Wakf Amendment Bill 2010 and its Critique

Overview on Wakf Amendment Bill, 2010

The Prime Ministers High Level Committee for Preparation of Report on Social, Economic
and Educational Status of the Muslim Community of India (also known as Sachar
Committee) in its report submitted to the Prime Minister on the 17th of November, 2006
considered the issues mentioned in next section and suggested certain amendments to the Act
regarding womens representation, review of the composition of the Central Waqf Council
and the State Waqf Boards, a strict and more effective approach to countering encroachments
of Waqf properties and other matters.
The Committee emphasised the need for setting up of a National Waqf Development
Corporation and State Waqf Development Corporations so as to facilitate proper usage of
valuable wakf properties for the aims intended. The Committee advocated that the Act should
be amended so that the State Waqf Boards become effective and are empowered to properly
deal with the removal of encroachments of wakf properties. It also recommended amending
the Act so that the Waqf Tribunal will be headed by a full time Presiding Officer appointed
exclusively for wakf properties.
The Joint Parliamentary Committee on Waqf in its Third Report presented to the Rajya Sabha
on the 4th of March, 2008 made recommendations on a wide range of amendments relating to
time bound survey of wakf properties, prevention and removal of encroachments, making the
Central Waqf Council a more effective and meaningful body, provisions for development of
wakf properties, etc. In its Ninth Report presented to the Rajya Sabha on the 23rd October,
2008, the JPC reconsidered certain issues. The recommendations of JPC on Waqf were
looked at by the Central Waqf Council. The various issues and the need for amendments to
the Act have also been looked at in consultation with other stakeholders such as the All India
Muslim Personal Law Board (AIMPLB), representatives of the State Governments and the
Chairmen and the Chief Executive Officers of State Waqf Boards which are explained in next
section.

Provisions of concern in Wakf Act, 1995

(i) Inadequacy of data on wakf properties: The Wakf Act, 1995 provides for survey of wakf
properties for which the State Governments are expected to appoint Survey Commissioners.
There is no time limit fixed in the Act for completion of such surveys. So far only one State
has completed the survey. Thus, even after a decade, the data about the number of wakf
properties in the country is not complete.

(ii) Encroachments on wakf properties: Many wakf properties are on prime urban lands. With
the fast pace of urban growth, such wakf properties are consistently getting encroached upon
by encroachers, depriving the benefits to the community and thus contrary to the aim of such
wakfs. In some cases, such alienation takes place because of the acts of commission or
omission by mutuwallis and concerned State Waqf Boards. The procedure dictated for the
removal of encroachments is long and generally ineffective. Therefore, the provisions of the
Act are required to be strengthened to deal effectively with the issues of encroachment and
alienation of wakf properties.
(iii) Development of wakf properties: Since many wakf properties are on prime urban land,
there is possibility of generating considerable returns for accomplishing the objective of the
wakfs. The Act limits the period of lease of wakf properties to three years. While it has been
decided in principle to set up National Waqf Development Corporation and State Waqf
Development Corporations for developing such wakfs, it is essential that the law should allow
such properties to be leased out for sufficiently long periods to make such development
executable and workable.
(iv) Absence of statutory obligation to ensure flow of information from the State Waqf Boards
and State Governments to the Central Waqf Council: The role of the Central Waqf Council as
provided in the Act does not, in the absence of a statutory obligation, ensure proper and
adequate flow of information from the State Waqf Boards and State Governments to the
Central Waqf Council. Lack of sufficient communication and lack of timely access to
required data are serious hindrances in the Councils ability to give effective and useful
advice. The Joint Parliamentary Committee also advocated for bestowing statutory powers
upon the Central Waqf Council for monitoring.

Suggested Amendments in Wakf Amendment Bill, 2010

There is also a generally accepted view that the Council, in order to be effective, should have
some powers to interfere, if a prima facie case of irregularity is founded or if there is gross
infringement of the provisions of the Act. After a wide range of consultations with all the
stakeholders, it has been possible to work out a consensus that the Central Waqf Council
ought to have some powers of intervention, but in the event of a difference of opinion
between the State Government and the Waqf Board or the Board and the Central Waqf
Council originating out of such advice or directive, as the case may be, there should be an
appropriate and independent adjudicatory machinery for solution of such disputes.

Certain specific amendments suggested by various reports of Sachar committee and JPC: (i)
A specific time period for completion of survey of wakfs and to ensure that the list of wakfs
based on the survey data is appropriately reflected while updating the land records by the
revenue authorities, (ii) For change in composition of the Central Waqf Council and State
Waqf Boards so as to provide for representation of women, professionals and experts in the
Council or Boards, (iii) For cutting down the scope of alienation of wakf properties by
prohibiting the sale and gift of wakf properties, (iv) Harsh penal provisions to forbid
encroachments and to streamline the process of removal of encroachments, (v) For increasing
the maximum permissible period of lease or sub-lease of wakf properties from three years, as
at present, to thirty years, (vi) Statutory power of monitoring to the Central Waqf Council and
to empower it to issue directives and advice in specific cases, along with the provision for
independent dispute resolution machinery in the shape of a Board of adjudication to be
established by the Central Government, to be headed over by a retired Judge of the Supreme
Court, (vii) For establishing the Tribunals, for the determination of all disputes, questions and
other matters relating to wakf or wakf properties, as a three member body consisting of a
person not below the rank of District, Session or Civil Judge Class I as the Chairman and two
other members, namely, an officer from the State Civil Service equivalent in rank to that of
Additional District Magistrate and another person having knowledge of Muslim law and
jurisprudence, and (viii) To change the short title of the Act from the Wakf Act, 1995 to
the Waqf Act, 1995 and to make certain other verbal changes.

Critique of Amendment Bill and Opposition of Muslim Bodies as Sachar

Committee and JPC Recommendations were turned down
The present UPA government in the Centre had got the Waqf Bill 2010 passed in Lok Sabha
on the last day of its session in May, 2010. This Bill is full of defects, even its definitions are
very defective and contain provisions which will result in encroachment and extinction of
wakf properties. A wakf has no right to seek judicial remedy unless it is registered.
A Muslim devoting a wakf in a far off village cannot be expected to travel over to the city
where wakf board is located. The publication of a wakf in government gazette has not been
considered conclusive proof if there is any entry to the contrary in revenue records.
A survey is to take into consideration wakfs existing on the date of enforcement of the bill
thus wiping out thousands and thousands of wakfs which existed before this date and were
removed from the records. This is completely against the Islamic principle, which has even

been declared by the Supreme Court that once a wakf is forever a wakf. Moreover religious
and charitable character of wakf has been changed making it a purely estate development
proposition. Wakfs in a state have been placed in the hands of estate developers, business
managers and financial experts. Muslim organizations have been completely left out to
provide open field for these experts to play with wakfs with the help of government
functionaries in the Board.
While framing the Waqf Bill 2010, the Ministry of Minority Affairs has provided that where
the line of succession of Mutawalli (person responsible for a certain wakf property) fails, the
income of the wakf shall be spent for education, development and welfare of the community.
However, the word community has not been defined anywhere in the proposed Bill or the
existing Waqf Act of 1995. This allows scope for the judiciary to dilute the meanings of the
word community. Dr. Syed Zafar Mahmood, President, Zakat Foundation of India says that
the word community must be replaced in the Waqf Bill 2010 by the group of words
Muslim Community of India. Otherwise, the wakf properties, in addition to being widely
encroached, shall no longer be available for Muslim welfare.
Secondly, as per the existing Waqf Act of 1995, the CEOs of State Waqf Boards have to be
Muslim. But the number of Muslims in Indian bureaucracy is not more than 2.5%. Hence, the
CEO positions are headed by retired low level government employees, inexperienced public
men, or rarely by government officers but only with additional charge of the wakf board. This
information was collected by the Sachar Committee in 2006. However, Zakat Foundation of
India again collected from the State Waqf Boards fresh information in this regard in 2011
under Right to Information Act. The condition remains equally pathetic till now. Because of
the CEO not being a high ranking officer, the work of the state wakf boards suffers. As per
Sachar Committee, the CEO should rank with senior state government officers so that the
Board enjoys sufficient clout with the government in day to day interaction.
Therefore, the Sachar Committee suggested that a new cadre of officers, (may be named as
Indian Waqf Service), should be created for which UPSC should select such candidates as are
familiar with wakf related requirements. The proposal is well-thought and fully fits into the
constitutional scheme. Yet, the Ministry of Minority Affairs over-ruled this vital Sachar
recommendation without giving any cogent reason. No deep research was done on the
subject. At the level of Waqf Minister, Prime Minister or the Cabinet the pros and cons of

this issue were not discussed. A brief unreflective and prejudiced note of a few words written
by a low level official of the Ministry was copied till the top without proper examination.
The Joint Parliamentary Committee on Wakfs recommended that the CEO should be atleast
of the rank of Director in the state government. But while framing the Waqf Bill 2010, the
Ministry of Minority Affairs over-ruled even the JPC and doubly lowered the level of CEO
down to Under Secretary in the state government. The Government must create Indian Waqf
Service. Till that happens, as recommended by the JPC, the CEO must rank with atleast
Director in the state government (above the Deputy Secretary). Thirdly, the definition of the
word encroacher as proposed by Sachar Committee has also been watered down by the
Ministry of Minority Affairs. The following portion, proposed by Sachar Committee has not
been included by the Ministry in the Waqf Bill: or who has altered the property leased out to
or occupied by him without the prior written permission of the Wakf Board concerned. Subclause (i) seeks to insert definition of the word encroacher in section 3 so as to mean any
person 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 the concerned
Wakf Board. The Committee modified the definition of encroacher further to include any
person or institution, public or private, with a view to obviate the possibility of
encroachment by any public or private institution.

Positive Points of Wakf Amendment Bill, 2010

There is a lot of opposition from Muslim communities against Wakf Amendment Bill, 2010
provisions but there are few positive points also about the bill which were given approval by
Muslim Communities and various concerned bodies such as AIMPLB and Zakat Foundation.
The Bill makes the following positive changes (a) it gives the wakf councils powers to
monitor wakf boards and issue directives to them (b) it prescribes jail terms for unauthorised
possession of wakf property (c) it restricts certain types of transactions in wakf properties (d)
it restricts the powers of the state governments vis--vis wakf boards (e) it makes changes to
the composition of the central wakf council and the state wakf boards (f) it prescribes a
procedure for the removal of a chairperson of a wakf board (g) it requires states to conduct
surveys of wakf properties within a set period of time. It also prescribes imprisonment for
those in unauthorised possession of wakf properties, and makes the offence cognisable and
non-bailable. However, as in the Act, while the CEO of a wakf board may issue orders to

encroachers to vacate wakf land, he must apply to the local magistrate to have encroachers
actually evicted.

Need for Change in Procedure to convict Encroachers

Both the Sachar Committee and the JPC had pointed to a need for improvements in the
procedure by which wakf boards could deal with encroachment. The JPC had suggested that
the CEO be given the powers of a Collector in this regard, and that he has the powers to evict
encroachers. Both committees had recommended that the Public Premises (Eviction of
Unauthorised Occupation) Act, 1971 be applied to wakf properties. The Act provides for a
procedure to evict unauthorised occupants from central government land. The Bill does not
incorporate either of these provisions.
In some states, authorities who administer religious and charitable endowments are given
special powers to remove encroachments. Under the Tamil Nadu Hindu Religious and
Charitable Endowments Act, 1959 (Sections 77-84), such authorities can use police help to
remove encroachers themselves, and with force if necessary. Courts cannot question orders of
eviction passed by such authorities. Encroachers are punished with imprisonment of up to 5
years. Land owned by institutions covered by the Himachal Pradesh Hindu Public Religious
Institutions and Charitable Endowments Act, 1984, is to be treated as government property in
case of unauthorised occupation. The provisions of the Himachal Pradesh Public Premises
and Land (Eviction and Rent Recovery) Act, 1971 shall apply in such cases. It is a unanimous
demand from all sections of the Muslims society that an amendment of the present bill
is required before it is put to discussion and passage in the Rajya Sabha.
Conclusion: The select committee of Rajya Sabha suggested a review of wakf lands acquired
since 1995 to assure whether they have been put to use for the public purpose for which they
were acquired, In case there is a default in use or if the land/property so acquired is
encroached upon or put to some other use, then the lands should automatically return to the
Wakf Board/Mutawalli concerned. However, if such reversion is not possible, then the market
value of the said property should be paid to the Wakf Board/Mutawalli concerned at present
day prices after deducting the cost of acquisition already paid or land of equivalent present
market value be given to the Wakf Board. The AIMPLB has pointed out many defects in the
Bill drafted by the select committee. The board has blamed the ministries of law and minority
affairs for creating hurdles in amending the Wakf Bill 2010 by their uncooperative and
irrational attitude towards wakf issues.

The board has suggested many amendments to the Bill for preserving, protecting and
recovering wakf properties and making Wakf Boards representative of the Muslim
community. The select committee also ignored the Board's suggestions. It may be recalled
that the Wakf Act was first enacted in 1954 and it was replaced by the Wakf Act of 1995. But
the provisions included in the 1995 Act were found inadequate to fulfill the task of protection
and preservation of wakf properties for the good of the Muslim community.
In this backdrop, the researcher concludes that the ministry of minority affairs should take the
initiative to convene meetings with different stake holders, including AIMPLB, to draw up a
comprehensive legislation which can address the concerns of the community and incorporate
the key recommendations made by Sachar Committee and the JPC on wakf. As the present
amendments in Wakf Amendment Bill, 2010 are against the interests of Muslim communities
as new amended clauses encourage encroachment as it is explained in research paper. It
should not be passed in parliament until unless required amendments are done by consulting
Muslim Bodies as they can understand their problem better about Wakfs and their
maintenance.