The Constitutional validity of the Waqf Act, 1995 has been assailed in Supreme Court contending violation of Articles 14, 15, 25, 26 and 27.
The petition filed through advocate Vishnu Shankar Jain by two individuals has alleged that the Uttar Pradesh Sunni Waqf Board (UP Waqf Board) taking advantage of powers conferred by the Act under Waqf Act,1995, has captured a number of public properties including religious properties of Hindus.
Adverting to Sections 4 and 5 of the Act, the petitioners have contended that the Survey Commissioner under the Act can include any property as waqf property. There are no checks on the powers of the Survey Commissioner and there is no provision made for affording an opportunity of hearing to the members of the general public for inclusion or exclusion of any property from the list of waqf, the petition contends.
“The result is that survey Commissioner can include any property as waqf property and his report has to be examined only by the Board which has been constituted to expand area of waqfs and to provide benefit to the Muslim community”, the petition states.
Though Section 7 provides that any person aggrieved with the inclusion of any property as waqf property may raise the dispute by filing an application before waqf tribunal, there is no provision for giving information to the general public regarding inclusion/declaration of any property as waqf property by the survey commissioner. Thus, the remedy provided by Section 7 is meaningless, the petition states.
The petition also refers to Section 40(3) of the Act as per which the Waqf Board can, if it has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 or under the Societies Registration Act, 1860 or under any other Act, is waqf property, hold an inquiry with respect to such property and if after such inquiry is satisfied that such property is waqf property, call upon the trust or society to register such property as waqf property.
The petitioners have submitted that the effect of Section 40(3) is that Board, which consists of only Muslim members, can declare any property belonging to the trusts or society of Hindu or any non-Islamic religious denomination as Waqf property. This provision is discriminatory under Article 14 and 15 of the Constitution of India and violates the right to religion of Hindus guaranteed by Article 25 and 26 of the Constitution of India.
The petition cites the example of an order passed by UP Sunni Waqf Board including a property in the name of Baba Dargah Kamal Khan as Waqf property.
Contending that the Act discriminates between waqf property and the properties belonging to Trust, Mutts, religious and charitable institutions of non-Islamic faith, the petitioners have prayed that the Waqf Act, 1995 be declared unconstitutional insofar as the provisions of the Act affects the properties held and possessed by members of Hindu community and non-Islamic communities.
Update September 4, 2018: The matter came up before a Bench headed by Justice Madan B Lokur who asked the petitioners to approach the High Court. The petitioners then chose to withdraw the petition.