Justice S.I Jafri in his book “Waqf Laws in India” published in 2015 has explained that a waqf is an unconditional and permanent dedication of property with implied detention in the ownership of God in such a manner that the property of the owner may be extinguished and its profit may revert to or be applied for the benefit of mankind, except for purposes prohibited by Islam.
From the reading of Sections 4 and 5 of the Waqf Act, 1955 the Bench noted that the purpose of a preliminary survey, and publication of list, is not to confer the status on a property, as a Waqf property, or to deem it as a Waqf property, even when it does not satisfy the primary definition of a Waqf, as contained in Section 3(r) of the Act .
The purpose of the survey, is only to survey the existing Waqf properties, i.e. properties, which satisfy the definition of Waqf, contained in Section 3(r) of the Act. This is evident from the plain reading of Sections 4 and 5 of the Act. The Court have consciously highlighted the relevant portion of these sections, to emphasize the words which leave no manner of doubt that the preliminary survey under Section 4, and the publication of the list under Section 5 can only be in respect of Auqaf, which satisfy the requirements of Section 3(r) of the Act. The purpose is not to create a list, and, thereafter, confer upon the enlisted properties the status of Waqf property, much less, when such properties do not satisfy the definition of Waqf, contained in Section 3(r) of the Act.
Section 36 requires that “every waqf, whether created before or after the commencement of the Act, shall be registered at the office of the Board”. This means that every property, which is dedicated as Waqf by the owner of the property, necessarily, has to be registered with the Waqf Board. This section also makes it clear to the Court that the Waqf– of which registration is sought, should be created either by an express deed executed by the owner of the property, or there should be clear evidence of its origin, nature and object.
“We, therefore, cannot place reliance on the said document for any purpose whatsoever. It appears to us that there is nothing to show that the said Masjid could possibly be classified as a Waqf property, since there is nothing to show that the said property was owned by any individual; that it was dedicated by him/ her for use as per Muslim law, which is considered pious, religious, or charitable, and; there is nothing to show that any application was made for registration under Section 36 of the Act to the Waqf Board at any stage whatsoever, or that the Board has registered the said property as a Waqf property. Since the land, on which the structure is situated is forest land, it possibly cannot be classified as a Waqf property, as it could not have been dedicated by any individual for creation of a Waqf. The petitioner does not claim a grant in respect of the said property, and does not claim that there is any revenue record to establish the recognition/ existence of a mosque.”
The Court take note of the recent pronouncements of the Supreme Court in State of Andhra Pradesh (Now State of Telangana) v. A.P State Wakf Board and Ors., 2022 SCC OnLine SC 159, and Salem Muslim Burial Ground Protection Committee v. State of Tamil Nadu and others, 2023 SCC OnLine SC 656, wherein the Supreme Court dealt with the essential requirement of dedication and the wakf by user.