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What is this WAQF and why it was made?

The idea of Waqf has never been a part of muslim or Islamic law. The Quran does not explicitly deal with Waqfs however certain Quran injunctions which deal with the idea of charity provided a structure for creation of Waqfs.

The term Waqf sources its etymology from the Arabic term WAQAFA which means “to retain, hold, or bind”. This origin can be looked back to the Prophet Mohammad’s tradition which goes by the phrase "Habis al-asl -wa Sabbil al-thamara". It means "Keep control of the main asset, but allow others to benefit from its fruits".

In simple words, if Waqf has to be described in one word, it means “detention”. In legal terms, it is holding a property in such a manner that the income or benefit from that property is always being used for the causes of religion and charity purposes.

The property is usually permanently locked once a Waqf has been established and cannot be sold or transferred. Waqf is a binding document which is enforceable by law and breach of the document has legal consequences which will be dealt with according to law established for governing Waqf.

When a person who identifies themself as muslim, donates his property in the name of Allah influenced by the faith and sentiments of their religion and for upliftment of the society and charity is called as Waqf. This transfer of property in the form of donation is permanent in nature and it cannot be taken back or reversed.

Going by the legal definition of the same, the Wakf Act 1954 describes Wakf as “Wakf means the permanent dedication by a person professing the Islam, of any movable or immovable property for any purpose recognized by Muslim Law as religious, pious, or charitable.”

There are even some eminent precedents which gave definition for Waqf. In the case of M Kazim vs A Asghar Ali Waqf was technically described as “Dedication of some specific property for a pious purpose or secession of pious purposes”.

ESSENTIALS AND SPECIFICATIONS

Even though Waqf has a common definition, it holds different opinions in the schools of Sunni and Shia when it comes to the essentials of Waqf.

Essentials for sunni law

The property should be dedicated permanently.
The person who is donating the property or performing the deed of dedication (waqif) must be a Muslim, mentally sound, and not a minor or mentally ill.
The dedication should be for some purpose that is viewed as religious, charitable, or virtuous according to Muslim law.

Essentials for Shia Law

The transfer should be permanent in nature
There must be a complete and absolute transfer with no conditions attached
The dedicated property must be given in possession
The dedicated property must be completely taken away from the hands of Waqif ( the person who dedicated the property)

Certain basic conditions have to be satisfied for a valid Waqf

There must be a permanent dedication. The purpose for which the property is dedicated must be recognized by muslim law to be religious, sacred or philanthropic.

If a person makes a Waqf for a temporary time period then it cannot be termed as Waqf.

Capacity- with regards to capacity of what makes a muslim to be qualified to make a Waqf is that
- They need to be of Sound Mind
- They need to be of majority

If a Waqf is made by an insane or minor is void in nature

Non- Muslims- The person who is dedicating the property must profess islam, meaning, they need not essentially be Muslim by Religion, They are qualified to make a Waqf if they believe in Islamic principles. The Patna High Court has ruled that a non-Muslim can create a valid Waqf. However, they can only set up a public Waqf and not a private one, such as an Imambara.
Absolute owner - The person who is capable of making a Waqf but does not have the right to make one cannot lawfully make the Waqf. The Waqf must be completely held by the Waqif, they should have absolute ownership over the property. For instance, A widow cannot create a Waqf from property she has due to her unpaid dower because she doesn't fully own that property.
If the waqif is a Pardanashin lady, the beneficiaries along with the Mutawalli should prove that she had made such decisions independent of any influence or compulsion, and that she was fully aware of what the transaction involved

KINDS OF WAQF

Generally there are many kinds of Waqfs

Public Waqf
Waqfs which are created primarily for the public, with religious cause and philanthropic purpose.
Private Waqf
Private Waqfs are also referred to as ‘Waqf-ul-Aulad.’ This type of Waqf is created for the benefit of the settler's family and heirs. Essentially, it serves as a form of family settlement.

Waqf based on purpose
1. Waqf ahli
  It is a Waqf created for the founder's children and their generations. However, such beneficiaries are not allowed to sell or transfer an interest in properties forming part of the Waqf.
2. Waqf khayri
  The revenue raised by this Waqf is for welfare activities. The masses most often targeted are the poor and needy, and it can be utilized to enrich mosques, shelters, schools, and universities in order to help busted individuals and groups financially.
3. Waqf al-sabil
  This Waqf serves the masses. Although more of a Waqf khayri, Waqf al-sabil creates public amenities, including mosques, power plants, water supplies, and schools.
4. Waqf al-awaridh
  The revenue obtained from this Waqf is kept in reserve for crisis or unforeseen events that may negatively influence the well-being of a specific community. This can be considered as a treatment for those who cannot afford medical care or education for poor children. It can also be used to keep community utilities running.
Waqf based on nature of its output
1. Waqf-istithmari
  The assets of this Waqf are put to investment. These assets are managed in a way that generates an income stream to be used in the construction and improvement of Waqf properties.
2. Waqf-mubashar
  For this type of Waqf, the assets are given for services that can benefit charitable recipients or other beneficiaries. The above are examples of schools and utility services.

LEGISLATIVE BODY

The Waqf Act of 1995 is an elaborative law constituted by the Indian government for the better management of Waqf properties. The act forms a Central Waqf Council and State Waqf Boards which distributes the responsibility between Chief Executive Officers and these boards.

The Act is mainly applicable on officers for the management of Waqfs who are earning above Rs 5 lakh per annum; prescribes procedure and matters to be considered in judicial matters with regard to Waqf; clarifies the nature of Mutawalis and consequently throws up hurdles in the sale or transfer of Waqf properties. The Act provides for an obligation of surveys for identifying Waqf properties and sundry improvement in the financial management practices.

Key provisions of the Act are as follows:

Every Waqf shall be registered with the Waqf Board;
Provision for a central register of Waqfs;
Waqf Boards shall have power to appoint executive officers;
Steps must be taken to oust illegal occupation of Waqf properties;
Annual budgets to be prepared for maintenance of Waqfs;
Proper record of its properties must be maintained, and Waqf properties shall be regularly inspected.

MUTAWALLI

The manager of a Waqf is called the Mutawalli. Such a manager cannot sell, transfer, or mortgage Waqf properties without permission from court, except unless the deed establishing the Waqf vests such powers in the Mutawalli.

An individual who is going to be the Mutawalli needs to be a major, sound-minded, and capable of discharging the duties of Waqf. A foreigner cannot be elected to be the trustee of a property in India. Only executor of the founder, any Mutawalli on his deathbed, and court have the right to appoint Mutawalli

WAQF BOARD

A Waqf Board is a legal body that can own, manage and transfer properties. It has vested authority to bring a legal suit or be sued in any court of law. Every state has its own Waqf Board headed by its chairman and other members are composed of State Government's representatives, Muslim legislators, parliamentarians and members of the state Bar Council, Islamic scholars and mutawalis (administrators) of the Waqfs having annual income more than Rs 1 lakh.

The Waqf Board is responsible for managing Waqf properties, recovering lost properties, and sanctioning any transfer of immovable Waqf properties through sale, gift, mortgage, exchange, or lease that shall be affected by no less than two-thirds of the members of the board.

Meanwhile, members of the board appoint custodians who take care of the Waqf and its income to ensure that they are used in the way intended under the nature of the property. In 1964, the Central Wakf Council (CWC) was established for the regulation and advisory purposes of state-level Waqf Boards in India.

AMENDMENTS AND CONSTITUTIONALITY

On August 8, 2024, two new bills, the Waqf (Amendment) Bill, 2024, and the Mussalman Wakf (Repeal) Bill, 2024, were introduced in the Lok Sabha. These bills aim to simplify the operations of the Waqf Board and improve the management of Waqf properties.

Renaming the Act: The proposed Bill is to rename the Waqf Act, 1995 as the Unified Waqf Management, Empowerment, Efficiency, and Development Act, 1995.
Subsections which were added were considered problematic
- Section 3A: It provides that only the owner of a property with a right to transfer or dedicate can create a Waqf and do so over property not lawfully owned by him.
- Section 3C(1) Objection of 'Waqf' property. This section reveals that all the government properties whether the identification as 'Waqf' was already in existence at the time when the Act was enacted or it occurred afterwards, shall not be identified as Waqf property.
- Section 3C(2) The government shall decide whether the land under the title of Waqf is really the government property. The State Government will be informed after an inquiry and report by the local Collector in case of dispute, but not the Waqf Tribunal. Till that decision, the disputed property will not be handed over to the Waqf authorities.

Audit Powers for the Central Government- Now, the central government can demand the audit of any such Waqf at any time. For this purpose, auditors will be appointed by the Comptroller and Auditor-General of India or other officers nominated by the government.
Governance of Government Land- The proposed Bill would seem to suggest that in several matters, government land could have been misdefined or mistaken as Waqf, and the governments needed to clear this matter too.
Definition of Waqf Property-The Bill does away with the concept of "Waqf by use," which had left to the discretion of the authorities properties used continuously for religious purposes by Muslims to be treated as Waqf. Only Waqf property which contains a valid Waqf nama will be recognized as such; thereby, many mosques and graveyards, mostly without proper documents, will be disallowed.
Overall, the Bill imposes stricter provisions over the establishment of Waqf properties, more so in government-owned lands, and eliminates the automatic recognition of landholdings as Waqf on account of long religious usage. This Poses the problem of restriction on autonomy of religion. And hence, even though the bill is yet to be passed, the constitutional validity of the same under article 25 and article 26 has been a topic of debate

FAQ’s

1. Is Waqf only for Muslims

No, for the simple reason that the new definition (2024) conflicts with those of principles stated in Islamic law. The new definition provides that only Muslims who have practiced Islam for five years alone can dedicate property as Waqf. This, however, contradicts provisions in Islamic law for one to create a Waqf.

2. Is Waqifs taxed?

In India, there is no tax for the Waqifs, and that is if such income is derived from the Waqf property through charitable or religiously pertinent activities. There are, however, some limitations:

Family Waqfs established after April 1, 1962 are not exempted from income tax.
Family Waqfs may also be charged with estate duty and taxes on the trustee or Mutawalli.

-Waqf properties can generate income through renting, and this income would, therefore, fall under the ambit of tax under the service tax and GST laws.

3. Can the Waqf property be sold?

The Waqf Act, 1995 governs Waqf properties in the states and broadly prohibits the sale of Waqf properties. Evidently, its policy underlying this Act would ensure that such properties remain applied for charitable or religious purposes on their dedication

4. Are Waqf boards eligible to pay taxes?

Waqf boards do not pay income tax, as their income is exempt. However, any revenue generated from leasing their properties may be subject to service tax and GST laws.

5. Who regulates Waqf Boards in India

The Central Waqf Council was instituted in 1964 under the Waqf Act of 1954 and functions as a statutory body under the Ministry of Minority Affairs. It acts as an advisory body to the Central Government concerning the working of Waqf Boards and the proper administration of Waqf properties.

REFERENCES

Written by Logita Chandar

Logita is law student at SVKM Narsee Monjee Institute of Management Studies (NMIMS).

What is this WAQF and why it was made?

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