CONCEPT OF WAQF

THE CONCEPT OF WAQF

The institution of wakf is a?sui generis?feature of the socio-economic framework of Mohommadan law. To wakf a property means to dedicate a movable and immovable property in the name of Allah for religious, pious and charitable purposes.?

LEGISLATIVE FORMULATION OF WAQF:

Section 2?of the Waqf Validating Act, 1913 defines waqf as, “the permanent dedication by a person professing the Mussalam faith of any property for any purpose recognised by Musalman Law as religious, pious or charitable.”

Section 3 of the wakf Act 1995 defines the term Wakf in the following words:

Waqf?means the permanent dedication by a person professing Islam, 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 ceaser;

ii)?grants?including mashrut-ul-khidmat for any purpose recognized by the Muslim law as pious religious and charitable.

iii)?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.

In the case of?M Kazim?v.?A Asghar Ali,?AIR 1932 Pat 238, it is observed that Wakf, from a technical standpoint, refers to the act of setting aside a specific property for a religious or charitable purpose

ESSENTIAL OF WAQF:

The essential conditions of a valid waqf, according to the?Hanafi Law (Sunni Law)?are:

1.??? A?permanent dedication?to any property.

2.??? The?dedicator (waqif)?should be a person professing the Mussalman faith and of sound mind and not a minor or lunatic.

3.??? The dedication should be for a purpose recognised by the Mussalman law as?religious, pious or charitable.

WHO CAN CREATE A VALID WAQF?

1) The person constituting the waqf of his own properties is known as the?‘founder of waqf’ or Waqif. To become a waqif, a person dedicating the property must be competent enough to do so according to the provisions of law. Following are the conditions, which need to be fulfilled to become a waqif and constitute a waqf-

(i) The person constituting the waqf should be a Muslim.

(ii) Should be a person of sound mind.

(iii) Should have attained the age of majority.

2) A person may admit the capacity but may not have any right to constitute a?waqf. Such a person cannot constitute a valid waqf. The subject matter of waqf should be owned by the waqif at the same time when waqf is being constituted. Whether a waqf can be created by a particular person depends upon whether there exists a legal right for the dedicator to transfer the ownership of the property or not.

?3) A person can dedicate his entire property for the creation of waqf but in the case of the testamentary waqf, more than one-third of property cannot be dedicated.

Is a non-muslim allowed to create a Wakf?

In the case of Ramjas foundation and Anr. versus Union of India (2010) 14 SCC 38 the Hon’ble Supreme Court ruled that non-Muslims can create a valid wakf as long as the objective of the wakf aligns with the principles of Islam. The court reasoned that the essence of a wakf is the dedication of property for religious, pious, or charitable purposes, which is not limited to Muslims alone. The key criteria for a valid wakf are the soundness of mind and majority of the waqif (the person creating the wakf), and the dedication must not contradict Islamic principles. Thus, as long as the purpose of the wakf is consistent with Islamic charitable or pious objectives, non-Muslims can also establish a wakf. The court emphasized that the principles of inclusivity and broader interpretation of religious charity underpin this ruling.

DOCTRINE OF CYPRESS AND WAQF:

The word Cypress literally means, “as nearly aa possible”. This term is essentially applicable to trust and in its technical sense means that if the wishes of the author of a trust cannot be carried out literally, they will be carried out as nearly as possible in the way desired by the author.

This doctrine is applicable to waqfs also. In cases where it is not possible to continue any waqf because of lapse of time or changed circumstances or legal difficulty or where the specified object has already been completed then the waqf may be permitted to continue further by applying this doctrine.

LEGAL INCIDENTS OF WAQF

• Irrevocability – The view of Abu Hanifa is that a waqf can be revoked by waaqif, unless the declaration has been confirmed by a decree of a Court. But Abu Yusuf takes a contrary view and hold that a declaration of waqf is in its nature irrevocable. The opinion of Abu Yusuf is followed in India.
• Inalienability – As the waqf property belongs to God, no human being can alienate it for his own purposes.
• Perpetuity – It is an essential condition of waqf. A waqf for a limit period is invalid.
• Pious or charitable use of usufruct – The product and benefits of the waqf property are utilised for such purposes which are recognized as religious, pious or charitable under Muslim Law.
• Absoluteness – The settlement of the property in waqf is absolute. A conditional or contingent waqf is void.

CAN WAFQ BOARD CLAIM ANY PROPERTY?

No, the Waqf Board cannot go on to claim any property. A Waqf Board can only claim the land that is recorded in the revenue department’s records before Partition. The Board has to prove that those lands are actually Waqf property.

Along with managing existing Waqf properties, the Boards also take steps to recover any Waqf that might have been lost with passage of time. This the Board can do by invoking the controversial Clause 40 of the Waqf Board Act.

What Is Section 40 Of Waqf Act?

As per Section 40 of the Waqf Act 1995 (as amended in 2013) the State Waqf Board is empowered to decide any question which arises as to whether a particular property is a Waqf property or not or whether a Waqf is a Sunni Waqf or a Shia Waqf.

However, according to the Waqf Act, the Waqf Board can claim only those properties which have been donated by a person following Islam for religious/social work, that too when the property is registered in the name of a trust or institution. Waqf cannot claim private property. Waqf can neither claim nor send notice on the property of a non-muslim person. The first condition is that the person is a follower of Islam and has donated the property for religious purposes.

WHETHER THE GOVERNMENT HAS AUTHORITY TO INVESTIGATE THE WAQF PROPERTIES?

Under Section 4 of the Waqf Act, the state government is required to conduct a survey of all Waqf properties in the state. For this purpose, the government can appoint a Survey Commissioner to prepare a report on the properties.

Section 25?of the Waqf Act, 1995 mentions the powers and functions of the Chief Executive Officer:

• The Chief Executive Officer is authorized to investigate the nature of the waqf and to ask for any necessary detail from the mutawalli relating to the waqf.
• He can inspect accounts, deeds, documents, etc. relating to waqf properties.
• Doing acts necessary for control, maintenance, and superintendence of waqf.
• And to perform any other duties which are assigned to him or delegated under this act.?

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WHAT ARE THE KEY AMENDMENTS IN WAQF ACT (Amendment Bill) 2024?

• Transparency: The Bill outlines around 40 amendments to the current Waqf Act, including that Waqf Boards will be required to undergo mandatory verification for all property claims, ensuring transparency.
• Gender Diversity: Sections 9 and 14 of the Waqf Act, 1995 will be amended to modify the composition and functioning of the Waqf Board, including the addition of women representatives.
• Revised Verification Procedures: New verification procedures will be introduced for Waqf properties to address disputes and prevent misuse, with district magistrates potentially overseeing these properties.
• Limited Power: The amendments respond to concerns about the Waqf Boards’ unchecked powers, which have led to extensive land being claimed as Waqf, causing disputes and misuse claims.

For example, in September 2022, the Tamil Nadu Waqf Board claimed the entire Thiruchendurai village, which is predominantly Hindu.

CONCLUSION

At present, there are 32 waqf boards all over the country, although under the said act, there are some challenges faced by the boards. The Waqf Act, 1995 has empowered every state to establish but many state governments have either failed to constitute a board or the board failed to function properly. Often due to the political affiliation of certain members of the board, political loyalties curbed constitution duties. Survey of waqf is a key part of the act under Chapter II,?Section 4?but the negligence of the State government in appointing Survey commissioners and successfully carrying out the survey has led to large scale encroachment which is faced by the waqf properties.

The primary feature of a Waqf is that it is established for religious, pious, and charitable purposes, intended to benefit the community and support noble causes. However, in recent times, there have been increasing concerns about corruption within Waqf institutions. Mismanagement and misuse of Waqf properties have been reported, undermining the very essence of their creation and raising serious questions about the integrity of their administration.

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