CJI: 2013, there was a provision for the registration of waqf, no consequences were provided for the non compliance except removal of mutawali [court records it]
Sibal- because he is responsible for registration of waqf; character of waqf will not change. This, 2025 Act changes the characture.
CJI: we will record your submission that if not registered under previous act, the consequences were not provided.
Sibal: the act only said if Mutawalis has not done, there will be consequences. But there was no consequences that it will not be regards as waqf
CJI: should we record that?
Sibal: yes, complete departure
Sibal: they say, in previous act, there was requirement for registration and because you didn't register- will not be regarded as waqf. Many created 100, 200 and 500 years ago
CJI: is there a requirement for registration?
Sibal: it was, but there was no consequences for non registration
CJI: You will have to start from A, B, C, D. i will not read. Was the registration mandatory?
Sibal: shall was used
CJI: merely because it uses shall not be mandatory unless consequences are provided
Sibal: consequence was not the nature of waqf will change- that it will not be regarded as waqf
Sibal: please see 1913, 1923, 1954, 1984, 1995 and 2013 and 2025-the history of it
SG Mehta: factually, 2025 are amendments
Sibal: 2025 is complete departure from past. two concepts- waqf by user and dedication- if you give dedication and property is used for dedication- it becomes waqf by user- this has been done away- a concept recognised in Babri Masjid
Sibal: how are these maintained? through charity
CJI: Happens in other temples as well, I visit dargah also, it happens there as well
Sibal: dargah and mosque are different, to preserve these properties it has to be through the community. they say if there is encroachment, the nature of waqf changes
Sibal: Gov decides its own procedure, anybody can create disputes. This is one aspect. two, what is waqf? its an endowment to Allah (god) and pursuant to that, the property cannot be transferred- once a waqf always a waqf..the historical reason behind, under our constitution, the State cannot finance religious institutions. If there is mosque, the State cannot finance. if there is burial ground, it has to be created through private property...there is no earning, people come to bury their loves ones
Sibal: 2025 Act have been framed for purposes of protection of waqfs but in reality, it is designed to capture waqf through a process which is non judicial, executive...private properties are being taken away only because of dispute, we don;t know the nature of dispute. a officer above collector is appointed to see the dispute, and meanwhile the property is taken away
CJI: without following the process?
CJI: normally we go by order...I am feeling happy that i have 6 months here..my experience at high courts for many years is still better than 6 years here
SG Mehta: all of us were present, these issues were flagged. I dont want to embrass
Sibal: so was I present, infact the statement is unfortunate
CJI: We will have to go by what is on record
Sibal: my learned friend will realise, the court asked for answers on 3 issues
Sr Adv Singhvi: it was not for the truncation of issues
SG : Court had earmarked three issues. We had filed our response to these three issues. However written submissions of petitioner now extend to several other issues. I have filed my affidavit in response to these three issues. My request is to confine it to the three issues only