SG Tushar Mehta to begin

Advocate Banerjee requests for sometime and says he was a part of the JPC. However, the Court declines the request.

Sr Adv P Wilson also request for sometime, however decline. CJI: Very difficult to court in this court, no respect here

SG Mehta: You have petitions filed by individuals and not those affected..its nobody's case that Parliament didn't have the competence to pass this legislation.

SG Mehta: Detailed process understaken by Joint Parliamentary Committee-come to my counter Milords. Its not a case where Ministry prepares Bill, the voting takes place mechanically... we are eradicating the menace which was noticed in 1923. It is my case that few of the petitioners can't represent the Muslim community. JPC has 96 sittings we received 97 lac representations

SG Mehta: reads the JPC- these are State Governments consulted-pg 11, para 24- 25 waqf boards were consulted. Clause by Clause, JPC records which clause is agreed by waqf Board or not...voluminous report was prepared-some suggestions accepted or not accepted. When suggestions were made to amend the sections, the Bill was then tabled and passed with unprecedented majority

SG Mehta: [says he will refer to section by section which are under challenge] 1. 3(r)- 2013 amendment- interesting amendment came just before general elections- where any person can create waqf

SG Mehta: positive thing we added- waqf alal aulad- the children initially did not include daughters, widows- we introduced for the first time. not under challenge, fortunately.

SG Mehta: if you have registered as waqf by user, it is safe. Its prospective. With 2 exceptions- 1. property is in dispute [private/gov] kindly appreciate, we are dealing with waqf by user. First category of property is that I dedicated to Allah. Nobody has a right over the gov land, because the entire country would then be the owner of the land and the gov holds the property in trust.

SG Mehta: there is supreme court judgment which says gov can save the property if it belongs to gov and has been declared as waqf. 2. waqf by user- by long usage- necessarily a private or gov property is used for a long period. How to decide if its gov land or not? Suppose there is building which can be gov property, the question is can the gov not examine? i am holding in trust for crores of people CJI: Their argument is officer above the collector, gov officer is deciding its own claim and giving finality to that SG Mehta: not just misleading but false argument

SG Mehta: the argument against the Collector was that he would be a judge in its own cause, therefore JPC decided an officer above Collector- what is the intent? If the mylords want to delete it, delete it CJI: entire section? SG Mehta: only the proviso CJI: their case is about entire section

SG Mehta: only consequence is revenue and Board records will be corrected CJI: only consequence is correction?..what is the purpose it will only be paper entry SG Mehta: gov will have to file a suit for title, I am reading my affidavit. In all fairness, the affidavit should have been brought to the notice

SG Mehta: argument repeatedly is the wholesale takeover of waqf...but it is only that through revenue records, it will come to notice that the property belongs to the Gov reads affidavit- Designated Officer is not making a final determination of property- only the revenue records will be updated

SG Mehta: it will be open for affected parties to approach the waqf tribunal, final determination of title would be decided by tribunal or in appeal by the High Courts

SG Mehta: refers to S. 83 [definition of tribunal] CJI: picture that is being painted, once Collector initiates entire, it ceases to be waqf and once inquiry is completed, the property will be taken over SG Mehta: there are statutory provisions, if the title is not determined, we have to go for suit. J Masih: according to you possession continues unless the recourse is taken? SG Mehta: yes, was waiting for them to show CJI: do you expect it in this court? SG Mehta: three came from HCs, so CJI: even here selective readings

CJI: Unless proceedings under S. 83 is taken to logical end, there would be no eviction? SG Mehta: pls see [continues to read the section]

SG Mehta: tribunal has all powers of the civil court; earlier it was like a revisional jurisdiction where some appeals could lie. Pls see clause 9 of S. 83- CJI: earlier no provision for appeal? SG Mehta: it was like a revision, now full fledged first appeal. I cannot be selective in reading, gov must assist fully.

SG Mehta: Absolutely wrong to say S. 3(C) order final- it is subject to judicial review

It should be noted that the petitioners had argued that when the waqf is disputed by a private individual or gov, its character changes because it ceases to be a waqf during the determination process.

CJI: Shankarnarayan are you on this side? [respondent] SG Mehta: even the community CJI: don't take community argument, we will decide on law

SG Mehta: See S. 85, 1995 Act and come to 3(C), 2025 Act- waqf will not be snatched- during the suit the character of waqf will only be suspended. S. 3(C) only corrects the revenue records

J Masih: it continues to be waqf? possession continues and the waqf continues to be waqf except the characters is suspended? SG Mehta: there is embargo CJI: if you want to alienate the property? SG Mehta: you can't, status quo has to be maintained

SG Mehta: yes, from this amendment, waqf by user is not permissible for creating waqf- prospectively any waqf created will be through registration. Past waqf by user is saved if registered.

SG Mehta: unless, disputed CJI: Disputes will have to come to the tribunal? In your view, according to proviso, the possession will not be taken unless considered by competent court

SG Mehta: possession cannot be taken over by 3(C)-deliberately misunderstood argument- they said its manifestly wholesale capturing- generally, mylords don't entertain petition till the statute operations. Once statute operations, its effect will come. There cannot be academic challenge.

SG Mehta: only exception- registered waqf by user registered would be protected

SG Mehta: on registration- argument was it was not mandatory. second, there was argument that there was no consequence. I have gone to root of the problem-British and Indian Gov tried to solve. In 1923, first legislation governing regulation of waqf property-[says the property was misappropriated and people converted to Islam] this menace going for 102 years- I will tell why the 5 years of practice- [reads the Statement and Objects]- Even Sharia Act, section 3 says you have to establish Muslim for it to apply

SG Mehta: I will demonstration from 1923, there are three tiers of responsibility 1. registration 2. unscrupulous people ... CJI: 1923 Act provided a provision for registration? Earlier, Sibal said 1954 there was a registration requirement and not 1923 SG Mehta: campaign going on in country, 100 years of waqf, where will they bring the papers? Misleading campaign or narrative. says S. 3 of 1923 provided for registration- description was important and not deed

CJI: Suppose, if they claim waqf is of 100 years, it was only necessary to give info of 5 years? SG Mehta: yes, only description was needed. It was not mere formality, sanctity was attached.

SG Mehta: otherside says where to get document? 1923 Act says provide anything you know about the origin or knowledge