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(ii) Encroachments on wakf properties: Many wakf properties are on prime urban lands. With
the fast pace of urban growth, such wakf properties are consistently getting encroached upon
by encroachers, depriving the benefits to the community and thus contrary to the aim of such
wakfs. In some cases, such alienation takes place because of the acts of commission or
omission by mutuwallis and concerned State Waqf Boards. The procedure dictated for the
removal of encroachments is long and generally ineffective. Therefore, the provisions of the
Act are required to be strengthened to deal effectively with the issues of encroachment and
alienation of wakf properties.
(iii) Development of wakf properties: Since many wakf properties are on prime urban land,
there is possibility of generating considerable returns for accomplishing the objective of the
wakfs. The Act limits the period of lease of wakf properties to three years. While it has been
decided in principle to set up National Waqf Development Corporation and State Waqf
Development Corporations for developing such wakfs, it is essential that the law should allow
such properties to be leased out for sufficiently long periods to make such development
executable and workable.
(iv) Absence of statutory obligation to ensure flow of information from the State Waqf Boards
and State Governments to the Central Waqf Council: The role of the Central Waqf Council as
provided in the Act does not, in the absence of a statutory obligation, ensure proper and
adequate flow of information from the State Waqf Boards and State Governments to the
Central Waqf Council. Lack of sufficient communication and lack of timely access to
required data are serious hindrances in the Councils ability to give effective and useful
advice. The Joint Parliamentary Committee also advocated for bestowing statutory powers
upon the Central Waqf Council for monitoring.
Certain specific amendments suggested by various reports of Sachar committee and JPC: (i)
A specific time period for completion of survey of wakfs and to ensure that the list of wakfs
based on the survey data is appropriately reflected while updating the land records by the
revenue authorities, (ii) For change in composition of the Central Waqf Council and State
Waqf Boards so as to provide for representation of women, professionals and experts in the
Council or Boards, (iii) For cutting down the scope of alienation of wakf properties by
prohibiting the sale and gift of wakf properties, (iv) Harsh penal provisions to forbid
encroachments and to streamline the process of removal of encroachments, (v) For increasing
the maximum permissible period of lease or sub-lease of wakf properties from three years, as
at present, to thirty years, (vi) Statutory power of monitoring to the Central Waqf Council and
to empower it to issue directives and advice in specific cases, along with the provision for
independent dispute resolution machinery in the shape of a Board of adjudication to be
established by the Central Government, to be headed over by a retired Judge of the Supreme
Court, (vii) For establishing the Tribunals, for the determination of all disputes, questions and
other matters relating to wakf or wakf properties, as a three member body consisting of a
person not below the rank of District, Session or Civil Judge Class I as the Chairman and two
other members, namely, an officer from the State Civil Service equivalent in rank to that of
Additional District Magistrate and another person having knowledge of Muslim law and
jurisprudence, and (viii) To change the short title of the Act from the Wakf Act, 1995 to
the Waqf Act, 1995 and to make certain other verbal changes.
been declared by the Supreme Court that once a wakf is forever a wakf. Moreover religious
and charitable character of wakf has been changed making it a purely estate development
proposition. Wakfs in a state have been placed in the hands of estate developers, business
managers and financial experts. Muslim organizations have been completely left out to
provide open field for these experts to play with wakfs with the help of government
functionaries in the Board.
While framing the Waqf Bill 2010, the Ministry of Minority Affairs has provided that where
the line of succession of Mutawalli (person responsible for a certain wakf property) fails, the
income of the wakf shall be spent for education, development and welfare of the community.
However, the word community has not been defined anywhere in the proposed Bill or the
existing Waqf Act of 1995. This allows scope for the judiciary to dilute the meanings of the
word community. Dr. Syed Zafar Mahmood, President, Zakat Foundation of India says that
the word community must be replaced in the Waqf Bill 2010 by the group of words
Muslim Community of India. Otherwise, the wakf properties, in addition to being widely
encroached, shall no longer be available for Muslim welfare.
Secondly, as per the existing Waqf Act of 1995, the CEOs of State Waqf Boards have to be
Muslim. But the number of Muslims in Indian bureaucracy is not more than 2.5%. Hence, the
CEO positions are headed by retired low level government employees, inexperienced public
men, or rarely by government officers but only with additional charge of the wakf board. This
information was collected by the Sachar Committee in 2006. However, Zakat Foundation of
India again collected from the State Waqf Boards fresh information in this regard in 2011
under Right to Information Act. The condition remains equally pathetic till now. Because of
the CEO not being a high ranking officer, the work of the state wakf boards suffers. As per
Sachar Committee, the CEO should rank with senior state government officers so that the
Board enjoys sufficient clout with the government in day to day interaction.
Therefore, the Sachar Committee suggested that a new cadre of officers, (may be named as
Indian Waqf Service), should be created for which UPSC should select such candidates as are
familiar with wakf related requirements. The proposal is well-thought and fully fits into the
constitutional scheme. Yet, the Ministry of Minority Affairs over-ruled this vital Sachar
recommendation without giving any cogent reason. No deep research was done on the
subject. At the level of Waqf Minister, Prime Minister or the Cabinet the pros and cons of
this issue were not discussed. A brief unreflective and prejudiced note of a few words written
by a low level official of the Ministry was copied till the top without proper examination.
The Joint Parliamentary Committee on Wakfs recommended that the CEO should be atleast
of the rank of Director in the state government. But while framing the Waqf Bill 2010, the
Ministry of Minority Affairs over-ruled even the JPC and doubly lowered the level of CEO
down to Under Secretary in the state government. The Government must create Indian Waqf
Service. Till that happens, as recommended by the JPC, the CEO must rank with atleast
Director in the state government (above the Deputy Secretary). Thirdly, the definition of the
word encroacher as proposed by Sachar Committee has also been watered down by the
Ministry of Minority Affairs. The following portion, proposed by Sachar Committee has not
been included by the Ministry in the Waqf Bill: or who has altered the property leased out to
or occupied by him without the prior written permission of the Wakf Board concerned. Subclause (i) seeks to insert definition of the word encroacher in section 3 so as to mean any
person 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 the concerned
Wakf Board. The Committee modified the definition of encroacher further to include any
person or institution, public or private, with a view to obviate the possibility of
encroachment by any public or private institution.
encroachers to vacate wakf land, he must apply to the local magistrate to have encroachers
actually evicted.
The board has suggested many amendments to the Bill for preserving, protecting and
recovering wakf properties and making Wakf Boards representative of the Muslim
community. The select committee also ignored the Board's suggestions. It may be recalled
that the Wakf Act was first enacted in 1954 and it was replaced by the Wakf Act of 1995. But
the provisions included in the 1995 Act were found inadequate to fulfill the task of protection
and preservation of wakf properties for the good of the Muslim community.
In this backdrop, the researcher concludes that the ministry of minority affairs should take the
initiative to convene meetings with different stake holders, including AIMPLB, to draw up a
comprehensive legislation which can address the concerns of the community and incorporate
the key recommendations made by Sachar Committee and the JPC on wakf. As the present
amendments in Wakf Amendment Bill, 2010 are against the interests of Muslim communities
as new amended clauses encourage encroachment as it is explained in research paper. It
should not be passed in parliament until unless required amendments are done by consulting
Muslim Bodies as they can understand their problem better about Wakfs and their
maintenance.