0000-IN THE HIGH COURT OF DELHI AT New Delhi

W.P.(C) No. 3856 OF 2022

IN THE MATTER OF:

Surender Mohan Soni …Petitioner

Versus
Union of India & Ors. ...Respondents

Para Text of Para Comments

No.
1. The present petition hereby seeks the quashing of The waqf Amendment
the Waqf Amendment Act, 2013 [27 of 2013] Act, 2013 [27 of 2013]
"Amendment Act"] and the Waqf Properties [“Amendment Act”] has
Lease Rules,2014 as amended upto date ["WPLR been repealed by the
Rules"] and all communications, public notices, Repealing and
notice dated 11.04.2016, 31.07.2019, 31.12.2021 Amendment Act
AND 09.02.2022 issued by Respondent No.3 and 2015.Presently the Waqf
sealing of the tenanted premises in pursuance of Act, 1995 as amended
the impugned amendments and the Lease Rules by the repealed Act is in
as being violative of Article 14, 19 and 21 of the force. The Waqf
Constitution of India and Principle of Natural properties Lease Rules,
Justice. That the Respondents are "State" as 2014 as amended up to
defined under Article 12 of the Constitution of date [“WPLR Rules”] has
India and as such the present Writ Petition is been made by the
maintainable against the Respondents herein. government in exercise
of the power under
section 56 (1) of the
Waqf Act 1995 as
amended for the fair
and transparent leasing
of the waqf properties
and amended in 2020
also, in view of the
 grievances of the
lessees/or tenants of the
waqf, mainly belonging
to Delhi. Hence this
petition is not
maintainable against
Union of India
2. A Chart demonstrating the various amendments
incorporated by the Amendment Act vis a vis the
Waqf Act, 1995 [Act] is annexed herewith and
marked as Annexure-P1. The Amendment Act
alongwith consequent WPLR Rules introduce in
particular the following amendments:
(i) Incorporation of definition of "Encroacher"
under Section 3 (ee) to include a person
whose tenancy has expired or has been
terminated despite protection granted under
the Delhi Rent Control Act.
(ii) Amendment in Section 54, 56 and 83 of the Do
Act to include tenants occupying the
premises after termination to be
dispossessed and providing for establishment
of the Waqf Tribunal to decide questions
relating to eviction of tenant or
determination of rights and obligation of the
lessor and lessee of Waqf Property, despite
the protection granted under the Slum Area
(Improvement and Clearance) Act 1956
["Slum Act"] and the Delhi Rent Control Act.
(iii) WPLR Rules and in particular Rule Do
4,5,6,7,18 & 19 and Section 32 of the Act
seeking to regulate relations of Landlord and
Tenant [both existing and in future] including
tenure, increase in rent, inviting bidding basis
circle rates of properties contrary to the
provisions of the Delhi Rent Control Act,
which provides exclusive jurisdiction to the
 Rent Controller on such aspects.
3. Status of Petitioner No comment
3.1 The Petitioner was inducted as a tenant of
the Respondent No.3 herein since the year
1990, in respect of subject property. The
Petitioner is running his shop and using the
premises for earning livelihood for
sustaining himself and his family members
and the same is the only source of earning.
Brief facts about the Petitioner are as
under:-
a. The Petitioner had taken the subject Do
property in the year 1990 on rent @ Rs.
150/- per month from Respondent No. 3 and
have been paying the rent to the
Respondent No.3 regularly with an increase
of 1 0% after 3 years. Copy of rent receipts is
annexed herewith as Annexure P-2.
b. That the rent of the tenanted premises was Do
Rs.293/- per month as in 2014 to 2016. Copy
of rent receipt dated 05.09.2014 is annexed
herewith as Annexure P-3.
c. That the respondent no. 3 had issued a Do
notice dated 11.04.2016 to the petitioner
thereby intimating that the subject property
should be leased out in accordance with the
Waqf Properties Lease Rules, 2014. True
copy of notice dated 11.04.2016 is annexed
herewith as Annexure P-4.
d. That the petitioner after receiving notice Do
dated 11.04.2016, visited the office of the
respondent no.3 on 26.04.2016, were in the
petitioner was forced to sign a rent receipt
with an exorbitant rent of Rs. 6,666/- per
month w.e.f. January 2016. Copy of the said
rent receipt issued by Respondent no. 3 is
annexed herewith as Annexure P-5.
e. That the petitioner never paid the rent @ of Do
Rs. 6,666/- per month thereafter and the
respondent No. 3 further issued a notice
dated 31.07.2019 asking for the rent@
Rs.7,716/- per month. Copy of notice dated
31.07.2019 is annexed herewith as
Annexure P-6.
f. That the petitioner visited the office of the Do
respondent no.3 on 08.12.2021 and
tendered the arrears of the rent @ as
applicable as per rent of2014 but
respondent no. 3 refused to accept the
same.
g. That since respondent No.3 refused to Do
accept the rent, the petitioner deposited tl]e
entire arrears of rent on 27.12.2021 after
calculating himself, in the bank account of
respondent no.3 clearing the rent till period
of 31.12.2021. Copy of the said bank
transaction dated 27.12.2021 is annexed
herewith as Annexure P-7.
h. That the respondent No.3 served a show Do
cause notice dated 31.12.2021 to the
petitioner. Copy of the show cause notice is
annexed herewith as Annexure P- 8.
i. That the petitioner filed its reply dated Do
07.01.2022 to show cause notice issued by
respondent no. 3 dated 31.12.2021. Copy of
the reply dated 07.01.2022 of show cause
notice is annexed herewith as Annexure P-9.
j. That the respondent no. 3 in an illegal and Do
arbitrary manner and without any notice to
petitioner sealed the stairs leading to
subject tenancy property as well as pasted a
Public Notice dated 09.02.2022 without any
rhyme and reason. Copy of notice dated
09.02.2022 and photographs of sealing
 alongwith site plan are annexed herewith as
Annexure P-10 and Annexure P-11 (Colly)
respectively.
k. That the petitioner visited the office of the Do
respondent no. 3 requesting them to de-seal
the tenanted premises but all in vein.
l. That the officers of the respondent no.3 Do
continued to extend threat of dispossession
to the Petitioner and similarly placed other
tenants as encroachers while they continued
to be protected under the provisions of DRC
Act. That the petitioner had duly intimated
the respondent no. 3 that the monthly rent
which were rs. 293/- p.m. in the year 2014
for the subject properly has been to rs. 390/-
per month from December 2021, which the
petitioner has offered and ready and willing
to pay the same. The petitioner has already
deposited the rent in the bank account of
the respondent no. 3 till December 2021.
3.2 The Subject Property is in notified "Slum Waqf properties are
Area" and protected under the Slum Areas managed under the
(Improvement & Clearance) Act. 1956 and Waqf Act, and not as per
the tenancy is protected under Delhi Rent DRC Act, or Slum Act,
Control Act, 1958 [DRC Act]. 1956 as alleged
3.3 The Respondent No.3 have been increasing No comment
the monthly rent by 10% every three years
in terms of Section 6A of the Delhi Rent
Control Act. The rent was at Rs. 150/- per
month in the year 1990 for the subject
property. The rent has been increased by
10% in terms of Section 6A of the Delhi Rent
Control Act regularly which was rs. 293/- per
month in the year 2014 and Rs. 390 per
month since December 2021.
3.4 The Petitioner is a legal and lawful tenant No comment
and in settled possession protected under
 the DRC Act. The Petitioner has been
regularly paying the rent which is revised by
the Respondent No.3 at regular intervals
besides huge donations having been taken
from the Petitioner by Respondent No.3
time and again. The Petitioner has also been
maintaining the premises including repair
and protecting them structurally right from
the inception of tenancy without any
reimbursement from Respondent No.3.
4. Delhi Rent Control Act, 1958-State Rent Acts.
4.1 1The topic of Transfer of property other than No comment
Agricultural Land is covered by Entry 6 of List
III in the 7th schedule to the Constitution.
The subject being in concurrent list, many
State Rent Acts have by necessary
implications and many of them by starting
certain provisions with “non-obstante
clause” have done away with the law
engrafted in section 108 of the transfer of
Property Act except in regard to any matter
which is not provided for the in the state Act
either expressly or by necessary implication.
4.2 Section 14 of the Delhi Rent Control Act Do
under Chapter III - Control of Eviction of
Tenants provides as under:
"Chapter III
Control of Eviction of Tenants
14.Protection of tenant against eviction-(i)
Notwithstanding anything to the contrary
contained in any other law, or contract. no
order or decree or the recovery of possession
of any premises shall be made by any court
or Controller in favour of the landlord
against a tenant.
Provided that the Controller may, on an
application made to him in the prescribed
 manner, make an order for the recovery of
possession of the premises on one or more
following grounds"
4.3 The Delhi Rent Control Act, 1958 was Do
enacted with an object to provide control of
rents and evictions in the Union Territory of
Delhi. It is a beneficial, special and also a
restrictive legislation by its nature.
4.4 2Under the State Rent Control Acts, the Do
concept of the Contractual tenancy have lost
much of its significance and force. Definition
Section permits a tenant to continue as a
tenant even after the determination of the
contractual tenancy except in execution of
an order of eviction passed by the
concerned Rent Controller for one or more
grounds mentioned in the Act.
4.5 3legislature itself treats commercial tenancy Do
differently from residential tenancy in the
matter of eviction of tenants in the Delhi
Rent Control Act and also in various other
Rent Acts. A tenant of any commercial
premises has necessarily to use the premises
for business proposed Business carried on
by a tenant of any commercial premises may
be and often is, his only occupation and the
source of livelihood of the tenant and his
family. Out of the income earned by the
tenant from his business in the commercial
premises, the tenant maintains himself and
his family; and the tenant, if he is residing in
a tenanted house may also be paying his
rent out of the said income. When, however,
a tenant is thrown out of the commercial
premises, his business which enables him to
maintain himself and his family comes to a
stand-still. It is common knowledge that it is
 much more difficult to find suitable business
premises than to find suitable premises for
residence. It is no secret that for securing
commercial accommodation large sums of
money by way of Salami, even though not
legally payable may have to be paid and
rents of commercial premises are usually
very high. Besides, business which has been
carried on for years, at a particular place has
its own goodwill and other distinct
advantages. The death of a person, who
happens to be a tenant of the commercial
premises and who was running the business
out of the income of which the family used
to be maintained, is itself a great loss to the
members of the family to whom the death,
naturally, comes as a great blow. A running
business is indeed a very valuable asset and
often a great source of comfort to the family
as the business keeps the family going. So
long as the contractual tenancy of a tenant
who carries on the business continues, there
can be no question of the heirs of the
deceased tenant not only inheriting the
tenancy but also inheriting the business.
Mere termination of the contractual tenancy
does not bring about any change in the
status of the tenant and the tenant by virtue
of the definition of the 'tenant' in the Act
and the other Rent Acts, continues to enjoy
the same status and position unless there be
any provisions in the Rent Acts, which
indicate to the contrary.
4.6 In case of commercial premises governed by Do
the Delhi Rent Control Act, the legislature
has not thought it fit in the light of situation
at Delhi to place any kind of restriction on
 the ordinary law of inheritance with regard
to succession.
4.7 4Occupation of a tenant in a premises Do
governed by the Rent Control legislation
become unauthorized and wrongful only
after an order of eviction under the said
legislation is passed against him and mesne
profits can be recovered for the period
thereafter only and not from the date of
determination of tenancy since such a
tenant continues to be a tenant (statutory
tenant) till order of eviction under the Rent
Control Legislation is passed.
4.8 5In the absence of the provision in the Do
Statute it cannot be held that a landlord is
entitled to market rent from a protected
tenant. Section 6A was inserted in Delhi
Rent Act w.e.f. 01.12.1988 to quell criticism
thereof of being unevenly balanced against
the Landlord. The legislature in its wisdom
having considered increase in rent as
provided in Section 6 A as appropriate to
balance the rights of the landlord and the
tenant governed by the provisions of the
Delhi Rent Act. A landlord of premises
governed by Delhi Rent Control Act is
entitled to have increase(s) in rent only in
accordance with Section 6A and 8 thereof
and not otherwise; such a landlord cannot
approach the civil court contending that the
rent stand increased or should be increased
in accordance with inflation or cost price
index; jurisdiction of the civil court in this
regard is barred by Section 50 of the Delhi
Rent Control Act.
4.9 It is also relevant to mention here that Under section 108 A the
unlike the State of Madhya Pradesh, Waqf Act, 1995 has
 Rajasthan and Maharashtra, where Waqf overriding effect over
Properties are exempted by a specific the Delhi Rent Control
exclusion provision in their respective State Act with effect from 1 st
Rent Acts; Section 3 of the Delhi Rent November, 2013
Control Act, does not exclude the operation
of the said Act to Waqf Properties.
5. The Slum Areas (Improvement and Clearance) No comment
Act. 1956 [SA Act]
5.1 Enforcement: SA Act was enacted by the
Parliament providing for improvement and
clearance of slum area in certain Union
Territories and providing protection of
tenants in such areas from eviction. The Act
came into force in the Union Territory of
Delhi on 08.04.1957.
5.2 Slum Area: The subject premises falls under Do
the Slum Areas, as declared under Section 3
of the SA Act. The declaration of an area as a
slum is on the basis of a report or other
information with the Competent Authority
after satisfying itself by reason of
dilapidation, over-crowding, faulty
arrangement and design of building,
narrowness and faulty arrangement of
streets, lack of ventilation, light or sanitation
facilities or any combination of these factors
are detrimental.
5.3 Protection of Tenants in slum areas from Do
eviction: Section 19 of the SA Act provides
that notwithstanding anything contained in
any other law for the time being in force, no
person, shall except with the previous
permission in writing of the Competent
Authority institute after the commencement
of the SA Act, any suit or proceeding for
obtaining any decree or order for eviction of
a tenant from any building or land in a slum
 area.
5.4 Act to override other laws-Section 39: The Waqf Act, 1995
provides that provisions of this Act and the under section 108 A, has
Rules made thereunder shall have effect overriding effect over
notwithstanding anything inconsistent the stated Slum Act
therewith contained in any other law. with effect from 1st
November, 2013
6.1 Wakf - History of Waqf Legislation – Proposed No comment
Bills, Report of Standing Committee(s).
6.1 Wakf means absolute dedication by a person,
of any movable and immovable property, for
any pious, religious or charitable purposes.
When anyone creates a waqf, one has in mind
to acquire the merit in the eyes of Allah/God.
Waqf properties become reserves for the
benefit and welfare of people, without any
right or absolute alienation.

6.2 The Waqf Act 1954 was enacted to provide No comment

better administration and supervision of the
Waqf's through State Waqf Board.
Unfortunately the actual working of the said
Act brought about many deficiencies and
despite amendments being brought about,
mismanagement continued.
6.3 By The Waqf Amendment Act 1984 despite No comment
many proposed provisions, only two could be
enacted namely; period of limitation for
claiming adverse possession was substituted to
30 years instead of 12 years and by virtue of
section 66H, Evacuee Properties were deemed
to have always been vested in the Waqf
Board(s).
6.4 The Waqf Act 1995 - The Waqf Act, 1954 and No comment
the Amendment Act, 1984 met with criticism.
There was too much interference by the State,
which culminated in to the enactment of the
 Waqf Act, 1995 with intent to bring uniformity
in respect of the Waqf Administration
throughout the country except Jammu and
Kashmir. Restrictions were put on the powers
of Mutawalli and Alienation of Waqf
Properties. The Waqf Act, 1995 was enacted as
Waqf Properties were being mismanaged and
therefore, in order to ensure their proper
administration the Act was enacted. That were
the antecedent state of affairs and the
mischief sought to be remedied by the act,
1995. The Statement of Objects and Reasons
of the Waqf Act, 1995 is primarily to provide
for better administration of Wakf and for
matters connected therewith or incidental
thereto. The object of the Waqf Act, 1995
continues to be the same, post amendment
vide Amendment Act 2013. The Waqf Act,
1995 was enacted as Waqf Properties were
being mismanaged. The "Administration of
Waqf Properties" denotes the Management of
the Waqf. The Waqf Act, 1995 merely allows
the management of the Waqf Properties,
which means the affairs of the Waqf.
The object and purpose of the Act is to provide
and continues to be for "better administration
of Auquf and/or Waqfs". The beneficiaries
under the Waqf Act are all person(s)
irrespective of religion.
6.5 Amendment Act 27 of 2013 - Objects and No comment
Reasons
The Waqf Act 1995 which repealed and
replaced the Waqf Act, 1954 and the Waqf
Amendment Act, 1984 came into force on
01.01.1996.
a) Issues to be addressed: The Statement of
Objects and Reasons of the Amendment
 Act 27 of 2013, highlights various issues
which were required to be addressed as
under:
(i) Inadequacy of data on Waqf
properties.
(ii) Encroachment on Waqf Properties;
many Waqf properties are on prime
urban lands which are getting
encroached. In some, such alienation
takes place owing to acts of omission
or commission of Mutuwalies and
concerned State Waqf Boards.
(iii) Development of Waqf Properties -
Setting up of National Waqf
Development Corporation and State
Waqf Development Corporation for
developing such Waqf.
(iv) Absence of Statutory obligation to
ensure flow of information from the
State Waqf Boards and State
Government to the Central Waqf
Council - Parliamentary Committee The
Joint recommended for conferring
statutory powers upon the Central
Waqf Council for monitoring in order
to be effective to intervene if prima
facie case of irregularity is established
or if there is gross violation of the
provisions of the Act.
b) Proposal to amend the Waqf Act 1995. No comment
Inter-alia to provide:
(i) A specific time period for completion of
survey of auqaf arid to ensure that the
list of auqaf based on the survey data is
appropriately reflected while updating
the land records by the revenue
authorities;
 (ii) For change in composition of the
Central Waqf Council and State Waqf
Boards so as to provide for
representation of women, professionals
and experts in the Council or Boards, as
the case may be;
(iii) For reducing the scope of alienation
of waqf properties by prohibiting the
sale and gift of waqf properties;
(iv) Stringent penal provisions to prevent
encroachments arid to streamline the
process of removal of encroachments;
(v) For increasing the maximum
permissible period of lease or sub-lease
of waqf properties from three years, as
at present, to thirty years;
(vi) Statutory power of monitoring to the
Central Waqf Council and to authorize it
to issue directives and advice in specific
cases, along with the provision for
independent dispute resolution
machinery in the shape of a Board of
adjudication to be constituted by the
Central Government, to be presided
over by a retired Judge of the Supreme
Court.
(vii) For constituting the Tribunals, for the
determination of all disputes, questions
and other matters relating to waqf or
waqf properties, as a three member
body consisting of a person not below
the rank of District, Session of Civil
Judge Class I as the Chairman and two
other members, namely, an officer from
the State Civil Service equivalent in rank
to that of Additional District Magistrate
and another person having knowledge
 of Muslim law and jurisprudence; and
(viii) To change the short title of the Act
from "the Wakf Act, 1995" to "the Waqf
Act, 1995" and to make certain other
verbal changes.
6.5.1 The Amendment Act, 2013 (27 of 2013) No comment
while stating the objects and the reasons,
issues and proposals as stated above, in
fact, introduced amendments in the Waqf
Act, 1995 making a clear departure on the
same very objects without the legislature
amending the objects. The Amendments
seek to create and expand new rights in
favour of the Chief Executive Officer and
Boards, which are not contemplated by law
and the object of the Act. The Amendment
Act and the WPLR Rules introduced the
following amendments, vires whereof is
challenged in the present petition:
(i) Definition of Encroacher under Section 3
(ee)
"Encroacher" means any person or
institution, public or private, occupying
waqf property, in whole or part; without
the authority of law and includes a
person whose tenancy; lease or licence
has expired or has been terminated by
mutawalli or the Board;"
(ii) Amendment in Section 54, 56 and 83 f
the Act to include tenants occupying the
premises after termination to be
dispossessed and providing for the Waqf
Tribunal to decide questions relating to
eviction of tenant or determination of
rights and obligation of the lessor and
lessee of Waqf Property, despite the
protection granted under the Slum Act
 and the Delhi Rent Control Act.
"83. Constitution of Tribunals, etc. - (1)
The State Government shall, by
notification in the Official Gazette,
constitute as many Tribunals as it may
think fit, for the determination of any
dispute, question or other matter
relating to a waqf or waqf property,
eviction of a tenant or determination of
rights and obligations of the lessor and
the lessee of such property, under this
Act and define the local limits and
jurisdiction of such Tribunals;]."
(iii)WPLR Rules and in particular Rule
4,5,6/7,18 & 19 seeking to regulate
relations of Landlord and Tenant [both
existing and/or future] including tenure,
increase in rent, inviting bidding basis
circle rates of properties contrary to the
provisions of the Delhi Rent Control Act,
which provides exclusive jurisdiction to
the Rent Controller on such aspects

"4. Procedure as to short duration lease

of less than one year - (1) A mutawalli or
Board may give on lease waqf property,
for any period of less than one year; on
such terms and conditions as agreed
upon by the parties.

(2) The mutawalli or Board shall invite

applications from persons desiring to
take the property on lease under sub-
rule (1) by publishing a notice in the
surrounding vicinity; distributing leaflets,
pamphlets or beating of drums and
pasting the said notice on any
conspicuous place like mosque or any
other public place.

(3) The mutawalli or Board shall execute

the lease of the property in favour of a
person offering to pay higher lease rent.

(4) The mutawalli, Board or any member

of the managing committee of a waqf,
including their spouse, parents, children,
brothers, sisters, spouses of brothers and
sisters or children of brothers and sisters,
shall not be eligible to apply for lease
under this rule."
"5. Procedure for lease other than short
duration lease -Save as provided in rule
4 above relating to short duration lease,
the mutawali or Board, as the case may
be, shall in all cases where lease of waqf
property is required to be given for a
period of more than one year but not
exceeding thirty years, publish the
invitation of bids in at least one leading
national (Hindi, Urdu or English)
newspaper and one regional or local
newspaper containing the following
details, namely:-

(i) exact area or description and location

of the waqf property;

(ii) the purpose or object for which the

property is required to be leased;

(iii) the period for which the property is

required to be leased;
(iv) the minimum reserve price per
square feet:

Provided that no such advertisement in

newspaper shall be required for lease of
waqf property whose lease rental
income is less than Rs.1000/ -(Rupees
One Thousand) per month and the
mutawalli or Board shall invite
applications from persons desiring to
take the property on lease and execute
the tease by following the procedure
specified in sub-rules (2) and (3) of rule
4:

Provided further that the mutawalli,

Board or any member of the managing
committee of a waqf, including their
spouse, parents, children, brothers,
sisters, spouses of brothers and sisters or
children of brothers and sisters, shall not
be eligible to apply for lease under this
rule."
"6. Invitation of bid for lease. –
Competitive bids shall be invited in all
cases in which the rental income from
the leased property is more than
Rs.l000/ -(Rupees One Thousand) per
month and the waqf property shall be
leased out to the highest bidder:
Provided that the bid shall in no case be
less than the reserve price referred to in
rule 7."
"7. Reserve Price.- (1) The reserve price
per square feet for lease of the waqf
property shall
(a) for hospitals, educational institutions
and social sectors, be not less than 2.5%
per annum;

(b) for commercial activities, be not less

than 2.5% per annum.

(2) The market value referred to in sub-

rule
(1) shall be the price fixed for registering
a conveyance at the office of the
Registrar or Sub-registrar.
11. Increase of lease rent per annum
Every lease agreement shall contain a
clause to the effect that there shall be an
increase of lease rent every year by an
amount of not less than 5% on the
existing lease rent.

"18. Renewal of lease. -(1) No lease

agreement shall contain a clause
providing for automatic renewal.

(2) The Board shall, while renewing the

lease, give preference to the present
lessee if such lessee participates in the
bid and matches the highest bid.
"19. Purpose and period of lease. - (1 )
The Board may give on lease any
immovable waqf property for the
purposes and for the period relating
thereto as under; namely: -

(i) for shops, lease shall be granted for a

period of up to five years;

(ii) for cold storages, marriage halls or

 small industries, lease shall be granted
for a period of up to ten years;

(iii) for establishing or running of

shopping malls, residential buildings,
hotels, restaurants or Inns; lease shall be
granted for a period of up to thirty years;

(iv) for establishing or running

educational institutions like schools,
colleges, universities, hospitals,
dispensaries, madarasa's or maktabs,
lease shall be granted for a period of
upto thirty years;

(v) for agricultural purposes, the lease

shall be granted on year to year basis or
until the life of the crop in case the crop
has a life span of more than one year,
but no lease for agricultural purposes
shall be granted for a period exceeding
three years in any case.

(2) The commencement date of the lease

shall mean the date of execution of lease
deed or the effective date of lease
mentioned in the lease deed.
6.6 The Waqf Properties (Eviction of No comment
Unauthorized Occupants) Bill 2014
The Government of India introduced in the
Rajya Sabha on 18.02.2014 the aforesaid Bill
to bring uniformity throughout the country
with respect to eviction of unauthorized
occupants of Waqf Properties, since contrary
to the recommendation of the Sachhar
Committee to apply to Public Premises Act to
all Waqf Properties, the Ministry of Urban
 Development as well as Ministry of Law and
Justice had stated that it was not legally
feasible to include Waqf in the said Public
Premises (Eviction of Unauthorized
Occupants) Act, 1971.
6.7 Report of the Standing Committee on Social No comment
Justice and Empowerment, 2014-15 on the
Waqf Properties (Eviction of Unauthorized
occupants) Bills, 2014 ["Bill"]
6.7.1 Waqf Properties (Eviction of Unauthorized No comment
Occupants) Bills, 2014 was introduced in
Rajya Sabha on 18.02.2014 and was referred
to the Standing Committee on Social Justice
and Empowerment for examining and report.
6.7.2 The said Committee has given its report No comment
wherein while analyzing the process of the
Bill, besides other recommendations has
been recommend as under:

"3.34. The Committee further desires that

definition of Unauthorized Occupants also
needs to be suitably amended to the
extent that if a person who is legally in
possession of any Waqf Property, cannot
become an unauthorized occupant of that
property after the death of the original
tenant.

3.36 The Committee desire that all such

tenants, specially of Delhi Waqf Board.
who have never defaulted in paving rent
to Boards and are legitimate tenants for
past so many years, may not be
considered as "encroachers". The
definition of Encroacher should be as
defined in Section 3 (ee) of Waqf Act,
1995. Further, all these tenants may be
offered first opportunity to renew/extend
their existing agreements in committee's
view a commercial activity is a commercial
activity and there should be no
demarcation or categorization of
commercial activity. The Committee desire
that the Government must reconsider and
revisit the lease issue.

4.1(d) The Committee feel that small

shoos which also come within the
meaning of commercial activities should
be excluded from the category of
commercial activities as many of such
shops/waqf properties are used by tenants
for mere subsistence.

4.1(e) In Section 19 of Lease rules, 2014,

the purpose and period of lease has been
given. For shops, lease is up to five years,
for cold storages, marriage halls or small
industries it is up to ten years, for
educational institutions, hospitals,
madarasa's or maktabs etc. it is upto 30
years. The committee fails to understand
the rationale behind such division to lease
duration. The Committee are of the
considered opinion that there is no need
to bifurcate the commercial activities and
all leases for commercial activities should
be of same duration/period. Committee,
therefore. desire that necessary changes
to this effect may kindly be made n Section
19 of the Leas Rules. 2014. Further, there
should also be provision to extend the
lease by way of negotiation with the
tenant by the full Board consisting of all
 members and Chairman.

4.1 (f) ... The Committee desire that the

Government while fixing the market value
of the properties must consider their
structural condition, life, availability of the
civil amenities of the locality, etc. and
commercial activities undertaken at the
place of worship like Jama Masjid etc.

6.8 Justice Zakiullah Khan (R) No comment

Committee on WPLR, 2014 and the Waqf
Act, 1995
In the light of various anomalies and/or
discrepancies and objections including
various State Waqf Boards and other
stakeholders, the Government of India as
itself felt a need to review the Waqf
Amendment Act 2013 and WPLR Rules 2014
and appointed a Committee led by 'Justice
Retd. Zakiuilah Khan, Allahabad High Court
to critically examine the need for
modification, if any, in the WPLR Rules
besides seeking recommendation for
specific changes that may be required. The
Zakiuilah Khan Committee noted that the
implementation of WPLR 2014 aroused
widespread protest and dissatisfaction
amongst the stakeholders, namely tenants,
State Waqf Boards and Mutawallis. The
Committee claims to have visited various
states to assess ground realities interacted
with stakeholders. The Committee noted
that the implementation of WPLR Rules
2014 had in fact resulted in income of Waqf
Board being drastically reduced and
increase in litigation, the reason primarily
being introduction of high rise in lease
rentals and application of bidding process
even to those lessees, who have been
occupying the waqf properties for many
decades. It is informed that the said
Committee has submitted its report and has
made certain recommendations as under:

A) Exclusion from Bidding process;

(i) The proviso to rule 5 be amended to
exclude applicability of bidding process to
immovable properties whose lease rental
as on 03.06.2014 was upto Rs.3,000/-
(ii) A proviso to be added in the existing Rule
18 relating to renewal of lease whereby
discretion be given to Board not to apply
the procedure for bidding in case of a
lessee occupying waqf property
uninterruptedly from 1995 or prior
thereto and has been regularly paving
rent and as a measure of one time
concession, the lease may be renewed
upto a period of 10 years if the lessee files
an undertaking with the Board to the
effect that;
a. The lessee shall handover peaceful,
unencumbered and vacant possession
of the waqf property to the lessor on
the expiry of the period for which the
renewal has been given, and
b. The lessee or its legal heir shall not in
future claim any benefit or right
whatsoever out this one time
concession, and
c. The lessee shall forthwith make all
payments towards arrears and
continue to make lease rental
 determined as per Rule 7 of the WPLR,
2014 and
d. The lessee shall forthwith withdraw all
cases filed by the lessee against the
lessor before any
Authority/Tribunal/Court of Law in
respect of or in relation to the leased
property.
A) Reduction in reserve price:
The reserve price in case of hospitals,
educational institutions and social sectors
to be reduced from not less than 2% to not
less than 1% and in case of commercial
activities it is to be reduced from not less
than 2.5% to not less than 1.5%.
In case of land for agriculture purpose, the
reserve price be reduced to not less than 1%
of the market value.
(a) One month from 3 months in case of
lease of one year,
(b) Three months from 11 months for a
lease of upto 5 years.
(c) Six months from 18 months for a lease of
more than 5 to 10 years.
(d) Twelve months from 24 months for a
lease of more than 10 to 30 years.

Further security deposit to be refunded within one

month of handing over peaceful possession to the
satisfaction of the lessor.

D) Period for grant of lease for shops and

agriculture purpose;
Under Rule 19, the leas period for shop to be
increased from 5 years to 10 years and for
agricultural purpose the lease period to be
increased from one year to 3 years.
 E) Legal heir of the deceased lessee to be entitled
to grant of lease.
A proviso to be added to Rule 18 whereby the
legal heir of a deceased lessee be made entitled to
transfer of unexpired period of lease in his/her
favour on payment of transfer fee which would be
equivalent to three months rental.

F) Termination of lease and number of notices.

Three notices with a gap of one month in place of
one notice be given in case of termination of
lease. True copy of the extract of the said Justice
Zakiullah Khan (R) Committee is annexed
herewith and marked as Annexure P12.
7. That several writ petitions have been filed before No comment
this Hon'ble Court in which the provisions of the
Wakf Act as well as the provisions of WPLR are
challenged and the same are pending
adjudication.
8. That this Hon’ble Court in the WP(C) No.9348 of No comment
2019 titled as “Pramod Gupta & Anr. Vs. UOI &
Ors”, WP(C) No.9349 of 2019 titled as “Anshuman
Chawla Vs. UOI & ORS”, WP(C) No. 9351 of 2019
titled as “Rajender Singh & Anr. Vs. UOI & Ors”,
WP(C) No. 352 of 2019 titled as “Inder Pal Singh
Vs. UOI & Ors”, WP(C) No.9354 of 2019 titled as
“Dinesh Kumar Chawla Vs. UOI & Ors” was
pleased to issue notice and pass an interim order
protecting the tenancy of the petitioners therein.
Copy of order dated 03.09.2019 titled as Pramod
Kumar & Anr Vs. Union of India & Ors. In Writ
Petition No. 9348 of 2019, and order dated
20.12.2021 Writ Petition No.14617 of 2021 and
other similar matters is annexed herewith as
Annexure P13 Colly.
9. That during the pendency of the writ petitions No Comment
assailing the provisions of Wakf Act and WPLR
Rules, the Respondent Union of India vide the
amendment rules of 2020 has amended the
WPLR. That the following table shows the
amended and pre-amended Rules : -
COMPARISON OF THE AMENDED RULES OF THE No comment
WAKF PROPERTIES LEASE RULES 2014 BEFORE
AND AFTER AMENDMENT DATED 18.02.2020

The Waqf Properties The Waqf Properties

Lease Rules, 2014 Lease Rules, 2014 as
amended by
(Amendment) Rules,
2020 dated 18.02.2020
" 7. Reserve price. -(1) 7. Reserve price.-(1)
The reserve price per The reserve price per
square feet for lease of square feet for lease of
an immovable waqf an immovable waqf
property shall- property shall-
(a) for hospitals, (a) for hospitals,
educational institutions educational institutions
and social sectors, be and social sectors, be
not less than 2% per not less than 1 % per
annum; annum;
(b) for commercial (b) for commercial
activities, be not less activities, be not less
than 2.5% per annum, than 2.5% per annum,
of the market value of of the market value of
the property: the property:

(2) The market value Provided that the

referred to in sub-rule Board may in cases
(1) shall be the price where the bid fails
fixed for registering a twice and on the
conveyance at the recommendation of a
office of the Registrar Committee to be
or Sub-registrar. formed for the
 purpose, reduce the
reserve price for a
locality, if the same is
approved by two thirds
members of the board
present and voting.

Provided further that

the reserve price upon
such reduction shall in
no case be lower than
1.5% of the market
value.

(2) The market value

referred to in sub-rule
(1) shall be the price
fixed for registering a
conveyance at the
office of the Registrar
or Sub-registrar.";
"8. Payment of security “8. Payment of security
deposit.-(l) Upon the deposit. –(1) Upon the
execution of lease, the execution of lease, the
lessee shall make lessee shall make the
payment of a security payment of a security
deposit of the amount deposit of the amount
based on the period of based on the period of
lease as under, lease, as under,
namely:- namely :-

(i) three month lease (i) one month lease

rent on lease period of rent on lease period of
up to one year; up to one year ;

(ii) eleven months lease (ii) three months lease

rent on lease period of rent on lease period of
more than one year more than one year
and up to five year; and up to five years ;
(iii) eighteen months
lease rent on lease
period of more than
five years and up to ten
years; and
(iv) twenty four months
lease rent on lease
period of more than
ten years and up to
thirty years.
(2) The security deposit
received under sub-rule
(1) shall be kept in fixed
deposit in an account
of the Waqf Board in a
nationalized Bank and
the Board may utilize
the amount for
development of waqf
properties, with the
sanction of not less
than two-thirds of the
members of the
Boards.
(iii) six months lease
rent on lease period of
more than five years
and up to ten years;
and
(iv) twelve months
lease rent on lease
period of more than
ten years and up to
thirty years.
(2) The security deposit
received under sub-rule
(1) shall be kept in fixed
deposit in an account of
the Waqf Board in a
nationalized Bank and
the Board may utilize
the amount for
development of waqf
properties, with the
sanction of not less
than two-thirds of the
members of the Board.
(3) The waqf property
under lease shall be
maintained by the
lessee.
(4) The security deposit
shall be refunded
without any interest to
 the lessee within one
month of the handing
over of vacant
premises or land in
good condition to the
satisfaction of the
Waqf Board after
adjustment of dues or
damages, if any,
caused to the Waqf
premises.";
"10. Lease rent.-(1) The "10. Lease rent.--(1) The
lessee shall pay to the lessee shall pay to the
lessor for the leased lessor for the leased
premises lease rent, in premises lease rent, in
respect of each year of respect of each year of
the term or renewal the term or renewal
terms, as the case may terms, as the case may
be, payable in advance be, payable in advance
and without notice or and without notice or
demand, in monthly or demand, in monthly or
annual installments as annual installments as
agreed upon between agreed upon between
the parties, from the the parties, from the
date of execution of the date of execution of the
lease agreement. lease agreement,
preferably only in the
(2) The lease rent account of the lessor in
tendered by the lessee nationalized bank.
on
time by way of money (2) The lease rent
order, if refused by the tendered by the lessee
lessor in accepting or on time by way of
giving receipt, may be money order for
deposited before the amount not exceeding
concerned Waqf Board rupees three thousand
and the Lease rent shall only, if refused by the
be treated as validly lessor in accepting or
deposited if deposited giving receipt, may be
by the lessee within 15 deposited in the
days of such refusal by account of the
the lessor. concerned lessor in
nationalized bank and
the Lease rent shall be
treated as validly
deposited if deposited
by the lessee within
fifteen days of such
refusal by the lessor.

Provided that a valid

lease agreement
between the parties on
the date of making
such deposit has not
been cancelled, expired
or lost validity, for
some other reasons.";
12. Payment and 12. Payment and
recovery of lease rent - recovery of lease rent -
(1) All amounts payable (1) All amounts payable
by the lessee to the by the lessee to the
lessor pursuant to the lessor pursuant to the
lease of wakf property lease of wakf property
shall be deemed to be shall be deemed to be
lease rent and be lease rent and be
recoverable as lease recoverable as lease
rent by the lessor who rent by the lessor who
shall have all rights shall have all rights
against the lessee for against the lessee for
default in any payment default in any payment
thereof. thereof.

(2) Lease rent shall be (2) Lease rent shall be

paid to the lessor paid to the lessor
without deduction or without deduction or
set-off, at the address set-off, at the address
of the lessor or to such of the lessor or to such
other person or at such other person or at such
other address, as the other address, as the
lessor may from time to lessor may from time to
time, designate in time, designate in
writing. writing.

(3) If the lessee (3) If the lessee

continues to occupy the continues to occupy the
premises after the premises after the
expiration or earlier expiration or earlier
termination of the termination of the
lease, the lessee shall, lease, the lessee shall,
subject to final orders subject to final orders
passed m any passed in any
proceedings, continue proceedings, (pay
to pay lease rent for double) lease rent for
the period of such the period of such
unauthorized unauthorized
occupation. occupation.
"18. Renewal of lease.- "18. Renewal of lease.-
(1) No lease agreement (1) No lease agreement
shall contain a clause shall contain a clause
providing for automatic providing for automatic
renewal. renewal.

(2) The Board shall, (2) The Board shall,

while renewing the while renewing the
lease, give preference lease, give preference
to the present lessee if to the present lessee if
such lessee participates such lessee participates
in the bid and matches in the bid and matches
the highest bid. the highest bid:
Provided that the
Board may not apply
the procedure for
bidding in case of a
lessee occupying waqf
property
uninterruptedly from
1995 onwards or prior
thereto and as a
measure of one time
concession, renew the
lease deed for a period
upto ten years if the
lessee files an
undertaking with the
Board to the effect
that–

(i) the lessee shall hand

over peaceful,
unencumbered and
vacant possession of
the waqf property to
the lessor on the expiry
of the period for which
the lease has been
renewed;

(ii) the lessee or their

legal heir shall not in
future claim any
benefit or right
whatsoever out of this
one time concession;

(iii) the lessee shall

forthwith make all
payments towards
arrears and continue to
pay lease rental
determined as per rule
7 of these rules; and

(iv) the lessee shall

forthwith withdraw all
cases filed against the
lessor before any
Authority or Tribunal
or Court in respect of
or in relation to the
leased
property:

Provided further that

the lessee has to fulfill
the conditions
mentioned at (iii) and
(iv) above within thirty
days of furnishing the
undertaking failing
which the lease
agreement shall Stand
cancelled:

Provided also that in

case of death of a
lessee during the
currency of lease
period, the lease
agreement of the
deceased lessee for the
unexpired period of
lease shall be
transferred in the
 name of his or her's
son or daughter or
spouse for which
transfer fee equivalent
to three months rental
shall be charged by the
Waqf Board.
"19. Purpose and "19. Purpose and
period period of lease.-(1) The
of lease.-(1) The Board Board may give on
may give on lease any lease any immovable
immovable waqf waqf property, built-up
property for the spaces or vacant land
purposes and for the for the purposes and
period relating thereto for the period relating
as under, namely: - thereto as under,
namely:-
(i) for shops, lease shall
be granted for a period (i) for shops, cold
of up to five years; storages, marriage
halls or small
(ii) for cold storages, industries, lease shall
marriage halls or small be granted for a period
industries, lease shall of up to ten years;
be
granted for a period of (ii) for establishing or
up to ten years; running of shopping
malls, residential
(iii) for establishing or buildings, hotels,
running of shopping restaurants or Inns,
malls, residential lease shall be granted
buildings, hotels, for a period of up to
restaurants or inns, thirty years;
lease shall be granted
for a period of up to (iii) for establishing or
thirty years; running educational
institutions like schools,
(iv) for establishing or colleges, universities,
running educational hospitals, dispensaries,
institutions like schools, madarasas or maktabs,
colleges, universities, lease shall be granted
hospitals, dispensaries, for a period of up to
madarasa's or maktabs, thirty years;
lease shall be granted
for (iv) for agricultural
a period of up to thirty purposes, the lease
years; shall be granted for a
period up to three
(v) for agricultural years.
purposes, the lease
shall be granted on (2)The commencement
year to year basis or date of the lease shall
until the life of the crop mean the date of
in case the crop has a execution of lease
life span of more, than deed or agreement or
one year, but no lease the effective date of
for agricultural lease mentioned in the
purposes shall be lease deed or
granted for a period agreement.
exceeding three years
in any case.
23. Default - (1) Each of 23. Default (1) Each of
the following events the following events
shall constitute an shall constitute an
event of default, event of default,
namely:- namely : -

(i) all or any part of the (i) all or any part of the
lease rent is not paid by lease rent is not paid by
the lessee after it the lessee after it
become become due for such
due for such payment; payment;

(ii) the lessee fails to (ii) the lessee fails to

observe, perform or observe, perform or
keep each and every of keep each and every of
the covenants, the covenants,
agreements and agreements and
conditions and fails to conditions and fails to
rectify or remedy the rectify or remedy the
failure even after one failure even after one
month's notice by the month's notice by the
lessor requiring the lessor requiring the
lessee to so remedy, lessee to so remedy,
correct, desist or correct, desist or
comply; comply;

(iii) the lessee builds (iii) the lessee builds

any structure on the any structure on the
land or building land or building without
without prior sanction prior sanction or
or approval of the approval of the Board;
Board; or or

(iv) non-payment of (iv) (omitted by the

the lessee of lease amendment dated
rentals or lease l8.02.2020.)
considerations for
three consecutive (2) Upon the
months. occurrence of one or
more of the events
(2) Upon the referred to in sub-rule
occurrence of one or (1), the lessor may, at
more of the events its option,-
referred to in sub rule
(1), the lessor may, at (i) be entitled to the full
its option, - amount of the lease
rent due and payable ;
(i) be entitled to the full .
amount of the lease (ii) have no obligation
rent due and payable ; to refund the security
 deposit which shall be
(ii) have no obligation deemed to be forfeited
to refund the security in favour of the Waqf.
deposit which shall be
deemed to be forfeited (iii) seize and sell such
in favour of the Waqf. goods and equipment
of the lessee after
(iii) seize and sell such obtaining an order from
goods and equipment the Tribunal and may
of apply the proceeds
the lessee after thereof to all lease rent
obtaining an order to which the lessor is
from the Tribunal and then entitled under the
may apply the proceeds lease:
thereof to all lease rent
to which the lessor is (iii) seize and sell such
then entitled under the goods and equipment
lease : of the lessee after
obtaining an order from
Provided that any such the Tribunal and may
sale may be effected by apply the proceeds
public auction or thereof to all lease rent
otherwise, and either in to which the lessor is
bulk or by individual then entitled
item, as the lessor in under the lease:
items sole discretion
may decide; Provided that any such
sale may be effected by
(iv) terminate the lease public auction or
by giving one months otherwise, and either in
notice and the lessee bulk or by individual
shall pay to the lessor item, as the lessor in
lease rent for the items sole discretion
unexpired portion of may decide;
the term had it not
been terminated. (iv) terminate the lease
by giving three notices
 one after another with
a gap of one month
and the lessee shall pay
to the lessor lease rent
for the unexpired
portion of the term had
it not been terminated.

A copy of the Amendment Rules, 2020 published

vide GSR 126(E) dated 18.02.2020 is annexed
hereto and marked as Annexure P17.
10. That the Amendment Act 2013 and in particular It is incorrect to say that
introduction of definition of "Encroacher" in Waqf Act, 1995 as
Section 3 (ee), Section 54, 56, Section 83 and Rule amended and the WPL
7,8,10,12,18, 19, 23 of the Waqf Properties Lease Rules, are arbitrary,
Rules 2014 (as amended upto date) and harsh and violative of
consequent notices issued/bidding undertaken by articles 14, 19, and 21 of
Respondent No.3, are clearly arbitrary, harsh, Constitution of India
unknown to principles of law and unreasonable
being in violation of Article 14, 19 and 21 of the
Constitution of India inter-alia, on the following
grounds: