Exploring the Implications of the Wakf Act 1995

The Waqf Act, 1995, is a law enacted by the Parliament of India to provide a comprehensive legal framework for the administration, management, and governance of Waqf properties in the country. The Act replaced the earlier Waqf Acts of 1954 and 1984 and addressed the shortcomings and inefficiencies in managing Waqf properties.

Waqf, in Islamic law, refers to the permanent dedication of property or assets for religious or charitable purposes.

Such properties or assets made accessible for charity and religious purposes cease to be transferable, and it is believed that once they have been declared waqf, they become the Almighty’s property and transcend human activity.

In contrast to charity trusts, which exist for charitable purposes and in which the title to the properties stays vested in the trustees, waqfs are properties devoted to God and in which the title rests with God.

Objectives and Scope of the Wakf Act

Protection of Waqf Properties

The Act protects Waqf properties from encroachments, unauthorised occupation, and illegal transfers. The Act empowers the Waqf Boards to initiate crucial legal action against violations to safeguard properties.

Proper Administration and Governance

The Act establishes State Wakf Boards and a Central Wakf Council to oversee and regulate the administration of Waqf properties and defines the powers and functions of these boards to ensure appropriate governance.

Appointment of Mutawalli

The Act outlines appointing Mutawallis (managers or administrators) for individual Waqf properties. The Mutawallis manage and maintain properties to benefit inheritors.

Transparency and Accountability

The Act emphasises transparency in the administration of Waqf properties and mandates regular audits of Waqf accounts to ensure accountability and prevent misappropriation of funds.

Promotion of Education and Social Welfare

The Act encourages the utilisation of Waqf funds for educational and social welfare activities, such as scholarships for students, running schools, colleges, and hospitals, and supporting poverty alleviation programs.

Amendment and Repeal of Previous Laws

The Act abolishes the earlier Waqf Acts of 1954 and 1984, providing a modern and updated legal framework for Waqf properties.

Provisions of the Wakf Act

Establishment of Central Waqf Council

Section 9 of The Waqf Act 1995 authorises the Central Government to establish a Central Waqf Council. The Act is the apex governing body responsible for the overall coordination, supervision, and regulation of Waqf properties in India.

Composition of the Central Wakf Council

The Union Minister in charge of waqf, shall be the ex-officio chairperson of the Council.

The Central Government will appoint the following members:

• Three individuals of national significance associated with Muslim organisation,
• Four individuals each from the field of administration or management, financial management, engineering or architecture and medicine,
• Three members of parliament,
• Chairpersons of three boards by rotation,
• Two individuals who are or have been judges of the Supreme Court or High Court,
• One advocate of national importance,
• One representative of the Mutawallis and
• Three eminent scholars of Muslim Law.

Powers of the Central Waqf Council

The Central Waqf Council has the authority to give the State Waqf Boards instructions regarding their financial performance, the upkeep of waqf deeds, revenue records, surveys. The Council also has the right to counsel the State Waqf Boards and the Central Government. It is empowered to provide legal counsel on protecting and recovering waqf properties.

Duties of the Central Waqf Council

• The Central Waqf Council must keep the Central Waqf Fund in good condition.
• As per Section 11 of Waqf 1995, the Council is obligated to keep all the books of accounts in the order that the Central Government specifies
• The Council is responsible for formulating policies, guidelines, and strategies connected to administering, preserving, and utilising Waqf properties in India. The Council promotes efficiency, transparency, and accountability in Waqf governance.

Establishment of State Waqf boards

Section 13 of The Wakf Act, 1995, empowers every State government to create a State Wakf Board for Shia and Sunni schools of Muslim Law.

The State Wakf Board is a regulatory and supervisory body for functioning and managing Waqf properties within its jurisdiction. The board aims to protect, preserve, and utilise Waqf properties for the welfare of beneficiaries and society.

Composition of State Wakf boards

The Board shall be composed of the following individuals:

• A chairperson,
• One Muslim member with professional experience in town planning, finance, agriculture, etc.
• A person nominated by the State Government as a recognised scholar in Shia and Sunni theology,
• A Muslim nominated by the State Government as an officer of the State Government (but not below the rank of Joint Secretary), and
• Not more than two Muslims nominated by the State Government.

Powers and Functions of the Board

The following are the functions of the Board:

• The State Wakf Board is empowered to appoint and dismiss mutawallis and can review and accept the mutawallis budget proposals.
• The Board is authorised to take appropriate actions to reclaim waqf property.
• The Board has the power to manage the waqf fund.
• The Board can examine and investigate waqf assets, accounts, records, and papers and conduct all necessary tasks related to the upkeep, management, and control of waqf properties.
• Duties of the board

Listed are the primary duties of the Board:

• To establish plans for managing waqf and guide its administration.
• The State Waqf Board is responsible for registering all Waqf properties within its jurisdiction. It maintains an updated record of Waqf properties, including details of their ownership, income, and beneficiaries.
• One of the primary duties of the State Wakf Board is to protect Waqf properties from encroachments, illegal occupation, and unauthorised transfers.

Establishment of Tribunals

Section 83 of the Wakf Act 1995 empowers the State Government to establish as many tribunals as they see fit to administer waqf and waqf property. The Tribunals are recognised as civil courts and required by the Code of Civil Procedure, 1908, to perform all of the powers and functions of a civil court. A Tribunal’s ruling is final and binding on the parties. No litigation or legal procedures were performed in any civil court in which this Act requires to be decided by a Tribunal.

Composition of Tribunals

The Tribunals are made up of the following individuals:

• One member of the State Judicial Service who is not holding rank lower to District, Session, or Civil judge,
• One member of the State Civil Services who is comparable to the District Magistrate, and
• One person with an understanding of Muslim Law and Jurisprudence.

Provisions for Mutawallis

A ‘Mutawalli’ (also spelled as Mutawalli or Mutwalli) is a term used in Islamic law to refer to the manager or administrator of a Waqf property. As per Section 3(i), Mutawalli is appointed to oversee and manage the matters of the endowment and ensure that the income generated from the Waqf property is used for the intended religious, educational, and charitable purposes.

Duties of Mutawalli

Section 50 specifies the duties of a Mutawalli to be as follows:

• To perform the Board’s orders in line with the abovementioned Act.
• To provide returns and information as the Board may require.
• To pay all public debts and perform all necessary activities mandated by law under this legislation.

Removal of Mutawallis

According to Section 64, a Mutawalli is removed if any of the following conditions occur:

• Suppose a person is convicted of the same offence more than once under Section 61 of The Wakf Act,1995; alternatively, if a person is detained for criminal breach of trust or moral turpitude.
• If it is proven that a person is addicted to alcohol or another narcotic drug.
• If a person works as a paid legal practitioner for or against waqf.
• If the individual has failed to maintain accounts for 2 years without offering a better justification.

Promotion of Education and Social Welfare

Upgradaing education and social welfare is a crucial aspect of utilising Waqf funds and resources. Waqf properties, dedicated to religious and charitable purposes, play a major role in supporting education and social welfare initiatives.

Here’s how the promotion of education and social welfare is encouraged through Waqf properties:

Education Institutions

Waqf funds are utilised to install and support educational institutions, such as schools, colleges, and vocational training centres. These institutions provide access to quality education to underprivileged communities and contribute to the overall development of society.

Scholarships and Financial Aid

Waqf funds are used to offer scholarships and financial aid to deserving and economically disadvantaged students. These scholarships help promote equal opportunities for education and boost deserving students to pursue their academic goals.

Libraries and Learning Resources

Waqf properties are used to set up libraries and provide learning resources to the community. These resources enhance access to knowledge and encourage a culture of reading and learning.

Skill Development Programs

Waqf funds can support skill development programs to empower individuals with relevant skills, enabling them to attain improved livelihood opportunities.

Healthcare Facilities

Income generated from Waqf properties could be used to establish and maintain healthcare facilities, including hospitals, clinics, and medical camps, to provide medical services.

Controversies Associated With the Wakf Act,1995

A dispute concerning the waqf tribunals’ authority and the civil courts’ exclusion from their jurisdiction occurred following the enactment of The Wakf Act, 1995. The Nagore Andavar Sambiranichatty Dhoopam Family Trust, Nagapattinam v.ppp Jegabar Ali case, was decided by the High Court of Madras. The plaintiff owned the suit property, and the defendant owned the home that was next to the northern side of the land.

However, the defendant entered the property of the plaintiff without permission and developed a lavatory and a water tank. Subsequently, the plaintiff filed a lawsuit, to which the defendant objected, claiming that he had owned the land for more than 20 years and that even his forefathers had previously possessed it.

The plaintiff’s ownership of the suit property was disputed before the civil court, and the case could not be maintained there. The High Court determined that, in accordance with Section 85 of The Wakf Act, 1995, civil court has no jurisdiction and that matters of waqf properties should be brought before waqf tribunals.

Significance of the Act

The Wakf Act of 1954, which was put in place to ensure appropriate waqf administration, gave rise to problems, necessitating multiple amendments. An amendment act was passed in 1984 to address these issues, but it was criticised because it gave the Commissioner overriding authority and treated the Waqf Board as inferior. The Act also led to unnecessary interference by the Central and State Governments in the obligations and functions of Mutawallis.

However, the 1995 Waqf Act tries to address these issues; therefore, the Waqf Commissioner is now known as the Chief Executive Officer and reports to the Board. It also reformed the board members to improve Waqf management.

This Act establishes State Wakf Boards and a Central Wakf Council to streamline and coordinate Waqf administration at both state and national levels. This ensures standardised procedures and a cohesive approach for managing Waqf properties.

The function of a Mutawalli and his/her responsibilities are included in this statute. It encourages the utilisation of Waqf funds for educational purposes and supports the establishment and maintenance of schools, colleges, and educational scholarships, contributing to the development of the community.

Therefore, the passing of this Act is a significant legislation pertaining to Muslim Law because it established the hierarchy of the bodies responsible for administering waqf, the authority of the Wakf Tribunal to resolve waqf-related disputes, as well as financial guidelines for the boards and Central Wakf Council.

Conclusion

The Wakf Act 1995 has played a vital role in modernising and regulating the administration of Waqf properties in India. Its emphasis on protection, transparency, and utilisation of welfare is commendable.

However, the Act faces challenges regarding mismanagement, dispute resolution, and the necessity for more awareness. Addressing these shortcomings through effective implementation, public awareness campaigns and streamlined dispute resolution mechanisms will enhance the positive impact of the Act on Waqf management and welfare activities.