Waqf Properties and Tribunals – the Waqf Act 1995-Amended
Waqf Act 1995 defines Waqf as “The permanent dedication by any person, of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable, and includes, a Waqf by the user, by any name indicative as Waqf in revenue records, by grants (Innam) including Mashrat-ul-Khidmat, and “Family Waqf” to the extent to which the property is dedicated for any purpose recognized by Muslim law as pious, religious or charitable (Sadaqah)”.
In Sayyed Ali and Ors. verses Andhra Pradesh Waqf Board and Ors., in an appeal against HC judgment of Andhra Pradesh in the matter related to Sayed Ali Ishaq Madani Vali Dargah having about Ac. 358-53 cts. land in Devada Mokhasa village covered by title Deed No. 42. It was alleged by the Waqf Board that the aforesaid property was endowed by the Nizam of Hyderabad for support and the services of the Dargah in the port area of district Visakhapatnam. The Supreme Court in a landmark judgment in 1998; -” It may be stated that a Waqf is a permanent dedication of property for purposes recognized by Muslim law as pious religious or charitable and the property having been found as Waqf would always retain its character as a Waqf. In other words, once a Waqf always a Waqf and the grant of patta in favor of Mokhasadar under the Inaam’s Act does not, in any manner, nullify the earlier dedication made of the property constituting the same as Waqf. After a Waqf had been created, it continues to be so for all time to come and further continues to be governed by the provisions of the Waqf Act.
The institution of Waqf in Islam is a voluntary contribution the aim of which is to finance a variety of projects that enable the Muslim community to alleviate poverty, improve the quality of life, increase productivity, and promote knowledge and understanding. From a development perspective, Auqaf stimulates economic activities through voluntary expenditures which contribute to job creation and entrepreneurship.
The development of Auqaf institutions is due to the need and the demand from Muslim communities. In short, the motivation behind Auqaf is to give repeating philanthropy that creates consistent income flow to the poor. Waqf Properties are a treasure trove bestowed on the community that can benefit to the community and society at large.
A person interested in a Waqf, as defined by section 3 of the Act, is in a hibernation state. The general attitude and his thought process are in a dormant state, he fails to take the initiative in contributing to bring about the change, with the help of the Act. This thought process needs to change, and it is the moral duty of a person interested in a Waqf to be a real Custodian, Protector, and Helper in matters of Waqf, within the ambit of the Act.
The Waqf Act is very robust legislation, though there may be some contradictions and shortfalls, in general, it is excellent legislation. The duties and obligations of all officers/stakeholders are well defined. There are penalties for violation of the Act and deliration of duties, as the officers/stakeholders are deemed to be public servants.
“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.” [Quran, 4:135 Translation by Maududi.
The Holy Quran teaches us you cannot be a bystander when you are a witness to injustice. You will be answerable for your response to Almighty Allah. So do what needs to be done, within the ambit of law, and leave the outcome to Allah. Islamic accountability recognises that human beings are accountable primarily to Allah and secondarily to the Ummah for efficient management of properties entrusted to them. Waqf estates are donated by Waqif and are managed by mutawallis.
First, we will understand what the Act covers related to Waqf properties and Tribunals, and if there is a violation, the Board through the CEO and other governmental authorities has all the powers to recover the Waqf properties. If the Board is unaware of violation of the Act, then “A person interested in a Waqf” needs to bring to the attention of the Board, CWC (Central Waqf Council), the Principal Secretary of Minority department, and diligently follow up until its resolution, before seeking justice from the Tribunal, or High Court or Supreme Court.
Sections in the Act concerning “Waqf Properties and Tribunals”, refer to Act to read the full corresponding sections stated below.
Section 3 Definitions (ee) (inserted by Act 27 of 2013) encroacher means any person or institution, public or private, occupying Waqf property, in whole or part, without the authority of law and includes a person whose tenancy, lease, or license has expired or has been terminated by mutawalli or the Board; (i) Mutawalli any person, committee or corporation for the time being managing or administering any Waqf or Waqf property.
Section 6. Disputes regarding Auqaf. – (1) If any question arises whether a particular property specified as Waqf property in the list of Auqaf is Waqf property or not or whether a Waqf specified is a Shia Waqf or Sunni Waqf, the Board or the mutawalli of the Waqf or [any person aggrieved] may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of Auqaf. (2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any Waqf shall be stayed by reason only of the pendency of any such suit or any appeal or other proceeding arising out of such suit. (3) The Survey Commissioner shall not be made a party to any suit under subsection (1) and no suit, prosecution, or other legal proceedings shall lie against him in respect of anything which is in good faith done intended to be done in pursuance of this Act or any rules made in thereunder. (4) The list of Waqf shall unless it is modified in pursuance of a decision of the Tribunal under sub-section (1), be final and conclusive. (5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court in that State concerning any question referred to in sub-section (1).
Comment: Section 107 super cedes the expiry of one year in the above subsection (1). Section 6 of the Limitation Act does not apply in matters of Waqf. Article 136 of the Limitation Act, 1963 prescribed the period of limitation for executing the degree, other than a decree of injunction, like 12 years, but the provision of Section-107 of Waqf Act, 1995 barred the provision of application of Limitation Act,1963. The provisions of Section 107 prevent Waqf Property under a plea of adverse possession
Section 7. Power of Tribunal to determine disputes regarding Auqaf. – The Tribunal has jurisdiction to decide regarding any question related to Waqf property even after the commencement of this Act, and publication of the list of Auqaf. [Again, Limitation Act does not apply in matters of Waqf.] (2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under the section in respect of any Waqf shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceedings. Sub-section (3) The Chief Executive Officer shall not be made a party to any application under sub-section (1). Sub-section (4) The list of Auqaf and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final. (5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of section 6, before the commencement of this Act or which is
the subject matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding, or appeal, as the case may be. Sub-section (6) The Tribunal shall have the powers of assessment of damages by the unauthorized occupation of Waqf property and to penalize such unauthorized occupants for their illegal occupation of the Waqf property and to recover the damages as arrears of land revenue through the Collector:
Provided that whosoever, being a public servant, fails in his lawful duty to prevent or remove an encroachment, shall on conviction be punishable with a fine which may extend to fifteen thousand rupees for each such offense.
Comment: A bare reading of Sections 6 and 7 extracted above, shows that the language employed therein appears to have deflected the attention of many a court without exception. A careful look at the scheme of the Act would show that the Act is divided into 9 chapters. Chapter II which contains Sections 4 to 8, is primarily concerned with the survey of Waqfs. Sections 6 and 7 are incidental to the scheme of Chapter II alone, which is why they speak only about two questions namely, (i) whether a particular property specified as a Waqf property in the list of Waqfs is a Waqf property or not; and (ii) whether a Waqf specified in such list is a Shia Waqf or Sunni Waqf. While Section 4 contemplates a preliminary survey of all Waqfs in the State, Section 5(2) speaks about the publication of the list of Waqfs (separately for Shia and Sunni) in the official gazette. Since Sections 6 and 7 follow Sections 4 and 5, they refer only to the aforesaid two questions. In other words, the questions relevant for Sections 4 and 5 alone, are dealt with in Sections 6 and 7, and hence the discussion regarding the jurisdiction of the Waqf Tribunal should not start and end with Sections 6 and 7.
Under Section 101. (1) The Survey Commissioner, members of the Board, every officer, every auditor of the Board, and every other person duly appointed to discharge any duties imposed on him by this Act or any rule or order made thereunder, shall be deemed to be public servants within the meaning of section 21 of Indian Penal Code (45 of 1860). (2) Every mutawalli of a Waqf, every member of the managing committee, whether constituted by the Board or under any deed of Waqf, every Executive Officer, and every person holding any office in a Waqf shall also be deemed to be a public servant.
Part of Section 16. Disqualification for being appointed, or for continuing as, a member of the Board – sub-section (da) (inserted by Act 27 of 2013) he has been held guilty of encroachment on any Waqf property.
Part of Section 32. Powers and functions of the Board: Sub-section (l) to call for such returns, statistics, accounts and other information from the mutawallis concerning the Waqf property as the Board may, from time to time, require; Sub-section (m) to inspect, or cause an inspection of, Waqf properties, accounts, records or deeds and documents relating thereto; Sub-section (n) to investigate and determine the nature and extend of Waqf and Waqf property, and to cause, whenever necessary, a survey of such Waqf property. Under sub-section (4), (5), and (6) The Board to ask mutawalli to develop potential Waqf property, if mutawalli is unable to do so, the Board on its own shall develop the Waqf property and after all, expenses have been recouped, the Board to hand over the developed Waqf property to the mutawalli.
Section 33. Powers of inspection by Chief Executive Officer or persons authorized by him.- To examine whether, because of any failure or negligence on the part of a mutawalli in the performance of his executive or administrative duties, any loss or damage has been caused to any Waqf or Waqf property, the Chief Executive Officer [or any other person authorized by him in writing] with the prior approval of the Board, may inspect all movable and immovable properties, which are Waqf properties, and all records, correspondences, plans, accounts and other documents relating thereto. Any person aggrieved by the order may approach Tribunal and the Order of the Tribunal shall be final.
Part of Section 36: Registration- Sub-section (7) On receipt of an application for registration, the Board may, before the registration of the Waqf make such inquiries as it thinks fit in respect of the genuineness and validity of the application and correctness of any particulars therein and when the application is made by any person other than the person administering the Waqf property, the Board shall, before registering the Waqf, give notice of the application to the person administering the Waqf property and shall hear him if he desires to be heard.
Section 39. Powers of Board concerning Auqaf which have ceased to exist. – After receipt of an inquiry by the CEO, the Board is satisfied that the Waqf has ceased to exist, the Board shall direct that any property or funds about such Waqf which has been recovered shall be applied or utilized for the renovation of any Waqf property and where there is no need for making any such renovation or where utilization of the funds for such renovation is not possible, be appropriated, to any of the purposes specified in sub-clause (iii) of clause (e) of sub-section (2) of section 32.
Comment: Surplus funds to be applied for Waqf or to a similar objective of a Waqf.
Section 40: Decision if a property is Waqf property. – The Board may itself collect information regarding any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the societies Registration Act, 1860 (21 of 1860) or under any other Act, is Waqf property which it has reason to believe to be Waqf property and whether a Waqf is a Sunni Waqf or a Shia Waqf it may, after making such inquiry as it may deem fit, and pass order unless it is revoked or modified by the Tribunal. Provided that in all such cases, a notice of the action proposed to be taken under this subsection shall be given to the authority by whom the trust or society had been registered,
Section 51: Lease of any immovable property which is Waqf property, shall be void unless such lease is affected with the prior sanction of the Board.
Section 51-(IA) (inserted by Act 27 of 2013) Any sale, gift, exchange, mortgage, or transfer of Waqf Property shall be void ab initio:
The Board by a majority of two-thirds take-up development of Waqf property through such agency and in such manner as the Board may determine.
Any acquisition of Waqf properties for a public purpose under the Land Acquisition Act, 1894 or any other law relating to the acquisition of land needs to be made in consultation with the Board:
Provided also that it shall not be in contravention of the Places of Public Worship (Special Provisions) Act, 1991; the land is being acquired shall be undisputedly for a public purpose; no alternative land is available; and to safeguard adequately the interest and objective of the Waqf, the compensation shall be at the prevailing market value or a suitable land with reasonable solatium instead of the acquired property.
Section 52 Any immovable property of a Waqf registered under Section 36, has been transferred without the previous sanction of the Board in contravention of the provisions of section 51, [or section 56] the Board may send a requisition to the Collector within whose jurisdiction the property is situated to obtain and deliver possession of the property to the Board.
The Collector shall pass an order directing the person in possession of the property to deliver the property to the Board within thirty days from the date of the service of the order.
Any person aggrieved by Collector may, within thirty days from the date of the service of the order, appeal to the Tribunal and the decision of the Tribunal on such appeal shall be final. If the time for appeal has passed, Collector shall obtain possession of the property in respect of which the order has been made, using such force, if any, as may be necessary for the purpose and deliver it to the Board.
Section 52A. (inserted by Act 27 of 2013) Whoever alienates or purchases or takes possession of, in any manner whatsoever, either permanently or temporarily, any movable or immovable property being a Waqf property, without prior sanction of the Board, shall be punishable with rigorous imprisonment for a term which may extend to two years: Provided that the Waqf property so alienated shall without prejudice to the provisions of any law for the time being in force, be vested in the Board without any compensation therefor.
An offense punishable under this section shall be cognizable and non-bailable. Only the Board or any officer duly authorized by the State Government can file a complaint to the Court.
Comment: FIR can only be filed by the Board or person authorized by the State Government. “Person interested in Waqf” has no legal grounds to file an FIR. Prior sanction of the Board to alienate Waqf property is contrary to Section 104A.
Section 53– Restriction on purchase of property on behalf of Waqf: Except if mentioned 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.
Before sanction, the Board shall do due diligence, consider any objections and suggestions from mutawallis or other persons interested in the Waqf, and make such orders as it may think fit.
Section 54. Removal of encroachment from Waqf property. – (1) The CEO on his motion or a complaint received determines that a Waqf Property which is registered as Waqf under this Act has encroached. The CEO shall send notice to the encroacher with details of encroached properties and ask the encroacher to remove encroachment before a certain date with a copy to the concerned Mutawalli.
The CEO during the period of notice will conduct an inquiry to be satisfied that the Waqf property in question has encroached, will then make an application to the Tribunal for grant of Order for eviction and take possession and deliver the encroached property to the concerned Mutawalli. The Tribunal may before passing the Order for eviction give the encroacher an opportunity of being heard. If the encroacher refuses to comply with the Order, then the CEO or person authorized by CEO will evict the encroacher and take possession of the Waqf property.
Section 55. Enforcement of orders made under section 54.- Where the person, ordered under section 54 to remove any encroachment, omits or fails to remove such encroachment, within the time specified in the order or, as the case may be, fails to vacate the Waqf property to which the order relates, within the time aforesaid, the CEO may refer the order of the Tribunal to the Executive Magistrate within the local limits of whose jurisdiction the Waqf property is situated for evicting the encroacher, and, thereupon, such magistrate shall make an order directing the encroacher to remove the encroachment, or, as the case may be, vacate the Waqf property and to deliver possession thereof to the concerned mutawalli and in default of compliance Executive Magistrate order, may take such police assistance as may be necessary
Section 55A. (inserted by Act 27 of 2013) Disposal of property left on Waqf property by unauthorized occupancy: Where any person has been evicted from any Waqf property under section 54, the CEO may, after giving fourteen days’ notice to the person from whom the possession of the Waqf property has been taken and after publishing the notice in at least one newspaper having circulation in the locality and after proclaiming the contents of the notice by placing it on a conspicuous part of the Waqf property, remove or cause to be removed or disposed of by public auction any property remaining on such premises.
The CEO shall disburse the balance amount remaining after deduction of expenses, taxes, dues, etc., to such person as decided by the CEO. If the CEO is unable to decide to whom the balance is to be paid, he may refer such dispute to the Tribunal and the decision of the Tribunal thereon shall be final.
Section 56. Restriction on power to grant a lease of Waqf property. – Notwithstanding anything contained in the deed or instrument of Waqf or in any other law for the time being in force.
A lease for any period exceeding thirty years of any immovable property which is Waqf property shall be void and of no effect.
A lease for any period up to thirty years may be made for commercial activities, education, or health purposes, with the approval of the State Government, (not by the prior sanction of the Waqf Board) for such period and purposes as may be specified in the rules made by the Central Government: (Refer to Section 96 and 97)
Agricultural land lease of Waqf property, which is for a period exceeding three years shall be void and of no effect:
Provided also that before making lease of any Waqf property, the Board shall publish the details of the lease and invite bids in at least one leading national and regional newspaper.;
A lease for one year but not exceeding thirty years of immovable property which is Waqf property shall be void and of no effect, unless it is made with the previous sanction of the Board.
The Board shall, in granting sanction for lease or thereof under this section review the terms and conditions on which the lease is proposed to be granted or renewed and make its approval subject to the revision of such terms and conditions in such manner as it may direct.
Provided that the Board shall immediately intimate the State Government regarding a lease for any period exceeding three years of any Waqf property and thereafter it may become effective after the expiry of forty-five days from the date on which the Board intimates the State Government.
Section 57: Mutawalli is entitled to pay certain costs from the income of Waqf property. – Notwithstanding anything contained in the Waqf deed, every mutawalli may pay from the income of the Waqf property any expenses properly incurred by him to enable him to furnish any particulars, documents or copies under section 36 or any accounts under section 46 or any information or documents required by the Board or to enable him to carry out the directions of the Board.
Section 58: Power of Board to pay dues in case of default by mutawalli. – (1) Where a mutawalli refuses to pay or fails to pay any revenue, cess, rates, or taxes due to the Government or any local authority, the Board may discharge dues from the Waqf Fund and may recover the amount so paid from the Waqf property and may also recover damages not exceeding twelve and a half percent. of the amount so paid. (2) Any sum of money due under sub-section (1) may, on a certificate issued by the Board after giving the mutawalli concerned an opportunity of being heard, be recovered in the same manner as an arrear of land revenue.
Section 59: Creation of reserve fund. – To make provisions for the payment of rent and revenue, cess, rates, and taxes due to the Government or any local authority, for the discharge of the expenses of the repair of the Waqf property and the preservation of the Waqf property, the Board may direct the creation and maintenance, in such manner as it may think fit, of a reserve fund from the income of a Waqf.
Part of Section 61: Penalties. – (1) If a mutawalli fails to- (d) allow inspection of Waqf properties, accounts, records or deeds and documents relating thereto;
Part of Section 64: Removal of mutawalli. Notwithstanding anything contained in any other law or the deed of Waqf, the Board may remove a mutawalli from his office if such mutawalli- if mutawalli is misappropriating funds from lease or contract or repairs of Waqf property or is in arrears in respect to any sum due by him to Waqf or commits dereliction of duties or commits any misfeasance, malfeasance misapplication of funds or breach of trust concerning the Waqf or in respect of any money or other Waqf property. The personal rights of mutawalli removed will not be affected in respect to Waqf Property as a beneficiary or any other capacity. The Board before taking any action will hold an inquiry and pass a resolution with a two-thirds majority. Within one month of mutawalli removal, he can approach the Tribunal. During the period the case is in Tribunal the Board can suspend the mutawalli for ten days after allowing mutawalli to be heard. The Board may make an application to the Tribunal to appoint a receiver for the Waqf property, and the Tribunal shall appoint a suitable person to ensure the purpose of Waqf is not hindered, until the disposal of the suit. The Board shall direct the removed mutawalli to deliver possession of Waqf property to any person or committee appointed by the Board. Mutawalli removed under this section is not eligible for re-appointment as a mutawalli of that Waqf for five years from the date of such removal.
Section 68: Duty of mutawalli or committee to deliver possession of records, etc.- The Board shall direct the removed mutawalli or committee to deliver possession of the records, accounts, and all the Waqf properties (including cash) to the successor mutawalli of the successor committee, within one month from the date specified in the order. If the mutawalli or committee fails to implement the Board order then successor mutawalli or committee shall approach the District Magistrate or Additional Magistrate or sub-divisional Magistrate to implement the Board order, within such time as may be specified in the order. If the mutawalli or committee or any member of the committee fails to act upon the Magistrate order, then they shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to eight thousand rupees, or
with both.
Section 72: Annual contribution payable to Board.- sub-section (4) The contribution payable under sub-section (1) in respect of a Waqf shall, subject to the prior payment of any dues to the Government or any local authority or of any other statutory first charge on the Waqf property or the income thereof, be a first charge on the income of the Waqf and shall be recoverable, on a certificate issued by the Board after giving the mutawalli concerned an opportunity of being heard, as an arrear of land revenue.
Section 76: Mutawalli not to lend or borrow money without sanction. No mutawalli, Executive Officer, or another person in charge of the administration of a Waqf shall lend any money belonging to the Waqf or any Waqf property or borrow any money for the Waqf except with the previous sanction of the Board with terms and conditions; unless there is an express provision in the deed of Waqf. Where any money is lent or borrowed, or another Waqf property is lent in contravention of the provisions of this section, the CEO shall recover the amount or possession of the Waqf property from persons who claim title to such property through the person to whom such property was lent.
Part of Section 83: Constitution of Tribunals, etc.- (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a Waqf or Waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals.
Comment: It is relevant to note at this stage that the words “eviction of tenant or determination of rights and obligations of the lessor and the lessee of such property” were inserted in subsection (1) of Section 83, after the words “Waqf property”, by Amendment Act 27 of 2013.
Section 84: Tribunal to hold proceedings expeditiously and to furnish to the parties’ copies of its decision. – Whenever an application is made to a Tribunal for the determination of any dispute, question, or other matter relating to a Waqf or Waqf property it shall hold its proceedings as expeditiously as possible and shall as soon as practicable, on the conclusion of the hearing of such matter give its decision in writing and furnish a copy of such decision to each of the parties to the dispute.
Section 85: Bar of jurisdiction of civil courts. – No suit or other legal proceeding shall lie in any civil court, revenue court, and other authority in respect of any dispute, question, or other matter relating to any Waqf, Waqf property, or other matter which is required by or under this Act to be determined by a Tribunal.
Comment: Similarly, the words, “civil court” were substituted by the words “civil court, revenue court, and other authority”, in Section 85, by Amendment Act 27 of 2013.
Section 86 Appointment of a receiver in certain cases. Notwithstanding anything contained in the Code of Civil Procedure, 1908(5 of 1908), or in any other law for the time being in force, where any suit or other legal proceeding is instituted or commenced- by or on behalf of a Board-to set aside the sale or transfer of any immovable property, which is Waqf property, in execution of a decree or order of a civil court; made by the mutawalli thereof, whether for valuable consideration or not, without or otherwise than in accordance with, the sanction of the Board; to recover and restore possession of such property to the mutawalli of the concerned Waqf; or by a mutawalli to recover possession of immovable property, which is Waqf property, which has been transferred by a previous mutawalli, [or by any other person] whether for valuable consideration or not, without otherwise than in accordance with the sanction of the Board, and which is in the possession of the defendant, the court may, on the application of the plaintiff, appoint a receiver of such property and direct such receiver to pay from time to time to the plaintiff, out of the income of the property, such amount as the court may consider to be necessary for further prosecution of the suit.
Comment: Section 86 thus recognizes the right of the Board to institute or commence any suit or other legal proceeding, (i) to set aside the sale of a Waqf property in execution of a decree of a civil court; (ii) to set aside the transfer of any Waqf property made by the mutawalli, without the sanction of the Board or otherwise than under the sanction of the Board; and (iii) to recover and restore possession of such property to the mutawalli. Clause (b) of Section 86 recognizes a similar right for the mutawalli to recover possession of Waqf property, which has been transferred by the previous mutawalli or any other person without the sanction of the Board.
It is therefore clear from Section 86, that in suits or other proceedings instituted by the Board falling under clause (a) or those instituted by the mutawalli falling under clause (b) of Section 86, the civil court will have jurisdiction to appoint a receiver. As a corollary, the bar under Section 85 will have no application to cases covered by Section 86.
Apart from the bar of jurisdiction of civil courts under Section 85, the Act envisages yet another bar under Section 88. Section 88 excludes the jurisdiction of a civil court to entertain a challenge to any notification or order or decision made, proceeding, or action taken by the Central Government or the State Government under the Act.
Section 88 reads as follows: “Bar to challenge the validity of any notification, etc.— Save as otherwise expressly provided in this Act, no notification or order or decision made, proceeding or action taken, by the Central Government or the State Government under this Act or any rule made thereunder shall be questioned in any civil court.”
Section 89 of the Waqf Act, 1995 contains a rule similar to Section 80 CPC, in respect of suits instituted against the Board. Interestingly, Section 90 which regulates the procedure for the issue of notice of suits, refers both to courts and tribunals. It reads as follows:
Section 90: Notice of suits, etc., by courts. – (1) In every suit or proceeding relating to a title to or possession of Waqf property or the right of a Mutawalli or beneficiary, the court or Tribunal shall issue notice to the Board at the cost of the party instituting such suit or proceeding. (2) Whenever any Waqf property is notified for sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates, or taxes due to the Government or any local authority, notice shall be given to the Board by the court, Collector or another person under whose order the sale is notified. (3) In the absence of a notice under sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within [six months] of its coming to know of such suit or proceeding, applies to the court in this behalf. (4) In the absence of a notice under sub-section (2), the sale shall be declared void, if the Board, within one month of its coming to know of the sale, applies in this behalf to the court or other authority under whose order the sale was held.
Comment: It is seen from subsection (1) of Section 90 that it uses the words, “the court or Tribunal” and it refers to suit or proceeding relating to title or possession of a Waqf property or the right of the mutawalli or beneficiary.
Section 91: Proceedings under Act 1 of 1894.- (1) If, in the course of proceedings under the Land Acquisition Act, 1894 or under any law for the time being in force relating to the acquisition of land or other property, [and before an award is made, in case the property] under acquisition is Waqf property, a notice of such acquisition shall be served by Collector on the Board and further proceedings shall be stayed to enable the Board to appear and plead as a party to the proceeding at any time within three months from the date of the receipt of such notice.
Section 92: Board to be a party to suit or proceeding. – In any suit or proceeding in respect of a Waqf or any Waqf property the Board may appear and plead as a party to the suit or proceeding.
Section 93. Bar to compromise of suits by or against mutawallis. —”No suit or proceeding in any court by or against the mutawalli of a Waqf relating to title to Waqf property or the rights of the mutawalli shall be compromised without the sanction of the Board.”
Comment: A cumulative reading of Sections 86, 89, and 90 would show that the bar of jurisdiction under Section 85 is not total and omnipotent and that there may be cases that could still be entertained by civil courts. Section 93 which prohibits the mutawalli from entering into a compromise with the opposite party in any suit, also refers to “court”.
We have seen elsewhere that Section 83(2) specifically enables, (i) any mutawalli; (ii) any person interested in a Waqf; and (iii) any other person aggrieved by an order made under the Act, to invoke the jurisdiction of the Tribunal for the determination of any dispute, question or other matter relating to the Waqf. Section 83(2) does not make any reference to the Waqf Board. However, Section 94(1) enables the Board to apply to the Tribunal, for appropriate orders, whenever a mutawalli fails to perform an act recognized by Muslim Law as pious, religious, and charitable. Under Section 61 of the 1954 Act, such an application can be made by the Board only to the court, but now it can be made to the Tribunal under Section 94(1).
Given the language employed in Sections 83 and 85, coupled with the reference to civil courts in Sections 86, 90, and 93, it appears that the question of the bar of jurisdiction of the civil court, has been left by the lawmakers to the vagaries of judicial opinion and this has given rise to conflicting decisions.
Sections 83 and 85, as well as Sections, 86, 90, and 93, which use the word “court”, are to be found in Chapter VIII of the Act. The heading given to Chapter VIII is “Judicial Proceedings”. Therefore, for finding an answer to the question relating to the bar of jurisdiction under Section 85, it is not enough merely to refer to Sections 6(5) or 7(2). The language of Section 85 is clearly in contrast to the language employed in Section 6(5) and Section 7(2).
A conjoint reading of Sections 6, 7, and 85 would show that the bar of jurisdiction of the civil court contained in Section 6(5) and Section 7(2) is confined to Chapter II, but the bar of jurisdiction under Section 85 is all-pervasive. This can be seen from the following distinguishing features:
(i) Section 6(5) bars the institution or commencement of a suit or other legal proceeding in a court “concerning any question referred to in subsection (1)”. Subsection (1) of Section 6 speaks only about two questions namely, whether a particular property specified as a Waqf property in the list of Waqfs is a Waqf property or not and whether a Waqf is Shia Waqf or Sunni Waqf;
(ii) Section 7(2) bars any court, tribunal, or other authority from staying any proceeding before the Waqf Tribunal, in respect of a Waqf, on the only ground of pendency of any suit, application or appeal or another proceeding. Section 7(2) specifically relates to the proceedings under Section 7 and not to any other proceeding. This is clear by the use of the words, “no proceeding under this Section”. Section 7(1) again deals only with two questions namely, whether a particular property specified as Waqf property in the list of Waqfs is a Waqf property or not and whether a Waqf specified in the list is a Shia Waqf or Sunni Waqf. Therefore, the bar under Section 7(2) is also confined only to these two questions, on account of the use of the words, “no proceeding under this Section”.
(iii) While Sections 6(1) and 7(1) speak only about two questions which are germane to the matters covered by Chapter II of the Act alone, Section 85 speaks (i) about any dispute, question, or other matter relating to any Waqf or Waqf property and (ii) about “other matter which is required by or under this Act to be determined by a Tribunal”.
(iv) A major distinguishing feature between Sections 6(1) and 7 (1) on the one hand and Section 83, on the other hand, is that the dispute, question, or other matter referred to in Sections 6 and 7 are confined only to what is included in the list of Waqfs prepared under Section 4 and published under Section 5. The words “specified … in the list of Waqfs” found in sections 6 (1) and 7(1), are conspicuous by their absence in section 83 (1). Therefore, it is clear that Sections 6 and 7 speak only about two categories of cases, but Section 83 covers the entire gamut of possible disputes concerning any Waqf or Waqf property.
It is seen that there are 2 limbs to Section 85. The words, “any dispute, question or other matter relating to any Waqf or Waqf property” used in the first limb of Section 85, provide a clear indication that the Tribunal would have jurisdiction to adjudicate upon any dispute and answer any question relating to a Waqf or Waqf property, including the two questions mentioned in Sections 6(1) and 7(1). The words in the second limb of Section 85 namely, “other matter which is required by or under this Act to be determined by a Tribunal”, seek to cover matters which have no relevance to the two questions covered by Section 6(1) and 7(1).
Unfortunately, many courts were misled by the reference to two specific questions in Sections 6(1) and 7(1), to conclude that the bar of jurisdiction was confined only to disputes revolving around those two questions.
Interestingly, the basis of the decision in Ramesh Gobindram was removed through an amendment under Act 27 of 2013. As we have stated elsewhere, Ramesh Gobindram sought to address the question of whether a Waqf Tribunal was competent to entertain and adjudicate upon disputes regarding eviction of persons in occupation of what are admittedly Waqf properties. Since this Court answered the question in the negative, Section 83(1) was amended by Act 27 of 2013 to include the words, “eviction of tenant or determination of rights and obligations of the lessor and lessee of such property”.
Simultaneously, subsection (6) was inserted in Section 7 by Act 27 of 2013. This subsection (6) of Section 7 states that the Tribunal shall have the power of assessment of damages by the unauthorized occupation of Waqf property and to penalize such unauthorized occupants for their illegal occupation of the Waqf property and to recover the damages as arrears of land revenue through the Collector.
Section 6(1) clarified that the expression “any person interested therein” shall include every person, who, though not interested in the waqf, is interested in the property. But by Act 27 of 2013 the words, “any person interested” were substituted by the words, “any person aggrieved”, meaning thereby that even a non-Muslim is entitled to invoke the jurisdiction of the Tribunal.
The words in the second limb of Section 85 namely, “other matter which is required by or under this Act to be determined by a Tribunal”. This is for reason that the second limb of Section 85, as we have seen earlier, bars the jurisdiction of any Civil Court, Revenue Court, and any other authority, in respect of any dispute, question, or other matter which is required by or under this Act to be determined by the Tribunal. The various provisions of the Act which make a reference to the Tribunal and the subject matter concerning which such a reference is made are as stated below:
Section 32(3): Wherever the Waqf Board has settled any scheme of management or issued a direction, any person interested in the waqf or affected by the settlement of a scheme or directions may institute a suit before the Tribunal.
Section 33(4): A mutawalli or other person aggrieved by an order passed by the Chief Executive Officer under Section 33(3) directing such person to make payment of any amount misappropriated, misapplied, or fraudulently retained and to restore the property of the waqf, may appeal to the Tribunal.
Section 35(1): The Tribunal is conferred with the power to order conditional attachment of any property, which, a mutawalli or any other person is likely to dispose of with intent to delay or defeat the execution of any order passed under Section 33.
Section 38(7): Any Executive Officer or a member of the staff who is aggrieved by an order of removal or dismissal passed by the Waqf Board under Section 38(6) has a right of appeal to the Tribunal.
Section 39(3): Whenever a building or other place which was earlier used for religious purpose or instruction or charity, has ceased to be used for that purpose, the Board may make an application to the Tribunal for an order for recovery of possession.
Sections 40(2) and (4): The decision of the Board on the question of whether a particular property is a Waqf property or not or whether a waqf is a Sunni Waqf or Shia Waqf, is made subject to the decision of the Tribunal under subsection (2). Similarly, a direction issued by the Board to any Trust or Society under Section 40(3) to get registered, is made subject to the decision of the Tribunal under subsection (4).
Section 48(2): Whenever a Board examines the Auditor’s report and passes orders based on the report, directing the recovery of any amount certified by the Auditor, the mutawalli or any other person aggrieved by such order may apply to the Tribunal.
Section 52(4): Wherever an order is passed by the Collector under Section 52(2) directing the person in possession of a property to deliver the property to the Waqf Board, based on a requisition made by the Board, the person aggrieved by such order may file an appeal to the Tribunal.
Section 54(3): Whenever the Chief Executive Officer is satisfied that there is an encroachment on a Waqf property, he may make an application to the Tribunal for the removal of such encroachment.
Section 64(4): A mutawalli removed from office for the reasons contained in clauses (c) to (i) of the subsection is entitled to file an appeal to the Tribunal.
Section 67(4): Any person aggrieved by an order passed by the Board superseding the Committee of Management may file an appeal to the Tribunal under the 1st proviso to subsection (4) of Section 67.
Section 67(6): Whenever a member of a Committee of Management is removed by the Board, instead of exercising the option of superseding the Committee of Management, such removed member may file an appeal to the Tribunal under the 2nd proviso to subsection (6) of Section 67.
Section 69(3): Whenever a scheme is framed by the Board for the administration of a waqf, which includes a provision for the removal of the mutawalli and the appointment of his successor, a person aggrieved by the same may file an appeal to the Tribunal.
Section 73(3): Whenever a direction is issued by the Chief Executive Officer to any bank to pay out of the money belonging to the waqf, the contribution leviable under Section 72, the bank may file an appeal to the Tribunal.
Sections 94(1) & (2): Whenever a mutawalli who is under an obligation to perform a pious, religious or charitable act fails to perform such act or whenever a mutawalli wilfully fails to discharge any other duties imposed on him under the waqf, an application could be made to the Tribunal for appropriate directions to the mutawalli. If it is a case covered by subsection (1), the Tribunal may be moved by the Board. If it is a case covered by subsection (2) the Tribunal may be moved by the Board or any person interested in the waqf.
Significances of Section 104A and 108A in matters related to Waqf properties.
Section 104A. (inserted by Act 27 of 2013) [ (1) Notwithstanding (despite) 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.]
Comment: Section 104A (inserted by Act 27 of 2013) has an overriding effect on any Sections of the Act including 52A which states “without prior sanction of the Board.” Furthermore, subsection (2) of 104A uses the word “ab initio” and bars sale, mortgage, and exchange of Waqf property even with the prior sanction of the Board.
Section, 104A starts with a non-obstante clause (‘non-obstante’ is a Latin word that means ‘notwithstanding anything contained. That means this clause empowers the legislation or a provision in which it contains, to override the effects of any other legal provisions contrary to this under the same law or any other laws, and as such reinforces the statement “Once a Waqf Always a Waqf.”
This Section 104A the term “Notwithstanding anything contained in this Act…….” overrides even with the prior sanction of the Board, or any other existing law such as Bombay Public Trust Act of 1950, which under section 36 of BPT Act 1950, gives permission to Sale, or Sale permission in Waqf deed or Sale permission in Scheme. Its emphasis on the concept of Waqf Properties – cannot be alienated in any way. Furthermore, the word “ab initio” meaning “from the beginning” when the Waqf was created emphasizes the statement “Once a Waqf always a Waqf.” The characteristic of Waqf cannot be changed, the property is dedicated to Allah in perpetuity (meaning forever). Refer SC judgment of 1998.
Section 104B. (1) if any Waqf property has been occupied by the Government agencies it shall be returned to the Board or the mutawalli within six months from the date of the order of the Tribunal. (2) The Government agency may, if the property is required for a public purpose, make an application for determination of the rent, or as the case may be, the compensation, by the Tribunal at the prevailing market value.
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.
Comment: Article 136 of the Limitation Act, 1963 prescribed the period of limitation for executing the degree, other than a decree of injunction, like 12 years, but the provision of Section-107 of Waqf Act, 1995 barred the provision of application of Limitation Act, 1963. The provisions of Section 107 of the Waqf Act prevent the possession of Waqf Property under the plea of adverse possession.
There is no bar of Limitation for recovery of the procession of any immovable property comprised in a Waqf or any interest therein.
Section 108. Special provision as to evacuee Waqf properties.- The provisions of this Act shall apply, and shall be deemed always to have applied, in relation to any evacuee property within the meaning of clause (f) of section 2 of the Administration of Evacuee Property Act, 1950 (31 of 1950), which immediately before it became such evacuee property within the said meaning was property comprised in any Waqf and, in particular any instrument (whether by transfer of any documents or in any manner and whether generally or for specified purpose) of any such property to a Board made before the commencement of this Act in pursuance of the instructions of the Custodian under the Administration of Evacuee Property Act, 1950 shall have, and shall be deemed always to have had, notwithstanding anything contained in any other provision of this Act, effect as if such entrustment has operated to – (a) vest such property in such Board in the same manner and with the same effect as in a trustee of such property for the purposes of sub-section (1) of section 11 of the Administration of Evacuee Property Act, 1950 (31 of 1950) with effect from the date of such entrustment, and (b) authorise such Board to assume direct management of the Waqf concerned for so long as it might deem necessary.
Section 108A. The provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
Section 112-(2) of the Act is a saving clause (a clause in a statute exempting something from the statute’s operation or providing that the rest of it will stand if a part is held invalid) and saves the actions already done or taken under the repealed enactment. This cannot lead to the conclusion that the Act has been given retrospective effect. Rather, if seen properly, this saving clause in the absence of any specific provision providing retrospective effect to the Act reinforces the suggestion that the Act has no retrospective effect. From the saving clause of the Act, the retrospective or no retrospective should also conform with Section 6 of the General Clauses Act provides that unless a different intention, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect, or affects the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or affect any right, privilege, obligations or liability acquired, accrued or incurred under any enactment so repealed, unless a contrary intention appears.
The Waqf Act 1995-amended 2013 is very powerful legislation in matters of recovery of alienated properties especially section 104A-(2) by the use of the word “ab initio” and when read with section 108A.
The question now arises what happens to Waqf Properties sold by corrupt Mutawallis or by the sanction of Board or under any Law that allowed the Sale of Waqf Properties such as Bombay Public Trust Act 1950.
Before we contemplate the answer to the above question, two cardinal points must be borne in mind, namely, property dedicate to Allah Almighty and Perpetuity. Also, we need to understand the vast difference between Muslim Waqfs and Trusts created by Muslims. The basic difference is that Waqf properties are dedicated to Allah Almighty, and the Waqif, or dedicator, does not retain any title over the Waqf properties. As far as Trusts are concerned, the properties are not vested in Allah Almighty. Some of the objects of such Trusts are for running charitable organizations such as hospitals, shelter homes, orphanages, and charitable dispensaries, which acts, though recognized as pious, do not divest the author of the Trust from the title of the properties in the Trust unless he relinquishes such title in favor of the Trust or the Trustees. At times, the dividing line between Public Trusts and Waqfs may be thin, but the main factor always is that while Waqf properties vest in Allah Almighty. The Trust properties do not vest in Allah and the trustees in terms of Deed of Trust are entitled to deal with the same for the benefit of the Trust and its beneficiaries.
It has been held by Apex Court in the case of Chedi Lal Misra (Dead through L.Rs. Vs. Civil Judge, Lucknow & Ors., 2007 (4) ALL MR 768, that once a Wakf is created, it continues to retain such character which cannot be extinguished by any act of Mutawalli or anyone claiming through him. Once a Wakf is created, the Wakf stands divested of his title to the properties which after the creation of the Wakf vests in the Almighty.
In the case of Jeet Mohammad Vs. Jatinder Kaur and anr., AIR 2009 H.P. 44, it has been held that any person who professes Islam is a person interested in the management of Wakf. He can raise a dispute before the Wakf Tribunal that such property is being frittered away or being sold against the intention of the creator of Wakf.
It has been held in the HC of Bombay Bench Aurangabad in Civil Revision No. 78 of 2019 M/s Commercial Developers Versus Asif s/o Shafi Mansuri concerning the property of Dargah which is more than 100 years old. Way back in September 1911, the suit property has been declared to be a Wakf property under a decree passed in the Suit, No.450/1909. The suit property belonging to Dargah was transferred by the Mutawalli as a Gift deed to his wife, and subsequently, the heirs sold the Waqf property to the Developer. The heirs conveyed the suit property to the Developer firm vide execution of a registered conveyance deed dated 5/3/2011. The Waqf Tribunal held that since the suit property is a Wakf property, the transaction in respect thereof like the gift executed by Mutawalli in favor of his wife and subsequent conveyance deed executed by heirs in favor of the applicant firm Commercial Developers are void and non-est. Against the Tribunal Order, the developer approached HC, with Civil Revision Application. The HC upheld the Tribunal Order on 17th March 2021. As a result, the Civil Revision Application fails and the same was dismissed.
Therefore, it is in my opinion, though some may not agree, the answer is now clear that under Section 104A and 108A the Waqf Properties which are vested in Allah Almighty and sold can be restored to Waqf Institutes, by pursuing legally through Tribunal, or Courts or by Public Interest Litigation in High Court or Supreme Court, and Section 107 barred the provision of application of Limitation Act, 1963.
An individual or group should FOCUS on one Waqf property, in their location, which is mismanaged or is being misappropriated. Several such groups in each location should then earnestly strive to Protect, become Custodians and Develop various Waqf properties. If this model of community participation is replicated all over the country, the results can be astonishingly greater than the expectations. The path may be difficult, frustrating but it is not insurmountable. The result may take a couple of years, but the effort has to be initiated now.
Next Waqf Awareness Series on “Mutawalli-Duties and Obligations”
Compiled and authored by: M Farid Tungekar, Director – Waqf Liaison Forum
Very nice work..very appreciable… jazakallah…