Kochi: Union Minister for Minority Welfare Kiren Rijiju on Tuesday said that the new Waqf (Amendment) Act would not bring immediate justice to the 600-odd families in Munambam but would "open the doors" to justice. "Now, the provisions (of the Waqf Amendment Act) are in their favour," the minister said while talking to the media in Kochi on April 15.

It is true that the Waqf (Amendment) Act (Unified Waqf Management, Empowerment, Efficiency and Development Act, 2025) has dispossessed waqf tribunals of their near-omnipotent powers. Tribunals will no more have the last word. The 2025 amendment will allow Munambam residents, who have been paying taxes on the land that has now been claimed by the Kerala Waqf Board, to take their cause to the High Court and higher up to the Supreme Court.

The uncertain part is whether the amended Act has provisions that would favour Munambam residents if they have no choice but to take their case to the higher courts. The minority affairs minister, despite repeated queries, did not specifically point out any provisions that could be directly helpful. However, he referred to some, merely hinting that they could be beneficial.

Abolition of Section 40

The minority affairs minister said that Section 40 of the Waqf Act, 1995, has been struck down. Section 40 of the 1995 Act gave waqf boards sweeping powers to establish a property as waqf. Under this section, a Waqf Board could conduct its own inquiry, "as it deems fit", and declare a property as waqf.

"There will be no arbitrary declaration of any property as waqf property anymore," Rijiju said. But this abolition of Section 40 offers no relief for Munambam residents as their lands are already claimed as waqf property.

What's more, the 2025 amendment cannot be applied retrospectively. Meaning, lands already registered as waqf will remain so even after the 2025 amendment.

There is retrospective effect in the new law only if the land under dispute is claimed as government property. "Any Government property identified or declared as waqf property, before or after the commencement of this Act, shall not be deemed to be a waqf property," the amendment says. No one has claimed that the disputed lands in Munambam are government property.  

Abolition of 'waqf by user'

The termination of 'waqf by user' provision was also held up by the minister as a major relief. "Waqf by user is a dangerous provision," he said.

'Waqf by User' refers to a situation where an old property is declared as waqf because it is known to be used for pious, religious or charitable purposes for a long time (50 or 100 years or more). And the declaration is done not through formal documentation but informally, orally. From now on, no lands could be declared as waqf by a mere oral declaration. There has to be a formal waqf deed, a "valid document" as Rijiju put it. Even the scrapping of the 'waqf by user' provision does not have retrospective effect.

Even otherwise, the junking of 'waqf by user' will not alter anything for the Munambam residents. In 1971, Paravur Sub Court had ruled that this land had a formal waqf deed. A petition filed against this verdict was dismissed by the High Court in 1975. The reports submitted by Ernakulam district collectors before the High Court in 2008 and 2009 also stated that the land is wakf property. The Nissar Commission, appointed in 2008, had also said that the entire 404.76 acres of land was wakf property, with a proper waqf deed.

Union minister gets super powers

If at all the waqf boards were not functioning in a neutral way, thereby still causing trouble for Munambam residents, Rijiju said the 2025 amendment had armed the Centre, particularly the minister, with higher powers.

"I can pass a direction to the Waqf Board to act in a particular manner, Rijiju said, suggesting that the Centre can force the Waqf Board to act in favour of Munambam residents.  He was referring to section 96 of the Act. This section allowed the Centre to "lay down general principles and policies of waqf administration in so far as they relate to the secular activities of the auqaf (plural of waqf)".

But this was not inserted via the 2025 amendment. This 'super' power already existed, in the 1995 Act itself.

'Trust' factor

The minister suggested that the fact that the Munambam land had changed hands after the waqf was created (from Farooq College to Munambam residents) could be a floating log that Munambam residents can cling on to.

"If a property dedicated by the wakif (the person who dedicates) has been transferred, it loses its waqf status. Because waqf property cannot be transferred, once a waqf always a waqf," the minister said.

Even if the Munambam land has a formal waqf deed, it ceased to be waqf land once it was sold to the residents. "This can be taken up," the minister said, cryptically.

There was another significant remark. "We have given freedom to every Muslim to run his property either as waqf or trust," the minister said.

Read together, it could be interpreted that the Munambam land could be considered as 'trust' and not 'waqf'. Then, Section 2(A) can come in very handy. This Section was not in the original draft but was inserted by the Joint Parliamentary Committee.

It says that the waqf law will not "apply to a trust established before or after the commencement of this Act or statutorily regulated by any statutory provision pertaining to public charities, by a Muslim for purposes similar to a waqf under any law for the time being in force."

This Section has retrospective effect. Still, there is a problem. The clause "for purposes similar to waqf" robs the Section of its potency for Munambam residents. The lands they have purchased is not used for activities "similar to waqf".