Petitioners on the first day argued that the amended act was imposing unfair requirements on them for registration of properties as waqf while endowments made by other religious communities are not subject to such onerous conditions #WaqfAmendmentAct #SupremeCourtofIndia

SG Tushar Mehta: petitions filed by individuals are in PIL and not in any affected individual. The question whether parliament has legislative competence is not a question at all. That was the only basis on which stay on a statute was granted. I will detail the process of the

Mehta: we were eradicating the menace that was there since 1923. Every stakeholder was heard. It is my case that few petitioners cannot claim to represent the entire Muslim community. We received 96 lakh representations. The JPC had 36 sittings.

Mehta: there were repeated deliberations with the JPC. They took various inputs from different Muslim bodies. Thereafter a voluminous report was submitted where suggestions were accepted/rejected with reasons. Then it was passed with unprecedented debate.

Mehta: (reads definition of waqf from note). 1923 said Waqf can be created by Waqf. 1955 also said the same. 1995 also said the same. Then in November 2013 just before elections the inclusion was not Muslim but any person can create a Waqf. He has to be Muslim. He has to practice

Mehta: if you have registered yourself as Waqf by user then it is saying with two exceptions….Dispute would mean a private party may have filed a suit that it is my property which is declared as a Waqf. If there is a dispute between private party with regard to Waqf property it

Mehta: government hold the land in trust for all the citizens. Waqf by user by definition the property belongs to someone else. You have acquired right by continuous usage. Therefore necessarily either private/government property is used for a long period of time. If there is a

Justice Gavai: their contention is that in this case the government will decide its own claim. Mehta: the revenue authorities decide whether it is government land or not. But it is only for the purpose of revenue records. They cannot decide the title. It is not final.

Mehta: initial bill was that the collector will decide. The objection raised was collector will be a judge in his own case. So it was suggested by JPC that let somebody else apart from the collector be the designated officer.

Mehta: the only consequence of the exercise undertaken by the officer under 3C will be limited to correction revenue records and board record. I have said this on affidavit. But nobody brought this to notice.

CJI Gavai: so it will just be a paper entry? Mehta: it will be a paper entry. But if government wants ownership it will have to file a suit for title. If anyone is dealing with trust property he will know as per revenue record government is the owner and not the Waqf.

Mehta: (reads from affidavit) there is no denial of access to justice under 3C. It will open for the affected party “at any stage” to approach the Waqf tribunal under 83 which will make the final title or on appeal by the HC or the SC. Updating of revenue records only ensures

CJI Gavai: the picture that is being painted is that once collector conducts enquiry the property will cease to be a Waqf property and once enquiry is complete the entire property will be taken over by the government. Mehta: we will have to go for title suit for ownership. The

CJI Gavai: so unless the proceedings provided in section 83 are taken to a logical end there will be no eviction? Mehta: yes. Please see. Any mutawali person or any person aggrieved by an order under 3C may make an application within the time specified in the act.

Mehta: Earlier it was no appeal would lie and it was a revisional jurisdiction. Now it’s that a full appeal can lie to the High Court on the decision of the tribunal. Earlier it was like a revision. Now it is like a full fledged first appeal. Against which intra court appeal also

Counsel: do we reserve our arguments on this or will be get time? For the future Waqf by user is abolished. And the provision says it will not be Waqf in the mean time. Mehta: please see section 85. No suit or other legal proceedings shall lie in any civil court, revenue court

Mehta: they are saying entire adjudication of Waqf is taken away. Please read the proviso. Provided that such property shall not be “treated” as Waqf property. The purpose is if you wish to file a civil suit your character as Waqf property is suspended so you can seek remedy.

Mehta: till it is decided whether it’s a government property or not how can it be transferred or encumbered? Pay waqf by user are saved provided they are registered. If it is a private dispute obviously no one can object. Any dispute with private individual will be determined by

Mehta: once the statue operates then the court can know what is the intent of the statute. Now this is all academic discussion what this section that section means. Only exception is registered Waqf by user will be protected.

Mehta: there are now consequences provided for non-registration. I have gone to the root of the problem. This is the first enactment dealing with regulation of Waqf property. This menace has been going on since 102 years. The object is indicated by the preamble of the bill.

Mehta: about the 5 years aspect. Even Sharia Act has section 3 which says you have to establish yourself as a Muslim. It does not mean you have to offer namaz 5 times a day or not drink wine etc. in some cases difficulties have arisen whether properties are subject to Waqf or

Mehta: there should be some designated person who should go about and see if the properties declared as Waqf are being treated as Waqf property. CJI Gavai: Did 1923 act also have a provision for registration? Mr. Sibal had argued that registration came from 1954 not from 1923.

Mehta: if you say Waqf was created before 100 years then you provide documents for only last 5 years. It was not just a mere formality. There was a sanctity attached by the Act. 1923 act says if you have document you provide otherwise provide whatever you know about the origin.

Mehta: one cannot say this was going on by user since 100 years. (Reads statutory mandates for Waqf property from 1923 Act). CJI Gavai: Mr. Sibal he is technically right.

Mehta: even in 1923 there was a section of Bengal Waqf act which had Waqf by user. It was not like it was an unknown concept before. For the first time in 1954 Waqf board was created.

Mehta: (reads provisions from the 1954 Act) then comes to 1984 amendment.

Mehta: Now no one can say someone else had to register. Its upon them to do so. If not registered under 1923.. then it is incumbent upon them to do so .. the narrative built is where are the documents... It says provide particular so far as possible. Please see the word. No waqf

Mehta: window of registration was also given. Under 1923 act was 3 months and now it is ,6 months : CJI SG: Yes if missed then it can be done now also.

SG: provision has been made so that if a muslim wants to create a trust they can do it without creating a waqf.

SG: this is an empowering provision