STATUTORY FRAMEWORK ON WAQFS IN INDIA MUSSALMAN WAKF ACT, 1923 The reason for this legislation due to the growing feeling and demands by the Muslim community that numerous wakfs were being wasted or systematically misappropriated

STATUTORY FRAMEWORK ON WAQFS IN INDIA
MUSSALMAN WAKF ACT, 1923
The reason for this legislation due to the growing feeling and demands by the Muslim community that numerous wakfs were being wasted or systematically misappropriated. This legislation did not go the whole hog. It was limited to
a. Filing of description of the Wakf properties
b. Gross income and expenditure including salaries and other details etc
It had to be filed in the District court and the court was to publish the details.
The accounts had to be audited by the Government if it exceeded Rs. 2000.00 and by an officer appointed by the Court if it was less than this amount. The penalties were for violation of the provisions of the Act. The Act did not have any provision for determination of the nature and extent of the Wakf property. It was entire dependent on the filing of the mutawalli.
The courts were burdened with additional responsibility. There was no administrative machinery to control the mutawallis.
To set right this situation, the Provincial legislatures started bringing out their own legislations. This was possible by virtue of Section 100 of the Government of India Act, 1935. As per Entry 34 List II of the Seventh Schedule of the said Act, it was left to the provincial legislature to deal with Charities and charitable institutions; charitable and religious endowments. The Central legislature had the power to deal with trust and trustees since it fell under Entry 9 of List III of Seventh Schedule.
The first was the State of Bengal enacted the Bengal Wakf Act, 1934. It created the board for wakfs for the first time. The mutawallis were restricted while dealing with alienations of Wakf properties. It was also for the first time that the wakfs were called upon to pay 5% of their income towards Wakf fund.

This Act was soon followed by
the United Provinces Wakf Act, 1936;
the Delhi Muslim Wakfs Act, 1943 and
the Bihar Wakfs Act, 1947.
The native ruler of Hyderabad passed the Hyderabad Endowment Regulation of 1939.
These legislations had one loop hole. The state Governments had the power to exempt from the operation of the act – any wakfs.
None of these legislations were made applicable to The Dargah Khawaja Sahib Act, XX of 1936. The Government of India has always treated the Moinuddin Chishti Dargah at Ajmer as a special category. This legislation too was subsequently repealed on the recommendation of Justice Ghulam Hassan committee, the Dargah Khawaja Saheb Act, 1955 was passed.
WAKF ACT OF 1954
Definition of Waqf –
Prior to the Mussalman Wakf validating Act, 1913, Sir Ameer Ali on the basis of texts opined
“Any person or whatever creed may create Wakf, but the law requires that the object for which the dedication is made should be lawful according to the creed of the dedicator as well as the Islamic doctrines. Divine approbation being the essential in the constitution of a Wakf if the object for which a dedication is made is sinful, either according to the laws of Islam or to the creed of the dedicator it would not be valid”

For the first time, the legislature took a view that only a person professing Islam can create a waqf. This was as per the definition under the Mussalman validating Wakf Act, 1913. It defined Wakf as
“Wakf” means the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable…

This definition has been faithfully adopted under section 3 of the Wakf Act, 1954 and under Waqf Act, 1995.
As it stands today, a waqf can be created only by a Muslim. A non-Muslim can only dedicate a property in SUPPORT of an existing waqf and not create a new one – See, Madras Wakfs (Supplementary) Act, 1961, Section 66C of the Wakf Act, 1954 and Section 104 of Waqf Act, 1995.
This has to a large extent done violence to the concept of waqf under Islam. To give a few examples –
Examples of institutions created by non-Muslims : –
Nagore Dargah – 200 acres of land were given by King Achyuta Deva Raya, younger brother of Krishna Deva Raya to Shahul Hameed Auwliya. He made those grants as the King was cured from acute ill health by Shahul Hameed Auwliya

Madrasa Aliya or Calcutta Madrasa, Presently, Aliah university – founded by Sir Warren Hastings, Governor – General for India, under the East India Company.

Ramjas College – founded by Rai Sahib Kedar Nath, who retired as District Judge from the Punjab Judicial Service. He dedicated vast extents of properties as waqf for educational institutions.

The Mussalman Wakf Act, not being sufficient, S.M. Ahmad Kazmi, a member of parliament moved a private member bill in 1952. This was supported by the congress party, particularly, Maulana Abul Kalam Azad and finally, it became the Wakf Act, 1954.
It contemplated a commissioner of survey of wakfs. He was to survey the entire state and submit a report to the Government. This was to be then placed before the Wakf Board. On receipt of its comments, the State Government had to notify the list of Wakfs. The period of limitation for challenging this notification was one year.
The issue arose was whether the commissioner had the power to go into disputes regarding nature of wakfs. While the Rajasthan High court held that the Commissioner of Survey had no power – Radha Krishna v. Board of Wakfs, Rajasthan – AIR 1967 Raj 1. It was set at rest by the Supreme Court in Board of Wakfs, Rajasthan v. Radha Krishna, AIR 1979 SC 289.
The special limitation, of barring suits to be filed after one year, was confined to persons to whom notices were issued, inquiry was conducted before the notification. Still the parties were sent to civil court.
Following the Bengal example, the Wakf board was constituted as a statutory body, with certificate of incorporation and body corporate with perpetual continuity.
A central Wakf council was also formed by amendment in 1964. Its role was limited. It could only “aid and advise” the central government. Unlike the limited scope of the previous legislation, yet again following the Bengal example, the Wakf Act, 1954 gave the power to the state government to form separate boards for Shia and Sunnis. It gave representations to members of the Parliament, the State legislatures, Bar council and mutawallis.
Section 15 of the Wakf act, 1954 expanded the scope of powers of the State Wakf Board. The board was vested with the power of the civil court. the mutawallis could be appointed and removed only by the Wakf board. It had power to frame schemes but Justice Ismail took a view that the board could not interfere with schemes framed by court.
The act was amended in 1964 to increase the definition of Wakf to include Mashrut Ul Kidmat, imambaras, musafirkhana etc. these were always wakfs but were excluded by the definition as it stood in 1954.
Several amendments were made in 1984 but apart from two provisions, they were not notified. The two provisions that were notified were one increasing the period of limitation from 12 years to 30 years (section 66 G), for Wakf properties and application of Wakf act to evacuee properties (section 66 H).
Finally, to the extent that the Wakf Act, 1954 applied – the Mussalman Wakf Act, 1923; (42 of 1923.) stood replead.
THE PUBLIC WAKF (EXTENSION OF LIMITATION) ACT, 1959
This act was made in order to protect Wakf properties from claims of adverse possession. Due to partition, in northern India, where several Wakf were existent were left unattended because of migration of mutawallis from India to Pakistan. These properties came under the control of those who did not have a right to control, manage it. The Act extended the period of limitation to file suits from 14th August, 1947 and before 7th of May, 1954 (the date of the Wakf Act, 1954) stood extended to 15th day of August, 1967. An interesting case is A.P. Wakf Board v. Dowlat Bibi, AIR 1983 AP 57 – https://indiankanoon.org/doc/1907895/. It had though the institution was a mosque, since the defendant came into possession of the property on 1st of June, 1954, her claim was adverse to that of the institution.
Such an interpretation does no good because the law through out is once a Wakf always a Wakf. Even if a mosque is demolished, the institution continued to be on of a mosque.
THE WAKF ACT, 1995

This is a comprehensive legislation on Auqafs. The entries under which this legislation was made was Entry 10 and Entry 28 of List III of Seventh Schedule of the constitution of India. The constitutional validity was challenged before the high courts but was upheld.
the definition of waqfs now includes waqf – alal – aulad. That is those waqfs which have been created primarily to benefit the descendants of the waqifs and if none is left, to the benefit of the public. The Madras high Court held that there is a difference between waqf alal aulad simpliciter and waqf alal aulad which are composite. By this differentiations, those which are simpliciter were kept out of the jurisdiction of the waqf board. Justice M.M. Ismail authored that judgment. https://indiankanoon.org/doc/731923/. However, the present Act makes no such differentiation. To the extent the property has been dedicated for pious, religious and charitable purposes as recognised by Islamic law, it comes within the jurisdiction of the waqf board.
Substantially, the provisions of survey etc were maintained. Save instead of the civil court, the powers were vested with the waqf tribunal. To get over the judgment in Radha Kishan’s case, a proviso was added to section 6 to bring in the period of limitation for third parties also. Sadly, it was omitted by the waqf amendment act, 2013.
The central waqf council continues under the waqf act, 1995. Though there are questions on whether it is necessary, an important role of the CWC is in granting loan to various Waqf Boards for undertaking developmental works pertaining to the waqf lands and waqf properties.
Mutawalli is a manager of the waqf properties but is not the owner. His office is akin to that of a trustee but he is not a trustee. This is so because in case of a trust, the property vests in the trustees but in Islamic law, it does not. It vests with the almighty with the temporal supervision with the mutawallis.
While a woman can be appointed as a mutawalli, she cannot be a sajjadanashin – Syeda Nazira Khatoon (D) By Lr. vs Syed Zahiruddin Ahmed Baghdadi – https://indiankanoon.org/doc/135425879/
The mutawalli’s power to give properties on long term lease was restricted. Prior to the 2013 amendments, the waqf could give the property on lease for a period not exceeding one year and for leasees beyond the period of 1 year but less than 3 years, it could be done with the permission of the Wakf act. The mutawalli could also alienate the property with the permission of the waqf board. Now this power has been taken away totally.
Normally a mutawalli is not paid. However, the discretion is left to the waqif. If no such remuneration is fixed, the courts have decided that up to 1/10th of the income of the waqf can be fixed as the remuneration.
Under the waqf act, 1995, the definition has been expanded to include naib mutawalli, kadims, mujawars and sajjadanashin also.
Even person, who are intermeddling with waqf properties, can be treated as defacto mutawallis and properties can be recovered from them.
The office of a mutawalli is not hereditary in Sunni law but can be so in Shia law. However, the appointing authority before the legislations was the Qazi, after the legislations till 1954, it was the civil court and after the waqf boards have bene formed, it is the exclusive power of the waqf board.
ON WHOM CAN THE MUTAWALLI SPEND ?
The obvious answer is it should be as per the directions of the Waqif, on the institutions and on the beneficiaries. It is espcieally so in case of waqf al al aulad.
The Holy Quran does not differentiate on spending on persons other than Muslims. I refer to Surah Al Baqarah it is in chapter 2 verse 215.
It reads
They ask you what they should spend (in the Way of Allah)?

Say: “Whatever you spend of good (in the Way of Allah) must be for the parents and the near of kin and the orphans and the needy and the stranded, and whatever you do of good, truly, Allah knows it well”.

TRIBUNALISATION OF THE WAQF ACT

The formation of tribunals for waqfs is not something new. It was tried by the UP Muslim Wakf Act, 1960. The District Judges were appointed as Wakf tribunals. However, it was not very effective. Therefore, it was suggested by the Wakf inquiry committee of 1976 that instead of one waqf tribunal for each district, it would be advisable to have a waqf tribunal for three or more districts. It was accepted in 1984 amendments but was never notified. Therefore, under the new act, Section 83 to 95 tribunals were constituted. Tamil nadu followed the UP example of 1960. It designated principal subordinate judges of every district as a tribunal. Therefore, pendency increased. Hence, today, we have a multi member tribunal in Chennai. It consists of a judicial officer, a revenue official as well as one lawyer/ judge selected after interview. The tribunal functions well however, the rules require serious re-look. To give an example, a judgement has to be pronounced by all three. Even if one member is absent, the tribunal cannot function.
Has the jurisdiction of the civil courts been totally excluded? It should not and cannot be. A very recent judgment of the Supreme Court throws light on this – Punjab Wakf Board v. Sham Singh Harike, (2019) 4 SCC 698. The Court held the bar is confined only to those matters which are required to be determined by the Tribunal under the Waqf Act, 1995. Thus, civil court possesses jurisdiction to entertain suit and proceedings which are not required by or under the said Act to be determined by the Tribunal. In order to determine the said bar of jurisdiction of civil court, one has to ask question as to whether the issue raised in the suit or proceeding concerned is required to be decided under the Wakf Act, 1995 by the Tribunal, under any provision or not. If the answer to that question is in the affirmative, the bar of jurisdiction of civil court would operate.
WHO CAN APPROACH THE TRIBUNAL?

Any person interested in the waqf can approach the tribunal or waqf board for his grievance. Any person who derives benefit from a waqf can be treated as a person interested in the waqf. A musali in a mosque, a person who goes to a dargah can be a person interested. For example, a few dargahs like the one in Nellore or the Nagore Dargah itself attracts a large number of those professing Hinduism. I would argue that even they can be treated as persons interested.
Further, when it comes to filing of suits, a regular defence was that only a mutawalli or a waqf board should file a suit. This was settled by A. Selvam J. he held even a worshipper can file a suit – M.K. Sultan v. Hameed Shafi – https://indiankanoon.org/doc/11324202/
FINALITY CLAUSES INCORPORATED BUT STILL ELUDES ?
Certain provisions of the Act give finality to the orders passed by the authorities under the Act. The effect of this finality is that the same cannot be challenged before the tribunal created under the Act but can be challenged only before the High Courts under Article 226 of the constitution of India.
See,
i. Re v Medical Appeal Tribunal ex parte Gilmore, (1957) I QB 574,
ii. Kihoto Hollohan v. Zachillu and Ors, 1992 (1) SCR 686 (paragraph 41)
Without seeing this differentiation, the King of alternate remedies, Justice Katju held that in all matters, the solution lies to the Waqf Tribunal – Board of Waqfs, West Bengal v. Anis Fatma Begum 2012 (12) SCALE 323.
The provisions dealing with finality under the waqf act are :
Section 6 (1) & Section 6 (4) – order of tribunal in proceedings with respect to order of the Survey Commissioner,

Section 7 (1) & (4) – decision of the tribunal on matters referable therein

Section 26 – decision of the State Government on reference made by the CEO

Section 32 (3) – order of the tribunal with respect to settlement of schemes by waqf board

Section 33 (6) – order of the tribunal in a proceedings under Section 33
Section 40 (2) – decision of the waqf tribunal in a proceedings where the board has decided if a property is a waqf property or not

Section 48 (4) – order passed by the waqf tribunal in a proceeding based on auditor’s report

Section 52 (4) – order passed by the tribunal in a proceeding under Section 51

Section 55A – order of the tribunal in a proceeding relating to disposal of the property left behind by unauthorised occupants,

Section 64 (4) – order of a tribunal in proceedings relating to removal of a mutawalli

Section 65 (2) – order of the state government in proceedings relating to direct management of a waqf

Section 67 (4) – supersession of a committee of management

Section 69 (3) – order of the board framing a scheme

Section 72 (7) – Order of the board in a proceeding relating to budget and annual contribution

Section 73 (3) – order of the tribunal in a proceedings given direction of the CEO to a bank for payment of contribution from waqf accounts,

Section 78 (3) – order of the State Government relating to budget of the board

When these orders have been given finality by the statute, it ousts the jurisdiction of the High Court under Section 83 (9) Proviso. The only remedy is under Article 226 or under Article 227. Therefore, the power of the High Court to interfere is not as wide as those provided for under Section 83 (9) Proviso. It can deal with the decision-making process but not with the decision itself.
I would argue that a writ petition is maintainable against the order of a waqf tribunal relying upon
i. Estep v. United States, 327 U.S. 114 (1946) [William O Douglas J – joined by Murphy, Rutledge and Frankfurter JJ – dissent by Burton J)
ii. Heikkila v. Barber et al. 345 US 229 – https://www.law.cornell.edu/supremecourt/text/345/229
iii. R v Northumberland Compensation Appeal Tribunal ex parte Shaw ([1952] 1 KB 338)
iv. R v Medical Appeal Tribunal ex parte Gilmore [1957] 1 QB 574 (CA) (Per Lord Denning J)
v. R (on the application of Privacy International) v Investigatory Powers Tribunal and others (Respondents), [2019] UKSC 22
https://www.supremecourt.uk/cases/docs/uksc-2018-0004-judgment.pdf
but I am inhibited from doing so by two judgments of the Madras high Court –
T. Rengarajan v. V. Ramachandran – CRP (MD) 609 of 2017 dated 11.10.2018 – https://indiankanoon.org/doc/171658003/
E.S. Sundara Mahalingam v. The Special tribunal WA 4021 of 2019 – https://indiankanoon.org/doc/107649342/
which have held that a writ against a tribunal is not maintainable. The difference between tribunal headed by a judge belonging to the judicial service is different from a judge sitting as a civil court. this subtle difference ought to have been brought to the notice of the learned judges who dealt with the issue.
I would submit that in the light of the recent judgment of Justice V. Ramasubramaniam in M/s. Embassy Property Developments Pvt. Ltd. vs. State of Karnataka & others, 2019 (17) SCALE 37
TO WHOM THE ACT APPLIES?
Unlike the previous legislations, the Wakf act, 1954 as well as the waqf act, 1995 do not give any power of exemption. Therefore, they are applicable across the board to all waqfs situated whether before or after the commencement of the act.
An interesting judgment is the H.H. The Prince of Arcot Endowments vs. the Tamil nadu Wakf board and ors., 2006-4-LW 479 = (2006) 3 MLJ 856. The division bench held a special legislation passed for protection of a particular waqf to be treated as a scheme under the waqf act, 1995.
None of these legislations were made applicable to The Dargah Khawaja Sahib Act, XX of 1936. The Government of India has always treated the Moinuddin Chishti Dargah at Ajmer as a special category. This legislation too was subsequently repealed on the recommendation of Justice Ghulam Hassan committee, the Dargah Khawaja Saheb Act, 1955 was passed.
STATUTORY DECLARATION
The waqf act had been interpreted to be a complete code by the Supreme Court in M.P. Wakf board v. Subhan Shah – https://indiankanoon.org/doc/1907020/. Despite this, there were controversies. They have all be set at rest by the declaration of the Parliament under Section 108A.

You may also like...

Leave a Reply

Your email address will not be published. Required fields are marked *

Call Now ButtonCALL ME