The Waqf Act of 1995 [pdf], enacted by the then Congress government, has multiple provisions for unchecked abuse of powers and encroachment of properties by the Muslim community. One of the provisions is listed under Section 40 of the legislation.
It empowers the Waqf Board to unilaterally decide whether a property is ‘Waqf Property’ based on information collected by it.
“The Board may itself collect information regarding any property which it has reason to believe to be waqf property and if any question
arises whether a particular property is waqf property or not or whether a waqf is a Sunni waqf or a Shia waqf, it may, after making such inquiry as it may deem fit, decide the question,” the first sub-section of the provision lays down the rule.
The decision of the Waqf Board in determining whether a property belongs to Waqf is final unless revoked/ modified by a tribunal.
Section 40 of the Waqf Act of 1995 further allows the Waqf Board to attach properties of trusts and societies after conducting an initial inquiry. It allows the Board to issue directives to said trusts and societies to mandatorily register with it or show cause for not doing so.
Sub-section 3 of the provision makes it clear –
“Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the Societies Registration Act, 1860 (21 of 1860) or under any other Act, is waqf property, the Board may
notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is waqf property, call upon the trust or society, as the case may be, either to register such property under this Act as waqf property or show cause why such property should not be so registered. Provided that in all such cases, notice of the action proposed to be taken under this sub-section shall be given to the authority by whom the trust or society had been registered.“
The controversial legislation further provides for passing orders (as it thinks fit) to take over such trusts and properties and that its decision will be final (unless, of course revoked/modified by the Tribunal).
“The Board shall, after duly considering such cause as may be shown in pursuance of notice issued under sub-section (3), pass such orders as it may think fit and the order so made by the Board, shall be final, unless it is revoked or modified by a Tribunal,” the fourth sub-section of Section 40 reads.
The current working of the Tribunals
OpIndia had previously reported how specialised Waqf tribunals were introduced in the 1995 Act, ending the oversight of civil courts to decide disputes over Waqf properties.
Initially, in the 1954 Waqf Act, civil courts had the power to decide on the dispute related to waqf properties. In the 1995 Act, Waqf Tribunals were introduced transferring the power to them. In 2012, tribunals’ powers were expanded and included tenant eviction disputes and other related issues, consolidating the tribunals’ role in managing waqf properties.
The 1954 Act allowed “any person interested therein” to challenge waqf property disputes, primarily targeting Muslims. The 1995 Act retained the phrase but directed disputes to specialised tribunals. The 2013 amendments replaced the phrase barring non-Muslims from filing suits beyond a one-year limitation.
It also introduced a new provision requiring government agencies to return waqf properties to the Waqf Board or Mutawalli within six months of a tribunal order.
Thus, the decision of the Tribunal (as per the Waqf Act of 1995) in case of any dispute regarding waqf property is final, and can’t be challenged.
Consequences of Section 40 of the 1995 Waqf Act
The arbitrary nature of Section 40 of the Waqf Act of 1995 gives unjustified and sweeping powers to the Waqf Board. It can declare any property as ‘Waqf’ and override legislations like the Trust Act of 1882 and the Societies Registration Act of 1860.
Such unbridled powers handed out to the Waqf Board by the Congress government are unprecedented. The parties, aggrieved by the Waqf Board, have no safeguards since all inquiries are carried out by the Board itself. It effectively violates principles of natural justice and fair play.
In the absence of arbitration by a Civil Court, the decisions are skewed in favour of the Waqf Board itself. This partly explains why the Waqf Board is presently India’s third largest landowner, trailing only the Armed Forces and Indian Railways.
The country today has up to 30 Waqf Boards, which have thus far infringed on many properties and temple lands, with the pattern of operation being consistent in most cases. Muslims usually first start performing namaz on these lands. Then, villages are constructed around it after declaring it a religious site. It then becomes easier to sell or lease land near these illegal settlements.
There are currently 50,000 Waqf properties in the country, covering 6,00,000 acres. These properties have earned 150 crores in revenue thus far and consistent efforts are being made to increase this.
OpIndia has previously highlighted 21 such instances when the Waqf Board in India has mismanaged assets, encroached, illegally disposed of and infringed on various properties in the last few years.
Course correction in the Waqf Amendment Bill 2024
The Waqf Amendment Bill of 2024 [pdf] introduces a clause which completely omits Section 40 from the Waqf Act of 1995.
Clause 20 of the Amending Bill clearly states – “Section 40 of the principal Act shall be omitted.”
With this new clause, Section 40 of the Waqf act, which allows the board to collect information regarding any property which it has reason to believe to be waqf property, has been abolished.
The Indian government has justified the decision. It said that the measure has been undertaken to rationalise the powers of the Board. The idea was to ensure that Waqf properties are declared only after following due process.
At the same time, amendments are made to Section 6 and 7 of the Waqf Act to remove the finality of the tribunal in disputes regarding Waqf and extend the limitation period from 1 year to 2.
The Waqf Amendment Bill of 2024 also omitted the finality of the tribunal in matters relating to schemes of management made by the Board.
Also, the ‘Muslim law expert’ is removed from the Tribunal’s composition. The panel will now be headed by a District Court judge, with a joint secretary-level officer from the state government as a member.
JPC Report and its recommendations
The Joint Parliamentary Committee (JPC), which examined the Waqf Amendment Bill of 2024 and the opinion of various stakeholders, also concluded in its 913-page report [pdf] that omission of Section 40 of the Waqf Act of 1995 was necessary.
“The Committee, after thorough deliberation with various stakeholders and considering the replies submitted by the Ministry of Minority Affairs, are of the view that omission of Section 40 of the Principal Act will be essential to rationalize the powers of the Board to ensure that waqf are declared after following due process as per the provisions of the Act. Hence, the amendment, is accepted as it is.“
Last-ditch effort to retain Section 40 of Waqf Act
The Opposition Parties in India are making a last-ditch effort to retain Section 40 of the Waqf Act and continue the abuse of power by the Waqf Board through its arbitrary, wishful ways.
On Wednesday (2nd April), Trinamool Congress leader Kalyan Banerjee claimed, “If section 40 is amended and section 40 is taken away, the Waqf board will be a toothless doll, doll only.”
He brazened out, “If there is no Section 40, then there is no necessity to keep the Waqf Board itself. Do not keep it, keep the power with the minister of the central government. The minister will decide what is the necessity of the Waqf Board.”
"If there is no Section 40, there is no need to keep the Waqf Board itself. Do not keep it".
— OpIndia.com (@OpIndia_com) April 2, 2025
TMC's Kalyan Banerjee opposes the removal of Section 40 of the Waqf Act, which gives Waqf Boards power to arbitrarily declare properties, like Hindu villages, Waqf property.
WATCH pic.twitter.com/zsB4KQyl0T
“The Waqf board, the proposed amendment bill under clause 21, second amendment of section 46 of the original act, once again empowers the central government,” Kalyan Banerjee further alleged.
