The central legal point established in the judgment is the essential requirement of dedication and the definition of Waqf under the Waqf Act, 1955, emphasizing the need for dedication by the owner and registration with the Waqf Board.

JUDGMENT :

Vipin Sanghi, J.

The petitioner has preferred the present Writ Petition, in public interest, seeking the following reliefs:-

“(i) Issue a writ, rule, order or direction in the nature of mandamus directing the respondents not to resort to indiscriminate and arbitrary demolition of places of worship, shrines, mazars, etc. of Muslim Community dehors the provisions of Places of Worship (Special Provisions) Act, 1991 & Uttarakhand Policy for Removal, Relocation and Regularization of Unauthorized Religious Structures on Public Streets, Public Parks and Other Public Places, 2016.

(ii) Issue a writ, rule, order or direction in the nature of mandamus directing the respondent no. 9 to conduct of preliminary survey of auqaf (waqfs) and publish list of auqaf in accordance with Section 4 & 5 of Waqf Act, 1995.

(iii) Issue a writ, rule, order or direction in the nature of mandamus directing the respondents nos. 1-8 to restore the places of worship, shrines, mazars, etc. of Muslim Community in the State of Uttarakhand which have been demolished by the respondents nos. 1-8 illegally.”

2. The petitioner has made general statements, with regard to the alleged indiscriminate and arbitrary demolition of legal places of worship, shrines, mazars, etc. of Muslim Community. The said statements are completely vague and unsubstantiated.

3. Aforesaid being the position, the first and the third reliefs, in our view, cannot be granted in the present Writ Petition.

4. The second relief sought by the petitioner is for a direction to respondent no. 9 to conduct a preliminary survey of auqaf (waqfs), and to publish list of auqaf in accordance with Sections 4 and 5 of the Waqf Act, 1955.

5. At this stage, we may notice some relevant provisions of the Waqf Act, 1955. Section 3(r) of the aforesaid Act defines a “Waqf” to mean the permanent dedication by any person, of any movable or immovable property for any purpose, recognized by the Muslim law, as pious, religious or charitable. Therefore, it appears to us that, for creation of a Waqf, the essential ingredient is that, firstly, there should be a person, who owns movable or immovable property.

6. Secondly, that person should dedicate his own movable or immovable property for any purpose specified by Muslim Law as pious, religious or charitable.

7. The definition is inclusive. It includes a Waqf by user - such Waqf shall not cease to be a Waqf by reason only of the user having ceased, irrespective of the period of such cesser. It also includes a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record, and; “grants”, including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable, and; a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the Waqf shall be spent for education, development, welfare and such other purposes, as recognized by Muslim law.

8. The inclusions under Clauses (i), (ii), (iii) & (iv) in the definition of “Waqf”, to our understanding, cannot take away the primary meaning of the expression “Waqf”. A Waqf, by user, cannot be a mere user of a movable, or an immovable property for a pious, religious, or charitable use, recognized by the Muslim law simplicitor. It has to comply with the primary requirement of it being a dedication by a person of his movable or immovable property. Therefore, a Waqf cannot come into existence, when the property, which may be used for a pious, religious, or charitable purpose, as recognized by Muslim Law, is not the property of a person, but is public property, public land, or government land. The expression “a Waqf by user” only means that the owner of the property, movable or immovable, by his use, exhibits his intention to create a Waqf, i.e. dedication to his property for a purpose recognized by Muslim law as pious, religious or charitable.

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