SC upholds law provision barring declaration of tribal lands as waqf properties

New Delhi, Sep 15 (PTI) In one of its significant directions, the Supreme Court on Monday refused to stay a provision that barred declaration of tribal lands as waqf properties.

In an interim order, a bench comprising Chief Justice B R Gavai and Justice Augustine George Masih did not stay the law in its entirety and upheld several provisions of the Act, including the key provision on tribal lands.

It also upheld the requirement of attaching a waqf deed for registration. The restriction that only Muslims can create waqf was also held to be consistent with the religious nature of the institution.

"We are of the considered view that a provision… of the Amended Waqf Act, which has been enacted with the avowed object of safeguarding the interest of one of the most marginalized and vulnerable sections of our country, i.e., the Scheduled Tribes cannot be said to have no nexus with the object sought to be achieved. Such a provision cannot, therefore, be said to be prima facie arbitrary so as to stay the same," it said.

Section 3E deals with the bar of declaration of any land in Scheduled or Tribal area as waqf.

"Notwithstanding anything contained in this Act or any other law for the time being in force, no land belonging to members of Scheduled Tribes under the provisions of the Fifth Schedule or the Sixth Schedule to the Constitution shall be declared or deemed to be waqf property," the provision reads.

Dealing with the issue, the CJI said that the provision provides that no land belonging to members of Scheduled Tribes shall be declared or deemed to be waqf property.

"It is to be noted that the Scheduled Tribes in general and, more particularly, those residing in north-eastern areas of the country, to which the Fifth and Sixth Schedules to the Constitution are made applicable, are one of the most marginalized and vulnerable sections of society and they can be easily exploited.

"The Fifth Schedule itself empowers the Governor to make regulations including regulations of prohibition or restriction on transfer of land from amongst people of Scheduled Tribes in such areas," it said.

The order said a declaration of a waqf in these areas was creating a serious threat to the existence of these cultural minorities, whose religious practices are distinct and who do not follow religious practices prescribed under the Islamic religion.

"The JPC, therefore, observed that the protections envisioned by the founding fathers of the Constitution should be upheld at all costs," it said.

It also took note of the submissions of Solicitor General Tushar Mehta that the Archaeological Survey of India (ASI) had referred to the difficulties with regard to protected monuments which are notified as waqf properties.

The court also noted that mandatory registration of waqfs was not a new concept. It had been part of the 1995 waqf law.

"We are, therefore, of the view that if for 30 long years, the Mutawallis (managers of waqfs) had chosen not to make an application for registration, they cannot be heard to say that the provision which now requires the application to be accompanied by a copy of the waqf deed is arbitrary," the Chief Justice, who authored the judgment, observed. PTI SJK SJK KSS KSS