The order and the law

IN its hurry to own the Taj Mahal, the U.P. Sunni Central Wakf Board appears to have missed a crucial provision in the Government of India's Wakf Act, 1995. Section 36(8) of the Act on `Registration of Wakfs' reads: "In the case of wakfs created before the commencement of this Act, every application for registration shall be made within three months from such commencement, and in the case of wakfs created after such commencement, within three months from the date of the creation of the wakf. Provided that where there is no board at the time of creation of a wakf, such application will be made within three months from the date of establishment of the Board."

It is the claim of the Board that the Taj Mahal has been a Wakf property since its conception but has remained unregistered because of the Government of India's dubious claim to its ownership. So, the only opportunity to get it registered was within three months of the commencement of the 1995 Act, an opportunity the Board missed. As the U.P. Sunni Central Wakf Board clearly did not come into existence just three months before the delivery of the order (it was established in 1942), the exception clause also does not apply to the Board's decision.

As per the law, therefore, the Board ought to have rejected the application for registration of the Taj Mahal. The High Court's direction to the Board did not alter the substance of the law. It did not go into the merits of the application before the Board, but only directed the Board to decide the matter expeditiously as there has been an inordinate delay in considering the application. The court asked the Board to decide upon the representation of the petitioner, Mohd. Irfan Bedar, in accordance with the law, and by a reasoned and speaking order. The Board's order, in which there is no mention of Section 36(8) of the Act, clearly shows that it has not done even the preliminary screening of the application before it began the hearing. The Archaeological Survey of India (ASI) seems to have been equally remiss in this matter as it did not raise the issue during the hearing.

Asked about the import of Section 36(8) of the Act, and whether the Board was guilty of violating it, Usman and his aides on the Board said that as the ASI was likely to take the matter to the Supreme Court, the Board would answer the question then. The Board's counsel in the Supreme Court, Anis Suhrawardy, told Frontline: "There are certain ingredients of a valid wakf, and the Taj Mahal fulfils those ingredients. It could not have been the intention of the law-makers to exclude thousands of wakf properties from being registered simply because they do not fulfil the requirement of Section 36(8)."

But other legal experts have a different view and hold that the Taj issue was clearly time-barred. The intention of the law-makers in including Section 36(8) appears clearly to exclude such outlandish claims, as that of the Board, over historical monuments.