Understanding The Modifications In Waqf Act 1923/54/1995 and Its History

[rajiv upadhyay]

Waqf is a Islamic practice of managing property donated by individuals etc for public welfare like mosques , madarsas etc . Such property cannot be sold .In India it was introduced first in Delhi Sultanate era . British made a law in 1923  called    Mussalman  Waqf Act   giving a legal shape to traditional practices . After independence in Pandit Nehru's time the act was modified in 1954 and some new dangerous provisions were added like 

Any property taken by a Waqf from a non-Muslim party is a loss to the latter, inflicted under state sanction and without judicial recourse. That makes the Waqf Act an unlimited predatory practice, a clear usurpation of the latter party’s rights.

• Under Sections 40 (1) and 40 (2) of the Act, any property may be declared as waqf property after collecting information from the public but without any public hearing. The decision of the Waqf board will be final.
• In one case it was reportedly stated that we have reasons to believe that Shah Jahan gave it to his daughter for waqf, with out any proof.

40(1). Decision if a property is 1[waqf] property— The Board may itself collect information regarding any property which it has reason to believe to be 1[waqf] property and if any question arises whether a particular property is 1[waqf] property or not or whether a 1[waqf] is a Sunni 1[waqf] or a Shia 1[waqf], it may, after making such inquiry as it may deem fit, decide the question.”

While Pakistan distributed hindu properties to muslims particularly refugees , India gave land to Waqf boards.

In 1995 , Nehruvian act was replaced by a new act with three draconian provisions .

This lead to a stampede let loose by this unprecedented sweeping and draconian powers given to Waqf boards . Of course congress became the main political beneficiary of of this largesse to not ordinary muslims but to its ठेकेदार ( ruling elite ) .

Waqf Boards became the third largest owner of land in India after RAILWAYS and Defence .

The government says that the waqf boards are among India’s largest landholders. There are at least 872,351 waqf properties across India, spanning more than 940,000 acres, with an estimated value of 1.2 trillion rupees ($14.22bn; £11.26bn).

As stated in my earlier posts these powers were grossly misused like claiming Tajmahal or an entire village in Tamilnadu being claimed without appeal as Waqf property . The burden of proof shifted to person owning the land. Also there was a gross corruption in mismanagement of land rent and income from Waqf properties .

Sachar Committee in 2006 

The committee estimated that efficient use of the land had the potential to generate an annual revenue of about 120bn rupees (1.4bn; £1.1bn). The current annual revenue, according to some estimates is around 2bn rupees.

According to government data, at least 58,889 of waqf properties are currently encroached upon, while more than 13,000 are under litigation. The status of more than 435,000 properties remains unknown.

The 1954 Waqf Act recognised such properties under the category of “waqf by user”, but the proposed law omits the provision, leaving the fate of a significant number of these properties uncertain.

Professor Mujibur Rehman, author of Shikwa-e-Hind: The Political Future of Indian Muslims, explains that tracing the ownership of such long-standing community properties is complicated, as their management and deed systems have shifted over the centuries from the Mughal system to the British colonial system, and now to the current system.

“You can trace personal properties up to a few generations, but tracing community properties is more difficult, as their management keeps changing over time,” Prof Rehman says.

 Government claimed that greater transparency will increase the income . Also though there are separate Shia and Sunni bodies but other sects of Islam like Bohras , Aga Khanis etc were excluded and women were denied any share in income from Waqf property .

The current act restrains the Waqf board from declaring any property as Waqf property till it is verified by DM or his office. Also Waqf Boards have to register WAQF PROPERTY WITH DM .It also gives representation to muslims sects like Bohras, Aga Khanis , women  and non muslims also so that other view point is heard before any precipitatory action is taken . 

Basically no other religious organisation in the country enjoyed such vast and draconian powers on land and muslims as Waqf Boards .

In the new act Section 40 has been deleted . So Waqf board has to prove that the property has been donated to Waqf , DM will conduct enquiry ,     Waqf property will be registered like any other property . 

It is only common sense but took 70 years to bring sense !