A person interested in a Waqf
Today most of the Waqf Boards in the State and Union Territories are mismanaged and misappropriated by Public Servants. The definition under Section 101 of Waqf Act, Public Servant means all stakeholders concerning Waqf, such as Survey Commissioner, Officers/Clerks/Members of the Board, and Mutawallis, are deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).
A Public Servant can be prosecuted for dereliction of duties under the provisions of the Waqf Act under Section 7-(6) in matters related to encroachment of Waqf properties.
Section 3-(k) Definition of a person interested in a Waqf, means any; a person who is entitled to receive any pecuniary or other benefits from the Waqf and who has a right to [offer prayer] or to perform any religious rite in a mosque, idgah, imambara, dargah [khanqah, peerkhana, and karbala] maqbara, graveyard or any other religious institution connected with the Waqf or to participate in any religious or charitable institution under the Waqf; the Waqif and any descendant of the Waqif and the mutawalli.
Any Indian Muslim, by definition, explained in section 3-(k), is a person interested in Waqf. Being a believing Muslim is not a passive act – it means actively upholding and protecting values such as justice and equality. In pursuit of justice, we must act and support good over the forces of evil, for the socio-economic betterment of the community and society at large.
“O ye who believe! stand out firmly for Allah, as witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next to piety: and fear Allah. For Allah is well-acquainted with all that ye do.” [Quran, 5:8] Translation by Yusuf Ali
A Muslim’s duty to act in defense of what is right is as much part of his faith as is his duty to oppose wrong. One or group of “persons interested in a Waqf” should act legally through the provisions of Waqf Act 1995-Amended-2013 to make Public Servants answerable and accountable, instead of complaining and waiting for winds of change to happen related to supervision, management, and administration of Auqaf.
Section 32-(3) Where the Board has settled any scheme of management under clause 32-(2d) or given any direction under clause 32-(2e), any person interested in the Waqf or affected by such settlement or direction may institute a suit in a Tribunal for setting aside such settlement or directions and the decision of the Tribunal thereon shall be final.
Comment: A person interested in the Waqf can approach Tribunal to set aside the Board Order. Provided if the Board approves a Scheme, the Clauses of which are against the provisions of Waqf Act, or appoints Mutawallis whose presence in the Waqf Institution may be detrimental to the function or purpose of Waqf institute for which it was created or the Mutawallis are known to have a criminal past or who are addicted to alcohol or drugs.
Section-53. Restriction on purchase of property on behalf of Waqf. – Notwithstanding anything contained in a Waqf deed, no immovable property shall be purchased for or on behalf of any Waqf from the funds of any Waqf except with the prior sanction of the Board, and the Board shall not accord such sanction unless it considers that the acquisition of such property is necessary or beneficial to the Waqf and that the price proposed to be paid therefore is adequate and reasonable:
Provided that before such sanction is accorded, the particulars relating to the proposed transaction shall be published in the Official Gazette inviting objections and suggestions with respect thereto and, the Board shall, after considering the objections and suggestions that may be received by it from mutawallis or other persons interested in the Waqf, make such orders as it may think fit.
Comment: The purpose of this section is to ensure that the revenue of Waqf is distributed as per the purpose and intent of the Waqf. Only a certain percentage of the revenue can be carried forwarded to next year or can be reinvested to create assets after the approval of the Board.
The determination of the objective and purpose of the Waqf depends on the intention of its founder; the most important of them is the spiritual reward and humanitarian missions, i.e., charity (Sadaqah Jariyah) such as assisting poor and the needy and the protection of heirs and their descendants from poverty and hardship.
Muslim economists and scholars have acknowledged that Waqf is an integral and vital part of the Islamic socio-economic system. Hence, it is essential to rectify the dominant prevailing perception that Waqf properties are meant only for religious purposes.
Waqf institutions should emulate, wherever possible, the approach taken by the Foundations in western societies, to improve their operations and increase their endowment resources. Waqf institutions should also consider widening the scope of their activities to include all other programs that have positive impacts on the livelihood of the society but do not go against the Shari’ah.
One of the missions of Waqf is to uplift the socio-economic status of society through education programs. It is achievable by Waqf scholarships towards enhancing the professional knowledge and skills and thus contributing to an enhanced rate of employment in the economy.
Under the ‘Pradhan Mantri Jan Vikas Karykram’ (PMJVK), the government also provides 100 percent financial assistance in case of use of Waqf Properties, for building schools, hospitals, medical colleges, skill centers, and other such establishments of public use.
Section-65. Assumption of direct management of certain Auqaf by the Board.- (1) Where no suitable person is available for appointment as a mutawalli of a Waqf, or where the Board is satisfied, for a reason to be recorded by it in writing, that the filling up of the vacancy in the office of a mutawalli is prejudicial to the interests of the Waqf, the Board may, by notification in the Official Gazette, assume direct management of the Waqf for such period or periods, not exceeding five years in the aggregate, as may be specified in the notification. Under sub-section (2) – The State Government, may, on its own motion or the application of any person interested in the Waqf, call for the records of any case to satisfy itself as to the correctness, legality, or propriety of the notification issued by the Board under sub-section (1) and pass such orders as it may think fit and the orders so made by the State shall be final and shall be published in the manner specified in sub-section (1). Under sub-section (3) after the close of every financial year, the Board shall send to the State Government a detailed report regarding every Waqf under its direct management, giving therein- (a) the details of the income of the Waqf for the year immediately preceding the year under report; (b) the steps taken to improve the management and income of the Waqf; (c) the period during which the Waqf has been under the direct management of the Board and explaining the reasons as to why it has not been possible to entrust the management of the Waqf to the mutawalli or any committee of management during the year; and (d) such other matters as may be prescribed. Under sub-section (4), the State Government shall examine the report submitted to it under subsection (3), and after such examination issue such directions or instructions to the Board as it may think fit, and the Board shall comply with such directions or instructions on receipt thereof. Under sub-section (5) of Section 65 Notwithstanding anything contained in sub-section (1), the Board shall take over the administration of a waqf, if the Waqf Board has evidence before it to prove that management of the waqf has contravened the provisions of this Act.
Comment: The Waqf Board can take direct management of the Waqf under certain conditions as stated above, and only for a maximum of five years. A person interested in a Waqf has a right to ask for the financial as well as to the conformity of the purpose for which the Waqf was created.
There are hundreds and thousands of Waqf Properties under the direct administration of Waqf Boards in different States, not being utilized for the benefit of the community.
A person interested in a Waqf has the following options:
- Frame a scheme to develop the Waqf Property as explained below under Section-69; or
- Approach the State Government with your detailed plans, project report, as to how you can develop the Waqf Property, which will benefit the community and the society at large, and also bring in much-needed revenue to State Waqf Board as Waqf contribution, and to Government as Taxes; you can lease the property up to 30 years for commercial activities with the permission of the State Government under Section 56-(1), or go into Joint venture with the Waqf Institute with a financer of the project with the permission of the State Government. Please note under Joint Venture the Waqf properties cannot be mortgaged or transferred as per provision under Section 104A. [(1) Notwithstanding anything contained in this Act or any other law for the time being in force or any waqf deed, no person shall sell, gift, exchange, mortgage or transfer any movable or immovable property which is a waqf property to any other person. (2) Any sale, gift, exchange, mortgage or transfer of property referred to in sub-section (1) shall be void ab initio.]; or
- As most of the properties under Waqf Board are for more than the specified time in the Section-65, which is a violation of the provisions of this Act, you can approach the Waqf Tribunal seeking direction to the Waqf Board for the development of Waqf Properties as per provision under section 32-(4), 32-(5) and 32-(6); or
- Approach the Central Waqf Council under Section 9-(4): [The State Government or, as the case may be, the Board, shall furnish information to the Council on the performance of Waqf Boards in the State, particularly on their financial performance, survey, maintenance of waqf deeds, revenue records, encroachment of waqf properties, annual reports and audit reports in the manner and time as may be specified by the Council and it may suo motu call for information on specific issues from the Board, if it is satisfied that there was prima facie evidence of irregularity or violation of the provisions of this Act and if the Council is satisfied that such irregularity or violation of the Act is established, it may issue such directive, as considered appropriate, which shall be complied with by the concerned Board under intimation to the concerned State Government.]
- Finally, as a last resort, file a PIL in the High Court seeking direction to the State Government on the compliance of the provisions of Section 65-(3).
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, to frame a scheme for the proper administration of the waqf, it may, by an order, frame such scheme for the administration of the waqf, after giving reasonable opportunity and after consultation with the mutawalli or others in the prescribed manner. (2) A scheme framed under sub-section (1) may provide the removal of the mutawalli of the Waqf holding office as such immediately before the date on which the scheme comes into force: Provided that where any such scheme provides for the removal of any hereditary mutawalli, the scheme shall also provide for the appointment of the person next in a hereditary succession of the mutawalli so removed, as one of the members of the committee appointed for the proper administration of the Waqf. (3) Every order made under sub-section (2) shall be published in the prescribed manner, and, on such publication shall be final and binding on the mutawalli and all persons interested in the Waqf.
Section 70 Inquiry relating to the administration of Waqf – Any person interested in a Waqf may make an application to the Board supported by an affidavit to institute an inquiry relating to the administration of the Waqf and if the Board is satisfied that there are reasonable grounds for believing that the affairs of the Waqf are being mismanaged, it shall take such action thereon as it thinks fit.
Section 83-(2) Any mutawalli or person interested in a Waqf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the Waqf. (3) Where any application made under sub-section (1) relates to any Waqf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction of the mutawalli or any one of the mutawallis of the Waqf actually and voluntarily resides, carries on business or personally works for gain, and where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter: Provided that the State Government may, if it is of opinion that it is expedient in the interest of the Waqf or any other person interested in the Waqf or the Waqf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such Waqf or Waqf property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh.
Comment: Under the provision of Section 107. “Act 36 of 1963 not to apply for recovery of Waqf properties. Nothing contained in the Limitation Act, 1963 shall apply to any suit for possession of immovable property comprised in any Waqf or for possession of any interest in such property.”
Section 94. Power to make application to the Tribunal in case of failure of mutawalli to discharge his duties. (1) Where a Mutawalli is under an obligation to perform any act which is recognized by Muslim law as pious, religious, or charitable and the Mutawalli fails to perform such act, the Board may apply to the Tribunal for an order directing the Mutawalli to pay to the Board or any person authorized by the Board in this behalf the amount necessary for the performance of such act. (2) Where a Mutawalli is under an obligation to discharge any other duties imposed on him under the Waqf and the Mutawalli wilfully fails to discharge such duties, the Board or any person interested in the Waqf may make an application to the Tribunal and the Tribunal may pass such order thereon as it thinks fit.
Comment: Please note the word “charitable” in Section 94 above. Apart from the pious and religious act required to be performed as per the wishes of Waqif, the purpose of the Waqf is as defined “charitable”. The concept of Waqf in Shariah is regarded as an empirical embodiment of philanthropic and charitable deeds.
A person aggrieved can approach Tribunal to ensure the compliance of the purpose and intend for which Waqf are created.
Our mission at Waqf Liaison Forum is to inspire, inform and empower the community to reclaim their Waqf narrative, by providing a platform to share their experiences and plan strategies to recover and develop Waqf properties.
Next Waqf Awareness Series: “Waqf Properties and Tribunals”
Compiled and authored by: M Farid Tungekar
Director-Waqf Liaison Forum
