The Board has power to 

(a) remove Mutawallis in

(b) take measures to recover lost properties of any wakf

(c) institute and defend suits and proceedings relating to wakfs.

(d) exercise general superintendence of all wakfs in the state

(e) sanction any transfer of immovable property of a wakf by way of sale, gift, mortgage, exchange or lease, provided that no such sanction shall be given unless at least two- thirds of the members of the Board vote in favour of such transaction

(f) administer the wakf fund in accordance with the sec 76 of the act

(g) call for such returns, statistics, accounts and other information from the mutawallis with respect to the wakf property as the Board may, from time to time, require

(h) inspect, or cause inspection of, wakf properties, accounts, records or deeds and documents

(i) investigate and determine the nature and extent of wakf and wakf property, and to cause, whenever necessary, a survey of such wakf properties and

(j) do generally all such acts as may be necessary for the control, maintenance and administration of the wakfs in the state.

 

The 2013 amendment introduced new provisions under which (A) “ Every State Government shall maintain a list of auqaf" and "the survey of auqaf shall be completed within a period of one year from the date of commencement of the Wakf (Amendment) Act, 2013, in case such survey was not done before the commencement of the Wakf (Amendment) Act, 2013: Provided that where no Survey Commissioner of Waqf has been appointed, a Survey Commissioner for auqaf shall be appointed within three months from the date of such commencement.”;(B) "The revenue authorities shall— (i) include the list of auqaf while updating the land records; and (ii) take into consideration the list of auqaf while deciding mutation in the land records."

 

It is common knowledge that most of the waqf properties are in the cities and towns were Cutchi Memons had established their businesses and homes and as such the properties are now worth crores of rupees. It is also well known that owing to the elapse of time the mutawallis have become disinterested in the upkeep, or permitted knowingly or out of ignorance or inability allowed them to be encroached. The 2013 amendment aims at recovering the encroached properties. 

 

An encroacher is defined as "any person or institution, public or private, 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 mutawalli or the Board". The officers of the Waqf Board are bound to recover such encroached properties. According to the amendment "The Tribunal (constituted under the 1995 Act) shall have the powers of assessment of damages by unauthorised occupation of waqf property and to penalise such unauthorised occupants for their illegal occupation of the waqf property and to recover the damages as arrears of land revenue through the Collector: Provided that whosoever, being a public servant, fails in his lawful duty to prevent or remove an encroachment, shall on conviction be punishable with fine which may extend to fifteen thousand rupees for each such offence.” 

 

An important fact which needs to be noted here is that in a large number of waqf properties the waqifs and mutawallis had permitted poor Muslims to stay in houses or rooms built on them at a nominal rent. or free of rent In course of time the rent agreements, if at all they existed,, have lapsed though the  original lessees and in all probability their children or assignees continue to occupy the premises. In most cases they were oral arrangements. Declaring such occupants as encroachers  would not only cause hardships to the poor occupants but also result in the government take over as property without identifiable owner or Mutawally. The Jamats would have to look into the issue and advise the Mutawallis and residents to update their contracts lest the Government should move in. Where Mutawallis are not traceable the Jamat should stand in for the Mutawally and regularise the occupancy. Creating awareness among the occupants about  the potential danger needs consideration In the case of property encroached by others or otherwise disposed of by the corrupt Mutawallis, the Jamats concerned should be able to claim possession as ostensible owners / mutawallis . An exercise of locating such properties and raising their claims, if needed by initiating a process to get the law amended in favour of the Jamats to which the waqif would have belonged to, needs to be thought of soon, as the mandatory time period for the survey of waqf properties (including the encroachments) is already over and the governments are likely to have started the eviction process.

 

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