NEW DELHI: A fresh plea has been filed in the Supreme Court for a direction to the Centre to enact a uniform law to manage trust and trustees, charities and charitable institutions, and religious endowments and institutions and declare provisions of the Waqf Act as arbitrary, irrational and unconstitutional.
Swami Jeetendranand Sarswatee also sought a direction that any dispute relating to religious properties between communities can be decided only by the Civil Court under Section 9 of the Civil Procedure Code, and not by any Quasi-Judicial Tribunal under the Waqf Act.
The plea challenged the constitutional validity of the various provisions of the Waqf Act 1995 inter alia on the ground that Parliament has no power to make special law in favor of one religious community giving special status discriminating similarly situated Hindu and other non-Islamic religious communities and those provisions have been enacted in violation of Articles 14, 15, 25, 27 and 300-A of the Constitution.
"Furthermore, the right for filling case/suit before the Civil Court has been taken away by conferring those powers on Waqf Tribunal, which cannot be substitute of Civil Court and Parliament cannot establish Tribunals beyond the scope of Article 323-A of the Constitution," it said.
The plea filed through advocate Atulesh Kumar raised several important questions of law including:
* Whether Central Government can enact a law conferring special right, uncontrolled power and superior status to the property governed by personal law of one community and deny same status, right or power to others?
* Whether Central Government can make a special law for Waqf within the subjects enumerated under Item 10/28 of List 3 of Seventh schedule?
* Whether the law applicable to Trust, Endowments, Charitable and religious Institutions are also applicable toWaqf properties?
Whether Sections 4-9 of the Waqf Act 1995 violates Article 14-15 of the constitution of India as no provision has been made for giving public notice and adopting a transparent fair procedure confirming principal of natural justice?
* Whether remedy provided under Sections 6-7 for filing suit before the Waqf tribunal is not appropriate judicial remedy to the persons belonging to Hindu and other non-Islamic communities against the grievance of the list of the properties identified as Waqf properties in the list notified in section 5 of the Waqf Act 1995?
* Whether Section 8 is against the principles of Secularism and Article 27 as the cost towards survey and publication of list is to be borne from public exchequer by the State Government?
* Whether Sections 28-29 give special status to Waqf Boards in violation of Articles 14-15 of the constitution of India? Whether the power conferred by Section 36 and 40 is arbitrary irrational discriminatory and hit by Articles 14, 15, 25, 26 and 300-A?
* Whether the property disputes relating to title and other questions between two religious communities can be decided only by civil court and same cannot be decided by a quasi-judicial forum.
Among the grounds raised in the petition are that Parliament cannot enact a separate law giving special status to Waqf properties which is not available to other communities.
It further pointed out the Religious Endowment Act 1863, The Indian Trust Act 1882 and Charitable and Religious Trust Act 1920 have provisions for creation, management and resolution of disputes.
However, the Waqf Act has been given wide and uncontrolled powers to Waqf Boards and Waqf Properties have been placed over and above other charitable religious institutions. No other enactment has conferred such wide powers and status.
The plea also contended the State cannot make any law giving special status and rights to a particular community within the four corners of Constitutional provisions and it cannot show its inclination towards one religion. State cannot make any law in respect of a religious community beyond the scope of Article 25-26 read with Articles 14-15 of the Constitution.
Further, it pointed out there is no provision for giving public notice by survey Commissioner before inclusion of the name of Waqf in the list being recommended to the Government under Section 4 on the basis of which the final list is to be published by Government under Section 5.
This provision confers arbitrary and un-checked powers violating the concept of Article 14 to the survey Commissioner and is absolutely in derogation of interest of non-Islamic groups and discriminate them on the ground of religion in violation of Article 15.
Moreover, the cost of survey and publication of Waqf will be borne out from public exchequer. Thus, tax payer money is being spent for the cause of Waqf. Therefore, Section 8 not only offends Article 14, 15, 27 but also the principles of Secularism. The tax payer money cannot be utilized for promotion of one particular religion.
