The Delhi High Court on Wednesday has issued notice in a petition filed by BJP leader Ashwini Upadhyay challenging the provisions of the Waqf Act 1995.

The Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla issued notice in a plea filed by Advocate Ashwini Upadhyay, where the petitioner counsel has argued that the Waqf Act is against the principle of secularism as well as unity and integrity of the country because there are no similar laws for followers of Hinduism, Buddhism, Sikhism and other religions.

The bench inquired the petitioner counsel that why they haven’t impleaded the waqf board in the matter and why are the parties shying away from doing so.

“Court: You have not impleaded the waqf board there is a party challenging the waqf act

Petitioner’s Counsel: I have made the ministry of minority affairs. Milord and the ministry of law.

Court: The body which is constituted under the Waqf Act it should be there no,?

Petitioner’s Counsel: Milord it is under the Section 14 of the act. Because the entire act ultimately the owner is the ministry of minority affairs

Court: But why are you shy of impleading them

Petitioner’s Counsel: I don’t have any problem milord. I will summon them.”

The bench further noted that “At the onset, the petitioner states that the Waqf board is a party respondent, the petitioner have filed them a memo to the party, to which the petitioner’s counsel replied that, “ milord it’s a matter where we can make the party to the Delhi Govt. I am challenging the centre act so I made the party only the centre but if your lordships want I can make the party the Delhi govt.”

The Court also asked the petitioner counsel as to why is the Delhi govt. is impleaded and directed them to implead the Waqfboard.

The bench directed to file immediate memos to the parties and issued notice to the respondent no 4 and further asked the respondents to file affidavits within four weeks.

The matter is now listed on July 28th for further hearing.

Below are the short submissions on behalf of the petitioner counsel submitted in the court:-

1. The Act is made to administer the properties of Muslims but there are no similar laws for followers of Hinduism, Buddhism, Jainism, Sikhism, Judaism, Bahaism, Zoroastrianism and Christianity. Hence, it is totally against the secularism, unity and integrity of the nation.
2. The Act has no Statement of Objects and Reasons. Nevertheless, if it has been made under Entry-10 and Entry-28 of the List-3 of the Schedule-7, then it must be gender-neutral and religion-neutral.
3. Waqf is not mentioned anywhere in the Constitution. However, if the Act is enacted to secure fundamental rights guaranteed under Articles 25-26, then it must be in consonance with Articles 14-15.
4. If the impugned Act has been made to protect the fundamental rights guaranteed under Articles 29-30 then it has to cover all minorities i.e., followers of Jainism, Buddhism, Sikhism, Judaism, Bahaism, Zoroastrianism, Christianity and not only Muslims.
5. Ordinarily, Centre cannot make Tribunals arbitrarily beyond thescope of Articles 323A-323B, but if the Act is enacted by using the plenary powers under Article 245 & Entry-97 of List-1, Schedule-7; then Tribunal has to perform in consonance with Articles 14-15.
6. The Constitution establishes three types of Courts: (i) Union Judiciary under Articles 124-146, (il) High Courts under Articles 214-231, and (ili) Subordinate Courts under Article 233-237. The intention of the Framers was that all the matters relating to Civil dispute shall be decided by the Courts of Original Civil Jurisdiction constituted under Chapter-VI of the Constitution and Section 9 CPC.
7. The Board which has Muslim MLA, Muslim MP, Muslim IAS Officer, Muslim Planner, Muslim Advocate, Muslim Scholar & Mutawalli; is paid from public exchequer, though Centre doesn’t collect even one rupee from any Mosque Mazar& Dargah. On the other hand, States collect around One Lac Crore from Four Lac Temples but there are no similar provisions for Hindus & Jains. Hence, Offends Article 27.
8. Religious Endowment Act 1863, Indian Trustees Act 1866, Indian Trust Act 1882, Charitable Endowment Act 1890, Official Trustees Act 1913 and Charitable & Religious Act 1990 are made to manage trusts & religious endowment of all communities. But rather than unifying them and making a “Uniform Code for Trust-Trustees, Charities-Charitable Institutions, Charitable-Religious Endowments and Religious Institutions”, Centre has arbitrarily enacted the impugned Religion-Biased Act, against Articles 14-15.

A Public Interest Litigation has been filed in the Delhi High Court challenging the validity of provisions of Waqf Act 1995, which is made under the garb of managing waqf properties but there are no similar laws for followers of Hinduism, Buddhism, Jainism, Sikhism, Judaism, Bahaism, Zoroastrianism & Christianity. Hence, it is against the secularism, unity and integrity of the nation.

According to the PIL filed by Advocate Ashwini Kumar Upadhyay as In – Person , the Waqf is not mentioned anywhere in the Constitution. However, if the Act is enacted to secure fundamental rights guaranteed under Articles 25-26, then it must be in consonance with the Articles 14-15. The Act has no Statement of Objects and Reasons. Yet, if it is enacted under Entry-10 and Entry-28 of the List-3 of the Schedule-7, then it must be gender-neutral religion-neutral. Likewise, If the impugned Act has been made to protect the rights guaranteed under Articles 29-30 then it has to cover all the minorities i.e., followers of Jainism, Buddhism, Sikhism, Judaism, Bahaism, Zoroastrianism, Christianity, and not only Islam.

The PIL said that ordinarily, Centre cannot make Tribunals arbitrarily beyond the scope of Articles 323A–323B, but if the impugned Act is enacted under Article 245 and Entry-97 of the List-1 of the Shedule-7, then the Tribunal has to perform in consonance with Articles 14-15. Moreover, the Religious Endowment Act 1863, Indian Trustees Act 1866, Indian Trust Act 1882, Charitable Endowment Act 1890, Official Trustees Act 1913 and Charitable and Religious Act 1990 are made to manage trusts and religious endowments of all communities. But rather than unifying them and making a “Uniform Code for Trust and Trustees, Charities and Charitable Institutions, Charitable and Religious Endowments and Religious Institution”, Centre has arbitrarily enacted the impugned religion-biased Act against the basic tenets of Articles 14-15.

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“The Indian Constitution establishes three types of Courts: (i) Union Judiciary under Articles 124-146, (ii) High Courts under Articles 214-231, and (iii) Subordinate Courts under Article 233-237. The intention of the Constitution makers was that all the matters relating to Civil dispute shall be decided by the Courts of Original Civil Jurisdiction constituted under Chapter-VI of the Constitution, and particularly under Section 9 of the Civil Procedure Code 1908”

-said the Petition.

The Petition highlights that Waqf Board which has Muslim MLA, Muslim MP, Muslim IAS Officer, Muslim Town Planner, Muslim Advocate, Muslim Scholar, Mutawallis; are paid from the public exchequer, though Centre doesn’t collect even one rupee from any Mosque Mazar Dargah. On the other hand, States collect around One Lac Crore rupees from Four Lac Temples but there are no similar provisions for Hindus. Thus, the Act offends Article 27.

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Petitioner is challenging the validity of S. 4, 5, 6, 7, 8, 9, 14 of the Act, as these provisions grant special status to Waqf properties denying equal status to Trust, Mutts, Akharas, Societies and confer unbridled powers to Waqf Boards to register any property as Waqf property. There is no safeguard for Hindus Jains Buddhists Sikhs and other Communities to save their properties from inclusion in the list of Waqf issued by Waqf Boards. Therefore, Hindus Jains Buddhists Sikhs Bahais Christians Zoroastrians are discriminated . It offends Articles 14-15.

Moreover, no elaborate provision has been made in Sections 4, 5, 36, 40 of the Waqf Act to identify and determine the status of property as Waqf property and the provision made for inclusion of a property as Waqf property is not in conformity with the principles of natural justice guaranteed under Articles 14 of the Constitution.

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The PIL mentioned that in Section 40 of the Act, 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, Mutts, Akharas and Societies 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 the Tribunal. Thus, the fate of properties of Trust, Mutts, Akharas and Societies are subject to the will of Waqf Board and therefore they have been placed as Subordinates to Waqf Boards, which is against the spirit of Articles 14, 15, 26, 27 and 300-A.

“Approximate number of registered Waqf properties in India is stated to be 6.6 lakhs and accounts for around eight lakh acres of land throughout the country and this makes Waqfs the third largest landholder after the Railways and Ministry of Defense. In the last 10 years, Waqf boards have rapidly captured the lands of others and declared those properties as Waqf property. The result is that at present 6,59,877 properties according to data released by Waqf Management System of India (WAMSI) working under the Ministry of Minority affairs, up to July 2020, have been registered as Waqf property. It is estimated that 6,59,877 properties registered so far cover around 8 lakhs acres”.

Waqf Boards have been given special powers in S. 54-55 in the matter of removing encroachment, in section 89 for giving just two months’ notice before filing suit and in section 107 exempting from applicability of the Limitation Act for recovery of possession of Waqf property. Though, Trustees, Managers, Shebaits, Mahants and other similarly situated persons managing and administering Trusts, Mutts, Temples, Akharas and religious properties do not enjoy such rights and power. Such conferment of special status to Waqf Boards is clearly in violation of Article 14 and 15(1) of the Constitution, alleged the PIL.

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“The power of the Civil Court to determine the issues relating to title has been taken away by creating Waqf Tribunal under S.83 as a substitute, which consists of only one judicial member. Moreover, Parliament has no power to establish Tribunals beyond the scope of Article 323-A. It is apparent that the matters enumerated in Article 323-A do not attract property disputes relating to Charitable and Religious properties. Petitioner submits that Waqf Board cannot decide complicated questions of Civil Disputes relating to Title and Possession of property”

-the PIL reads.

The Madras High Court recently disposed of a PIL seeking direction to the respondents to re-fix and enhance the lease amount for the land belonging to Vethapureeswarar Temple, Vetharanyam, Nagapattinam District, to an extent of 2426 acres of land, and to recover the said land in the manner known in the law.

The PIL has been filed by one A.M. Sundaravel.

While considering the PIL, the Division Bench of Acting Chief Justice Munishwar Nath Bhandari and P.D. Audikesavalu noted that the land in question was leased out by the temple in favour of the Salt Commissioner, Jaipur in 1961. Pursuant to the lease document, the Salt Commissioner is occupying the land.

“A direction of the nature sought cannot be given in a public interest litigation because rights of the parties are governed by the lease documents and as per the Hindu Religious and Charitable Endowment Act, 1959,”

-the High Court observed.

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The counsel appearing for respondents  has placed on record documents to show the action taken by the temple to seek eviction of the first respondent, by invoking Section 78 of the Act of 1959, from the land in question.
“In view of the above, since the Hindu Religious and Charitable Endowments Department has already initiated action to evict the first respondent, a direction of the nature sought by the writ petitioner cannot be given,” the order reads.