NEW DELHI:
SG said there was no basis for the apprehension of fresh scrutiny of ‘waqf by user’ properties. It was meant to enable only those Muslims who had already created a trust for charity, by assuring that their properties would not be treated as waqf property, he said. CJI said, “Before the British came to India, there was no concept of registering properties on transfer. How will someone produce documentary proof of a waqf if it was done during the 14th to 19th century. Jama Masjid in Delhi may be ‘waqf by user’. Who will produce documentary proof for this? But at the same time, no one can make an absurd claim that Parliament or Delhi HC land is waqf land.”
Mehta said Muslim charity commissioners could enter temples and have been entering temples. “The Tamil Nadu govt says it can appoint archaks (pujaris) and the court approves it saying it is a secular function of the govt,” he said, adding, “It is the administration of properties. Nothing to do with the religious affairs of Muslims.”
The bench said as long as a non-Muslim was confined to the post of ex-officio member, it was fine. “But as far as other members are concerned, it can’t be that out of 22 members in the council, only eight are Muslim,” the CJI said.
The SG said this issue was raised before the Joint Parliamentary Committee and it was emphatically clarified by the minister concerned that a maximum of two out of 22 members would be non-Muslims in the council.
“The provisions are now inclusive as membership is expanded to include all categories of Muslims, which was earlier confined only to Shias and Sunnis. Among the members, two must be women, so it has become even more inclusive,” Mehta said. The bench said this was a positive development.
Mehta also allayed the SC’s apprehension of immediate reconstitution of the council and boards by saying the existing bodies would continue till their end of tenure. He said that interestingly, among the 150 petitioners, not a single board had approached the SC claiming that it was affected by the changes in the waqf Act.
At one point, the SC mulled the option of sending all petitions in the SC and before HCs to one HC. But the Muslim side opposed it and said the issue required adjudication at the earliest. The SG said let the court issue notice to the Union govt, which would respond in detail. However, when the SC intended to dictate an interim order, Mehta and Dwivedi successfully opposed it by seeking to advance arguments.
