JAMIA MILLIA ISLAMIA

Law of trust and waqfs in india

TOPIC: ADMINISTRATION OF WAQF IN INDIA

SUBMITTED TO: SUBMITTED BY:

PROF. DR. KAHKASHAN Y. DANYAL TANZEELA FARHEEN
LL.M. (SEM-II) Regular
ROLL NO.- 202005113

1
 ACKNOWLEDGEMENT

It is my imperative duty to the following people for the successful completion of my Law on
Waqfs and Trust in India project that is ADMINISTRATION OF WAQF:

I thank Prof. Dr Kahkashan Y Danyal for the clarity she brings into teaching thus enabling
us to have a better understanding of her subject. I also feel obliged to thank her for providing
us with all the notes and case materials. I would also like to extend my gratitude to Jamia online
Library for providing all the books and journals online which proved very helpful.

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 INDEX

S.No Topic Page No.

1. Introduction 4-6

2 7-9
Development Of Administration of Waqf in
India

3 Present Law Regarding Administration of 10-11

Waqf

4 Central Waqf Council 12-15

5 State Waqf Board 16-21

6 Mutawalli 22-24

7 Conclusion 25

8 References 26-27

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 INTRODUCTION

In the present socio-economic world, where capitalism rules the globe, there exists in the
Islamic legal system the doctrine of Wakf. This concept has evolved over more than one and a
half thousand years before the birth of the English doctrine of trusts and uses. No parallel
system ever existed anywhere in this world before the advent of Islam. Wakf according to
several jurists is the permanent tying up of an intangible or tangible property in the name of
Almighty Allah for pious purposes in perpetuity. This legal expedient under the name of Wakf
permitted an owner to settle his property for the use of beneficiaries in perpetuity. To set aside
part of one's earning or legacy and tie it up in perpetuity for charitable purposes is considered
an act of piety. As such, generous Muslims adhering to the principles of ‘endowment’
enshrined in Islam often bequeath large and valuable portions of properties in the name of
Allah. The usufruct from these properties is dedicated to meet the exclusive needs of the poor
and also for the perpetual maintenance of the property so bequeathed.1

One such institution in Islam which socio economic equality is Waqf. Although Quran does
not say anything about Waqf however same has been approved by the Prophet. The institution
of waqf originated some 14 centuries ago, it was undertaken by Caliph Omar bin-Khattab with
the approval of Prophet to promote social welfare and thereafter it developed into a practice
over the period of time.2

The term “waqf” literally means ‘detention’.3 In practical term or legal sense, it would mean a
property which has been to be used for ‘charitable or religious purpose’ only and God is the
owner of the same. When a waqf is created or a property is given in waqf the property is
understood to be ‘tied up’ which means the person who gave the property in waqf ceases to be
the owner and now the ownership rest with the Allah, therefore property cannot be transferred.

A waqf is created with an object and the proceeds out of that waqf property or the waqf property
itself is to be used for that purpose only. In order to take care of such property usually a
Mutawalli is appointed who act as a care taker.4

1
Iqbal Ali Khan and Saba Alam, “Administration of Wakf's Properties - Fallacies and Realities” Aligarh law
journal 18 ALJ (2007-08) p.189
2
Heyneman, S. P, “Islam and social policy”, Vanderbilt University Press (2004) p.218.
3
M.kazim v. A.Ashgar AIR1932 Pat 1938.
4
Dr. Amir Afaque Ahmad Faizi, “Waqf Record Management in India” Center for Rural Studies LBSNAA,
Mussoorie. P.3

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MEANING

In common parlance Waqf means any property which has been given in the name of God and
is to be use for charitable and religious purpose and uplifting of the society and cannot be
transferred further.

In the case of M Kazim v. A Asghar Ali5 court held that waqf “technically, it means dedication
of some specific property for a pious purpose or secession of pious purposes.” As per Muslim
jurists Abu Hanifa,6 “Waqf is the detention of a specific thing that is in the ownership of the
waqif or appropriator, and the devotion of its profits or usufructs to charity, the poor, or other
good objects, to accommodate loan.”

Waqf Act, 19547 defines Waqf as, “Waqf means the permanent dedication by a person
professing the Islam, of any movable or immovable property for any purpose recognized by
Muslim Law as religious, pious, or charitable.”

Once the institution of Waqf developed in Arab slowly and gradually it reached to other part
of the world. With the advent of Mughal rule in India the concept of Waqf became very
prominent in the Country and lot of property was given in Waqf. During Mughals the Waqf
properties were managed by Mutawallis appointed individually who were under the
supervision of Qazis (Islamic jurists) and they would manage according to Shariah Law.
However, when Britishers occupied India the management of Waqf went into miserable must
of them were acquired unlawfully and those which were left were not allowed to be maintained
in accordance with the Shariah law. In fact, the office of Qazi was all together removed.8

5
136 Ind Cas 417.
6
Aqil Ahmad, Mohammedan Law, Central law Agency 27th ed. (2021), p.302.
7
s.2.
8
Rashid, S. Khalid, “Waqf Administration in India from 1947 to 1997: An Appraisal and Critique,” Radiance,
New Delhi Vol.34. (1997), p.267.

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 ADMINISTRATION OF WAQF IN INDIA

DEVELOPMENT OF ADMINISTRATION OF WAQF IN INDIA: -

The statutory administration of wakfs can be traced back to the year 1765. This period saw the
dawn of British administrative control in India. From the very beginning the British adopted a
policy of non-interference so far as the personal laws of the Indians were concerned. Thus, for
a while the company did nothing to interfere either in the administration of wakfs or trusts that
continued to be run on similar lines as under the Mughals. In pursuance of this policy the
Regulation of 1772 was enacted. 9This policy continued to be followed up to 1810.

But in 1810 The Regulation III of the Bengal Code was enacted in order to prevent the
appropriation of produces of endowments contrary to the intentions of the donor. The Act
coupled with Regulation VI of the Madras Code resulted in vesting the power of
superintendence of endowments in the Boards of Revenue or Boards of Commissioners.

However, in 1859, the British administration took a backward step and decided to divest itself
of all obligations of superintending the native endowments. There was a growing realization
that the personal laws of both Hindus and Muslims contained detailed provisions in matters of
administration of trusts and wakfs.10

Period of partial intervention The Act of 1863 unburdened the Government officers from
directly governing the native endowments. As a result, the following consequences ensued11:

• Regulation XII of 1810 of the Bengal Code and Regulation VII of 1817 of the Madras Code
were repealed.

• The Act was applicable only to public endowments.

• The Government was divested of all responsibilities of managing the native endowments.
Endowed properties were transferred to trustees or managers and local committees were
constituted in accordance with the wishes of those interested in the maintenance of such
institutions.

9
The Regulation Act,1882, s.27.
10
Latifi, Danial, Journal of the Indian Law Institute, vol. 20, no. 4, 1978, pp.619www.jstor.org/stable/43950558.
Accessed 22 June 2021.
11
Ibid.p.620

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• The jurisdiction to try all disputes relating to wakfs was conferred on the District Courts. (S.
14 and 15)

The Act put the affairs of the wakf in a greater mess than the one in which it was before the
passing of the Act. All systems of checks and balances had given way. There was growing
dissatisfaction over government's policies and there was widespread urge to amend the Act of
1863. In a dispatch to the Madras Government made in 1876, the Government of India
conceded that the Act of 1863 had miserably failed in preventing the maladministration of
wakfs. Thus, the government was forced to abandon its old policy of non-interference and the
Wakf Validating Act of 1913 was enacted.

Post-independent legislations:

1. The Bihar Wakf Act 1947: — This Act was proposed to be introduced following the success
of the Wakf Acts in Bengal, Delhi and UP. A bill was introduced and it was passed by the
select committee but it could not receive the assent of the Governor-General and thus the Bihar
Government accepted the extension of wakf Act 1954 to the State.

2. The Bombay Public Trusts Act 1950:12 — It was enacted to regulate and to make provisions
for the administration of public, religious and charitable trusts in the state of Bombay. It applied
to the endowments of all communities. By virtue of this Act the Government assumed the duty
of directly supervising the administration of endowments.

3. The Dargah Khwaja Saheb Act 1955: 13— This Act was enacted to control the unscrupulous
khadims of the Dargah Khwaja Sahib who were mal-administering the earnings of the Dargah.
A committee was formed under the chairmanship of Justice Ghulam Hasan to enquire into its
administration and the working of the Act of 1936. On the recommendations of this committee,
the Act of 1936 was repealed and the present Act was modelled.

4. The Public Wakfs (Extension of Limitation) Act 195914: — One of the many consequences
of partition was that the wakf properties were occupied by their custodians or third persons.
Some were returned while others still remained occupied. They could be recovered only
through litigation but unfortunately most of them had become time-barred.

12
https://charity.maharashtra.gov.in/Portals/0/Files/B.P.T.Act,1950.pdf accessed on 20th June,2021.
13
https://legislative.gov.in/sites/default/files/A1955-36.pdf accessed on 20th June,2021.
14
The Public Waqfs(Extension) of Limitation Act,1959.pdf (centralwaqfcouncil.gov.in) accessed on 20th
June,2021.

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5. The UP Muslim Wakfs Act 1960: — The adverse state in which the wakfs were in the state
of UP necessitated several amendments in the prevailing Act. However instead of amending
the Act, it was thought better to enact a new legislation and hence The UP Muslim Wakfs Act
1960 was passed. The drafting of this Act is better than the Act of 1954 in many respects.

6. The Wakf Act 1954: — The Wakf Act 1954 is a substantive piece of legislation. It is a
landmark in the history of wakf administration in India. By constituting unofficial Boards
vested with considerable authority and powers, by imposing a precise obligation upon
mutawallis and making their violation a penal offence, by associating the State Governments
in the supervisory responsibility and by conferring authority on the Central Government to lay
down the policies to be adopted by the Boards, the Act has laid down a sound administrative
structure to ensure proper administration of wakfs in the country.15

The Act contains a very useful provision regarding the assumption of direct management of
wakf by the Board, which provides that the Board may assume direct management of the wakf
for such period or periods not exceeding an aggregate of five years, as may be deemed
necessary in the following cases:

• Where a vacancy in the office of the Mutawalli exists but no suitable person is available to
be appointed under the terms of the deed of the wakf.

• Where the right of any person to act as a Mutawalli is disputed.

• Where a committee managing a wakf has exceeded or abused its powers or has failed in
performing its duties (Section 43-A read with Sections 42 and 43(2).

A Mutawalli of a wakf should every year prepare and submit a budget to the Board for approval
for the next financial year showing the estimated receipts and expenditures in respect of the
wakf during that financial year. The budget should be prepared in the form prescribed by the
Wakf Board in the regulations made by them under Section 68 of the Act. Under Section 36 of
the Act, it is the duty of the Mutawalli to furnish returns, statistics, accounts and other
information called by the Board. Failure to do so is made penal under Section 41 of the Act.
The Wakf Act, 1954, contains provisions in Sections 55 to 57 for filing of suits relating to
wakfs. As stated before, the previous consent in writing of the Board is necessary for instituting
a suit for obtaining any of the remedies mentioned in Section 92 of the Code of Civil Procedure.

15
WAKF ACT 1954 (centralwaqfcouncil.gov.in) accessed on 20th June,2021.

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 PRESENT LAW REGARDING ADMINISTRATION OF WAQF

The legislations so far which dealt with administration of Waqf in India are:

• The Waqf Act 1954

• The Waqf Act 1995
• The Waqf (Amendment) Act, 2013.

The Wakf Act 1995 is an exhaustive piece of legislation which is in force all over India barring
the state of Jammu and Kashmir and Dargah Khwaja Saheb, Ajmer which has a separate
legislation to manage its affairs. This Act aims to provide for better administration and
supervision of wakfs. Although the Act of 1954 was a good piece of legislation, its actual
working revealed several flaws in it as also in the setup of the Wakf Boards, in particular the
power of superintendence and control over the management of the individual wakfs. The Act
was amended three times in 1959, in 1964, and in 1969.

On the recommendations of the Wakf Inquiry committee, comprehensive amendments were

made in the Act in 1984. The amendments of 1984 were strongly opposed and it was decided
to enact a new law. Thus, the Act of 1995 was enacted incorporating the features of the Act of
1954 and such provisions of the amending Act of 1984 on which there was a near consensus.
The Act contains IX chapters and 113 sections. Chapter I deals with extent and application of.
Chapter II deals with the provision as to the survey of wakfs. Chapter III provides for the
establishment and functions of the Central Wakf Council. Chapter IV is concerned with the
incorporation of Wakf Boards and the administration of Wakfs through these boards. Chapter
V embodies the provisions relating to registration of wakfs. Chapter VI refers to the provisions
relating to the maintenance of Wakf accounts. Chapter VII relates to the finance of the Wakf
Boards. Chapter IX deals with the conduct of judicial proceedings in case of any dispute
concerning wakfs. Chapter X contains miscellaneous provisions.

Section 8 of 1954 act and section 9 of 1995 act provides for setting up of Central Waqf Council
under the Government to administer Waqf across the country. Union minister of minority affair
ministry is the ex officio chairman of this body. Similarly at state level State Governments are
required to setup up State Waqf Boards16 for administering all the Waqf properties in the state.17
“They have to ensure that the Waqf are, properly maintained, controlled and administered and

16
The waqf Act,1995, s.13 (1).
17
Ibid s.32 (1).

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the income thereof is duly applied to the objects and for the purpose for which such Waqf were
created or intended.”18in the whole structure of administration of Waqf the basic unit is
Mutawalli. “Mutawallis have to pay 7 per-cent of their net annual income towards their
respective Boards.”19 “The State Waqf Boards shall pay 1 per-cent of the net annual income to
Central Waqf Council.”20

18
The waqf Act, 1995 s.32 (1).
19
Ibid, s.72 (1).
20
Ibid s.10 (1).

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 CENTRAL WAQF COUNCIL
The need for setting up of a body to administer large number of waqf properties spread across
the country was felt from the beginning. In this direction even before 1954 act was constituted
a bill was introduced in 1952 called Kazmi Bill. It suggested for setting up of central Waqf
board and state waqf board at centre and state level respectively. The purpose of which would
be to administer waqf properties. The most striking feature of this bill was that it recommended
that these bodies should be representative in nature and also independent in its functioning
from that of the state i.e., it should be without control of Government.21 This bill never saw
the light of the day and was dismissed in 1960 in ‘the Inter-State Waqf Conference’.

Although the bill was not accepted however the idea of such bodies to administer Waqf was
taken into consideration which led to setting up of a Central Waqf Advisory Council
temporarily to look into the administration of state. Thereafter a chapter was added in 1954 act
providing for establishment of Central Waqf Council, although the functioning of such body
was merely to advise the Government. This chapter also got place in 1995 Act with no
changes.22 The third chapter of Waqf Act 1995 deals with ‘establishment’, ‘finance’, ‘accounts
and audit of Central Waqf Council’.

With the Waqf (Amendment) Act, 2013, the role of Central Waqf council was enhanced from
being merely an advisory body to Central Government to body which advises state Government
and State Waqf board on various issues.23 Apart from this the Council has the power to take
Suo moto information from state waqf on any specific issue if any violation has come to fore
or council thinks there is a case of any sort of irregularity. It also has power to issue directives
which it deems fit to the board.24

Composition of Council

“The Council consists of Chairperson (Union Minister in Charge of Waqf) and other members
amongst Muslims not exceeding twenty in number appointed by Central Government from
representatives of Muslim organisations having all India character and national importance
(Three Persons), four persons of national eminence; one each from the field of administration
or management, financial management, engineering or architecture and medicine; three

21
Qaiser Shamim, The law and Administration of Auqaf in India All India Muslim Majlise-e-Mushawarat,
2017.p.55.
22
Syed Khalid Rashid, Waqf laws and Management Institute of Objective studies,2nd edition,2014, p.44-55.
23
The waqf Act 1995, s.9 (1).
24
Ibid, s.9 (4).

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Parliament Members of whom two shall be from the House of the People and one from the
Council of States; chairpersons of three Waqf Boards by rotation, two judges of Supreme Court
or High Court, one advocates of national importance, one person from Mutawallis and three
eminent scholars in Muslim law. At least two of these members shall be women.”25

The dominance of Central Government over the council can be seen from the fact it has the
power to make rules with respect to ‘the term of office of the members’, ‘their functions’,
‘application of Central Waqf Fund and maintenance of accounts’.26

Working of Council

The Central Waqf Council is supposed to meet twice a year to discuss issues regarding
administration of state. Apart from that various committee has been constituted within the
Council consisting of different compositions of members of council itself. These committees
meet more frequently to administer the everyday need of administration of waqf, to monitor
various programs and schemes related to ‘Development of Urban Waqf Properties and
Educational schemes, and various other administrative and financial matters. The council also
perform such other function as are required by state boards from time to time for better
management.27

Having mentioned this the main function of the council continues to be to advise the central
Government on issues relating to the functioning of Waqf Boards and management of waqf
across the country. The council also brings to light issues which are important to the community
or any specific schemes or programmes which could be introduced to promote the interest of
the community. It also advises the Government on important religious issues and management
of Mosques, Dargahs etc.

Various schemes and programmes have been launched by the Council one of the major projects
of central waqf council is ‘Scheme for Development of Urban Waqf Properties’ which in 2017
was renamed to ‘Shahari Waqf Sampatti Vikas Yojana’. The funds for this scheme are provided
by the ‘Grant-in-Aid’ of Central Government and ‘Council’s Revolving Fund’.28

25
Supra 23 s.9 (2).
26
Supra 23, s.12.
27
Bakht Ahmad Firoz, (2010), In the Name of Allah: Waqf corruption in India. Available at:
http://www.deccanherald.com/content/31093/in-name-allah-waqf- corruption.html.
28
The principal amount repaid by the loanee under the scheme forms Revolving Fund and it is again utilized for
minor projects.

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One important step which has been taken by Council is “the Scheme of Computerization of the
Records of the State Waqf Boards. In January 2018 it was renamed as Quami Waqf Board
Taraqqiati Scheme.” It was first introduced in 2009 by the Ministry of Minority Affairs, to
update all the records regarding Waqf across the country and prepare a database for the same
to ensure better management and transparency. There were also efforts to establish a ‘single
web-based centralized software application’ for better and coordinated administration by
council and the boards, but the development in this direction has been very slow so far and no
major steps has been taken.29

Drawback of the Council

The major source of income of Council is the 1% of the whole income of state boards which is
taken as contribution towards development. One major criticism is that this 1% amount taken
from boards is actually being used to maintain a body which technically has no power and its
only job is to advise the Government many see this as waste of Waqf resources which is
nowhere close to promoting the objective of waqf. This itself is controversial because usufruct
of waqf property is to be used only for the purpose for which it has been established.30

Apart from this there is little paradox in the composition of the Council. The primary function
of council is to advice central government thus the two are supposed to be different bodies.
However, her the ex officio head of council is minority affair minister so in a sense it means
central government giving advice to central government. Thus, making a mockery of the whole
system and making it vulnerable to political differences31

The provisions related to finance section 10-13 all gives overwhelming power to the central
government which takes away autonomy from the Council.

“The Central Waqf council has never prepared in an organized manner any scheme for the
development of Waqf in India. The administration of Waqf council is extremely slow and lacks
direction. The “toothless body” does not even have proper and organized records of all Waqf
properties. With the Waqf (Amendment) Act, 2013, the role of Council has enlarged, so are

29
The monthly progress report can be accessed from http://waqf.gov.in/mpr/mpr.php or
http://wamsi.nic.in/wamsi/progress/progress.jsp
30
Bakht Ahmad Firoz, (2010), In the Name of Allah: Waqf corruption in India. Available at:
http://www.deccanherald.com/content/31093/in-name-allah-waqf- corruption.html.
31
Ibid.

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the hopes of People. Instead of working like a puppet in the hands of Central Government,
Central Waqf Council should understand its duty and work accordingly.”32

In Yusuf Qureshi v. Moulana Mohammed Jamaluddin Deccani 33 that the government evidently
wanted to show that all members appointed fulfilled statutory requirements and therefore
government sought the bio-data of all members by asking the waqf board secretary to furnish
the same.

Sachar Committee Recommendation34

“A Union Minister occupies the position as the ex-officio President of the Central Waqf
Council. Given his preoccupations, often the Council is not able to prepare and take timely
action on matters of urgency. It is, therefore, proposed that a full time President should be
appointed from out of eminent persons like retired high court judges, chancellors and vice
chancellors of central universities and former chiefs of state Waqf Boards. The President may
hold office for a period of three years. The other members of the Central Waqf Council could
be nominated from a list of eminent Muslims drawn from various professions such as
architects, doctors, lawyers, chartered accountants and academicians. The representation of
MPs and MLAs as at present may be combined and their gross number in each state Waqf
Board may be reduced from the existing four to two. The Secretary of the Central Waqf Council
should be an officer of the rank of at least Joint Secretary to Government of India so that
meaningful and effective communication and interaction with government authorities is
facilitated. In order to be effective, this officer must have a good knowledge of Waqf matters,
Muslim scriptures and proficiency in Urdu.”

32
Supra 30.
33
AIR 1996 ap 187, p.191.
34
Chapter 11, Sachar Committee Report.

14
 STATE WAQF BOARDS
The Waqf Act 1954. 1995 all provide for establishing of The State Waqf Boards by the State
Governments.35 Such a board will have a 5-year term of office.36.The purpose of such boards
has been clearly laid down in the act itself which is administration of waqf properties etc. in a
State37

“If the number or income of Shia waqf properties in a State is more than fifteen per cent, a
separate Waqf Board for Shias may be established.”38 “The Board is a body corporate having
perpetual succession and a common seal with power to acquire, hold and transfer property and
can sue and be sued.”39

Composition of Waqf Boards

Section 13 provides for setting up of The Board while section 14 lays down its composition:

• “The State Government elects one and not more than two members from each of the
electoral colleges consisting of Muslim members of Parliament, State Legislature, Bar
Council and Mutawallis.
• The State Government also nominates one person among Muslims, having professional
experience in town planning, business management, social work, finance, revenue,
agricultural and development activities.
• One person each from recognised scholars of Shia and Sunni theology and one Muslim
officer of the State Government not below the rank of Joint Secretary to the State
Government.
• If the State Government is satisfied that it is not feasible to constitute an electoral
college of Muslim members of Parliament, State Legislature and Bar Council it may
nominate such persons as the members of the Board as it deems fit provided the reasons
are recorded in writing.
• The members of Board elect one from amongst themselves as Chairperson. In case of
Union Territories other than National Capital Territory of Delhi, the Board should

35
The waqf Act,1995, s.13 (1).
36
Ibid, s.15.
37
Ibid, s.32 (1).
38
Ibid, s.13(2),2(A).
39
Ibid s.13 (3).

15
 consist of not less than five and not more than seven members to be appointed by the
Central Government. At least two of these members shall be women.40
• Where there are no Muslim members the ex-Muslim members of Parliament, the State
Legislature or ex-member of the State Bar Council shall constitute the Electoral
College.”41

Powers and Functions

Section 32 of the Waqf Act 1995 list down functions of the board, which are as follows:

“1. To maintain a record containing information relating to the origin, income, object and
beneficiaries of every waqf.

2. To ensure that the income and other property of Waqf are applied to the objects and for the
purposes for which such Waqf were intended or created.

3. To give directions for the administration of Waqf.

4. To settle schemes of management for a waqf. Provided that no such settlement shall be made
without giving the parties affected an opportunity of being heard.

5. To direct the utilisation of the surplus income of a waqf consistent with the objects of a waqf.

6. To direct in what manner the income of a waqf, the objects of which are not evident from
any written instrument, shall be utilized.

7. To direct in any case where any object of waqf has ceased to exist or has become incapable
of achievement, that so of the income of the waqf as was previously applied to that object shall
be applied to any other object, which shall be similar, or nearly similar or to the original object
or for the benefit of the poor or for the purpose of promotion of knowledge and learning in the
Muslim community.

8. To scrutinise and approve the budgets submitted by Mutawallis and to arrange for the
auditing of account of Waqf.

9. To appoint and remove Mutawallis in accordance with the provisions of this Act.

10. To take measures for the recovery of lost properties of any waqf.

40
Supra 35, s.14.
41
Supra 35, s.14(2).

16
11. To institute and defend suits and proceedings relating to Waqf.

12. To sanction lease of any immovable property of a waqf in accordance with the provisions
of this Act and the rules made thereunder.

13. To administer the Waqf Fund.

14. To call for such returns, statistics, accounts and other information from the Mutawallis with
respect to the waqf property as the Board may, from time to time, require.

15. To inspect, or cause inspection of, waqf properties, accounts, records or deeds and
documents relating thereto.

16. To investigate and determine the nature and extend of waqf and waqf property, and to
cause, whenever necessary, a survey of such waqf property.

17. To determine or cause to be determined, in such manner as may be specified by the Board,
market rent of the waqf land or building.

18. Generally do all such acts as may be necessary for the control, maintenance and
administration of Waqf.”

Having listed all the functions of the board the most important function of board in present
times is to protect property from encroachment. The definition of encroacher as per Waqf Act
is “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.”42

Analysis of provisions

In the case of Maulana Qureshi Gulam Mustafa v. Union of India and Ors,43 The main ground
of challenge to the provisions of sections 13, 14, 32(a), 38, 61, 72 and 104 of the act is that in
the constitution of the wakf board believers of Muslim faith have been divided into two broad
categories 'sunnies' and 'shias' in their respective wakf. The provisions of the act have failed to
recognise the fundamental differences between distinct and predominant sect of muslims
popularly known as 'Sufi Silsila'. In this sect of sufies are included ahle sunnat -- alias sunni,
sufis, dargahis, barelv1 alias kadri, chisti, soharvardi, nakshabandi, rifaiya, madar1a. Nizami,
sabri, razvi, ashrafi, warsi, etc.For the purpose of convenience, we shall describe these sufi

42
Supra 35, s.3 (ee).
43
AIR 2002 Guj 252 at p.259.

17
silasilas as 'sufis', it is submitted that the wakf act recognises only two sects of muslims
'sunnies' and 'shias' which include orthodox sect of Muslim believers known as 'wahabis' alias
non-dargaht, devbandhis. Sufis have not been given any recognition or representation on the
wakf board. The court held that non-recognition of any religious faith or doctrine and omission
to give them representation deny ‘freedom of conscience, or right to profess practice propagate
religion’ guaranteed by Article 25. It also does not deny freedom to manage and administer
religious property guaranteed under Article 26 of the constitution. Therefore, mere non
recognition of sect of sufies in composition of waqf board does not infringe any right of the
Sufi under article 26 of the constitution to establish and maintain institution for religious and
charitable purposes.

In D. Venkata Krishna Rao v. Government of Andhra Pradesh44, the high court had to decide
as to whether the notification issued by Andhra Pradesh State Waqf Board declaring certain
lands as waqf property was illegal. It was contended on behalf of the government that those
lands were vested in the government. It was further pleaded by government that even as per
orders of Nizam-e-Atiyat and there was no permanent dedication to the waqf property. It was
also argued that in the absence of any permanent dedication, it could not be treated as waqf
property. And, therefore, ownership of the land always remained with the ruler, i.e., state. The
High court held that the property in dispute was vested in the government. And the government,
rightfully, enjoyed the authority to allot the land to anyone. In the present case, the government
allotted the lands to Andhra Pradesh Industrial Infrastructure Corporation, they in turn, allotted
it to various companies through public auction. These companies developed the land by
investing huge money. The high court held that notification issued by Andhra Pradesh State
Waqf Board was not legal and as such the allotment of the Manikonda land was not illegal.

Some of the provisions which concerns the actually functioning of board are from Sections 51
to 56 of Waqf Act, 1995 which deals with issues like ‘prevention of alienation of waqf
properties’, ‘recovery’, ‘prohibition on purchase’, ‘removal of encroachment’ and ‘restriction
on lease’.

In 2013 with amendment to the Waqf Act a new section 52 (A) was incorporated in the act by
virtue of which penalty was prescribed in case of ‘alienation of waqf properties’.45 From all
these section listed one of most controversial section is section 54, it gives power to the Chief

44
2012 (6) ALT 379.
45
Waqf (Amendment)Act,2013, s.52 A.

18
Executive Officer of the Board to give Suo moto notice to encroacher (or on application)
ordering him or her to evacuate the property so encroached. Such an order issued by CEO is
supposed to be enforced under section 55 by Sub Divisional Magistrate. Now this is what law
says but if we look into its implementation sad state of affairs come to fore, as the Sub
divisional officer rarely takes action such orders of CEO even in cases where magistrate has
paid heed, he has issued orders for fresh enquiry which is contrary to the section.46 This has
led to pendency of cases. As per the committee report over 60% of Waqf land is under
encroachment in Marathwada alone. As per estimate of Board thousands of cases needs to be
started against under section 54 of waqf Act,1995. Chief Executive Officer has passed orders
47
in 1088 cases, out of which only 21 orders were executed as on 30th June, 2007. These are
data of only two state and that too of past no new data is available. Till 30.09.2016, 23879
cases are pending under section 54, this n umber must have grown many folds in the span of
last 3 years.

Poor functioning of Waqf Boards

The major reason for poor functioning of board is non implementation of the Waqf Act. The
act makes specific provision under chapter three for setting up of State Waqf Board by State
Government despite this many states have failed to constitute such bodies. Some of these states
are those which have large number of Waqf property in their state like Andhra Pradesh, Bihar.
Another major reason for failure of these boards is that most of them are running with huge
vacancies Government take no steps to ensure that all the post are filled, because of such
vacancy most of the time board is unable to do its functions. The Chief Executive officer which
is one of the most major post in Board often remains vacant due to which board remains non-
functional many state Boards have also complaint regarding shortage of staff which leads to
48
very slow or non-functioning of the board. this severely hampers some of the essential
activities of the Board.

Some of these practical problems have been highlighted by Mr Nadwi which are as follows:
“Non-reconstitution of Waqf Boards can be mainly attributed to the following reasons: 49

(i) Boards not reconstituted after their term had expired;

46
National Conference on “Protection and Management of Waqfs” organized by Haryana Waqf Board from 5-7
February at Ambala.
47
, https://mahawakf.com/powers-and-functions Accessed on June 21st, 2021.
48
Ibid.
49
Mohammad Abdullah Nadwi, “Fate of Awqaf in India: A critical Appraisal” ISFIRE (2013) p.280.

19
(ii) Supersession of the Boards by the State Government;

(iii) Non-appointment of Members on the Board under certain categories which makes the
Board non-functional; and

(iv) Judicial intervention.”

The legal set up of almost all the Waqf Boards is very weak and the Boards are not in a position
to defend legal suits filed against them, because of their meagre resources. Lack of strong
Legislative steps is the main reason for pathetic condition of Waqf Boards in all over the
Country. All this non- functioning of Waqf Boards shows the weakness of provisions of Waqf
Act 1995 and lack of ability and will have concerned officials of Waqf.50

A very fine example of ill administration of Waqf properties by state Waqf board came to
surface in 2013 in the form of Karnataka Waqf Scam in which there was large scale
embezzlement of Waqf property amounting to Rs 2 Lakh Crore was carried out with collusion
of state board Mutawalli etc.51 In Delhi, AAP Government has ‘superseded’ the Delhi Waqf
Board, transferring all its powers and duties to the Secretary (Revenue) in the city
administration. In exercise of the powers conferred under Section 99(I) of the Waqf Act, 1995,
the Government of NCT of Delhi hereby supersedes the Delhi Waqf Board with immediate
effect for a period of six months,” said a notification issued by Revenue Secretary.52on the
ground of corruption and procedural irregularities the board was dissolved. This issue has made
the Waqf Board unpopular one and less trust worthy.53

Sachar Committee Recommendations

“The chairmen and members of the state Waqf Board can be selected from a list of eminent
persons in each state. For example, a retired high court judge, the former vice chancellors, and
those who have established Muslim educational institutions of repute should be considered for
appointment in the Waqf Board. The other members of the Waqf Boards can be nominated
from a list of Muslim professionals drawn from various professions such as the architects,

50
Supra, 47.
51
Dr. Kahkashan Y. Danyal, “Administration of Waqf” Civil & Military Law Journal Vol 49 Number 3 166.
52
AAP government supersedes waqf board strips of it powers, 22 nd October,2015.
https://indianexpress.com/article/cities/delhi/aap-goverment-supersedes-waqf-board-strips-it-of-powers/
accessed on 24th June,2021.
53
LG dissolves waqf, 8th October 2016. https://www.thehindu.com/news/cities/Delhi/L-G-dissolves-Delhi-
Waqf-Board/article15474523.ece accessed on 24th june,2021.

20
doctors, lawyers, chartered accountants and academicians. The representation of MPs and
MLAs as at present may be combined and their gross number in each state Waqf Board may
be reduced from the existing four to two. The Act does not provide any qualification for a
person to be appointed by the state Government as Chief Executive Officer of the Board. It
has been found that in cases where the Chief Executive Officer is not high ranking in the
hierarchy of state bureaucracy the interests of the Waqf Board often suffer. It is, therefore,
necessary that the Chief Executive Officer must be full time and must rank with senior officers
of the state Government. Ideally a Class I Officer of All India or Central Services directly
recruited through UPSC should be appointed as CEO.

There is strong case to create a new cadre of officers to manage the affairs of State Waqf Boards
and Central Waqf Council. It is estimated that up to 200 Group-A officers are needed to service
the Waqfs affairs across India. The government may, therefore, consider creating a new cadre
of officers to be recruited by the UPSC so that they can deal with the specific affairs of the
Waqfs efficiently. Such officers, however, should have the knowledge of Islamic law and Urdu,
as most of the documents relating to Waqfs are in that language. Some officers of this cadre
could, subject to the concurrence of the Central Haj Committee, be seconded to the Central and
State Haj Committees for giving them administrative support.”54

54
Chapter 11, Sachar Committee Report.

21
 MUTAWALLIS

As per The Waqf Act 1995 Mutawalli means “as 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, Khadim, Mujawar, Sajjadanashin, Amin or other person
appointed by a Mutawalli to perform the duties of a Mutawalli. And it also includes any person
committee or corporation for the time being managing or administering any waqf or waqf
property.”55

Section 50 of The Waqf Act, 1995 lays down the duties of Mutawalli which are as follows.
“Every Mutawalli has to carry out the direction of the Board: -

• to furnish such returns and provide such information as may be required by the Board;
• to allow inspection of waqf properties, accounts or records or deeds and documents and
• to discharge all public dues and to do any other act as required under the provisions of
Waqf Act.”

Section 61 of the act provides penalty for Mutawalli in certain cases. “The Mutawalli can be
penalised with the fine up to INR 10,000 or imprisonment for six months or both if he fails to

i. apply for the registration of a waqf; furnish statements of particulars or accounts or

returns as required under this Act;
ii. supply information of particulars as required by the Board; allow inspection of waqf
properties, accounts, records or deeds and documents relating thereto;
iii. deliver possession of any waqf property, if ordered by the Board or Tribunal;
iv. carry out the directions of the Board;
v. discharge any public dues or do any other act which he is lawfully required to do by or
under this Act.”56

Section 62 provides tat in case if the office of the Mutawalli becomes vacant due to any reason
that the Board has the power to appoint any person as Mutawalli if he fulfils certain condition,
such appointment is for specific period of time.57 Section 64 of the Act lays down conditions
when Mutawalli can be removed from his office by the board.

55
Supra 35, s.3 (i).
56
Supra 35, s.61 (1).
57
Supra 35, s.62.

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“(a) has been convicted more than once of an offence punishable under section 61; or

(b) has been convicted of any offence of criminal breach of trust or any other offence involving
moral turpitude, and such conviction has not been reversed and he has not been granted full
pardon with respect to such offence; or

(c) is of unsound mind or is suffering from other mental or physical defect or infirmity which
would render him unfit to perform the functions and discharge the duties of a Mutawalli; or

(d) is an undischarged insolvent; or

(e) is proved to be addicted to drinking liquor or other spirituous preparations, or is addicted to

the taking of any narcotic drugs; or

(f) is employed as a paid legal practitioner on behalf of, or against, the waqf; or

(g) has failed, without reasonable excuse, to maintain regular accounts for two consecutive
years or has failed to submit, in two consecutive years, the yearly statement of accounts, as
required by sub-section (2) of section 46; or

(h) is interested, directly or indirectly, in a subsisting lease in respect of any waqf property, or
in any contract made with, or any work being done for, the waqf or is in arrears in respect of
any sum due by him to such waqf; or

(i) continuously neglects his duties or commits any misfeasance, malfeasance, misapplication
of funds or breach of trust in relation to the waqf or in respect of any money or other waqf
property; or

(j) wilfully and persistently disobeys the lawful orders made by the Central Government, State
Government, Board under any provision of this Act or rule or order made thereunder;

(k) misappropriates or fraudulently deals with the property of the waqf.”

In Ahmad Arif v. Wealth Tax Commissioner,58 Supreme Court held “a mutawalli has no power
to sell, mortgage, or lease Waqf property without prior permission of the Court or unless that
power is explicitly provided to the mutawalli in Waqfnama. A person who is a major, of sound
mind, and who is capable of performing the functions of the Waqf as desired by the wakif can

58
1971 AIR 1691.

23
be appointed as a mutawalli. A male or female of any religion can be appointed. If religious
duties are a part of the Waqf, then a female or a non-Muslim cannot be appointed.

In the landmark case of All India Imam Organization v. Union of India59 the supreme court
held that in charge of religious duties are entitled to emoluments even in the absence of
statutory provisions in the waqf Act, 1954.

Privy Council in Shahar Bano v. Aga Mohammad,60 held “there is no legal restriction on a
woman becoming a mutawalli if the duties of the Waqf do not involve religious activities.”

Under the law of Waqf office of Mutawalli is of great importance. When a Waqf is created
Waqif himself or herself appoint a Mutawalli it may also happen that instead of appointing any
other person as Mutawalli he may choose to be a Mutawalli himself. Under Sunni law if a waqf
is created without a Mutawalli then the waqif himself will be treated as the first Mutawalli
however under Shia law beneficiaries are to treated as first Mutawalli of Waqif doesn’t appoint
one.

59
AIR 1993 SC 2006.
60
(1907) 34 I.A. 46.

24
 CONCLUSION
The institution of waqf was one of the novel ideas for social economic development of weaker
section of society introduced in Islam. This institution saw its glorious days in Arab where
large number of properties were given in waqf by “haves” for religious and charitable purpose
and for development of “have nots”. The glory followed in India with Mughal rule, however
with the onset of British rule the dark day for this institution began.

After independence hopes were high that the glory of this institution will be reinstituted but
nothing of this sort happened rather the institution was further crippled by the more than
required interference of Government. The misery doesn’t stop here not only the Government
took the whole institution of Waqf under its control it did nothing for promotion of Waqf
properties or its usufructs in fact large part of the Waqf properties were acquired lawfully as
well as unlawfully with or without sufficient compensation.

Since 2013 Waqf (Amendment)Act for Waqf management has been passed and amended time
and again but none of those legislation in anyways try to promote the institution. Though there
are some provisions to safeguard the properties but same are hardly put to any use.

The sorry state of affairs of wakfs calls for administrative and organizational reforms. At
present, the management of Wakf properties is seriously impaired both due to high incidence
of litigation and poor management. Often important Wakf cases, and thereby valuable
properties, are lost because of lack of financial and administrative resources. Therefore,
strengthening Wakf Boards administratively with necessary financial and legal back-up is
absolutely necessary.

25
 REFERENCES

STATUTES

• The Bihar Wakf Act 1947.

• The Bombay Public Trusts Act 1950.
• The Constitution of India, 1950.
• The Dargah Khwaja Saheb Act 1955.
• The UP Muslim Wakfs Act 1960.
• The Waqf (Amendment) Act, 2013.
• The Waqf Act 1995.
• The Waqf Act, 1954.
REPORT
• Sachar Committee Report 2006.
BOOKS:

• Aqil Ahmad, Mohammedan law, 27th edition (2021) Central law Agency.
• Diwan Paras, Law of Endowments, Waqfs and Trusts, Allahabad: Wadhwa & co., 3rd
Ed.) 1992
• Mulla, Commentary on Mohammedan Law, 2nd Ed. Dwivedi Law Agency, 2009,
Allahabad.
• Prof. I.A. Khan, Mohammedan Law, Central law agency, Allahabad 23rd ed.2010.
• Syed Khalid Rashid, Waqf laws and Management Institute of Objective studies2nd
edition, (2014) Institute of Objective studies.

ARTICLES

• Dr. Amir Afaque Ahmad Faizi, “Waqf Record Management in India” Center for Rural
Studies LBSNAA, Mussoorie
• Rashid, S. Khalid, “Waqf Administration in India from 1947 to 1997: An Appraisal and
Critique,”: Radiance, Vol.34. New Delhi 1997
• Mohammad Abdullah Nadwi, “Fate of Awqaf in India: A critical Appraisal” ISFIRE
2013.
• Qaiser Shamim, “The law and Administration of Auqaf in India” New Delhi: All India
Muslim Majlise-e-Mushawarat, 2017.

26
 • Bakht Ahmad Firoz, (2010) In the Name of Allah: Waqf corruption in India. Available
at: http://www.deccanherald.com/content/31093/in-name-allah-waqf- corruption.html.

WEBSITES:

• www.westlawindia.com
• www.indiakanoon.com
• www.manupatra.com
• www.scconline.com

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