The Uttar Pradesh Government will not be able to reclaim Wakf properties, including mosques and madrasas, registered with the Sunni or Shia Waqf Board. The Supreme Court has stayed a two-month-old order of the Allahabad High Court, which had virtually sounded the death knell for these mosques and madrasas that either stood on agricultural land or stood transferred as Waqf property by tenure holders having no actual ownership over the lands in question.
The Allahabad High Court verdict of February 23, 2018 directly affected the property owned by Waqf Board in the State. The UP Sunni Waqf Board and the Jamait Ulema-e-Hind approached the apex court with a prayer for staying the directions. The High Court even directed the State to act on its orders and report compliance in three months, latest by May 28, 2018.
The Bench of Justices Kurian Joseph, M Mohan Shantanagouder and Navin Sinha of the apex court stayed the operative portions of the judgment that had asked State authorities to proceed against the erring mosques and madrasas. The court felt the order had serious ramifications and hence required to be heard at length.
In the High Court, the issue came up with regard to a madrasa situated in Fatehpur where a man named Mahmood Hussain started a makeshift mosque and sought permission to offer prayers. The local villagers had complained to the authorities on the use of loudspeaker following which the District Magistrate denied him permission to offer namaz and azan. Against this order passed on September 6, 2017, Hussain approached High Court.
The land in question was agricultural land and Hussain was one out of four persons who were joint tenure holders having only Bhoomidari rights with no actual ownership over the land in question.
Also, prior to constructing the madrasa, Hussain had to change the agricultural user of the land, which he failed to do. Simply by registering the property with the Waqf Board, he disputed the authority of State over the land and sought protection of his Fundamental Right to practise religion. He further argued to be extended similar treatment as meted out to scores of other mosques and madrasas that stood on the same footing.
The HC Bench of Justices Sudhir Agarwal and Ajit Kumar held that being agricultural land, the same would be governed by provisions of the Uttar Pradesh Zamindari Abolition and land Reforms Act, 1950 where the land vests with the State. It said, “We have no manner of doubt that creation of such Waqfs and construction of mosques on agricultural land in past several decades, as claimed by petitioner is clearly illegal and unauthorised. If this is factually correct, we have no hesitation in observing that the revenue authorities are bound and under law obliged to take account of the situation and pass appropriate orders to restore the nature of agricultural land and take appropriate action.”
It further held that no valid Waqf can be created by such a “Waqif” who has no ownership in the property in dispute. “If a tenure-holder has illegally attempted to create a Waqf on an agricultural land without any declaration under Section 143 of 1950 Act, Collector can validly refuse to recognise such Waqf and restrain the person(s) concerned from using the land in a manner not permitted by the Act as agricultural land,” the HC noted. Such a land’s registration with Waqf Board cannot save it from being declared illegal and unauthorised, it added.