Introduction
Resources are a pre-requisite for the development of any nation or community. It is the responsibility of the community to acquire and channelize its resources in the right direction. But doom is the fate of a community that loses track of its strength, abandons its assets and lets others play with its belongings. The same is the situation of waqf land in India. ‘Waqf’ means the perpetual tying up of property in the implied ownership of Allah. ¹ According to the official data, the Waqf Board owns 8,72,305 immovable properties across India.² As all waqf properties are not properly identified, illegal encroachments on waqf land are common. In order to address disputes arising in respect of waqf properties, Waqf Tribunals were constituted. But despite the fact that disputes regarding waqf properties are on the rise, the situation of Waqf Tribunals in India is dismal.
Waqf Tribunals
Section 83 of the Waqf Act, 1995 provides for the constitution of Waqf Tribunals. It empowers the State Governments to constitute as many tribunals as are required depending on the need. The main jurisdiction of Waqf Tribunals would be in matters related to determination of disputes related to waqf properties, eviction of a tenant, rights and duties of a lessor and lessee.³ Section 6 of the Act provides that in case of any dispute, the suit must be instituted before the Tribunal and the decision of the Tribunal shall be final. ⁴Section 85 bars jurisdiction of other courts in waqf related matters.⁵
The earlier Act provided for a one-member Tribunal but after the Act was amended in 2013, the members were increased to three. According to Sub-Section (4) of Section 83, the Tribunal shall consist of a Chairman, who shall be a member of the State Judicial Service, one person who shall be an officer from the State Civil Services and one person having knowledge of Muslim law⁶. Therefore, a fair combination of adjudicatory and interpretative skills has been contemplated.
But the existence of law is not enough. As the authority of constituting Waqf Tribunals has been vested in the State Governments, the constitution of such tribunals has been left to their discretion. The spirit of Waqf Tribunals is that it is a specialised institution with the requisite expertise to deal with cases related to auqaf. The civil courts are already burdened with various other property disputes and judges often do not possess the required skills and knowledge to adjudicate upon such cases.
As waqf land constitutes the third largest land-holding in India, frequent disputes regarding the titles of such lands are inevitable. Therefore, the efficient working and judicious constitution of Waqf Tribunals is necessary in order to aid the administrative machinery. Unfortunately, State Governments have often been lackadaisical in this regard and the legitimate stakeholders have borne the brunt of their inaction.
Judiciary’s Role
The Supreme Court, in Lal Shah Baba Dargah Trust v. Magnum Developers⁷, set a viable precedent by reconciling the provisions of the pre-amendment and post-amendment provisions. In this case, the petitioners approached the one-member Waqf Tribunal which was constituted prior to the amendment in 2013 praying for the grant of an injunction against illegal construction on waqf land. The order of the tribunal was challenged in the High Court wherein the tribunal’s decision was reversed on the ground that it did not have the jurisdiction as it was constituted prior to the amendment. The Supreme Court reversed the decision of the High Court stating that the State Government has failed to fulfil its obligatory duty to constitute three-member tribunals. It was held that the one-member tribunals would continue to operate till the time State establishes three-member tribunal. The Supreme Court further directed all States to constitute three-member tribunals and to issue notification within four months of the court’s decision.
Despite the Supreme Court’s direction, many States have still not taken any steps to remedy the situation. As a result, there is still conflict regarding the validity of the previously constituted tribunals, which has a direct impact on the adjudication of waqf disputes. Uttar Pradesh has the largest number of immovable waqf properties amounting to 2,32,547⁸. Despite this, the ruling of the Allahabad High Court paints a very concerning picture. In 1998, a notification was passed by which the State Government of Uttar Pradesh appointed the civil judge (senior division) as one member Waqf Tribunal in every district in accordance with the Act prior to the amendment. After the amendment, two three-member tribunals were constituted in Rampur and Lucknow. The Allahabad High Court in Shah Alam v. Union of India⁹, held that because of the subsequent notification constituting two tribunals in the State, the earlier notification which constituted one member tribunals in every district stood rescinded. Though the State Government was unable to compensate for rest of the Tribunals, the constitution of only two tribunals was deemed to be enough for the entire state. This decision was against the very essence of the Supreme Court’s ruling in Lal Shah Baba Dargah Trust, which aimed to increase the efficiency of the Waqf Tribunals. The lack of adequacy of tribunals as a result of the High Court’s ruling was highlighted in the Special Leave Petition but the Supreme Court dismissed the matter in February 2022¹⁰.
In Jammu and Kashmir, where 32,533 immovable waqf properties were in existence¹¹, there was no Waqf Tribunal in order to deal with disputes. In February 2024, this vacuum was highlighted by the High Court of Jammu and Kashmir and Ladakh in Traders Association Ziyarat Baba Reshi (RA) Tangmarg v. Union Territory of J&K.¹² The High Court remarked that the non-constitution of the Tribunals had led to a chaotic situation and therefore, it ordered the government to constitute tribunal(s) within two months.
Delhi’s Waqf Tribunal has not been functional since April 2022. This matter reached the Delhi High Court and on 6th May 2024, the Government of Delhi sought time to get instructions and an order to that effect was passed the court in Masjid and Dargah Shah Abdul Salam v. The Government of NCT of Delhi.¹³ In Yuva Sangharsh Samiti v. Vijay Kumar Dev,¹⁴ the Delhi High Court was dealing with a matter related to the eviction of encroachers from Delhi Gate Qabristan. The court referred to the abovementioned order and said that when the Tribunal will be constituted, the Waqf Board can approach the Tribunal for the eviction order.
Immediate Course of Action
The casual attitude of State Governments can be reflected from the abovementioned incidents. The governments have failed to comply with the mandatory provision of Section 83(1) of the Waqf Act, 1995 and they have further ignored the directions issued by the Supreme Court in the case of Lal Shah Baba Dargah Trust. Where the court had ordered the State Governments to comply with the order within four months, ten years have elapsed and many states have not seen the face of Waqf Tribunals. As a result, illegal encroachments and constructions have continued due to the lack of an effective adjudicatory remedy.
The courts have time and again ordered the constitution of Waqf Tribunals but even after the constitution, many tribunals suffer from the incapacity due to understaffing or procedural problems. State’s non-compliance with the Act must be highlighted by legal practitioners and media houses in order to draw the attention of various State Governments to this crucial issue which concerns the Indian Muslim community. It is necessary to engage in legal activism in order to retain and protect the community’s property. Muslim lawyers and the Waqf Board should approach the relevant forums for the constitution of an appropriate number of Tribunals in each State depending on the amount of waqf properties in each State.
The waqf land belongs to Allah and its sole purpose is to benefit the community at large. Properties which are dedicated for this pious purpose must not be illegally encroached upon by unscrupulous elements of the society. It is the duty of the Muslim Community to protect its collective resources in order to facilitate the process of upliftment. As waqf land can be effectively used to ameliorate the socio-economic plight of the Muslim community, the first step is to reclaim and preserve such land, which is not possible without the establishment of Waqf Tribunals.
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¹ Syed Khalid Rasheed, Muslim Law 140 (EBC Publishing, Lucknow, 6th edn., 2021).
² Waqf Assets Management System of India, available at: https://wamsi.nic.in/wamsi/dashBoardAction.do;jsessionid=D156D38FC339894BB4853AF45482A042?method=totalRegisteredProp (last visited on 14 July 2024).
³ The Waqf Act, 1995 (Act 43 of 1995), s. 83(1).
⁴ Id., at s. 6.
⁵ Id., at s. 85.
⁶ Id., at s. 83(4).
⁷ (2015) 17 SCC 65.
⁸ Supra Note 2.
⁹ 2016 SCC OnLine All 3172.
¹⁰ SLP (C) No. 34044/2016.
¹¹ Supra Note 2.
¹² 2024 SCC OnLine J&K 81.
¹³ W.P.(C) 6382/2024.
¹⁴ 2024 SCC OnLine Del 4118.
