"Once a waqf, always a waqf": How the lands now belong to Allah and Waqf Boards have risen to become the third-largest landowners in India

 Waqf signifies that Allah has transferred and seized ownership of the property from the individual making the waqf.

Delhi Waqf Board, representational image

The Karnataka Waqf Board objected to the Ganesh Chaturthi celebrations in the Eidgah Maidaan in Bengaluru, claiming ownership of the property, and the Supreme Court of India recently denied permission for the ceremonies. This has once again highlighted the widespread Waqf practice in a purportedly secular nation and the operations of the boards that uphold it.

The Waqf Board asserted that the land of the Eidgah has been Waqf property since the 1850s and will always remain Waqf property, in contrast to Bruhat Bengaluru Mahanagara Palike (BBMP) who claimed that the land is government land and that no Muslim organization has ever received title to it. Dushyant Dave, the attorney for the Waqf Board, further contended that the Waqf Act is superseding legislation and that the Court is therefore unable to issue an order pertaining to Waqf property.

The Supreme Court then requested that the site's current conditions be maintained and rejected permission for Ganesh Chaturthi celebrations.

What is Waqf

Waqf literally means "detention, confinement, and prohibition." According to Islamic law, the property can only be used for religious or charity reasons; selling or using it for any other purpose is forbidden. According to Sharia law, once a property is designated as Waqf and established, it stays Waqf property indefinitely.

Waqf signifies that Allah has transferred and seized ownership of the property from the individual making the waqf. This property is now irrevocably devoted to Allah in accordance with Sharia, making Waqf.
The individual who drafts a waqf for the beneficiary is known as the "waqif." Since Waqf properties are given to Allah, a "mutawalli," who is chosen by the waqif or another authorized person, is responsible for overseeing and managing a Waqf in the absence of a physically present body.

The history of Waqf and Waqf Boards in India

The origins of Waqf in India date back to the early days of the Delhi Sultanate, when Sultan Muizuddin Sam Ghaor gave Shaikhul Islam authority over two villages in support of Multan's Jama Masjid. The quantity of Waqf properties in India continued to rise alongside the prosperity of the Delhi Sultanate and subsequent Islamic kingdoms.

When a disagreement over a Waqf property reached the Privy Council of London during the British Raj, a case was made for the abolition of Waqfs in India in the late 19th century. The Waqf was ruled to be unconstitutional by the four British judges who heard the case, characterizing it as "a perpetuity of the worst and the most pernicious kind."

Nevertheless, the four judges' ruling was not recognized in India, and the Waqf institution there was spared by the Mussalman Waqf Validating Act of 1913. The Waqf Board is currently the third-largest landowner in India, behind the Indian Railways and the Armed Forces, as no attempts have been made to curtail Waqfs since that time.

In actuality, the Waqf institution has only gotten stronger since independence due to the dictates of political vote banks. The Nehru government's Waqf Act of 1954 paved the door for Waqfs to become more centralized. The Government of India created the Central Waqf Council of India in 1964 as a statutory organization in accordance with the Waqf Act of 1954. Section 9(1) of the Waqf Act, 1954 established numerous state Waqf boards, and this central body is in charge of overseeing their operations. As Advocate Dave noted, the Waqf Act, which was amended in 1995 to further benefit Muslims, is supreme law and cannot be changed by legislation.

The Waqf Act 1995

November 22, 1995 saw the enactment and implementation of the Waqf Act, 1995. The Waqf Council, State Waqf Boards, the Chief Executive Officer, and the mutawalli's responsibilities are all outlined in this statute.

The authority and limitations of a Waqf Tribunal, which serves as a substitute for a civil court within its purview, are also outlined in this Act. Under the Code of Civil Procedure, 1908, the Waqf Tribunals are considered to be civil courts and are mandated to perform all the duties and authority of a civil court. A tribunal's ruling is final and enforceable against the parties. No lawsuit or other legal action may be filed in a civil court; instead, a tribunal must decide whether to proceed under this legislation. putting the rulings of the Waqf Tribunal above those of any civil court.

Once a Waqf property, always a Waqf property

When property becomes Waqf, it becomes Waqf forever because in the instance of Waqf, ownership of the property is transferred to Allah from the waqif and property cannot be reclaimed from Allah.

Waqf website

As demonstrated in the Bengaluru Eidgah Ground case, Waqf's claims that the property was Waqf from the 1850s indicates that it is now permanently a Waqf property even though the government did not transfer title to any Muslim organization.

The Surat Municipal Corporation building, which is currently owned by the Waqf, was recently claimed by the Gujarat Waqf Board due to outdated documentation. The Surat Municipal Corporation building was a sarai during the Mughal Empire, according to Waqf, and was utilized for the Hajj pilgrimage. During British administration, the property then belonged to the British Empire. Nevertheless, the properties were transferred to the Indian government upon India's independence in 1947. But the SMC building became Waqf property because the records were not updated, and as the Waqf Board states, once a Waqf, always a Waqf.

The Waqf Board submitted an application to the Gujarat High Court staking claim on the ownership of two islands in Bet Dwarka in Devbhoomi Dwarka, according to Divya Bhaskar, in another strange case of staking a claim. A bewildered judge of the High Court declined to entertain the plea and requested that the Board amend its petition, questioning how Waqf could possibly lay claim to land in Krishnanagri.

Another fascinating feature of Waqf is that, should the owner of an apartment choose to bestow it as Waqf, it can become a mosque at any time without the consent of other society members. Similar events occurred in Surat's Shiv Shakti society, when a plot owner registered his property with the Gujarat Waqf Board, turning it into a Muslim holy site where prayers were offered.

The relevance of Waqf in a secular country

It is blatantly discriminatory to create a specific Act for the religious characteristics of just one religion when no such law exists for any other religion. How do we, as a nation that is proudly secular, come to terms with this? In fact, Advocate Ashwini Kumar Upadhyay has filed a PIL in the Delhi High Court posing just this query. In response to this appeal contesting the constitutionality of Waqf, the Delhi High Court has sent notice to the federal government.

Not all Islamic nations have Waqfs; some do not even have any in Turkey, Libya, Egypt, Sudan, Lebanon, Syria, Jordan, Tunisia, and Iraq. Nonetheless, Waqf Boards are the biggest urban landowners in India, a nation enmeshed in vote-bank politics, and they are legally protected by an Act.