As the arguments in the Ayodhya-Ram Janmabhoomi case concluded on Wednesday, the Supreme Court-appointed mediation panel submitted a fresh report offering a “consensual settlement” between parties. In any settlement, the role of the Sunni Waqf Board, a key party to the case, would be significant as the administration of a waqf property is legally determined.
Waqf is the property given in the name of God for religious and charitable purposes. In legal terms, permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. A waqf can be formed through a deed or instrument, or a property can be deemed waqf if it has been used for religious or charitable purposes for a long period of time. The proceeds are typically used to finance educational institutions, graveyards, mosques and shelter homes.
A person creating the waqf cannot take back the property and the waqf would be a continuing entity. A non-Muslim can also create a waqf but the individual must profess Islam and the objective of creating the waqf has to be Islamic.
Waqfs in India are governed by the Waqf Act, 1995. A survey commissioner under the Act lists all properties declared as waqf by making local investigation, summoning witnesses and requisitioning public documents. The waqf is managed by a mutawali, who acts as a supervisor. It is similar to a trust established under the Indian Trusts Act, 1882, but trusts can be set up for a broader purpose than religious and charitable uses. A trust established can also be dissolved by the board unlike a waqf.
A Waqf Board is a juristic person with power to acquire and hold property and to transfer any such property. The board can sue and be sued in a court as it is recognised as a legal entity or juristic person.
Each state has a Waqf Board headed by a chairperson, one or two nominees from the state government, Muslim legislators and parliamentarians, Muslim members of the state Bar Council, recognised scholars of Islamic theology and mutawalis of the waqfs with an annual income of Rs 1 lakh and above.
The Waqf Board has powers under the law to administer the property and take measures for the recovery of lost properties of any waqf, to sanction any transfer of immovable property of a waqf by way of sale, gift, mortgage, exchange or lease. However, the sanction shall not be given unless at least two thirds of the members of the Waqf Board vote in favour of such transaction.
According to the Waqf Act, the Uttar Pradesh Sunni Waqf Board has the power to administer the disputed site. In 1945, in a suit before a Faizabad judge between the Sunni and Shia Waqf Boards, it was held that the Babri Masjid is a Sunni Waqf. The Sunni Central Waqf Board of Uttar Pradesh became a defendant in 1989.
Since waqf cannot be alienated unilaterally, any unilateral claims by the chairperson of the waqf will have no legal value or bind the Muslim community. Alienating waqf property without prior approval of state waqf boards is an offence and special tribunals established under the Waqf Act have jurisdiction to deal with such disputes.
In the Ayodhya case, seven claimants, including six individual litigants and the Sunni Waqf Board, have filed suits as representatives of the Muslim community. With the arguments concluded and the judgment reserved, it would be too late for the Sunni Waqf Board to withdraw the suits. Even if the Sunni Waqf Board were to withdraw the suit, it would need the vote of two-thirds of the Board which would include members of the Muslim community. The other plaintiffs are still entitled to fight the suit on behalf of their community.