This article is written by Abanti Bose, pursuing B.A.LL.B.(H) from Amity University Kolkata, India. This article emphasizes on the important provisions, significance, controversies, and shortcomings of The Waqf Act, 1995.
Table of Contents
Introduction
The accurate connotation of the word “waqf” is “detention”. Merriam Webster defines waqf as “Islamic endowment of property which is to be held in trust and used for a charitable or religious purpose.” Section 3(r) of The Waqf Act, 1995 defines ‘waqf’ as the permanent dedication of any movable or immovable property by anyone recognized under the Muslim Law as pious, religious or charitable. To further elaborate the meaning of ‘waqf’ it can be said the property which is made available for religious and charitable purposes becomes non-transferable, and it is believed that after constituting waqf, the property is owned by The Almighty and reaches beyond human activity.
Previously, The Waqf Act, 1954 had various provisions for surveys of waqfs, central waqf council, etc. but the act had been amended several times for better interpretation; therefore the Waqf Act, 1995 was enacted and implemented by the Indian Government to overcome all the prior issues and to deliver comprehensive legislation. The Waqf Act, 1995, was enacted and became effective on 22nd November 1995 for a better administration and supervision of waqfs and also the establishment of central waqf council and state waqf boards.
To know more about the concept and explanation of waqf under Muslim law in brief, please refer to the video below:
Objective and scope of the Act
The main objectives of the Waqf Act, 1995 are:
- To provide better administration and management of waqf, waqf properties, and anything in relation to waqf.
- To establish and facilitate smooth functioning of Central Waqf Council and State Waqf Boards, which will also keep Central Government and State Governments informed regarding the administration of waqf.
- Distribution of power between the Chief Executive Officer and waqf boards.
- Appointment of the executive officer to those waqfs whose performance is unsatisfactory and annual income is 5 lakh rupees or more.
- To regulate judicial proceedings that arise relating to waqf.
- To supervise the powers, functions, and duties of mutawallis.
- Alienation of waqf property to be made difficult.
- To conduct surveys by appointing a Survey Commissioner and as many Additional or Assistant Survey Commissioners required by the State under Chapter II Section 4 of the Waqf Act, 1995.
- To strengthen the finances for the management of waqf. The contribution of a mutawalli to the board has been raised to 7% from 6%.
- To remove encroachment from waqf under Section 54 of the act.
- To prepare the waqf maintenance budget for the coming financial year under the direct management of the board.
- To maintain records and to conduct an inspection of the records.
- To bring about uniformity in waqf administration throughout the country.
Important provisions
Central Waqf Council
Section 9 of The Waqf Act, 1995 authorizes the Central Government to establish a Central Waqf Council.
i. Functions of Central Waqf Council
The functions of the Central Waqf Council in accordance with The Waqf Act, 1995 are listed as follows:
- The Central Waqf Council is empowered to issue directives to The State Waqf Boards on the matter of their financial performance, maintenance of waqf deeds, revenue records, surveys, etc.
- It is authorized to advise the Central Government and the State Waqf Boards.
- To render legal advice in matters of protection and retrieval of waqf properties.
- To maintain and regulate the Central Waqf Fund as the Council may deem fit.
- The Council is required to maintain all the books of accounts in the manner prescribed by the Central Government.
ii. Composition of Central Waqf Council
The Union Minister in charge of waqf shall be the ex-officio chairperson of the Council, and The Central Government will appoint the following members; three-person of national importance representing Muslim organization, four individuals each from the field of administration or management, financial management, engineering or architecture and medicine, three Members of Parliament, Chairpersons of three Boards by rotation, two individuals who are or have been judges of Supreme Court or High Court, one advocate of national importance, one person to represent the mutawallis and three eminent scholars of Muslim Law.
iii. Financing of the Central Waqf Council
The provisions for the financing of the Central Waqf Council are laid down in The Waqf Act, 1995. Section 10 of the act states that every state waqf board should pay from its waqf fund annually to the council that is equivalent to one percent of the aggregate of the net annual income of the waqf. All the funds received by the council by the state waqf boards and all the funds received as donations, benefactions and grants will be deposited in the Central Waqf Fund. The Central Waqf Council will be directly controlling the Central Waqf Fund and it is also authorized to make rules pertaining to the Central Waqf Fund.
iv. Provisions for Accounts and Audit
According to Section 11 of the Waqf Act, 1995 the Central Waqf Council is liable to maintain such books of account in the form and manner which is prescribed by the Central Government. These books are to be audited and examined annually by the auditor appointed by the Central Government. The costs of the audit shall be paid from the Central Waqf Fund.
State Waqf Boards
The act empowers every State government to establish a State Waqf Board each for Shia and Sunni school of Muslim Law under Section 13 of the Waqf Act, 1995.
i. Composition and Term of Office
The Board shall Consist of a Chairperson, a member amongst the Muslims who has professional experience in town planning, finance, agriculture, etc., a recognized scholar in Shia and Sunni Theology nominated by the State Government, one person amongst the Muslims nominated by the State Government who is an officer of the State Government (but not below the rank of Joint Secretary) and not more than two members will be elected by the electoral college constituting; Muslim Members of the Parliament from the particular state, Muslim Members of the State Legislature, Muslim Members of the Bar Council of the concerned state and mutawallis having an annual income of one lakh rupees and above.
Under Section 15 the term of office of the members is for five years.
ii. Disqualifications of the members
The members of the board shall be disqualified under the subsequent conditions:
- If he is not a Muslim and less than 25 years old,
- If he is of unsound mind,
- If he is an undischarged insolvent,
- If he has been convicted of an offense involving moral turpitude.
iii. Powers and functions of the Board
Section 32 of the act, guides the power and functions of the board. General superintendence of all waqf in a State shall vest in the Board established by the concerned State and it is the duty of the board:
- To ensure proper administration, maintenance, and control of the waqf.
- To ensure income and income of other properties of waqf are applied to the objects for the key purpose, the waqf was created.
- To give directions in the administration of waqf and to settle schemes for management of waqf.
- To appoint and remove mutawallis and also to scrutinize and approve the budget submitted by mutawallis.
- To take necessary measures for recovery of waqf property.
- Authorized to institute and defend suits in relation to waqf property.
- To administer the waqf fund.
- Power to inspect and investigate waqf properties, accounts, records, and documents.
- And to carry out all the necessary activities in relation to maintenance, administration, and control of waqf properties.
iv. Financing of State Waqf Boards
Under Section 72, the mutawallis are liable to pay 7% of the net annual income derived from waqf properties of which the net annual income is not less than 5000 rupees. Chapter VII, Section 73 of the act authorizes the Chief Executive Officer to direct banks or any other person, with whom any money belonging to a waqf is deposited. The board with the previous sanction of the State Government can borrow money for giving effect to any provisions of the act.
Section 77 states that all the money, benefaction, grants, and donations received by the board shall be deposited in the Waqf Fund which is to be controlled by the board. The fund shall be used under the following circumstances:
- Repayment of loan,
- Payment of the cost of the audit,
- Payment of the salary and allowances to the officers and staffs of the board,
- Payment of traveling allowances of Chairperson, members,
- Payment of expenses incurred by the board while performing the duties,
- Payment of maintenance to Muslim Women as directed by a court of competent jurisdiction under The Muslim (Protection of Rights on Divorce) Act, 1986.
Every year the board shall prepare the budget of the next financial year and forward a copy of it to the State Government under Section 78. The State Government shall examine the receipt of the budget and to recommend altercations, corrections, a modification that is to be considered by the board. Furthermore, the board shall be responsible to maintain all the books of account in the manner as provided by regulations.
v. Powers and Duties of the Chief Executive Officer
Section 25 of the Waqf Act, 1995 mentions the powers and functions of the Chief Executive Officer:
- The Chief Executive Officer is authorized to investigate the nature of the waqf and to ask for any necessary detail from the mutawalli relating to the waqf.
- He can inspect accounts, deeds, documents, etc. relating to waqf properties.
- Doing acts necessary for control, maintenance, and superintendence of waqf.
- And to perform any other duties which are assigned to him or delegated under this act.
vi. Registration
According to Section 36, it is mandatory to register all waqf at the office of the board. The application of registration shall be made by the mutawalli and the form and manner of registration shall be prescribed by board keeping in mind some pertinent factors such as; description of the waqf property, the gross annual income of such properties, the amount of land revenue, the estimate of expenses, etc.
The State Waqf Boards shall be responsible for maintaining a register of all the waqf properties.
vii. Meetings of the board
Section 17 of the act states that for the proper transaction of business the board shall conduct necessary meetings. Those meetings are to be presided by the chairperson, or any other member chosen amongst the members in the absence of the chairperson.
Judicial Proceedings
Section 83 of the Waqf Act, 1995 authorizes the State Government by notification to the Official Gazette to constitute as many tribunals as they deem fit for the administration of waqf and waqf property. The Tribunals are deemed to be a civil court and required to exercise all the powers and functions exercised by a civil court under the Code of Civil Procedure, 1908. The decision of a Tribunal shall be final and binding on the parties. No suit or legal proceedings shall lie under any civil court which this act requires to be determined by a Tribunal.
Composition of the Tribunals: The Tribunals will consist of the following members:
- One person who shall be the member of State Judicial Service not holding a rank below a District, session or Civil judge,
- One person who shall be the member of State Civil Services equivalent to the rank of District Magistrate, and
- One person having knowledge of Muslim Law and Jurisprudence.
When a mutawalli fails to perform his duties which are required under the Muslim Law or unable to discharge the duties which he is bound to perform the board shall make an application to the Tribunal, and it may take required actions.
If under any circumstances the waqf property falls under the jurisdiction of two or more tribunals, then the application shall be made to the tribunal within whose local limits the mutawalli resides.
Provisions for Mutawallis
Mutawalli is the manager of the waqf or waqf property. He is not the owner or trustee of the property; his duty is to supervise that the usufructs of the property are being properly utilized as desired by the waqif. According to Section 3(i) mutawalli, is defined as the person appointed by a competent authority for managing and administering waqf. The position of mutawalli had been explained in Syed Ahmad v. Hafiz Zahid, it stated that the position of mutawalli is not merely the manager or servant of waqf, and to carry out the directions of waqif as mentioned in the deed, but rather a significant one. He has the right to exercise his discretion and take decisions diligently while managing a waqf.
i. Duties of mutawalli
Section 50 states the required duty of a mutawalli:
- To carry out the directions of the board in accordance with the said act.
- To furnish such returns and supply such information which is needed by the board.
- To allow inspection of waqf properties, accounts, documents, and records.
- To discharge all the public dues, and to carry out all the necessary activities which are lawfully required under this act.
ii. Penalties faced by mutawalli
A mutawalli will be facing penalties if he fails to perform the following activities as mentioned in Section 61(1):
- Apply for registration of waqf,
- Furnish statements of accounts required under this act,
- Allow inspection of waqf properties and follow the directions of the board,
- Discharge any public dues,
- And any other activity which is lawfully required under this act.
iii. Removal of mutawalli
A mutawalli will be removed under the following circumstances as per the provisions laid down in Section 64:
- If a person is convicted of an offense more than once under Section 61 of The Waqf Act,1995. Or if a person is convicted due to criminal breach of trust or moral turpitude.
- If a person is of unsound mind or an undischarged insolvent.
- If a person is proved to be addicted to drinking or any other narcotic drug.
- If a person is employed to be a paid legal practitioner on behalf or against waqf.
- If the person has failed to maintain accounts for two consecutive years without providing any reasonable excuse.
- If the individual willfully disobeys the lawful orders made by the Central Government, State Government, or any Board.
- If the person persistently neglects his duties or fraudulently deals with the property of waqf.
Controversies associated with the Waqf Act, 1995
After the implementation of The Waqf Act, 1995 a controversy arose, regarding the jurisdiction of waqf Tribunals and exclusion of the jurisdiction of the civil courts. This was resolved by the High Court of Madras in the case Nagore Andavar Sambiranichatty Dhoopam Family Trust, Nagapattinam vs. S. Jegabar Ali, the suit property was in possession of the plaintiff and the house adjacent to the northern side of the property was in possession of the defendant. However, the defendant trespassed the property of the plaintiff and constructed a water tank and lavatory.
Thereafter, the plaintiff filed a suit and the defendant contested it by saying that he has been in the possession of the property for more than 20 years and even his ancestors have enjoyed the possession of the property. Before the civil court, it was denied that the suit property belonged to the plaintiff and the suit was not maintainable before the civil court. The High Court came to the conclusion that civil court has no jurisdiction as per Section 85 of The Waqf Act, 1995 and all the issues related to waqf and waqf properties ought to be presented before the waqf Tribunals. Similarly, in Intazamia Committee Idgah v. M.P. Waqf Board, it was contended that when an appeal is made against any decision to the Tribunal and the decision of the Tribunal is final then the jurisdiction of the Civil Court is dismissed.
In, Maharashtra State Board of Wakf v. Shaikh Yusuf Bhai Chawl, Supreme Court had to resolve a controversy relating to the incorporation of Maharashtra Board of Waqfs and its effect on the waqfs created by persons belonging to different sects of Islamic Law, as previously in Maharashtra, the waqf was governed by The Waqf Act, 1954 and the public trust was governed by The Bombay Trust Act.
Significance of the Act
The Waqf Act, 1954 which was implemented for the proper administration of waqf, gave birth to difficulties and therefore it had to be amended several times. In 1984, an amendment act was passed to overcome those difficulties but it was criticized as the Commissioner was given overriding powers and the Waqf Board was considered subordinate and the act also caused unnecessary interference of the Central and State Government in the duties and functions of mutawallis.
But The Waqf Act, 1995 aims to tackle such problems, under this act the Waqf Commissioner is now known as the Chief Executive Officer and is subordinate to the board. It also reorganized the members of the board to provide better administration of Waqf. Previously The Waqf Act, 1954 did not apply to certain parts of the country but on the contrary, the said act applied to the whole of India excluding Jammu and Kashmir and Durgah Khawaja Saheb, Ajmer.
Furthermore, this act not only establishes Central Waqf Council and State Waqf but also lays down detailed provisions of their powers, functions, financing, number of members, required qualifications of the members, etc. This act also mentions the role of a mutawalli and the duties which are to be performed by him. The Waqf Act, 1995 also states the provision to audit the waqf and all costs of the audit are to be deducted from the Central Waqf Fund.
Therefore enactment of this act is considered an important piece of legislation concerning Muslim Law, as apart from subjugating the previous complications it also laid down the hierarchy of the bodies administering waqf, the power of Waqf Tribunal in settling disputes pertaining to waqf, provisions for the financing of the boards and Central Waqf Council, etc.
Critical analysis
Doctrine of Cypress
The doctrine of cypress means when any object of waqf has ceased to exist or has become incapable to achieve; then the income of waqfs which was previously applied to that object shall be applied to any other object that is similar or remotely similar to the original object. This doctrine is mentioned in Section 32 (2) (e) (iii) and sanctions the State Waqf Boards to utilize the income of waqf which has ceased to exist for any such purpose akin to the original purpose, benefit of poor or promotion of knowledge. It is also laid down under this clause that the powers of the waqf board shall be exercised by Sunni members in Sunni Waqf and Shia members in Shia Waqf.
Current Status of Waqf in India
The subject waqf is relative to Entry Number 10, “Trust and Trustees” in Concurrent List attached to the 7th Schedule of Indian Constitution hereby declaring that it is a matter of both Central and State Governments. Prime Minister’s High-Level Committee affirmed, there are more than 4.9 registered waqfs spread over the country, and of which the estimate of the current value of waqf property in Delhi exceeded Rupees 6,000 crores. Therefore, the large number of waqf in India demands the need for strict administration and management of waqf pertaining to The Waqf Act, 1995.
Issues and Challenges faced by the State Waqf Boards
At present, there are 32 waqf boards all over the country, although under the said act, there are some challenges faced by the boards. The Waqf Act, 1995 has empowered every state to establish but many state governments have either failed to constitute a board or the board failed to function properly. Often due to the political affiliation of certain members of the board, political loyalties curbed constitution duties. Survey of waqf is a key part of the act under Chapter II, Section 4 but the negligence of the State government in appointing Survey commissioners and successfully carrying out the survey has led to large scale encroachment which is faced by the waqf properties.
Under Section 72 Waqf Boards annually receive contributions not exceeding 7% from mutawallis whose net annual income is not less than 5,000 Rupees. This puts the board in an economically difficult position since most of the waqf often does not yield any income.
In case of litigation regarding waqf, as State Waqf Boards are financially weak to afford such legal machinery, the State Government should provide necessary incentives to the boards to beat this. Due to the presence of such problems it has been cumbersome for the boards to deliver apposite administration and management of waqf under The Waqf Act, 1995.
Recommendations
Despite laying down numerous provisions in The Waqf Act, 1995 to overcome the conditions faced by The Waqf Act, 1954 it took a long time to implement those successfully. The waqf council has never prepared any scheme in an organized manner for the development of waqf in India. The administrative bodies are unprogressive and lack directions. The legal setup of the boards is weak which hinders them to defend suits filed against them. Negligence of mutawallis in carrying out their duties is the main reason why several waqf properties are not duly registered. Mentioned below are a few recommendations to enhance the administration of waqf all over the country and to ensure proper implementation of the act:
- The State Government should provide incentives to the State Waqf Board when required so that they can carry out their order of business successfully.
- Mutawallis, when appointed, must follow all the provisions of the act sincerely.
- Surveys regarding waqf should be appropriately conducted and reports should be furnished in due course.
- Waqf administration in India should be devoid of politics, corruption, and nepotism.
- Competent staff should be appointed and corruption and nepotism should be prevented in the working of waqf administration.
- The funding development by Central Waqf Council should be improved as it is sparse and inadequate for the development of the urban properties.
- Proper utilization of waqf properties and development of urban waqf properties.
- Allowing non-Muslims to create waqf.
- The Central and State Governments should discharge their wide powers and responsibilities granted by the act for waqf administration.
- Strong measures should be taken to waqf property from being encroached or illegally transferred.
Conclusion
The Waqf Act, 1995 established the Central Waqf Council and State Waqf Boards to bring about consistency and steadiness in waqf regulation all over India. The act brought significant changes in the powers and functions of the board. It laid down important provisions regarding jurisdiction of waqf Tribunal, duties of mutawallis, financing of waqf administrative bodies, conducting surveys, power of Chief Executive Officer, maintenance of records, etc. The Waqf Act, 1995 is an exhaustive piece of legislation that aims to provide better administration and supervision of waqfs, but it has revealed numerous shortcomings. Currently, the waqf administration is in a crippled condition, due to the failure of administrative bodies in appropriately implementing the provisions of the act. The act has failed to make any improvement in developing waqf institutions and it is insufficient and ineffective. The existing waqf administration desperately calls for structural and administrative reforms. Thereafter, it is essential to implement necessary changes in the act, to do justice to waqf administration in India.
References
- http://legislative.gov.in/sites/default/files/A1995-43.pdf
- http://centralwaqfcouncil.gov.in/sites/default/files/The%20Waqf%20Act%201954.pdf
- https://www.merriam-webster.com/dictionary/waqf
- http://www.legalservicesindia.com/article/1433/Administration-of-Wakf-in-India.html
- https://indiankanoon.org/doc/48784384/
- https://indiankanoon.org/doc/1601898/
- https://indiankanoon.org/doc/187944305/
- https://karwakf.org/wp-content/uploads/2020/01/Delegation-of-Powers.pdf
- https://shodhganga.inflibnet.ac.in/bitstream/10603/52351/11/11_chapter%206.pdf
- https://shodhganga.inflibnet.ac.in/bitstream/10603/140879/8/08_chapter%203.pdf
- http://14.139.60.114:8080/jspui/bitstream/123456789/4213/1/024_Muslim%20Law%20%28659-684%29.pdf
- https://shodhganga.inflibnet.ac.in/bitstream/10603/235689/9/chapter-5.pdf
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