WAKF
Ahtesham Qureshy on Waqf Management
The Waqf Bill was passed by Parliament (in August, 1995) and the President's assent came last November making it effective from January 1 this year.
The new Waqf Act, however, has not yet been implemented by any state, except Andhra Pradesh. The Act replaces all the parallel state laws relating to the management of Waqf properties. It has a uniform application, and makes it obligatory for the state governments to constitute new state Waqf Boards with elected as well as nominated members. And it will be for the first time that states like Maharashtra and Gujarat will have such Waqf Boards.
But there is a flaw in the law which undermines the basic objective of strengthening and improving the management of Waqf properties. The 1995 Act provided that all previous laws for Waqf shall stand repealed with effect from January 1 this year. Consequently, all state Waqf Boards constituted under old laws by the state governments as in Uttar Pradesh, Karnataka, West Bengal, Bihar, Delhi, Punjab and Haryana, became "extinct". Even the Central Waqf Council has not yet been reconstituted. All these Waqf Boards, however, continue to exist, contrary to the law. The decisions taken by them after January 1, including the disposal, sale, or transfer of Waqf properties are "illegal", New Waqf Boards have not yet been constituted. Several state governments have sought clarification from the Centre about the legal flaw. The Union Law Ministry, to which a reference was made by the Ministry of Welfare, has turned down the suggestion for an amendment to the 1995 Act. The Delhi High Court, in a recent public interest litigation, directed the Central Govt. to delegate the necessary powers to the Delhi Govt. to enable the framing of rules and to constitute the new Waqf Board.
The Management of Waqf properties in almost all the states have been in a mess, with the "loot" of such properties even by the members of Waqf Boards and their "mutawallis" (managers) becoming a common malice. Most of the state boards have gone bankrupt, as the collection of rent and other recoveries have fallen to a dangerous level... The only exception is, perhaps, the Punjab and Haryana Waqf management, with a senior IAS officer as administrator, the state board having been superseded: it has now shown a revenue surplus of Rs. six crores. The new law provides that a local "mutawalli" shall be liable for up to six months' imprisonment if he submitted false or incorrect statement of a Waqf property and its income under his supervision.
It also authorizes the chief executive officer of the board to take action for the removal of unauthorized possession or encroachment on Waqf property. One of the problems faced by the state boards has been the encroachment on Wakf land by Central or State government departments and agencies, like the police. Although the late Prime Minister Indira Gandhi had given an assurance that such encroachments shall be vacated, the new law does not provide relief in this matter by way of any compensation. It, however, provides a safeguard for the future by stipulating that the district authorities shall have to give prior notice to the Waqf Board for acquiring a Waqf property in public interest.
An innovative feature of the 1995 law is that special tribunals are to be set up in each state for speedy settlement of disputes. Their decisions shall be final, and they shall have exclusive jurisdiction. The Waqfs are exempt from the Limitation Act of 1963.
But the new law fails to fulfil another assurance, given by successive governments, to exempt Waqf properties from the Rent Control Acts in various states. The position is that the rent payable for prime properties is ridiculously law. There is yet no methodical survey of Waqf properties in any state.
(Source: The Hindustan Times, 29 July, 1996)
Sudhir K. Singh on Transfer of Waqf
Properties in West Bengal
The fact that the electoral resurgence of the Congress in West Bengal has put the ruling Marxists on the defensive was apparent from Chief Minister Jyoti Basu's sudden decision to table the P.K. Sengupta report on the irregular transfer of waqf properties in the Assembly...
Most political observers (feel) that by choosing to rubbish the basic findings of the State government's own representative in overtly strong language, Mr. Basu had unwittingly betrayed the need for a wider investigation of the scam in which prime waqf properties valued at over Rs. 1000 crore might have changed hands under suspicious circumstances. Most of them (estimates put their number at 16,000-20,000) were donated by Muslim nawabs and zamindars over a period of 200-250 years to ensure the socio-religious well-being of their community. Mr. Basu claims that the report is in conflict with the judgement and order of the Calcutta High Court dated January 20, 1995. Whereas the charge that its contents are "vague, perfunctory, inconsistent, and self- contradictory on material aspects" may not be entirely misplaced, there is little doubt that the 11-member waqf board was guilty of mismanagement. Unfortunately, Mr. Basu's written statement on the subject not only refused to admit this but sought to prove instead that his judicial secretary was a crashing incompetent.
In fact, Mr. Sengupta's seemingly wishy-washy report is a brave balancing act. Given his position as a government servant, he has tried to be honest without ruffling too many feathers. That is why he has refrained from pointing finger at anyone in particular. But there is enough substance in his findings to make them the basis for a deeper probe. He says the majority of the waqf properties were not being properly maintained largely due to the abominably low rentals. Lacking the experience to manage their real estates, the "mutawallis" or trustees, approached the waqf board to sanction their sale or lease to commercial developers on certain terms and conditions. The waqf commissioner's records showed that at least 160 properties had been leased out, and a few sold outright. "Strictly speaking, it cannot be said that the transfers by way of lease were illegal, but it appears that the transactions were not discreet in most cases", the report says.
Additionally, the Board, shirked its statutory responsibility (under Section 53 of the Bengal Waqf Act, 1934) of satisfying itself that the sale/lease was indeed dictated by unfavorable circumstances. "It would have been judicious and proper for the board to make discreet inquiries into each case before giving sanction", the report said. But not a single inquiry of such a nature was conducted. Again, there was no open invitation of offers or quotations from interested parties. There were no public advertisements asking for tenders from promoters. In some cases, even the express instructions of the waqf commissioner that the lease offer be published in newspapers (in at least three languages) was ignored.
Predictably enough, none of the lease agreements were vetted by lawyers or legal experts on behalf of the "mutawallis" or the board. What gave the game away was the unduly favorable terms offered to the lessees. Another disturbing feature, according to Mr. Sengupta, was the board's failure to have the waqf fund audited for more than a decade. The last audit had been conducted by the Examiner of Local Accounts for the years 1978-79 to 1980-81. Though Mr. Sengupta's report does justify the Congress' contention of wrongdoing in the management of waqf properties, it is unlikely to result in any major political fallout. The probe might well have brought out some skeletons in the Left Front's cupboard, Mr. Basu, on his part, has already ruled out a CBI inquiry.
(Source: The Pioneer, 8 July, 1996)
