THE WAKF ACT, 1995
[Act, No. 43 of 1995]
[22nd November, 1995]
PREAMBLE 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:
Section 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 date1as 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.
|1 . 1st January, 1996, 1996 vide S.O. 1007(E) dated 27th December, 1995. |
Section 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 in this Act shall apply to Durgah Khawaja Saheb, Ajmer to which the Durgah Khawaja Saheb Act, 1955 (36 of 1955) applies.
Section 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 his 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 the 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, mujawaf, 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:
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;
(j) "net annual income", in relation to a wakf, means net annual income determined in accordance with the provisions of the Explanations 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, imambara, dargah ,khangah, maqbara, graveyard or any other religious institution connected with the wakf or to participate in any religious or charitableinstitution under the wakf;
(ii) the wakf and any descendant of the wakif and the mutawalli;
(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 this Act;
(n) "Shia wakf means a wakf governed by Shia law;
(o) "Sunni wakf means a wakf governed by Sunni law;
(p) "Survey Commissioner" means the Survey Commissioner of Wakf appointed under sub-section (1) of section 4 and includes any Additional or Assistant Survey Commissioners of Wakfs under sub-section (2) of section 4;
(q) "Tribunal", in relation to any area, means the Tribunal constituted under subsection (1) of section 83, having jurisdiction in relation to that area;
(r) "wakf means the permanent dedication by a person professing Islam, of any movable or immovable 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 recognised 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 "wakif" 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;
(t) "Wakf Fund" means a wakf fund formed under sub-section (1) of section 77.
Section 4. Preliminary survey of wakfs
(1) The State Government may, by notification in the Official Gazette, appoint for the State a Survey Commissioner of Wakfs and as many Additional or Assistant Survey Commissioners of Wakfs as may be necessary for the purpose of making a survey of wakfs existing in the State at the date of the commencement of this Act.
(2) All Additional and Assistant Survey Commissioners of Wakfs shall perform their functions under this Act under the general supervision and control of the Survey Commissioner of Wakfs.
(3) The Survey Commissioner shall, after making such inquiry as he may consider necessary, submit his report, in respect of wakfs existing at the date of the commencement of this Act in the State or any part thereof, to the State Government containing the following particulars, namely:
(a) the number of wakfs in the State showing the Shia wakfs and Sunni wakfs separately;
(b) the nature and objects of each wakf;
(c) the gross income of the property comprised in each wakf;
(d) the amount of land revenue, cesses, rates and taxes payable in respect of each wakf;
(e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each wakf; and
(f) such other particulars relating to each wakf as may be prescribed.
(4) The Survey Commissioner shall, while making any inquiry, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely:
(a) summoning and examining any witness;
(b) requiring the discovery and production of any document;
(c) requisitioning any public record from any court or office;
(d) issuing commissions for the examination of any witness or accounts;
(e) making any local inspection or local investigation;
(f) such other matters as may be prescribed.
(5) If, during any such inquiry, any dispute arises as to whether a particular wakf is a Shia wakf or Sunni wakf and there are clear indications in the deed of wakf as to its nature, the dispute shall be decided on the basis of such deed.
(6) The State Government may, by notification in the Official Gazette, direct the Survey Commissioner to make a second or subsequent survey of wakf properties in the State and the provisions of sub-sections (2), (3), (4) and (5) shall apply to such survey as they apply to a survey directed under sub-section (1):
Provided that no such second or subsequent survey shall be made until the expiry of a period of twenty years from the date on which the report in relation to the immediately previous survey was submitted under sub-section (3).
Section 5. Publication of list of wakf
(1) On receipt of a report under sub-section (3) of section 4, the State Government shall forward a copy of the same to the Board.
(2) The Board shall examine the report forwarded to it under sub-section (1) and publish in the Official Gazette a list of Sunni wakfs or Shia wakfs in the State, whether in existence at the commencement of this Act or coming into existence thereafter, to which the report relates, and containing such other particulars as may be prescribed.
Section 6. Disputes regarding wakfs
(1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final:
Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs.
Explanation.For the purposes of this section and section 7, the expression "any person interested therein", shall, in relation to any property specified as wakf property in the list of wakfs published after the commencement of this Act, shall include also every person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under section 4.
(2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit
(3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.
(4) The list of wakfs shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive.
(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court in that State in relation to any question referred to in sub-section (1).
Section 7. Power of Tribunal to determine disputes regarding wakfs
(1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, or whether a wakf specified in such list is a Shia wakf or a Sunni wakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final:
(a) in the case of the list of wakfs relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of wakfs; and
(b) in the case of the list of wakfs relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement:
Provided further that where any such question has been heard and finally decided by civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question.
(2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this section in respect of any wakf shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding.
(3) The Chief Executive Officer shall not be made a party to any application under subsection (1).
(4) The list of wakfs and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final.
(5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of section 6, before the commencement of this Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be.
Section 8. Recovery of costs of survey
(1) The total cost of making a survey including the cost of publication of the list or lists of wakfs under this Chapter shall be borne by all the mutawalli of the wakfs the net annual income whereof exceeds five hundred rupees, in proportion to the net annual income accruing in the State to such wakfs, such proportion being assessed by the Survey Commissioner.
(2) Notwithstanding anything contained in the deed or instrument by which the wakf was created, any mutawalli may pay from the income of the wakf any sum due from him under sub-section (1).
(3) Any sum due from a mutawalli under sub-section (1) may, on a certificate issued by the State Government, be recovered from the property comprised in the wakf in the same manner as an arrear of land revenue.
Section 9. Establishment and constitution of Central Wakf Council
(1) For the purpose of advising it, on matters concerning the working of Boards and the due administration of wakfs, the Central Government may, by notification in the Official Gazette, establish a Council to be called the Central Wakf Council.
(2) The Council shall consist of,
(a) the Union Minister in charge of wakfs-ex-officio Chairperson;
(b) the following members to be appointed by the Central Government from amongst Muslims, namely:
(i) three persons to represent Muslim organisation shaving all-India character and national importance;
(ii) four persons of national eminence, of whom two shall be from amongst persons having administrative and financial expertise;
(iii) three Members of Parliament of whom two shall be from the House of the People and one from the Council of States;
(iv) chairpersons of three Boards by rotation;
(v) two persons who have been Judges of the Supreme Court or a High Court;
(vi) one advocate of national eminence;
(vii) one person to represent the mutawallis of the wakf having a gross annual income of rupees five lakhs and above;
(viii) three persons who are eminent scholars in Muslim Law.
(3) The term of office of, the procedure to be followed in the discharge of their functions by, and the manner of filling casual vacancies among, members of the Council shall be such as may be prescribed by rules made by the Central Government.
Section 10. Finance of Council
(1) Every Board shall pay from its Wakf Fund annually to the Council such contribution as is equivalent to one per cent, of the aggregate of the net annual income of the wakfs in respect of which contribution is payable under sub-section (1) of section 72:
Provided that where the Board, in the case of any particular wakf has remitted under sub-section (2) of section 72 the whole of the contribution payable to it under sub-section (1) of that section, then for calculating the contribution payable to the Council under this section the net annual income of the wakf in respect of which such remission has been granted shall not be taken into account.
(2) All monies received by the Council under sub-section (1) and all other monies received by it as donations, benefactions and grants shall form a fund to be called the Central Wakf Fund.
(3) Subject to any rules that may be made by the Central Government in this behalf, the Central Wakf Fund shall be under the control of the Council and may be applied for such purposes as the Council may deem fit.
Section 11. Accounts and Audit
(1) The Council shall cause to be maintained such books of account and other books in relation to its accounts in such form and in such manner as may be prescribed by rules made by the Central Government.
(2) The accounts of the Council shall be audited and examined annually by such auditor as may be appointed by the Central Government.
(3) The costs of the audit shall be paid from the Central Wakf Fund.