*THE WAKF ACT, 1995

Act 43 of 1995

An Act to provide for the better administration of Wakfs and for matters connected therewith or incidental thereto

Be it enacted by Parliament in the Forty-sixth Year of the Republic of India as follows:

Chapter I

PRELIMINARY

1. Short title, extent and commencement.-

(1) This Act may be called the Wakf Act, 1995.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force in a State on such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different areas within a State and for different provisions of this Act, and any reference in any provision to the commencement of this Act, shall in relation to any State or area therein, be construed as reference to the commencement of that provision in such State or area.

2. Application of the Act.- Save as otherwise expressly provided under this Act, this Act shall apply to all wakfs whether created before or after the commencement of this Act:

Provided that nothing this Act shall apply to Durgah Khawaja Saheb, Ajmer to which the Durgah the Durgah Khawaja Saheb Act, 1995 (36 of 1955), applies



3. Definitions.- In this Act, unless the context otherwise requires.-

(a) “beneficiary” means a person or object for whose benefit a wakf is created and includes religious, pious and charitable objects and any other objects of public utility sanctioned by the Muslim law;

(b) “benefit” does not include any benefit which a mutawalli is entitled to claim solely by reason of this being such mutawalli;

(c) “Board” means a Board of Wakf established under sub-section (1), or as the case may be, under sub-section (2) of Section 13 and shall include a common Wakf Board established under Section 106;

(d) “Chief Executive Officer” means Chief Executive Officer appointed under sub-section 1 of section 23;

(e) “Council” means the Central Wakf Council established under Section 9;

(f) “Executive Officer” means the Executive Officer appointed by the Board under sub-section (1) OF SECTION 38;

(g) “list of wakfs” means the list of wakfs published under sub-section (2) of Section 5;

(h) “member” means a member of the Board and includes the Chairperson;

(i) “mutawalli” means any person appointed, either verbally or under any deed or instrument by which a wakf has been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any custom or who is a naib-mutawalli, khadim, mugawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any wakf or wakf property: Next



Provided that no number of a committee or corporation shall be deemed to be a mutawalli unless such member is an office bearer of such committee or corporation;

(j) “net annual income” in relation to a wakf, means net annual income determined in accordance with the provisions of the Explanation to sub-section (1) of Section 72;

(k) “person interested in a wakf”, means any person who is entitled to receive any pecuniary or other benefits from the wakf and Includes-

(i) any person who has a right to worship or to perform any religious rite in a mosque, idgah, imbara,dargah,khangah, maqbara, graveyard or any other religious institutions connected with the wakf or to participate in any religious or charitable institutions under the wakf;

(ii) the wakf and any descendent of the wakf and the muthawalli”

(l) “prescribed”, except in Chapter III, means prescribed by rules made by the State Government;

(m) “Regulations” means the regulations made by the Board under his Act;

(n) “Shia wakf” means a wakf governed by shia law;

(o) “Suni wakf” means a wakf governed by sunni law;

(p) “Survey Commissioner” means the Survey Commissioner of Wakf appointed unde sub-section (1) of section 4 and includes any Additional or Assistant Survey Commissioner of wakfs under sub-section (2) of section 4;

(q) “Tribunal”, in relation to any area, means the Tribunal constituted under sub- section (1) of section 83, having jurisdriction in relation to that area;

(r) “wakf” means the permanent dedication by a person professing Islam, of any movable

or immovable for property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-

(i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;

(ii) “grants”, including mashrut-ul-khidmat for any purpose recognized by the Muslim law as pious religious or charitable; and

(iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and “wakf” means any person making such dedication;

(s) “wakf deed” means any deed or instrument by which a wakf has been created and includes any valid subsequent deed or instrument by which any of the terms of the original dedication have been varied;
 

Statement of Objects and Reasons.-

1. The actual working of the wakf Act, 1954 had brought out many deficiencies in it as also in the set up of the Wakf Board, especially, their powers of superintendence and control over the management of individual wakfs. To clarify some of these matters-the Act had to be amended three times-in 1959, in 1964 and in 1969-within a period of 15 years.

2. Comprehensive amendments to the Wakf Act, were, made by the Wakf (Amendment) Act, 1984 which were based largely on the recommendations of the Wakf Inquiry Committee set up in December, 1970 to enquire in to administration of wakfs at all levels and in response to a demand made in Parliament by the Members during a discussion on the Wakf (Amendment) Bill, 1969.

3. Only two provisions of 1984 Act could, however, be enforced because of strong opposition to its various provisions from the Muslim community. The two provisions related to.-

(i) increasing the period of limitation for filling suits in respect of wakf properties in adverse possession from 12 years to 30 years; and

(ii) applications of the provisions of wakf Act 1954, to the Evacuee properties.

4. The main criticism related to provisions concerning the powers of the Wakf Commissioner. It was stated that the Wakf Commissioner has been given overriding powers and the Wakf Board has been made subordinate to him. The other criticisms were that the Amendment Act, 1984 is a gross interference by the State and the Central Government in the day to day management and the administration of the wakfs by the Trustees and Muthawallis of wakfs.



5. After a careful consideration of the objections to the various provisions of the 1984 Act, and after holding wide ranging discussions with the leaders of the Muslim Community, it has been decided to bring in a new comprehensive Bill on wakf matters incorporating the features of 1954 Act and such provisions of the 1984 Act in respect of which there was a near consensus.

6. Now, the new Wakf Law will have inter alia the following features:-

(a) Wakf Boards for the states and for the Union Territory of Delhi shall have not less than 7 and not more than 13 members of which the majority will comprise such persons as are elected from amongst Muslim Members of Parliament, Muslim Members of State Legislature, Muslim Members of the Bar Council in a State and Mutawallis of wakfs having an annual income of Rs. 1 lakh or more. The nominated members will be from Muslim organizations of State eminence, recognised scholars in Muslim theology and a representative of the State Government not below the rank of Deputy Secretary. In a State where there are Shia are Shia Wakfs but no separate Shia Wakf Board, at least one of the Members shall be a Shia Muslim. A smaller Wakf Board is envisaged for Union Territories other than Delhi.

(b) The other important feature is about distribution of powers between the Wakf Board and that the Wakf commissioner which would now be redesignated as the Chief Executive Officer and would be subordinate to the Wakf Board.

(c) Provisions are also being made for appointment of the Executive Officer in respect of wakf performance is not satisfactory and whose annual income is Rs. 5 lakhs or more.

(d) To strengthen the finances of the Wakf Board, one of the measures being contemplated is to raise the rate of the contribution by a Wakf to the Wakf Board from 6 per cent of its annual income to 7 per cent.

(e) It is also intended to put certain restrictions on the powers of Mutawallis in the interest of better management of wakfs properties.

(f) An important in the provisions in the proposed Bill Tribunals to consider questions and disputes pertaining to wakf.

(g) There are instances of misuse of wakf properties either with or without the connivance of the Mutawallis. It is now proposed to incorporate in the Bill a provision so that the alienation of wakf properties will not be easy.

(h) At present, the Wakf act, 1954 is not applicable to Uttar Pradesh, West Bengal, part of Gujarat, parts of Maharashtra and some of the North-Eastern States. With the enforcement of this Legislation there will be uniformity in respect of wakf administration throughout the country except in Jammu and Kashmir State.

7. The present Bill seeks to achieve the above objectives.