“Tie up the substance and give away the fruit”
– Fath-al-Qadir
If we look at the word ‘Waqf’, in its literal sense it is referred to as ‘detention’, ‘stoppage’ or ‘tying up’. According to the legal definition, it means a dedication of some property for a pious purpose in perpetuity. The property so alienated should be available for religious or charitable purposes. Such a property is tied up forever and becomes non-transferable. It has been observed in the case of M Kazim v.A Asghar Ali[1] that waqf in its legal sense means the creation of some specific property for the fulfilment of some pious purpose or religious purpose.
The Waqf Act, 1995 was enacted to provide for the better administration of auqaf and for matters connected therewith or incidental thereto, which thereby repealed the The Wakf Act, 1954. The act was also subsequently amended in 2013, Wakf (Amendment) Act, 2013 (Act No. 3 of 2013). The Waqf property is also governed and protected by Official Trustees Act II of 1913, Charitable Endowments Act VI of 1890, Religious Endowments Act XX of 1863 (Section 14), The Code of Civil Procedure, 1908 (Sections 92-93) and Charitable and Religious Trusts Act XIV of 1920.
The Section 40, empowers the Board to decide the validity and authenticity of waqf property. Its decision will be final unless it is revoked or modified by the Tribunal. Once a property is decided to be a waqf property by the Board, such property can exercise certain rights and special protection from the scrutiny of the Courts, such as,
1. The property cannot be disposed off or abandoned without prior permission of the Board with explicit words from the Section 51 stating ‘Any sale, gift, exchange, mortgage or transfer of Waqf property shall be void ab initio’. On giving permission, the Board will have to get this published in the Official Gazette. Despite the restriction under Section 51, if a transfer is made, then the Board has the power to recover such property as under Section52, and Section 52A empowers the Board to punish the person who made such transfer with rigorous imprisonment for a term which may extend to two years.
2. For the purchase of any additional property out of waqf funds, prior permission from the Board should be obtained as prescribed under Section 53.
3. The Section 54 states that upon information of encroachment on waqf property, the Chief Executing Officer will send notice to the encroacher and after settling further claims restore the property. After the reply to the notice the Board can make an application to the Tribunal for grant of order of eviction for removing such encroachment. If an order made under the above section has not been complied, then the CEO can file with the Sub-divisional Magistrate who will make further orders evicting the encroacher.If such person does not evict the place after the order being passed by the Tribunal then the CEO may refer the order to the executive magistrate within the local limits if whose jurisdiction the property is situated under Section 55 and the section also states that police assistance may be taken to evict the person, if necessary.
4. As per theSection 56 leasing of waqf property for a period more than 3 years will be absolutely void. However, if the lease is for a period less than 3 years it may be permitted by the Board. And also, if the lease of more than a period of 30 years, which is contained in any deed or instrument or any other law for the time being in force is void and of no effect
5. Any person not professing Islam can also donate immovable property to a waqf for a mosque, idgah, imambara, dargah, khangah, maqbara, Muslim graveyard, choultry or musafirkhana, under Section 104. Such property will also be governed under this Act.
6. If any waqf property has been occupied by the Government, then it should be returned to the Board or the mutawalli within 6 months from the date of the order of the Tribunal or if it is required for the public purpose then the Government may make an application for determination of the rent, as under Section 104B.
7. Any dispute, question or other matter relating to or regarding the waqf property has to be decided only by the Tribunal constituted under Section 83, which comprises of 3 persons, where one shall be member of the State Judicial Service (rank not below District, Sessions or Civil Judge, Class I), another shall be an officer from the State Civil Service (Equivalent to that of Additional District Magistrate) and a person having knowledge of Muslim Law and Jurisprudence, being appointed and notified by the Government. The Section 84 prescribes the manner in which the proceedings shall take place. Whereby the Section 85 explicitly bars the jurisdiction of Civil Court, Revenue Court and other authority, which is to be determined only by the Tribunal.
8. The Section 88 also bars the right to challenge any notification or order or decision made, proceeding or action taken, by the Central or State Government or any rule made before a Civil Court.
9. In absence of a notice to the mutawalli or beneficiary of a waqf property which is brought for sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates or taxes due to the Government or any local authority, then such sale be declared void, as under Section 90.
10. The Section 93 explicitly provides bar to compromise as to the title to property or the rights of the mutawalli without the sanction of the Board.
The petition filed through advocate Vishnu Shankar Jain by two individuals has alleged that the Uttar Pradesh Sunni Waqf Board (UP Waqf Board) taking advantage of powers conferred by the Act under Waqf Act, 1995, has captured a number of public properties including religious properties of Hindus and therefore, the Waqf Act, 1995 was questioned for Constitutional Validity before the Supreme Court contending violation of Articles 14, 15, 25, 26 and 27. Contending that the Act discriminates between waqf property and the properties belonging to Trust, Mutts, religious and charitable institutions of non-Islamic faith, the petitioners have prayed that the Waqf Act, 1995 be declared unconstitutional insofar as the provisions of the Act affects the properties held and possessed by members of Hindu community and non-Islamic communities. On September 4, 2018, the matter came up before a Bench headed by Justice Madan B Lokur who asked the petitioners to approach the High Court and the petitioners then chose to withdraw the petition.
Edited by Pushpamrita Roy
Approved & Published – Sakshi Raje
Reference
[1] AIR 1932 11 Patna 238.
