Constitutionality of waqf act, 1955

Constitutionality of waqf act, 1955

Author: Nitin Kumar

Edited By: Aneel Meghani

INTRODUCTION

In Islam, a “waqf” is a trust-held property endowment used for religious or philanthropic purposes. According to, Section 3(r) of the Waqf Act, 1995, it is the permanent donation, in Muslim law, of any moveable or immovable property by an individual for pious, religious, or charitable purposes. By putting property away, you can make sure that it is no longer transferable and that Allah owns it, existing outside of human ownership and use. Fundamentally, a waqf upholds the notion of property devoted to the service of God and society by meeting the needs of the community in terms of religion, education, or social welfare.1 Since the law of waqf is entwined with Muslims’ entire religious life and social economy, it is considered the most significant branch of Mohammedan law2  and The Waqf Act of 1995’s primary goal is to improve Waqf management and address issues related to or tangential to it.3 The President gave his approval to the Waqf Act, 1995 on November 22, 1995, after it was passed by Parliament. According to Section 1(3) of the Act, each State would be required to implement the Act on a day that will be announced in the official gazette by the federal government. The Central Government published a notification designating January 1, 1996, as the effective date of the aforementioned Act, in accordance with Section 1(3) of the 1995 Act.371, The Act is organized into IX Chapters with 113 Sections. While Chapter II (Sections 4-8) addresses the issue of the survey of auqaf, Chapter I (Sections 1-3) is preparatory. The Chapter III (Sections 9-12) deals with the constitution of the Central Waqf Council, Chapter IV (Sections 13-35) provides for establishment of Boards and their functions. And the Auqaf registration is covered in Chapter V (Sections 36-43), while Auqaf account maintenance is covered in Chapter VI (Sections 44-71). The topics of the Board’s finances, judicial proceedings, and miscellaneous are covered in Sections 72–82, 83–95, and 96–113 of Chapters VII, VIII, and IX, respectively.

KEYWORDS: Waqf, Personal laws, Constitutional validity, Religious freedom, Charitable purpose.

HISTORICAL BACKGROUND

A significant portion of the background of waqf legislation in India comes from the struggle for better waqf protection and management during British rule. Five years after India attained independence, this movement resulted in the Central Wakf Act, 1954. In the lengthy history of waqf legislation, this Act represented a critical turning point with its goal of enhancing waqf management nationwide. With the exception of West Bengal, Uttar Pradesh, and portions of Maharashtra and Gujarat, where prior regional statutes remained in effect, the 1954 Act applied to the majority of India.4  It was the first major attempt to implement standard waqf management throughout the nation. But when the Act was being put into practice, a number of flaws were discovered, which prompted a number of changes in 1959, 1964, 1969, and 1984. In the end, these modifications resulted in the adoption of the new, more extensive Waqf Act in 1995.5 The objective of this Act is to address the shortcomings of its predecessor and encourage greater uniformity in waqf management across India. It is applicable only to Jammu & Kashmir and the Dargah Khwaja Saheb in Ajmer. The Waqf Board now has a more democratic constitution with a majority of elected members, the Chief Executive Officer has more authority to evict encroachers, and the statute of limitations for waqf property recovery under adverse possession is waived, among other significant changes brought about by the 1995 Act. 

MODES OF CREATION WAQF

The following methods can be used to build waqf. 

  • By an act inter vivos– This kind of waqf is made between living people; it is formed during the waqif’s lifetime and is effective right away. 
  • By will– An act inter vivos waqf and a waqf created by will are incompatible. It is also referred to as “testamentary waqf” and goes into effect following the waqif’s passing. Without the heirs’ permission, a waqf of this kind cannot manage more than one-third of the net assets. 
  • During death or illness (marz-ul-maul)– Similar to gifts given while a donor is near death, they will be effective up to a third of the property’s value without the heirs’ permission. 
  • By immemorial user– Waqf property production is likewise subject to time constraints, although it can be created by enduring use. 
  1. ESSENTIAL OF WAQT
  • In Perpetuity: A “Waqf” is a long-term contract that ensures that the ownership of the property is always available for as long as needed. For a certain period of time, a “Waqf” cannot exist. 
  • Irrevocability: The “Waqf” is unchangeable when generated. As a result the property is regarded to be owned by God. 
  • Inalienability: When a “Waqf” is formed, the property is assumed to belong to God. Thus, “Waqf” property cannot be sold, transferred, or encumbered. Aside from the “Waqf’s” basic necessities, any attempt to alienate “Waqf” property without court permission is illegal. 
  • Absoluteness: The real estate in “Waqf” is settled completely and unconditionally. A contingent or conditional “Waqf” is empty and unenforceable. 
  • Religious or Charitable Use of Usufruct: According to Muslim law, the goods and benefits of “Waqf” assets can only be utilized for spiritual, pious, or charitable objectives

APPLICATION OF WAQF ACT, 1955

Through exception of the Durgah Khawaja Saheb in Ajmer, which is governed by the Durgah Khawaja Saheb Act, 1955, Section 2 of the Waqf Act, 1995 applies to all auqaf, the possibility that established before or following the Act’s inception. This means that the Waqf Act of 1995 does not apply to the Durgah Khawaja Saheb in Ajmer or any other waqfs that are administered under unique or local regulations. The provision in Section 2 explicitly exempts the Durgah Khawaja Saheb, ensuring it remains under the jurisdiction of the Act of 1955.6 The Waqf Act, 1995 generally has retrospective operation, but its application to the law of limitation is specific. According to Section 107 of the Act, the Limitation Act, 1963 does not apply to suits for possession of immovable property or any interest in such property that is part of a waqf. While the Waqf Act, 1995 is retrospective in many cases, court decisions have shown that it is not always applied retrospectively in all instances.7 

 In Sk. Abul Kalam v. Umapada Maity,8 the Calcutta High Court ruled that the Waqf Act, 1995 cannot apply retrospectively if the plaintiffs were out of possession since 1958, as their claim for recovery was already barred before the Act came into effect. The Supreme Court in K.C. Dora v. G. Annamanaidu9 stated that changes in substantive law during a pending action do not alter the rights of the parties unless the new statute explicitly indicates such an intention. Additionally, in Sardar Khan v. Syed Najmul Hasan,10 The Waqf Act does not apply to lawsuits or processes filed prior to January 1, 1996, the day the Act went into effect, the Apex Court said. It is not stated clearly in the Waqf Act, 1995 that it is retroactive.  

Consequently, in Sawarkhanam v. Macca Madina Allauddin Wakf,11 the Allahabad High Court noted that parties’ rights are determined based on the law at the time of the suit’s initiation, and the Waqf Act’s provisions do not appear to be retroactive. 

 In T. Kaliamurthi v. Five Gori Thaikal Wakf,12 the appellants argued that the Waqf Act, 1995, which came into force on January 1, 1996, could not revive claims barred under the Limitation Act, 1908. They contended that the right over the property, transferred in 1927, was extinguished through the Act of 1908, and Section 107 of the Waqf Act could not revive this barred claim. Citing Section 6(a) of the General Clauses Act, 1897, and Section 112 of the Waqf Act, they argued that a repeal cannot revive extinguished claims. The Apex court agreed, ruling that Section 107 of the Waqf Act, 1995, cannot revive claims or extinguished rights barred under previous limitation laws. The Court affirmed that once a right to sue is barred under the law of limitation in force, it cannot be revived by new legislation. 

 In contrast in Shehzadi v. The Chief Executive Officer,13 The petitioner challenged a decision requiring them to give the Managing Committee custody of properties that were in dispute. According to Section 3(ee) of the Waqf Act, 1995, which encompasses anyone occupying waqf property without legal authority, the respondent contended that the petitioner was an encroacher. Before the Waqf (Amendment) Act, 2013, the waqf institution had to follow procedures like terminating leases before evicting occupants. However, the amendment introduced a new procedure for reclaiming possession, allowing the Chief Officer to act under Section 54 of the Act. The Bombay High Court ruled that Section 3(ee) had retrospective effect, meaning the new procedures applied even to situations that arose before the amendment. This allowed waqf institutions to approach the Chief Officer for eviction under the amended provisions. 

DOES THE 1995 ACT VIOLATE ARTICLE 14, 25, and 26 OF THE CONSTITUTION?

In Maulana Kureshi Gulam Mustafa v. Union of India, the Waqf Act, 1995 was contested on the grounds that it was unconstitutional under Articles 14, 25, and 26 of the Indian Constitution. Article 25 provides religious freedom, Article 26 gives religious denominations the authority to run their own affairs, an14d Article 14 assures the right to equality. 

The main challenge was that the Act divided Muslims into “Sunnies” and “Shias” without recognizing “Sufi Silsilas.” The petitioner argued that this division was unconstitutional. However, the Gujarat High Court upheld The statute states that the Waqf Board’s composition includes elected members from both Houses of Parliament and State Legislatures, Bar Councils, Private Muslim Organizations, and Islamic scholars, ensuring broad representation. 

The Court found no violation of Articles 25 and 26, asserting that the Act does not interfere with religious activities or deny the freedom to manage religious properties. The non-recognition of Sufi sects in the Waqf Board’s composition does not infringe on their constitutional rights. Thus, the Court rejected the petition, affirming the Act’s alignment with the constitutional framework.

In Association of A.P. Sajjada Nasheens, Mutawallies v. Secretary, UOI,15 it was argued that Section 14 of the Waqf Act of 1995 declared unlawful, violating Articles 14, 25, and 26 of the Indian Constitution. The petitioners contended that the Act, which aims to democratize and improve Waqf administration, actually undermined the powers of Mutawallis and gave control to individuals unconnected with the waqfs. 

They argued that the Waqf Board’s composition, with only one member representing Mutawallis out of eleven, was detrimental to the waqfs and violated Article 14’s guarantee of equality. The petitioners also claimed that the Act contravened Articles 25 and 26, which protect the rights of religious denominations to manage their own affairs and properties Specifically, the criteria for choosing representatives, which required waqfs to have an annual income of one lakh and above, was seen as arbitrary and discriminatory. The court found this provision discriminatory, violative of Article 14, and arbitrary, and thus struck down Section 14(1)(b)(iv) of the Waqf Act, 1995.16 But the rest Sections of the Act remained constitutionally valid. The Court further observed: 

It is stated that the right under Article 26 of the Constitution is not absolute and can be subject to reasonable regulations by the State. It highlighted that fundamental rights must coexist harmoniously and cannot exist in isolation. Therefore, the petitioners’ argument that the Waqf Act, 1995 is unconstitutional and violates Articles 14, 25, and 26 was found to be without merit. 

Difficulties regarding the Waqf Act of 1995

There was some disagreement regarding the Waqf legislation of 1995’s restriction of civil court authority and the authority of waqf tribunals. The plaintiff held the claim to property, whereas the defendant possessed the home adjacent to the land’s northern boundary. In the matter of Nagore Andavar Sambiranichatty Dhoopam Family Trust, Nagapattinam vs. S. Jegabar Ali,17 the Madras High Court rendered this decision But the defendant built a restroom and a water tank on the plaintiff’s land while intruding. 

The party defending the case then challenged the plaintiff’s claims, alleging that he had held the land for a period exceeding twenty years and that his predecessors had profited from it. The plaintiff’s ownership of the suit estate and the action’s capacity to proceed there were contested in the civil justice system. The High Court has concluded that waqf tribunals should hear all issues related to waqfs and waqf properties because civil courts lack jurisdiction over them, in line with Section 85 of the Waqf Act, 1995. In a comparable manner it was argued in case of Intazamia Committee Idgah v. M.P. Waqf Board18 that the Civil Court’s jurisdiction is waived in the event that an appeal is filed against a Tribunal judgment and the Tribunal’s decision is deemed final.  

The Apex court had to decide on a dispute concerning the establishment of the Maharashtra Board of Waqfs and its impact on the waqfs established by individuals from various Islamic law sects in the case of Maharashtra State Board of Wakf v. Shaikh Yusuf Bhai Chawl.19 Prior to this, The Bombay Trust Act governs public trusts in Maharashtra, whilst the Waqf Act of 1954 governs waqfs. 

CONCLUSION

An important change to the Waqf Act of 1995 serves as the Indian legal structure for administering waqf holdings. The Indian Constitution’s Articles 14, 25, and 26 have been the subject of constitutional disputes, although the Act has generally been affirmed as lawful by the courts. The Act’s primary goal of improving Waqf management of land and standardized management across India has been acknowledged as a valid state goal. Courts have generally found that it does not infringe upon religious freedoms or the rights of religious denominations to manage their affairs. The composition of Waqf Boards, designed to ensure broad representation, has been seen as a democratic approach to waqf management. 

However, some provisions have been contested. Certain criteria for selecting Waqf Board representatives have been struck down as discriminatory. The exclusion of civil court jurisdiction in favor of waqf tribunals has also been debated, though mostly upheld. 

The Act’s retrospective application, particularly regarding limitation periods for property claims, has been a complex issue. Courts have ruled that it cannot revive claims already barred under previous laws. 

Overall, the Waqf Act, 1995 remains crucial in waqf property management, balancing modernization efforts with constitutional principles and religious freedoms. 

REFERENCES

  1. Books / Commentaries / Journals Referred
  2. Ameer Ali, Principles of Mohammedan Law (Allahabad Law Emporium, 1983)  
  3. Tahir Mahmood, “The Wakf Act 1954 as Amended by the Wakf (Amendment) Act of 1984”, 5 Islamic and Comparative Law Quarterly (1985) 
  4. Furqaan Ahmad, “The Wakf (Amendment) Act 1984: An Analysis” 5(1) Islamic and Comparative Law Quarterly (1985) 
  5. Ateeque Khan, “The Wakf (Amendment) Act 1984 — A Plea for Reconsideration”, 5 (1) Islamic and Comparative Law Quarterly (1985) 

Online Articles / Sources Referred

  1. Abanti Bose, ‘Understanding the essential provisions of the waqf act, 1955’ (ipleader, 28 Aug 2020) https://blog.ipleaders.in/understanding-the-essential-provisions-of-the-waqf-act-1995/  

Cases Referred

  1. Sharifan Biwi v. Prabhu Saran Rajvedi, 2016 (6) ADJ 678: 2016 (117) ALR 852  
  2. Syed Thajuddin v. Syed Mohideen, (2011) 2 MLJ 105 
  3. Prince of Arcot, Endowments v. Tamil Nadu Wakf Board, 2006-4-LW479: (2006) 3 MLJ 856 
  4.  Manick Mohan Saha v. Md. Masudal Haque, 2005 (1) CHN 512: (2005) 1 CALLT 357 (HC) 
  5. Yeshwantrao Laxmanrao Ghatge v. Baburao Bala Yadav, AIR 1978 SC 941: (1978) 1 SCC 669  
  6. Bharat Barrel v. The Employees’ Estate Insurance Corporation, AIR 1972 SC 1935: (1971) 2 SCC 860  
  7. Indira Sohan Lal v. Custodian of Evacuee Property, AIR 1956 SC 77: [1955] 2 SCR 1117 
  8.  Sk. Abul Kalam v. Umapada Maity, 2007 (4) CHN 962: 2007 (2) CLJ (CAL) 781 
  9.  K.C. Dora v. G. Annamanaidu, AIR 1974 SC 1069: [1974] 2 SCR 655 
  10.  Sardar Khan v. Syed Najmul Hasan, AIR 2007 SC 1447: (2007) 10 SCC 727 
  11.  Sawarkhanam v. Macca Madina Allauddin Wakf, 2018 (1) ALD 341 
  12.  T. Kaliamurthi v. Five Gori Thaikal Wakf, AIR 2009 SC 840: (2008) 9 SCC 306 
  13.  Shehzadi v. The Chief Executive Officer, 2016 (4) Mh LJ 675 
  14.  Maulana Kureshi Gulam Mustafa v. Union of India, AIR 2002 Guj 252 
  15.  Association of A.P. Sajjada Nasheens, Mutawallies v. Secretary, UOI, 2010 (1) ALT 112: 2010 (4) ALD 136 
  16.  Hafiz Mohamed Zafar Ahamed v. U. P. Sunni Central Board of Wakfs, AIR 1965 All 33  
  17. Nagore Andavar Sambiranichatty Dhoopam Family Trust, Nagapattinam vs. S. Jegabar Ali, AIR 2012 (Mad) 303  
  18. Intazamia Committee Idgah v. M.P. Waqf Board, AIR 1996 (MP) 47 
  19. Maharashtra State Board of Wakf v. Shaikh Yusuf Bhai Chawl, 2012 (6) SCC 32 

Statutes Referred 

  1. The Waqf Act, 1995 
  2. The Durgah Khawaja Saheb Act, 1955 
  3. The Limitation Act, 1963 
  4. The General Clauses Act, 1897 
  5. The Waqf (Amendment) Act, 2013  
  6. The Constitution of India (Articles 14, 25, 26 
  7. The Central Wakf Act, 1954 
  8.  The Bombay Trust Act