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‘Gyanvapi is not mosque because Aurangzeb didn’t create waqf’: Understanding the laws that govern masjids

‘Gyanvapi is not mosque because Aurangzeb didn’t create waqf’: Understanding the laws that govern masjids

Moving a fresh petition before the Supreme Court, Hindu parties have now claimed that the Gynavapi mosque in Uttar Pradesh’s Varanasi is not a masjid.

In the reply filed through Advocate Vishnu Shankar Jain, the plaintiffs contended that Gyanvapi is not a mosque as Mughal emperor Aurangazeb did not create a waqf over the land in question or for handing over land to any Muslim or body of Muslims. It stated that the property vests with deity Lord Adi Visheshwar since thousands of years ago and has been forcibly taken by Aurangazeb.

“Historians have confirmed that Islamic ruler Aurangzeb had issued an order on April 9, 1669 directing his administration to demolish the temple of Lord Adi Visheshwar at Varanasi. There is nothing on record to establish that the then ruler or any subsequent ruler has passed any order to create a waqf over the land in question or for handing over the land to any Muslim or body of Muslims. The copy of farmaan/order issued by Aurangzeb is reported to be maintained by Asiatic Library Kolkata,” the petition stated.

A mosque can be constructed over the property dedicated by a waqif, who should be the owner of the property and a construction raised under the orders of any Muslim ruler or by any Muslim over the land of a temple cannot be construed as mosque, according to the reply by the Hindu side.

“A waqf can be created only on the land dedicated to waqf by waqif who is owner of the land. In the instant case, it is clear that from the time immemorial the land and property belong to the deity and therefore there can be no mosque thereat,” it added, reports News18.com.

What is the waqf?

Waqf means the permanent dedication by any person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. In layman’s terms, waqf is a property which is used for religious and charitable purposes.

Waqf translates to “detention”. When a waqf is created, the property is detained; neither the person who created the waqf nor its beneficiaries are entitled to ownership. A waqf becomes a public property that cannot be sold, mortgaged, inherited, or otherwise disposed of. Moreover, this property cannot be used for any other purpose except for charity, reports in India Times.

According to Islam, a waqf property is permanently dedicated to Allah and it remains as waqf forever signifying that it is perpetual, inalienable, and irrevocable in nature.

Security has been beefed up in Varanasi near the Gyanvapi mosque complex. PTI

How is the waqf formed?

A waqf can be created through a deed or instrument. However, a property can be deemed waqf if it has been used for religious or charitable purposes for a long period of time. The proceeds collected are donated to schools and colleges, mosques, graveyards, and shelter homes.

A non-Muslim can also create a waqf but the individual must profess Islam and the objective of creating the waqf has to be Islamic.

Who oversees the waqf?

In India, waqfs are governed by the Waqf Act.

The Waqf Act was first introduced in 1954 but was amended over the years. The Waqf Act, 1995 was enacted and implemented on 22 November 1995. It established the central Waqf Council and the state Waqf Board that are responsible for the administration of the auqaf (plural of waqf).

The waqf has a chief executive officer and a mutawali is appointed as a supervisor.

What is the Waqf Board?

Every state has a Waqf Board headed by a chairperson, one or two nominees from the state government, Muslim legislators and parliamentarians, Muslim members of the State Bar Council, recognised scholars of Islamic theology and mutawalis of the waqfs with an annual income of Rs 1 lakh and above, reports The Indian Express.

The Waqf Board has powers under the law to administer the property and take measures for the recovery of lost properties of any waqf, to sanction any transfer of immovable property of a waqf by way of sale, gift, mortgage, exchange or lease, the report says.

Is the Gyanvapi mosque governed by a Board?

The new plea claims that the property does not belong to any waqf.

“The principle waqf by user cannot be applicable as the alleged Gyan Vapi Mosque was constructed after demolishing a Hindu temple after 1669 at the same very place and the date of construction of alleged Mosque is well known,” it claims.

In April, the counsel for the Kashi Vishwanath temple said that the “mosque cannot be said to be a waqf property because it was not dedicated by any legal waqif after the demolition of the Kashi Vishwanath temple in 1669”.

What about the UP Sunni Waqf Board?

Initially, auqaf in the state of UP were governed by the UP Muslim Waqf Act, 1923. However, the state of UP enacted UP Muslim Waqf Act, 1936 and under this Act, UP Sunni Central Waqf Board was constituted for the governance, administration and supervision of auqaf in the state in the year 1942, according the UP Sunni Waqf Board website.

Senior counsel Vijay Shankar Rastogi had argued that the Uttar Pradesh Sunni Central Waqf Board had illegally and arbitrarily registered the property of the temple as waqf's property.

The Uttar Pradesh Sunni Central Waqf Board is an appellant in the case. It had challenged the order allowing the Varanasi court order that allowed the survey at the mosque site.

With inputs from agencies

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