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Mainstream, VOL LI, No 37, August 31, 2013

Proposal for a Self-contained New Wakf Act for Normal Situation

Monday 2 September 2013, by Syed Shahabuddin

The Select Committee Report on the Wakf (Amendment) Bill, 2010 along with a draft law has been circulated. An Amendment Bill, one presumes, shall now be placed by the government before the Rajya Sabha and then it will go to the Lok Sabha. The Select Committee Report has led to much controversy, particularly on the alienation of Wakf property.

Going through the history of Wakf Acts from 1954 to 1995, the present form of the Wakf Act was perhaps inevitable, as designed to protect the Wakf properties in East Punjab (now Punjab, Haryana, Uttarakhand and Chandigarh) and Delhi after Partition when Muslims en masse migrated from this area to Pakistan, including the Mutawallis. The abandoned Wakf properties were taken over by incoming refugees and converted into residences or places of worship. The real object of the legislation was to identify the abandoned Wakfs, lands and buildings and to manage them, as and when they were released by the Controller of Evacuee Properties, through State Wakf Boards of Punjab and Delhi which were also vested with the powers of Mutawallis. The Wakf papers were also not traceable, because all important papers were lying in Lahore, the Capital of pre-Partition Punjab. Subsequently Punjab was trifurcated and the original Punjab Wakf Board which looked after all the Wakf properties in the area was divided into four Wakf Boards. The new Wakf Boards were natural successors to the Punjab Wakf Board and exercise the same powers.

All these Wakf Acts from 1954 onwards relate to the power and responsibilities of the State Wakf Boards and not to the Wakfs per se and that is why they suffer from inherent weaknesses. In particular the Masjids restored to the Muslims who remained but were unable to look after them, received grants from the Wakf Board to pay suitable emoluments to the Imams and the Moezzins which continues. Thus the existing Wakf Act, a product of special circumstances, was misconceived and is hence unsuitable for normal situations.

I reached some conclusions which need to be considered seriously.

1. By definition Wakf of any private property is meant to stop its circulation and, therefore, in principle its alienation, or transfer of title thereof is not permissible, except in extraordinary circumstances. An invalid Act cannot be validated by a State Wakf Board even in exceptional circumstances but only by the State Government.

2. The law should state clearly that Wakfnama is not essential for establishment or evidence of existence of a Wakf and the Waqif’s intention to declare a property as a Wakf can be established visually or by their customary use, or by such evidence as may be available in revenue and property records and testimony of local witnesses.

3. The word ‘Wakf’ stands for the act of dedication and needs to be differentiated from the object of dedication, that is, the property which is declared to be Wakf.

4. Wakfs should be divided into two basic categories—the core Wakf property which is generally of a religious nature, for example, Masjid or Qabristan or Dargah, and the subsidiary Wakf property whose income is meant to support the upkeep and maintenance of the core Wakf.

5. There should also be a clear distinction between public and private Wakfs depending upon general and exclusive access. All public Wakfs must be declared to be public premises for purposes of removal of unlawful encroachment by the state in accordance with the law.

6. The Mutawalli forms the arch-stone as the keeper or the guardian or the manager of the Wakf property. The Wakf Boards are established by the governments primarily to supervise the work of the Mutawallis, not to substitute them, nor to dislodge them from their basic and functional authority over the Wakfs, or subordinate them to any official, or body unless they act criminally or against the interest of the Wakf and its beneficiaries; in that event they may be removed by the state, on advice of the Zila Committee and State Board.

7. Next to the Mutawalli the responsibility for protecting and preserving a public Wakf is that of the beneficiaries who in theory may include any Muslim from anywhere in the world or at least from within the country. But primarily it is responsibility of the immediate beneficiarie and, therefore, the term ‘beneficiary’ has to be re-defined in a more limited and pointed manner so that the responsibility for ensuring that the Wakf is properly managed can be vested in them. For example, in the case of a Masjid, the local Muslims who regularly perform congregational Namaz in it are its local beneficiaries and protectors and have to get full support of the law of the land and, therefore, of the State.

8. In exercise of its natural authority, the State may form, first, the local Management or Advisory Committees for each Wakf, followed by a District Wakf Committee to supervise them and then the State Wakf Boards and the Central Wakf Council.

9. Their respective areas of authority should be clearly delimited and the full support of State machinery at all levels must be extended. But the community, that is, the beneficiaries have to be always fully involved directly, not exclusively, through nomination by the government, but with the representation of the well-established and publicly accepted eminent Muslim organisations and institutions at the local, district, State and national levels.

10. In order to enable the State governments to fulfill their responsibility there should be a Department of Wakfs under the Wakf Commissioner with the rank of Secretary to the government, under the Wakf Minister, so that he has the full authority to direct the local or district executive officials, with or without the prior approval of the State Wakf Boards.

The Wakf Commissioner should have two Deputy Commissioners of the rank of Additional Secretary to the State Government to look after registration and survey of Wakfs. Both these should be continuous processes. The register must be maintained permanently and the survey report should be corrected as and when necessary, till re-survey is undertaken say after 25 years.

11. Coming to the current controversy about the sale of a Wakf property, since sale means transfer of title, it is, therefore, not permissible by definition. This equally applies to gift and also to mortgage except when a Wakf estate needs a loan from a bank for repair or renovation of a Wakf property.

12. Alienation of Wakf land or a graveyard (a Wakf by user) which has over time lost its character of graveyard and become a flat land should be restricted in rural areas to lease on a year to year basis or from one agricultural season to another.

13. In case of land generally inaccessible to the Muslims or land surrounded by the non-Muslims, it is the responsibility of the State, through its law and order machinery to come to the assistance of the beneficiaries and liberate the Wakf property. Therefore, mere inaccessibility cannot be a justification for outright sale and permanent loss. Also situations and circumstances may change with time. To preserve title, recovery suits must be filed by the local or zila Wakf committees in every case.

14. Every effort must be made by the Mutawalli and the entire Wakf hierarchy to maximize the recurring income of the Wakf property and in case the total annually available income exceeds the amount required to fulfill the intent of the Waqif, as certified by the State Government, a part of the Wakf property may be leased on a long-term basis, say 25 years, especially in urban areas, for using the surplus for the promotion of educational, social and economic progress and development of the local community, not for a commercial purpose only, to Muslim institutions/organisations with inbuilt safeguards.

Similarly, expenditure may be incurred by the Wakf estate with the support of the Government, to build boundary walls to protect graveyards and renovate Masjids, Dargahs etc.

15. In the present circumstance, the provision of exchange of Wakf property does not make sense because there can be no parity between urban and rural property in the same district and in fact between one Wakf property and another in the same place. All that must be done is honestly to ensure that whenever any Wakf property is to be let out on long-term or short-term lease, this should be done only by open auction. Also in all such leases the rent fixed must be subject to annual increase and in accordance with the current market value.

It must be kept in mind that Wakfs are forever and, therefore, the interest of the future generations must be kept in view.
16. Wakf properties in the hands of government or local authorities must be returned to the Wakf or duly purchased or leased by the government authorities in accordance with the letter of the then Prime Minister, Mrs Indira Gandhi, No. 74-PMO/76 dated March 26, 1976 which has been reproduced in the Sachar Report.

To summarise, in the situation it is urged that a completely new Wakf Act be drafted setting aside the misconceived models of 1954, 1986 and 1995 which should be more logical, consistent and systematic in its content. And apart from defining the basic terms ‘Wakf’, ‘Mutawalli’ and ‘beneficiaries’ the focus of the new law should be the Wakfs and not the Wakf Boards. The management of the Wakfs should be vested in the Mutawalli who should be monitored and advised locally by a Wakf Advisory Committee consisting of notable local Muslims who should elect their own Chairman. The Chairman of the local Wakf Committees should form the Zila Wakf Committee. The Zila Committees, the State Wakf Boards and the Central Wakf Council should be organically linked to each other and have appropriate government representation.

What is important is that the Act should eliminate detailed regulations for the working of the Wakf Committees, State Wakf Boards or the Wakf Council and release the Wakfs, the Mutawallis and the immediate beneficiaries from the total control of the government. The Wakf Committees and Boards at all levels must receive full support of the law and order machinery and not only facilitate a local beneficiary but encourage him to file an FIR if the Wakf property is mishandled or mismanaged or exploited by the Mutawalli.

There should be a cut-off limit in terms of number of Wakf properties and their total annual income before any State or UT has a separate State Wakf Board, with all its paraphernalia. In due course the Muslim community should itself manage the Wakfs just as the Sikh community manages its Gurudwaras.

In practice, it has been found impossible to manage the Wakf either from the State or national capital. Perhaps the new arrangement will be more effective.

The author is an ex-MP, and the former editor of Muslim India.

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