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Wakf
Boards
1. Introduction
The initiatives relating to Madarsas were
discussed in Chapter 4. The other important community-specific
initiative relates to Wakfs. To earmark a part of what one has
earned or inherited and set it apart in perpetuity for
charitable purposes is considered an act of piety. As such,
generous Muslims adhering to the principles of ‘endowment’
embedded in Islam often bequeath large and valuable acreage of
properties in the name of God. The proceeds from these
properties are dedicated to meet the exclusive needs of the poor
and also to the perpetual maintenance of the bequeathed
property. This type of property bequest made by Muslims is
called ‘Wakf’.
The objectives of Wakfs recognized in Islam as
religious, pious and charitable include, though are not limited
to, the following:
Ø
Establishing, maintaining and
fostering educational institutions, hostels, libraries, sports
facilities and so on. Awarding of scholarships so as to promote
education.
Ø Providing health care, relief and financial
aid to all poor including the victims of communal riots and
natural disasters.
Ø Construction of musafirkhanas and marriage
halls for community use.
Ø Maintenance of mosques, dargahs, graveyards
and consolidation of Wakf properties.
Ø Financial support to poor widows, indigent and
physically handicapped persons; arranging the marriage of
indigent girls and maintenance of divorced women.
Ø Payment of salary to Imams and Muezzins as
ordered by Supreme Court.
Apart from landed (often agricultural) and
built-up commercial and residential properties, Wakfs in India
include Mosques, Dargahs, Khanqahs, Maqbaras, Ashoorkhanas,
Qabristans (graveyards), Takiyas, Idgahs, Imambaras, Anjumans
and so on.
Although the Wakf is a perpetual bequest, the
Mutawallis often tend to have almost absolute control over the
income generated from it.
2. Economic Potential of Wakf Assets in India
The Committee asked all the state Wakf Boards
and Central Wakf Council to provide data on the nature, type and
distribution of Wakf properties especially taking the location
factor into account. It was expected that such data would be
routinely available as the Wakf surveys of the properties have
to be undertaken on a regular basis as per the Act. However, the
information was not available as in many states such surveys
were not up to date. Data on the income from rental and other
sources were also sought. A round-table brainstorming workshop
was held in Delhi to get first hand information and views about
the Wakfs across India. The chairpersons and CEOs of Wakf
Boards, a few academics and practitioners of Wakf law and former
chairpersons of Wakf Boards participated. The Committee also
received a number of representations from mutawallis and their
associations.
There are more than 4.9 lakh registered Wakfs
spread over different states and union territories of India.
Large concentration of the Wakf properties is found in West
Bengal (1,48,200) followed by Uttar Pradesh (1,22,839). Other
states with a sizeable number of Wakfs are Kerala, Karnataka and
Andhra Pradesh. The total area under Wakf properties all over
India is estimated at about 6 lakh acres and the book value at
about Rs. 6,000 crores. However, the market value of these
properties will be higher manifold. For instance, a recent
estimate of the current value of Wakf properties in Delhi alone
is in excess of Rs. 6,000 crores. A good number of the Wakf
properties in urban areas are found to be located in city
centres where the current value is many times more than the book
value. However, the current annual income from these properties
is only about Rs. 163 crores, which amounts to a meagre rate of
return of 2.7 percent. Of this amount the Wakf Boards are
entitled to receive a share at the rate of 7% which is used for
the working expenses of the Wakf Boards. The remaining amount is
expected to be spent on the stated objectives of the respective
Wakfs.
As the book values of the Wakfs properties are
about half a century old, the current value can safely be
estimated to be several times more and the market value of the
Wakf properties can be put at Rs. 1.2 lakh crores. If these
properties are put to efficient and marketable use they can
generate at least a minimum return of 10 percent which is about
Rs. 12,000 crores per annum. It has emerged from the data that
wherever the Wakf lands have been put to efficient use they have
generated an average return of about 20 percent. It is obvious,
therefore, that if some of these Wakf properties situated in
prime locations across the country are developed and put to
commercial use, their market value and annual income will shoot
up. The enhanced Wakf income could be utilized to upgrade the
educational status and improve other human development
dimensions of the beneficiaries of Wakfs. This is being done
even now but such success stories are few and far between. The
Committee would, however, like to put a caveat here. The optimum
utilization of Wakf properties would require proper
administrative back-up by the central and state governments as
well as legislative support by way of crucial amendments to the
Wakf Act and some other pieces of existing legislation.
3. Constraints on the Fulfilment of Wakf
Objectives
To safeguard the existence of a large number of
Wakf properties in India, a comprehensive Wakf Act was passed by
Parliament in 1954. Over the years, during the process of the
implementation of the Wakf Act, many lacunae and loopholes were
noticed and the Wakf Inquiry Committee recommended amendments
that were incorporated in the Wakf Act of 1995. Despite these
efforts, the management of the Wakf Boards and the properties
remains unsatisfactory. This is due to inadequate empowerment of
the State Wakf Boards and the Central Wakf Council.
3.1 Organizational Constraints
Though there are conscientious Mutawallis too,
yet there are instances where Wakfs are treated by Mutawallis as
their personal properties. From dargahs the offerings are
sometimes appropriated by them. In any case, Mutawallis are
classically known for not coming forward to seek grants or loans
from the Central Wakf Council or Wakf Boards for the development
of the Wakf properties. Proposals for educational institutions
are replaced by them for construction of shops. Rental is
negotiated at low level in lieu of extraneous considerations.
Despite the above mentioned efforts, the management of the Wakf
Boards and the properties remain unsatisfactory due to
inadequate empowerment of the State Wakf Boards and Central Wakf
Council. Wakf properties which sub-serve the larger public
interest should be protected as such. However, Wakf properties
where specific religious rites are observed because of the
importance of the site should be respected. Such a policy will
lead to effective social cohesion and economic development.
Therefore an effort should be made not to include such
properties in land acquisition.
Non-availability of Records
The records of Wakf properties are not well
maintained and are prone to the vagaries of weather, mutilation
and loss. This calls for immediate remedial action. These should
be digitized under a Government programme. The Central
Government may consider special grants through the Central Wakf
Council to undertake this task and supervise the quality of
documentation. In spite of listing of Wakfs in statutory surveys
often the properties are not registered as Wakfs in revenue
records and in the records of the Local Self Governments. These
lacunae and inaction on the part of the state governments are
the source of prolonged litigation.
Encroachments on Wakf Properties
Encroachments on the Wakf properties are made
not only by private persons but also by the government and its
agencies as was brought to the notice of the Committee across
the country. The encroachments are in two forms - (1) an
absolute usurpation of property with no rents or other payments
of any sort; and (2) those where the occupying party pays a
nominal rent which has not been revised for decades. The number
of private encroachments is very large. They are scattered all
over the country and are often involved in litigation. Focused
attention is, therefore, called for on encroachments by the
State that is the custodian of the Wakf interests.
It would be seen that the attitude of the state
governments and their agencies has resulted in large-scale
abrogation of the cherished and charitable objectives of the
Wakfs for which such endowments were created. In fact
encroachment by the State on the Wakf lands, besides causing
embarrassment to the authorities and emboldening private
encroachers, has stood in the way of reform and reconstruction.
As early as the 1970s Prime Minister Indira Gandhi wrote a
letter to the Chief Ministers asking them to either vacate or
pay to the Wakf Boards the market value of the Wakf properties.
Alternatively, the directive was to pay lease rent at market
rents for the Wakf properties encroached upon by the governments
and their agencies.
3.2 Present day Management of Wakfs
To attain the objective of putting the Wakf
properties to optimum use fresh institutional support is
essential. Presently state Wakf Boards comprise Muslim MPs, MLAs
and some others. They may not be necessarily equipped with the
technical expertise and knowledge required to exploit the Wakf
resources optimally. The importance of stricter monitoring of
the Wakf management in general and the vacation of encroachments
in particular cannot be overemphasized. The respective state
governments have remained indifferent for many years and the
matter once again received the Parliament’s attention and a
Joint Parliamentary Committee was constituted during 1996-2006.
The comprehensive recommendations of this JPC are yet awaited.
However, its reports in respect of nine states (Tripura,
Manipur, Maharashtra, Goa, Assam, Meghalaya, Dadra & Nagar
Haveli, Pondicherry, Lakshadweep) and the Ajmer Dargah Act are
available on the Web:-http://RAJYASABHA.NIC.IN/BOOK2/REPORTS/WAKF/REPORTSLIST.HTML
General Issues and Constraints: Problems Faced
by State Wakf Boards
Various State Wakf Boards brought to the notice
of the Committee a number of problems out of which a selected
few are presented here as examples. Such occurrences are
detrimental to the interests of Wakf and also infringe the
entitlement of its designated beneficiaries in particular and
the poor in general.
Private Occupation of Prime Wakf Properties
Often Wakf properties are situated in the heart
of a town/city. These are commercially valuable assets of the
Wakf Boards and should be available for appropriate development
and enhancement of revenues. However, such properties have often
been occupied either by corporations or third parties. An
effective methodology would need to be evolved for expeditious
settlement of such disputes.
Overruling or Conflicting Orders by State
Governments
The Minorities Department of U.P. Government has
unauthorizedly passed orders overruling the quasi-judicial
orders given by the Wakf Board; a copy of the most recent
example of the U.P. government overruling the Wakf Board’s
orders is available with the community. The Department has, in
this way, been staying, overruling and vacating the Board
orders. Such actions are ultra vires the Wakf Act. Both Sunni
and Shia Boards drafted and submitted in 2004 the proposed Rules
for the functioning of the Wakf Board and for implementation of
the Wakf Act 1995. But the Department has yet to take action
thereupon. While the U.P. Government could be advised to look
into the matter, the Wakf Act 1995 may be amended to prevent
such interference.
Transfer of Records and Jurisdiction
Due to non-transfer, delay in transfer or
confusion in administrative jurisdiction, Wakf properties often
suffer from mismanagement. Clarity would have to be brought
about both administratively and by legislation so as to improve
Wakf management.
Undoing the Trifurcation of Punjab Wakf Board
Till 2004 there was a combined Wakf Board for
Punjab, Haryana, Himachal Pradesh and Chandigarh. The Wakf
resources of all these states were pooled together and were
being utilized for the people of erstwhile undivided Punjab.
This provided the required flexibility in fiscal matters
vis-à-vis the general welfare and particularly the provision of
educational & vocational institutions and medical facilities
etc. However, the trifurcation of the Wakf Board entailed huge
enhancement of administrative expenditure as now there are three
separate Boards and corresponding administrative infrastructure.
There are 11,000 Wakf properties in Punjab but not many Muslims
to take advantage therefrom. Haryana has a huge Mewat belt where
a large number of Muslims are among the most backward in the
country. But they can no longer enjoy the usufruct of prime Wakf
properties situated in Punjab. The people of Himachal Pradesh
and Chandigarh are now practically bereft of the welfare
measures hitherto available to them. The Committee analysed the
representations made to it in this regard and studied the issue.
It is of the view that the Central Government may revert to the
status quo ante and undo the trifurcation of the erstwhile
Punjab Wakf Board.
Outstanding Amounts due to Wakfs
Many states have huge amounts that are
outstanding but not paid to the Wakf Boards for various reasons.
For example, Maharashtra Wakf Board informed the Committee that
the state Government owes an amount of Rs. 81,68,285 and
associated interest to the Maharashtra Wakf Board against
acquisition of properties in Aurangabad, Jalna, Parbhani, Nanded,
Beed, Osmanabad, Latur, Pune, Nasik, Amrawati, Sangli, Nagpur,
Ahmednagar and Dhule. It is necessary that appropriate
directives should be incorporated in the Wakf Act with respect
to the payment of the outstanding dues within a reasonable time.
Non-implementation of the JPC Recommendations
There are a number of situations in which even
the recommendations given by the Joint Parliamentary Committee
have not been implemented. Following is one such case study: In
Shillong, Umshyrpi College was established in 1994 by Muslims of
Meghalaya. For a long time the College Committee has been
requesting the State Government to withdraw the acquisition
proceedings in respect of the Wakf land at Grove Side, Keating
Road, Shillong and to allot it to the College for its expansion.
The Wakf Board and the Mutawalli of the Wakf concerned, namely
Golam Rahman, Wakf Estate, have approved the proposal. Even the
Joint Parliamentary Committee recommended it to the Chief
Minister and the Union Minister of Welfare wrote to him in this
regard. But this work has not yet been done though the land
required by the College is lying in disuse. The Central
Government may consider taking up the matter with Meghalaya
Government and asking the latter to pass the necessary order
withdrawing the acquisition proceedings in respect of the said
property and allotting it to Umshyrpi College.
A Case Study of National Capital Territory of
Delhi
The Government of India acquired large areas of
land between 1911 and 1915 for construction of the New
Capital/Extension of Delhi city. A number of Wakf properties
were also acquired although compensation was not received or
accepted in case of many of these properties. In 1940,
individual agreements were made by the Government of India in 42
cases with the Sunni-Majlis-e-Auqaf (predecessor of Delhi Wakf
Board) permitting the use of the properties for religious
purposes. By notification in the Delhi Gazette in 1970 a large
number of properties, including those under agreement, were
declared as Wakf properties. This was challenged by over 300
suits in the District Courts by the Land & Development Officer
(L&DO) and the Delhi Development Authority (DDA), both under the
Ministry of Urban Development, Government of India.
Between 1974 and 1984 four high-powered
committees examined the disputes between the parties. The matter
was also examined by a Group of Ministers comprising six Cabinet
ministers. A Committee of Officers including representatives
from the Ministry of Works and Housing, Ministry of Home
Affairs, Delhi Development Authority, Land & Development Officer
and the Delhi Wakf Board surveyed the properties in detail to
assess the nature of each property in the context of the
requirements for development of the capital city. They verified
that in the case of 123 properties it was clear that they could
be classified as Wakf properties and recommended that they be
transferred to the Delhi Wakf Board. The Government of India
approved the recommendation of the Committee on 31.1.84 and
ordered the transfer of 123 properties (61 in the control of
L&DO and 62 in the control of the DDA). Besides these 123
properties, it was found by the Committee of Officers that there
were 40 other properties which were also Wakf properties but
which were situated inside government properties such as public
parks. It was decided that in respect of these properties the
ownership would continue to vest with the government and the
Delhi Wakf Board would be permitted to use them as Wakf
properties.
In spite of the above mandates, as a consequence
of a writ petition, the Delhi High Court on 1 June 1984 ordered
that ‘status quo regarding the property should be maintained and
possession should be retained by the government’. The Union of
India has stated in its reply before the High Court that, only
after thorough scrutiny of the notified Wakf properties and
verification at site, it was decided to transfer to the Delhi
Wakf Board only such properties which were:
i. Clearly Wakf in nature,
ii. Not required for public utilities and
iii. Could clearly be separated from the
adjacent public buildings.
iv. The transfer of Wakf properties to Delhi
Wakf Board is for their effective management and in the public
interest.
v. Wakf properties that did not exist at site
but had been notified in the Gazette were ignored.
Accordingly all disputes between the Government
agencies and the Delhi Wakf Board had come to an end and all
pending cases from both sides were to be withdrawn from the
courts. However, due to the interim stay of 6 June 1984 no
further action has been taken in this regard. It is sad that
even after 22 years and 112 listings of the case the matter is
not heard due to lack of enthusiasm on the part of the
Government.
During the intervening 22 years the Wakf
properties have been extensively encroached upon and this is an
ongoing process. It would be seen that the Delhi Wakf Board has
effectively been deprived of the use of its valuable properties.
It has been unable to generate resources from its assets to
discharge its statutory Wakf obligations and is currently
impoverished.
In 2003 the market value of these 123 properties
was estimated at about Rs. 3,000 crores by the petitioners.
Property prices in Delhi have since doubled. Therefore these
Wakf properties could now be valued at Rs. 6,000 crores. Due to
the protracted litigation their economic value could not be
tapped. If the commercial potential is now exploited it could
generate enough resources to meet many needs of the Muslim
community in Delhi. The Government of India may consider
instructing its law officer to take active interest in the
matter and have the long pending court matter disposed of at the
earliest. This could be done by getting legal support upgraded
and imparting overdue urgency to the finalization of this case.
4. Overcoming Constraints: Some Recommendations
4.1 Organizational Reforms
This chapter brings to light the importance of
Wakf as a socio-religious institution almost equivalent to the
present day ‘non-government organizations’ involved in welfare
activities. However, 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. High legislative,
administrative and judicial priority should be accorded to Wakf
in order to improve the management of about five lakh Wakf
properties spread across India. Governments both at the centre
and in the states have, perhaps because of their heavy
preoccupations, found it fit just to maintain the status quo,
without realizing the high potential that Wakfs have both for
generating wealth and meeting the welfare requirements of the
poor and the needy. With appropriate legislative and legal
empowerment as indicated in this chapter, the management of Wakf
properties can be revitalized so as to make them not only
financially viable but also rewarding. Following are some
recommendations designed to improve the management and
functioning of the Wakfs across India.
It appears to be essential to provide a
technical advisory body for development of Wakf properties both
at the state and national levels. This body may comprise
representatives from state Wakfs Boards, area experts from
institutions such as School of Planning and Architecture,
National Institute of Design and IITs and academics such as
sociologists, economists, financial and legal experts. A
representative from the appropriate government department should
also be part of this body. Any Wakf property whose current
undeveloped market value is estimated to be Rs. 1 crore or more,
or whose area is more than one bigha in urban and above 2 acres
in rural parts of India should be referred to the Technical
Advisory Body. All Wakf properties should be developed,
mortgaged or encumbered only with the concurrence of the State
or Central Technical Advisory Body as the case may be.
Ø Woman
Representation: It is of utmost importance to provide for at
least two women each in the Central Wakf Council and each state
Wakf Board. Besides providing gender equity this will help in
improving direct access to welfare measures for women and
children.
Ø Composition of the Central Wakf Council (CWC):
A Union Minister occupies the position as the ex-officio
President of the Central Wakf 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 eminent persons
like retired high court judges, chancellors and vice chancellors
of central universities and former chiefs of state Wakf Boards.
The President may hold office for a period of three years. The
other members of the Central Wakf 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 Wakf Board
may be reduced from the existing four to two. The Secretary of
the Central Wakf 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 Wakf matters, Muslim
scriptures and proficiency in Urdu.
Ø State Wakf Boards: The chairmen and
members of the state Wakf 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 to the Wakf Board. The other members
of the Wakf Boards can be nominated from a list of Muslim
professionals 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 Wakf 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 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.
Ø Group A Officers for Wakfs: There is a
strong case to create a new cadre of officers to manage the
affairs of State Wakf Boards and Central Wakf Council. It is
estimated that up to 200 Group A officers are needed to service
Wakf 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
Wakfs efficiently. Such officers, however, should have knowledge
of Islamic law and Urdu, as most of the documents relating to
Wakfs 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.
Ø Maintenance of Accounts: It is
recommended that all the Wakfs are compulsorily brought under
the scheme of ‘financial audit’.
Ø National & State Wakf Development
Corporations: A National Wakf Development Corporation may be
constituted by the central Government with a revolving corpus
fund of Rs. 500 crores. It would also be advisable to seek out
matching funds to be added to the corpus from the community and
NGOs. The CMD of this corporation should be well versed in
Muslim religious practices and be proficient in Urdu. The
corporation may continue providing financial and technical help
for development of Wakf properties with a view to enhance Wakf
resources. Similar corporations should be established in all the
states.
Ø Ajmer Dargah Act needs to be amended:
The Wakf Act 1954 was amended in 1995. Now some more amendments
are being suggested in this Report. However, the Dargah Khwaja
Saheb Ajmer Act 1955 has never been amended while the problems
there are the same as in the case of all other Wakfs in the rest
of India. Hence it is necessary to introduce comprehensive
changes in the Dargah Khwaja Saheb Ajmer Act also.
4.2 Legal and Administrative Remedies
Ø Removal of Avoidable Judicial Dichotomy:
Amendment of the Wakf Act Section (6) sub-section (1): The
Supreme Court in Board of Muslim Wakf, Rajasthan vs Radha
Kishan and Others stated that where a non-Muslim is in
possession of a certain property his right, title and interest
therein cannot be put in jeopardy merely because the property is
included in the list of Wakfs. Such a person is not required to
file a suit (within a period of one year) for declaration of his
title, as required in the Wakf Act. That is to say, the special
rule of limitation laid down in the proviso to sub-section (1)
of Section 6 is not applicable to non-Muslims. Such
interpretation is detrimental to the interests of Wakf and may
well tend to encourage encroachments. Section 6 may therefore be
amended to avoid the confusion and the amendment should be given
retrospective effect from the date of notification of the
property as Wakf. In Section 6 (1) of the Wakf Act 1995 after
the expression "or any person interested therein" the following
words may be added "irrespective of his/her/its religion".
Ø Enhanced Lease Period: Increase the maximum
period of lease of Wakf properties from 3 to 30 years where the
property is used by registered charitable societies or trusts
for building and/or running educational or health care
institutions, or for other social and economic developmental
purposes consistent with the objects of the Wakf (if any
specified) and as permissible under Islamic law.
Ø Define ‘Encroacher’: The definition of
‘Encroacher’ needs to be inserted in Section 3. This definition
should say that ‘Encroacher’ means "any person occupying the
Wakf premises without the authority of law and includes a person
whose tenancy, lease or licence has expired or has been
terminated by the Board, or who has altered the property leased
out or occupied by him without the prior written permission of
the Wakf Board concerned". The inclusion of this definition will
help the Wakf Boards in removing encroachments. Secondly, a
person occupying the Wakf premises should be included in the
definition of "person interested". Thirdly, the "Wakf premises"
should be defined to mean "any Mosque, Graveyard, Mazar, Takiya,
Eidgah, Imambara, Dargah, Khanqah, Maqbara, Anjuman and land
appurtenant or belonging to them, the property dedicated for
their maintenance, the property purchased from their income, the
land, garden, well, baoli, school, hospital and other
institutions dedicated as Wakf and the passages used leading to
the Wakf premises". This definition will help in the proceedings
under Section 54, for removal of unauthorized occupants of Wakf
property.
Ø Rent Control Act: Often the Rent Control Act
(RCA) provides protection to the tenants in such a way that the
owners lose incentive to develop and maintain properties. Wakf
properties are in the purview of RCAs in most of the states.
Thus the application of the RCA to Wakfs is damaging the noble
interests of Wakfs and hurting the entitlements of the
beneficiaries. Therefore, an amendment exempting the Wakf
properties from the purview of the RCA within the Wakf Act is
urgently needed. This can be done by introducing an overriding
provision in the Wakf Act.
Ø Extension of Time for Recovery from Adverse
Possession: The Public Wakf (Extension) of Limitation Act, 1959
facilitated the recovery of properties forming part of public
Wakfs by way of suits. Under the said Act the time for filing
suits for recovery of Wakf properties against adverse possession
was extended till 31 December 1970. Various states extended the
said time further; these are as follows:
Bihar & UT Delhi till 31 December 1985
Haryana till 31 December 1975
Madhya Pradesh till 31 December 1983
Himachal Pradesh till 31 December 1978
Orissa till 31 December 1981
Rajasthan till 31 December 1980
West Bengal till 31 December 1976
However, since 1947, most state Wakf Boards were
either not properly constituted or were not sufficiently
equipped to utilize or take advantage of the periods of
extension of limitation. Although the administration and
supervision of public works is the statutory obligation of the
State, often for very long periods there has existed a virtual
vacuum or absence of Wakf administration. Consequently, a large
number of Wakf properties have been subjected to adverse
possession and suits for recovery of the same have become
time-barred. Therefore, the period of limitation should be
extended till 2035 with retrospective effect. Otherwise, very
valuable properties would stand unfairly encroached upon and
appropriated by strangers. This would be tantamount to a
collective failure of the State Wakf machinery. Due to their
inaction or insufficient action the government would be deemed
to be a party to the undue loss/shrinking of Wakf properties.
Such failure on the part of the State and/or the statutory
bodies entrusted with
safeguarding/managing/developing/administering Wakf properties
has caused disquiet in the Muslim community.
Ø The Ancient Monuments and Archaeological
Sites and Remains (AMASR) Act, 1958: This Act has often been
at cross purposes with the Wakf Act. Very often the former has
an overriding effect. There are innumerable cases where the Wakf
property, despite being a place of worship and of religious
reverence, cannot be touched by the Wakf Board because it is
declared a protected monument. Given the present state of a
large number of Wakf properties under the control of the
Archaeological Survey of India (ASI), it would only be proper if
their lists are annually reviewed and their condition is
assessed in a joint meeting of senior officers of the ASI with
the representatives of the Central Wakf Council. The minutes
should be signed by both the parties, copies should be preserved
by both of them as well as the ministries concerned.
Ø Thika Act : The West Bengal Assembly in
1981 enacted a Thika and Other Tenancies and Lands (Acquisition
and Regulations) Act popularly known as the Thika Act which was
amended in 2001. By virtue of this Act the tenants of a large
number of properties across the state became their owners. While
the Act exempts the application of Thika Act to government and
municipal properties, the same benefit was not extended to cover
Wakf properties. Consequently the Wakf Board lost a large number
of properties and income therefrom. Efforts have been made by
the Wakf Board and NGOs to seek exemption of Wakf land from the
Thika Act. The West Bengal Government may be advised to accord
the solicited exemption.
Ø The Committee is of the firm view that law
should not be used for acquiring Wakf properties and recommends
that to ensure this on a permanent basis the Government should
take appropriate action.
Ø
Wakf Rules: Even after a lapse of eleven years since the
Wakf Act 1995 was enacted, a large number of states have not
framed the Wakf Rules; this is one of the main reasons for
non-implementation of the provisions of the Wakf Act and
perpetuation of corruption and lack of accountability. Refresher
training courses are to be offered regularly so that the staff
of the State Wakf Boards are adequately trained. This work could
be supervised by the Central Wakf Council.
4.3 Enabling Legal Provisions
Ø Amendments to Wakf
Act 1995
The Committee suggests that the following issues
should be dealt with in the Wakf Act 1995 in such a way that the
state Wakf Boards become effective and are empowered to properly
deal with the removal of encroachment of Wakf properties.
Additionally it has been observed that the Wakf Tribunals as
notified in the Wakf Act have been found to be not as effective
as they were envisaged to be (Section 83 and 84). The primary
reason is that the members of the state judicial service who
preside over the Wakf Tribunals normally hold dual or multiple
charges, i.e., as district, sessions or civil judge.
Consequently, they have paucity of time in attending to Wakf
matters and the Tribunals in some instances sit only a few days
in a month. It is common knowledge that delay in adjudication of
properties especially suffering from encroachment/unauthorized
construction/illegal occupation/misuse creates its own resultant
problems. Additionally the Wakf Board is deprived of the
legitimate use of and profits accruing from the property. It
would therefore be appropriate to amend Section 83 (4) of the
Wakf Act to specify that the Wakf Tribunal will be manned by a
full-time presiding officer appointed exclusively for Wakf
purposes. The Wakf Tribunal would also have the power to give
the interim relief and award damages etc., as the case may be.
According to Islamic precepts the ownership of
Wakfs rests only with God, the Mutawallis are the managers of
the properties and the usufruct is meant only for the poor and
needy. These principles do not get reflected in a number of
other laws that have relevance to proper implementation of the
Wakf Act. Wakf deserves to get benefited in two ways: firstly,
some enactments that are found in various laws need to be
amended to facilitate the functioning of Wakfs and, secondly
there are a few other Acts that offer empowerment in such a way
that Wakf Boards can take advantage of by getting legally
empowered. The state level examples for both the above types are
given below:
Ø
Public Premises (Eviction of Unauthorized Occupants) Act
All Wakfs as notified in the Gazette should be
treated as public premises. Wakfs are meant for a large section
of the public. Some activities of Wakfs such as running schools,
orphanages, monthly financial assistance to the needy, are
philanthropic and secular in nature. Any encroachment on these
properties should be treated like encroachment on government
land. The Public Permises (Eviction of Unauthorized Occupation)
Act, 1971 should be applied to remove encroachment from Wakf
properties and arrears of rent, at market rates, should be
recovered as arrears of land revenue.
Ø
Other Legal Structures which can empower Wakfs
As stated in the beginning of this chapter the
character of Wakf properties is quite different from privately
held properties. The ownership of Wakf properties is vested in
God, understood in a mundane sense as an artificial juridical
person. And, the usufruct invariably belongs to the downtrodden,
the poor and the needy. Yet, the state and central legislation
does not usually take cognizance of such difference. While the
exemption of Wakf properties from some enactments would serve
the greater philanthropic purpose of Wakf properties,
appropriate though minor amendments in the following Acts would
strengthen the functioning of the Wakfs without in any way
hurting their general public objective. Government may like to
take necessary action after consulting Wakf Boards and
enlightened public opinion. Some of such enactments are:
-- Rent Control Act, Land Reforms Act
-- Agricultural Land Ceilings Act
-- Urban Land Ceiling Act
-- Registration of Properties Act
-- Tenancy Act
-- Stamp Duty Act
--
Court Fee Act
-- Income-tax Act
-- Private Forest Vesting & Assignments Act
5. Summing up
This chapter brings to light the deeper malaise
and misuse of the Wakf properties both by individuals and
institutions. Such a state of affairs exists due to a number of
organizational, managerial and legal impediments. The
information provided above should be sufficient to initiate
corrective action especially by the governments and the legal
system which will enable the Wakfs to put the properties to good
use for expanding and augmenting and putting at a proper level
the welfare activities of Wakfs. This would supplement to some
extent the broad based ameliorative endeavours of the State
which necessarily have a massive magnitude. This will also be a
step towards self-reliance by the Muslim community. It is
possible to use the Wakf properties to put in place world class
facilities such as universities and colleges, hospitals and
health centres and convention centres. The properties can also
be used to put up old age homes, polytechnics and coaching
centres . |
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