Siddhant Prabhu & Digveejay Upadhyay

Abstract: The management and adjudication of Waqf Properties have long been a crucible for legal contestation around executive interference, religious autonomy, and minority rights. This article departs from the prevailing focus on assertions based on religious freedom. It maps the evolution of executive officials in India and situates §3C and §4 of Unified Waqf Management, Empowerment, Efficiency, and Development Act, 2025 within this administrative landscape. Without debating the necessity of such reform, this article appraises the proposed positioning of an executive functionary as an adjudicator on the dual metrics of legality and suitability. On legality, this article builds upon scrutiny of this section’s inability to ally with the Indian interpretation of the ‘Separation of Powers’ doctrine by framing it in the backdrop of India’s rejection of the Paternalistic Model of governance for a Constitutional one in the local executive. Further, relaying the recommendations of the Sacchar Committee report, this article weighs the benefits of executive adjudication against its real-world ramifications. This is achieved by anchoring it to the observations made by the Administrative Reforms Commission and juxtaposing it with the likely effects of this act. Identifying merit in specialization of function and independence, this article cautions against overburdening of the local rungs of the executive. This article raises apprehension regarding the centralization of adjudicatory powers upon an executive functionary citing concerns of diminished efficiency, low transparency, and a possible violation of natural justice. Therefore, it advocates for a more specialized schema of power distribution at the local level.

I. Introduction

Waqf, is an Islamic institution of charitable endowment, characterized by the permanent dedication of property for religious or altruistic purposes.

The spate of legislative activity, beginning from the 1995 act, followed by the 2013 amendment, culminating in the Unified Waqf Management, Empowerment, Efficiency, and Development Act, 2025 (‘2025 Act’) which was aimed at regulatory consolidation was met by stringent opposition. This opposition has largely emerged as constitutional assertions surrounding equality and religious freedom or political debates regarding minority rights and state intervention. Notably, §3C(2) of the 2025 act defines a ‘designated officer’ of the government.  This is an officer above the level of district collector vested with authority to conduct inquiry into land that is contested to be government property. The provision bars classification of such land as Waqf property until the inquiry is complete, yet remains silent on timelines or procedural safeguards. Additionally, §4 of this act reassigns the responsibility of surveying and identifying waqf properties from an independent survey commissioner to the district collector.

While critics have raised concerns over this provision; those have appeared only as assertions, the broader debate has been centred on conventional constitutional criticism surrounding religious freedom. This discourse remains under-theorized, with little doctrinal analysis to contextualize claims. This article, acknowledging this gap, aims to address the provision using two metrics:

Part II seeks to shift the analytical lens to underexplored discussions of administrative law. Using the evolving role of executive officers, it argues against the colonial vision of paternal governance, instead attempting to situate this provision in the constitutional framework. Part III aims to study the suitability of these proposed reforms to the prescribed purpose of this act. It uses a tripartite framework measuring its suitability as against principles of natural justice, the Sacchar Committee report, and the goal of transparent accountability. Part IV serves as a conclusion, weighing the desirability of the reform on the abovementioned metrics.

II. Situating this Provision in the Administrative and Constitutional Framework

The replacement of the duties of the Survey Commissioner and Waqf Tribunals — ad-hoc, quasi-judicial authorities — with that of the District Collector raises some concerns. This section studies the validity of replacing a specialized role with a functionary who simultaneously performs executive and judicial roles. Part A analyses its compliance with the Separation of Powers doctrine. Part B argues that there is an inherent doctrinal inconsistency with this provision, examining it with the powers of these executive officers.

A.  Executive Adjudication and Erosion of Separation of Powers

The doctrine of separation of powers posits a structural demarcation of governmental functions among the legislature, executive, and judiciary. It aims to institutionalize checks, prevent arbitrariness, and uphold the rule of law within a constitutional framework. In India, for too long, this discussion has been largely in context of judicial review or activism. The executive’s adjudicatory powers and their implications had been overlooked. However, recently, with various tribunals’ assumption of quasi-judicial status, and the introduction of the tribunals reform act, 2021 this discussion has re-entered the limelight. The author analyses the stance of Indian jurisprudence on the executive as an adjudicator, placing emphasis on the otherwise overlooked exercise of such authority at the district level.

In pre-independence times, the role of the executive was that of a ‘benevolent despot.’ Citing reasons of administrative efficiency and convenience, there was a concentration of powers upon executives such as the collector.  The British vision of governance can be summarized in what the author argues is the ‘paternalistic model.’ In this model, the executive officers were the mai-baap (mother-father) who looked after ignorant peasantry with ‘compassion.’ Clearly, this model was rooted on the ‘backward colonial belief of paternal superiority’ and a faulty presumption of executive benevolence. These structural reforms signify a purposeful transition to a more democratic model. This transition can be traced back to Dr. P.K. Sen’s speech in the Constituent Assembly regarding separation of powers. Acknowledging that at the union level the constitution outlined adequate protection, he emphasized the larger problem was the lower rungs of governance which were “notorious for this mischief that had been complained about for many years”. He highlighted this deep-ridden issue at the local level.

With the advent of post-independence constitutionalism, these judicial powers possessed by executive officers were systematically divested. Guided by Article 50’s directive for judicial-executive separation and reinforced by provisions like Article 233, this vision began materializing in the 1960s. Judicial powers previously held by executive officers were transferred to independent judicial authorities. This realignment was codified by the Code of Criminal Procedure in 1973, leaving only preventive powers with the executive as observed in Sections 107, 108, 109, 110, 144, 145, 147, and 151. This gradual but purposeful transition culminated in 2020, when the last remaining district, wherein an executive magistrate exercised judicial power, that is the South Garo Hills of Meghalaya, got its own district and sessions court. This legislative realignment has found consistent judicial affirmation.  Time and again, our courts have stressed upon judicial primacy in not merely the selection of judicial and quasi-judicial bodies, but also their composition. Further, the general principle governing executive officers acting as adjudicatory authorities is the one reiterated in Surendra Bhatia v Kanhaiya Lal wherein the SC called it a “well established principle of law” that executive officers could not act as judicial or quasi-judicial authorities when a District Magistrate tried to seek the immunity granted to Judges.

Courts have repeatedly reaffirmed the constitutional model of governance while interpreting the SARFAESI Act, National Highways Authority Act, Limitation Act,  Constitutional Law, among others. In cases, wherein the executive officers at the local level plays a very limited quasi-judicial role such as certain provisions of the Bhartiya Nagarik Suraksha Sanhita, or the Arms Act, it must be noted that those powers are also largely preventive in nature. That is, they can only be exercised when there is a legitimate threat to peace and security. In cases wherein such provisions aren’t preventive, such as the Stamp Act or the Indian Forests Act: these are largely colonial era statutes un-reflective of the changing realities of local governance.

 The Indian Forests Act considers the Forest Settlement Officer as the final adjudicatory authority. Firstly, while this authority was an executive member, he only discharged these quasi-judicial functions unlike the present case, wherein he is granted quasi-judicial powers while still retaining his executive functions. One of these executive powers involved commonly representing the state in these very disputes that he will now adjudicate. Moreover, even these powers have been subsequently diluted by the legislation via Forest Rights Act which has democratized those functions. This is further supplemented by the Supreme Court’s reading of this contradiction in the Orissa Mining Corporation Ltd. v. Ministry of Environment and Forests wherein the Supreme Court rejected the paternalistic model of governance disallowing concentration of this power in executive hands, instead granting it to the Gram Sabha. This is a clear acknowledgement of a rejection of the backward paternalistic tendencies and a shift towards a community-oriented model.

Further, the Indian Forests Act is not an isolated example of this phenomenon. The author argues that other statutes reflect this same trend. Illustratively, The Street Vendors (Protection of Livelihood) Act, 2014 replaces street-level police control with a rule-bound, participatory system. It creates Town Vending Committees, and these must include elected vendors. These bodies conduct surveys, fix vending zones, and issue certificates. Eviction now is not left to the whims and fancies of a single executive but rather must follow due process and reason. Similarly, the Mental Healthcare Act, 2017 performs a similar transition in another field. It has moved away from custodial psychiatry and places agency in the hands of the person. Patients can now appoint nominated representatives. Additionally, disputes over admission and treatment go to Mental Health Review Boards, not to district officials. In both these statutes, the State steps back from its self-appointed role as a benevolent dictator performing an excessive function. Power shifts to participatory, rights-bearing institutions that have the technical competence and structural appropriateness to make such changes.

Hence, it is regrettable that this provision not merely confers such judicial powers upon the executive, there is also a notable lack of procedural safeguards such as a time-period for an inquiry or a limitation for such contestation which will be discussed in Part III(C). This signifies an undesirable return to this colonial pattern of paternalistic governance.

B. A Paradox of Protection: Inferior Safeguards for Waqf Endowments

In Kutchi Lal Rameshwar Ashram Trust Evam vs Collector, D.Y. Chandrachud, J. makes a three-fold observation with regards to executive officers’ ability to determine title deeds. Firstly, he termed allowing executive officers to perform adjudicatory exercises “destructive of the rule of law.” Secondly, he reiterated that the collector acted without jurisdiction in assuming powers of a civil court. Lastly, and integrally, he reaffirmed that a collector has no jurisdiction in determination of a title deed. The court warned against adjudicatory functions being conferred upon executive bodies, but more importantly clarified that this very specific function of determination of property title squarely fell out of the jurisdiction of the collector. It is a settled position of law that adjudication of property ownership is beyond the powers of the executive, except in certain preventive settings. This is a settled position of law, reinforced a multiplicity of times through a judicial mandate delivered in cases such as Satya Pal Anand vs State of M.P., Thota Ganga Laxmi v. State of A.P, Sri R Sampath vs State Of Karnataka. It is clear that the state has been unequivocal on the role an executive can hold upon determination or registration of land deed. This is restricted purely to that of an administrative one. Law and Court alike are unequivocal about the same in cases of non-religious property.

Simultaneously, the state has repeatedly acknowledged higher protection for religious practices from state interference as constitutionally embedded in Articles 25-28. It becomes imperative to recognize this irony. Thus, on one hand the state acknowledges the need for greater insulation for this institution, this act effectively nullifies such insulation to an extent even further than the protection afforded to properties not shielded by religious concerns. To view this illustratively, if a private individual lay claim on what was disputed to be a government property, no executive official would have the right to conduct an inquiry to decide its title. However, if this were waqf land: the state’s appointed designated officer, an executive over the position of collector, would not only conduct this inquiry but also direct the state to make necessary changes to the title of the property.

Thus, effectively, religious property which is acknowledged to require a greater insulation from state interference will have lesser protection than other ordinary property.

III. Examining this Provision’s Alignment with the Act’s Stated Aims

The overarching purpose of this act is: to first, to increase the accountability and efficiency of the management and adjudication of Waqf properties, and second, implement the recommendations of the Sacchar Committee Report. This article will argue that this provision is not in consonance with those stated aims. Part A will question its consistency with natural justice and transparent governance. Part B will try to study the real-world ramifications regarding overburdening of certain executives. Part C will discuss the real-world ramifications of this section’s procedural aspects.

A. In Contravention with Natural Justice and Increased Transparency

The fifteenth report of the second Administrative Reform Commission lists down the core functions of the District Collector, paragraph 3.2.4.1.8(i) terms the Collector as a ‘custodian of government property.’ Moreover, before this act, the collector, or other members of the revenue administration, often acted as a representative of the government in similar disputes in front of the Waqf tribunal. Furthermore, upon their appointment to this position, several states’ including Maharashtra, Tamil Nadu, Delhi, Haryana, Punjab, Karnataka’s training manual outlines this duty as a ‘custodian of government property.’ Some go so far as to say that the duty of these officers’ is to protect the land from its encroachment ‘in the truest sense’ to keep them available for developmental uses to the government. Naturally, this means that the very functionaries tasked with preventing its encroachment could be asked to adjudicate the title of such property. These functionaries in-charge of keeping government land ‘available for future developmental uses’ will act as an arbiter in disputes regarding it.

Clearly, this violates the principle of nemo judex in causa sua — no one must be a judge in their own cause.

B. Administrative Realities: Executive Overload and Consequential Inefficiency

The aforementioned report makes several other valuable observations. This is only one of multiple reports that note that some functionaries were often “not even aware” of all the laws under which they were empowered. It cites a multiplicity of functions and a diffusion of original responsibilities as reason for inefficiency. It advocates for a clearer framework that refocuses on the Collector’s core functions. This brings us to a critical flaw. If administrative efficiency is indeed the overarching goal of the Act, then the delegation of functions originally entrusted to independent and specialized bodies such as the Survey Commissioners and Waqf Tribunals to already overburdened local executive functionaries fundamentally undermines that very objective. 

Many administrative commission reports note how that the office of the District Collector has become administratively unmanageable. What began as a compact role that was only tasked functions of revenue, law and order, and relief has expanded today to become an all-purpose command post for every new welfare scheme, regulatory statute, and development mission. This results in a situation today wherein Collectors are made chairpersons of dozens of district-level bodies across unrelated sectors often without any rational division of labour. In some States, a single Deputy Commissioner formally heads over forty district committees. Many Collectors are not even aware of how many bodies they preside over. Beyond statutory functions, they are also placed in charge of trusts, societies, colleges, and civil organisations. Thus, this wide and unstructured accumulation of roles produces diffusion of responsibility and chronic overload.

This analysis of the evolution of the Collector’s role must be viewed in light of the Sacchar Committee report which emphasizes on the importance of appointment of specialized officers as members of the Waqf Tribunal and Survey Commissioners. It iterates that this is required to relieve functionaries with a myriad of other functions and thus increase their efficiency during the discharge of these specific functions. However, this move clearly seems to be a step in the opposite direction in that regard.

C. A Lack of Procedural Safeguards

The lack of any limitation or procedural time-bar in this section is also concerning. To contextualise this, The Sacchar Committee Report while acknowledging the market value of over 1.2 Lakh Crores for Waqf Properties strictly criticized its under-utilization and lack of efficiency. On the state side, it pointed out two major problems: firstly, a lack of administrative support, but secondly, and more importantly, the encroachment of waqf properties by the state. The report notes that a huge number of properties are either embroiled in litigation or under unauthorized occupation by governmental agencies. To understand the effect of this act on this problem: we must properly analyse the relevant provisions.

An interesting inclusion in the proviso of §7 of the act is a limitation of two years from either the commencement of the act or wrongful publication of a property as waqf for either the board or the mutawalli or any aggrieved person to apply to the appropriate tribunal for remedy.  Contrastingly, §3C fails to not only set any limitation for the realisation of such ‘dispute’ by the government it also does not prescribe a time duration for the inquiry. During such an inquiry, the land will not be treated as a waqf property.

Thus, this provision not only allows the state government to raise such a question, it also grants the power of adjudication to an executive officer. The Andhra Pradesh and Telangana Waqf Boards also furthered a similar contention in front of the Joint Committee Report of the Waqf (Amendment) Bill, 2024, further highlighting the presence of delays in the survey and registration of Waqfs by the collectors. Additionally, the utlisation of such delay in inquiries to further the state’s own benefit is not alien to Indian politics. To illustrate, they were also seen in Maharashtra’s inquiry commissions and the Court of Inquiry proceedings in the Army. As seen through these instances, such provisions could lead to a situation wherein the designated officer keeps the inquiry in abeyance, thus delegitimizing its Waqf status, leading to further underutilization of such Waqf land. To illustrate, the state could claim such dispute several years post a land’s recognition. If such a property had been developed to be used as a school; this contestation by the state government would lead the property to not be given the waqf title until completion of inquiry by the designated officer. This would put a hiatus upon the usage of this school. Depending upon the executive officer, this inquiry could take months, years or even decades to finish. It is already apparent, through data collected by state-appointed expert commissions that there is already a wide prevalence of this phenomenon.  Instances of unauthorized occupation of gazetted Waqfs by Governments and their agencies as reported, included about 316 properties in Delhi, 60 each in Rajasthan and Uttar Pradesh, 53 each in Madhya Pradesh and Orissa and 42 in Karnataka. On one hand the Sacchar Committee report squarely points out that the unauthorized encroachment by government functionaries is central to the under-utilization of such lands, on the other hand, this provision grants them an increased, unchecked power to perform such encroachment.

Hence, these powers granted to an executive officer seem to be counterproductive to the recommendations of the Sacchar Committee.

IV. Conclusion

This article maps a legally-discernible trend of shift in executive governance at the local level. It further builds upon this purposeful abandonment of the paternalistic model of governance as the basis for critique of these provisions. There is a need to relook this schema of power distribution. This article sets a foundation for further study into alternative adjudicatory mechanisms that are better aligned with this constitutional model. These models must also account for the already over-burdened local executive. Specialized offices to discharge this function are suitable in that regard.

Thus, while this article does not contest the need for reform, the chosen mechanism appears misaligned with both constitutional ideals and the act’s own articulated aims.

Siddhant Prabhu is a second-year B.A. LL.B. student at WBNUJS, Kolkata, with a deep fascination for constitutional structure and administrative law. He is particularly drawn to the manner in which these frameworks shape and determine public policy.

Digveejay Upadhyay is a second-year B.A. LL.B. student at WBNUJS, Kolkata, with a keen interest in constitutional law, international trade law, and policy.