Waqf Amendment Act Challenge : Live Updates From Suprem Court [Hearing On Interim Order -Day 3]

Sibal: very imp question- what is waqf by user? i will give you a note

SG Mehta: give me as well

Sibal: 1954, first time they said Muttawaali is not the kind of the person to register and ultimately they decided there should be a survey to find out what is waqf- then 1995 Act, there is whole procedure but nothing has been done. its the states, not the mutawalli

Sibal: it need not to be registered [waqf by user]

CJI: We must tell you what is in our mind

Sibal: come to this proviso- gov property is 3C but it also applies to dispute by individuals

CJI: if somebody is disputing, S. 83

Sibal: if there is private dispute, it is no longer waqf by this expression 'wholly or in part, is in dispute'- there is no procedure for determination, no reference as to how this will be determined

Sibal: kindly see 3(1)(r) proviso- see something much worse-if you take waqf by user gov property- 3(C) will apply

CJI: If Collector initiates process for determination, then only it will apply. Somone will have to claim

Sibal: how will it be claimed? I have a burial ground for 200 years, now we dont know but its essential and integral part of islam- but gov says, no no its not..can it be taken

CJI: In 1923, you are right there was no provision technically, but it was given to authority..continuously from 1954, the registration was required. Read 1976 report why registration was required. For 100 years, the scheme was for registration and if somebody did not register...we believe in open dialogue

Sibal: how does the title remain with me? after he gives the report, its already determined that this is gov property, then only revenue entry will change because its sequential. correction cant be made until the determination. its not just revenue record change, the basis of his argument of S. 3(C)

its irreversible- right of community is taken away merely because there is a question (laughs)

Sibal: the counter will decide what the procedure will be? not the statute?!

Sibal: he says enquiry as per law? S. 83- he has to go to court, in this statute there is no law except S. 83.

Sibal: determination that its gov property is by him, and there is no procedure established how determination will take place. which law will be followed? what is the procedure? ex facie arbitrary!

J Masih: after enquiry starts but prior to report

Sibal: it may take 6 months, the community has lost its right

point 2, what needs to be determined? that its gov property. revenue record can be changed once its determined its a gov property.

Sibal: nor his written submission or counter- where does he get from the statute? You have to read the language of the statute.

point one, declaration is deemed to be that it will not be treated as waqf because a question has arisen- per se unconstitutional and he didn't answer that and there is no timeline when the report is to be submitted.

Sibal contends the reading of section is not what SG Mehta argued;

Sibal: he has to make a determination that ifs a gov property or not. 2 proposition arise- first, before he determines anything, it will not deemed to be waqf- what principles of law this can be substantiated?