No, Waqf Boards cannot claim and acquire just any private or public property

The posts as seen on X. (Source: X/Altered by Logically Facts)

The thread claimed that the Waqf Act allows the Waqf Board to claim and acquire any private or public property in India, with not even the top court able to deny its authority. It goes on to claim that according to the Section 3 of the Waqf Act, 1995, the board can take over any property it “thinks” is theirs. The OpIndia article linked to the thread claims that Waqf Boards have unlimited rights to acquire land and that as per the act, and an individual will have to vacate their home if waqf thinks it's their property

However, the claim is false. Waqf Board cannot just claim and take over any public or private land without legal evidence that the property falls under their management.

In fact

The Waqf Act 1995 is a legislative act that governs the management and administration of Waqf properties. The original Waqf Act was introduced in 1954, marking the first of its kind. It was subsequently repealed, and the new Waqf Act of 1995 was enacted and implemented on November 22, 1995. We reviewed the Waqf Act 1995 and subsequent amendments and found that the claims in the viral post are false.

What is Waqf?

According to the Waqf Act 1995, "waqf" refers to the permanent dedication by any person of any movable or immovable property for any purpose recognized by Islamic law as pious, religious, or charitable. The property dedicated as waqf is intended to be used for the benefit of the community or for specific charitable purposes. 

The definition of “waqf” per the Waqf Act, 1995. (Source: Union Ministry of Minority Affairs)

What are the powers and functions of the Waqf Board?

The Waqf Board is a governmental or statutory body under the Ministry of Minority Affairs responsible for the administration and management of waqf properties. According to Section 32 of the Waqf Act 1995, the primary function of the Waqf Board is to oversee and protect waqf properties, ensuring they are used for designated purposes and not misappropriated. It has the authority to manage, maintain, and make decisions regarding these properties, such as leasing, selling, or developing them, as long as such actions align with the original waqf's objectives. The board is also responsible for the recovery of lost properties and for instituting and defending suits and proceedings related to waqf, among other responsibilities.

Can the Waqf Board claim just any property? 

The Waqf Board does not have the power to claim private properties or assets that are not originally designated as waqf properties. If a property has no historical or legal connection to a waqf, it cannot be claimed by the board. 

According to Section 40, Sub-Section 3, of the Waqf Act 1995, if the board suspects any property registered under the Indian Trusts Act, 1882, or the Societies Registration Act, 1860 (21 of 1860), or any other act, to be waqf property, it can conduct an inquiry. If the inquiry confirms it as waqf property, the board can request the trust or society to register it under the Waqf Act or show cause why such property should not be registered as Waqf. 

 Section 40, Sub-Section 3, of the Waqf Act 1995. (Source: Screenshot/Union Ministry of Minority Affairs)

The law clearly states that to establish a waqf, the property owner must permanently declare the property for purposes recognized by Islamic law as pious, religious, or charitable. The Waqf Board has the authority to assert ownership over only those properties that have been dedicated as waqf by the property owner. The board will initiate a survey under Section 4 of the Waqf Act, 1995, to determine whether a property falls under their regulation. If the board possesses any document or legal evidence that a property has been declared as waqf in the past, they will issue a notice to the current owner. The owner will then be required to appear before the Waqf Tribunal, which functions as a civil court for Waqf-related disputes. The Tribunal is constituted according to the Act and comprises government officials. The Tribunal will conduct the proceedings, and based on the outcome, the board can either take possession of the land, modify the claim, or revoke it. 

Section 40, Sub-Section 2 and 4, of the Waqf Act 1995. (Source: Union Ministry of Minority Affairs)

The board can also be sued otherwise in a civil court. According to Section 13, Sub-Section 3, of the Waqf Act 1995, “The Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued.”

The act does not mention that the Waqf Board can claim any private or public properties, only that it can claim and administer 'waqf properties.’ The board cannot take possession of any property that is unrelated to waqf or lacks legal evidence of being a waqf property. 

The Waqf Act of 1995 was amended in 2013. The gazette containing all the amendments was published on the Ministry of Minority Affairs website. The new amendments introduced several changes, but they did not include any provision granting the authority to the Waqf Board to claim any land. Additionally, no modifications were made to Section 40.

What do experts say?

Kabeer E S M, an advocate at the Kerala High Court, told Logically Facts, "Once a property is dedicated as waqf, it will always remain Waqf and cannot be taken back. The Board has the power to administer and manage only these waqf properties.” He added that the Waqf Board has no power to claim any private land or property that has no relation to waqf and that if such a claim is made, the board can be sued.

Abdul Azeez T.H., an advocate at the Kerala High Court specializing in Waqf-related cases explained the process of claiming a property and said that if the board gathers evidence during an inquiry that a property belongs to them, a notice will be sent to the owner. In case the property was indeed dedicated as waqf and the board has legal documents, the Tribunal will grant authority over the property to the board, as waqf represents a 'permanent dedication' of property. “However, if the property is not a waqf, the Tribunal will revoke the claim. If the owner has legal evidence of and can prove that the property is not related to waqf, and the board still claims the property, then a lawsuit can be filed against them in a civil court,” he said.

Upamanyu Hazarika, a senior advocate at the Supreme Court, made the same point. "The Waqf Board is a government body, similar to several other government entities. It operates within its own jurisdiction and cannot exceed those limits. The Waqf Tribunal addresses disputes concerning waqf properties, but the board can also be subject to legal action elsewhere,” he said.

According to a report by Live Law from May 24, a bench of the Supreme Court noted that it is essential to conduct a survey under Section 4 of the Waqf Act, 1954, before declaring a property as "waqf property". 

The verdict

The claims circulating on social media suggesting that the Waqf Board has the authority to claim and take over any private or public land, including Hindu temples, are false. The Waqf Act 1995, which governs the administration of Waqf properties, does not grant such powers to the Waqf Board. The act strictly pertains to Waqf properties, which have been dedicated to religious, charitable, or community purposes according to Islamic law. Therefore, we have marked this claim as false.