A quick glance at cases where Section 40 of the 1995 law—which paves the way for a property to be declared an endowment—was invoked lays bare how it is being deliberately misrepresented
Hyderabad residents stage a protest against the Waqf (Amendment) Act near the Charminar on April 18. Pic/PTI
The Bharatiya Janata Party’s (BJP) narrative that the state waqf boards can appropriate any property by declaring it as waqf is patently false. This narrative is based on a deliberate misrepresentation of Section 40 of the 1995 Waqf Act, which the new law on Muslim endowments has omitted.
To begin with, the first principle of waqf is that an individual must dedicate his/her personal property to God in perpetuity for specific religious or charitable purposes. The dedication is recorded in the waqf deed that the mutawalli, or the waqf manager, must present to the board when applying for registering his/her waqf. Section 36 of the 1995 Act, still intact in the new law, lays out an elaborate process for registering a waqf.
Another method of registration was under Section 40, which empowered the board to “itself collect information regarding any property which it has reason to believe” is waqf. After collecting the information through an inquiry, the board could declare a property as waqf. The board’s decision could be challenged in the Waqf Tribunal, whose order the high court could review.
The BJP has misconstrued “any property” in Section 40 to portray the board as a land mafia. I spoke to several board members, all of whom said they invoked Section 40 for only those properties that were listed in revenue records—for instance, as mosques, graveyards, etc—but were not registered with the board.
Or they did so for the properties in the category of waqf-by-user, that is, spaces used by Muslims for religious and charitable purposes from “time immemorial.” Their deeds can’t be traced because of the antiquity of such properties or were not executed at all. For instance, a person might have constructed a mosque on his/her land but didn’t create a waqf deed in his/her lifetime. Ajit Singh Sodhi, in his Waqf Laws In India, says the definition of “time immemorial” has differed from one judge to another.
Look at these statistics: Waqf boards in Odisha, Uttar Pradesh, Madhya Pradesh and Assam have never invoked Section 40 to declare a property as waqf. Bihar registered one, an orphanage, on the high court’s order. Rajasthan has 88, but all these were listed in revenue records. Its board sought clearances from local bodies, and also called for objections from the public. None of Andhra Pradesh’s 175 such waqf properties is under litigation. During the last 15 years, Kerala declared approximately 590 properties as waqf under Section 40—and invoked Section 41 that allows the board to register them on its own. Of these, less than 20 have been judicially challenged. Such challenges, however, don’t rule out malevolence as the challenger’s motivation.
Take Munambam, where 600 families—mostly Christian, and dependent on fishing—are threatened with eviction because, as Union Minister Kiren Rijiju recently alleged, the Kerala Waqf Board decided to claim 400 acres there as waqf. I accessed the Board’s legal note and discovered a side of the Munambam controversy not well known. In 1950, the land was created as waqf by M S Sait through a waqf deed, and the Farooq College Managing Committee’s secretary was made its mutawalli. The committee, in 1967, moved the Subordinate Judges Court, Paravoor, claiming that since the 400 acres were constituted as waqf, 18 illegal occupiers there should be evicted.
The Subordinate Judges Court upheld the plea, against which an appeal was filed in the high court. Dismissing the appeal, the high court reiterated that the deed was indeed waqf. Years later, the committee began claiming that the 400 acres were gifted to it. As another round of litigations began, a chunk of the property was allegedly sold to private parties. In 2019, the Board asked the committee to register the property under Section 36. It didn’t, prompting the board to invoke Sections 40 and 41 for registering the land, now dotted with homestays.
Haryana has 106 properties registered through Section 40, Punjab 160, Himachal Pradesh 26, and Chandigarh none. These haven’t been judicially challenged. The story of this region is unique. During Partition, the Muslims of Punjab migrated to Pakistan, from where non-Muslims flocked into India. They were assigned or took over evacuee and waqf properties left behind by Muslims.
After the Punjab Board was established in 1960, Commissioner S C Dhosiwal carried out a survey, between 1963 and 1969, to identify waqf properties, which were then notified in the gazette. The board issued licences to occupants of mosques for token amounts, and leased out waqf agricultural land and urban properties in order not to lose its ownership over them. This was a wiser alternative to evicting the occupants through litigation. The Punjab Waqf Board was split, in 2003, into four separate boards for the three states and Chandigarh. These boards invoke Section 40 for those properties they find mentioned in pre-Partition revenue records, and for declaring as waqf mosques built in recent years.
Invoking law isn’t always the Board’s method. At Subhanpur, Kapurthala, a mosque had been converted into a gurdwara, which subsequently came into an individual’s possession. He acceded to the board’s request to vacate it. The mosque is functional now—a befitting riposte to the BJP’s canard that waqf boards appropriate places of worship of other communities.
The writer is a senior journalist and author of Bhima Koregaon: Challenging Caste
Send your feedback to mailbag@mid-day.com
The views expressed in this column are the individual’s and don’t represent those of the paper.
Subscribe today by clicking the link and stay updated with the latest news!" Click here!
