The Gujarat High Court dismissed a Public Interest Litigation (PIL) filed challenging the Notifications dated 7.11.2023 and 18.11.2023 for constitution of the Gujarat State Waqf Board under Section 14 of the Waqf Act, 1995.

The contention of the counsel for the petitioners is that the State Government has not followed the provisions of Section 14 of the Waqf Act, 1995 for composition of the Waqf Board vide the Notifications impugned. The first ground of challenge is that the requirement of Sub-section(4) of Section 14 that the number of elected Members of the Board should be more than the nominated Members of the Board at all times, except the provisions of Sub-section(3) of Section 14, which has not been obeyed, inasmuch as, there are three elected Members and nominated Members are four in number.

On a query made by the Court as to which of the categories of the elected Members as per the composition of the Board provided under Section 14 sub-section(1), has been nominated by the State, no plausible answer has been given.

It is an admitted fact of the matter that each category pertaining to the elected members has been elected by the State in accordance with the provisions of Sub-section(1) of Section 14 and the nominated Members are also in accordance with the said provisions. However, the only contention raised by the counsel for the petitioners is that one Muslim member of Parliament from the State falling in category 14(1)(b)(i) should fall in the nominated category as no election was held and the said member has been nominated by the State Government.

The Division Bench of Chief Justice Sunita Agarwal and Justice Aniruddha P Mayee find inherent fallacy in the argument of the counsel for the petitioners for the simple reason that there was non-availability of Muslim M.P. and Ex-M.P. falling in category 14(1)(b)(i). When there was no other person available falling in the said category, there was no question of election. A person who has been appointed in category 14(b)(i) by exercising power under Section 14(3), has to be treated in the elected category. As no other Member of the category 14(1)(b)(i) was available, there was no question of election from the said category. The person who has been appointed in category 14(b)(ii) would fall in the category of the elected Members. The result is that out of the total 7 Members, 4 Members would fall in their elected category and three in the nominated category.

The Court therefore, does not find any merit in the submission of the learned counsel for the petitioner about violation of sub-section (4) of Section 14. The nomination of person in the category 14(1)(b) (i) would not infringe the provisions of Sub-section(4), inasmuch as, it carries exception in the shape of sub-section(3) of Section 14. The first argument of the learned counsel for the petitioners to assail the composition of the Waqf Board, therefore, is turned down.

As regards the second contention for non-compliance of the provisions of Sub-section(1) of Section 14 that at-least two Members appointed of the Board were required to be women, nothing has been brought on record before the Court about the availability of woman candidates in the nominated categories as provided in sub-section(1) of section 14. In absence of any material on record, no roving inquiry can be made by the Court to record any exception to the composition of seven Members of Board by the Notifications impugned. The second ground of challenge is also, therefore, turned down.

Lastly, as regards the third ground pertaining to the competence of the persons nominated in Clause 14(1)(c) & (d), no foundational facts have been pleaded in the petition. The assertion of the petition is completely vague and does not reflect on the competency of the nominated persons. Moreover, the nominated persons are also not parties in the petition.

Therefore, the Court did not find any merit in the submissions of the counsel for the petitioners to grant any further time to file proper affidavit or to implead those persons who have been nominated in the aforesaid clauses as Members of the Waqf Board.

The Allahabad High Court has set aside the order issued by Sunni Central Waqf Board Lucknow regarding the tenure of Waqf Management Committee Moradabad and has ordered to maintain the status quo.

The Division Bench of Justice Mahesh Chandra Tripathi and Justice Prashant Kumar passed this order while hearing a petition filed by Committee of Management Waqf No 856, Moradabad (Now Amroha).

The Petition under Article 226 of the Constitution of India is preferred with request to issue a writ, order or direction in the nature of certiorari quashing the order dated 26.07.2023 passed by the “U.P Sunni Central Waqf Board, Lucknow” and consequential Office Memorandum dated 31.07.2023, issued by the Assistant Secretary of Waqf Board.

As per earlier order dated 10.02.2015 passed by the Waqf Board, a Committee was appointed in exercise of powers conferred under Section 67 of the “Waqf Act, 1995” by which Aslam Hussain (petitioner) was appointed as President of the Committee consisting with 10 other members to manage the affairs of the said Waqf for a period of three years.

Thereafter, the said order was notified by the Assistant Secretary of the Waqf Board vide OM dated 23.03.2015. As the term of the petitioner Committee was about to expire on 22.03.2018, it applied for extension of its term. The Chairman of the Waqf Board vide his order dated 06.03.2018 had extended the period of the Committee of Management for a further period of three years w.e.f 10.2.2018.

The said order was challenged by one Mobin Shah before the U.P Waqf Tribunal, Lucknow, which was registered as Waqf Petition of 2018 (Mohammad Mobin Shah vs U.P Sunni Central Board of Waqfs and two others) on the ground that the Waqf Board had failed to apply its judicious mind to the entire facts and circumstances of the case and relied upon the report submitted to it by an officer without giving any opportunity of hearing to Mohd Mobin Shah. The said order was also challenged on the ground of wrong findings. The main plank of argument was that the said order was passed against the will and wishes of Waqif and the appointment of the Committee by the Board as per order dated 06.03.2018 was not fair and reasonable. The same could not sustain in view of provisions contained under the Act and therefore, the order of appointment of the Committee was also liable to be set aside.

The Waqf Tribunal vide order dated 13.03.2020 had allowed the waqf petition and set aside the order dated 06.3.2018 passed by the Chairman of the Waqf Board and remitted back the matter to the Board to pass the speaking order, after giving opportunity to the parties.

While remitting the matter, in order to fill up the vacuum in the administration of the Waqf, the Waqf Tribunal further observed that the parties shall maintain status quo as on the said date, and till finalization of the proceeding. The Waqf Board upon remand had reconsidered the entire matter and passed a detailed order on 13.6.2022.

The Court noted that prior to passing an order dated 13.6.2022 the Circle Inspector was also directed to conduct a fact finding enquiry vide an order dated 25.6.2021 passed by the Chairman of the Waqf Board. The Circle Officer/Executive Officer had accorded an opportunity to Mobin Shah and Aslam Hussain (petitioner) and submitted its report on 25.8.2021. The parties had also submitted their written arguments in the said proceeding. By an order dated 13.06.2022 the Waqf Board had passed an order and approved the claim set up by the petitioner Committee for further five years. In the said proceeding, Mobin Shah had put up his claim that he is Sajjadanashin of the Dargah and also belongs to the same Fakir community of Bhure Khan, whose Mazaar (waqf) was created and therefore, he had better rights to manage the waqf. The claims set up by Mobin Shah were rejected by the Board on 13.06.2022.

In the matter, no material has been placed before the court to substantiate that the rival Committee had ever agitated against the continuance of the petitioner Committee since 10.02.2015. In response to the order of the Waqf Tribunal dated 13.03.2020 the Waqf Board had considered rival claims and accepted the claim set up by the petitioner Committee regarding its election, which was accorded due recognition by the Waqf Board on 13.06.2022 and accordingly, the publication was also made vide OM dated 15.06.2022.

The matter was remanded back by the Waqf Tribunal on 13.03.2020 and proceedings before the Waqf Tribunal continued for a substantial long two years. Even in the said proceeding, at no point of time the rival claimant had ever set up its case. Only after passing an order of extension of five years of the Waqf Board, the alleged claim was set up by the 6th respondent and for the first time, he appeared before the Waqf Board on 20.06.2022. On the said date, he filed an application dated 06.05.2022 and set up his case on the basis of election dated 06.05.2022.

The Court observed that,

In view of the foregoing discussion, it is apparent that while passing the impugned order the Board has not proceeded in consonance with the provisions under Section 67 of the Act, wherein the Board may, if it is satisfied, for reasons to be recorded in writing, that a Committee, referred to in sub-section (1) is not functioning properly and satisfactorily, or that the wakf is being mismanaged and that in the interest of its proper management, it is necessary so to do, by an order, supersede such committee, and, on such supersession, any direction of the wakf, in so far as it relates to the constitution of the committee, shall cease to have any force with further rider that before making any order superseding any committee, issue a notice setting forth therein the reasons for the proposed action and calling upon the Committee to show cause within such time, not being less than one month, as may be specified in the notice, as to why such action shall not be taken.

It is a trite law that the Court’s jurisdiction to interpret a statute can be invoked when the same is ambiguous. Whereas in the matter, there is no ambiguity in the language of the Act, which may warrant for any interpretation of the provisions contained therein. We find that in case of any eventuality or counter claim was set up by the rival Committee before the Board, it was appropriate to the Board to take recourse under Section 67 of the Act.

The Court further observed that,

Contrarily, in the matter, no proceeding has admittedly been drawn. Merely an application of the rival committee was entertained and without recording satisfaction, the proceedings were initiated even without any show cause notice as contemplated in sub-section (2) of Section 67. The entire action is vitiated on this count itself. In the Act there is no ambiguity and therefore, the objection, which has been raised and pressed by the respondent counsels that the General Clauses Act gives such a power to the Board to rescind or review, is unsustainable. The order of recognition and further extension of the petitioner Committee could be withdrawn/recalled by the Waqf Board only when such eventualities were there and at the said stage the Board was of the opinion that it had to take a recourse as contemplated under Section 67 of the Act.

Therefore, the general power under Section 21 of the General Clauses Act to rescind a notification or order has to be understood in the light of the subject matter, context and effect of the relevant provisions of the statute under which the notification or order is issued and the power is not available after an enforceable right has accrued under the notification or order.

Moreover, Section 21 of the General Clauses Act has no application to vary or amend or review of quasi judicial power. A quasi-judicial order can be generally varied or reviewed when obtained by fraud or when such power is conferred by the Act or Rules under which it is made. Relying upon the admitted facts of the case, this Court is of the opinion that the Waqf Board has exercised its power in the most arbitrary manner and without taking recourse as available under the Act.

In view of the foregoing discussion, the Court allowed the petition and the order dated 26.07.2023 passed by the Waqf Board as well as the consequential Office Memorandum (OM) dated 31.07.2023 issued by the Assistant Secretary of the Waqf Board are set aside.

“The Waqf Board is directed to pass a speaking order in relation to the appointment of the Committee of Management of the aforesaid Waqf after hearing all the parties concerned in accordance with law within six weeks from the date of receipt of certified copy of the order. Meanwhile, in order to avoid the vacuum in the administration of the Waqf, we direct that the status quo as of today shall be maintained by the parties”, the Court ordered.

The Uttarakhand High Court dismissed a Public Interest Litigation (PIL) filed seeking direction to the respondents to complete the Survey of unregistered existing waqf properties under the provision of section 4 and 5 of the waqf Act, 1995 which is pending since 2005 within prescribed time.

The PIL further seeks direction”-

-to the respondent to rebuild the illegally demolished Mazars of Muslim Community on the expenses of the concerned department.

-to the respondents to compensate for the damages caused by illegal demolition of Mazars by respondents to the management committee / Mutawally of demolished Mazar.

-to the respondent to lodge the F.I.R to penalise the responsible officers who are involved deliberately in the illegal demolition of the Mazars of Muslim Community in violation of Article 15 of The Constitution of India.

The case of the petitioners is that the Government and the district authorities have failed to perform the duties vested in them to protect public user Auquaf (religious structures like Graveyard, Mazar, Khankah, Tombs of Muslim Community) by completing the survey of existing unregistered Waqfs, and publishing a Gazette Notification in the State according to the provisions of Section 5 of the Waqf Act, 1955, which, the petitioners state, has not been done since 24.11.1984.

On a reading of the Petition, the Division Bench of Chief Justice Vipin Sanghi and Justice Rakesh Thapliyal noted that the purpose of filing of the Petition, primarily, is to seek regularization of religious structures raised on encroached public land. This is evident from the following averments :-

(i) The petitioners make a reference to the notice issued by the State of Uttarakhand, through the Secretary Forest Department, to petitioner , stating that the Mazar Jalal Shah Mastan Shah, subject matter of the notice, is illegal, since it is situated on the land belonging to the Forest Department.

(ii) The petitioners talk about the notice issued by the State of Uttarakhand, through the Secretary Forest Department dated 12.01.2023, in respect of the Mazar falling on forest land.

(iii) The petitioners talk about the notice issued by the State of Uttarakhand, through the Secretary Forest Department on 13.03.2023, in respect of Mazar Nathathan Peer Baba, which is also situated on forest land.

(iv) The petitioners state that, on official enquiry being made about illegal religious structures like Mazars, Temples, Gurudwaras and Churches situated on forest land, it was found that 155 Hindu Temples, 10 Mazars and 2 Gurudwaras were existing on encroached forest land. The petitioners have alleged that, while the religious structures, belonging to the Muslim Community, have been demolished, not a single Temple has been demolished.

On perusal of the Petitionthe Bench noted that the purpose of filing the Petition is, primarily, to seek protection in respect of Mosques, Mazars, Dargahs etc., constructed on encroached public land.

The Court have already considered this primary issue in Writ Petition (PIL) No. 82 of 2023 decided on 26.05.2023, titled as “Shri Tafazzul Hussain Ansari v. State of Uttarakhand and others”.

After noticing the provisions of the Waqf Act, 1955, the Bench observed 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. This Court had observed that dedication of his property by a Muslim is essential. Since the petitioner had failed to bring to the notice of this Court any specific instance, where a Waqf has been created by dedication of his own property by a Muslim for any purpose recognized by Muslim Law as pious, religious, or charitable, the Bench dismissed the said Petition.

In this case as well, the Bench found that the petitioners have not pointed out a single instance, where a property claimed as a Waqf was, in fact, dedicated by a person professing the Muslim religion, for one of the aforesaid purposes, which may have been directed to be demolished by the State.

The Counsel for the petitioners does not dispute the fact that the Petition is squarely covered by our judgment in Shri Tafazzul Hussain Ansari (supra).

The Central government apprised the Delhi High Court about 120 petitions which pending before various High Courts across the country challenging the provisions of the Waqf Act, 1995.

Central Government Standing Counsel (CGSC) Kirtiman Singh informed the Court about the same today and moved an application seeking more time to file a response to the petitions against the Waqf Act.

A bench of Chief Justice Satish Chandra Sharma and Justice Sachin Datta asked the government counsel to take steps and obtain instructions for consolidation and transfer of all the matters to the Supreme Court.

The Court was hearing a batch of petitions challenging the provisions of the Waqf Act. One of these petitions is by BJP leader Ashwini Upadhyay.

The government in its application said that there are several matters which remain pending across the country which challenge one or more provisions of the Waqf Act, it is necessary that it takes a considered and consistent view.

The Government submitted that keeping in view the multiple petitions challenging various sections of the Waqf Act, 1995, it is essential for the Respondents/Applicants (Central government) to ensure that a clear and consistent view is taken.

It states that this would involve thorough examination of petitions, consultation/vetting by the Government Counsels and discussions with other stakeholders, such as State Governments,

The High Court will hear the case next on July 26.

In his plea, Upadhyay has argued that the Waqf Act is made for the management of waqf properties but there are no similar laws for followers of Hinduism, Buddhism, Jainism, Sikhism, Judaism, Bahaism, Zoroastrianism and Christianity.

The plea contended.it is “against the secularism, unity and integrity of the nation.

It stated that the Waqf Board has Muslim MLA, MP, IAS Officer, town planner, advocate and scholars, as its members who are paid from the public exchequer despite the fact the Centre doesn’t collect any money from mosques or dargahs.

Upadhyay contended that states collect around one lakh crores from four lakh temples but there are no similar provisions for Hindus. The Act clearly offends the Article 27 of the constitution.

The plea stated that unbridled power has been given to the Waqf Act , not only this but also they are also treated differently and are placed much above any charitable board.

The “Petitioner has challenged the validity of Section. 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.

It has also contested that Hindus, Jains, Buddhist have no safeguard for their properties which are taken care for the Waqf board which shows that a partial treatment is met

The BJP leader Ashwini Upadhyay has been instructed by the Delhi High Court for responding to the intervention application filed by Jamiat Ulama-i-Hind in his Public Interest Litigation (PIL) petition challenging constitutional validity of the Waqf Act.

A Division Bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad have asked the BJP leader to respond to the application filed by Jamiat’s before the petition is listed for hearing on November 4.

The Delhi High Court has issued notices on Upadhyay’s PIL challenging the validity of the Waqf Act in May.

The Jamiat has approached the High Court for dismissal of Upadhyay’s plea stating that he filed several frivolous PILs in the past also with the ulterior motives.

The plea argued “On at least two occasions, no less than the Hon’ble Chief Justice of India, himself seems to have rebuked the petitioner for filing frivolous petitions.

The application said that Upadhyay has filed innumerable petitions challenging the the civil laws pertaining to only Muslims in India with the sole purpose of harassing the muslims.

The application suggested that the Hon’ble court, while granting any indulgence to him while entertaining his petition must examine malafide intent of scrupulous litigants like the present petitioner.”

Jamiat has also said that Upadhyay has made a false statement deliberately in his petition that only Centre is likely to be affected by the orders sought.

The Application talks about the statutory Waqf Boards which is in each state of the Union of India which can be impact by the present petition.

The application highlights that Upadhyay has also misled the Court by stating that the Waqf Act is without object and reasons. He also told the court about the detailed ‘Statement of Objects and Reasons’ in the 1995 Act highlighting its background, purpose and feature.

The Hindu side in the case related to worshipping rights in the Gyanvapi Mosque complex on Wednesday filed a caveat in the Allahabad High Court urging it not to issue a unilateral order based on the Muslim side.

The Hindu side expressed apprehensions that the Anjuman Islamia Masjid Committee (AIMC) was likely to challenge the Varanasi court verdict in the High Court and the latter could pass a unilateral order, in case a caveat was not filed by the Hindu side.

A local court in Varanasi on Monday had ruled that the petition filed by five Hindu women seeking permission to worship inside the Gyanvapi Mosque Complex was maintainable.

Dismissing the plea filed by AIMC under Order 7 Rule 11 of the Code of Civil Procedure (CPC), District Judge Dr. Ajay Kumar Vishveshva had observed that the suit filed by the Hindu worshippers was not barred by either the Places of Worship Act, or the Waqf Act.

The court agreed to hear on September 22, the plea by Hindu devotees, who sought right to worship Maa Shringar Gauri on the outer wall of the mosque complex located next to the Kashi Vishwanath temple.

The AIMC, which manages the Gyanvapi Mosque in Varanasi, had challenged the maintainability of this suit, contending that the same was barred under the Places of Worship Act, 1991.

The verdict decided the fate of more than three decades-old issue. A petition was filed by Swayambhu Jyotirlinga Bhagwan Vishweshwar in a Varanasi court in 1991, seeking the right to worship in the Gyanvapi complex.

As per the 1991 plea, the petitioner had demanded declaration of the entire Gyanvapi complex as part of the Kashi temple, removal of Muslims from the complex area, and demolition of the mosque.

This was followed by a fresh case filed by the AIM Committee in Allahabad High Court in 1998, asserting that the temple-mosque land dispute could not be adjudicated by a civil court, as it was not permissible by the law. The High Court stayed the proceedings in the lower court for 22 years.

A fresh petition was filed in 2019 by a person named Rastogi, calling himself as the ‘next friend’ of Swayambhu Jyotirlinga Bhagwan Vishweshwar. The petitioner demanded survey of the entire disputed area by the Archaeological Survey of India (ASI).

This led to an intervention by the AIMC, opposing the petition seeking ASI survey of the Gyanvapi complex.

The petitioner approached the lower court for resumption of hearing in the 1991 petition, as the Allahabad High Court had not extended the stay further.

The Supreme Court Bench, led by then Chief Justice S.A. Bobde, took up a plea filed by Advocate Ashwini Kumar Upadhyay, challenging the constitutional validity of the Places of Worship Act 1991 in March, 2021. The Apex Court issued notice to the Union government in the matter.

Five Hindu women had filed a petition in the Varanasi Court in August last year, seeking permission to worship deities, such as Lord Hanuman, Nandi and Goddess Shringar Gauri, inside the Gyanvapi complex. The petitioners further demanded ban on people causing damage to the idols.

The Single-Judge Bench of Justice Prakash Padia of Allahabad High Court ruled in September, 2021 that it would wait for further verdict on other cases related to the matter, which were pending in other courts.

The Varanasi court appointed an Advocate Commissioner and also ordered videography survey of the complex in April this year. The decision was again challenged by the Anjuman Intezamia Masjid Committee in the Allahabad High court, which rejected the Committee’s plea. The party later filed a Special Leave Petition in the Supreme Court.

After the completion of survey, the findings were submitted in a report to the court on May 19 this year.

The very next day, the Apex Court transferred the proceedings to a district judge. As per the top court of the country, a senior judicial officer with an experience of over 25-30 years could handle the case in a much better way.

Hearing started in the district court on May 26, 2022, regarding the maintainability petition of the case. However, arguments from the Anjuman Intezamia Masjid Committee remained incomplete till that date, leading to further extension of the date of hearing.

Varanasi district judge Dr. Ajai Krishna Vishvesha had reserved his order on August 24,, giving time to both the parties to complete their arguments.

A local court in Varanasi on Monday ruled that the petition filed by five Hindu women seeking permission to worship inside the Gyanvapi Mosque Complex was maintainable.

Dismissing the plea filed by the Anjuman Islamia Masjid Committee (AIMC) filed under Order 7 Rule 11 of Code of Civil Procedure (CPC), District Judge Dr. Ajay Kumar Vishveshva observed that the suit filed by the Hindu worshippers was not barred by The Places of Worship Act or the Waqf Act.

The court agreed to hear on September 22, the plea by Hindu devotees, who sought right to worship Maa Shringar Gauri on the outer wall of the mosque complex located next to the Kashi Vishwanath temple.

The Anjuman Islamia Masjid Committee, which manages the Gyanvapi Mosque in Varanasi, had challenged the maintainability of this suit, contending that the same was barred under the Places of Worship Act, 1991.

This decided the fate of more than three decades-old issue, which was started by the filing of a petition by Swayambhu Jyotirlinga Bhagwan Vishweshwar in a Varanasi court in 1991, seeking the right to worship in the Gyanvapi complex. 

As per the 1991 plea, the petitioner demanded declaration of the entire Gyanvapi complex as a part of the Kashi temple, removal of Muslims from the complex area, and demolition of the mosque.

This was followed by a fresh case filed by the Anjuman Intezamia Masjid Committee in Allahabad High Court in 1998, asserting that the temple-mosque land dispute could not be adjudicated by a civil court as it was not permissible by the law. The High Court stayed the proceedings in the lower court for 22 years.

A fresh petition was filed in 2019 by a person named Rastogi, calling himself as the ‘next friend’ of Swayambhu Jyotirlinga Bhagwan Vishweshwar. the petitioner demanded survey of the entire disputed area by the Archaeological Survey of India (ASI).

This led to an intervention by the AIMC, opposing the petition seeking ASI survey of the Gyanvapi complex.

The petitioner approached the lower court for resumption of hearing in the 1991 petition, as the Allahabad High Court had not extended the stay further.

The Supreme Court Bench, led by then Chief Justice S.A. Bobde, took up a plea filed by Advocate Ashwini Kumar Upadhyay, challenging the constitutional validity of the Places of Worship Act 1991 in March, 2021. The Apex Court issued notice to the Union government in the matter.

Five Hindu women filed a petition in the Varanasi Court in August last year, seeking permission to worship deities, such as Lord Hanuman, Nandi and Goddess Shringar Gauri, inside the Gyanvapi complex. The petitioners further demanded ban on people causing damage to the idols.

The Single-Judge Bench of Justice Prakash Padia of Allahabad High Court ruled in September, 2021 that it would wait for further verdict on other cases related to the matter, which were pending in other courts.

The Varanasi court appointed an Advocate Commissioner and also ordered videography survey of the complex in April this year. The decision was again challenged by the Anjuman Intezamia Masjid Committee in the Allahabad High court, which rejected the Committee’s plea. The party later filed a Special Leave Petition in the Supreme Court.

After the completion of survey, the findings were submitted in a report to the court on May 19 this year.

The very next day, the Apex Court transferred the proceedings to a district judge. As per the top court of the country, a senior judicial officer with an experience of over 25-30 years could handle the case in a much better way.

Hearing started in the district court on May 26, 2022, regarding the maintainability petition of the case. However, arguments from the Anjuman Intezamia Masjid Committee remained incomplete till that date, leading to further extension of the date of hearing.

Varanasi district judge Dr. Ajai Krishna Vishvesha had reserved his order on August 24,, giving time to both the parties to complete their arguments.

Read the order here:

During the hearing in the Allahabad High Court on Friday in the Kashi Vishwanath-Gyanvapi Masjid case, the counsel for the temple said the provisions of the Waqf Act, 1995 are applicable only to Muslims and it is to resolve the dispute between Muslims.

A Single Bench of Justice Prakash Padia heard the petition filed by Anjuman Intazamia Masjid Varanasi.

Vijay Shankar Rastogi, counsel for the petitioner, said the provisions of the Act are not binding upon Hindus.

Rastogi argued that if any dispute arises between Waqf Board and a non-Muslim, a notice is to be issued to the opposite party. In the matter, no notice or opportunity was ever given to the plaintiffs, therefore, the property in dispute cannot be treated or said to be Waqf property.

Rastogi argued after commencement of the Act 1995 property which are un-registered or were registered previously, were all required to be registered again. In the case, the property in dispute has admittedly never been re-registered as required after commencement of Act, 1995 and, therefore, the property in dispute cannot be termed as Waqf property.

Rastogi said the temple of Lord Visheshwar has been in existence from ancient times, i.e, Satyug and is in place till now and that Swayambhu Lord Visheshwar is situated in the disputed structure, therefore, the entire property vests in Swayambhu Lord Visheshwar. He placed reliance upon the definition “Temple” given under the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983 which has been affirmed by the Supreme Court in the case of Sri Adi Visheshwara of Kashi Vishwanath Temple Varanasi & others Vs State of UP and others reported in 1997 4 SCC 606.

On the other hand, S.F.A Naqvi, Senior Counsel, replied that the properties which were registered earlier before the commencement of Act, 1995 are not required to be registered again. He placed reliance upon Section 43 of the Waqf Act, 1995 which is reproduced herein below:-

“43. [Auqaf] registered before the commencement of this Act deemed to be registered.—Notwithstanding anything contained in this Chapter, where any [waqf] has been registered before the commencement of this Act, under any law for the time being in force, it shall not be necessary to register the [waqf] under the provisions of this Act and any such registration made before such commencement shall be deemed to be a registration made under this Act.”

Naqvi further argued that insofar as the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983 is concerned, the same is for management of the Kashi Vishwanath Temple alone and the said Act is in no manner related to the present dispute.

Due to paucity of time, the arguments could not be concluded. The Court has fixed the next hearing of the petition on July 26, 2022.

Arguments by the temple’s advocate Vijay Shankar Rastogi on the petition filed on the Kashi Vishwanath Temple-Gyanvapi Masjid dispute could not be completed on Thursday in the Allahabad High Court.

A single-judge bench of Justice Prakash Padia heard the petition filed by the Anjuman Intazamia Masjid Varanasi.

Vijay Shankar Rastogi argued that mere registration of the property in the Waqf Act does not waive the rights of a non-Muslim.

It is argued that there were some amendments which were carried out in the Waqf Act of 1960 in 1984 but the amendments did not come into force.

It is argued that by the amendment, it came into effect that if a dispute arose between the Waqf Board and a non-Muslim regarding a Waqf property, notice must be issued to the person and in this matter, no notice or opportunity was given by the plaintiffs, therefore, the Waqf Act could not be applicable.

It is further argued that when the Waqf Act of 1995 came into force, there was a provision under the aforesaid Act that Waqf property be again registered but the property in dispute has never been re-registered under the Waqf Act, 1995, therefore, the property in dispute is not a Waqf property and the provisions of the Waqf Act are not applicable.

Vijay Shankar Rastogi relied upon the judgment passed in the case of Punjab Wakf Board Vs Sham Singh Harike reported in 2019 (1) ARC 511.

In view of the aforesaid, it is argued that the site in dispute cannot be treated to be a Waqf property.

Rastogi further argued that a Suit being Original Suit had been filed by three persons namely Deen Mohammad, Mohammad Hussain and Mohammad Zakariya before the Court of Subordinate Judge, Varanasi.

The Court noted,

On the basis of the aforesaid, it is argued that the suit which was filed in 1936 and the judgement delivered in the same will not help the petitioner in any manner whatsoever.

Since the suit was filed by the plaintiffs in their individual capacity and the relief granted by the trial court was only to the plaintiffs in the suit as such no other person could take benefit of the decree passed by the Civil Court.

Moreover, the aforesaid aspect of the matter could only be dealt by the Civil Court after going through the evidence, hence the order passed by the Court below is liable to be sustained and the writ petitions filed by the petitioner is liable to be dismissed.

Insofar as the other writ petitions are concerned which were filed in 2022, it is argued by counsel for the Central Government as well as the State Government that whatever orders will be passed either by the Court or the subordinate Court, they shall comply with the same.

Interim order granted earlier is extended till May 31, 2022, the Court ordered.

The Court has fixed the next hearing of the petition on May 10, 2022.

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.