The Patna High Court has clarified that the Waqf Tribunal constituted under Section 83 of the Waqf Act, 1995 lacks the jurisdiction to entertain disputes, adjudicate upon, or pass orders of injunction restraining the acquisition of Waqf property undertaken for public purposes under the National Highways Act, 1956.
The Court explained that the National Highways Act, 1956 is a complete code in itself for the acquisition of land for national highways. In the event of a conflict between the National Highways Act, 1956 and the Waqf Act, 1995, the National Highways Act, 1956 shall prevail, as legislation under Entry 23 of List-I of Schedule-VII of the Constitution occupied the field prior to the enactment of the Waqf Act under Entry 28 of List-III, requiring the latter to give way.
Section 91 of the Waqf Act, 1995 does not prohibit the acquisition of Waqf land; it merely provides a right to the Waqf Board or interested persons to receive notice and be heard strictly in respect of the determination of the amount of the Award, added the Court.
A Single Judge Bench of Justice Bibek Chaudhuri observed that Section 83(1) of the Waqf Act, 1995, which deals with the constitution and jurisdiction of Tribunals for the determination of any dispute, question, or other matter relating to a Waqf or Waqf property, does not authorize any Mutawalli or any person interested in Waqf property to raise any dispute with regard to the acquisition of any land belonging to the Waqf Board. The Bench thus held that the Tribunal was absolutely without jurisdiction in passing the impugned order of injunction.
The Bench also observed that Section 91 of the Waqf Act, 1995 lays down a procedure regarding the acquisition of land belonging to the Waqf Board under Act 1 of 1894, but it does not debar the acquiring authority from acquiring land under the Land Acquisition Act, 1894, or under any law for the time being in force relating to the acquisition of land. Section 91 only obligates the Collector to serve a notice of acquisition to enable the Board to appear within three months from the date of receipt of such notice to report themselves in respect of the amount of the Award. It does not prohibit the acquisition of Waqf land.
Moving ahead, the Bench clarified that the National Highways Act, 1956 is a self-contained Act and a complete code in itself for the purpose of acquisition of land for national highways, empowering authorities to acquire land of any description for public purposes. Sections 3-A to 3-H of the National Highways Act cull out a detailed provision regarding acquisition, and unlike the Waqf Act, 1995, it does not create any provision for interested persons in Waqf property to file an objection within three months from the date of service of notice by the Collector.
The Bench held that the two Central Legislations must be construed harmoniously, and in the event of any conflict, the National Highways Act, 1956 shall prevail. This is because legislation regarding the construction of national highways under Entry 23 of List-I of Schedule-VII of the Constitution occupied the field prior to the enactment of the Waqf Act, 1995 (Entry 28 of List-III of Schedule-VII), and therefore, the latter legislation shall give way.
As far as applicability of Section 51 of the Waqf Act, 1995 (Alienation of Waqf property) to statutory acquisition, is concerned, the respondent-Waqf Board contended that acquisition is a form of alienation from the ownership of the Board to the State/Central Government, which is void under Section 51 without the Board’s sanction. The Bench rejected this contention, observing that the entire scheme of the Waqf Act, 1995 demonstrates that the Act contemplates governing aspects relating to dedication, lease, sale, gift, mortgage, exchange, or transfer of Waqf property (Sections 6, 7, and 51), but does not bar statutory acquisition.
Briefly, the National Highways Authority of India (NHAI) filed a Miscellaneous Appeal under Section 83(9) of the Waqf Act, 1995, read with the Waqf (Amendment) Act, 2025, and Section 151 of the Code of Civil Procedure, 1908, challenging an order passed by the Bihar State Waqf Tribunal, Patna, whereby, the Waqf Tribunal had passed an order of injunction restraining NHAI from carrying out any construction of a national highway on Plot Nos. 2886 (Kabristan), 3092 (Kabristan), and 2963 (Masjid) in Shahpur Baghanui Mauza, and Plot Nos. 2502 (Masjid) and 2504 (Kabristan) of Mohiuddinpur Rajwa Mauza in the district of Samastipur.
The Tribunal based its injunction on the grounds that: (a) no notice was served upon the Waqf Board as contemplated under Section 91 of the Waqf Act or Section 9(3) and 10 of the Land Acquisition Act prior to acquisition; (b) the acquisition was contrary to the instructions issued by the Government of India in the Manual of 2018 and the provisions of the Waqf Act, 1995; and (c) the National Highway Authorities Act and its land acquisition procedure are not applicable to the acquisition of Waqf property. The Tribunal stayed the construction activity and directed the District Land Acquisition Officer (DLAO) and the District Magistrate to follow the provisions of the Waqf Act while acquiring any Waqf property and to inform the Tribunal so the stay could be vacated.
Appearances:
Advocates Maurya Vijay Chandra, Gaurav Govinda, Preety Ranjan, Om Sandliya, and Barun Jha, for the Appellant
Advocates Ram Tujabh Singh, Vivek Prasad, Sanjayy Kumar, Roona, and Helal Ahmad, for the Respondent
