New Delhi: The Modi government Thursday tabled the controversial bill to amend the Waqf Act of 1995, proposing sweeping changes such as giving major say to the Centre in waqf matters and inclusion of non-Muslims in waqf boards, among others. The bill has been referred to a Joint Parliamentary Committee (JPC) for now.
Proposed changes in provisions relating to management of waqf properties invited criticism from various corners, including opposition parties and a section of the Muslim community who claim the amendments were brought in without any stakeholder consultation.
The Waqf (Amendment) Bill, 2024, proposes 44 amendments for “effective management” of waqf properties and to “enhance efficiency” of waqf administration. It also proposes renaming the current Act to ‘Unified Waqf Management, Empowerment, Efficiency and Development Act, 1995’.
Calling the amendments an attack on the Constitution, opposition parties slammed the Centre for its “contentious provisions”. These include allowing non-Muslims to be part of waqf boards and the Central Waqf Council, while stating that only those who have been “practising Islam for at least five years” can give away properties for waqf.
The amendments were necessitated as changes made in the Act in 2013, the government said, have “not proved effective”.
Among proposed changes are a renewed definition of the Centre’s power to frame rules, protection for government properties from being declared waqf (even prior to notification of the new amendments) and making district collectors arbiters in waqf-related disputes.
The amendments also propose giving powers to the district administration to survey waqf properties and redefining the powers of waqf tribunals.
Further, the bill proposes to make the Limitation Act of 1963 applicable to waqf properties. If implemented, it would prevent waqf boards from seeking legal recourse to remove alleged encroachers who have occupied waqf properties for 12 years or more.
While a section of Muslims welcomed the amendments saying they will end the “dictatorial” functioning of state waqf boards and misuse of waqf properties, a section of the Muslim community is opposing the amendments contending that they will lead to “Collector Raj”.
“The new amendments will usher in a Collector Raj to decide at will what is a waqf and what is not. The finality of the waqf tribunals’ verdicts has been taken away and given to the district collector,” Zafarul-Islam Khan, former chairman of Delhi Minorities Commission, told ThePrint.
Questioning the provision allowing non-Muslims to become members of waqf boards, he said, “The amendment states that only Muslims (who have been practising Islam for at least five years) can give property for waqf, while it allows non-Muslims to be part of the boards governing the functioning of the waqf boards and Central Waqf Council.”
Here, ThePrint explains the proposed amendments and why opposition parties, as well as a section of Muslim community, are opposed to them.
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Waqf refers to properties contributed exclusively for religious or charitable purposes under Islamic law. Once a property is declared waqf, it remains so forever, and has to be used for welfare of the community.
Currently, waqf boards control 8.72 lakh properties spanning 9.4 lakh acres across India, with an estimated value of Rs 1.2 lakh crore. At the same time, there are — according to government sources — around 40,951 waqf-related cases pending in waqf tribunals.
Besides a centralised system for registration of waqf properties, the bill also proposes giving central government powers to frame rules pertaining to all aspects of management of waqf properties and boards.
It also proposes omission of section 40 of the Waqf Act of 1995, which gives waqf boards the power to decide if a property is waqf, and whether it is Sunni or Shia. The decision can only be altered by a tribunal.
In April this year, the Supreme Court had ruled that the Waqf tribunal is an adjudicatory authority, while the waqf board only deals with issues related to administration of waqf properties.
The bill proposes making the district collector an arbiter and responsible for survey of waqf properties. It also lays down the process which is to be followed before a property is declared as waqf.
Further, it protects government properties from being declared as waqf. If implemented, this provision will apply retrospectively.
And in the case of a dispute over ownership of property between the government and waqf board, the district collector is to conduct an inquiry and submit a report to the state government.
According to Dr Mujibur Rehman, assistant professor at the Centre for the Study of Social Exclusion and Inclusive Policy at Jamia Millia Islamia, the amendments are aimed at regulating revenue of the board. He told ThePrint that the Waqf board has two main revenue sources: properties and donations.
“The government wants to regulate these donations and revenues, raising questions about their sources — domestic or foreign — and potential national security issues,” he argued.
‘Waqf tribunals denuded of authority’
On the legal front, the Modi government has also proposed to drop the contentious provision holding the decision of the tribunal to be “final” in all matters pertaining to waqf.
“The waqf tribunals are denuded of their authority to be the final word on waqf matters. It can be seen that this is akin to terming the NGT as not being the authority on matters related to environment or the Income Tax Appellate Tribunal (ITAT) to not be the final word on matters related to tax,” said Fuzail Ayyubi, a Supreme Court lawyer.
The bill proposes to omit section 107 of the Act and to bring waqf properties under the ambit of the Limitation Act of 1963. Legal experts say this would prevent waqf boards from seeking legal recourse to remove alleged encroachment on its property.
“This clause will create a major problem as there is massive encroachment on several waqf properties. If the Limitation Act is made applicable to waqf properties, then waqf boards will not be able to free up the land as illegal occupants can claim that they have been living at the location for more than 12 years,” said Akramul Jabbar Khan, a retired government official and expert on revenue matters.
The bill also proposes major change in the penalty and punishment for alienation of waqf property without sanction of the board. In 2013, the then UPA government made this a “non-bailable” offence with provision for “rigorous imprisonment”.
But the bill proposes to make it a bailable offence with provision for imprisonment instead of “rigorous imprisonment”. For instance, the provision for rigorous imprisonment has been replaced with “imprisonment” in case of transfer of property without the board’s permission. It proposes to make this a “bailable” offence.
Another contentious provision in the bill, experts said, is the proposal to omit ‘waqf by user’. In Islamic law, the dedication of a property as waqf can be done orally. For instance, a mosque can be considered waqf property even without a waqf nama (deed).
However, the government proposes to omit this provision, thereby making waqf property suspect in the absence of a waqf nama. The bill reads that “no waqf shall be created without execution of a waqf deed”.
The bill also states that no legal proceeding for the enforcement of any right on behalf of any waqf, which has not been registered as per the requirement specified in the amendment, can be instituted or heard, tried or decided by any court after “expiry of a period of six months” from the commencement of the amendment Act of 2024.
Disputes involving waqf properties
The Waqf Act of 1954 was the first post-Independence legislation to govern waqf properties. It was replaced by a new Waqf Act in 1995. The UPA government introduced amendments in the Act in 2013 giving waqf boards in states and UTs powers to manage waqf properties. Waqf properties, though, have been involved in their share of disputes.
One such dispute involves the Surat Municipal Corporation building, which the state waqf board claimed was a waqf property due to its historical use as a sarai (inn) during Hajj in the Mughal era.
In Delhi, there is a long-standing dispute over 123 properties, including dargahs, mosques, etc. The government had inherited these properties, located mostly in central Delhi, after Independence.
Similarly, the Tamil Nadu Waqf Board has claimed ownership of an entire village in Tiruchirapalli district — Thiruchendurai. The board had asked the revenue department to assign zero value to properties to prevent sale of properties in the village, but the request was met with stiff opposition from the Centre and the state government.
(Edited by Amrtansh Arora)
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