THE WAQF ACT, 1995

Regal Mentor Mob-9995400709

The Waqf Act, 1995 is a comprehensive legislation enacted by the Government of India to regulate,

manage, and protect waqf properties across the country. The Act replaces earlier waqf laws and

provides a unified structure for the administration of waqfs. It establishes a legal framework to ensure

that waqf properties are properly utilized for religious, pious, and charitable purposes in accordance

with Islamic law. The Act aims to prevent mismanagement, encroachments, and unauthorized use of

waqf properties while ensuring accountability and transparency in their administration.

Definition and Concept of Waqf Under the Act

The term waqf is derived from the Arabic word "waqafa," meaning to detain, stop, or preserve. In

Islamic jurisprudence, waqf refers to the permanent dedication of movable or immovable property

for religious or charitable purposes. The ownership of the waqf property is transferred to Allah (God),

and the property must be used solely for the intended religious or charitable purpose. The Act defines

waqf under Section 3(r) as a permanent dedication of any property by a person professing Islam for

any purpose recognized by Muslim law as pious, religious, or charitable.

Case Law:.,

In M. Siddiq (D) Thr. Lrs. v. Mahant Suresh Das & Ors

, the Supreme Court of India examined the

nature of waqf properties and held that once a property is dedicated as a waqf, it ceases to be the

personal property of the waqif (donor) and becomes property held in trust for religious or charitable

purposes. The court emphasized that the management of waqf properties must align with the

objectives for which they were established.

Establishment and Role of Waqf Boards

The Waqf Act, 1995 mandates the establishment of Central Waqf Council (CWC) and State Waqf

Boards (SWBs) to oversee and regulate waqf properties across the country.

1. Central Waqf Council (CWC) (Section 9) – The CWC is a statutory body that advises the government

on waqf matters and coordinates with State Waqf Boards for better administration.

2. State Waqf Boards (SWBs) (Section 13) – Each state has a Waqf Board responsible for managing,

maintaining, and supervising waqf properties in its jurisdiction. The Board has the power to conduct

surveys, prevent encroachments, and take action against mismanagement.

Case Law:

In Punjab Waqf Board v. Sham Singh Harike

, the Supreme Court ruled in favor of the Punjab Waqf

Board, holding that waqf properties cannot be alienated without due process of law and that

unauthorized occupants cannot claim ownership rights over such properties. The judgment reinforced

the powers of the State Waqf Boards in reclaiming illegally occupied waqf land.

Survey, Registration, and Protection of Waqf Properties

To ensure transparency, the Act provides for the compulsory survey and registration of all waqf

properties in India.

 Survey of Waqf Properties (Section 4-8): The State Government appoints a Survey Commissioner to

identify and list all waqf properties.

 Registration of Waqfs (Section 36): All waqfs must be registered with the Waqf Board, and the

details must be recorded in the Waqf Register.

 Protection from Encroachment (Section 52A): The Act provides stringent measures against

encroachment and misuse of waqf properties.

Case Law:

In Board of Muslim Waqfs, Rajasthan v. Radha Kishan

, the Supreme Court ruled that once a

property is declared as a waqf, it remains a waqf property in perpetuity and cannot be claimed as

private property even by long-term occupants. The ruling strengthened legal protections for waqf

properties and emphasized their inalienable nature.

(2019) 10 SCC 229 (Ayodhya Case)

(2019) 4 SCC 698

AIR 1979 SC 289

Waqf Tribunals and Dispute Resolution

To ensure a speedy resolution of waqf-related disputes, the Waqf Act, 1995 establishes Waqf

Tribunals (Section 83). These tribunals have exclusive jurisdiction over matters relating to waqf

properties, thereby reducing the burden on civil courts.

Case Law:

In Rashid Wali Beg v. Farid Pindari

,the Supreme Court ruled that waqf disputes must be

adjudicated by Waqf Tribunals rather than regular civil courts. The decision reinforced the exclusive

jurisdiction of Waqf Tribunals, ensuring that waqf-related litigation is handled efficiently.

Amendments and Strengthening of Waqf Law

The Waqf (Amendment) Act, 2013 introduced several significant reforms, including:

1. Empowering Waqf Boards to remove encroachments without lengthy legal procedures.

2. Mandating stricter penalties for unauthorized use of waqf properties.

3. Enhancing transparency in the leasing and management of waqf properties.

Case Law:

In U.P. Sunni Central Board of Waqf v. Additional District Judge

,the case revolves around the

management and administration of Waqf properties. The U.P. Sunni Central Board of Waqf, which

is responsible for managing Waqf properties in Uttar Pradesh, was involved in a dispute regarding

the control and administration of a particular Waqf property. · The case highlighted the importance

of adhering to the legal framework established under the Waqf Act for the management and

administration of Waqf properties. It reinforced the principle that issues related to Waqf properties

should be handled by the designated authorities or tribunals as specified by law, rather than general

civil courts or district judges.

In Sayyed Ali v. A.P. Waqf Board

, the Supreme Court ruled that waqf properties must be

managed strictly as per waqf law, and no deviation in their usage is permitted. The case emphasized

the duty of Waqf Boards to protect waqf lands.

APPLICATION OF THE ACT.

Sec 2 provides that save as otherwise expressly provided under this Act, this Act shall apply to all

1[auqaf] whether created before or after the commencement of this Act:

Provided that nothing in this Act shall apply to Durgah Khawaja Saheb, Ajmer to which the

Durgah Khawaja Saheb Act, 1955 (36 of 1955) applies.

CASE LAWS

In Kullu Ram v. Punjab Waqf Board

, the Punjab and Haryana High Court addressed the validity

of the actions taken by the Punjab Waqf Board concerning the management and control of the Waqf

property. The Court examined whether the Waqf Board's actions were consistent with the provisions

of the Waqf Act and whether the appellant's rights or claims had been properly considered.

DEFINITIONS

Sec 3 states that, in this Act, unless the context otherwise requires, —

BENEFICIARY

According to sec 3(a) “beneficiary” means a person or object for whose benefit a 2[waqf] is created

and includes religious, pious and charitable objects and any other objects of public utility sanctioned

by the Muslim law.

BENEFIT

Sec 3(b) states that “benefit” does not include any benefit which a mutawalli is entitled to claim

solely by reason of his being such mutawalli.

BOARD

Sec 3(c) provides that “Board” means a Board of 2[Waqf] established under sub-section (1), or as the

case may be, under sub-section (2) of section 13 and shall include a common 2[Waqf] Board

established under section 106.

(2003) 2 SCC 346

AIR 2016 (N.O.C) 336 at p.161

AIR 1998 SC 972

AIR 2017(N.O.C)10 at pp.3-4

CHIEF EXECUTIVE OFFICER

According to sec 3(d) “Chief Executive Officer” means the Chief Executive Officer appointed under

sub-section (1) of section 23.

COUNCIL

Sec 3(e) states that “Council” means the Central 2[Waqf] Council established under section 9.

5[(ee) “encroacher” means any person or institution, public or private, occupying waqf property,

in whole or part, without the authority of law and includes a person whose tenancy, lease or licence

has expired or has been terminated by mutawalli or the Board.]

EXECUTIVE OFFICER

Sec 3(f) provides that “Executive Officer” means the Executive Officer appointed by the Board under

sub-section (1) of section 38.

LIST OF AUQAF

According to sec 3(g) “list of auqaf” means the list of auqaf published under sub-section (2) of section

5 or contained in the register of auqaf maintained under section 37.

MEMBER

Sec 3(h) states that “member” means a member of the Board and includes the Chairperson.

MUTAWALLI

Sec 3(i) provides that “mutawalli” means any person appointed, either verbally or under any deed or

instrument by which a 1[waqf] has been created, or by a competent authority, to be the mutawalli of

a 1[waqf] and includes any person who is a mutawalli of a 1[waqf] by virtue of any custom or who is

a naib-mutawalli, khandim, mujawar, sajjadanashin, amin or other person appointed by a

mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person,

committee or corporation for the time being, managing or administering any 1[waqf] or 1[waqf]

property.

Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless

such member is an office-bearer of such committee or corporation.

2[Provided further that the mutawalli shall be a citizen of India and shall fulfil such other

qualifications as may be prescribed

Provided also that in case a waqf has specified any qualifications, such qualifications may

be provided in the rules as may be made by the State Government.]

NET ANNUAL INCOME

According to sec 3(j) “net annual income”, in relation to a 1[waqf], means net annual income

determined in accordance with the provisions of the explanations to sub-section (1) of section 72.

PERSON INTERESTED IN A WAQF

Sec 3(k) states that “person interested in a 1[waqf]” means any person who is entitled to receive any

pecuniary or other benefits from the 1[waqf] and includes—

(i) any person who has a right to 3[offer prayer] or to perform any religious rite in a

mosque, idgah, imambara,dargah, 4[khanqah, peerkhana and karbala], maqbara, graveyard or any

other religious institution connected with the 1[waqf] or to participate in any religious or charitable

institution under the 1[waqf];

(ii) the 5[waqif] and any descendant of the 5[waqif] and the mutawalli.

PRESCRIBED

Sec 3(l) provides that “prescribed”, except in Chapter III, means prescribed by rules made by the

State Governments.

REGULATIONS

According to sec 3(m) “regulations” means the regulations made by the Board under this Act.

SHIA WAQF

Sec 3(n) states that “Shia 1[waqf]” means a 1[waqf] governed by Shia Law.

SUNNI WAQF

Sec 3(o) provides that “Sunni 1[waqf]” means a 1[waqf] governed by Sunni Law.

SURVEY COMMISSIONER

According to sec 3(p) “Survey Commissioner” means the Survey Commissioner of 1[Waqf]

appointed under sub-section (1) of section 4 and includes any Additional or Assistant Survey

Commissioners of 6[Auqaf] under sub-section (2) of section 4.

TRIBUNAL

Sec 3(q) states that “Tribunal”, in relation to any area, means the Tribunal constituted under sub-

section (1) of section 83, having jurisdiction in relation to that area.

WAQF

Sec 3(r) provides that “waqf” means the permanent dedication by any person, of any movable or

immovable property for any purpose recognized by the Muslim law as pious, religious or charitable

and includes—

(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having

ceased irrespective of the period of such cesser;

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

(iii) “grants”, including mashrat-ul-khidmat for any purpose recognized by the Muslim law as pious,

religious or charitable; and

(iv)a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by

Muslim law as pious, religious or charitable, provided when the line of succession fails, the income

of the waqf shall be spent for education, development, welfare and such other purposes as recognized

by Muslim law,

and “waqif” means any person making such dedication.]

WAQF DEED

According to sec 3(s) “1[waqf] deed” means any deed or instrument by which a 1[waqf] has been

created and includes any valid subsequent deed or instrument by which any of the terms of the

original dedication have been varied.

WAQF FUND

Sec 3(t) states that “1[Waqf] Fund” means a 1[waqf] fund formed under sub-section (1) of section 77.

CASE LAWS

In Narendra Gopal Vidyarthi v. Rajat Vidyarth

, the main issue was to determine the

proper definition and understanding of "Waqf" in the context of the dispute. The appellant questioned

the validity of certain actions and claims made by the respondent, which involved the management

of Waqf property. The court reiterated the definition of Waqf as a permanent dedication of property

by a person professing Islam for any purpose recognized by Islamic law as pious, religious, or

charitable.

In Mian Sahataz Pir & Ors. v. Sk. Ahmed & Others

The Court directed the proper

administration of the Waqf property in accordance with the Waqf Act and addressed any

discrepancies in the management as per the legal requirements.

In Ramjas Foundation v. Union of India

The primary issue was whether certain

provisions of the Waqf Act, 1954, were constitutionally valid and how they affected the management

of Waqf properties. The court dismissed the petition, affirming that the provisions of the Waqf Act

were in line with constitutional requirements and should be followed for proper management of Waqf

properties

In Rahima Beegum Choudhary v. State of Tripura

,The court endorsed the state's management of

the Waqf property, underscoring that it adhered to the legal standards outlined in the Waqf Act.

(2009) 3 SCC 409

AIR 2013 Orissa 173

2011 R.C.R. (Civil) 167

AIR 2016 NOC 549

CHAPTER II SURVEY OF 2[AUQAF]

PRELIMINARY SURVEY OF AUQAF

By virtue of sec 4(1) the State Government may, by notification in the Official Gazette, appoint for

the State a Survey Commissioner of 2[Auqaf] and as many Additional or Assistant Survey

Commissioners of 2[Auqaf] as may be necessary for the purpose of making a survey of 3[auqaf in the

State].

By virtue of sec 4(1A) every State Government shall maintain a list of auqaf referred to in sub-section

(1) and the survey of auqaf shall be completed within a period of one year from the date of

commencement of the Wakf (Amendment) Act, 2013 (27 of 2013), in case such survey was not done

before the commencement of the Wakf (Amendment) Act, 2013:

Provided that where no Survey Commissioner of Waqf has been appointed, a Survey

Commissioner for auqaf shall be appointed within three months from the date of such

commencement.]

According to sec 4(2) all Additional and Assistant Survey Commissioner of 2[Auqaf] shall perform

their functions under this Act under the general supervision and control of the Survey Commissioner

of 2[Auqaf].

Sec 4(3) states that the Survey Commissioner shall, after making such inquiry as he may consider

necessary, submit his report, in respect of 2[auqaf] existing at the date of the commencement of this

Act in the State or any part thereof, to the State Government containing the following particulars,

namely: —

(a) the number of 2[auqaf] in the State showing the Shia 2[auqaf] and Sunni 2[auqaf] separately;

(b) the nature and objects of each 1[waqf];

(d) the amount of land revenue, cesses, rates and taxes payable in respect of each 1[waqf];

(e) the expenses incurred in the realization of the income and the pay or other remuneration

of the mutawalli of each 1[waqf]; and

(f) such other particulars relating to each 1[waqf] as may be prescribed.

Sec 4(4) provides that the Survey Commissioner shall, while making any inquiry, have the same

powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) in respect

of the following matters, namely: —

(g) summoning and examining any witness;

(h) requiring the discovery and production of any document;

(i) requisitioning any public record from any court or office;

(j) issuing commissions for the examination of any witness or accounts;

(k) making any local inspection or local investigation;

(l) such other matters as may be prescribed.

According to sec 4(5) if, during any such inquiry, any dispute arises as to whether a particular 1[waqf]

is a Shia

1[waqf] or Sunni 1[waqf] and there are clear indications in the deed of 1[waqf] as to its

nature, the dispute shall be decided on the basis of such deed.

By virtue of sec 4(6) the State Government may, by notification in the Official Gazette, direct the

Survey Commissioner to make a second or subsequent survey of 1[waqf] properties in the State and

the provisions of sub-sections (2), (3), (4) and (5) shall apply to such survey as they apply to a

survey directed under sub-section (1):

Provided that no such second or subsequent survey shall be made until the expiry of a period

2[ten years] from the date on which the report in relation to the immediately previous survey was

submitted under sub-section (3):

3[Provided further that the waqf properties already notified shall not be reviewed again in

subsequent survey except where the status of such property has been changed in accordance with

the provisions of any law.]

CASE LAWS

In Karnataka Waqf Board v. Government of India and Others,

, The Allahabad High Court

evaluated the alignment of the central government’s actions with the provisions of Section 4 of the

Waqf Act, which defines the constitution and powers of the Waqf Board. The court held that the

central government must respect the framework established by Section 4, ensuring that the Waqf

Board’s autonomy and authority are maintained for effective management of Waqf properties.

In Anjuman Islamiya Committee, Keshkal v. State of Chhattisgarh,

The court instructed the

state to bring its actions into conformity with Section 4 of the Waqf Act, thereby ensuring the proper

management and oversight of Waqf properties in accordance with the statutory provisions.

In Syed Fazal Pookoya Thangal v. Union of India,

The court emphasized that Section 4

mandates the establishment and functioning of Waqf Boards to manage Waqf properties effectively.

This section outlines the powers and responsibilities of the Waqf Boards and is critical for the proper

administration of Waqf properties. The Court found that the Union of India’s actions should not

undermine the autonomy and authority of the Waqf Boards. It is imperative that the management of

Waqf properties adhere to the legal framework provided by the Waqf Act.

PUBLICATION OF LIST OF AUQAF

Sec 5(1) states that on receipt of a report under sub-section (3) of section 4, the State Government

shall forward a copy of the same to the Board.

Sec 5(2) provides that the Board shall examine the report forwarded to it under sub-section (1) and

5[fordward it back to the Government within a period of six months for publication in the Official

Gazette] a list of Sunni 4[auqaf] or Shia 4[auqaf] in the State, whether in existence at the

commencement of this Act or coming into existence thereafter, to which the report relates, and

containing such other particulars as may be prescribed.

By virtue of sec 5(3) the revenue authorities shall—

(i) include the list of auqaf referred to in sub-section (2), while updating the land records; and

(ii) take into consideration the list of auqaf referred to in sub-section (2), while deciding

mutation in the land records.

According to sec 5(4) The State Government shall maintain a record of the lists published under

sub-section (2) from time to time.

DISPUTES REGARDING AUQAF

Sec 6(1) states that if any question arises whether a particular property specified as

1[waqf] property

in the list of 4[auqaf] is 1[waqf] property or not or whether a 1[waqf] specified in such list is a Shia

1[waqf] or Sunni 1[waqf], the Board or the mutawalli of the 1[waqf] or 7[any person aggrieved] may

institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in

respect of such matter shall be final:

Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from

the date of the publication of the list of 4[auqaf]:

8[Provided further that no suit shall be instituted before the Tribunal in respect of such properties

notified in a second or subsequent survey pursuant to the provisions contained in sub-section

(6) of section 4.]

9* * * * *

Sec 6(2) provides that notwithstanding anything contained in sub-section (1), no proceeding under

this Act in respect of any 1[waqf] shall be stayed by reason only of the pendency of any such suit or

of any appeal or other proceeding arising out of such suit.

By virtue of sec 6(3) the Survey Commissioner shall not be made a party to any suit under

sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of

anything which is in good faith done or intended to be done in pursuance of this Act or any rules

made thereunder.

According to sec 6(4) the list of 1[auqaf] shall, unless it is modified in pursuance of a decision

of the Tribunal under sub-section (1), be final and conclusive.

1995 AHC 6666

2015 (146) AIC 372

AIR 1994 KER 308

Sec 6(5) states that on and from the commencement of this Act in a State, no suit or other

legal proceeding shall be instituted or commenced in a court in that State in relation to any question

referred to in sub-section (1).

CASE LAWS

In State Waqf Board Hyderabad v. Mavuri Sundaramma and Another

,The court directed

that the management and decisions concerning the Waqf properties be realigned with the powers and

responsibilities stipulated under Section 6 of the Waqf Act, thereby reinforcing the Board's authority.

In Board of Muslim Waqfs, Rajasthan v. Radha Kishan and Othersf

, The Court reinstated

that Section 6 outlines the powers and functions of the Waqf Board, including its role in overseeing

and managing Waqf properties. The Court highlighted that these provisions must be followed to

ensure proper administration and protection of Waqf properties.

In Faseela M. v. Munneral Islam Madrasa Committee

the Supreme Court ruled that a civil

court has exclusive jurisdiction to hear a suit for eviction of a tenant related to Waqf property. The

Court found that such a suit does not fall under the disputes specified in Sections 6 and 7 of the Waqf

Act, which primarily address the jurisdiction of the Waqf Tribunal over issues directly related to the

management and administration of Waqf properties.

POWER OF TRIBUNAL TO DETERMINE DISPUTES REGARDING AUQAF

Sec 7(1) provides that if, after the commencement of this Act, 2[any question or dispute] arises,

whether a particular property specified as 3[waqf] property in a list of 1[auqaf] is 3[waqf] property or

not, or whether a 3[waqf] specified in such list is a Shia 3[waqf] or a Sunni 3[waqf], the Board or the

mutawalli of the 3[waqf], 4[or any person aggrieved by the publication of the list of auqaf under

section 5] therein, may apply to the Tribunal having jurisdiction in relation to such property, for the

decision of the question and the decision of the Tribunal thereon shall be final:

Provided that—

(a) in the case of the list of 1[auqaf] relating to any part of the State and published after the

commencement of this Act no such application shall be entertained after the expiry of one year from

the date of publication of the list of 1[auqaf]; and

(b) in the case of the list of 1[auqaf] relating to any part of the State and published at any

time within a period of one year immediately preceding the commencement of this Act, such an

application may be entertained by Tribunal within the period of one year from such commencement:

Provided further that where any such question has been heard and finally decided by a civil court

in a suit instituted before such commencement, the Tribunal shall not re-open such question.

According to sec 7(2) except where the Tribunal has no jurisdiction by reason of the

provisions of sub-section (5), no proceeding under this section in respect of any 3[waqf] shall be

stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application

or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding.

By virtue of sec 7(3) the Chief Executive Officer shall not be made a party to any application

under sub-section (1).

Sec 7(4) states that the list of 1[auqaf] and where any such list is modified in pursuance of a

decision of the Tribunal under sub-section (1), the list as so modified, shall be final.

Sec 7(5) provides that the Tribunal shall not have jurisdiction to determine any matter which

is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-

section (1) of section 6, before the commencement of the Act or which is the subject-matter of any

appeal from the decree passed before such commencement in any such suit or proceeding or of

any application for revision or review arising out of such suit, proceeding or appeal, as the case may

be.

By virtue of sec 7(6) the Tribunal shall have the powers of assessment of damages by

unauthorized occupation of waqf property and to penalize such unauthorized occupants for their

illegal occupation of the waqf property and to recover the damages as arrears of land revenue through

, 2007 (5) ALD 267 (DB)

1979 SCC (2) 468

AIR 2014 SC 2064

the Collector:

Provided that whosoever, being a public servant, fails in his lawful duty to prevent or remove an

encroachment, shall on conviction be punishable with fine which may extend to fifteen thousand

rupees for each such offence.]

CASE LAWS

In Syed Ameen and Others v. A.P. State Waqf Board

, the court determined that the subject

property in question was not Waqf property, rejecting the Waqf Board's claim that it was. The court

held that the Waqf Tribunal did not have the authority to reopen the issue and determine it as Waqf

property, as such a decision would violate the principle of separation of powers. The Tribunal’s role

does not extend to re-evaluating or altering judgments on property status that fall outside its

jurisdiction.

In Mohammed Khalil v. State of Maharashtra

The Court clarified that the Waqf Board's

role is comprehensive, encompassing not just administrative tasks but also ensuring the proper

management and functioning of Waqf properties. This includes the power to oversee the work of

mutawallis to ensure adherence to the provisions of the Waqf Act.

In Syedna Taher Saifuddin v. State of Bombay

The Court affirmed the Waqf Board’s

position in shaping management schemes and appointing mutawallis, reinforcing its authority in

overseeing the administration of Waqf properties.

STATE GOVERNMENT TO BEAR COST OF SURVEY [SEC 8]

The total cost of making a survey including the cost of publication of the list or lists of auqaf under

this Chapter shall be borne by the State Government.

CHAPTER III

CENTRAL WAQF COUNCIL

ESTABLISHMENT AND CONSTITUTION OF CENTRAL WAQF COUNCIL

By virtue of sec 9(1) the Central Government may, by notification in the Official Gazette, establish

a Council to be called the Central Waqf Council, for the purpose of advising the Central Government,

the State Governments and the Boards on matters concerning the working of Boards and the due

administration of auqaf.

Sec 9(1A) states that The Council referred to in sub-section (1) shall issue directives to the

Boards, on such issues and in such manner, as provided under sub-sections (4) and (5).]

Sec 9(2) provides that the Council shall consist of—

(a) the Union Minister in-charge of [waqf]—ex officio Chairperson;

(b) the following members to be appointed by the Central Government from amongst

Muslims, namely: —

(i) three persons to represent Muslim organizations having all India character and

national importance;

3[(ii) four persons of national eminence, one each from the fields of administration or

management, financial management, engineering or architecture and medicine;]

(iii) three Members of Parliament of whom two shall be from the House of the People

and one from the Council of States;

(iv) Chairpersons of three Boards by rotation;

(v) two persons who have been Judges of the Supreme Court or a High Court;

(vi) one Advocate of national eminence;

(vii) one person to represent the mutawallis of the 1[waqf] having a gross annual

income of rupees five lakhs and above;

(viii) three persons who are eminent scholars in Muslim Law:

4[Provided that at least two of the members appointed under sub-clauses (i) to (viii) shall be

women.]

2014 (6) ALD 411

[AIR 1976 SC 163]

[AIR 1962 SC 853]

According to sec 9(3) the term of office of, the procedure to be followed in the discharge of

their functions by, and the manner of filling casual vacancies among, members of the Council shall

be such as may be, prescribed by rules made by the Central Government.

Sec 9(4) states that the State Government or, as the case may be, the Board, shall furnish

information to the Council on the performance of Waqf Boards in the State, particularly on their

financial performance, survey, maintenance of waqf deeds, revenue records, encroachment of waqf

properties, annual reports and audit reports in the manner and time as may be specified by the Council

and it may suo motu call for information on specific issues from the Board, if it is satisfied that there

was prima facie evidence of irregularity or violation of the provisions of this Act and if the Council

is satisfied that such irregularity or violation of the Act is established, it may issue such directive, as

considered appropriate, which shall be complied with by the concerned Board under intimation to

the concerned State Government.

Sec 9(5) provides that any dispute arising out of a directive issued by the Council under sub-

section (4) shall be referred to a Board of Adjudication to be constituted by the Central Government,

to be presided over by a retired Judge of the Supreme Court or a retired Chief Justice of a High Court

and the fees and travelling and other allowances payable to the Presiding Officer shall be such as

may be specified by that Government.

CASE LAWS

In Kerala Waqf Board v. Abdul Sattar Haji Moosa

, held that the inequalities alleged because

of some Waqfs having to pay more out of their net income proportionately than others, it appears to

us arise from circumstances which are fortuitous.

In Smt. Noor Bibi v. Waqf Board

, the Court discussed the powers vested in the Waqf Board

under Section 9 and affirmed the Board’s authority to act as the primary administrative body for waqf

properties, including handling disputes and management issues.

FINANCE OF COUNCIL

By virtue of sec 10(1) every Board shall pay from its 1[Waqf] Fund annually to the Council such

contribution as is equivalent to one per cent. of the aggregate of the net annual income of the

2[auqaf] in respect of which contribution is payable under sub-section (1) of section 72:

Provided that where the Board, in the case of any particular 1[waqf] has remitted under sub-

section (2) of section 72 the whole of the contribution payable to it under sub-section (1) of that

section, then for calculating the contribution payable to the Council under this section the net annual

income of the 1[waqf] in respect of which such remission has been granted shall not be taken

into account.

Sec 10(2) states that all monies received by the Council under sub-section (1) and all other monies

received by it as donations, benefactions and grants shall form a fund to be called the Central 1[Waqf]

Fund.

Sec 10(3) provides that subject to any rules that may be made by the Central Government in this

behalf, the Central 1[Waqf] Fund shall be under the control of the Council and may be applied for

such purposes as the Council may deem fit.

ACCOUNTS AND AUDIT

By virtue of Section 11(1) the Council shall cause to be maintained such books of account

and other books in relation to its accounts in such form and in such manner as may be prescribed by

rules made by the Central Government.

Section 11(2) provides that the accounts of the Council shall be audited and examined annually by

such auditor as may be appointed by the Central Government.

Section 11(3) states that the costs of the audit shall be paid from the Central

[Waqf] Fund.

POWER OF CENTRAL GOVERNMENT TO MAKE RULES

Section 12(1) provides that the Central Government

may, by notification in the Official

Gazette, make rules to carry out the purposes of this Chapter.

AIR 1980 SC 1966

[AIR 1986 SC 1531]

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

Section 12(2) provides that in particular, and without prejudice to the generality of the

foregoing power, such rules may provide for all or any of the following matters, namely: —

(a) the term of office of, the procedure to be followed in the discharge of their functions by,

and the manner of filling casual vacancies among, the members of the Council;

(b) control over and application of the Central

[Waqf] Fund;

Section 12(3) provides that every rule made by the Central Government under this Chapter

shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session

for a total period of third days, which may be comprised in one session or in two or more successive

sessions, and if, before the expiry of the session immediately following the session or the successive

sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree

that the rule should not be made, the rule shall thereafter have effect only in such modified form or

be of no effect, as the case may be; so, however, that any such modification or annulment shall be

without prejudice to the validity of anything previously done under the rule.

CHAPTER IV

ESTABLISHMENT OF BOARDS AND THEIR FUNCTIONS

INCORPORATION

Section 13(1) provides that with effect from such date as the State Government may, by

notification in the Official Gazette, appoint in this behalf, there shall be established a Board of

[Auqaf] under such name as may be specified in the notification:

[Provided that in case where a Board of Waqf has not been established, as required under

this sub-section, a Board of Waqf shall, without prejudice to the provisions of this Act or any other

law for the time being in force, be established within six months from the date of commencement of

the Wakf (Amendment) Act, 2013 (27 of 2013).]

Section 13(2) provides that notwithstanding anything contained in sub-section (1), if the Shia

[auqaf] in any State constitute in number more than fifteen per cent. of all the

[auqaf] in the State

or if the income of the properties of the Shia

[auqaf] in the State constitutes more than fifteen per

cent. of the total income of properties of all the

[auqaf] in the State, the State Government may, by

notification in the Official Gazette, establish a Board of

[Auqaf] each for Sunni

[auqaf] and for

Shia

[auqaf] under such names as may be specified in the notification.

[ Section 13 (2A) provides that where a Board of Waqf is established under sub-section (2) of

section 13, in the case of Shia waqf, the Members shall belong to the Shia Muslim and in the case of

Sunni waqf, the Members shall belong to the Sunni Muslim.]

Section 13(3) states that the Board shall be a body corporate having perpetual succession and

a common seal with power to acquire and hold property and to transfer any such property subject to

such conditions and restrictions as may be prescribed and shall by the said name sue and be sued.

CASE LAWS

In Maharashtra State Board Waqf v. Saikh Yusuf Bhai Chawla

, When distinguishing

between public trusts and waqfs, a key factor is that waqf properties vest in God Almighty, whereas

trust properties do not. In the case of trusts, the properties are vested in the trustees according to the

terms of the trust deed. Trustees are entitled to manage and deal with the properties for the benefit of

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

Ins. by s. 12, ibid. (w.e.f. 1-11-2013)

Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013)

Ins. by s. 12, ibid. (w.e.f. 1-11-2013)

AIR 2012 SC 2362

the trust and its beneficiaries.

In Shoukat Ali Ansari v. State of Rajasthan

, the court held that the board and chairman

constituted under the old Act can continue by way of an interim arrangement until the constitution

of the new Waqf Board.

COMPOSITION OF BOARD

Section 14(1) provides that the Board for a State and

[the National Capital Territory of Delhi] shall

consist of—

(a) a chairperson;

(b) one and not more than two members, as the State Government may think fit, to be elected

from each of the electoral colleges consisting of—

(i) Muslim Members of Parliament from the State or, as the case may be, 3[the National

Capital Territory of Delhi];

(ii) Muslim Members of the State Legislature;

[(iii) Muslim members of the Bar Council of the concerned State or Union territory: Provided that

in case there is no Muslim member of the Bar Council of a State or a

Union territory, the State Government or the Union territory administration, as the case may be,

may nominate any senior Muslim advocate from that State or the Union territory, and]

(iv) mutawallis of the

[auqaf] having an annual income of rupees one lakh and above.

[First Explanation to this section states that for the removal of doubts, it is hereby declared that

the members from categories mentioned in sub-clauses (i) to (iv), shall be elected from the electoral

college constituted for each category.

Second Explanation to this section states that for the removal of doubts it is hereby declared that

in case a Muslim member ceases to be a Member of Parliament from the State or National Capital

Territory of Delhi as referred to in sub-clause (i) of clause (b) or ceases to be a Member of the State

Legislative Assembly as required under sub-clause (ii) of clause (b), such member shall be deemed

to have vacated the office of the member of the Board for the State or National Capital Territory of

Delhi, as the case may be, from the date from which such member ceased to be a Member of

Parliament from the State National Capital Territory of Delhi, or a Member of the State Legislative

Assembly, as the case may be;]

[(c) one person from amongst Muslims, who has professional experience in town planning or

business management, social work, finance or revenue, agriculture and development activities, to be

nominated by the State Government;

(d) one person each from amongst Muslims, to be nominated by the State Government from

recognized scholars in Shia and Sunni Islamic Theology;

(e) one person from amongst Muslims, to be nominated by the State Government from

amongst the officers of the State Government not below the rank of Joint Secretary to the State

Government;]

[ Section 14(1A) provides that no Minister of the Central Government or, as the case may be, a

State Government, shall be elected or nominated as a member of the Board.

First Proviso to this section states that in case of a Union territory, the Board shall consist of not

less than five and not more than seven members to be appointed by the Central Government from

categories specified under sub-clauses (i) to (iv) of clause (b) or clauses (c) to (e) in sub-section (1).

Second Proviso to this section states that at least two Members appointed on the Board shall be

women.

Third Proviso to this section states that in every case where the system of mutawalli exists, there

AIR 1999 Raj. 175

Subs. by s. 13, ibid., for “the Union territory of Delhi” (w.e.f. 1-11-2013).

Subs. by s. 13, ibid., for sub-clause (iii) (w.e.f. 1-11-2013).

Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013)

Ins. by s. 13, ibid. (w.e.f. 1-11-2013)

Subs. by s. 13, ibid., for clauses (c), (d) and (e) (w.e.f. 1-11-2013)

Ins. by Act 27 of 2013, s. 13 (w.e.f. 1-11-2913)

shall be one mutawalli as the member of the Board.]

Section 14(2) provides that election of the members specified in clause (b) of sub-section (1)

shall be held in accordance with the system of proportional representation by means of a single

transferable vote, in such manner as may be prescribed:

First Proviso to this section states that where the number of Muslim Members of Parliament, the

State Legislature or the State Bar Council, as the case may be, is only one, such Muslim Member

shall be declared to have been elected on the Board.

Second Proviso to this section states that where there are no Muslim Members in any of the

categories mentioned in sub-clauses (i) to (iii) of clause (b) of sub-section (1) the ex-Muslim

Members of Parliament, the State Legislature or ex-member of the State Bar Council, as the case

may be, shall constitute the electoral college.

Section 14(3) states that notwithstanding anything contained in this section, where the State

Government is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to

constitute an electoral college for any of the categories mentioned in sub-clauses (i) to (iii) of clause

(b) of sub-section (1), the State Government may nominate such persons as the members of the Board

as it deems fit.

Section 14(4) states that the number of elected members of the Board shall, at all times, be

more than the nominated members of the Board except as provided under sub-section (3).

* * * * *

Section 14(6) provides that in determining the number of Shia members or Sunni members of the

Board, the State Government shall have regard to the number and value of Shia

[auqaf] and Sunni

[auqaf] to be administered by the Board and appointment of the members shall be made, so far as

may be, in accordance with such determination.

* * * * *

Section 14(8) provides that whenever the Board is constituted or reconstituted, the members of the

Board present at a meeting convened for the purpose shall elect one from amongst themselves as the

Chairperson of the Board.

The members of the Board shall be appointed by the State Government by notification in the

Official Gazette.

CASE LAWS

In Shah Muhammed Al-Husaaini v. Union of India

,the Court observed that the intention

behind the composition of the Waqf Board and the purpose of the Act is to administer the property,

not to provide representation to Muslim jurists or theologians.

TERM OF OFFICE

The members of the Board shall hold office for a term of five years

[from the date of notification

referred to in sub-section (9) of section 14].

CASE LAWS

In Akhter Hussain v. Sate of Andra Pradesh

,the Court held that mere discourteous behavior

of a member towards the Chairman is not sufficient to conclude that the member's continuance would

be prejudicial to the interests of the Waqfs. Furthermore, before removing the member on such

grounds, the member should be provided with the records against them and given an opportunity to

explain.

DISQUALIFICATION FOR BEING APPOINTED, OR FOR CONTINUING AS,

A MEMBER OF THE BOARD

A person shall be disqualified for being appointed, or for continuing as, a member of the Board if—

Section 14(4)

Sub-sections (5) and (7) omitted by s. 13, ibid. (w.e.f. 1-11-2013)

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

Sub-sections (5) and (7) omitted by s. 13, ibid. (w.e.f. 1-11-2013)

Section 14(9)

AIR 1999 Kant 112

Ins. by s. 14, ibid. (w.e.f. 1-11-2013)

AIR 1964 A.P 244

(d) he is found to be a person of unsound mind;

(e) he is an undischarged insolvent;

(f) he has been convicted of an offence involving moral turpitude and such conviction has

not been reversed or he has not been granted full pardon in respect of such offence;

[ Section 16(da) provides that he has been held guilty of encroachment on any waqf property;]

(g) he has been on a previous occasion—

(i) removed from his office as a member or as a mutawalli, or

(ii) removed by an order of a competent court or tribunal from any position of trust either

for mismanagement or for corruption.]

MEETINGS OF THE BOARD

Section 17(1) provides that the Board shall meet for the transaction of business at such time

and places as may be provided by regulations.

Accordin to section 17(2) the Chairperson, or in his absence, any member chosen by the

members from amongst themselves shall preside at a meeting of the Board.

Section 17(3) states that subject to the provisions of this Act, all questions which come before

any meeting of the Board shall be decided by a majority of votes of the members present, and in the

case of equality of votes, the Chairperson or, in his absence, any other person presiding shall have a

second or casting vote.

COMMITTEES OF THE BOARD

Section 18(1) provides that the Board may, whenever it considers necessary, establish either

generally or for a particular purpose or for any specified area or areas committees for the supervision

[auqaf].

Section 18(2) states that The Constitution, functions and duties and the term of office of such

committees shall be determined from time to time by the Board:

Proviso to this section states that it shall not be necessary for the members of such committees to

be members of the Board.

RESIGNATION OF CHAIRPERSON AND MEMBERS

The Chairperson or any other member may resign his office by writing under his hand addressed to

the State Government:

Proviso to this section states that the Chairperson or the member shall continue in office until

the appointment of his successor is notified in the Official Gazette.

REMOVAL OF CHAIRPERSON AND MEMBER

Section 20(1) provides that the State Government may, by notification in the Official

Gazette, remove the Chairperson of the Board or any member thereof if he—

(h) is or becomes subject to any disqualifications specified in section 16; or

(i) refuses to act or is incapable of acting or acts in a manner which the State Government,

after hearing any explanation that he may offer, considers to be prejudicial to the interests of

the

[auqaf]; or

(j) fails in the opinion of the Board, to attend three consecutive meetings of the Board,

without sufficient excuse.

Where the Chairperson of the Board is removed under sub-section (1), he shall also cease to be

a member of the Board.

REMOVAL OF CHAIRPERSON BY VOTE OF NO CONFIDENCE

Without prejudice to the provisions of section 20, the Chairperson of a Board may be removed

by vote of no confidence in the following manner, namely: —

(a) no resolution expressing a vote of confidence or no confidence in any person elected as

Chairperson of a Board shall be moved except in the manner prescribed and twelve months have not

elapsed after the date of his election as a Chairperson and be removed except with the prior

Ins. by Act 27 of 2013, s. 15 (w.e.f. 1-11-2013)

Section 17(2)

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

Section 20(2)

permission of the State Government;

(b) notice for no confidence shall be addressed to the State Government stating clearly the

grounds on which such motion is proposed to be moved and shall be signed by at least half the total

members of the Board;

present to the State Government, the notice together with an affidavit signed by them to the effect

that the signatures on no confidence motion are genuine and have been made by the signatories after

hearing or reading the contents of the notice;

(d) on receipt of the notice of no confidence, as provided hereinabove, the State Government

shall fix such time, date and place as may be considered suitable for holding a meeting for the purpose

of the proposed no confidence motion.

Provided that at least fifteen days’ notice shall be given for such a meeting;

(e) notice for meeting under clause (d) shall also provide that in the event of no confidence

motion being duly carried on or, election of the new Chairperson, as the case may be, shall also be

held in the same meeting;

(f) the State Government shall also nominate a Gazetted Officer (other than an officer of the

department which is concerned with the supervision and administration of the Board) to act as

presiding officer of the meeting in which the resolution for no confidence shall be considered;

(g) the quorum for such a meeting of the Board shall be one-half of the total number of

members of the Board;

(h) the resolution for no confidence shall be deemed to be carried out, if passed by a simple

majority of the members present;

(i) if a resolution for no confidence is carried out, the Chairperson shall cease to hold office

forthwith and shall be succeeded by his successor who shall be elected by another resolution in the

same meeting;

(j) election of the new Chairperson shall be conducted under clause (i), in the meeting under

the chairmanship of the said presiding officer referred to in clause (f), in the following manner,

namely:—

(A) Chairperson shall be elected from amongst the elected members of the Board;

(B) nomination of candidates shall be proposed and seconded in the meeting itself

and election after withdrawal, if any, shall be held by method of secret ballot;

in case of equality of votes, the matter shall be decided by drawing of lots; and

(D) proceedings of the meeting shall be signed by the presiding officer;

(k) new Chairperson elected under clause (h) shall hold the office only up to the remainder

of the term of the Chairperson removed by the resolution of no confidence; and

(l) if the motion for passing the resolution of no confidence fails for want of quorum or lack

of requisite majority at the meeting, no subsequent meeting for considering the motion of no

confidence shall be held within six months of the date of the previous meeting.]

FILLING OF A VACANCY

When the seat of a member becomes vacant by his removal, resignation, death or otherwise, a new

member shall be appointed in his place and such member shall hold office so long as the member

whose place he fills would have been entitled to hold office, if such vacancy had not occurred.

VACANCIES, ETC., NOT TO INVALIDATE PROCEEDINGS OF THE BOARD

No act or proceeding of the Board shall be invalid by reason only of the existence of any vacancy

amongst its member or any defect in the constitution thereof.

APPOINTMENT OF CHIEF EXECUTIVE OFFICER AND HIS TERM OF OFFICE

AND OTHER CONDITIONS OF SERVICE

Section 23(1) provides that here shall be a full-time Chief Executive Officer of the Board who shall

be a Muslim and shall be appointed by the State Government, by notification in the Official Gazette,

from a panel of two names suggested by the Board and who shall not be below the rank of Deputy

Subs. by Act 27 of 2013, s. 17, for sub-section (1) (w.e.f. 1-11-2013)

Secretary to the State Government, and in case of non-availability of a Muslim officer of that rank,

a Muslim officer of equivalent rank may be appointed on deputation.]

The term of office and other conditions of service of the Chief Executive Officer shall be

such as may be prescribed.

Section 23(3) provides that the Chief Executive Officer shall be ex officio Secretary of the

Board and shall be under the administrative control of the Board.

CASE LAWS

In Abdul Rashid v. State of Punjab

In this case, the court examined the obligations of the

state government under Section 23 of the Workers Act, 1995. The state government is required by

law to appoint the Chief Executive Officer (CEO) of the Board. According to the statutory mandate,

this position must be held by a Muslim, and the appointment must be made by the state government

in consultation with the Board. Thus, the Court held that the appointment process under Section 23

is not just a formality but a statutory requirement. The consultation with the Board is essential to

ensure that the appointment aligns with the Board's objectives and needs. This case underscores the

importance of adherence to statutory requirements in the appointment process to uphold the integrity

and effectiveness of the Board's functioning.

In A.M.S Shahabuddin v. T.N Waqf Board

,it is addressed the procedures the Waqf Board

must follow when there are objections related to the eligibility or disqualifications of Board members.

The Court highlighted that the Board must conduct a thorough enquiry when objections are raised,

ensuring that both the objectors and the persons whose applications are objected to are given an

opportunity to be heard. This decision reinforces the principles of natural justice and procedural

fairness, ensuring that decisions are made transparently and with due consideration of all parties

involved.

In Shujauddin Mohammed Kaiser v. Calcutta Municipal Corporation

,the Court in this case

examined the actions the Waqf Board could take in instances of dereliction of duty by Mutawallis

(custodians of Waqf properties). the Court noted that the Waqf Board has the authority to take

appropriate actions, including the removal of a Mutawalli, if there is a failure to perform their duties.

This ruling underscores the Board's supervisory role and its responsibility to ensure that Waqf

properties are managed properly in accordance with the law.

OFFICERS AND OTHER EMPLOYEES OF THE BOARD

Section 24(1) provides that the Board shall have the assistance of such number of officers

and other employees as may be necessary for the efficient performance of its functions under this

Act, details thereof shall be determined by the Board in consultation with the State Government.

Section 24(2) provides that the appointment of officers and other employees, their term of office

and conditions of service shall be such as may be provided by regulations.

DUTIES AND POWERS OF CHIEF EXECUTIVE OFFICER

Section 25(1) provides that subject to the provisions of this Act and of the rules made

thereunder and the directions of the Board, functions of the Chief Executive Officer shall include—

(a)investigating the nature and extent of

[auqaf] and

[waqf] properties and calling whenever

necessary, an inventory of

[waqf] properties and calling, from time to time, for accounts, returns

and information from mutawallis; inspecting or causing inspection of

[waqf] properties and

accounts, records, deeds or documents relating thereto;

(b)doing generally of such acts as may be necessary for the control, maintenance and superintendence

[auqaf].

Section 25(2) provides that in exercising the powers of giving directions under sub-section

Section 23(2)

2010 (3) R.C.R (Civil) 590

2016 A.I.C 816

Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013)

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013)

(1) in respect of any

[waqf], the Board shall act in conformity with the directions by the

[waqf]

in the deed of the

[waqf], the purpose of

[waqf] and such usage and customs of the

[waqf] as

are sanctioned by the school of Muslim law to which the

[waqf] belongs.

Save as otherwise expressly provided in this Act, the Chief Executive Officer shall exercise

such powers and perform such duties as may be assigned to him or delegated to him under this Act.

POWERS OF CHIEF EXECUTIVE OFFICER IN RESPECT OF ORDERS OR

RESOLUTIONS OF BOARD

Where the Chief Executive Officer considers that an order or resolution passed by the

Board—

(k) has not been passed in accordance with the law; or

(l) is in excess of or is an abuse of the powers conferred on the Board by or under this Act

or by any other law; or

(m) if implemented, is likely to—

(i) cause financial loss to the Board or to the concerned

[waqf] or to the

[auqaf] generally; or

(ii) lead to a riot or breach of peace; or

(iii) cause danger to human life, health or safety; or

(n) is not beneficial to the Board or to any

[waqf] or to

[auqaf] generally,

he may, before implementing such order or resolution, place the matter before the Board for its

reconsideration and, if such order or resolution is not confirmed by a majority of vote of the members

present and voting after such reconsideration, refer the matter to the State Government along with

his objections to the order or resolution, and the decision of the State Government thereon shall be

final.

DELEGATION OF POWERS BY THE BOARD

The Board may, by a general or special order in writing, delegate to the Chairperson, any other

member, the Chief Executive Officer or any other officer or servant of the Board or any area

committee, subject to such conditions and limitations as may be specified in the said order, such of

its powers and duties under this Act, as it may deem necessary, except the powers and functions of

the Board mentioned under clauses (c), (d), (g) and (j) of sub-section (2) of section 32 and section

110.]

CASE LAWS

In Md. Islamuddin v. State of Bihar

, the issue in this case revolved around the exercise of

power under Section 27 of the Waqf Act. The court had to determine whether the power could be

exercised by the Board alone or also by the Chairman. The Court ruled that the power under Section

27 is vested in the Board collectively, not in the Chairman individually. Consequently, any orders or

actions taken solely by the Chairman, without the Board's authorization, are invalid. This decision

emphasizes the collective responsibility and decision-making authority of the Board in matters

related to the Waqf Act.

POWER OF DISTRICT MAGISTRATE, ADDITIONAL DISTRICT MAGISTRATE OR

SUB-DIVISIONAL MAGISTRATE TO IMPLEMENT THE DIRECTIONS OF THE BOARD

Subject to the provisions of this Act and the rules made thereunder, the District Magistrate or in

his absence an Additional District Magistrate or Sub-Divisional Magistrate of a District in the State

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

Section 25(3)

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013)

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013)

2009 (2) P.L.J.R 306

shall be responsible for implementation of the decisions of the Board which may be conveyed

through the Chief Executive Officer and the Board may, wherever considers necessary, seek

directions from the Tribunal for the implementation of its decisions.]

POWERS OF CHIEF EXECUTIVE OFFICER TO INSPECT RECORDS,

REGISTERS, ETC

Section 29(1) provides that The Chief Executive Officer or any officer of the Board duly

authorized by him in this behalf shall,

[subject to such conditions as may be prescribed], be entitled

at all reasonable time to inspect, in any public office, any records, registers or other documents

relating to a

[waqf], or movable or immovable properties which are

[waqf] properties or are

claimed to be

[waqf] properties.

[The mutawalli or any other person having the custody of any document related to waqf

properties shall produce the same, within the prescribed period, before the Chief Executive Officer

on being called upon to do so in writing.

Section 29(3) provides that subject to such conditions as may be prescribed, an agency of the

Government or any other organization shall supply, within ten working days, copies of the records,

registers of properties or other documents relating to waqf properties or claimed to be waqf

properties, to the Chief Executive Officer on a written request to this effect from him:

Provided that before taking any course of action as mentioned in sub-sections (2) and (3), the

Chief Executive Officer shall obtain approval of the Board.]

INSPECTION OF RECORDS

Section 30(1) provides that the Board may allow inspection of its proceedings or other records in its

custody and issue copies of the same on payment of such fees and subject to such conditions as may

be prescribed.

All copies issued under this section shall be certified by the Chief Executive Officer of the Board in

the manner provided in section 76 of the Indian Evidence Act, 1872 (1 of 1872).

Section 13(1) states that the powers conferred on the Chief Executive Officer by sub-section (2) may

be exercised by such other officer or officers of the Board as may either generally or specially be

authorized in this behalf by the Boar

PREVENTION OF DISQUALIFICATION FOR MEMBERSHIP OF PARLIAMENT

It is hereby declared that the offices of the Chairperson or member of a Board shall not be

disqualified and shall be deemed never to have been disqualified for being chosen as, or for being, a

Member of Parliament

[or a Member of Union territory Legislature or a Member of a State

Legislature if so, declared under a law made by the appropriate State Legislature].

POWERS AND FUNCTIONS OF THE BOARD

Section 32(1) provides that subject to any rules that may be made under this Act, the general

superintendence of all

[auqaf] in a State shall vest in the Board established or the State; and it shall

be the duty of the Board so to exercise its powers under this Act as to ensure that the

[auqaf] under

its superintendence are properly maintained, controlled and administered and the income thereof is

duly applied to the objects and for the purposes for which such

[auqaf] were created or intended:

Provided that in exercising its powers under this Act in respect of any

[waqf], the Board shall

act in conformity with the directions of the

[waqif], the purposes of the

[waqf] and any usage or

S. 29 numbered as sub-section (1) thereof by s. 20, ibid. (w.e.f. 1-11-2013)

Subs. by s. 20, ibid., for certain words (w.e.f.1-11-2013)

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

Ins. by s. 20, ibid. (w.e.f. 1-11-2013)

Section 29(2)

Section 30(2)

Ins. by s. 21, ibid. (w.e.f. 1-11-2013)

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

Subs. by s. 4, ibid., for “wakif” (w.e.f. 1-11-2013)

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

custom of the

[waqf] sanctioned by the school of Muslim law to which the

[waqf] belongs.

Explanation. —For the removal of doubts, it is hereby declared that in this sub-section,

“

[waqf]” includes a

[waqf] in relation to which any scheme has been made by any court of law,

whether before or after the commencement of this Act.

Section 32(2) provides that without prejudice to the generality of the foregoing power, the

functions of the Board shall be—

(a) to maintain a record containing information relating to the origin, income, object

and beneficiaries of every

[waqf];

(b) to ensure that the income and other property of

100

[auqaf] are applied to the objects and

for the purposes for which such 3[auqaf] were intended or created;

101

[auqaf];

(d) to settle schemes of management for a

102

[waqf]:

Provided that no such settlement shall be made without giving the parties affected an opportunity

of being heard;

(e) to direct—

(i) the utilization of the surplus income of a

103

[waqf] consistent with the objects of

104

[waqf];

(ii) in what manner the income of a

105

[waqf], the objects of which are not evident from

any written instrument, shall be utilized;

(iii) in any case where any object of

106

[waqf] has ceased to exist or has become incapable

of achievement, that so much of the income of the

107

[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:

Provided that no direction shall be given under this clause without giving the parties affected, an

opportunity of being heard.

Explanation. —For the purposes of this clause, the powers of the Board shall be exercised—

(i) in the case of a Sunni

108

[waqf], by the Sunni members of the Board only; and

(ii) in the case of a Shia

109

[waqf], by the Shia members of the Board only:

Provided that where having regard to the number of the Sunni or Shia members in the board and

other circumstances, it appears to the Board that the power should not be exercised by such members

only, it may co-opt such other Muslims being Sunnis or Shias, as the case may be, as it thinks fit, to

be temporary members of the Board for exercising its powers under this clause;

(f) to scrutinize and approve the budgets submitted by mutawallis and to arrange for auditing

of account of 3[auqaf];

(g) to appoint and remove mutawallis in accordance with the provisions of this Act;

(h) to take measures for the recovery of lost properties of any

110

[waqf];

(i) to institute and defend suits and proceedings relating to

111

[auqaf];

112

[(j) to sanction lease of any immovable property of a waqf in accordance with the provisions

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

100

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

101

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

102

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

103

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

104

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

105

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

106

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

107

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

108

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

109

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

110

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

111

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

112

Subs. by s. 22, ibid., for clause (j) (w.e.f. 1-11-2013

of this Act and the rules made thereunder:

Provided that no such sanction shall be given unless a majority of not less than two-thirds of the

members of the Board present cast their vote in favor of such transaction:

Provided further that where no such sanction is given by the Board, the reasons for doing so shall

be recorded in writing.]

(k) to administer the

113

[Waqf] Fund;

(l) to call for such returns, statistics, accounts and other information from the mutawallis

with respect to the

114

[waqf] property as the Board may, from time to time, require;

(m) to inspect, or cause inspection of,

115

[waqf] properties, accounts, records or deeds

and documents relating thereto;

(n) to investigate and determine the nature and extent of

116

[waqf] and

117

[waqf] property,

and to cause, whenever necessary, a survey of such

118

[waqf] property;

119

[(na) 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;]

(o) generally, do all such acts as may be necessary for the control, maintenance and

administration of

120

[auqaf].

Where the Board has settled any scheme of management under clause (d) or given any

direction under clause (e) of sub-section (2), any person interested in the

121

[waqf] or affected by

such settlement or direction may institute a suit in a Tribunal for setting aside such settlement or

directions and the decision of the Tribunal thereon shall be final.

122

Section 32(4) provides that where the Board is satisfied that any

123

[waqf] land, which is a

124

[waqf] property,

125

[has the potential for development as an educational institution, shopping

centre, market, housing or residential flats and the like], market, housing flats and the like, it may

serve upon the mutawalli of the concerned

126

[waqf] a notice requiring him within such time, but

not less than sixty days, as may be specified in the notice, to convey its decision whether he is willing

to execute the development works specified in the notice.

Section 32(5) states that on consideration of the reply, if any, received to the notice issued

under sub-section (4), the Board, if it is satisfied that the mutawalli is not willing or is not capable of

executing the works required to be executed in terms of the notice, it may,

127

*** take over the

property, clear it of any building or structure thereon, which, in the opinion of the Board is necessary

for execution of the works and execute such works from 1[waqf] funds or from the finances which

may be raised on the security of the properties of the 1[waqf] concerned, and control and manage the

properties till such time as all expenses incurred by the Board under this section, together with

interest thereon, the expenditure on maintenance of such works and other legitimate charges incurred

on the property are recovered from the income derived from the property:

Provided that the Board shall compensate annually the mutawalli of the concerned 1[waqf] to the

extent of the average annual net income derived from the property during the three years immediately

preceding the taking over of the property by the Board.

Section 32(6) states that After all the expenses as enumerated in sub-section (5) have been recouped

from the income of the developed properties, the developed properties shall be handed over to

113

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

114

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

115

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

116

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

117

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

118

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

119

Ins. by s. 22, ibid. (w.e.f. 1-11-2013)

120

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

121

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

122

Section 32(3)

123

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

124

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

125

Subs. by s. 22, ibid., for “offers a feasible potential for development as a shopping centre” (w.e.f. 1-11-2013)

126

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

127

The words “with the prior approval of the Government,” omitted by s. 22, ibid. (w.e.f. 1-11-2013)

mutawalli of the concerned [waqf].

128

CASE LAWS

In Moulavi Abdul Rahman Siyai v. Sardar Maqbool Hussain

129

, dealt with the Board's powers

of superintendence, particularly in appointing Mutawallis. The Court clarified that while the Board

has supervisory powers, it does not have absolute authority. The Board must adhere to the directions

stipulated in the Waqf deed. This ensures that the original intent and directives of the Waqf are

respected and followed, maintaining the integrity of Waqf administration.

POWERS OF INSPECTION BY CHIEF EXECUTIVE OFFICER OR PERSONS

AUTHORISED BY HIM

Section 33(1) provides that with a view to examining whether, by reason of any failure or

negligence on the part of a mutawalli in the performance of his executive or administrative duties,

any loss or damage has been caused to any

130

[waqf] or

131

[waqf] property, the Chief Executive

Officer

132

[or any other person authorized by him in writing] with the prior approval of the Board,

133

***, may inspect all movable and immovable properties, which are

134

[waqf] properties, and all

records, correspondences, plans, accounts and other documents relating thereto.

Section 33(2) provides that whenever any such inspection as referred to in sub-section (1) is

made, the concerned mutawalli and all officers and other employees working under him and every

person connected with the administration of the

135

[waqf], shall extend to the person making such

inspection, all such assistance and facilities as may be necessary and reasonably required by him to

carry out such inspection, and shall also produce for inspection any movable property or documents

relating to the

136

[waqf] as may be called for by the person making the inspection and furnish to him

such information relating to the

137

[waqf] as may be required by him.

Section 33(3) states that where, after any such inspection, it appears that the concerned

mutawalli or any officer or other employee who is or was working under him had mis-appropriated,

misapplied or fraudulently retained, any money or other

138

[waqf] property, or had incurred irregular,

unauthorized or improper expenditure from the funds of the

139

[waqf], the Chief Executive Officer

may, after giving the mutawalli or the person concerned a reasonable opportunity of showing cause

why an order for the recovery of the amount or property, should not be passed against him and after

considering such explanation, if any, as such person may furnish, determine the amount or the

property which has been mis-appropriated, misapplied or fraudulently retained, or the amount of the

irregular, unauthorized or improper expenditure incurred by such person, and make an order directing

such person to make payment of the amount so determined and to restore the said property to the

140

[waqf], within such time as may be specified in the order.

Section 33(4) provides that a mutawalli or other person aggrieved by such order may, within

thirty days of the receipt by him of the order, appeal to the Tribunal:

Provided that no such appeal shall be entertained by the Tribunal unless the appellant first

deposits with the Chief Executive Officer the amount which has been determined under sub-section

(3) as being payable by the appellant and the Tribunal shall have no power to make any order staying

pending the disposal of the appeal, the operation of the order made by the Chief Executive

Officer under sub-section (3).

128

Section 32(6)

129

AIR 2009 All. 62

130

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

131

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

132

Ins. by s. 23, ibid. (w.e.f. 1-11-2013)

133

The words “either himself or any other person authorised by him in writing in this behalf” omitted by s.

23, ibid. (w.e.f. 1-11-2013)

134

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

135

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

136

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

137

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

138

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

139

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

140

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

Section 33(5) states that the Tribunal may, after taking such evidence as it may think fit,

confirm, reverse or modify the order made by the Chief Executive Officer under sub-section (3) or

may remit, either in whole or in part, the amount specified in such order and may make such orders

as to costs as it may think appropriate in the circumstances of the case.

The order made by the Tribunal under sub-section (5) shall be final.

141

CASE LAWS

In Laik Ahammed v. Chief Executive Officer, Uttarakhand Waqf Board

142

,the focus of this case was

on the procedural requirements before passing a recovery order against a Mutawalli under Section

33(3) of the Waqf Act. The Court held that not providing an opportunity for a hearing to the

Mutawalli before issuing a recovery order constitutes a clear violation of Section 33(3). This decision

highlights the necessity of procedural fairness and the right to a fair hearing, reinforcing the legal

protections afforded to Mutawallis under the Waqf Act.

RECOVERY OF THE AMOUNT DETERMINED UNDER SECTION 33

Where any mutawalli or other person who has been ordered, whether under sub-section (3) or sub-

section (5) of section 33, to make any payment or to restore the possession of any property, omits or

fails to make such payment or restoration within the time specified in such order, the Chief Executive

Officer, with the prior approval of the Board shall, take such steps as he may think fit for the recovery

of possession of the property aforesaid and shall also send a certificate to the Collector of the district

in which the property of such mutawalli or other person is situate, stating therein the amount that has

been determined by him or by the Tribunal, as the case may be, under section 33, as being payable

by such mutawalli or other person, and, thereupon, the Collector shall recover the amount specified

in such certificate as if it were an arrear of land revenue and on the recovery of such amount, pay the

same to the Chief Executive Officer, who shall, on receipt thereof, credit the amount to the funds of

the concerned 1[waqf].

CONDITIONAL ATTACHMENT BY TRIBUNAL

Section 35(1) provides that where the Chief Executive Officer is satisfied that the mutawalli

or any other person who has been ordered under sub-section (3) or sub-section (5) of section 33 to

make any payment, with intent to defeat or delay the execution of the said order, —

(a) is about to dispose of the whole or any part of the property; or

(b) is about to remove the whole or any part of the property from the jurisdiction of the Chief

Executive Officer,

he may, with prior approval of the Board, apply to the Tribunal for the conditional attachment of the

said property or such part thereof, as he may think necessary.

Section 35(2) states that the Chief Executive Officer shall, unless the Tribunal otherwise directs,

specify in the application the property required to be attached and the estimated value thereof.

Section 35(3) provides that the Tribunal may direct the mutawalli or the person concerned, as the

case may be, within a time to be fixed by it, either to furnish security, in such sum as may be specified

in the order, to produce and place at the disposal of the Tribunal when required, the said property or

the value of the same or such portion thereof as may be sufficient to satisfy the amount specified

in the certificate referred to in section 34, or to appear and show cause why he should not furnish

such security.

The Tribunal may also in the order direct the conditional attachment of the whole or any

portion of the property so specified.

143

Every attachment made under this section shall be made in

accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as if it were an

order for attachment made under the provision of the said Code.

144

CHAPTER V

REGISTRATION OF

145

[AUQAF]

REGISTRATION

141

Section 33(6)

142

AIR 2016 (NOC) 212

143

Section 35(4)

144

Section 35(5)

145

Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013)

Section 36(1) provides that every

146

[waqf], whether created before or after the

commencement of this Act, shall be registered at the office of the Board.

Section 36(2) states that application for registration shall be made by the mutawalli:

Provided that such applications may be

147

[made by the waqf] or his descendants or a beneficiary of

the

148

[waqf] or any Muslim belonging to the sect to which the

149

[waqf] belongs.

Section 36(3) provides that an application for registration shall be made in such form and

manner and at such place as the Board may by regulation provide and shall contain the following

particulars: —

(a) a description of the

150

[waqf] properties sufficient for the identification thereof;

(b) the gross annual income from such properties;

151

[waqf] properties;

(d) an estimate of the expenses annually incurred in the realization of the income of the

152

[waqf] properties;

(e) the amount set apart under the

153

[waqf] for—

(i) the salary of the mutawalli and allowances to the individuals;

(ii) purely religious purposes;

(iii) charitable purposes; and

(iv) any other purposes;

(f) any other particulars provided by the Board by regulations.

Section 36(4) states that every such application shall be accompanied by a copy of the

154

[waqf] deed or if no such deed has been executed or a copy thereof cannot be obtained, shall

contain full particulars, as far as they are known to the applicant, of the origin, nature and objects of

the

155

[waqf].

Every application made under sub-section (2) shall be signed and verified by the applicant

in the manner provided in the Code of Civil Procedure, 1908 (5 of 1908) for the signing and

verification of pleadings.

156

The Board may require the applicant to supply any further particulars or information that it

may consider necessary.

157

Section 36(5) provides that on receipt of an application for registration, the Board may,

before the registration of the

158

[waqf] make such inquiries as it thinks fit in respect of the

genuineness and validity of the application and correctness of any particulars therein and when the

application is made by any person other than the person administering the

159

[waqf] property, the

Board shall, before registering the

160

[waqf], give notice of the application to the person

administering the

161

[waqf] property and shall hear him if he desires to be heard.

Section 36(6) states that in the case of

162

[auqaf] created before the commencement of this

Act, every application for registration shall be made, within three months from such commencement

146

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

147

Subs. by s. 24, ibid., for “made by the wakf” (w.e.f. 1-11-2013)

148

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

149

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

150

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

151

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

152

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

153

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

154

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

155

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

156

Section 36(5)

157

Section 36(6)

158

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

159

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

160

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

161

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

162

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

and in the case of

163

[auqaf] created after such commencement, within three months from the date of

the creation of the

164

[waqf]:

Provided that where there is no Board at the time of creation of a

165

[waqf], such application will

be made within three months from the date of establishment of the Board.

166

[AUQAF]

167

Section 37(1) provides that the Board shall maintain a register of auqaf which shall contain

in respect of each

168

[waqf] copies of the waqf deeds, when available and the following particulars,

namely: —

a) the class of the waqf;

b) the name of the mutawallis;

c) the rule of succession to the office of mutawalli under the waqf deed or by custom or by

usage;

d) particulars of all waqf properties and all title deeds and documents relating thereto;

e) particulars of the scheme of administration and the scheme of expenditure at the time of

registration;

f) such other particulars as may be provided by regulations.

169

Section 37(2) provides that the Board shall forward the details of the properties entered in the

On receipt of the details as mentioned in sub-section (2), the land record office shall, according

to established procedure, either make necessary entries in the land record or communicate, within a

period of six months from the date of registration of waqf property under section 36, its objections

to the Board.

170

POWERS OF BOARD TO APPOINT EXECUTIVE OFFICER

Section 38(1) provides that notwithstanding anything contained in this Act, the Board may,

if it is of the opinion that it is necessary so to do in the interests of the

171

[waqf], appoint on whole-

time or part-time or in an honorary capacity, subject to such conditions as may be provided by

regulations, an Executive Officer with such supporting staff as it considers necessary for any

172

[waqf] having a gross annual income of not less than five lakh rupees:

Provided that the person chosen for appointment should be a person professing Islam.

Section 38(2) provides that every Executive Officer appointed under sub-section (1) shall

exercise such powers and discharge such duties as pertain only to the administration of the property

of the

173

[waqf] for which he has been appointed and shall exercise those powers and discharge those

duties under the direction, control and supervision of the Board:

Provided that the Executive Officer who is appointed for a

174

[waqf] having a gross annual

income of not less than five lakh rupees shall ensure that the budget of the

175

[waqf] is submitted, the

accounts of the

176

[waqf] are regularly maintained, and the yearly statement of accounts are submitted

within such time as the Board may specify.

While exercising his powers and discharging his functions under sub-section (2), the

Executive Officer shall not interfere with any religious duties or any usage or custom of the

177

[waqf]

sanctioned by the Muslim law.

178

163

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

164

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

165

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

166

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

167

S. 37 numbered as sub-section (1) thereof by s. 25, ibid. (w.e.f. 1-11-2013)

168

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

169

Ins. by s. 25, ibid. (w.e.f. 1-11-2013)

170

Section 37(3)

171

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

172

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

173

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

174

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

175

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

176

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

177

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

178

Section 38(3)

Section 38(3) provides that the salaries and allowances of the Executive Officer and his staff shall

be fixed by the Board and in fixing the quantum of such salary the Board shall have due regard to

the income of the

179

[waqf], the extent and nature of the duties of the Executive Officer and shall also

ensure that the amounts of such salaries and allowances are not disproportionate to the income of the

180

[waqf] and do not operate as an unnecessary financial burden on it.

Section 38(4) states that the salaries and allowances of the Executive Officer and his staff

shall be paid by the Board from the

181

[Waqf] Fund and, if the

182

[waqf] generates any additional

income as a result of appointment of the Executive Officer, the Board may claim reimbursement of

amounts spent on the salaries and allowances from the fund of the

183

[waqf] concerned.

The Board may, for sufficient reasons, and after giving to the Executive Officer or a member of his

staff, a reasonable opportunity of being heard, suspend, remove or dismiss the Executive Officer or

a member of his staff from his post.

184

Section 38(7) provides that any Executive Officer or a member of his staff who is aggrieved

by any order or removal or dismissal made under sub-section (6) may, within thirty days from the

date of communication of the order, prefer an appeal against the order to the Tribunal and the

Tribunal may, after considering such representation as the Board may make in the matter, and after

giving a reasonable opportunity to the Executive Officer or a member of his staff of being heard,

confirm, modify or reverse the order.

CASE LAWS

In Janab S.A. K Ibrahim v. CEO, T. N Waqf Board

185

,this case examined the compulsory

consultation required for the appointment of a Chief Executive Officer (CEO) by the Waqf Board.

The Court found that the Waqf Board's failure to obtain the necessary consultation before appointing

a CEO rendered the appointment invalid. This ruling emphasizes the procedural requirements and

the need for proper consultation in key appointments to ensure that they are legally sound and in

accordance with statutory provisions.

POWERS OF BOARD IN RELATION TO

186

[AUQAF] WHICH HAVE CEASED TO EXIST

Section 39(1) provides that the Board shall, if it is satisfied that the objects or any part thereof, of a

187

[waqf] have ceased to exist, whether such cesser took place before or after the commencement of

this Act, cause an inquiry to be held by the Chief Executive Officer, in the prescribed manner, to

ascertain the properties and funds pertaining to such

188

[waqf].

Section 39(2) states that on the receipt of the report of inquiry of the Chief Executive Officer,

the Board shall pass an order, —

(a) specifying the property and funds of such

189

[waqf];

(b) directing that any property or funds pertaining to such

190

[waqf] which have been

recovered shall be applied or utilized for the renovation of any

191

[waqf] property and where there is

no need for making any such renovation or where utilization of the funds for such renovation is not

possible, be appropriated, to any of the purposes specific in sub-clause (iii) of clause (e) of sub-

section (2) of section 32.

The Board may, if it has reason to believe that any building or other place which was being

used for religious purpose or instruction or for charity has, whether before or after the commencement

of this Act, ceased to be used for that purpose, make an application to the Tribunal for an order

179

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

180

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

181

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

182

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

183

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

184

Section 38(6)

185

C.W.C 104

186

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

187

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

188

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

189

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

190

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

191

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

directing the recovery of possession of such building or other place.

192

Section 39(4) provides that the Tribunal may, if it is satisfied, after making such inquiry as

it may think fit, that such building or other place—

193

[waqf] property;

(d) has not been acquired under any law for the time being in force relating to acquisition of

land or is not under any process of acquisition under any such law, or has not vested in the State

Government under any law for the time being in force relating to land reforms; and

(e) is not in the occupation of any person who has been authorized by or under any law for

the time being in force to occupy such building or other place, make an order—

(i) directing the recovery of such building or place from any person who may be in

unauthorized possession thereof, and

(ii) directing that such property, building or place be used for religious purpose or instruction as

before, or if such use is not possible, be utilized for any purpose specified in sub-clause (iii) of clause

(e) of sub-section (2) of section 32.

DECISION IF A PROPERTY IS

194

[WAQF] PROPERTY

Section 40(1) provides that the Board may itself collect information regarding any property

which it has reason to believe to be

195

[waqf] property and if any question arises whether a particular

property is

196

[waqf] property or not or whether a

197

[waqf] is a Sunni

198

[waqf] or a Shia

199

[waqf], it may, after making such inquiry as it may deem fit, decide the question.

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

the Tribunal, be final.

200

Section 40(3) states that where the Board has any reason to believe that any property of any

trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the

Societies Registration Act, 1860 (21 of 1860) or under any other Act, is

201

[waqf] property, the

Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such

property and if after such inquiry the Board is satisfied that such property is

202

[waqf] property, call

upon the trust or society, as the case may be, either to register such property under this Act as

203

[waqf] property or show cause why such property should not be so registered:

Provided that in all such cases, notice of the action proposed to be taken under this sub-section

shall be given to the authority by whom the trust or society had been registered.

The Board shall, after duly considering such cause as may be shown in pursuance of notice

issued under sub-section (3), pass such orders as it may think fit and the order so made by the Board,

shall be final, unless it is revoked or modified by a Tribunal.

204

POWER TO CAUSE REGISTRATION OF

205

[WAQF] AND TO AMEND

The Board may direct a mutawalli to apply for the registration of a

206

[waqf], or to supply

any information regarding a

207

[waqf] or may itself cause the

208

[waqf] to be registered or may at any

192

Section 39(3)

193

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

194

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013).

195

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013).

196

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

197

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

198

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

199

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

200

Section 40(2)

201

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

202

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

203

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

204

Section 40(4)

205

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

206

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

207

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

208

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

time amend the register of

209

[auqaf].

CHANGE IN THE MANAGEMENT OF

210

[AUQAF] TO BE NOTIFIED

Section 42(1) provides that in the case of any change in the management of a registered

211

[waqf] due to the death or retirement or removal of the mutawalli, the incoming mutawalli, shall

forthwith, and any other person may notify the change to the Board.

Section 42(2) states that in the case of any other change in any of the particulars mentioned in

section 36, the mutawalli shall, within three months from the occurrence of the change, notify such

change to the Board.

[AUQAF] REGISTERED BEFORE THE COMMENCEMENT OF THIS ACT

DEEMED TO BE REGISTERED

Notwithstanding anything contained in this Chapter, where any

212

[waqf] has been

registered before the commencement of this Act, under any law for the time being in force, it shall

not be necessary to register the

213

[waqf] under the provisions of this Act and any such registration

made before such commencement shall be deemed to be a registration made under this Act.

CHAPTER VI

MAINTENANCE OF ACCOUNTS OF 2[AUQAF]

BUDGET

Section 44(1) provides that every mutawalli of a

214

[waqf] shall, in every year prepare, in

such form and at such time as may be prescribed, a budget in respect of the financial year next ensuing

showing the estimated receipts and expenditure during that financial year.

Section 44(2) states that every such budget shall be submitted by the mutawalli at least

215

[thirty

days] before the beginning of the financial year to the Board and shall make adequate provision for

the following:—

(i) for carrying out the objects of the

216

[waqf];

(ii) for the maintenance and preservation of the

217

[waqf] property;

(iii) for the discharge of all liabilities and subsisting commitments binding on the

218

[waqf]

under this Act or any other law for the time being in force.

219

[ In case the Board considers any item in the budget being contrary to the objects of the waqf

and the provisions of this Act, it may give such direction for addition or deletion of such item as it

may deem fit.]

220

Section 44(4) provides that if in the course of the financial year the mutawalli finds it necessary

to modify the provisions made in the budget in regard to the receipt or to the distribution of the

amounts to be expended under the different heads, he may submit to the Board a supplementary or a

revised budget and the provisions of sub-section (3) shall, as far as may be, apply to such

supplementary or revised budget.

PREPARATION OF BUDGET OF

221

[AUQAF] UNDER DIRECT MANAGEMENT

OF THE BOARD

Section45(1) provides that the Chief Executive Officer shall prepare, in such form and at

such time as may be prescribed, a budget in respect of the financial year next ensuing showing the

estimated receipts and expenditure for each of the

222

[auqaf] under the direct management of the

209

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

210

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

211

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

212

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

213

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

214

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

215

Subs. by s. 26, ibid., for “ninety days” (w.e.f. 1-11-2013)

216

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

217

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

218

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

219

Subs. by s. 26, ibid., for sub-section (3) (w.e.f. 1-11-2013)

220

Section 44(3)

221

Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013)

222

Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013)

Board, showing therein the estimated receipts and expenditure and submit it to the Board for its

approval.

Section 45(2) states that while submitting the budget under sub-section (1), the Chief

Executive Officer shall also prepare statement giving details of the increase, if any, in the income of

each

223

[waqf] under the direct management of the Board and the steps which have been taken for

its better management and the results accruing therefrom during the year.

The Chief Executive Officer shall keep regular accounts and be responsible for the proper

management of every

224

[waqf] under the direct management of the Board.

225

Every budget submitted by the Chief Executive Officer under sub-section (1) shall comply

with the requirements of section 46 and, for this purpose, references therein to the mutawalli of the

226

[waqf] shall be construed as references to the Chief Executive Officer.

227

Section 45(5) states that the audit of accounts of every

228

[waqf] under the direct

management of the Board shall be undertaken by the State Examiner of Local funds or any other

officer appointed by the State Government for this purpose, irrespective of the income of the waqf.

Section 45(6) provides that the provisions of sub-sections (2) and (3) of section 47 and the

provisions of sections 48 and 49 shall, in so far as they are not inconsistent with the provisions of

this section, apply to the audit of accounts referred to in this section.

Section 45(7) states that where any

229

[waqf] is under the direct management of the Board,

such administrative charges as may be specified by the Chief Executive Officer shall be payable by

the waqf to the Board:

Provided that the Chief Executive Officer shall not collect more than ten per cent. of the gross

annual income of the waqf under the direct management of the Board as administrative charges.

SUBMISSION OF ACCOUNTS OF

230

[AUQAF]

Section 46(1) provides that every mutawalli shall keep regular accounts. Section 46(2) states

that before the

231

[1st day of July] next, following the date on which the application referred to

in section 36 has been made and thereafter before the

232

[1st day of July] in every year, every

mutawalli of a

233

[waqf] shall prepare and furnish to the Board a full and true statement of accounts,

in such form and containing such particulars as may be provided by regulations by the Board, of all

moneys received or expended by the mutawalli on behalf of the waqf during the period of twelve

months ending on the 31st day of March, or, as the case may be, during that portion of the said period

during which the provisions of this Act, have been applicable to the waqf:

Provided that the date on which the annual accounts are to be closed may be varied at the

discretion of the Board.

AUDIT OF ACCOUNTS OF

234

[AUQAF]

Section 47(1) provides that the accounts of

235

[auqaf] submitted to the Board under section

46 shall be audited and examined in the following manner, namely: —

236

[waqf] having no income or a net annual income not

exceeding

237

[fifty thousand rupees], the submission of a statement of accounts shall be a sufficient

compliance with the provisions of section 46 and the accounts of two per cent. of such

238

[auqaf]

shall be audited annually by an auditor appointed by the Board;

223

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

224

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

225

Section 45(3)

226

Subs. by s. 27, ibid., for “1st day of May” (w.e.f. 1-11-2013)

227

Section 45(4)

228

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

229

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

230

Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013)

231

Subs. by s. 27, ibid., for “1st day of May” (w.e.f. 1-11-2013)

232

Subs. by s. 27, ibid., for “1st day of May” (w.e.f. 1-11-2013)

233

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

234

Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013)

235

Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013)

236

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

237

Subs. by s. 28, ibid., for “ten thousand rupees” (w.e.f. 1-11-2013)

238

Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013)

(d) the accounts of the

239

[waqf] having net annual income exceeding

240

[fifty thousand

rupees] shall be audited annually, or at such other intervals as may be prescribed, by an auditor

appointed by the board from out of the panel of auditors prepared by the State Government and while

drawing up such panel of auditors, the State Government shall specify the scale of remuneration of

auditors;

(e) the State Government may,

241

[under intimation to the Board,] at any time cause the

account of any

242

[waqf] audited by the State Examiner of Local Funds or by any other officer

designated for that purpose by that State Government.

Section 47(2) states that the auditor shall submit his report to the Board and the report of the

auditor shall among other things, specify all cases of irregular, illegal or improper expenditure or of

failure to recover money or other property caused by neglect or misconduct and any other matter

which the auditor considers it necessary to report; and the report shall also contain the name of any

person who, in the opinion of the auditor, is responsible for such expenditure or failure and the auditor

shall in every such case certify the amount of such expenditure or loss as due from such person.

Section 47(3) provides that the cost of the audit of the accounts of a

243

[waqf] shall be met

from the funds of that

244

[waqf]: Provided that the remuneration of the auditors appointed from out

of the panel drawn by the State Government in relation to

245

[auqaf] having a net annual income of

246

[more than fifty thousand rupees] shall be paid in accordance with the scale of remuneration

specified by the State Government under clause (c) of sub-section (1):

Provided further that where the audit of the accounts of any

247

[waqf] is made by the State

Examiner of Local Funds or any other officer designated by the State Government in this behalf, the

cost of such audit shall not exceed one and a half per cent. of the net annual income of such

248

[waqf]

and such costs shall be met from the funds of the

249

[auqaf] concerned.

CASE LAWS

In Syed Rasool Hussaini v. A.P State Waqf Board

250

, the Court highlighted that both the Waqf and

the Waqf Board are mandated to audit their accounts. This ensures transparency and accountability,

as the Waqf Board is responsible for examining these audited accounts to maintain proper oversight.

BOARD TO PASS ORDERS ON AUDITOR’S REPORT

Section 48(1) provides that the Board shall examine the auditor’s report, and may call for

the explanation of any person in regard to any matter mentioned therein, and shall pass such orders

as it thinks fit including orders for the recovery of the amount certified by the auditor under sub-

section (2) of section 47.

Section 48(2) states that the mutawalli or any other person aggrieved by any order made by

the Board may, within thirty days of the receipt by him of the order, apply to the Tribunal to modify

or set aside the order and the Tribunal may, after taking such evidence as it may think necessary,

confirm or modify the order or remit the amount so certified, either in whole or in part, and may also

make such order as to costs as it may think appropriate in the circumstances of the case.

Section 48(3) provides that no application made under sub-section (2) shall be entertained

by the Tribunal unless the amount certified by the auditor under sub-section (2) of section 47 has

first been deposited in the Tribunal and the Tribunal shall not have any power to stay the operation

of the order made by the Board under sub-section (1). The order made by the Tribunal under sub-

239

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

240

Subs. by s. 28, ibid., for “ten thousand rupees” (w.e.f. 1-11-2013)

241

Ins. by Act 27 of 2013, s. 28 (w.e.f. 1-11-2013)

242

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

243

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

244

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

245

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

246

Subs. by s. 28, ibid., for “more than ten thousand rupees but less than fifteen thousand rupees” (w.e.f. 1-11-2013

247

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

248

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

249

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

250

2013 (3) ALD 271

section (2) shall be final.

251

Section 48(4) states that every amount for the recovery of which any order has been

made under sub-section (1) or sub-section (2) shall, where such amount remains unpaid, be

recoverable in the manner specified in section 34 or section 35 as if the said order were an order

for the recovery of any amount determined under sub-section (3) of section 35.

SUMS CERTIFIED TO BE DUE RECOVERABLE AS ARREARS OF LAND

REVENUE Section 49(1) provides that every sum certified to be due from any person by an auditor

in his report under section 47 unless such certificate is modified or cancelled by an order of the Board

or of the Tribunal made under section 48, and every sum due on a modified certificate shall be paid

by such person within sixty days after the service of a demand notice for the same issued by the

Board.

Section 49(2) provides that if such payment is not made in accordance with the provisions

of sub-section (1), the sum payable may, on a certificate issued by the Board after giving the person

concerned an opportunity of being heard, be recovered in the same as an arrear of land revenue.

DUTIES OF MUTAWALLI

It shall be the duty of every mutawalli—

(f) to carry out the directions of the Board in accordance with the provisions of this Act or

of any rule or order made thereunder;

(g) to furnish such returns and supply such information or particulars as may from time to

time be required by the Board in accordance with the provisions of this Act or of any rule or order

made thereunder;

(h) to allow inspection of

252

[waqf] properties, accounts or records or deeds and documents

relating thereto;

(i) to discharge all public dues; and

(j) to do any other act which he is lawfully required to do by or under this Act.

ALIENATION OF

253

[WAQF] PROPERTY WITHOUT SANCTION OF

BOARD TO BE VOID

254

Section 51(1) provides that notwithstanding anything contained in the waqf deed, any lease

of any immovable property which is waqf property, shall be void unless such lease is affected with

the prior sanction of the Board:

Provided that no mosque, dargah, khanqah, graveyard, or imambara shall be leased except any

unused graveyards in the States of Punjab, Haryana and Himachal Pradesh where such graveyard has

been leased out before the date of commencement of the Wakf (Amendment) Act, 2013 (27 of 2013).

Section 51(1A) provides that any sale, gift, exchange, mortgage or transfer of waqf property shall be

void ab initio:

Provided that in case the Board is satisfied that any waqf property may be developed for the

purposes of the Act, it may, after recording reasons in writing, take up the development of such

property through such agency and in such manner as the Board may determine and move a resolution

containing recommendation of development of such waqf property, which shall be passed by a

majority of two-thirds of the total membership of the Board:

Provided further that nothing contained in this sub-section shall affect any acquisition of waqf

properties for a public purpose under the Land Acquisition Act, 1894 (1 of 1894) or any other law

relating to acquisition of land if such acquisition is made in consultation with the Board:

Provided also that—

(k) the acquisition shall not be in contravention of the Places of Public Worship (Special

Provisions) Act, 1991 (42 of 1991);

(l) the purpose for which the land is being acquired shall be undisputedly for a public purpose;

(m) no alternative land is available which shall be considered as more or less suitable for

that purpose; and

(n) to safeguard adequately the interest and objective of the waqf, the compensation shall be

251

Section 48(4)

252

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

253

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

254

Subs. by s. 29, ibid., for sub-section (1) (w.e.f. 1-11-2013)

at the prevailing market value or a suitable land with reasonable solatium in lieu of the acquired

property.]

255

* * * * *

RECOVERY OF

256

[WAQF] PROPERTY TRANSFERRED IN CONTRAVENTION

OF SECTION 5

Section 52(1) provides that if the Board is satisfied, after making any inquiry in such manner as may

be prescribed, that any immovable property of a

257

[waqf] entered as such in the register of waqf

maintained under section 36, has been transferred without the previous sanction of the Board in

contravention of the provisions of section 51

258

[or section 56], it may send a requisition to the

Collector within whose jurisdiction the property is situate to obtain and deliver possession of the

property to it.

On receipt of a requisition under sub-section (1), the Collector shall pass an order directing

the person in possession of the property to deliver the property to the Board within a period of thirty

days from the date of the service of the order.

259

Section 52(3) states that every order passed under sub-section (2) shall be served—

(a) by giving or tendering the order, or by sending it by post to the person for whom it is

intended; or

(b) if such person cannot be found, by affixing the order on some conspicuous part of his

last known place of abode or business, or by giving or tendering the order to some adult male member

or servant of his family or by causing it to be affixed on some conspicuous part of the property to

which it relates:

Provided that where the person on whom the order is to be served, is a minor, service upon his

guardian or upon any adult male member or servant of his family shall be deemed to be the service

upon the minor.

Section 52(4) provides that any person aggrieved by the order of the Collector under sub-

section (2) may, within a period of thirty days from the date of the service of the order, prefer an

appeal to the Tribunal within whose jurisdiction the property is situate and the decision of the

Tribunal on such appeal shall be final.

Section 52(5) states that where an order passed under sub-section (2) has not been complied

with and the time for appealing against such order has expired without an appeal having been

preferred or the appeal, if any, preferred within that time has been dismissed, the Collector shall

obtain possession of the property in respect of which the order has been made, using such force, if

any, as may be necessary for the purpose and deliver it to the Board. In exercising his functions under

this section, the Collector shall be guided by such rules as may be provided by regulations.

260

CASE LAWS

In Md. Mazhar Shaheed v. District Collector, Mahboobnagar

261

, the Court ruled that the entire

Waqf property is vested in the Waqf Board for its maintenance and administration. This ruling

emphasized that such property cannot be alienated except in strict compliance with Section 51 of the

Waqf Act, ensuring the protection and proper management of Waqf assets.

PENALTY FOR ALIENATION OF WAQF PROPERTY WITHOUT SANCTION OF

BOARD

Section 52A (1) provides that whoever alienates or purchases or takes possession of, in any

manner whatsoever, either permanently or temporarily, any movable or immovable property being a

waqf property, without prior sanction of the Board, shall be punishable with rigorous imprisonment

for a term which may extend to two years:

Provided that the waqf property so alienated shall without prejudice to the provisions of any law

for the time being in force, be vested in the Board without any compensation therefor.

255

Sub-sections (2), (3), (4) and (5) omitted by s. 29, ibid. (w.e.f. 1-11-2013)

256

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

257

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

258

Ins. by s. 30, ibid. (w.e.f. 1-11-2013)

259

Section 52(2)

260

Section 52(6)

261

2005 A.L.D 238

Section 52A (2) states that notwithstanding anything contained in the Code of Criminal

Procedure, 1973 (2 of 1974) any offence punishable under this section shall be cognizable and non-

bailable. No court shall take cognizance of any offence under this section except on a complaint made

by the Board or any officer duly authorised by the State Government in this behalf.

262

No court

inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any

offence punishable under this section.

263

CASE LAWS

In Tamil Nadu Waqf Board v. S.A. Syed Masood and others

264

, the Court elaborated on

Section 52, asserting that if Waqf property was sold fraudulently, a suit for recovery of the property

would be valid. This judgment safeguards Waqf properties from fraudulent transactions and enables

their recovery.

RESTRICTION ON PURCHASE OF PROPERTY ON BEHALF OF

265

[WAQF]

Notwithstanding anything contained in a

266

[waqf] deed, no immovable property shall be

purchased for or on behalf of any waqf from the funds of any waqf except with prior sanction of the

Board, and the Board shall not accord such sanction unless it considers that the acquisition of such

property is necessary or beneficial to the waqf and that the price proposed to be paid therefor is

adequate and reasonable:

Provided that before such sanction is accorded, the particulars relating to the proposed transaction

shall be published in the Official Gazette inviting objections and suggestions with respect thereto

and, the Board shall, after considering the objections and suggestions that may be received by it from

mutawallis or other persons interested in the

267

[waqf], make such orders as it may think fit.

REMOVAL OF ENCROACHMENT FROM

268

[WAQF] PROPERTY

Section 54(1) provides that whenever the Chief Executive Officer considers whether on receiving

any complaint or on his own motion that there has been an encroachment on any land, building, space

or other property which is

269

[waqf] property and, which has been registered as such under this Act,

he shall cause to be served upon the encroacher a notice specifying the particulars of the

encroachment and calling upon him to show cause before a date to be specified in such notice, as to

why an order requiring him to remove the encroachment before the date so specified should not be

made and shall also send a copy of such notice to the concerned mutawalli.

The notice referred to in sub-section (1) shall be served in such manner as may be prescribed.

270

Section 54(3) states that if, after considering the objections, received during the period specified in

the notice, and after conducting an inquiry in such manner as may be prescribed, the Chief Executive

Officer is satisfied that the property in question is

271

[waqf] property and that there has been an

encroachment on any such

272

[waqf] property,

273

[he may, make an application to the Tribunal for

grant of order of eviction for removing] such encroachment and deliver possession of the land,

building, space or other property encroached upon to the mutawalli of the waqf.

274

[ Section 54(4) provides that the Tribunal, upon receipt of such application from the Chief

Executive Officer, for reasons to be recorded therein, make an order of eviction directing that the

waqf property shall be vacated by all persons who may be in occupation thereof or any part thereof,

and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the

waqf property:

262

Section 52A (3)

263

Section 52A (4)

264

(1995 AIHC 6317)

265

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

266

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

267

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

268

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013

269

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013

270

Section 54(2)

271

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013

272

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013

273

Subs. by s. 32, ibid., for “he may, by an order, require the encroacher to remove” (w.e.f. 1-11-2013)

274

Subs. by s. 32, ibid., for sub-section (4) (w.e.f. 1-11-2013)

Provided that the Tribunal may before making an order of eviction, give an opportunity of being

heard to the person against whom the application for eviction has been made by the Chief Executive

Officer.

Section 54(5) provides that if any person refuses or fails to comply with the order of eviction

within forty-five days from the date of affixture of the order under sub-section (2), the Chief

Executive Officer or any other person duly authorized by him in this behalf may evict that person

from, and take possession of, the waqf property.

CASE LAWS

In Muppu Raju Lakshmi v. A.P State Waqf Board

275

, the Court held that the Chief Executive

Officer (CEO) of the Waqf Board is empowered to issue a notice to encroachers of Waqf property,

detailing the specifics of the encroachment. If the encroacher responds with explanations or

objections, the CEO must conduct an inquiry. Upon concluding that the property is indeed Waqf

property, the CEO can mandate the removal of the encroachment and reclaim possession. This

process ensures due diligence and legal procedure in addressing encroachments.

ENFORCEMENT OF ORDERS MADE UNDER SECTION 54

Where the person, ordered under

276

[sub-section (4)] of section 54 to remove any

encroachment, omits or fails to remove such encroachment, within the time specified in the order or,

as the case may be, fails to vacate the land, building, space or other property to which the order

relates, within the time aforesaid, the Chief Executive Officer may

277

[refer the order of the Tribunal

to the Executive Magistrate] within the local limits of whose jurisdiction the land, building, space or

other property, is situate for evicting the encroacher, and, thereupon, such Magistrate shall make an

order directing the encroacher to remove the encroachment, or, as the case may be, vacate the land,

building, space or other property and to deliver possession thereof to the concerned mutawalli and in

default of compliance with the order, remove the encroachment or, as the case may be, evict the

encroacher from the land, building, space or other property and may, for this purpose, take such

police assistance as may be necessary.

DISPOSAL OF PROPERTY LEFT ON WAQF PROPERTY BY UNAUTHORISED

OCCUPANTS

Section 55A(1) provides that where any person has been evicted from any waqf property under

sub-section (4) of section 54, the Chief Executive Officer may, after giving fourteen days’ notice to

the person from whom possession of the waqf property has been taken and after publishing the notice

in at least one newspaper having circulation in the locality and after proclaiming the contents of the

notice by placing it on conspicuous part of the waqf property, remove or cause to be removed or

dispose of by public auction any property remaining on such premises.

Section 55A(2) states that where any property is sold under sub-section (1), the sale proceeds

shall, after deducting the expenses relating to removal, sale and

such

other expenses, the

amount, if any, due to the State Government or a local authority or a corporate authority on

account of arrears of rent, damages or costs, be paid to such person, as may appear to the Chief

Executive Officer to be entitled to the same:

Provided that where the Chief Executive Officer is unable to decide as to the person to whom the

balance of the amount is payable or as to the appointment of the same, he may refer such dispute to

the Tribunal and the decision of the Tribunal thereon shall be final.]

RESTRICTION ON POWER TO GRANT LEASE OF

278

[WAQF] PROPERTY

Section 56(1) provides that

279

[A lease for any period exceeding thirty years] of any immovable

property which is waqf property, shall, notwithstanding anything contained in the deed or

instrument of

280

[waqf] or in any other law for the time being in force, be void and of no effect:

275

(2010(3) A.L.D 263)

276

Subs. by s. 33, ibid., for “sub-section (3)” (w.e.f. 1-11-2013)

277

Subs. by s. 33, ibid., for “apply to the Sub-Divisional Magistrate” (w.e.f. 1-11-2013) Subs. by s. 33, ibid., for “apply

to the Sub-Divisional Magistrate” (w.e.f. 1-11-2013)

278

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

279

Subs. by, s. 35, ibid., for “A lease or sub-lease for any period exceeding three years” (w.e.f. 1-11-2013)

280

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

Provided that a lease for any period up to thirty years may be made for commercial activities,

education or health purposes, with the approval of the State Government, for such period and

purposes as may be specified in the rules made by the Central Government:

Provided further that lease of any immovable waqf property, which is an agricultural land, for a

period exceeding three years shall, notwithstanding anything contained in the deed or instrument of

waqf or in any other law for the time being in force, be void and of no effect:

Provided also that before making lease of any waqf property, the Board shall publish the details

of lease and invite bids in at least one leading national and regional newspapers.]

Section 56(2) states that

281

[A lease for a period of one year but not exceeding thirty years]

of immovable property which is

282

[waqf] property shall, notwithstanding anything contained in the

deed or instrument of

283

[waqf] or in any other law for the time being in force, be void and of

no effect unless it is made with the previous sanction of the Board.

Section 56(3) provides that the Board shall, in granting sanction for lease

284

*** or renewal

thereof under this section review the terms and conditions on which the lease

285

*** is proposed to

be granted or renewed and make its approval subject to the revision of such terms and conditions in

such manner as it may direct:

286

[Provided that the Board shall immediately intimate the State Government regarding a lease

for any period exceeding three years of any waqf property and thereafter it may become effective

after the expiry of forty-five days from the date on which the Board intimates the State Government.]

287

[ Section 56(4) provides that every rule made by the Central Government under this section

shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session

for a total period of thirty days, which may be comprised in one session or in two or more successive

sessions, and if, before the expiry of the session immediately following the session or the successive

sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree

that the rule should not be made, the rule shall thereafter have effect only in such modified form or

be of no effect, as the case may be; so, however, that any such modification or annulment shall be

without prejudice to the validity of anything previously done under that rule.]

MUTAWALLI ENTITLED TO PAY CERTAIN COSTS FROM INCOME OF

288

[WAQF] PROPERTY

Notwithstanding anything contained in the

289

[waqf] deed, every mutawalli may pay from the income

of the waqf property any expenses properly incurred by him for the purpose of enabling him to furnish

any particulars, documents or copies under section 36 or any accounts under section 46 or any

information or documents required by the Board or for the purpose of enabling him to carry out the

directions of the Board.

POWER OF BOARD TO PAY DUES IN CASE OF DEFAULT BY MUTAWALLI

Section 58(1) provides that where a mutawalli refuses to pay or fails to pay any revenue, cess, rates

or taxes due to the Government or any local authority, the Board may discharge dues from the Waqf

Fund and may recover the amount so paid from the waqf property and may also recover damages not

exceeding twelve and a half per cent. of the amount so paid.

Any sum of money due under sub-section (1) may, on a certificate issued by the Board after

giving the mutawalli concerned an opportunity of being heard, be recovered in the same manner as

an arrear of land revenue.

290

281

Subs. by s. 35, ibid., for “A lease or sub-lease for any period exceeding one year and not exceeding three

years” (w.e.f. 1-11-2013).

282

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

283

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

284

The words “or sub-lease” omitted by s. 35, ibid. (w.e.f. 1-11-2013)

285

The words “or sub-lease” omitted by s. 35, ibid. (w.e.f. 1-11-2013)

286

Ins. by s. 35, ibid. (w.e.f. 1-11-2013)

287

Ins. by s. 35, ibid. (w.e.f. 1-11-2013)

288

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

289

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

290

Sec.58(2)

CREATION OF RESERVE FUND.

291

For the purpose of making provisions for the payment of rent and of revenue, cess, rates and

taxes due to the Government or any local authority, for the discharge of the expenses of the repair of

the [waqf] property and for the preservation of the

292

[waqf] property, the Board may direct the

creation and maintenance, in such manner as it may think fit, of a reserve fund from the income of a

293

[waqf].

EXTENSION OF TIME

The Board may, if it is satisfied that it is necessary so to do, extend the time within which

any act is required to be done by the mutawalli under this Act.

PENALTIES

Section 61(1) provides that if a mutawalli fails to—

(o) apply for the registration of a

294

[auqaf];

(p) furnish statements of particulars or accounts or returns as required under this Act;

(q) supply information or particulars as required by the Board;

(r) allow inspection of

295

[waqf] properties, accounts, records or deeds and documents

relating thereto;

(s) deliver possession of any waqf property, if ordered by the Board or Tribunal;

(t) carry out the directions of the Board;

(u) discharge any public dues; or

(v) do any other act which he is lawfully required to do by or under this Act;

he shall, unless he satisfies the court or the Tribunal that there was reasonable cause for his failure,

be punishable with fine which may extend to

296

[ten thousand rupees for non-compliance of clauses

(a) to (d) and in case of non-compliance of clauses (e) to (h), he shall be punishable with

imprisonment for a term which may extend to six months and also with fine which may extend to ten

thousand rupees].

Section 61(2) states that notwithstanding anything contained in sub-section (1), if—

(a) a mutawalli omits or fails, with a view to concealing the existing of a 1[waqf], to apply

for its registration under this Act, —

(i) in the case of a

297

[waqf] created before the commencement of this Act, within the

period specified therefor in sub-section (8) of section 36;

(ii) in the case of any

298

[waqf] created after such commencement, within three months

from the date of the creation of the

299

[waqf]; or

(b) a mutawalli furnishes any statement, return, or information to the Board, which he knows

or has reason to believe to be false, misleading, untrue or incorrect in any material particular,

he shall be punishable with imprisonment for a term which may extend to six months and also with

fine which may extend to fifteen thousand rupees.

No court, shall take cognizance of an offence punishable under this Act save upon complaint

made by the Board or an officer duly authorized by the board in this behalf.

300

No court inferior to

that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence

punishable under this Act.

301

Section 61(5) provides that notwithstanding anything contained in the Code of Criminal

Procedure, 1973 (2 of 1974), the fine imposed under sub-section (1), when realized, shall be credited

to the Waqf Fund.

Section 61(6) states that in every case where offender is convicted after the commencement

291

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

292

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

293

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

294

Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013)

295

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

296

Subs. by s. 36, ibid., for “eight thousand rupees” (w.e.f. 1-11-2013)

297

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

298

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

299

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

300

Sec.61(3)

301

Section 61(4)

of this Act, of an offence punishable under sub-section (1) and sentenced to a fine, the court shall

also impose such term of imprisonment in default of payment of fine as is authorized by law for such

default.

MUTAWALLI NOT TO SPEND ANY MONEY BELONGING TO

302

[WAQF]

FOR SELF DEFENCE

No mutawalli shall spend any money out of the funds of the

303

[waqf], of which he is the

mutawalli, for meeting any costs, charges, or expenses which are or may be, incurred by him, in

relation to any suit, appeal or any other proceeding for, or incidental to, his removal from office or

for taking any disciplinary action against himself.

POWER TO APPOINT MUTAWALLIS IN CERTAIN CASES

When there is a vacancy in the office of the mutawalli of a

304

[waqf] and there is no one to

be appointed under the terms of the deed of the

305

[waqf], or where the right of any person to act as

mutawalli is disputed, the board may appoint any person to act as mutawalli for such period and on

such conditions as it may think fit.

CASE LAWS

In Shaik Ghouse Mohiuddin v. A.P State Waqf Board

306

, the Court noted that if the Waqf

Board fails to specify the tenure of an appointment in the order, the appointment is invalid. When

appointing someone as Mutawalli (custodian), the Waqf Board must clearly state the period of

appointment. This ensures clarity and legal validity in the management of Waqf affairs.

REMOVAL OF MUTAWALLI

Section 64(1) provides that notwithstanding anything contained in any other law or the deed

waqf, the Board may remove a mutawalli from his office if such mutawalli—

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

(x) 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

(y) 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

(z) is an undischarged insolvent; or

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

to the taking of any narcotic drugs; or

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

(cc) 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

(dd) 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

(ee) 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

307

waqf] property; or

(ff) willfully 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;

(gg) misappropriates or fraudulently deals with the property of the

308

[waqf].

302

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

303

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

304

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

305

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

306

2002(1) ALD751, AIR 2002 ANDHRA PRADESH 344

307

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

308

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

Section 64(2) provides that the removal of a person from the office of the mutawalli shall

not affect his personal rights, if any, in respect of the waqf property either as a beneficiary or in any

other capacity or his right, if any, as a sajjadanashin.

Section 64(3) states that no action shall be taken by the Board under sub-section (1), unless

it has held an inquiry into the matter in a prescribed manner and the decision has been taken by a

majority of not less than two-thirds of the members of the Board.

Section 64(4) provides that a mutawalli who is aggrieved by an order passed under any

of the clauses (c) to (i) of sub-section (1), may, within one month from the date of the receipt by

him of the order, appeal against the order to the Tribunal and the decision of the Tribunal on such

appeal shall be final.

Section 64(5) states that where any inquiry under sub-section (3) is proposed, or commenced,

against any mutawalli, the Board may, if it is of opinion that it is necessary so to do in the interest of

the

309

[waqf], by an order suspend such mutawalli until the conclusion of the inquiry:

Provided that provides that where any inquiry under sub-section (3) is proposed, or commenced,

against any mutawalli, the Board may, if it is of opinion that it is necessary so to do in the interest of

the

310

[waqf], by an order suspend such mutawalli until the conclusion of the inquiry no suspension

for a period exceeding ten days shall be made except after giving the mutawalli a reasonable

opportunity of being heard against the proposed action.

Section 64(6) provides that where any appeal is filed by the mutawalli to the Tribunal under

sub-section (4), the Board may make an application to the Tribunal for the appointment of a receiver

to manage the

311

[waqf] pending the decision of the appeal, and where such an application is made,

the Tribunal shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of

1908), appoint a suitable person as receiver to manage the

312

[waqf] and direct the receiver so

appointed to ensure that the customary or religious rights of the mutawalli and of the

313

[waqf] are

safeguarded.

Section 64(7) states that where a mutawalli has been removed from his office under sub-

section (1), the Board may, by order, direct the mutawalli to deliver possession of the

314

[waqf]

property to the Board or any officer duly authorized in this behalf or to any person or committee

appointed to act as the mutawalli of the

315

[waqf] property.

Section 64(8) provides that a mutawalli of a

316

[waqf] removed from his office under this

section shall not be eligible for re-appointment as a mutawalli of that

317

[waqf] for a period of five

years from the date of such removal.

CASE LAWS

In Mst. Zohra Khatoon v. Janab Mohammed Jane Alam

318

the Court stated that under

Mohammedan law, a Mutawalli does not have ownership rights over Waqf property and holds the

property merely as a manager. Additionally,

In Zaheer Ahmed Khan v. A.P State Waqf Board

319

, the Court ruled that the Waqf Board's

termination of a Mutawalli without conducting an inquiry was invalid. The Court directed the Board

to conduct a proper inquiry into the allegations against the Mutawalli, ensuring fairness and due

process.

ASSUMPTION OF DIRECT MANAGEMENT OF CERTAIN 2[AUQAF] BY THE BOARD.

According to sec 65(1) where no suitable person is available for appointment as a mutawalli of a

309

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

310

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

311

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

312

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

313

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

314

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

315

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

316

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

317

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

318

(AIR 1978 Cal.133)

319

2003(3)ALD469, 2003(4)ALT288

320

[waqf], or where the Board is satisfied, for reasons to be recorded by it in writing, that the filling

up of the vacancy in the office of a mutawalli is prejudicial to the interests of the

321

[waqf], the Board

may, by notification in the Official Gazette, assume direct management of the [waqf] for such period

or periods, not exceeding five years in the aggregate, as may be specified in the notification.

Section 65(2) states that the State Government may, on its own motion or on the application

of any person interested in the

322

[waqf], call for the records of any case for the purpose of satisfying

itself as to the correctness, legality or propriety of the notification issued by the Board under sub-

section (1) and pass such orders as it may think fit and the orders so made by the State Government

shall be final and shall be published in the manner specified in sub-section (1).

Sec 65(3) provides that as soon as possible after the close of every financial year, the Board

shall send to the State Government a detailed report in regard to every

323

[waqf] under its direct

management, giving therein—

(a) the details of the income of the

324

[waqf] for the year immediately preceding the year

under report;

(b) the steps taken to improve the management and income of the

325

[waqf];

326

[waqf] has been under the direct management of the Board

and explaining the reasons as to why it has not been possible to entrust the management of the

327

[waqf] to the mutawalli or any committee of management during the year; and

(d) such other matters as may be prescribed.

By virtue of sec 65(4) the State Government shall examine the report submitted to it under

sub-section (3), and after such examination, issue such directions or instructions to the Board as it

may think fit and the Board shall comply with such directions or instructions on receipt thereof.

Notwithstanding anything contained in sub-section (1), the Board shall take over the

administration of a waqf, if the waqf Board has evidence before it to prove that management of the

waqf has contravened the provisions of this Act.

POWERS OF APPOINTMENT AND REMOVAL OF MUTAWALLI WHEN TO BE

EXERCISED BY THE STATE GOVERNMENT

Whenever a deed of

328

[waqf] or any decree or order of a court of any scheme of

management of any

329

[waqf] provides that a court or any authority other than a Board may appoint

or remove a mutawalli or settle or modify such scheme of management or otherwise exercise

superintendence over the

330

[waqf], then, notwithstanding anything contained in such deed of

331

[waqf], decree, order or scheme, such powers aforesaid shall be exercisable by the State

Government:

Provided that where a Board has been established, the State Government shall consult the Board

before exercising such powers.

SUPERVISION AND SUPERSESSION OF COMMITTEE OF MANAGEMENT

Section 67(1) provides that whenever the supervision or management of a

332

[waqf] is vested in any

committee appointed by the

333

[waqf], then, notwithstanding anything contained in this Act, such

committee shall continue to function until it is superseded by the Board or until the expiry of its term

as may be specified by the

334

[waqf], whichever is earlier:

320

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

321

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

322

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

323

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

324

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

325

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

326

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

327

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

328

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

329

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

330

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

331

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

332

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

333

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

334

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

State that such committee shall function under the direction, control and supervision of the Board

and abide by such directions as the Board may issue from time to time:

Provided further that if the Board is satisfied that any scheme for the management of a

335

[waqf]

by a committee is inconsistent with any provision of this Act or of any rule made thereunder or with

the directions of the

336

[waqf], it may, at any time, modify the scheme in such manner as may be

necessary to bring it in conformity with the directions of the

337

[waqf] or of the provisions of this Act

and the rules made thereunder.

Section 67(2) provides that notwithstanding anything contained in this Act, and in the deed

of the

338

[waqf], the Board may, if it is satisfied, for reasons to be recorded in writing, that a

committee, referred to in sub-section (1) is not functioning properly and satisfactorily, or that the

339

[waqf] is being mismanaged and that in the interest of its proper management, it is necessary so to

do, by an order, supersede such committee, and, on such supersession, any direction of the

340

[waqf],

in so far as it relates to the constitution of the committee, shall cease to have any force:

Provided that the Board shall, before making any order superseding any committee, issue a notice

setting forth therein the reasons for the proposed action and calling upon the Committee to show

cause within such time, not being less than one month, as may be specified in the notice, as to why

such action shall not be taken.

Section 67(3) states that every order made by the Board under sub-section (2) shall be

published in the prescribed manner and on such publication shall be binding on the mutawalli and

all persons having any interest in the

1[waqf].

Section 67(4) provides that Any order made by the Board under sub-section (2) shall be final:

Provided that any person aggrieved by the order made under sub-section (2) may, within sixty

days from the date of the order, appeal to the Tribunal:

Provided further that the Tribunal shall have no power to suspend the operation of the order made

by the Board pending such appeal.

Section 67(5) states that the Board shall, whenever it supersedes any committee under sub-

section (2), constitute a new committee of management simultaneously with the order made by it

under sub-section (2).

Section 67(6) provides that notwithstanding anything contained in the foregoing sub-

sections, the Board may, instead of superseding any committee under sub-section (2), remove any

member thereof if it is satisfied that such member has abused his position as such member or had

knowingly acted in a manner prejudicial to the interests of the 1[waqf], and every such order for the

removal of any member shall be served upon him by registered post:

states that no order for the removal of the member shall be made unless he has been given a

reasonable opportunity of showing cause against the proposed action:

Provided further that any member aggrieved by any order for his removal from the membership

of the committee may, within a period of thirty days from the date of service of the order on him,

prefer an appeal against such order to the Tribunal and Tribunal may, after giving a reasonable

opportunity to the appellant and the Board of being heard, confirm, modify or reverse the order made

by the Board and the order made by the Tribunal in such appeal shall be final.

DUTY OF MUTAWALLI OR COMMITTEE TO DELIVER POSSESSION OF RECORDS,

ETC.

Section 68(1) provides that where any mutawalli or committee of management has been removed by

the Board in accordance with provisions of this Act, or of any scheme made by the Board, the

mutawalli or the committee so removed from the office (hereinafter in this section referred to as the

removed mutawalli or committee) shall hand over charge and deliver possession of the records,

335

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

336

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

337

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

338

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

339

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

340

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

accounts and all properties of the

341

[waqf] (including cash) to the successor mutawalli or the

successor committee, within one month from the date specified in the order.

Where any mutawalli or committee of management has been removed by the Board in

accordance with provisions of this Act, or of any scheme made by the Board, the mutawalli or the

committee so removed from the office (hereinafter in this section referred to as the removed

mutawalli or committee) shall hand over charge and deliver possession of the records, accounts and

all properties of the

342

[waqf] (including cash) to the successor mutawalli or the successor committee,

within one month from the date specified in the order.

Where any removed mutawalli or committee fails to deliver charge or deliver possession of

the records, accounts and properties (including cash) to the successor mutawalli or committee within

the time specified in sub-section (1), or prevents or obstructs such mutawalli or committee, from

obtaining possession thereof after expiry of the period aforesaid, the successor mutawalli or any

member of the successor committee may make an application, accompanied by a certified copy of

the order appointing such successor mutawalli or committee, to any

343

[District Magistrate,

Additional District Magistrate, Sub-Divisional Magistrate or their equivalent] within the local limits

of whose jurisdiction any part of the

344

[waqf] property is situated and, thereupon such

345

[District

Magistrate, Additional District Magistrate, Sub-Divisional Magistrate or their equivalent] may, after

giving notice to the removed mutawalli or members of the removed committee, make an order

directing the delivery of charge and possession of such records, accounts and properties (including

cash ) of the

346

[waqf] to the successor mutawalli or the committee, as the case may be, within such

time as may be specified in the order.

Where the removed mutawalli or any member of the removed committee, omits or fails to

deliver charge and possession of the records, accounts and properties (including cash) within the time

specified by

347

[any Magistrate] under sub-section (2) the removed mutawalli or every member of

the removed committee, as the case may be, shall be punishable with imprisonment for a term which

may extend to six months or with fine which may extend to eight thousand rupees, or with both.

Whenever any removed mutawalli or any member of the removed committee omits or fails

to comply with the orders made by

348

[any Magistrate] under sub-section (2), 3[any Magistrate] may

authorize the successor mutawalli or committee to take charge and possession of such records,

accounts, properties (including cash) and may authorize such person to take such police assistance

as may be necessary for the purpose.

No order of the appointment of the successor mutawalli or committee, shall be called in

question in the proceedings before

349

[any Magistrate] under this section. Nothing contained in this

section shall bar the institution of any suit in a competent civil court by any person aggrieved by any

order made under this section, to establish that he has right, title and interest in the properties

specified in the order made by

350

[any Magistrate] under sub-section (2).

POWER OF BOARD TO FRAME SCHEME FOR ADMINISTRATION OF

351

[WAQF].

Section 69(1) provides that where the Board is satisfied after an enquiry, whether on its own

motion or on the application of not less than five persons interested in any waqf, to frame a scheme

for the proper administration of the waqf, it may, by an order, frame such scheme for the

administration of the waqf, after giving reasonable opportunity and after consultation with the

341

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

342

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

343

Subs. by Act 27 of 2013, s. 38, for “Magistrate of the first class” and “Magistrate” (w.e.f. 1-11-2013)

344

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

345

Subs. by Act 27 of 2013, s. 38, for “Magistrate of the first class” and “Magistrate” (w.e.f. 1-11-2013)

346

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

347

Subs. by s. 38, ibid., for “the Magistrate” (w.e.f. 1-11-2013)

348

Subs. by s. 38, ibid., for “the Magistrate” (w.e.f. 1-11-2013

349

Subs. by s. 38, ibid., for “the Magistrate” (w.e.f. 1-11-2013)

350

Subs. by s. 38, ibid., for “the Magistrate” (w.e.f. 1-11-2013)

351

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

mutawalli or others in the prescribed manner.]

Section 69(2) provides that a scheme framed under sub-section (1) may provide for the

removal of the mutawalli of the

352

[waqf] holding office as such immediately before the date on

which the scheme comes into force:

Where any such scheme provides for the removal of any hereditary mutawalli, the scheme shall also

provide for the appointment of the person next in hereditary succession to the mutawalli so removed,

as one of the members of the committee appointed for the proper administration of the

353

[waqf].

Every order made under sub-section (2) shall be published in the prescribed manner, and, on

such publication shall be final and binding on the mutawalli, and all persons interested in the

354

[waqf]:

Any person aggrieved by an order made under this section may, within sixty days from the date

of the order, prefer an appeal to the Tribunal and after hearing such appeal, the Tribunal may confirm,

reverse or modify the order:

Provided further that the Tribunal shall have no power to stay the operation of the order made

under this section.

Section 69(4) provides that the Board may, at any time by an order, whether made before or

after the scheme has come into force, cancel or modify the scheme. Section 69(5) states that pending

the framing of the scheme for the proper administration of the

355

[waqf], the Board may appoint a

suitable person to perform all or any of the functions of the mutawalli thereof and to exercise the

powers, and perform the duties, of such mutawalli.

INQUIRY RELATING TO ADMINISTRATION OF WAQF [SECTION 70]

Any person interested in a

356

[waqf] may make an application to the Board supported by an

affidavit to institute an inquiry relating to the administration of the

357

[waqf] and if the Board is

satisfied that there are reasonable grounds for believing that the affairs of the

358

[waqf] are being

mismanaged, it shall take such action thereon as it thinks fit.

CASE LAWS

In Ali Hussain v. Parangipeti S. Ali Mosque

359

, the Court observed that a Mutawalli's

management rights over Waqf property can only be nullified by an official order of removal under

the Waqf Act's provisions. This ruling protects the rights of Mutawallis against arbitrary removal.

MANNER OF HOLDING INQUIRY.

Section 71(1) provides that the Board may, either on an application received under

section

360

[70] or on its own motion, —

(a) hold an inquiry in such manner as may be prescribed; or

(b) authorize any person in this behalf to hold an inquiry into any matter relating to a

361

[waqf] and

take such action as it thinks fit.

Section 71(2) states that for the purposes of an inquiry under this section, the Board or any person

authorized by it in this behalf, shall have the same powers as are vested in a civil court under the

Code of Civil Procedure, 1908 for enforcing the attendance of witnesses and production of

documents.

CHAPTER VII

FINANCE OF THE BOARD

352

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

353

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

354

Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013)

355

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

356

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

357

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

358

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

359

2002 East. Cr.C.140

360

Subs. by s. 40, ibid., for “73” (w.e.f. 1-11-2013)

361

Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013)

ANNUAL CONTRIBUTION PAYABLE TO BOARD.

Section 72(1) provides that the mutawalli of every waqf, the net annual income of which is

not less than five thousand rupees, shall pay annually, out of the net annual income derived by the

waqf, such contributions, not exceeding seven per cent. of such annual income, as may be prescribed,

to the Board for the services rendered by such Board to the waqf.

Explanation I .—For the purposes of this Act, “net annual income” shall mean the gross income

of the waqf from all sources, including nazars and offerings which do not amount to contributions

to the corpus of the auqaf, in a year after deducting therefrom the following, namely:—

(i) the land revenue paid by it to the Government;

(ii) the rates, cesses, taxes and licence fees, paid by it to the Government or any local authority;

(iii) expenditure incurred for all or any of the

362

[in respect of lands directly under cultivation

by the mutawalli for the benefit of the waqf, namely: —

(a) maintenance of, or repairs to, irrigation works, which shall not include the capital

cost of irrigation;

(b) seeds or seedlings;

(d) purchase and maintenance of agricultural implements;

(e) purchase and maintenance of cattle for cultivation;

(f) wages for ploughing, watering, sowing, transplanting, harvesting, threshing and

other agricultural operations:

Provided that the total deduction in respect of an expenditure incurred under this clause shall not

exceed

363

[twenty per cent.] of the income derived from lands belonging to the waqf:

1[Provided further that no such deduction shall be permitted in respect of waqf land given on

lease, by whatever name called, whether batai or share cropping or any other name.

(iv) expenditure on sundry repairs to rented buildings, not exceeding five per cent. of the

annual rent derived therefrom, or the actual expenditure, whichever is less;

(v) sale proceeds of immovable properties or rights relating to, or arising out of

immovable properties, if such proceeds are reinvested to earn income for the waqf:

Provided that the following items of receipts shall not be deemed to be income for the purposes

of this section, namely: —

(a) advances and deposits recovered and loans taken or recovered;

(b) deposits made as security by employees, lessees or contractors and other deposits, if any;

(d) amounts recovered towards costs awarded by courts;

(e) sale proceeds of religious books and publications where such sales are undertaken as

an un-remunerative enterprise with a view to propagating religion;

(f) donations in cash or kind or offerings made by the donors as contribution to the corpus

of the waqf:

Provided that interest on income, if any, accruing from such donations or offerings shall be taken

into account in calculating the gross annual income;

(g) voluntary contributions received in cash or kind for a specific service to be performed

by the waqf and expended on such service;

(h) audit recoveries;

Explanation II.—In determining the net annual income for the purposes of this section, only the

net profit derived by any waqf from its remunerative undertakings, if any, shall be taken as income,

and in respect of its non-remunerative undertakings, such as, schools, colleges, hospitals, poor

homes, orphanages or any other similar institutions, the grants given by the Government or any local

authority or donations received from the public or fees collected from the pupils of educational

institutions shall not be taken as income.

Section 72(2) provides that the Board may in the case of any mosque or orphanage or any

362

Subs. by s. 41, ibid., for “following purposes” (w.e.f. 1-11-2013

363

Subs. by s. 41, ibid., for “ten per cent.” (w.e.f. 1-11-2013)

particular waqf reduce or remit such contribution for such time as it thinks fit.

Section 72(3) states that the mutawalli of a waqf may realize the contributions payable by

him under sub-section (1) from the various persons entitled to receive any pecuniary or other material

benefit from the waqf, but the sum realizable from any one of such persons shall not exceed such

amount as shall bear to the total contribution payable, the same proportion, as the value of the benefits

receivable by such person bears to the entire net annual income of the waqf:

If there is any income of the waqf available in excess of the amount payable as dues under this Act,

other than as the contribution under sub-section (1), and in excess of the amount payable under the

waqf deed, the contribution shall be paid out of such income.

Section 72(4) provides that the contribution payable under sub-section (1) in respect of a

waqf shall, subject to the prior payment of any dues to the Government or any local authority or of

any other statutory first charge on the waqf property or the income thereof, be a first charge on the

income of the waqf and shall be recoverable, on a certificate issued by the Board after giving the

mutawalli concerned an opportunity of being heard, as an arrear of land revenue.

Section 72(5) provides that if a mutawalli realizes the income of the 1[waqf] and refuses to

pay or does not pay such contribution, he shall also be personally liable for such contribution which

may be realized from his person or property in the manner aforesaid.

Section 72(6) states that where, after the commencement of this Act, the mutawalli of a waqf

fails to submit a return of the net annual income of the waqf within the time specified therefor or

submits a return which, in the opinion of the Chief Executive Officer is incorrect or false in any

material particular, or which does not comply with the provisions of this Act or any rule or order

made thereunder, the Chief Executive Officer may assess the net annual income of the waqf to the

best of his judgment or revise the net annual income as shown in the return submitted by the

mutawalli and the net annual income as so assessed or revised shall be deemed to be the net annual

income of the waqf for the purposes of this section:

Provided that no assessment of net annual income or revision of return submitted by mutawalli

shall be made except after giving a notice to the mutawalli calling upon him to show cause, within

the time specified in the notice, as to why such assessment or revision of the return shall not be made

and every such assessment or revision shall be made after considering the reply if any, given by the

mutawalli.

Section 72(7) states that Any mutawalli who is aggrieved by the assessment or revision

made by the Chief Executive Officer, under sub-section (6), may prefer an appeal to the Board within

thirty days from the date of the receipt of the assessment or revision of return and the Board may,

after giving the appellant a reasonable opportunity of being heard, confirm, reverse or modify the

assessment or revision or the return and the decision of the Board thereon shall be final.

Section 72(8) provides that if, for any reason, the contribution or any portion thereof leviable

under this section has escaped assessment in any year, whether before or after the commencement of

this Act, the Chief Executive Officer may, within five years from the last date of the year to which

such escaped assessment relates serve upon the mutawalli a notice assessing him with the

contribution or portion thereof which had escaped assessment, and demanding payment thereof

within thirty days from the date of service of such notice, and the provisions of this Act and the rules

made thereunder, shall, as far as may be, apply as if the assessments were made under this Act, in the

first instance.

POWER OF CHIEF EXECUTIVE OFFICER TO DIRECT BANKS OR OTHER PERSON

TO MAKE PAYMENTS

Section 73(1) provides that notwithstanding anything contained in any other law for the time being

in force, the Chief Executive Officer, if he is satisfied that it is necessary and expedient so to do,

make an order directing any bank in which, or any person with whom any money belonging to a

waqf is deposited, to pay the contribution, leviable under section 72, out of such money, as may be

standing to the credit of the waqf in such bank or may be deposited with such person, or out of the

moneys which may, from time to time, be received by bank or other person for or on behalf of the

waqf by way of deposit, and on receipt of such orders, the bank or the other person, as the case may

be, shall, when no appeal has been preferred under sub-section (3), comply with such orders, or

where an appeal has been preferred under sub-section (3), shall comply, with the orders made by the

Tribunal on such appeal.

Section 73(2) states that every payment made by a bank or other person in pursuance

of any order made under sub-section (1), shall operate as a full discharge of the liability of such

bank or other person in relation to the sum so paid.

Section 73(3) provides that any bank or other person who is ordered under sub-section (1) to

make any payment may, within thirty days from the date of the order, prefer an appeal against such

order to the Tribunal and the decision of the Tribunal on such appeal shall be final.

Section 73(4) states that every officer of the bank or other person who fails, without any

reasonable excuse, to comply with the order made under sub-section (1) or, as the case may be, under

sub-section (3), shall be punishable with imprisonment for a term which may extend to six months

or with fine which may extend to eight thousand rupees, or with both.

DEDUCTION OF CONTRIBUTION FROM PERPETUAL ANNUITY PAYABLE TO THE

WAQF.

Section 74(1) provides that every authority empowered to disburse any perpetual annuity payable to

a waqf under any law relating to the abolition of zamindars or jagirs, or laying down land ceilings,

shall, on receipt of a certificate from the Chief Executive Officer, specifying the amount of

contribution payable by the waqf

under section 72 which remains unpaid, deduct before making payment of the perpetual annuity to

the 1[waqf], the amount specified in such certificate and remit the amount so deducted to the Chief

Executive Officer.

Section 74(2) provides that every amount remitted under sub-section (1) to the Chief Executive

Officer shall be deemed to be a payment made by the 1[waqf] and shall, to the extent of the amount

so remitted, operate as a full discharge of the liability of such authority with regard to the payment

of the perpetual annuity.

POWER OF BOARD TO BORROW

Section 75(1) provides that for the purpose of giving effect to the provisions of this Act, the

Board may, with the previous sanction of the State Government, borrow such sum of money and on

such terms and conditions as the State Government may determine.

Section 75(2) provides that the Board shall repay the money borrowed, together with any interest

or costs due in respect thereof, according to the terms and conditions of the loan.

MUTAWALLI NOT TO LEND OR BORROW MONEYS WITHOUT SANCTION.

Section 76(1) provides that to mutawalli, Executive Officer or other person in charge of the

administration of a waqf shall lend any money belonging to the waqf or any waqf property or borrow

any money for the purposes of the waqf except with the previous sanction of the Board:

Provided that no such sanction is necessary if there is an express provision in the deed of waqf

for such borrowing or lending, as the case may be.

Section 76(2) states that the Board may, while according sanction, specify any terms and conditions

subject to which the person referred to in sub-section (1) is authorized by him to lend or borrow any

money or lend any other 1[waqf] property.

Section 76(3) provides that where any money is lent or borrowed, or other waqf property is lent in

contravention of the provisions of this section, it shall be lawful for the Chief Executive Officer, —

(a) to recover an amount equal to the amount which has been so lent or borrowed, together

with interest due thereon, from the personal funds of the person by whom such amount was lent or

borrowed;

(b) to recover the possession of the waqf property lent in contravention of the provisions of

this Act, from the person to whom it was lent, or from persons who claim title to such property

through the person to whom such property was lent.

FUND.

Section 77(1) provides that all moneys received or realized by the Board under this Act and all other

moneys received as donations, benefactions or grants by the Board shall form a fund to be called the

Waqf Fund.

Section 77(2) states that all moneys received by the Board, as donations, benefactions and grants

shall be deposited and accounted for under a separate sub-head.

Section 77(3) provides that subject to any rules that may be made by the State Government in this

behalf, the 1[Waqf] Fund shall be under the control of the Board, so, however, that the Waqf Fund

under the control of common Waqf Board shall be subject to rules, if any, made in this behalf by the

Central Government.

Section 77(4) states that the 1[Waqf] Fund shall be applied to—

(a) repayment of any loan incurred under section 75 and payment of interest thereon;

(b) payment of the cost of audit of the Waqf Fund and the accounts of auqaf;

(d) payment of traveling allowances to the Chairperson, members, of the Board;

(e) payment of all expenses incurred by the Board in the performance of the duties imposed,

and the exercise of the powers conferred, by or under this Act;

(f) payment of all expenses incurred by the Board for the discharge of any obligation

imposed on it by or under any law for the time being in force.

364

[(g) payment of maintenance to Muslim women as ordered by a court of competent jurisdiction

under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986

(25 of 1986).]

Section 77(5) provides that if any balance remains after meeting the expenditure referred to in sub-

section (4), the Board may use any portion of such balance for the preservation and protection of

waqf properties or for such other purposes as it may deem fit.

BUDGET OF BOARD

Section 78(1) provides that the Board shall in every year prepare, in such form and at such

time as may be prescribed, a budget for the next financial year showing the estimated receipts and

expenditure during that financial year and forward a copy of the same to the State Government.

Section 78(2 states that on receipt of the budget forwarded to it under sub-section (1), the

State Government shall examine the same and suggest such alterations, corrections or modifications

to be made therein as it may think fit and forward such suggestions to the Board for its consideration.

Section 78(3) provides that on receipt of the suggestions from the State Government the

Board may make written representations to that Government with regard to the alterations,

corrections or modifications suggested by that Government and the State Government shall, after

considering such representations, communicate, within a period of three weeks from the date of

receipt thereof, to the Board its final decision in relation to the matter and the decision of the State

Government shall be final.

Section 78(4) states that on receipt of the decision of the State Government under sub-section

(3), the Board shall incorporate in its budget all the alterations, corrections, modifications finally

suggested by the State Government and the budget as so altered, corrected or modified, shall be the

budget which shall be passed by the Board.

ACCOUNTS OF BOARD

The Board shall cause to be maintained such books of account and other books in relation to

its accounts in such form and in such manner as may be provided by regulations.

AUDIT OF ACCOUNTS OF BOARD

Section 80(1) provides that the accounts of the Board shall be audited and examined

annually by such auditor as may be appointed by the State Government.

Section 80(2) provides that the auditor shall submit his report to the State Government and the report

of the auditor shall, among other things, specify whether the accounts of every waqf under the direct

management of the Board have been kept separately and whether such accounts have been audited

annually by the State Examiner of Local Funds and shall also specify all cases of irregular, illegal or

improper expenditure or of failure to recover money or other property caused by neglect or

misconduct and any other matter which the auditor considers it necessary to report; and the report

shall also contain the name of any person who, in the opinion of the auditor is responsible for such

expenditure or failure and the auditor shall in every such case certify the amount of such expenditure

or loss as due from such person.

364

Ins. by Act 27 of 2013, s. 42 (w.e.f. 1-11-2013)

Section 80(3) states that the cost of the audit shall be paid from the Waqf Fund.

STATE GOVERNMENT TO PASS ORDERS ON AUDITOR’S REPORT

The State Government shall examine the auditor’s report and may call for the explanation

of any person in regard to any matter mentioned therein, and shall pass such orders on the report as

it thinks fit

365

[and a copy of the said auditor’s report, along with orders shall be forwarded by the

State Government to the Council within a period of thirty days of laying of such report before each

House of the State Legislature where it consists of two Houses or where such Legislatures consist of

one House, before that House].

DUES OF BOARD TO BE RECOVERED AS ARREARS OF LAND REVENUE.

Section 82(1) provides that every sum certified to be due from any person by an auditor in

his report under section 80, be paid by such person within sixty days after service of a demand notice

by the Board.

Section 82(2) provides that if such payment is not made in accordance with the provisions of

sub-section (1), the sum payable may, on a certificate issued by the Board, after giving the person

concerned an opportunity of being heard, be recovered as an arrear of land revenue.

CHAPTER VIII

JUDICIAL PROCEEDINGS

CONSTITUTION OF TRIBUNALS, ETC.

Section 83(1) provides that the State Government shall, by notification in the Official

Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute,

question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of

rights and obligations of the lessor and the lessee of such property, under this Act and define the local

limits and jurisdiction of such Tribunals.]

Section 83(2) states that any mutawalli person interested in a waqf or any other person aggrieved by

an order made under this Act, or rules made thereunder, may make an application within the time

specified in this Act or where no such time has been specified, within such time as may be prescribed,

to the Tribunal for the determination of any dispute, question or other matter relating to the waqf.

Section 83(3) provides that where any application made under sub-section (1) relates to any waqf

property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such

application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli

or any one of the mutawallis of the waqf actually and voluntarily resides, carries on business or

personally works for gain, and, where any such application is made to the Tribunal aforesaid, the

other Tribunal or Tribunals having jurisdiction shall not entertain any application for the

determination of such dispute, question or other matter:

Provided that the State Government may, if it is of opinion that it is expedient in the interest of

the waqf or any other person interested in the waqf or the waqf property to transfer such application

to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter

relating to such waqf or waqf property, transfer such application to any other Tribunal having

jurisdiction, and, on such transfer, the Tribunal to which the application is so transferred shall deal

with the application from the stage which was reached before the Tribunal from which the application

has been so transferred, except where the Tribunal is of opinion that it is necessary in the interest of

justice to deal with the application afresh.

366

[Section 83(4) provides that every Tribunal shall consist of—

(a) one person, who shall be a member of the State Judicial Service holding a rank, not below

that of a District, Sessions or Civil Judge, Class I, who shall be the Chairman;

(b) one person, who shall be an officer from the State Civil Services equivalent in rank to

that of the Additional District Magistrate, Member;

and the appointment of every such person shall be made either by name or by designation.

Section 83(4A) states that the terms and conditions of appointment including the salaries and

365

Subs. by s. 43, ibid., for “as it thinks fit” (w.e.f. 1-11-2013)

366

Subs. by s. 44, ibid., for sub-section (4) (w.e.f. 1-11-2013)

allowances payable to the Chairman and other members other than persons appointed as ex officio

members shall be such as may be prescribed.]

Section 83(5) provides that the Tribunal shall be deemed to be a civil court and shall have the same

powers as may be exercised by a civil court under the Code of Civil Procedure, 1908 (5 of 1908),

while trying a suit, or executing a decree or order.

Section 83(6) states that notwithstanding anything contained in the Code of Civil Procedure, 1908 (5

of 1908), the Tribunal shall follow such procedure as may be prescribed.

Section 83(7) provides that the decision of the Tribunal shall be final and binding upon the parties to

the application and it shall have the force of a decree made by a civil court.

Section 83(8) states that the execution of any decision of the Tribunal shall be made by the civil court

to which such decision is sent for execution in accordance with the provisions of the Code of

Civil Procedure, 1908 (5 of 1908).

Section 83(9) states that no appeal shall lie against any decision or order whether interim or

otherwise, given or made by the Tribunal:

Provided that a High Court may, on its own motion or on the application of the Board or any

person aggrieved, call for and examine the records relating to any dispute, question or other matter

which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness,

legality or propriety of such determination and may confirm, reverse or modify such determination

or pass such other order as it may think fit.

CASE LAWS

In S. Manikya Reddy v. A.P State Waqf Board, Hyderabad

367

, the Court clarified that the

Waqf Act applies to all Waqfs, whether registered or unregistered. Consequently, the Waqf Tribunal

constituted under the Act has jurisdiction over all Waqfs. Similarly,

in Ajaib Singh v. Malkiat Singh

368

, the Court emphasized that disputes or matters relating to

Waqf property must first be brought before the Waqf Tribunal, which has the authority to adjudicate

such issues.

TRIBUNAL TO HOLD PROCEEDINGS EXPEDITIOUSLY AND TO FURNISH TO

THE PARTIES COPIES OF ITS DECISION

Whenever an application is made to a Tribunal for the determination of any dispute, question

or other matter relating to a waqf or waqf property it shall hold its proceedings as expeditiously as

possible and shall as soon as practicable, on the conclusion of the hearing of such matter give its

decision in writing and furnish a copy of such decision to each of the parties to the dispute.

BAR OF JURISDICTION OF CIVIL COURTS

No suit or other legal proceeding shall lie in any

369

[civil court, revenue court and any

other authority] in respect of any dispute, question or other matter relating to any waqf, waqf property

or other matter which is required by or under this Act to be determined by a Tribunal.

CASE LAWS

In Manujendra v. Purendhu

370

, the Court held that a new law changing the forum for legal

actions does not affect pending cases unless explicitly stated or clearly indicated by the law.

Additionally,

In Aliyathammada Beethathabiyyapura Pookoya Haji v. Pattakkal Cheriya Koya

371

, the

Court ruled that the Waqf Tribunal has jurisdiction over matters explicitly conferred by the Act as

well as other issues relating to Waqf property, ensuring comprehensive oversight.

APPOINTMENT OF A RECEIVER IN CERTAIN CASES

Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or in

any other law for the time being in force, where any suit or other legal proceeding is instituted or

367

No.29937 OF 2013

368

(176 P.L.R at 153)

369

Subs. by s. 45, ibid., for “civil court” (1) (w.e.f. 1-11-2013)

370

(AIR 1967 SC 1419

371

AIR 2020 SUPREME COURT 2892,

commenced—

(hh) by or on behalf of a Board—

(i) to set aside the sale of any immovable property, which is waqf property, in execution

of a decree or order of a civil court;

(ii) to set aside the transfer of any immovable property, which is waqf property, made by

the mutawalli thereof, whether for valuable consideration or not, without or otherwise than in

accordance with, the sanction of the Board;

(iii) to recover possession of the property referred to in clause (a) or clause (b) or to

restore possession of such property to the mutawalli of the concerned waqf; or

(ii) by a mutawalli to recover possession of immovable property, which is waqf property,

which has been transferred by a previous mutawalli

372

[or by any other person], whether for valuable

consideration or not, without otherwise than in accordance with the sanction of the Board, and which

is in the possession of the defendant, the court may, on the application of the plaintiff, appoint a

receiver of such property and direct such receiver to pay from time to time to the plaintiff, out of the

income of the property, such amount as the court may consider to be necessary for further prosecution

of the suit.

[SECTION 87] [Bar to the enforcement of right on behalf of unregistered wakfs.] Omitted

by the Wakf (Amendment) Act, 2013 (27 of 2013), s. 47 (w.e.f. 1-11-2013).

BAR TO CHALLENGE THE VALIDITY OF ANY NOTIFICATION, ETC

Save as otherwise expressly provided in this Act, no notification or order or decision made,

proceeding or action taken, by the Central Government or the State Government under this Act or

any rule made thereunder shall be questioned in any Civil Court.

NOTICE OF SUITS BY PARTIES AGAINST BOARD

No suit shall be instituted against the Board in respect of any act purporting to be done by it

in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after

notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action,

the name, description and place of residence of the plaintiff and the relief which he claims; and the

plaint shall contain a statement that such notice has been so delivered or left.

NOTICE OF SUITS, ETC., BY COURTS

Section 90(1) provides that in every suit or proceeding relating to a title to or possession of a waqf

property or the right of a mutawalli or beneficiary, the court or Tribunal shall issue notice to the

Board at the cost of the party instituting such suit or proceeding.

Section 90(2) states that whenever any waqf property is notified for sale in execution of a decree of

a civil court or for the recovery of any revenue, cess, rates of taxes due to the Government or any

local authority, notice shall be given to the Board by the court, Collector or other person under whose

order the sale is notified.

Section 90(3) provides that in the absence of a notice under sub-section (1), any decree or order

passed in the suit or proceeding shall be declared void, if the Board, within

373

[six month] of its

coming to know of such suit or proceeding, applies to the court in this behalf.

Section 90(4) states that in the absence of a notice under sub-section (2), the sale shall be declared

void, if the Board, within one month of its coming to know of the sale, applies in this behalf to the

court or other authority under whose order the sale was held.

PROCEEDINGS UNDER ACT 1 OF 1894.

Section 91(1) provides that if, in the course of proceedings under the Land Acquisition Act, 1894 or

under any law for the time being in force relating to the acquisition of land or other property,

374

[and

before an award is made, in case the property] under acquisition is 1[waqf] property, a notice of such

acquisition shall be served by Collector on the Board and further proceedings shall be stayed to

enable the Board to appear and plead as a party to the proceeding at any time within three months

from the date of the receipt of such notice.

Explanation. —The reference to the Collector in the foregoing provisions of this sub-section

shall, in relation to any other law referred to therein, be construed, if the Collector is not the

372

Ins. by s. 46, ibid. (w.e.f. 1-11-2013)

373

Subs. by s. 48, ibid., for “one month” (w.e.f. 1-11-2013)

374

Subs. by s. 49, ibid., for “it appears to the Collector before an award is made that any property” (w.e.f. 1-11-2013

competent authority under such other law to make an award of the compensation or other amount

payable for acquisition of land or other property thereunder, as a reference to the authority under

such other law competent to make such award.

Section 91(2) provides that where the Board has reason to believe that any property under acquisition

is 1[waqf] property, it may at any time before the award is made appear and plead as a party to the

proceeding.

Section 91(3) states that when the Board has appeared under the provisions of sub-section (1) or sub-

section (2), no order shall be passed under section 31 or section 32 of the Land Acquisition Act, 1894

or under the corresponding provisions of the other law referred to in sub-section (1) without giving

an opportunity to the Board to be heard.

Section 91(4) provides that any order passed under section 31 or section 32 of the Land Acquisition

Act, 1894 or under the corresponding provisions of the other law referred to in sub-section (1)

without giving an opportunity to the Board to be heard, shall be declared void if the Board, within

one month of its coming to know of the order, applies in this behalf to the authority which made the

order.

BOARD TO BE PARTY TO SUIT OR PROCEEDING

In any suit or proceeding in respect of a 1[waqf] or any waqf property the Board may appear

and plead as a party to the suit or proceeding.

BAR TO COMPROMISE OF SUITS BY OR AGAINST MUTAWALLIS

No suit or proceeding in any court by or against the mutawalli of a waqf relating to title to

waqf property or the rights of the mutawalli shall be compromised without the sanction of the Board.

POWER TO MAKE APPLICATION TO THE TRIBUNAL IN CASE OF FAILURE OF

MUTAWALLI TO DISCHARGE HIS DUTIES.

Section 94(1) provides that where a mutawalli is under an obligation to perform any act which is

recognized by Muslim law as pious, religious or charitable and the mutawalli fails to perform such

act, the Board may apply to the Tribunal for an order directing the mutawalli to pay to the Board or

to any person authorized by the Board in this behalf the amount necessary for the performance of

such act.

Section 94(2) states that where a mutawalli is under an obligation to discharge any other duties

imposed on him under the waqf and the mutawalli willfully fails to discharge such duties, the Board

or any person interested in the waqf may make an application to the Tribunal and the Tribunal may

pass such order thereon as it thinks fit.

POWER OF APPELLATE AUTHORITY TO ENTERTAIN APPEAL AFTER EXPIRY

OF SPECIFIED PERIOD

Where, under this Act any period has been specified for the filing of any appeal, the appellate

authority may, if it is satisfied that the appellant was prevented by sufficient cause from preferring

the appeal within the period so specified, entertain the appeal after the expiry of the said period.

CHAPTER IX

MISCELLANEOUS

POWER OF CENTRAL GOVERNMENT TO REGULATE SECULAR ACTIVITIES

OF AUQAF.

Section 96(1) provides that for the purpose of regulating the secular activities of auqaf, the Central

Government shall have the following powers and functions, namely: —

(jj) to lay down general principles and policies of waqf administration in so far as they relate

to the secular activities of the auqaf;

(kk) to co-ordinate the functions of the Central Waqf Council and the Board, in so far as they

relate to their secular functions;

(ll) to review administration of the secular activities of auqaf generally and to suggest

improvements, if any.

Section 96(2) provides that in exercising its powers and functions under sub-section (1), the

Central Government may call for any periodic or other reports from any Board and may issue to the

Board such directions as it may think fit and the Board shall comply with such directions.

Explanation. —For the purposes of this section “secular activities” shall include social,

economic, educational and other welfare activities.

DIRECTIONS BY STATE GOVERNMENT

Subject to any directions issued by the Central Government under section 96, the State

Government may, from time to time, give to the Board such general or special directions as the State

Government thinks fit and in the performance of its functions, the Board shall comply with such

directions:

3[Provided that the State Government shall not issue any direction being contrary to any waqf

deed or any usage; practice or custom of the waqf.]

ANNUAL REPORT BY STATE GOVERNMENT

As soon as may be after the close of a financial year, the State Government shall cause a

general annual report on the working and administration of the State Waqf Board and the

Administration of auqaf in the State during that year to be prepared and laid before each House of

the State Legislature where it consists of two Houses, or where such legislature consists of one House,

before that House, and every such report shall be in such form and shall contain such matters as may

be provided by regulations.

POWER TO SUPERSEDE BOARD.

Section 99(1) provides that if the State Government is of opinion that the Board is unable to perform

or has persistently made default in the performance of, the duty imposed on it by or under this Act

or has exceeded or abused its powers, or has willfully and without sufficient cause failed to comply

with any direction issued by the Central Government under section 96 or the State Government

under section 97, or if the State Government is satisfied on consideration of any report submitted

after annual inspection, that the Board’s continuance is likely to be injurious to the interests of the

auqaf in the State, the State Government may, by notification in the Official Gazette, supersede the

Board for a period not exceeding six months:

Provided that before issuing a notification under this sub-section, the State Government shall

give a reasonable time to the Board to show cause why it should not be superseded and shall consider

the explanations and objections, if any, of the Board:

375

[Provided further that the power of the State Government under this section shall not be

exercised unless there is prima facie evidence of financial irregularity, misconduct or violation of the

provisions of this Act.]

Section 99(2) states that upon the publication of a notification under sub-section (1) superseding the

Board—

(a) all the members of the Board shall, as from the date of supersession, vacate their offices

as such members;

(b) all the powers and duties which may, by or under the provisions of this Act, be exercised

or performed by or on behalf of the Board shall, during the period of supersession, be exercised and

performed by such person or persons as the State Government may direct; and

Government.

Section 99(3) provides that on the expiration of the period of supersession specified in the

notification issued under sub-section (1), the State Government may—

1[(a) extend the period of supersession by another six months with reasons to be recorded in

writing and, the period of continuous supersession shall not exceed more than a year; or]

(b) reconstitute the Board in the manner provided in section 14.

CASE LAWS

In Ghulam Mohsin Jafri v. State of Bihar

376

, the Court recognized the Waqf as a crucial institution

for Muslims, not only for its religious significance but also for its social and cultural contributions.

It affirmed that the Waqf is a corporate body with perpetual succession, highlighting its enduring and

important role in the community

PROTECTION OF ACTION TAKEN IN GOOD FAITH

No suit or other legal proceeding shall lie against the board or Chief Executive Officer or

Survey Commissioner or any other person duly appointed under this Act in respect of anything which

375

Ins. by s. 51, ibid. (w.e.f. 1-11-2013)

376

(2002 (4) P.L.J.R. 264

is in good faith done or intended to be done under this Act.

SURVEY COMMISSIONER, MEMBERS AND OFFICERS OF THE BOARD,

DEEMED TO BE PUBLIC SERVANTS.

Section 101(1) provides that the Survey Commissioner, members of the Board, every officer, every

auditor of the Board and every other person duly appointed to discharge any duties imposed on him

by this Act or any rule or order made thereunder, shall be deemed to be public servants within the

meaning of section 21 of the Indian Penal Code (45 of 1860).

Section 101(2) states that every mutawalli of a waqf, every member of managing committee, whether

constituted by the Board or under any deed of waqf, every Executive Officer and every person

holding any office in a waqf shall also be deemed to be a public servant within the meaning of section

21 of the Indian Penal Code (45 of 1860).

SPECIAL PROVISION FOR REORGANISATION OF CERTAIN BOARDS.

Section 102(1) provides that Where on account of the reorganization of States under any law

providing reorganization of States, the whole or any part of a State in respect of which a Board was,

immediately before the day of such reorganization, functioning has been transferred on that day to

another State and by reason of such transfer, it appears to the Government of a State in any part of

which the Board is functioning that the Board should be dissolved or that it should be reconstituted

as an Intra-State Board for the whole or any part of that State, the State Government may frame a

scheme or such dissolution or such reconstitution, including proposals regarding the transfer of the

assets, rights and liabilities of the Board to any other Board or State Government and the transfer or

re-employment of employees of the Board and forward the scheme to the Central Government.

Section 102(2) states that on receipt of a scheme forwarded to it under sub-section (1), the Central

Government may, 3[after consulting the Council and the State Governments] concerned, approve the

scheme with or without modifications and give effect to the scheme so approved by making such

order as it thinks fit.

Section 102(3) provides that an order under sub-section (2) may provide for all or any of the following

matters, namely: —

(a) the dissolution of the Board;

(b) the reconstitution in any manner whatsoever of the Board including the establishment,

where necessary, of a new Board;

(d) the transfer, in whole or in part, of the assets, rights and liabilities of the Board (including

the rights and liabilities under any contract made by it) to any other Board or State Government and

the terms and conditions of such transfer;

(e) the substitution of any such transferee, for the Board, or the addition of any such

transferee, as a party to any legal proceeding to which the Board is a party; and the transfer of any

proceeding pending before the Board to any such transferee;

(f) the transfer or re-employment of any employee of the Board to or by, any such transferee

and subject to the provisions of law providing for the reorganization of the concerned State, the terms

and conditions of service applicable to such employees after such transfer or re-employment; and

(g) such incidental, consequential and supplemental matters as may be necessary to give

effect to the approved scheme.

Section 102(4) provides that where an order is made under this section transferring the assets, rights

and liabilities of the Board, then, by virtue of that order, such assets, rights and liabilities of the Board

shall vest in, and be the assets, rights and liabilities of, the transferee.

Section 102(5) states that every order made under this section shall be published in the Official

Gazette.

Section 102(6) provides that every order made under this section shall be laid before each House of

Parliament, as soon as may be, after it is made.

SPECIAL PROVISION FOR ESTABLISHMENT OF BOARD FOR PART OF A

STATE

Section 103(1) provides that where on account of the territorial changes brought about by any law

providing for the reorganization of any State, this Act is as from the date on which that law comes

into force applicable only to any part or parts of a State but has not been brought into force in the

remaining part thereof, then notwithstanding anything contained in this Act, it shall be lawful for the

Government of the State to establish one or more Boards for such part or parts in which this Act is

in force and in such a case any reference in this Act to the word “State” in relation of a Board shall

be construed as a reference to that part of the State for which the Board is established.

Section 103(2) states that where any such Board has been established and it appears to the

Government of the State, that a Board should be established for the whole of the State, the State

Government may, by order notified in the Official Gazette dissolve the Board established for the part

of the State or reconstitute and reorganize, such Board or establish a new Board for the whole of the

State and thereupon, the assets, rights and liabilities of the Board for the part of the State shall vest

in and be the assets, rights and liabilities of the reconstituted Board or the new Board, as the case

may be.

APPLICATION OF ACT TO PROPERTIES GIVEN OR DONATED BY PERSONS

NOT PROFESSING ISLAM FOR SUPPORT OF CERTAIN WAQF [SECTION 104]

Notwithstanding anything contained in this Act where any movable or immovable property

has been given or donated by any person not professing Islam for the support of a waqf being—

(mm) a mosque, idgah, imambara, dargah, khangah or a maqbara;

(nn) a Muslim graveyard;

(oo) a choultry or a musafirkhana,

then such property shall be deemed to be comprised in that waqf and be dealt in the same manner as

the

waqf in which it is so comprised.

PROHIBITION

OF SALE, GIFT,

EXCHANGE, MORTGAGE OR TRANSFER

OF WAQF PROPERTY.

Section 104A (1) provides that notwithstanding anything contained in this Act or any other law

for the time being in force or any waqf deed, no person shall sell, gift, exchange, mortgage or transfer

any movable or immovable property which is a waqf property to any other person.

Section 104A (2) provides that any sale, gift, exchange, mortgage or transfer of property referred

to in sub-section (1) shall be void ab initio.]

377

[ RESTORATION OF WAQF PROPERTIES IN OCCUPATION OF GOVERNMENT

AGENCIES TO WAQF BOARD.

Section 104B (1) provides that if any waqf property has been occupied by the Government agencies

it shall be returned to the Board or the mutawalli within a period of six months from the date of the

order of the Tribunal. Section 104B (2) provides that the Government agency may, if the property is

required for a public purpose, make an application for determination of the rent, or as the case may

be, the compensation, by the Tribunal at the prevailing market value.]

POWER OF BOARD AND CHIEF EXECUTIVE OFFICER TO REQUIRE COPIES OF

DOCUMENTS, ETC., TO BE FURNISHED [SECTION 105]

Notwithstanding anything contained in any law for the time being in force, it shall be lawful

for the Board or the Chief Executive Officer to require any person having the custody of any record,

property, to furnish, subject to the payment of necessary costs, copies of, or extracts from, any such

record, register, report or document and every person to whom such a requisition is made, shall

furnish, as soon as may be practicable, to the Board or Chief Executive Officer, copies or extracts

from the required record, register, report or other document.

POWERS OF CENTRAL GOVERNMENT TO CONSTITUTE COMMON BOARD

Section 106(1) provides that where the Central Government is satisfied that by

reasons of—

(i) the smallness of the Muslim population in two or more States,

(ii) the slender resources of the Auqaf in such States, and

(iii) the disproportion between the number and income of the auqaf and the Muslim

population in such States,

it is expedient in the interests of the auqaf in the States and the Muslim population of such States, to

377

Ins. by s. 54, ibid. (w.e.f. 1-11-2013)

have, instead of separate Boards for each of such States, a common Board, it may, 3[after consultation

with the Council and the Government] of each of the concerned States, establish, by notification in

the Official Gazette, a common Board for such States as it may deem fit, and may, by the same or

any subsequent notification specify the place at which the principal office of such common Board

shall be located.

Section 106(2) states that every common Board established under sub-section (1) shall, as far as

practicable, consist of the persons specified in sub-section (1) or, as the case may be, sub-section (7)

of section 14.

Section 106(3) provides that whenever any common Board is established under sub-section

(1)—

(a) all powers vested in the State Government under any deed of waqf or any provision of

law for the time being in force relating to auqaf, shall stand transferred to, and vested in, the Central

Government and, thereupon, references in such deed of waqf or law to the State Governments shall

be construed as references to the Central Government:

Provided that while establishing a common Board for two or more States, the Central

Government shall ensure, that at least one representative of each of the concerned States is included

as a member of the Board;

(b) references in this Act to a State shall be construed as references to each of the States for

which the common Board has been established;

State, may, by notification in the Official Gazette, rules regulating the conduct of business by, and

affairs of, the common Board.

Section 106(4) states that the common Board shall be a body corporate, with objects not

confined to one State, having perpetual succession and a common seal with power to acquire and

hold property and to transfer any such property, subject to such conditions and restrictions as may be

specified by the Central Government, and shall by the said name sue or be sued.

ACT 36 OF 1963 NOT TO APPLY FOR RECOVERY OF WAQF PROPERTIES

[SECTION 107]

Nothing contained in the Limitation Act, 1963 shall apply to any suit for possession of

immovable property comprised in any [waqf] or for possession of any interest in such property.

SPECIAL PROVISION AS TO EVACUEE WAQF PROPERTIES [SECTION 108]

The provisions of this Act shall apply, and shall be deemed always to have applied, in

relation to any evacuee property within the meaning of clause (f) of section 2 of the Administration

of Evacuee Property Act, 1950 (31 of 1950) which immediately before it became such evacuee

property within the said meaning was property comprised in any 1[waqf] and, in particular any

entrustment (whether by transfer of any documents or in any other manner and whether generally or

for specified purpose) of any such property to a Board made before the commencement of this Act

in pursuance of the instructions of the Custodian under the Administration of Evacuee Property Act,

1950 shall have, and shall be deemed always to have had, notwithstanding anything contained in any

other provision of this Act, effect as if such entrustment had operated to—

(pp) vest such property in such Board in the same manner and with the same effect as in a

trustee of such property for the purposes of sub-section (1) of section 11 of the Administration of

Evacuee of Property Act, 1950 (31 of 1950), with effect from the date of such entrustment, and

(qq) authorize such Board to assume direct management of the 1[waqf] concerned for so long

as it might deem necessary.

ACT TO HAVE OVERRIDING EFFECT [SECTION 108A]

The provisions of this Act shall have overridden effect notwithstanding anything inconsistent

therewith contained in any other law for the time being in force or in any instrument having effect

by virtue of any law other than this Act.

POWER TO MAKE RULES

Section 108A(1) provides that the State Government may, by notification in the Official

Gazette, make rules to carry out the purposes of this Act, other than those of Chapter III.

Section 108A (2) states that in particular, and without prejudice to the generality of the

foregoing powers, such rules may provide for all or any of the following matters, namely: —

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[(i) the qualifications required to be fulfilled by a person to be appointed as a mutawalli under

clause (i) of section 3;

(ia) other particulars which the report of the Survey Commissioner may contain under clause (f)

of sub-section (3) of section 4;]

(ii) any other matter under clause (f) of sub-section (4) of section 4;

(iii) the particulars which a list of Auqaf published under sub-section (2) of section 5,

may contain;

(iv) the manner of election of members of the Board by means of a single transferable vote,

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[under sub-section (1) of ] sub-section (2) of section 14;

(v) the terms and conditions of service of the Chief Executive Officer under sub-section

(2) of section 23;

(vi) the conditions and restrictions subject to which the Chief Executive Officer or any

other officer may inspect any public office, records or registers under section 29;

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[(via) the period within which the mutawalli or any other person may produce documents

related to waqf properties under sub-section (2) of section 31;

(vib) the conditions under which an agency of the Government or any other organisation may

supply copies of records, registers and other documents under sub-section (3) of section 31;]

(vii) the conditions subject to which an Executive Officer and supporting staff may be

appointed under sub-section (1) of section 38;

(viii) the manner in which an inquiry may be held by the Chief Executive Officer

under sub-section (1) of section 39;

(ix) the form in which, and the time within which, a separate budget for Auqaf under the

direct management of the Board shall be prepared under sub-section (1) of section 45;

(x) the interval at which accounts of Auqaf may be audited in pursuance of the provisions of

sub-section (1) of section 47;

2* * * * *

(xii) the guidance subject to which the Collector shall recover the property transferred

in contravention of the provisions of this Act, under section 52;

(xiii) the manner of service of notice issued under sub-section (1) of section 54 and the

manner in which any inquiry is to be made under sub-section (3) of that section;

(xiv) the manner in which any inquiry may be held under section 64 or section 71;

(xv) the other matters which may be specified in the report submitted under sub-section

(3) of section 65;

(xvi) the manner of publication of order made under sub-section (2) of section 67;

(xvii) the manner in which consultation may be made with mutawalli under sub-section

(1) of section 69;

(xviii) the manner of publication of order made under sub-section (3) of section 69;

(xix) the rate at which contribution is to be made by a mutawalli under section 72;

(xx) the payment of moneys into the Waqf Fund, the investment, the custody and

disbursement of such moneys under section 77;

(xxi) the form in which, and the time within which, the budget of the Board may be prepared

and submitted under section 78;

(xxii) the time within which application is to be made to the Tribunal under sub-section

(2) of section 83;

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[(xxiia) the terms and conditions of appointment including the salaries and allowances payable

to the Chairman and other members other than persons appointed as ex officio members under

sub-section (4A) of section 83;]

378

Subs. by s. 57, ibid., for clause (i) (w.e.f. 1-11-2013)

379

Subs. by s. 57, ibid., for “under” (w.e.f. 1-11-2013)

380

Ins. by s. 57, ibid. (w.e.f. 1-11-2013)

381

Ins. by s. 57, ibid. (w.e.f. 1-11-2013)

(xxiii) the procedure which the Tribunal shall follow under sub-section (6) of section 83;

(xxiv) the form in which the annual report is to be submitted and the matters which such

report shall contain under section 98; and

(xxv) any other matter which is required to be, or may be, prescribed.

POWERS TO MAKE REGULATIONS BY THE BOARD

Section 110(1) provides that the Board may, with previous sanction of the State

Government, make regulations not inconsistent with this Act or the rules made thereunder, for

carrying out its functions under this Act.

Section 110(2) states that in particular, and without prejudice to the generality of the

foregoing powers, such regulations may provide for all or any of the following matters, namely—

(a) the time and places of the meetings of the Board under sub-section (1) of section 17;

(b) the procedure and conduct of business at the meetings of the Board;

for transaction of business at the meetings of such committees;

(d) the allowances or fees to be paid to the Chairperson or members of the Board or members

of committees;

(e) the terms and conditions of service of the officers and other employees of the

Board under sub-section (2) of section 24;

(f) the forms of application for registration of Auqaf further particulars to be contained

therein and the manner and place of registration of Auqaf under sub-section (3) of section 36;

(g) further particulars to be contained in the register of Auqaf under Section 37;

(h) the form in which, and the time within which, the budgets of Auqaf1 may be prepared

and submitted by the Mutawalli and approved by the Board under sub-section (1) of section 44;

(i) the books of accounts and other books to be maintained by the Board under section 79;

(j) fees payable for inspection of proceedings and records of the Board or for issue of copies

of the same;

(k) persons by whom any order or decision of the Board may be authenticated; and

(l) any other matter which has to be, or may be, provided by regulations.

All regulations made under this section shall be published in the Official Gazette and shall have effect

from the date of such publication.

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LAYING OF RULES AND REGULATIONS BEFORE STATE LEGISLATURE [SECTION

111]

Every rule made under section 109 and every regulation made under section 110 shall be

laid, as soon as may be after it is made, before the State Legislature.

REPEAL AND SAVINGS

Section 111(1) provides that the Wakf Act, 1954 (29 of 1954) and the Wakf

(Amendment) Act, 1984 (69 of 1984) are hereby repealed.

Section 111(2) states that Notwithstanding such repeal, anything done or any action taken

under the said Acts shall be deemed to have been done or taken under the corresponding provisions

of this Act.

Section 111(3) provides that if, immediately before the commencement of this Act, in any

State, there is in force in that State, any law which corresponds to this Act that corresponding law

shall stand repealed:

Provided that such repeal shall not affect the previous operation of that corresponding law, and

subject thereto, anything done or any action taken in the exercise of any power conferred by or under

the corresponding law shall be deemed to have been done or taken in the exercise of the powers

conferred by or under this Act as if this Act was in force on the day on which such things were done

or action was taken.

POWER TO REMOVE DIFFICULTIES

Section 113(1) states that no such order shall be made after the expiry of the period of two years

from the commencement of this Act.

Section 113(2) provides that however, order made under this section shall be laid, as soon as may

382

Section 110(3).

be after it is made, before each House of Parliament.

Conclusion

The Waqf Act, 1995 plays a pivotal role in preserving waqf properties, ensuring their rightful

administration, and protecting them from encroachments and mismanagement. The Act provides a

structured legal framework for waqf governance, ensuring that waqf assets serve their intended

religious and charitable purposes. With the establishment of Waqf Boards, Tribunals, and stronger

legal protections, the Act aims to create a transparent, accountable, and effective system for waqf

administration in India. However, challenges such as unauthorized encroachments, mismanagement,

and slow dispute resolution persist, requiring continued legal and policy reforms. Effective

implementation of the Act, along with judicial oversight, remains essential to safeguarding India's

vast waqf properties for future generations.