WAKF

Allahabad High Court's Landmark Judgement on Wakf by User

Miru and others - Defendants, Appellants vs Ramgopal – Plaintiff. Respondent.

SULAIMAN, C.J. AND BENNET, J.

Religiou Endowment - Temple or mosque on site of private owner in existence for long time and worship performed by public - Inference is that land is dedicated property and not that temple or mosque stands there with leave and license of owner.

Where the Court finds that a mosque or a temple has stood for a long time and worship has been performed in it by the public. It is open to the Court to infer that the building does not stand there merely by the leave and license of the owner of the site, but that the land itself is a

dedicated property and the site is a consecrated land, and is no longer the private property of the original owner Such a building does not come under the Easements Act and it is one of those cases which is excepted by Section 2,Easements Act: 1934.

A right to perform any religious worship whether claimed by a Hindu. Mahomedan or Christian over the land of another may depend on grant. if so claimed by the grantee. It may also. If claimed by an individual. Be acquired as a private easement. Provided he is the owner of a dominant tenement. But in addition to such individual rights. a right of worship may also be acquired as a customary right which can be availed of by a large body of persons by virtue of such custom. Again. a right to perform worship may be claimed as a part of public right. Which. of course. Would be a right vested in an entire community. Under Section 2 of that Act. these last two classes of rights would be saved from the provisions of the Easements Act. But where there is merely right to perform worship. e.g. to offer prayers, such a right would not authorise the persons entitled to it. to put up a building on the land in order to make it more convenient for them to perform the same worship.

But where a building has stood on a piece of land for along time and the worship has been performed in that building, then it would be a matter of inference for the Court which is the Judge of facts, as to whether the right has been exercised in that building for such a sufficiently

long time as to justify the presumption that the building itself had been allowed to be consecrated for the purposes of such rights being performed. Where there is a mosque or a temple. Which has been in existence for a long time and the terms of the original grant of the land cannot now be ascertained. There would be a fair presumption that the sites on which mosques or temples stand are dedicated property. Where therefore the Court finds that a mosque or a temple has stood for a long time and worship has been performed in it by the public, it is open to the Court to infer that the building does not stand there merely by the leave and license of the owner of the site, but that the land itself is a dedicated property and the site is a consecrated land, and is no longer the private property of the original owner. There is nothing legally objectionable in non-Muslim owners making a grant of a land to Muslims and in that way to enable them to build a mosque on such land. In the case of graveyards, it has been held in several cases that long user justifies the inference that the land itself is a dedicated or consecrated property, or that even if it is not dedicated, it has become wakf property. The presumption would be all the greater in the case of a building, which issued as a mosque or a temple.

If the finding is that there is already a mosque or a temple on the land, though the structure is katcha, the necessary inference would be that the site has become a consecrated and dedicated property, and then there can be no objection to the building being converted into a pucca building. It is no longer the case of a mere license which cannot be exceeded beyond the terms on which it was granted.

Government Statements On Refixation of Imam's Salaries

In compliance of Hon'ble Supreme Court's direction dated 13th May, 1993 in Civil Writ Petition NO. 715 of 1990that Union of India and Central Wakf Council should prepare a scheme for payment of remuneration to Imams of different types of mosques, a scheme was prepared and

Submitted to the Hon'ble Court by Central Wakf Council on 2.1.1996 and by the Central Govt. on 5.1.1996. The responsibility for implementation of the said scheme shall lie with the appropriate State Wakf Board and no estimates have so far been prepared by the State Governments or State Wakf Boards in this regard. The Central Government have not given any grants-in-aid to any Wakf Board for the purpose.

On Wakf Act, 1995

The Wakf Act, 1995 has been enforced in the country, except in the State of J&K. with effect from 1.1.1996.According to the information received from the State Governments; State Wakf Boards have been constituted inthe States of AP, Meghalaya, and West Bengal under the Wakf Act. 1995. Neither any State Govt. nor any Wakf Board hasintimated about any difficulty experienced in transferringthe pending civil suits relating to the Wakf properties tothe Tribunals. Survey of Wakf properties were conducted by most of the State Govts. Under the Wakf Act, 1954.Information regarding such surveys under Wakf Act, 1995 is being collected from the State Govts. and will be laid on the table of the House. In 1976, the then PM had addressed the CMs of selected States and the Lt. Governor of Delhi to either vacate the Wakf properties under adverse occupation of State Govt. Deptts. or Local Bodies or pay fair market value of the lands to the Wakf Boards or to enter into permanent leases with the Wakf Boards

(Source: LSSQ NO. 278/10.12.1996 by M. Anis & J.P.Agarwal)

Ban on Use of PA System for AzanInsaf Morcha Demands Review

Shahabuddin's Statement, 3 December, 1996

"The extension by the Calcutta High Court of its order against noise pollution to "Azan" is misconceived.

Use of PA for congregational prayer in any place of worship, including mosque, can be controlled so as to reach the congregation and cause no disturbance outside. Similarly the use of the PA system may be denied for all public manifestation of religions, Jalsas and processions.

All those like night long Kirtans or Zikrs and round-the-clock record-playing or singing are "pollutants" because they are continuous. Azan is not, it is a call to the faithful, reminder for the congregational and even personal Namaz. It takes 2-3 minutes at most, 5 times a day. Only

the Azan for the dawn prayer may cause some disturbance to sleep in mixed localities. Others at mid-day, in the afternoon, at sunset and at night fall cannot cause. Any substantial addition to the existing noise level.

Secondly, it may be kept in view that Namaz is prescribed as a religious duty and the authorities must make a distinction between performance of a duty and of an optional act of piety. Moreover, Azan is not an innovation.

Thirdly, there is no reason why religious worship should not avail of technological advances.

The order shows lack of appreciation and comprehension of its full implications."

Another Mosque Vacated in Punjab

A mosque situated at a distance of 6 kms from Rajpuraat village Shayamadu Chamaru (in Patiala District) was recently vacated. Since 1947 the said mosque was under the unauthorised possession of some local residents and was also used as Gurdwara. For some-time it also remained in unauthorised (use for) a government dispensary.

But after negotiation and persuasion by the. Darul Uloom Hussainia Islamia, Rajpura, the mosque was restored to its original use. President of the Madrasa Committee Rajpura, Mohammad Habib and some prominent local Muslims made sincere efforts for the vacation. Village Sarpanch also helped the local Muslims. Namaz has been started in the mosque after its restoration. Darul Uloom Hussainia has asked the Board for adhoc grant for providing water and toilet facilities and repairing the floor. The proposal is under examination.