UP’s claim on Waqf properties puts contentious clause under spotlight
A Waqf is a Muslim religious endowment, usually in the form of landed property, made for purposes of charity and community welfare.
Lucknow: Only around 4,000 of the 132,000 properties claimed as Waqf assets in Uttar Pradesh qualify under guidelines fixed by the state government, principal secretary, revenue, P Guruprasad has said, with the rest being public properties that belong to or are controlled by the government.
The senior bureaucrat’s claim, which means that 97% of the properties currently believed to be Waqf in Uttar Pradesh are actually property of the state or commons land, is a test case for one of the biggest concerns around the Waqf (Amendment) Bill – the treatment of what is called “Waqf by user”. It also highlights the poor titling and documentation of land and properties in general, and Waqf land and properties specifically.
“During the examination of the land records, it was found that majority of the properties claimed as Waqf actually belonged to gram samaj (village communities). The exercise to reclaim the government land is nearing completion,” Guruprasad said.
The number was arrived at after an eight-month exercise that saw revenue department employees across UP examine land records since 1952, when the Zamindari system was abolished under the Uttar Pradesh Zamindari Abolition and Land Reforms Rules.
A Waqf is a Muslim religious endowment, usually in the form of landed property, made for purposes of charity and community welfare. At the heart of the dispute in UP is the contentious clause of “Waqf by user”, which uses principles in Islamic law to declare a property or asset as a Waqf (or charitable endowment) based on its use even without a formal declaration. For example, if someone continuously uses a property as a mosque or for a charity, then the law may recognise it as a Waqf.
This clause was part of the 1955 act but features nowhere in the controversial amended bill that was introduced in Parliament last year. This new draft proposes sweeping changes in the regulation and governance of India’s Waqf boards, which manage Islamic charitable endowments. It reworks the definition of Waqf to ensure that only lawful property owners practising Islam for at least five years can create Waqf through formal deeds. Effectively, this means that the “Waqf by user” clause is gone.
This clause was one of the most hotly debated issues before the joint parliamentary committee that was examining the bill and recently submitted its report. In its final recommendations, it offered major relief to existing Waqf properties by suggesting that the provision of “Waqf by user” will remain applicable for current properties and can’t be questioned on the grounds of the new law scrapping it.
“Provided that the existing Waqf use by user properties registered on or before the commencement of Waqf (Amendment) Act 2024 as ‘Waqf by user’ will remain as Waqf properties except that the property, wholly or in part, is in dispute or is a government property,” said an amendment proposed by Bharatiya Janata Party member Nishikant Dubey that was accepted by the panel.
To be sure, the government is not bound by the recommendation of the panel.
“The revenue department has also made it clear to JPC that held meetings with the state government officers and stakeholders, including members of various Muslim and social organisations in the city on January 21, about the ground realities on the Waqf properties in the state,” Guruprasad said.
But any move on the basis of the data is set to face stiff resistance from the Muslim community. “When the Waqf Act was made, it was decided that properties which are ‘Waqf by user’ should be registered and they would be Waqf properties legally,” said the chairman of the Islamic Centre of India, Maulana Khalid Rasheed Farangi Mahali.
“Now after so many years if the government says that such properties do not belong to Waqf board, there are innumerable properties in the country which don’t have any legal papers, so will all these properties be considered illegal now? Does that mean all Waqf lands belong to the government?” he asked.
How the UP government got hereThe revenue inquiry began on the basis of a report sent by Barabanki district magistrate Satyendra Kumar in May 2024 that said 800 properties in the district were being claimed as Waqf despite most of them being under the control of the gram samaj, as per government records. The Barabanki report was made on orders by the state government.
“Later, an order of the Lucknow bench of the Allahabad high court over a dispute on a pond in Pilibhit district prompted the state government to examine land records regarding the claims and counter claims over Waqf properties,” said a revenue department official, requesting anonymity.
In its order passed on December 11, 2023, the court termed the registration of the community property (pond) as Waqf property by the Pilibhit sub divisional magistrate (SDM) illegal. The court directed the Uttar Pradesh government to examine the revenue records if the community property had been mentioned as Waqf property in other districts too, this official said.
The department alleged further negligence in paperwork and violation of norms.
If properties are dedicated as Waqf, then under the 1955 Waqf Act, an application has to be given to the subdivisional magistrate for the registration of the property as Waqf, said the official.
“The SDM examines the land records and donated property before ordering registration of the properties as waqf. Then, the property is considered legally registered as Waqf property. In the majority of the cases, the revenue department detected that no application was moved with the SDM or the local revenue department officer, yet the property was claimed as Waqf,” this official added, requesting anonymity.
Further, section 37 of the 1955 law said that the Waqf board must maintain a register of all Auqaf (plural of Waqf) with details such as the class of the Waqf,names of mutawalli (trustee or manager of a Waqf property), rules of succession, title deeds, and any other relevant information.
No such records were found, said the official quoted above. “The land on which a cremation ground, mosque, madrasa and other structures are located is being claimed as Waqf properties but in the land records of the state government, it was found that it is public property vested with the gram samaj. The property for public use cannot be claimed as Waqf,” the official added.
Confusion and oppositionA government order further muddied the waters.
In April 1989, the then Congress state government issued an order directing the revenue board to register the properties claimed as Waqf in the revenue records in all the districts.
In August 2022, the BJP government annulled the 1989 order and directed the commissioner of the revenue board to verify records before registering a property as Waqf in the land records.
The revenue department should correct previous records according to the rules, the order stated. After the fresh order, several properties earlier claimed as Waqf were later registered as government properties, said the revenue official added.
Uttar Pradesh chief minister Yogi Adityanath personally backed the new order. “If the term Waqf appears, the revenue department will examine the original ownership and take steps to reclaim the land,” the CM said after a cabinet meeting on November 22, 2024.
The controversial amendments have whipped up strong opposition among the Muslim community. All India Majlis-e-Ittehadul Muslimeen (AIMIM) chief Asaduddin Owaisi – also a member of the JPC – recently told Parliament that the bill could stoke social instability and was rejected by the Muslim community.
He told HT that Waqf properties under the Sunni and Shia Waqf Boards were gazetted by the state government. “The gazette is an official document and the survey of the property is conducted by the additional district magistrate and the state government issues the notification,” said Owaisi.
“After the notification, if the UP government is claiming that it is not Waqf property, it is against the principles of natural justice. The BJP government is trying to annul the Waqf properties,” he alleged.
Mahali said that the lack of paperwork was common in a country such as India where many properties were handed down generationally. “In olden days, when there was no registry system, people used to donate their land for community in the form of Waqf. Many lands were donated hundreds of years ago, especially in rural areas, as there were no documents back then,” he said. “Mosques were made on those lands and it automatically became a Waqf property through ‘Waqf by user’ clause.”
He said the community might take the legal route to safeguard such Waqf properties. “We are closely watching all the developments and waiting for the bill to be tabled in Parliament after which we will consult with our legal advisors on how to seek any legal remedy in this regard,” he added.
