The Waqf (Amendment) Bill, 2024 purportedly proposes to eliminate the acknowledgment of 'waqf by user' in order to streamline the legal framework and guarantee that all waqf properties are officially declared and registered. This approach reportedly aims to avert disputes and establish clearer oversight of waqf properties.

The movement to eliminate "waqf by user" from legal frameworks is apparently intended to create a more standardized and formalized process for the establishment and management of waqf properties, ensuring clarity and consistency in their governance for charitable endeavours. However, legal experts apprehend that this step may result in various complications leading to chaos, resentment and legal disputes.

Waqf By User:

Waqf by user refers to a category of waqf in which a property is acknowledged as waqf due to its prolonged utilization for charitable or religious activities. This type of waqf arises from the practical use of the property for the community's advantage, rather than through an official declaration or registration method.

In contrast to formal waqf declarations, waqf by user typically does not require a written or formal statement. Rather, the recognition of waqf is established through ongoing and sustained utilization for charitable purposes.

As for example, a building that has served as a mosque or school or graveyard for an extended period may be acknowledged as waqf by its users, regardless of whether there was an official declaration during its initial consecration.

If a piece of land has been utilized for religious purposes, such as a mosque or burial ground, for an extensive period, it is considered a waqf by user, even in the absence of explicit dedication, as established in the case of Mazar Husain v. Adiya Saran (1948) 1 M.L.J. 259.

Legally, a waqf typically requires an express dedication; however, if land has been allocated for religious use for an indefinite period, it is deemed a waqf by user despite the lack of documented dedication.

In a scenario where additional structures are built by the mutawallis adjacent to an original mosque, which is confirmed as waqf property, and this new area is utilized by the community for religious practices in conjunction with the old mosque, it is considered a singular unit if it is distinctly delineated for a unified purpose, specifically collective and individual worship in the mosque. Consequently, the entire area is recognized as waqf by user, as noted in Mohammad Shah v. Fasihuddin Ansari, A.I.R. 1956 S.C. 713.

Should a mosque have existed for an extended duration with consistent worship activity occurring within it, the Court will deduce that the mosque does not exist by the permission of the site's owner, but rather that the land has been dedicated, rendering it property that no longer belongs to the original owner, as seen in Miru v. Ram Gopal (1935) All. L.J. 1269, 156 I.C. 942, ('35) A.A. 891.

Ramifications of Elimination of 'Waqf by User':

The elimination of waqf by user from the legal framework presents significant challenges regarding the future of properties that have been utilized informally for charitable endeavours without an official declaration. The complexities surrounding these properties necessitate a thorough examination of their potential implications and management strategies.

Furthermore, the removal of waqf by user is likely to spark ownership disputes over these properties. Without the protection afforded by formal waqf status, former waqf properties may be claimed by heirs or other stakeholders. Additionally, the management of these properties would necessitate new arrangements, as the absence of formal recognition could complicate efforts to utilize them for charitable objectives, resulting in the need for new agreements to uphold their intended purposes.

The consequences for beneficiaries of waqf by user properties could be significant. Disruptions in charitable services or religious activities might occur if these properties lose their waqf status, impacting the communities that rely on such services. Therefore, it may be essential for authorities or waqf boards to provide transitional support to mitigate any negative effects, including identifying alternative properties or ensuring the continuity of charitable services.

To address these challenges, legal and administrative measures might be instituted, including transitional provisions that provide a grace period for generating formal waqf declarations and completing registration processes. Waqf boards or relevant authorities may undertake assessments of existing waqf by user properties, reviewing their historical uses and making determinations regarding their future classification.

Lastly, community and religious factors must also be considered in this transition. Local communities or religious organizations may advocate for the retention of the charitable use of these properties by pursuing formal declarations or appeals. Additionally, reconciling the removal of waqf by user with established Islamic principles and community needs may require collaborative efforts from both legal and religious authorities to ensure ongoing compliance and support for charitable activities.

Conclusion:
The elimination of waqf by users can create considerable difficulties. Properties that were once acknowledged informally may undergo reclassification, resulting in disputes over ownership and interruptions in charitable services. Those who depend on these properties for support might face disruptions in their services.

Transitioning to formal waqf status or reclassifying the properties may entail intricate legal and administrative procedures, such as official declarations and registration. Communities and religious organizations may need to advocate for the preservation of these properties for charitable purposes. In summary, this change could significantly affect the management and utilization of waqf resources, necessitating careful attention to maintain continuity in charitable activities and ensure legal clarity.

Further, the Waqf (Amendment) Bill, 2024 is silent on what will be the fate of the properties marked as 'waqf by user' after their derecognition as waqf property. Will it be taken over by the government or the mutawalli or the original owner or their descendants and how will its current beneficiaries be compensated?

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565