Waqf is of paramount importance to Cutchi Memons as crores of Rupees worth properties have been donated by our ancestors for the common benefit of all Muslims. Most of these properties are still in use for the purposes for which they were dedicated and quite a few of them were encroached and fell into adverse hands. Until about 1954 there was no law enabling the government intervention in identifying and management of the waqf properties, when an act to enable public supervision and control was promulgated. The Wakf Act of 1954 was modified in 1995 and further amended in 2013. 

Section 3, sub section (r) of the Waqf Act 1995 as it stands now, defines a waqf as follows;

"Waqf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised 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 cesser;

(ii)           a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record;

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

(iv)          a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law," 

Wakfs are categorized as
(i) Wakf by user such as Masjids, Prayer Halls, Graveyards, Musafir Khanas (Sarai) and Chowltries etc.,
(ii) Wakf under Mashrutul-khidmat (Service Inam) for services such as Qadhi, Nirkhi, Pesh Imam and Khateeb, Muazzin and the like
(iii) Wakf Alal-aulad is dedicated by the Donor (Wakif) for the benefit of their kith and kin and for any purpose recognised by Muslim law as pious, religious or charitable.

A waqf may have a range of beneficiaries. “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. Usually the founder makes arrangements beforehand by appointing an administrator (called nāẓir or mutawallī or ḳayyim) and lays down the rules for appointing successive administrators. The founder may himself choose to administer the wakf during his lifetime. In cases where the number of beneficiaries is limited there is no need for an administrator, and the beneficiaries themselves can take care of the waqf (as they are regarded the virtual owners). Benefit under the Waqf does not include any benefit which a mutawalli is entitled to claim solely by reason of his being such mutawalli.

A Mutawalli is a person on whom the right and responsibility for the administration of the waqf is vested. The Act defines the Mutawalli as " any person appointed, either verbally or under any deed or instrument by which a waqf has been created, or by a competent authority, to be the mutawalli of a waqf and includes any person who is a mutawalli of a waqf by virtue of any custom or who is a naib-mutawalli, khadim, mujawar, 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 waqf or waqf property: 

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

    Provided further that the mutawalli shall be a citizen of India and shall fulfil such other qualifications as may be prescribed:

    Provided also that in case a waqf has specified any qualifications, such qualifications may be provided in the rules as may be made by the State Government;”

The administrator, like other persons of responsibility under Islamic law, must have capacity to act and contract. In addition, trustworthiness and administration skills are required. Some scholars require that the administrator of this Islamic religious institution should be a Muslim, though the Hanafi scholars do not insist on this requirement.

 

The subject of "Waqf" comes under Entry No. 10 "Trust and trustees" and No. 28 "Charities and charitable institutions, charitable and religious endowments and religious institutions" in the concurrent list attached to the 7th Schedule to the Constitution of India. Supervision over the administration of wakfs is, therefore, the responsibility of both the Central and State Governments and accordingly, as soon as the Wakf Act 1954 was passed, the Central Government issued directives to the State Governments to implement the Act for administering the wakf institutions like Mosques, Dargah, Ashurkhanas, Graveyards, Takhiyas, Iddgahs, Imambara, Anjumans and various religious and charitable institutions. 

 

The Central Government is responsible for the implementation of the Wakf Act. It has been taking up issues of common concern to promote the interests of Wakfs in the country. The Wakf Act, 1954 had provisions for survey of Wakfs, constitution of Central Wakf Council and State Wakf Boards etc. The Wakf Act, 1954 was amended many times. Finally a comprehensive and land mark legislation i.e. Wakf Act, 1995 was enacted in November, 1995, which became effective from 01.01.1996. This Act is applicable throughout the country except for Jammu & Kashmir and Dargah Khwahja Saheb, Ajmir. The management of Wakf is undertaken by the Central Wakf Council, India, a statutory body under Government of India, which also oversees State Wakf Boards. In turn the State Wakf Boards work towards management, regulation and protection of the Wakf properties by constituting District Wakf Committees, Mandal Wakf Committees and Committees for the individual Wakf Institutions. The Council is headed by a Chairperson, who is the Union Minister Incharge of Wakfs, while Secretary is the Chief Executive of the Council. The Council has a maximum of 20 other members, appointed by Government of India. Central Wakf Council normally meets twice in a year. Committees are appointed by the Council for the discharge of its various functions.

The main purpose of the Council is to advise the Central Government on matters concerning the working of the State Waqf Boards and administration of the Waqfs. Floor level administration is the responsibility of the State Waqf Boards. The Board are required to maintain records containing the details regarding the origin, income, object and beneficiaries of every wakf. It is one of the basic functions of the board to see to the proper application of the income of the wakf properties, in accordance with the objects and purpose of the wakf. Misapplication and misappropriation of the income from the wakf properties having become a common feature, the Board are duty bound to make a lynx eyed scrutiny of the income and the expenses of every wakfs. The inspectors and superintendents of wakfs should make periodical and surprise scrutiny of the accounts of the wakfs and are held responsible for any lapse on their part. The power to frame schemes for management of wakfs is vested on the Board and this power can be exercised only after due notice to the Mutawalli and to all parties affected and after giving them sufficient opportunities of being heard. This is done by the Board on its own motion or on the application of not less than 5 persons interested in any wakf to frame a scheme for the administration of that wakf in consultation with the mutawalli and the applicants, if it is satisfied that the framing of a scheme is necessary or desirable. The Act defines a person interested in a waqf as 

"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 “offer prayer” and “khanqah, peerkhana and karbala’’  or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, maqbara, graveyard or any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf;
(ii) the wakif and any descendant of the wakif and the mutawalli;" (“waqif” means any person making the Waqf)."

The Board has power to issue directions: -

            i.     For the utilisation of the surplus income consistent with the objects of the wakfs
            ii.    For the manner of utilising the income where the object of the wakf is not disclosed in any written instrument
            iii.   Where any object of a wakf has ceased to exist or has become incapable of achievement.

 

 

 

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