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04 May 2025, 04:40 AM
All India Muslim Personal Board (AIMPLB) via the General Secretary, Mohammed Fazlurrahim, has filed a rejoinder countering the claims made by the Union Government in its counteraffidavit in the In Re: The Waqf (Amendment) Act, 2025.
The affidavit has been filed in the petition challenging the Waqf (Amendment) Act 2025, which is listed on May 5 before a bench comprising CJI Sanjiv Khanna, Justice Sanjay Kumar and Justice KV Viswanathan. AIMPLB alleges that there is an attempt to de-recognise the legal status of waqf by user which may not be registered.
In its affidavit, the Centre stated that the omission of the 'waqf-by-user' provision will not impact the age-old waqf properties, provided they are registered before 08.04.2025. The Centre also said that no deed or document is required for registration as per Section 3(1)(r), and only certain information needs to be provided. It also said that registration is not a new requirement for waqfs and that the said condition has been in existence for about 100 years, since the enactment of the Mussalman Wakf Act, 1923.
Addressing these arguments, the AIMPLB said that the "amendment to section 3 ( r ) in effect de-recognises the legal status of waqfs by user which may not be registered and thus goes to the root of their existence." By saying that waqf-by-user properties will only be recognised if they are registered, the Centre has made registration a condition for the creation of Waqfs, which is impermissible, it argued.
"Such withdrawal of recognition of waqf by user that has been in place since time immemorial, as well as all hitherto waqf regulation in this country for centuries, is hit by the principle of non-retrogression as propounded in Navtej Singh Johar & Ors vs Union of India (2018) 10 SCC 1," it said.
Registration was never a condition precedent for the creation of waqf: AIMPLB
AIMPLB claims that the Union Government fails to establish how registration was a precondition to the existence of any waqf.
"The respondent's case at its highest is that registration of waqfs once created are mandatory under various provisions of Acts regulating wakf. This has no bearing on the validity of an unregistered waqf. As argued above, an unregistered waqf does not cease to hold the status of waqf. In the history of waqf regulation in this country through various acts, registration has never had bearing on the recognition of the property as waqf itself. Thus the amendments in Section 3 (r ) are unwarranted and manifestly arbitrary."
AIMPLB says registration was never a condition precedent for the creation of a waqf. However, now it has become a precondition with the intention to remove waqf by user.
"If the purpose of the Amendment is to insist on registration, then such a concern is already assuaged by Section 36 of the unamended Waqf Act of 1995, and it would obviate the need for an amendment in section 3. Thus, the change in definition of waqf u/s 3(r) by omitting 'waqf by user' is to abridge the right of creation and recognition of waqf by user under law. Contrary to the claim by the Union, the Amendment Act does not innocuously insist on registration but rather removes the basis of waqf by user, and in effect making registration as a condition for creating waqf."
AIMPLB also alleges that the Government in para. 30 of their counteraffidavit make contradictory statements. It is stated that in the first line, the Union admits to "taking away the statutory protection to a "waqf by user". Whereas, in the subsequent lines they say: "misleading narrative is built very mischievously giving an impression that those waqfs [including 'waqf by user'] which do not have document to support their claims will be affected."
"That the real mischief lies in the requirement of registration itself as a condition for protection of the statute. While registration is envisaged under Section 36 of the unamended Waqf Act of 1995, it is not a condition for recognition of waqf by user," as stated in the rejoinder.
Further, AIMPLB says that it is wrongly suggested that under the Mussalman Waqf Act, 1923, registration was a mandatory condition for the creation of waqf as claimed by the Union. It is argued that the distinction created between registration with or without a waqf deed is discriminatory.
"Section 3 of the 1923 Act merely obliges the mutawalli to furnish particulars relating to the waqf and furnish a statement of accounts (u/s 5). In any event, the consequence of non-registration cannot result in usurpation of property/auqaf...The settled waqfs irrespective of their registration, considering the nature of their use, must be recognised as Waqf. That this precise argument of registration being mandatory was rejected in Mohammed Ghouse v. Karnataka Board of Wakfs, ILR 1986 Kar 1523."
No provision in previous laws which says waqf would be invalid on failure to register: AIMPLB
AIMPLB in its rejoinder clarifies that the obligation to register the waqf under the 1923 Act, 1954 Act and the 1995 Act are obligations on the Mutawwali and the State Waqf Board. However, there is no provision that deems the property itself invalid on the failure to register.
"The penalty provisions are also imposed on the mutawwali on failure to perform duties but not a penal consequence for the waqf property itself. It is submitted that the obligation to publish the waqf continues to exist under Section 5 of the 1995 Act, and that merely reiterating the obligation to publish lists have no bearing on the challenge to the change in Section 3 ( r ). "
On withdrawal of recognition
AIMPLB counters the argument made by the Respondent that there would be withdrawal of recognition upon the failure to register.
"As already argued above the Respondent has not been able to establish that lack of registration invalidates the waqf property itself altogether. It is wrong and a logical leap to state that unregistered waqfs are not protected or have no legal existence (para 79-82). That a careful reading of the penal provisions (section 61) would show these are to ensure accountability of the mutawwali and not to extinguish the status of waqf properties themselves. It is also the reason why that before the 2013 amendment an unregistered waqf would have been barred u/s 87 to initiate a suit, nonetheless it would not lose its status as a waqf. This too was removed by the 2013 amendment, indicating that the legislative intent was always to protect the rights of waqf properties even if unregistered."
AIMPLB says that the response by the Ministry of Minority Affairs before the Joint Parliamentary Committee only addresses the obvious fact that registered waqf properties will not be affected by the deletion of waqf by user in Section 3(r ).
"However the JPC does not address the status of unregistered waqfs by user, which continue to remain waqf properties. Hence withdrawal of their status is in contravention of article 26 of the Constitution and manifestly arbitrary as argued above," as stated in the rejoinder.
Prospective application does not solve the problem
AIMPLB adds that merely prospective application of Section 3(r) does not address the cumulative effects of the amendments in other sections. For instance, waqf by user properties is not saved by the prospective application if it's a disputed or government property.
"This is further compounded by the effect of sec. 36(7A) where the collector will not even register the property if the government has made a claim and during the pendency of the report of the collector the property remains a government property. Similarly, it would be difficult to register such waqfs by merely the claim of a dispute to the portal created under Section 3-B."
Thus, it is misleading to characterise the amendment in section 3.(r) as innocuous and merely to encourage written deeds or registration, it stated.
The affidavit has been settled by Senior Advocate MR Shamshad and filed through AoR Talha Abdul Rahman.