WHAT IS WAKF ? IF WAKF IS GIFT BY A MUSLIM FOR BENEFIT OF ISLAM CAN BOARD STAKE CLAIM ON THIRD PARTY PROPERTY INCLUDING TEMPLES?

A Muslim personal law was passed in 1937 applicable to the Muslim Personal Law (Shariat) to Muslims. The words “in the Provinces of India” omitted by the Adaptation of Laws Order, 1950. So even after partition and independence the Act remains enforceable.

At the time of partition there were two establishments were formed one Wakf Board which is mainly for management of gifted property for betterment of Islam and those who follow Islamic faith. Another was law of Evacuee Property. Administration of Evacuee property Act 1950 and Displaced persons (Compensation & Rehabilitation) Act, 1954 and Evacuee Interest (Separation) Act, 1951. The Evacuee property Cell is dealing with Evacuee properties situated in Delhi. The Evacuee property means the property which was left by the Muslims community during the partition of the country in 1947. The Evacuee Property Cell is responsible for the management and disposal of the Evacuee Property situated in Delhi.

The purpose of the Act as enacted is enunciated in Section 2 of the Act. It reads as under:

“Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law. marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat,  maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”

Since we are now discussing Wakf we will concentrate on the said word and provisions in the Act of succession for Muslims.

On 21st May 1954 an Act was passed namely Wakf Act 1954, However there is no definition of term Wakf. But it is define in common parlance खुदा के नाम पर अर्पित वस्तु। Its donation to almighty.But the law and action speaks contrary thereto.

Now let us see the definition given under this Act.

3.Definitions. In this Act, unless the context otherwise requires,– (a)”beneficiary” means a person or object for whose benefit a wakf is created and includes religious, pious and charitable objects and any other objects of public utility 3*[sanctioned by he Muslim law]; (b) “benefit” does not include any benefit which a mutawalli is entitled to claim solely by reason of his being such mutawalli; (c) “Board” means a Board of Wakfs established under.

Now how it started in 1954 after independence? The 1954 Act provides for Survey. Section 4 deals with the same.

4.Preliminary survey of wakfs. (1) The State Government may, by notification in the Official Gazette, appoint for the State a Commissioner of Wakfs and as many additional or assistant commissioners of wakfs as may be necessary for the purpose of making a survey of wakf properties existing in the State at the date of the commencement of this Act.

(2) All additional and assistant commissioners of wakfs shall perform their functions under this Act under the general supervision and control of the Commissioner of Wakfs.

Thereafter an Act to provide for the better administration of [Auqaf] and for matters connected therewith or incidental thereto by which was enacted in the year 1995 and the Wakf Act, 1954 (29 of 1954) and the Wakf (Amendment) Act, 1984 (69 of 1984) was repealed.

In this also wakf is defined but other definitions are given they are under Section 3 of the waqf Act namely :

(a) “beneficiary” means a person or object for whose benefit a [waqf] is created and includes religious, pious and charitable objects and any other objects of public utility sanctioned by the Muslim law:

(b) “benefit” does not include any benefit which a mutawalli is entitled to claim solely by reason of his being such mutawalli;

[(ee) “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 licence has expired or has been terminated by mutawalli or the Board;

[(g) “list of auqaf” means the list of auqaf published under sub-section (2) of section 5 or contained in the register of auqaf maintained under section 37;]

(i) “mutawalli” means any person appointed, either verbally or under any deed or instrument by which a [waqf] has been created, or by a competent authority, to be the mutawalli of a [waqf] and includes any person who is a mutawalli of a [waqf] by virtue of any custom or who is a naib-mutawalli, khandim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being, managing or administering any [waqf] or [waqf] property:

Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office-bearer of such committee or corporation:

[Provided further that the mutawalli shall be a citizen of India and shall fulfil such other qualifications as may be prescribed:

Provided also that in case a waqf has specified any qualifications, such qualifications may be provided in the rules as may be made by the State Government;]

ii) the [waqif] and any descendant of the [waqif] and the mutawalli;

(l) “prescribed”, except in Chapter III, means prescribed by rules made by the State Governments;

(m) “regulations” means the regulations made by the Board under this Act;

(n) “Shia [waqf]” means a [waqf] governed by Shia Law;

(o) “Sunni [waqf]” means a [waqf] governed by Sunni Law;

(p) “Survey Commissioner” means the Survey Commissioner of [Waqf] appointed under sub-section (1) of section 4 and includes any Additional or Assistant Survey Commissioners of [Auqaf] under sub-section (2) of section 4;

(q) “Tribunal”, in relation to any area, means the Tribunal constituted under sub-section (1) of section 83, having jurisdiction in relation to that area;

 [(r) “waqf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes—

(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser;

(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record;

(iii) “grants”, including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law, and “waqif” means any person making such dedication;]

(s) “[waqf] deed” means any deed or instrument by which a 1[waqf] has been created and includes any valid subsequent deed or instrument by which any of the terms of the original dedication have been varied;

(t) “[Waqf] Fund” means a 1[waqf] fund formed under sub-section (1) of section 77.

The critical issue arises under Section 39 of 1995 Act which gives wide powers to waqf board. It reads as under:

  1. Powers of Board in relation to auqaf which have ceased to exist.—

(1) The Board shall, if it is satisfied that the objects or any part thereof, of a waqf have ceased to exist, whether such cesser took place before or after the commencement of this Act, cause an inquiry to be held by the Chief Executive Officer, in the prescribed manner, to ascertain the properties and funds pertaining to such waqf.

(2) On the receipt of the report of inquiry of the Chief Executive Officer, the Board shall pass an order,—

(a) specifying the property and funds of such waqf;

(b) directing that any property or funds pertaining to such waqf which have been recovered shall be applied or utilised for the renovation of any waqf property and where there is no need for making any such renovation or where utilisation of the funds for such renovation is not possible, be appropriated, to any of the purposes specific in sub-clause (iii) of clause (e) of sub-section (2) of section 32.

(3) The Board may, if it has reason to believe that any building or other place which was being used for religious purpose or instruction or for charity has, whether before or after the commencement of this Act, ceased to be used for that purpose, make an application to the Tribunal for an order directing the recovery of possession of such building or other place.

(4) The Tribunal may, if it is satisfied, after making such inquiry as it may think fit, that such building or other place—

(a) is waqf property;

(b) has not been acquired under any law for the time being in force relating to acquisition of land or is not under any process of acquisition under any such law, or has not vested in the State Government under any law for the time being in force relating to land reforms; and

(c) is not in the occupation of any person who has been authorised by or under any law for the time being in force to occupy such building or other place, make an order—

(i) directing the recovery of such building or place from any person who may be in unauthorised possession thereof, and

(ii) directing that such property, building or place be used for religious purpose or instruction as before, or if such use is not possible, be utilised for any purpose specified in sub-clause (iii) of clause (e) of sub-section (2) of section 32.

What is contrary to the customary meaning of wakf is Section 40 of 1995 Act.

The wide power to wakf board stream through Section 40 of 1995 Act which reads as under:

Section 39 Decision if a property is waqf property.—

(1)  The Board may itself collect information regarding any property which it has reason to believe to be waqf property and if any question arises whether a particular property is waqf property or not or whether a waqf is a Sunni waqf or a Shia waqf, it may, after making such inquiry as it may deem fit, decide the question.

(2)The decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the Tribunal, be final

(3)Where the Board has any reason to believe that 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, the Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is waqf property, call upon the trust or society, as the case may be, either to register such property under this Act as waqf property or show cause why such property should not be so registered:

Provided that in all such cases, notice of the action proposed to be taken under this sub-section shall be given to the authority by whom the trust or society had been registered.

(4)The Board shall, after duly considering such cause as may be shown in pursuance of notice issued under sub-section (3), pass such orders as it may think fit and the order so made by the Board, shall be final, unless it is revoked or modified by a Tribunal.

Notes:

 As discussed earlier wakf means a property given by a muslim for charitable and religious purposes. No one challenged Section 39- 40 of the 19995 wakf Act. Which resulted in claim by wakf board on private property too. That is not permissible in their traditional religious beliefs and custom.

 Supreme Court recently in STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) VERSUS A.P. STATE WAKF BOARD & ORS held that, “ 139. The question to be examined is that power to investigate and determine the nature of property is an administrative function as submitted by the Learned Counsel for the Wakf Board and Dargah or is it a quasi-judicial function as an inquiry is required to be conducted before any property is declared to be Wakf property. It was argued by the appellants that since such order of the Wakf Board is final, subject only to an appeal before the Wakf Tribunal, it has to be a reasoned and speaking order as in appeal, the correctness of the reasons recorded by the Board would be required to be examined.”

in the absence of an inquiry conducted, it cannot be said to be in accordance with the procedure prescribed under Section 40 of the 1995 Act

There are several controversies on claim of wakf board on Grand ITC, several Hindu Temples, Hindu heritage monuments due to which under Section 39 and 40 of the Act may be any property can be declared as wakf.

This is something contrary to the religious principles and custom.

The Central Government has introduced an Amendment Bill 2024 to the Wakf Act.

 The critical points of 2024 wakf amendment bill are as under:

The most important is power to declare property as wakf is proposed to be deleted.

  • The Waqf (Amendment) Bill, 2024 was introduced in Lok Sabha on August 8, 2024.  It amends the Waqf Act, 1995.  The Act regulates waqf property in India.  The Act defines waqf as an endowment of movable or immovable property for purposes considered pious, religious, or charitable under Muslim law.  Every state is required to constitute a Waqf Board to manage waqf.  The Bill renames the Act to ‘United Waqf Management, Empowerment, Efficiency and Development Act, 1995’.
  • Formation of waqf:  The Act allows waqf to be formed by: (i) declaration, (ii) recognition based on long-term use (waqf by user), or (iii) endowment when the line of succession ends (waqf-alal-aulad).  The Bill states that only a person practicing Islam for at least five years may declare a waqf.  It clarifies that the person must own the property being declared.  It removes waqf by user.  It also adds that waqf-alal-aulad must not result in denial of inheritance rights to the donor’s heir including women heirs.
  • Government property as waqf:  The Bill states that any government property identified as waqf will cease to be so.  The Collector of the area will determine ownership in case of uncertainty, and submit a report to the state government.  If deemed a government property, he will update the revenue records.
  • Power to determine if a property is waqf:  The Act empowers the Waqf Board to inquire and determine if a property is waqf.  The Bill removes this provision.
  • Survey of waqf:  The Act provides for appointment of a Survey Commissioner and additional commissioners to survey waqf.  The Bill instead empowers Collectors to do the survey.  Pending surveys will be conducted as per the state revenue laws.
  • Central Waqf Council:  The Act constitutes the Central Waqf Council to advise the central and state governments and Waqf Boards.  The Union Minister in-charge of Waqf is the ex-officio chairperson of the Council.   The Act requires that all Council members be Muslims, and at least two must be women.  The Bill instead provides that two members must be non-Muslims.  MPs, former judges, and eminent persons appointed to the Council as per the Act need not be Muslims.  Following members must be Muslims: (i) representatives of Muslim organisations, (ii) scholars in Islamic law, and (iii) chairpersons of Waqf Boards.  Of the Muslim members, two must be women.
  • Waqf Boards:  The Act provides for election of up to two members each from electoral colleges of Muslim: (i) MPs, (ii) MLAs and MLCs, and (iii) Bar Council members, from the state to the Board.  The Bill instead empowers the state government to nominate one person from each of the above background to the Board.  They need not be Muslims.  It adds that the Board must have: (i) two non-Muslim members. and (ii) at least one member each from Shias, Sunnis, and Backward classes of Muslims.  It must also have one member each from Bohra and Agakhani communities if they have waqf in the state.  The Act provides that at least two members must be women.  The Bill states that two Muslim members must be women.
  • Composition of Tribunals:  The Act requires states to constitute Tribunals to address disputes over waqf.  The Chairman of these Tribunals must be a Judge of the rank equivalent to a Class-1, District, Sessions, or Civil Judge.  Other members include: (i) a state officer equal to an Additional District Magistrate, and (ii) a person knowledgeable in Muslim law and jurisprudence.  The Bill removes the latter from the Tribunal.  It instead provides the following as members: (i) a current or former District Court judge as its chairman, and (ii) a current or former officer of the rank joint secretary to the state government.
  • Appeal on orders of Tribunals:  Under the Act, decisions of the Tribunal are final and appeals against its decisions in Courts are prohibited.  The High Court can consider matters on its own accord, on an application by the Board, or an aggrieved party.  The Bill omits provisions deeming finality to Tribunal’s decisions.  Tribunal’s orders may be appealed in the High Court within 90 days.
  • Powers of the central government:  The Bill empowers the central government to make rules regarding: (i) registration, (ii) publication of accounts of waqf, and (iii) publication of proceedings of waqf Boards.  Under the Act, state government may get the accounts of waqfs audited at any point.  The Bill empowers the central government to get these audited by the CAG or a designated officer.
  • Waqf Boards for Bohra and Agakhani:  The Act allows establishing separate Waqf Boards for Sunni and Shia sects if Shia waqf constitute more than 15% of all waqf properties or waqf income in the state.  The Bill also allows separate waqf boards for Aghakhani and Bohra sects.

( courtesy https://prsindia.org/billtrack/the-waqf-amendment-bill-2024)

Conclusive Notes:

 If the term wakf mean given to god who professes Islam is there any need of power to declare any property as wakf? Given means willingly donated for betterment of muslims out of a property of muslim under a Will or testament. Where is the question of declaring third party’s property as wakf property?

Tomorrow even majority faith would claim every iconic buildings as Hindu property because basically Hinduism was prevalent in India since 10000 years BC.

The wakf board should be limited to the property which is given by a muslim to Allah under Will or other testament or donated for betterment of their fellow brothers. No other property can be declared or claimed as wakf property.

 The Waqf Board is reportedly the third-largest landholder in India, following the Railways and the Defence Department. Waqf boards control 8.7 lakh properties spanning 9.4 lakh acres across India, with an estimated value of Rs 1.2 lakh crore. There are 32 waqf boards, including two Shia waqf boards in Uttar Pradesh and Bihar. Control of the state Waqf boards lies in the hands of about 200 individuals
Read more at:
https://economictimes.indiatimes.com/news/india/waqf-through-the-ages-how-rs-1-lakh-crore-property-owner-board-acquires-land-and-what-the-govt-aims-to-change/articleshow/112365585.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

I support this amendment bill.

 Suggestions

 There should be reversal order in respect of property, which is acquired highhandedly under 1995 by wakf, There are powers to redevelop the wakf property which must be takeaway. The leaders misuse this power for own financial benefits.

 Central Government must de-notify such list which was declared wakf and belonging to a private person or company or Hindu religious body and form a Hindu Religious Board since 1995 and giving power to manage the same for up-liftment and renaissance of Hindu culture. It should direct that wherever the wakf has taken Hindu Religious land it must be used for vidyalay and housing for Hindus. Today wakf has created mini Pakistan within partitioned India after 1995.

Declare 1995 provisions under Section 39 and 40 as unconstitutional and ultravires. When even the state also cannot acquire private property under Article 300 A how a private institution can grab a private property under a private act meant for the preservation of donated property for a religious cause and after acquisition the same board develops and mints money. Which Article of the Constitution provides this?

In my humble submission right to property be restored as a Fundamental right with only reservation for acquisition by the government for national cause under the Land Acquisition Act. The wakf act is against principles of pith and substance. There are political leaders who has threatened to take away private citizens’  property and distribute it amongst the minority.  To secure rights of the majority faith of this country the government must enact a Hindu Religious Board /Trust to secure our temples and cultural heritage. It took 500 years to build Ram temple, we don’t know when we will be able to release other Hindu Shrine properties from the clutches of the Wakf Board?!!!

Restoration of the Right to Property must be done on fast track.

 Shruti Desai

Updated on

2nd September 2024