January 28, 2023

Scrutinizing the Statutory Powers of Waqf Boards in India

In the past few years, there have been multiple instances of alleged encroachments by the waqf boards on both private and government properties.
Keywords: Waqf, Power, Statutory, Boards, Property, Legislation, Encroachment, Constitution, Institution 
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In independent India, Waqf Boards were first established through the Waqf Act of 1954. While the 1954 act was introduced as legislation to institute a proper legal mechanism for the management of Waqf properties in India, the Waqf Act of 1995 was brought in place to replace the previous legislation and expand the powers of the waqf boards. The statutory powers of waqf boards in various states of India have been a focal point of controversy for some time. In the past few years, there have been multiple instances of alleged encroachments by the waqf boards on both private and government properties. 

This year began with a striking claim made by the Sunni waqf board in Gujarat. It has been reported that in an application before the Gujarat High Court, the board claimed two entire islands of Bet Dwarka (an archipelago close to Dwarka, and a revered place for Hindus) as waqf property. This news spread like a wildfire across the nation and raked up a furore as Bet Dwarka is believed by many to be a part of the original kingdom of Dwarka, and is associated with the life of Bhagavan Krishna. Another instance of such weird claims arose in Tamil Nadu, where the state’s waqf board laid claim of ownership to the entire village of Thiruchenthurai in Tiruchirapalli district. The absurdity of the claim was that it also claimed ownership of a 1500-year-old temple in the village. Alleged illegal encroachments and subsequent claims of ownership by these boards have caused national outrage and resulted in a call to thoroughly examine the legal locus standi and scrutinize their structural foundations and functioning on the touchstone of the Indian constitutional framework. 

This article focuses on a legal assessment of the statutory powers of the waqf boards as laid down by the Waqf Act, 1995 (hereinafter referred as “the Act”). S. 13 of the Act endows the state governments with powers to establish waqf boards in their respective states. As the author has argued previously on this forum, the original text of the Act, sans the 2013 amendment (which has been repealed), shall be considered for analysis as the current legal status on the subject. While S. 13(1) may be read as the clause for incorporation of a waqf board, S. 13(3) defines the nature and extent of its proprietary rights. S. 13(3) of the Act states that, “The Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued.” In simple language, waqf boards are created with the intent of acquiring and holding property dedicated as waqf perpetually. 

S. 40 of the Act deals with the decision-making powers of the waqf boards in relation to the ownership status of properties identified as waqf. It is essential to reproduce the substantive parts of the statute here in order to better appreciate the legal framing and institutionalization of powers of a waqf board. 

Section 40 of the Act states that:

“S. 40 – Decision if a property is waqf property – 

  1. The Board may itself collect information regarding any property which it has reason to believe to be waqf property and if any question arises whether a particular property is waqf property or not or whether a waqf is a Sunni waqf or a Shia waqf it may, after making such enquiry as it may deem fit, decide the question.
  2. The decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the Tribunal, be final.”

A few basic principles regulating the powers of quasi-judicial bodies are in order. It has been laid down through multiple judicial pronouncements that – 1) No person should be made a judge in one’s own cause; 2) No decision should be delivered against any party without a proper or fair hearing; 3) Quasi-judicial enquiries ought to be made without bias and the decisions should not be given arbitrarily. In the landmark judgment delivered by the apex court of India in A.K. Kraipak v. Union of India ([1970] 1 SCR 457), the above-mentioned principles were not only affirmed, but were also extended in their application to administrative enquiries and decisions as well. It was held therein by the Hon’ble Supreme Court of India that: “If the purpose of the rules of natural justice is to prevent miscarriage of justice, one fails to see why those rules should be made inapplicable to administrative enquiries. Oftentimes it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries.” 

The decision-making powers regarding the ownership of properties as vested in the waqf boards through S. 40 of the Act seem to be quite unregulated on the face of it. This issue gets further complicated as the Act doesn’t establish elaborate procedures through statutes which may define, explain and chalk out the contours of this decision-making process. While it may be debated whether the waqf boards should be categorized as quasi-judicial or purely administrative bodies, adherence to the Principles of Natural Justice is a necessity in either case. 

Given the fact that it is the waqf board itself which has almost absolute proprietary ownership, control and regulatory powers over waqf properties, it clearly has an interest in having properties registered as waqf properties. This opens up the possibility of the board itself being biased while deciding if a given property is a waqf property. The waqf board can also initiate an enquiry about the proprietary status on its own, and arrive at a decision that is considered final unless appealed before the waqf tribunal. The process doesn’t involve other stakeholders, by entertaining rival claims of ownership or at least providing a fair opportunity for representation and hearing of counter-claims to ownership of the properties in question. The Act also doesn’t provide any elaborate procedure for conveying decisions taken by the waqf board to appropriate stakeholders, so challenges may be brought up against the decisions if required. The entire process emerges as a gross violation of the fundamental Principles of Natural Justice upheld by our highest courts of law and needs to be rectified immediately through amending legislation challenged before the higher judiciary. 

As famously observed by Justice P.N. Bhagwati in E.P. Royappa v. State of Tamil Nadu (1974 AIR 555) while adjudicating on arbitrariness as a violation of Article 14 and the equality principle of the Indian Constitution:

“Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetical to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. When an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14…”

The decision-making powers of waqf boards should be tested on the touchstone of this principle while being scrutinized for being violative of the Principles of Natural Justice.  

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Yashowardhan Tiwari

Yashowardhan Tiwari is a B.A. LLB. (Hons.) graduate from Jindal Global Law School (JGLS), Sonipat, India (Batch of 2020). He has previously worked as a Graduate Research Immersion Programme (GRIP) Scholar at JGLS. He has completed his LL.M. in General Legal Studies from JGLS as a Silver Medalist by securing Batch Rank – Second, in the LL.M. cohort of 2021-22. He is also pursuing an M.A. in Gandhi and Peace Studies at Indira Gandhi National Open University (IGNOU), New Delhi, India. Yashowardhan has joined India Foundation as a Research Fellow and works as a part of the Centre For Constitutional And Legal Studies (CCLS). He desires to be a social science nomad and is primarily interested in the fields of modern Indian history, constitutional law and decolonial studies.

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