Civil Courts can intervene in WAQF real estate disputes: Punjab and Harkana Superior Court

The Superior Court of Punjab and Haryana argued that the jurisdiction of civil courts in WAQF matters is not completely expelled and remains intact in cases where the validity of a survey or investigation under the WAQF law is challenged. The decision resolves the long -standing debate about whether the WAQF courts have the authority to decide on WAQF real estate disputes.

Judge Pankaj Jain said that a WAQF court had exclusive jurisdiction under section 7 of the WAQF Law to decide whether a property is WAQF or not, and if a particular WAQF is Shií or Sunita. But he did not have the authority to examine the validity of the survey process carried out under section 4 of the Law. Judge Jain made it clear that the Civil Court had the jurisdiction to examine the matter where a challenge was raised against a notification issued by virtue of section 5 (2) of the law with the argument that the required survey was not carried out properly or in accordance with the legal requirements.

Preparing, Judge Jain said that the exclusion of the jurisdiction of the Civil Court should not be easily inferred and applied only to the matters that the court was specifically empowered to decide. The court lacked the authority to analyze whether the legal procedure for the survey and identification of WAQF properties was followed. In cases where the legality of the investigation carried out by the survey commissioner was questioned, the Civil Court that had the power to determine whether due process was fulfilled.

When addressing the importance of the survey process, Judge Jain said that the survey commissioner, appointed by the state government, was under the WAQF law in charge of identifying and informing the WAQF properties. The report prepared by the commissioner had substantial legal consequences, since it could lead to the inclusion of properties in the WAQFS list maintained by the state government. The income authorities, under the amended law, had the mandate to update the land records based on the list. Judge Jain, at the same time, made it clear that the list was not conclusive evidence that a property was WAQF. He simply carried a presumption of correction, which had to be supported by adequate investigation.

Judge Jain added mere entry into the income records that describe a property such as a cemetery or “kabristan” was not enough to establish it as WAQF property unless there is evidence of dedication or user. Citing the precedents of the Supreme Court and the Private Council, the Court declared that WAQF could be established through permanent dedication for a religious or charitable purpose under Muslim law or through public use of long data as the property of WAQF. The cessation of use did not alter the waqf nature of a property once it has been legally established.