The court ruled that lease applications for Waqf properties should be open to all community members, including those related to authority members, to ensure transparency and fairness in the leasing process.

ORDER :

B. M. SHYAM PRASAD, J.

1. The petitioners assert that they hail from the Nadaf Community [a Muslim community]. The third respondent is a Waqf constituted for the benefit of the persons from this Community. The petitioners assert that the subject property [a Waqf property] has 40 residential and 25 non-residential premises, which the third respondent has granted on lease, and that such lease is a short-term lease or a long-term lease with the short-term lease being a lease for a period less than a year and the long-term lease being for a period between a year and thirty years.

2. The petitioners have called in question Sub-rule (4) of Rule 4 and second proviso to Rule 5 of the Waqf property Lease Rules 2014 [for short, 'the Lease Rules'], which is notified by the first respondent vide the Notification dated 03.06.2014. The petitioners pitch their cause against the impugned provisions contending that their right to apply for the lease of one of sixty-five premises as aforesaid is seriously impaired, notwithstanding the third respondent's bye-law and the prevailing custom, only because they could be related to the Mutawalli as a spouse, a parent, a child, a brother, a sister, or the spouse or a brother or a sister or a child of the Mutawalli’s brother or sister.

3. This Court has granted interim order on 26.04.2017, stating that the tenancy of the petitioners shall not be terminated by operating the Rules 4 and 5 of the Lease Rules and it is not disputed that the petitioners have continued in possession as could be others without due publication of the invitation as is stipulated under third proviso to Section 56 (1) of the Waqf Act, 1995 [for short, 'the Waqf Act']. Resultantly, the petitioners and others have continued in possession of certain premises within the third respondent’s property over years without due compliance.

4. Mr. Naveed Ahmed, the learned counsel for the petitioners, is categorical in stating that the petitioners are not aggrieved howsoever by the Scheme nor do they seek annulment of Sub-rule (4) of Rule 4 or second proviso to Rule 5 of the Lease Rules and that the petitioners' grievance would be addressed in terms of the third respondent's bye-laws and the custom, if they may participate in the process for grant of lease on reasonable terms. The learned counsel elaborates thus.

[a] The offers must be invited from all the members of the Nadaf Community and even from those who will not be from the Community for each of the 65 premises.

[b] If there are two or more applicants for a particular premises within a Community, preference may be given to those who are not howsoever related to the Mutawalli subject to the bid offered.

[c] If there is no applicant from the Community for a particular premises, the others may be granted lease.

5. Mr. Naveed Ahmed emphasizes that this would enable not only the petitioners and those who could be related to the Mutawalli in terms of Sub-rule 4 of Rule 4 or the second proviso to Rule 5 of the Lease Rules to participate but also ensure transparency in the process of grant of lease in terms of the object for which the Lease Rules have been notified by the first respondent, and the learned counsel underscores that if the impugned Sub-rule and the proviso are implemented, notwithstanding the bye-law and the customs, the limited opportunities to those from the Community would be denied only because of the relationship with the Mutawalli.

6. Mr. Gowtham Dev C. Ullal, the learned Standing counsel for the Central Government, submits that these Rules have been notified as is contemplated in exercise of the powers conferred under