New Delhi: Days before the government of India introduced the Waqf Amendment Bill 2024 in the Lok Sabha, the Madhya Pradesh High Court recently dismissed a claim by the Madhya Pradesh Waqf Board claiming a fort in Burhanpur as a waqf property.
This case is a classic example of what is wrong with the existing law, Waqf Act 1995, on the administration and management of Waqf properties.
What was the issue before Madhya Pradesh High Court?
The issue before the Madhya Pradesh High Court was challenge by the Archaeological Survey of India (ASI) to an order by the Chief Executive Officer of the Madhya Pradesh Waqf Board declaring the Buranhpur Fort as a waqf property and asking the ASI to vacate the premises and hand it over to the Waqf Board.
What did ASI submit before Madhya Pradesh High Court?
When the case was heard by the High Court, the ASI claimed that Tomb of Shah Shuja, Tomb of Nadir Shah, Bibi Sahib’s Masjid, the Palace situated in the Fort of Burhanpur were ancient monuments. And once the property in dispute is already declared as ancient and protected monument under the Ancient Monuments Preservation Act, 1904, then the same cannot be declared as a Waqf property.
The Waqf Board disputed the proposition saying that if ASI was aggrieved by the Waqf Board’s order, they should have filed an appeal with the Waqf Tribunal and not in the High Court.
The High Court dismissed the arguments of the Waqf Board saying “If tomorrow a government property is declared as a waqf property, will it become a waqf property. You may even claim Taj Mahal and Red Fort to be waqf property, will a mere declaration by the waqf Board make it a waqf property. Please show what right you had over the property.”
What is the problem in the Waqf Act?
Here is where the trouble lies in the Waqf Act. As per the law, A Waqf is a Muslim property, gifted by a Muslim for the benefit of Muslims. The law says that the person making a waqf renounces the claim over the property to Allah and is permanent.
According to the law, a property can be declared a Waqf property by issuing a notification by the Board and in case there is a dispute over the ownership of the property the onus to prove the ownership is on the person disputing the claim of waqf board.
And any appeal against an order of the Waqf board is to be decided by the Waqf Tribunal. And the ruling of the Waqf Tribunal is final, in the sense that it cannot be challenged in the high courts or the Supreme Court.
Moreover, in the last few decades, the Waqf Boards under the Waqf Act have been dogged with controversies over mismanagement of Waqf properties.
Waqf Board is third largest land holder in the country after the Indian railways and Indian Army.
For instance, in 2006, the Sachar Committee said that the total worth of properties held by the Waqf Board across the country is over Rs 1.25 lakh crore. And going by conservative estimate, the returns on the properties should be Rs 12,000 cr every year. But against it only Rs 163 cr was being generated, showing that there was mismanagement of the Waqf properties.
The Waqf Board is the third largest land holder in the country after the Indian railways and Indian Army.
Besides, allegations have been rife that Waqf Board has been using its powers under the law to acquire new properties which are not Waqf properties.
Allegations of alienation of Waqf properties to builders have also been made in the past.
Now, a situation arose that either Waqf Boards must be abolished or it should be reformed.
The government of India has now moved a Waqf Amendment Bill in the Parliament to remedy the these exact problems dogging the working and management of Waqf Board.
