Administration of Waqf in India
Administration of Waqf in India
Administration of Waqf in India
AN ASSIGNMENT
ON
The literal meaning of waqf is to stop, contain, or to preserve. In legal terms it means
‘to protect a thing, to prevent it from becoming the property of a third person.’
A waqf is an unconditional and permanent dedication of property with implied
detention in the ownership of God in such a manner, that the property of the owner
may be extinguished and its profits may revert to or be applied for the benefit of
mankind except for purposes prohibited by Islam.
In shariah a waqf is a voluntary, permanent, irrevocable dedication of a portion of
one’s wealth in cash or kind to Allah. Once a property is transferred through waqf,
it never gets gifted, inherited, or sold. It belongs to Allah and the corpus of the waqf
always remains intact.
For the purpose of the Musalman waqf validating act of 1913, a waqf means:
"a permanent dedication by a person professing the Musalman faith of any property
for any purpose recognized by the Muslim Law as religious, pious or Charitable."
Imam Abu Hanifa defined it as:
1
Sahih Muslim.
Administration Of Wakf In India
Administration In General: -
Usually a wakf has a range of beneficiaries. Thus, the founder makes arrangements
beforehand by appointing an administrator (called nāẓir or mutawallī or ḳayyim)
and lays down the rules for appointing successive administrators. The founder may
himself choose to administer the wakf during his lifetime. In some cases, however,
the numbers of beneficiaries are quite limited. Thus, there is no need for an
administrator, and the beneficiaries themselves can take care of the wakf (since
they are regarded the virtual owners).
The administrator, like other persons of responsibility under Islamic law, must
have capacity to act and contract. In addition, trustworthiness and administration
skills are required. Some scholars require that the administrator of this Islamic
religious institution be a Muslim, though the Hanafis drop this requirement.
As per Wakf Act 1954 (later Wakf Act 1993) enacted by Government of India,
Wakfs are categorized as
· Wakf by user such as Graveyards, Musafir Khanas (Sarai) and Chowltries etc.,
· Wakf Alal-aulad is dedicated by the Donor (Wakif) for the benefit of their kith
and kin and for any purpose recognised by Muslim law as pious, religious or
charitable.
After the enactment Wakf Act 1954, the Union government directed to all the
states governments to implement the Act for administering the wakf institutions
like Mosques,Dargah, Ashurkhanas, Graveyards, Takhiyas, Iddgahs, Imambara,
Anjumans and various religious and charitable institutions.
The main function of the Central Wakf Council is to advise the Government of
India on matters concerning the working of Wakf Boards and the due
administration of Wakfs in the country. Beside that the important issues affecting
the community espacially those pertaining to religious matters/Islamic affairs like
administration of Mosques, Dargahs and proper management of properties are also
considered by the Council/its Committees. Whenever matters of general interest
regarding management of Wakfsin States are to be taken up at the level of the
Central Government, the same are generally referred to the Central Wakf Council.
Administration Of Wakf: -
The Central Government is responsible for the implementation of the Wakf Act. It
has been taking up issues of common concern to promote the interests of Wakfs in
the country. The Wakf Act, 1954 had provisions for survey of Wakfs, constitution
of Central Wakf Council and State Wakf Boards etc. For better interpretation of
the provision of the Act keeping in view the objective of the legislation, the Wakf
Act, 1954 was amended many times. Finally a comprehensive and land mark
legislation i.e. Wakf Act, 1995 was enacted by the Government of India in
November, 1995, which became effective from 01.01.1996. In contrast to the
previous Act, this Act is applicable throughout the country except for Jammu &
Kashmir and Dargah Khwahja Saheb, Ajmir.
The provision is of general nature but the directions of the board must be lawful
and fall within the competence of the board as the superintending authority of the
wakfs.
The board has to maintain a record containing the details regarding the origin,
income, object and beneficiaries of every wakf [sec 32 (2) (a)]. It is one of the
basic functions of the board to see to the proper application of the income of the
wakf properties, in accordance with the objects and purpose of the wakf.
Misapplication and misappropriation of the income from the wakf properties have
become a common feature and the board has to make a lynx eyed scrutiny of the
income and the expenses of every wakf [Sec 32(2)(b)]. The inspectors and
superintendents of wakfs should make periodical and surprise scrutiny of the
accounts of the wakfs and must be held responsible for any lapse on their part. The
power to frame schemes for management of wakfs is conferred on the board and
this power has to be excercised after due notice to the Mutawalli and to all parties
affected and after giving them sufficient opportunities of being heard [Sec 32
(2)(d)]. This is done by the Board on its own motion or on the application of not
less than 5 persons interested in any wakf to frame a scheme for the administration
of that wakf in consultation with the mutawalli and the applicants, if it is satisfied
that the framing of a scheme is necessary or desirable [Sec 69]. The Board has
power to issue directions: -
i. For the utilisation of the surplus income consistent with the objects of the wakfs
ii. For the manner of utilising the income where the object of the wakf is not
disclosed in any written instrument
iii. Where any object of a wakf has ceased to exist or has become incapable of
achievement [Sec32(2)(e)].
The board is empowered to scrutinise and approve the budget submitted by the
mutawallis and to arrange for the auditing of the accounts of the Wakfs. This
power must be exercised by the board not in a casual or cavalier manner, but with a
deep sense of duty. In case of public trusts and endowments which are
administered under schemes framed by the courts, the annual accounts and budget
estimates submitted to the courts were never seriously scrutinised but were merely
recorded [Sec 32 (2)(f)]. The Board has power to remove Mutawallis in accordance
of the Provision of Wakf Act, 1995(Sec 63 & 64) [Sec 32 (2)(g)]. The board is
empowered to take measures to recover lost properties of any wakf [Sec 32 (2)(h)].
The board has the power to institute and defend suits and proceedings relating to
wakfs. The board is a body corporate and shall by the said name sue and be sued.
This power is inherent in the every constitution of the board in which is vested and
general superintendence of all wakfs in the state [Sec 32 (2)(i)]. One of the most
important function of the board is to sanction any transfer of immovable property
of a wakf by way of sale, gift, mortgage, exchange or lease, in accordance with the
provisions of this Act: Provided that no such sanction shall be given unless at least
two- thirds of the members of the Board vote in favour of such transaction [Sec 32
(2)(j)]. The Board is entrusted with the administration of wakf fund in accordance
with the sec 76 of this act [Sec 32 (2)(k)]. The Board is entitled to call for such
returns, statistics, accounts and other information from the mutawallis with respect
to the wakf property as the Board may, from time to time, require under their
management. [Sec 32 (2)(l)]. The Board has the power to inspect, or cause
inspection of, wakf properties, accounts, records or deeds and documents [Sec 32
(2)(m)]. The Board is empowered to investigate and determine the nature and
extent of wakf and wakf property, and to cause, whenever necessary, a survey of
such wakf properties [Sec 32 (2)(n)]. And finally it gives residuary power to the
Board to do generally all such acts as may be necessary for the control,
maintenance and administration of the wakfs in the state [Sec 32 (2)(o)].
MUTAWALLI
A mutawalli is the superintendent or manager of the waqf property. As per the case
of Kanib Begum v. Akbar Jan the waqf is not completed unless besides a
declaration of waqf, a mutawalli is appointed by the owner and possession of
endowed property is delivered to him.
Competency of Mutawalli
He should have the following attributes:
Should be Muslim. He may belong to any sect. i.e. a Sunni can be a
mutawalli of Shia waqif and vice versa.
Of sound mind
Major
Remuneration of mutawalli
Remuneration may be fixed by the mutawalli or by the court at the time of
appointment or it can be stated that instead of monthly salary, mutawalli can be made
entitled to a specified amount of profit arising out of the property as a part of his
salary.
BIBLIOGRAPHY
Books:
Websites:
1. www.westlawindia.com
2. www.indiakanoon.com
3. www.manupatra.com