A few headlines and articles ignited this writer’s interest in waqf. One was the statement that “India has the largest Waqf land in the world. As per estimation by Sachar Committee Report, 2006 there are about 4.9 lakhs registered Waqf properties comprising of about 6 lakh acres of land, the approximate market value of these properties is Rs. 1.20 lakh crore.” Maharashtra alone has 92,000 acres of land as Waqf properties.
A Bar & Bench story said, “The Supreme Court recently held that in the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers or Namaaz (Waqf Board Rajasthan vs Jindal Saw Limited).”
Another recent Supreme Court order stated that “Land dedicated to religious and pious purpose is not immune from being vested in the state. Waqf Board is part of the State under Article 12. The Board had the power to declare land as Wakf property but any such exercise required a thorough enquiry and hearing from the other side. In the present case, no such enquiry was conducted as required under Section 40 of the Act and hence the notification was termed bad in law.”
(All through the essay Hindus, Buddhists, Jains and Sikhs are referred to as ‘Followers of Dharma’. Wherever section numbers are given it means unless stated, it is a reference to The Waqt Act, 1995).
At the outset must state that I am a Chartered Accountant, not a lawyer and subject expert. Errors if any are unintended and without malafide intent. The format of the FAQ is the question, answer and observations in blue. In case of any error please mail with references. The purpose of this FAQ is to provoke thought. One does not claim to know all.
Q1. What is the concept of Waqf?
A1.“Section 3(r) of The Waqf Act, 1995 defines ‘waqf’ as the permanent dedication by any person of any movable or immovable property for any purpose recognised by Muslim Law as pious, religious or charitable.” 3
This Indiatimes report explains, “In simple words, waqf is a property which is used for religious and charitable purposes. In Islamic law, a waqf property is permanently dedicated to Allah, and once a property is dedicated as waqf, it remains as waqf forever signifying that a waqf is perpetual, inalienable and irrevocable in nature.”
According to the Madhya Pradesh Waqf Board site, “Waqf is a Voluntary, permanent, irrevocable dedication of a portion of one’s wealth-in cash or kind- to Allah. Once a waqf, it never gets gifted, inherited, or sold. It belongs to Allah and the corpus of the waqf always remains intact. The fruits of the waqf may be utilised for any shari’ah-compliant purpose.”
According to an Indian Express report, “The waqf is similar to a trust established under the Indian Trusts Act, 1882, but trusts can be set up for a broader purpose than religious and charitable uses. 2 (See Q23/24 for more on this).
Comment: Is this concept of Waqf property being dedicated to The Almighty appropriate in a Constitution-driven state? Do state and Central governments work on the basis of the Constitution or compliance with shariah?
Q2. How is Waqf created?
A2. A waqf can be formed through a deed or instrument, or a property can be deemed waqf if it has been used for religious or charitable purposes for a long period of time.
A non-Muslim can also create a waqf but the individual must profess Islam and the objective of creating the waqf has to be Islamic.
Section 3 (s) states, “Waqf deed” means any deed or instrument by which a Waqf has been created and includes any valid subsequent deed or instrument by which any of the terms of the original dedication have been varied.”
According to Section 36, it is mandatory to register all waqf at the office of the board. The application for registration shall be made by the mutawalli. 3
Q3. Can a piece of land (public or private) be declared Waqf property just because it is used for praying purposes for say 3 years?
A3. No, a piece of land (public or private) used for praying purposes for say three years cannot be construed as Waqf property.
Q4. Who is a Waqif?
A4. Waqif is a person who creates a waqf for the beneficiary. Section 3 (a) of the 1995 Act states, “beneficiary means a person or object for whose benefit a (waqf) is created and includes religious, pious and charitable objects and any other objects of public utility sanctioned by the Muslim law.”
Q5 How are Waqf properties managed?
A5. Properties are managed by Waqf (the equivalent of a Trust) and State Waqf Boards.
According to section 13 (3), “The Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued.”
If conditions prescribed under the Act are fulfilled the state shall have separate boards for Shia and Sunnis. For e.g. West Bengal board site say it is a body corporate.
Q6. Is the Waqf Board a Section 8 company under the Companies Act or a Trust?
A6. Do legal sources indicate it is neither a Section 8 company nor a trust? Was it then created by a special statute? Also, see Q37.
Comment/Question: What type of legal entity is the Waqf Board?
Q7. Who can be Members of the state-level Waqf Board?
A7. According to section 14, members of the Waqf Board must be Muslims be they an MP, MLA, Member of the Bar Council, Expert in Town Planning or Management, scholar in Islamic Theology and not below the rank of the joint secretary. Simply put, being a Muslim is a prerequisite. The State Boards shall have a Chief Executive Officer (only Muslim) appointed by the State government. A mutawalli will look after individual properties.
Comment/question: Does any Law allow only Hindu framework in the management of their religious institutions or heritage sites? If only Muslims are by law allowed to become CEOs of the State Waqf Boards then Hindu Temples are well within their rights to let only Hindus have shops on their temple premises.
Q8. Can Waqf Board accept donations and issue receipts under section 80 (G) of the Income-Tax Act 1961?
A8. Legal sources say Yes.
Comment: Experts believe that Waqf can issue receipts provided it is registered as a non-religious charity. If their activities are partly religious, it would be interesting to know the basis of the exemption. Also, see Q40.
Q9. Does the CEO of the State Waqf Boards have to be Muslim?
A9. Yes according to the Zakat India site. (Section 23 states the CEO has to be a Muslim). Members of the board also have to be Muslim. Of the 32 State Waqf Boards, 27 of the Chief Executive Officers are Muslims with 5 posts being vacant (accessed on 29.5.22 at 1.15 pm)
Question: Charitable trusts created by Hindus cannot state under a law that the Managing Trustee shall only be a Hindu.
Q10. What is the Central Waqf Council?
A10. State Waqf Boards are also responsible to the Central Waqf Council of which a Union Minister is ex-officio Chairman. The Central Waqf Council presently has 8 members, all Muslims. See here. Also see Q16 The Council’s expenses are paid for by the Waqf Board.
Comment/question: In case of a shortfall in contributions by the Waqf Board, it is not clear who funds the Council’s expenses.
Is there a similar Central Council for managing Hindu temples and heritage properties?
Must a Union Minister be the Chairperson of a religious body in a so-called secular (whatever that means) state?
Q11. When was the law on Waqf introduced?
A11.The Mussulman Wakf Act, of 1923 was introduced by the British.
Note that the British first introduced The Madras Religious and Charitable Endowments Act in 1925. It drew large protests from Muslims and Christians. Thus, it was redrafted to exclude them, made applicable to Hindus only and renamed the Madras Hindu Religious and Endowments Act 1927. In 1925, the Sikh Gurudwaras Act was passed that bringing gurdwaras under the control of an elected body of Sikhs. Independent India continued with these laws.
So the British had one set of laws for Hindus and another for the rest.
The Indiatimes report adds, “The Waqf Act, 1954 was the first of its kind. It underwent many amendments. Finally, The Waqf Act 1995 was enacted. This Act established the Central Waqf Council and State Waqf Boards.” The reformist Hindu Succession Act 1956 was passed for the Followers of Dharma.
Comment: Nehru and Ambedkar were at the forefront of introducing reforms for Hindus, why did they leave the Muslims out?
Q12. Does the Waqf Act 1995 apply all over India?
A12. The 1995 Act states it is not applicable to the state of Jammu and Kashmir and Durgah Khawaja Saheb, Ajmer to which the Durgah Khawaja Saheb Act, 1955 applies. (Section 2)
Post abrogation of Article 370 the Act is applicable to the Union Territory of Jammu and Kashmir. However, there is a request for certain changes.
Comment: It would be interesting to know why the Ajmer Durgah was not covered by the 1995 Act and how the provisions of the 1955 Act are different from the Act it is governed by.
Q13. What is the origin of Waqf Land?
A13. Author Praful Goradia wrote in Daily Pioneer, “The institution began with a place called Khaybar in Arabia. It was the genius for turning a conquered property into an inalienable ownership. Another commentator, Ahmedullah Khan has recalled several properties which were brought under Waqf much earlier. For example, the dargah of Moinuddin Chishti at Ajmer Sharief as well as Nagaur in Rajputana.” 1
The Survey Commissioner (who undertakes a preliminary survey of Auqaf) shall, while making any inquiry, have the same powers as are vested in a civil court. (Section 4 of 1995 Act).
Question: Does a surveyor of a Mutt, Temple, or Gurudwara have similar powers?
According to Section 8, “The total cost of making a survey including the cost of publication of the list or lists of auqaf under this Chapter shall be borne by the State Government.”
Question: Should tax payer’s money be used for what is purely private property?
Q14. Can land and heritage structures owned by Muslim Rulers before Independence become Waqf property?
A14. Legal sources say both can become waqf property!
Comment/question: This is a tool for concerned Indian Muslims to see themselves as inheritors of foreign invaders. Is such a facility given to Christians since the British were Christian?
Q15. 200 acres of land were given by King Achyuta Deva Raya, younger brother of Krishna Deva Raya to Shahul Hameed Auwliya for the Nagore Dargah.
A15.Legal sources state, “As far as time is considered, for a land to be ascertained as waqf, it can be since the Islamic Law comes into the picture.” This matter needs to be examined further.
Questions: Is India governed by Islamic Law or the Constitution? Is it correct to include under Waqf today, property that was acquired when the Muslims ruled India?
Q16. What is the source of income of the Waqf Board and Central Waqf Council?
A16. Under Section 72 mutawallis are liable to pay to the State Waqf Board 7% of the net annual income derived from waqf properties of which the net annual income is not less than 5000 rupees.
Section 10 (1) of the 1995 act states that every state waqf board should pay from its waqf fund annually to the council 1 % of the aggregate of the net annual income of the waqf.
Q17. All the funds received by the council from the state waqf boards and all the funds received as donations, benefactions and grants will be deposited in the Central Waqf Fund (section 10 (3). Is surplus of income over expenditure chargeable to income tax?
A17. Legal sources state that a surplus of income over expenditure of the Waqf Board or Central Waqf Council is liable to income tax.
Q18. How can Waqf Board income be used?
A18. The proceeds are typically used to finance educational institutions, graveyards, mosques and shelter homes.
Q19. Do educational institutions mean those providing secular or religious (madrassas) education?
A19. Legal sources say covers both.
Question: Are Hindu trusts permitted to fund religious education?
Q20. Who is a Mutawalli?
A20. “A ‘mutawalli’ is appointed by a waqif, or by a competent authority, to manage or administer a waqf.”
According to Section 71 of the 1995 Act, the mutawalli of every waqf, whose net annual income exceeds Rs 5,000/ shall out of such income pay the Waqf Board a sum not more than 7% of such annual income.
Q21. Who pays the salaries of Mutawalli and other Waqf Boards employees?
A21. According to section 77 (4) of the Act, the monies received by the Waqf Board and kept in the Waqf Fund shall be paid salaries and allowances of the officers and staff of the board.
Notwithstanding the above, whether Mutawallis; are paid by the state government or waqf board is not clear and may vary from state to state. For e.g. in Rajasthan, the Waqf board asked the state government for funds to pay employee salaries.
Comment: When paid by a state government note that the government does not collect even one rupee from any Mosque, Mazar, or Dargah, unlike the case of temples where collections go to the state government (esp. in Southern states) directly or indirectly.
Q22. Can a Waqf Board give up its claim to any disputed site?
A22. Since waqf cannot be alienated unilaterally, any unilateral claims by the chairperson of the waqf will have no legal value or bind the Muslim community. Alienating waqf property without prior approval of state Waqf boards is an offence and special tribunals established under the Waqf Act have jurisdiction to deal with such disputes.
Q23. Does the Charity Commissioner have jurisdiction over Muslim Trusts?
A23. According to the Maharashtra Waqf Board site, “Now Charity Commissioner has no jurisdiction to Register and decide any issue of Muslim Wakfs or Collect fund or taxes etc. after 1-1-1996. No Muslim Trust/Wakf should approach Charity Commissioner Office, nor they are supposed to pay any Taxes to them. All the issues of Wakfs will now be decided by Wakf Board.”
Comment: Is national integration promoted by having different systems for the management of Trusts worth pondering over?
Q24. Comparing Trust vs Waqf!
A24. According to this article in Corpbiz.io, some differences are-
Trusts: Religious intention is not obligatory for a trust. It must have a lawful object.
Waqf: Must be a religious motive behind generating a waqf. The purpose must be charitable, pious, or religious according to Muslim belief. Property is inalienable, irrevocable, and perpetual.
Q25. Review of Telangana Waqf Board website (accessed on 30.5.22 at 4.15 pm)
A25. “In the erstwhile Hyderabad state, all religious matters including Endowments and Waqf Institutions were being administered and controlled by the Department of Ecclesiastical Affairs known as Umoore-Mazhabi. Under the provisions of the Wakf Act 1995, the Waqf Board is a corporate body having perpetual succession.”
“Its objectives are Protection of Waqf Properties, Construction and repairs to Masjids & Waqf Institutions and Maintenance of Haj House.”
The site has sections for the issue of a Marriage and Divorce Certificate. According to a June 2022 report in Livelaw the Supreme Court opined, “Arya Samaj has no business giving marriage certificate. This is the work of authorities. Show the real certificate.”
Comment/Question: So is it the business of the Waqf Council to issue marriage certificates?
Total income as reported is Rs 6 crores. Of this 1% goes to the Central Waqf Council and 6% to the payment of salaries to staff and expenditures. E.g. of expenditure – facilities for devotees, ITI at Mahboobnagar, School at Nizamabad and in a number of mosques morning shift schools to enable Muslims to get acquainted with Islamic studies.
Question: Conversely, Hindu Temples are controlled by the government. Does the law allow Hindu temples to teach Vedic studies?
Q26. Review of Madhya Pradesh Waqf Board site (accessed on 30.5.22 at 4.49 pm)
A26.Total Income in 2019-20 Rs 4.14 crores (previous year Rs 2.73 crores). Income includes government grants of Rs 2.58 crores and Rs 1.08 crores (an increase of Rs 1.5 crores in 2019-20 is due to government grants).
The board owns hundreds of hectares of agricultural land across districts and invites proposals for the commercial development of waqf land.
Question: Can Hindu Temples in M.P. invite proposals for commercial development of land owned by them?
The West Bengal Waqf Board site shows objectives: registration/enrolment of waqf properties, distribution of scholarships to poor and worthy students, honorarium to Imams and Muazzins and development of Auqaf properties. It is a corporate body.
Question: Are the salaries of priests of Hindu temples paid by the state government esp. when the government receives no corresponding revenue from the temples?
The Uttar Pradesh Waqf Vikas Nigam was set up in 1987, “with the main objective of strengthening the economic condition of the Waqfs located in the state as well as working as a departmental construction agency.”
Comment: A reading of the above indicates that Equality before the Law is a myth.
Q27. Who decides if a property is Waqf property?
A27. According to Section 40 when the board has reason to believe that certain property is waqf property it may, after making such inquiry as it may deem fit declare it to be a waqf property. Its decision is final unless revoked or modified by the Waqf Tribunal.
Where the Board has any reason to believe that any property of any trust or society is waqf property (section 40 (3)), “and if after such inquiry the Board is satisfied that such property is waqf property, it may ask the trust or society either to register such property under this Act as waqf property or show cause why the such property should not be so registered. Provided that in all such cases, a notice of the action proposed to be taken under this subsection shall be given to the authority by whom the trust or society had been registered.” Thereafter, the Board may issue such orders as it may deem fit, which is final unless modified or revoked by the Tribunal.
Question: Should the Waqf Board be conferred with the jurisdiction to decide the question of title of the property possessed by Followers of Dharma?
Q28. Does the Waqf Board have to give notice to the general public and conduct an open hearing to enable the affected persons or the persons having interest or title over the property to present their case?
A28. Legal sources state apparently NO. Appears rather unusual.
Comment: If no, then such an approach could be construed as against the principles of natural justice.
Q29. Implementation of decisions of Waqf Boards?
A29.According to Section 28 of the 1995 Act, “Subject to the provisions of this Act and the rules made thereunder, the District Magistrate or in his absence an Additional District Magistrate or Sub-Divisional Magistrate of a District in the State shall be responsible for the implementation of the decisions of the Board which may be conveyed through the Chief Executive Officer and the Board may, wherever considers necessary, seek directions from the Tribunal for the implementation of its decisions.”
Question: Does this imply that the District Magistrate has to implement the decisions of the Waqf Board, without asking any questions? This too seems rather usual and contrary to basic tenets of law, at least in a democratic nation.
Are Followers of Dharma allowed this privilege?
Q30. Do Civil Courts have jurisdiction over the Waqf Board?
A30.The Madras High Court came to the conclusion that the civil court has no jurisdiction as per Section 85 of The Waqf Act, 1995 and all the issues related to waqf and waqf properties ought to be presented before the waqf Tribunals. Read Controversies associated with the 1995 Act.
Comment: This seems rather strange. One can argue that the law recognises an exclusive and parallel judicial system, which is perhaps contrary to the Constitution?Q31. Where can one appeal against the decision of the Waqf Tribunal?
A31. Anyone who is unhappy with the decision of the Waqf Board can appeal to the Waqf Tribunal relating to waqf or waqf property (Section 83).
Section 83 (5) states that “The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court.” Section 83 (7) states, “The decision of the Tribunal shall be final and binding and it shall have the force of a decree made by a civil court.”
Question: Is there a similar Tribunal structure for Followers of Dharma?
Section 83 (9) states, “No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal.” However, a High Court may under certain conditions review the Tribunal’s decision.
Q32. According to the Waqf Act 1995, does income received from Waqf properties to be used for the benefit of Muslims only or benefit of all Indians?
A32.Legal sources state both (even foreigners).
Question: Should Indian Charities spend only for benefit of Indian Citizens, at best add Persons of Indian Origin?
Q33. Applicability of Limitation Act?
A33. Section 107 provides that the 1963 Limitation Act shall not apply to suit for possession of immovable property comprised in Waqf or possession of an interest in such property.
Simply put, this section gives unlimited power to the Waqf Board to recover any property in the name of Waqf after any number of years. However, this Act includes of recovery of property belonging to Hindus Jains Buddhists and Sikhs. 4
Comment/Question: Do Mutts and Churches run by non-Muslims in India have such a concession?
What section 107 does is that Waqf Boards have been given free hand to recover any property even after 50 years but Hindus cannot recover their properties after the lapse of the limitation period.
Q34. Before 2013, in S. 8, there was a provision that the cost of making survey publication of the list of Waqf shall be borne by all the mutawalli of the Waqf.
A34. But now Section 10 of the 2013 amendment reads: “The total cost of making a survey including the cost of publication of the list or lists of AUQAF under this Chapter shall be borne by the State Government.”
Question: Why should the cost of the survey and publication of private property be funded by taxpayers’ money?
Q35. What is National Waqf Development Corporation Limited (NAWADCO)?
A35. To fill the gap development deficit NAWADCO was established with an authorized capital of Rs 500 crore and paid up share capital of Rs.100 crore, on 31st December 2013 with a specific mandate to develop invaluable Waqf properties across India and to enhance the income of State Waqf Boards/ Waqf institutions for socio-economic empowerment of the minorities.
NAWADCO’s Board of Directors (accessed on 29.5.22 at 1.14 pm) consists of 3 IAS Officers, 1 IRS officer and two Independent Directors, 1 of whom is a CA and another a Muslim.
Its objectives are “To act as a specialized financial and developmental institution for the development of Waqf properties, To provide consultancy i.e. managerial, financial and engineering to the Waqf Boards/ Waqf Institutions and Mutawalli, To arrange financial assistance based on Islamic Shariah Principle, Guiding Waqf Boards/ Waqf Institutions and Mutawalli for the management and utilization of surplus income based on Shariah Principles.”
According to the NAWACO site, “Agreement has been executed by and between NAWADCO & Haryana Waqf Board to develop a land parcel at Panipat.”
Questions: Must a secular government arrange financial assistance based on Shariah principles? Does the government make such exceptions for non-Muslim communities?
Q36. Are Hindus denied the Right to Equality because of Waqf Act?
A36. The special status given to Waqf properties violates Articles 14 and 15 of the Constitution. Article 14 guarantees equality before the law and equal protection of the law whilst Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth.
Trust and religious endowments of all communities are governed by the “Religious Endowment Act 1863, Indian Trustees Act 1866, Indian Trust Act 1882, Charitable Endowment Act 1890, Official Trustees Act 1913 and Charitable and Religious Act 1920.” 4
Question: Should there be a separate law for Waqf properties?
Q37. What is a Section 8 Company under the Companies Act, 2013?
A37. The Telangana and West Bengal Waqf Board sites say it is a corporate body. Thus, it can be a Section 8 company or a company created by a statute.
According to an Institute of Company Secretaries of India, booklet objects of a section 8 company must include, “promotion of commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment or any such other object.” Its profits have to be used for these objects and it cannot pay dividends.” 7 For income-tax read on.
Comment: Need clarity on what is the legal status of a Waqf Board.
Q38. Do the activities of the Waqf Board fall within section 2 (15) of the Income-tax Act 1961, which defines ‘charitable purpose’?
A38. Legal sources say Yes provided their work is covered under 2(15).
Q39. What is the Charitable Purpose under the Income Tax Act 1961?
A39. Under Section 2(15), “Charitable Purpose includes relief of the poor, education, medical relief, preservation of the environment (including watersheds, forests and wildlife) and preservation of monuments or places or objects of artistic or historic interest, and the advancement of any other object of general public utility.”
Q40. Can the Waqf Board issue receipts, for donations received under section 80G of the Income-Tax Act?
A40. Legal sources say Yes.
Comment: However, it needs to be examined if Waqf/Board are registered as a religious charity and if its charitable purpose is covered by section 2(15) stated above.
However, the word religious purpose is not defined in the Act so not clear if the work is considered religious or charitable.
In comparison, any trust that engages in religious preaching, or works for a particular caste or creed, is not eligible for 80G certification. According to a research paper prepared by CA Sunil Talati, “Normally the religious trusts are not allowed to be approved under section 80G. However, Section 80G (5B) allows for a charitable organisation to have a religious activity not exceeding 5% of the total income in that previous year.”
Comment: So, the basis on which Waqf Boards issue 80G certificates needs to be ascertained.
Q41. Do section 8 companies have to comply with Section 11 of the Income-tax Act 1961 i.e. income from property held for charitable or religious purposes?
A41. According to Section 11, income received from property under a trust or voluntary contributions with a specific direction that they shall form part of the corpus of the trust shall not be included in the total income provided the trust spends, for charitable or religious purposes, 85% of the amounts so received in the year of receipt. If such 85% is not spent, it can be accumulated or set apart, provided certain conditions are fulfilled, which shall in no case exceed five years.
Question: Does such a provision apply to Waqf income?
Closing observations:
1. Clearly, there is no equality before the law on Trust vs. Waqf matter!
2. Should the law provide circumstances under which waqf property can be alienated?
3. In a Constitution-driven state can dedication of any property, waqf or otherwise i.e. part of India, be perpetual, inalienable and irrevocable in nature?
4. Should India have a “Uniform Law for Trust and Trustees, Charities and Charitable Institutions, and Religious Endowments and Institutions?”
References:
- A Historical perspective on Waqfs in India
- How is a Waqf created and what laws govern such properties
- Understanding Essential Provisions of the Waqf Act 1995
- Petition in Delhi High Court dated 18.4.2022
- No proof of the existence of mosque: SC dismisses Rajasthan Waqf Board plea
- Big Jolt to Waqf – Talk on May 1, 2022
- FAQ on Section 8 Companies by The Institute of Company Secretaries dated August 5, 2016.
- Mohammaden Trusts under Muslim Law (includes a comparison of Trust vs Waqf)
- NGO registration and legal procedure
- Section 11 of the Income-Tax Act 1961
- Section 12 of the Income-Tax Act 1961
- Section 12A of the Income-Tax Act 1961
(This article was originally published in eSamskriti and has been republished here with permission.)
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