2022-07 Community Coordination Initiative – Opening Lecture – Farid Tungekar

3rd July 2022- Malegaon Conference organized by
Community Coordination Initiative
A Coalition of Muslim NGOs Promoting Civil Society

Opening Lecture
Mohammed Farid Tungekar
Director – Waqf Liaison Forum

بِسْمِ ٱللَّهِ ٱلرَّحْمَـٰنِ ٱلرَّحِيمِ

Introduction

Every Muslim is the recipient, guardian, and executor of Allah’s will on earth; Ihsan (social responsibility) constitutes the highest form of Ibada (worship). Muslim’s responsibilities are all-encompassing and individual responsibility is the cornerstone of the Muslim faith.
“Believers! Be upholders of justice, and bearers of witness to the truth for the sake of Allah, even though it may either be against yourselves or your parents and kinsmen, or the rich or the poor: for Allah is more concerned with their well-being than you are. Do not, then, follow your desires lest you keep away from justice. If you twist or turn away from (the truth), know that Allah is well aware of all that you do.” (Al-Quran Surah 4:135)

About Us

Our aim at Waqf Liaison Forum is to inspire, inform and empower the community to reclaim their Waqf narrative, by providing a platform for Waqf Awareness and to share experiences and plan strategies to recover and develop Waqf properties.

It remains a duty on all Muslims to strive for knowledge – Islam encourages and promotes the idea of learning, asking questions, and striving to better oneself through acquiring knowledge.

The Prophet Muhammad PBUH is famously reported to have said: “Seeking knowledge is obligatory upon every Muslim”. He is also reported to have stated: “You must seek knowledge from birth till death”.

Charity and Philanthropy in Islam

Qur’an and Sunnah provide several injunctions motivating believers to participate in charitable and philanthropic practices voluntarily.

Charity (Sadaqah), in its higher sense, includes all help, not monetary alone, from those who are wealthy to those less provided. It is the act of virtue in Islam as mentioned in various Surahs in the Holy Qur’an

The Qur’anic verse “You shall not attain righteousness until you spend out of what you love (in the way of Allah). Allah knows whatever you spend.” (Al-Qur’an Surah 3:92)

The Concept of Tolerance in Islam

The Prophet Muhammad (PBUH) declared during the farewell pilgrimage:
“Oh people! Behold, your Creator is certainly One Being. Surely, your father is one person. No Arab is superior to a non-Arab, nor is a non-Arab to an Arab, or a person of fair skin colour to a person of dark skin colour, or vice versa, except by attaining consciousness of Allāh…”

The Quran states that Allah (God) created all people from Adam and Eve and made them in different cultures, races, and faiths to compete and cooperate together.

“Serve Allah, and join not any partners with Him; and do good – to parents, kinsfolk, orphans, those in need, neighbors’ who are near, neighbors’ who are strangers, the companion by your side, the wayfarer (ye meet), and what your right hands possess: For Allah loveth not the arrogant, the vainglorious;” (Al-Quran 4:36 Translation Yusuf Ali)

Origin of Waqf

Divine intervention: Allah ordered His Prophet Ebrahim (P.B.U.H) to build on earth a House of Prayer – Kaaba is the first Waqf by Divine intervention.

Human intervention: In all probability, Allah reserved the honor of originating Waqf to His Beloved Prophet (P.B.U.H). The actual first Waqf is agreed to be the Masjid Quba’ which the Prophet (P.B.U.H) personally built with the Muslims upon his arrival to Madinah in 622 AD.

Other notable Auqaf:
• Hazrat Omar RA – Land in Khyber
• Hazrat Uthman – Water Well purchase from a Jew to provide free water to people of Madinah
• Latter many Sahibs created Waqf

Definition and meaning of Waqf

Waqf which is believed to be a form of perpetual philanthropy (Sadaqah e Jariyah), is not mentioned in the Holy Qur’an in this sense, yet it certainly has roots and origin in the Holy Qur’an.

Waqf or Auqaf (plural) translated as confinement, detention, holding, and prohibition. Waqf is a special kind of philanthropic deed in perpetuity that is exercised in a non-perishable tangible property by designating the specific categories of beneficiaries to receive its usufructs or revenues.

Waqf is unique from all other forms of charity, endowments, and alms.

Charity, Endowments and Waqf

Sometimes a Waqf is explained as a ‘charitable trust,’ which has a public dimension, and at other times it is translated as an ‘endowment,’ which resembles a ‘will’ or ‘settlement’ that has a single aspect.

Abu Hanifa defined it as “withholding property, according to the judgment of its owner, and providing charity from its revenues.”

The most notable and comprehensive of these definitions, to put it briefly, is “withholding property, not permitting it to be owned by any person and disposing of its benefits in a permissible manner.”

Classification of Waqf by Categories

Charitable or Khairy or Public Waqf or Waqf Aam: “means dedication in perpetuity of the capital and income of property for pious, religious or charitable purposes recognized by the Muslims law and the property so dedicated;”

Family or Ahli Waqf or Private or Waqf Khas: “means dedication in perpetuity of the capital of property for pious, religious or charitable purposes recognized by the Muslims law, the income of the property being paid to persons or for purposes specified in the Waqf, and the property so dedicated;”

Common or Mushtarak Waqf is a Waqf in which the part of the benefits from the Waqf usufructs to the family usage and the other for the public usage.

The three categories of Waqf is a classical one referred to in jurist books. But it is necessary to add that it is not the only way that Auqaf can be classified.

Categories of Waqf from the perspective of its purpose

a) Waqf Ahli: the proceeds of Waqf are for the Waqf founder’s children and their offspring. However, these beneficiaries cannot sell or dispose of the property subject matter of Waqf.
b) Waqf Khayri: the proceeds of Waqf are for charity and philanthropy. Examples of beneficiaries include the poor and the needy.

c) Waqf al-Sabil: a Waqf whose beneficiaries are the general public. It is very similar to Waqf Khayri, though Waqf al-Sabil is usually used to establish and construct the public utility (masjids, water supplies, graveyards, schools, etc.)

d) Waqf al-Awaridh: the yield of Waqf is held in reserve so that at times of emergency or unexpected events that negatively influence the livelihood and wellbeing of a community of people. For example, Waqf may be used to pay medication expenses and education of underprivileged children, and may also be used to finance the maintenance of the utilities of a village or neighborhood.

Categories of Waqf from the perspective of its output nature

a) Waqf-Istithmari: the Waqf assets are for investment. Such assets are managed to produce income for constructing and reconstructing Waqf properties.
b) Waqf-Mubashar: the Waqf assets are used to generate services for the benefit of some charity recipients or other beneficiaries. Examples of such assets include schools, utilities, etc.

It is also possible to have an amalgamation of a combination of Waqf objectives, like Waqf Khayri, Waqf al-Sabil, Waqf-Ahli, Waqf-Istithmari, etc., where the usufruct distributed amongst various goals of Waqf.

It is essential to rectify the dominant prevailing perception that Waqf properties are meant only for religious purposes, in fact they should include all activities that have positive impact on the society but do not go against the Shari’ah.

Zakat in Al Quran

• The Arabic word Zakat itself (the purely linguistic meanings of which, significantly, can denote “increase,” “growth,” “betterment,” “righteousness,” “praise,” “blessings,” “purification,” and “commendation”) occurs 30 times in the Quran.
• The word Zakat notably appears nine times in eight different Makkan Surahs as the alms (charity). This means that Allah made Zakat — the giving of alms to the poor — an integral part of Islam from the beginning and a defining quality and required conduct of the believers who are eligible to pay Zakat.
• “Zakat expenditures are only for the poor and for the needy and for those employed to collect [Zakat] and for bringing hearts together [for Islam] and for freeing captives [or slaves] and for those in debt and the cause of Allah and the [stranded] traveler – an obligation [imposed] by Allah. And Allah is Knowing and Wise.” (Al-Qur’an Surah 9.60)
• “Verily those who give alms — be they men or women, — and give Allah a beautiful loan shall be repaid after increasing it many times; and theirs shall be a generous reward.” (Al-Qur’an Surah 57:18)

Sadaqah in Hadith

The Prophet (peace be upon him) said “Sadaqah extinguishes sin as water extinguishes fire” (Hadith, Tirmidhi). He also said that Allah offers relief on the Day of Judgement for those who give Sadaqah: “The believer’s shade on the Day of Resurrection will be their charity” (Hadith, Tirmidhi).

The Prophet of Allah (PBUH) said: “To give something to a poor man brings one reward, while giving the same to a needy relation brings two: one for charity and the other for respecting the family ties.” (Musnad Ahmad & Sunan Tirmizi)

Those who consider themselves Muslims should give to charity (Sadaqah) to prove their devotion to Allah (SWT), otherwise, they may not be considered a true believer on the day of judgement. By giving charity (Sadaqah) you are showing that your intentions are pure and sincere and that you care about others besides yourself.

Waqfnama of Hazarat Umar RA

Umar acquired a land at Khaybar. He came to Allah’s Apostle (may peace be upon him) and sought his advice in regard to it. He said: Allah’s Messenger, I have acquired land in Khaybar. I have never acquired property more valuable for me than this, so what do you command me to do with it? Thereupon he (Allah’s Apostle) said: If you like, you may keep the corpus intact and give its produce as Sadaqah. So Umar gave it as Sadaqah declaring that property must not be sold or inherited or given away as gift. And Umar devoted it to the poor, to the nearest kin, and to the emancipation of slaves, aired in the way of Allah and guests. There is no sin for one, who administers it if he eats something from it in a reasonable manner, or if he feeds his friends and does not hoard up goods (for himself). (Muslim, Shahih Muslim)

Zakat and Waqf Revenue

The resource is Allah’s ‘blessing,’ and seeking it correctly, is considered as an act of worship in Islam.

Thus the resources should be earned, invested, and spent in the correct avenues or as per the spirit of Islam, which implies that the reward is distributed to the individual, his family, relatives, and the society as a whole.

Waqf is different from Zakat in the sense that Zakat is compulsory, and Waqf is voluntary. Al-Qur’an Surah 9-60 refers to the beneficiaries of Zakat, in contrast, the recipients of Waqf funds (Charity) are not clearly stated but implicitly stated in various Surahs 2:177, 2:195, 2:215, 2:254, 2:261-276, 3:40, 3:92, 3:134, 57:18 etc., and various Hadiths.

Sadaqah will impact countless lives

The best way to give Sadaqah is any way you can, be it a smile, an act of compassion, or a donation made to a worthy cause.

Contributing towards educating a child can reap countless rewards for years to come by securing the future of a child, their family and even the surrounding community, making it one of the most popular types of Sadaqah Jariyah.

Contribute towards the building of a school, hospital or even an orphanage, which goes on to benefit others, every single patient being treated in the hospital and every single individual gaining knowledge in the school is an invaluable act of Sadaqah.

Evolution of the Waqf Act

• Prior to independence the Regulation 111 of 1810 of Bengal Code and Regulation V11 of 1817 of Madras Code, Board of Revenue or Board of Commissioners of these two provinces were given the general superintendence of all endowments including Auqāf.
• With the enactment of the Religious Endowments Act, 1863 the practice was abandoned and local committees functioned as new custodians of Auqāf.
• In 1864 the Kazees Act abolished the institution of Qadhi and left Waqf to be addressed by English Judges who applied English legal principles instead of Shari‘ah.
• The Musalman Waqf Act, 1923; The Bengal waqf Act, 1934; The Musalman Waqf (Bombay Amendment) Act, 1935; The United Provinces Muslim Waqf Act, 1936; and The Delhi Muslim Waqf Act, 1943.
• Government of India passed the Waqf Act 1954 with an aim of better administration of waqf properties in the country. The Waqf Act 1954 was amended in 1959, 1964, 1969 and 1984 and finally was repealed and replaced by the Waqf Act 1995. At present waqf administration in India is governed by the Waqf Act 1995 which was amended by the Waqf Amendment Act 2013. The Act is divided into 9 chapters with 113 sections.

9 Chapters of Waqf Act 1995-Amended 2013

1. Preliminary – Sections 1 to 3
2. Survey of Auqaf – Sections 4 to 8
3. Central Waqf Council – Sections 9 to 12
4. Board and their Functions – Sections 13 to 35
5. Registration of Auqaf – Sections 36 to 43
6. Maintenance of Accounts of Auqaf – Sections 44 to 71
7. Finance of the Board – Sections 72 to 82
8. Judicial Proceedings – Sections 83 to 95
9. Miscellaneous – Sections 96 to 113

Types of Waqf in the Act

As per Section-3, in India there are two types of Waqf namely:
Waqf by user such as Masjid, Dargah etc. including grants (Innam) given for a specific purpose by the one who has dedicated the property.

Family Waqf where the settler has laid down the specifics in the Waqfnama (Waqf deed) such as in Section 37-(c) the rules of succession to the office of mutawalli under the waqf deed.

Section 69-(2) Removal of mutawalli of any hereditary mutawalli by appointment next in hereditary in succession. Section 25-(2) and 32-(1) “ the Board has to act in conformity with the direction of Waqif, the purpose and the usage of the waqf.”

Section-97 “Provided that the State Government shall not issue any direction being contrary to any waqf deed or any usage; practice or custom of the waqf” Waqfnama is the supreme document.

Person interested in a Waqf

Section 3-(k) Any Indian Muslim is a person interested in the Waqf and includes any person entitled to receive any pecuniary or other benefits from the Waqf and includes the Waqif and any descendant of the Waqif and the mutawalli.
Section 32-(3) can approach the Waqf Tribunal to set aside the Board Order.
Section 53 Can object to purchase of property on behalf of Waqf by Mutawalli.
Section-65 Can request the State Government, to call for the records of any case to satisfy itself as to the correctness, legality, or propriety of the notification under Section 65-(1).
Section-69. Power of Board to frame a scheme for the administration of Waqf (1) Where the Board is satisfied after an inquiry, whether on its motion or on the application of not less than five persons interested in any waqf,
Section 70 Request for Inquiry relating to the administration of any Waqf that is mismanaged or misappropriated.
Section 83-(2) Any mutawalli or person interested in a Waqf or any other person aggrieved by an order made under this Act can approach the Waqf Tribunal.
Section 94. Power to make application to the Tribunal in case of failure of mutawalli to discharge his duties.

Management of Waqf Properties

Mutawalli as defined in Section 3-(1) are only caretakers, managers, and custodians of Waqf properties even for Innam Grants and Family Waqf; Mutawalli are not owners.
Under Section 65-(1) over 3183 MSBW properties are under the direct management of Waqf Board and are not developed, some are in state of dilapidation, or encroached, as no suitable person is available and since in most cases the WB management has crossed the five year limit set by the Act, suo motto there is a violation of the Act by the Waqf Board.
As per WAMSI Maharashtra data 2646 properties with NO MANAGEMENT
Most of the properties under Mutawalli are subject to the pathetic mismanagement of administration or are being financially misappropriated and the intend and the purpose of the Waqf i.e socio-economic benefit to the society is not being achieved.
Waqf properties belong to the community, for the benefit of the community, with the active participation of the community.

Scheme for Management of a Waqf

A group of five persons should FOCUS on one Waqf property, in their location, which is mismanaged or is being misappropriated or has potential for development. Several such groups in each location should then earnestly strive to Protect, become Custodians and Develop various Waqf properties for the benefit of our community and society at large.

Step–1: If Waqf property is with a Mutawalli or Committee, write to Board Members with copy to Central Waqf Council to issue notice to Mutawalli to develop Waqf property under Section 32-(4), (5) and (6).

Step–2: If the Mutawalli fails to develop or the property is with Waqf Board or there is no management, then Under Section 70 request for an inquiry with an Affidavit signed by at least 5 persons describing the reasons with documentary proof the failure to develop Waqf property.

Step-3 : Simultaneously frame a scheme for management of Waqf property under Section 69, stating the reason in the above Step-2 and at the same time submit details of your project such as School, Hospital or any project that will bring social and economic benefit to the society.

With focus and patience follow up until your efforts are successful.

Community needs to wakeup

“Indeed, Allah will not change the condition of people until they change what is in them” (Al-Quran Surah 13:11) Translation Abul A’la Al Maududi.

Waqf properties are bestowed to the Community, for the benefit of the Community, by the active participation of the Community.

Wakf is one of those areas in which accountability has not been demanded. The community itself has not demanded accountability possibly due to a level of ignorance and awareness of the amended Waqf Act-2013.

The provisions in Waqf legislation relating to the recovery of properties is not very effective; partly owing to the lack of will of law enforcement agencies and partly to the lack of necessary staff and funds required. Sections 51 to 56 of Waqf Act, 1995 deals with the important issues like prevention of alienation of waqf properties, their recovery, prohibition on purchase, removal of encroachment and restriction on lease. Section 104A in the amended act of 2013 is a powerful section that over rides any action of the Board or mutawalli in so far as alienation of Waqf properties.

Waqf Properties in India

800 years is how old the institution of Wakf is in India. It began when Muslim rulers donated huge lands for charity.

8,32,000 plus as of June 2022, is the approximate number of registered Wakf properties in WAMSI, this not include many properties transferred from Charity Commissioner as per Gazette notification and 1860 Land Alienation Records.
6+ lakh acres is the land Wakf properties accounted in WAMSI portal of Central Waqf Council (CWC), this makes the board the third-largest landholder after the railways and defense.

35 is the number of Wakf boards in India, many of them non-functional.

Section-9-(1) CWC has the power to monitor the State Waqf Boards on matters concerning the working of Boards and the due administration of Auqaf and issue directives to the Boards, on such issues and in such manner, as provided under sub-sections (4) particularly on their financial performance, survey, maintenance of waqf deeds, revenue records, encroachment of waqf properties, annual reports and audit reports and sub-section (5) dispute arising out of a directive issued by the CWC under sub-section (4) shall be referred to a Board of Adjudication.

Waqf Properties – Modus Operandi

Outright sale
• Builder or businessman identifies a Waqf property
• They approach members of the board
• The land is sold for a pittance
• Some Board members get their cut
Cheap rent
• Happens in states where outright sale is not encouraged
• Builder/ businessman approaches board members
• The land is given on a ridiculously low lease
• Land use is changed to facilitate commercial exploitation
• Some Members pocket their cuts
It is collectively the biggest scam in India’s history – no accountability

Public Servants

Survey Commissioner, Members, Officers and Staff of Waqf Board and Mutawallis are deemed to be PUBLIC SERVANTS under Section 101 of Waqf Act 1995-Amended.
Waqf Act 1995 Section 7-(6) Provides that whosoever being a PUBLIC SERVANT, fails in his lawful duty to prevent or remove an encroachment, shall on conviction be punishable with fine which may extend to fifteen thousand rupees for each offence.

As PUBLIC SERVANT ONE CAN BE PROCECUTED for failure in one’s lawful duty under Waqf Act 1995 Amended and under various Indian Penal Code Sections for dereliction of duty.