1. INTRODUCTION

The concept of Waqf finds its roots deeply embedded in Islamic Law. The term "WAQF" signifies the dedication of property whether movable or immovable eternally for a noble and pious cause. In its literal essence, it conveys the idea of "detention" or "cessation”. This dedicated property is sanctified for religious or charitable purposes alone, rendering its sale or any form of alternative use strictly forbidden. Once a property is endowed as Waqf, it remains so for eternity, becoming irrevocable as the ownership is transferred from the Waqif (the donor) to Allah.

2. Meaning of Waqf

As defined by the Waqf Act of 1954, Waqf refers to a "permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by Muslim Law as religious, pious, or charitable." The individual who creates a Waqf is known as a Waqif, while the Mutawalli is the one entrusted, either by the Waqif or a competent authority, with the responsibility of administering and managing the Waqf.

3. Historical Background

In the rich tapestry of India’s history, where various rulers have left their mark, the concept of Waqf dates back to the era of the Delhi Sultanate. It was during this time that Sultan Muizuddin Sam Ghaor made the significant gesture of dedicating entire villages to the revered Jama Masjid of Multan. The first legislative framework to regulate Waqfs in India came with the Mussalman Waqf Act of 1923. Later, in 1954, the Waqf Act formally established Waqf Boards in India, creating a centralized system that allowed properties to be recognized as Waqfs for religious or charitable purposes.

This Act was eventually replaced by the more comprehensive Waqf Act of 1995, which bestowed greater powers upon the Waqf Boards. In 2013, significant amendments were introduced to the 1995 Act, aimed at enhancing efficiency and ensuring greater transparency in the management of Waqfs.

The most recent development took place on August 8, 2024, when the Waqf (Amendment) Bill, 2024, was presented in the Lok Sabha. The bill seeks to rename the act to the United Waqf Management, Empowerment, Efficiency, and Development Act, 1995, focusing on modernizing Waqf administration, improving property registration processes, and incorporating advanced technology to better manage Waqf records.

4. Essentials of Waqf

1. Dedication of Property: A Waqf is a permanent dedication of property, which can either be movable or immovable. Such property is designated for charitable or other prescribed purposes. However, in the case of Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad (AIR 1982), a house dedicated by a Muslim for use by all travelers, irrespective of their religion or status, was not recognized as a Waqf. The court held that according to Muslim law, a Waqf must serve a religious purpose and primarily benefit the Muslim community. If the objective is secular, the charitable benefit must solely be directed toward the poor.
2. The Person Must Be of Sound Mind and a Major: Before dedicating property as Waqf, the individual must fully comprehend the terms. Waqfs made on behalf of minors are deemed void.
3. Muslim Faith: The person creating the Waqf must profess the Muslim faith.
4. Waqf for Religious or Charitable Purpose: The principal aim of Waqf is to benefit the Muslim community at large.
5. Irrevocable: Once property is dedicated to Waqf, it becomes the property of Allah (God), and the dedication is irrevocable.

5. Types of Waqf

Waqf is generally categorized into two broad types:

• Public Waqf: Created for charitable, religious, or public purposes, its objective is to serve the wider community.
• Private Waqf: Created for the benefit of the founder’s family and descendants, this is also known as Waqf-ulal-Aulad.

Classification based on Purpose:

• Waqf Ahli: A Waqf created for the benefit of the founder's children and descendants, with no rights to sell or dispose of the property.
• Waqf Khayri: Intended solely for charitable purposes, it benefits the economically disadvantaged through institutions like mosques, schools, madrasas, and universities.
• Waqf al-Sabil: Similar to Waqf Khayri but primarily focused on constructing public utilities for the greater good of society.
• Waqf al-Awaridh: The income generated from this Waqf is reserved for emergencies, such as disaster relief or medical needs.

Classification based on Output Nature:

• Waqf-Istithmar: The focus of this Waqf is investment, where the assets are managed to generate income, which is used for construction or reconstruction of Waqf properties.
• Waqf-Mubashar: The assets of this Waqf are used to directly provide services, such as education or public utilities, benefiting recipients in the form of schools or infrastructure.

6. Modes of Creation of Waqf

• By an Act of a Living Person (Inter Vivos): Waqf can be created during the lifetime of the Waqif. This can also occur during a person’s deathbed, known as Marj-ul-Maut, wherein the Waqif cannot dedicate more than one-third of their property.
• By Will: Also known as Testamentary Waqf, this comes into effect after the death of the Waqif. A Waqf cannot affect more than one-third of the net assets without the consent of the heirs. It was previously believed that Shia Muslims could not create Waqf by will, but this is now accepted.
• By Usage: When a property has been dedicated for charitable or religious purposes for an extended period, it is deemed to belong to Waqf.
• During Death or Illness (Marz-ul-Maut): Similar to gifts made while on one's deathbed, a Waqf can only extend to one-third of the property without the consent of the heirs.

7. Who Can Create a Waqf?

A Waqf can be created by any individual who meets the following conditions:

• Muslim: The Waqif must profess the Muslim faith.
• Capable: The Waqif must be an adult, having attained the age of majority, and be of sound mind.
• Ownership: The Waqif must own the property and have the legal right to dispose of it.
• Transfer Ownership: The Waqif must possess the legal right to transfer ownership of the property.

8. Mutawalli

The Mutawalli is the manager or trustee of a Waqf, entrusted with the responsibility of administering and overseeing the Waqf property to ensure it is used for the purposes outlined by the Waqif (the founder). While the Mutawalli is charged with the management of the property, they do not hold ownership and therefore lack the authority to sell or transfer the property. Mutawallis are appointed by the Waqif or another competent authority such as an executor or the court.

Powers and Duties of a Mutawalli:

• Management: The Mutawalli is responsible for the proper management of the Waqf property, ensuring its use aligns with the intentions of the Waqif.
• Maintenance and Repairs: It is the duty of the Mutawalli to maintain the Waqf property and carry out necessary repairs to preserve its utility.
• Legal Action: The Mutawalli has the authority to take legal actions to protect the interests of the Waqf and its beneficiaries.

Removal of Mutawalli:

• By the Court: If a Mutawalli is found guilty of mismanagement, breach of trust, or other misconduct, the court has the power to remove them.
• By the Waqf Board: The Waqf Board can also remove a Mutawalli under conditions specified in the Waqf Act of 1995.
• By the Waqif: In some instances, the Waqif may retain the right to remove the Mutawalli.

In the landmark case Shahar Bano vs Aga Mohammad, it was ruled that under Mahomedan law, there is no legal prohibition against a woman holding the position of Mutawalli, provided the trust does not involve spiritual duties that she cannot discharge herself or through a deputy.

9. The Waqf (Amendment) Bill, 2024

The Waqf (Amendment) Bill, 2024 introduces several significant changes to the management and regulation of Waqf properties in India, modernizing the system while promoting inclusivity. It renames the 1995 Act to the United Waqf Management, Empowerment, Efficiency and Development Act, 1995.

Key Changes Introduced by the Bill:

a) Increased Government Oversight:

• Role of the District Collector: The bill enhances direct government involvement in the administration of Waqf affairs, allowing district collectors or equivalent officials to act as arbitrators in disputes related to Waqf properties.
• Government Investigation: If there is suspicion that a property declared as Waqf actually belongs to the government, the district collector can investigate its status. If confirmed, the property may be updated to reflect government ownership.

b) Inclusion of Non-Muslim Members on Waqf Boards:

Traditionally, Waqf Boards were composed solely of Muslims. Under the new amendments, the boards can now include two non-Muslim members to encourage inclusivity and diversity within the governance structure.

c) Restrictions on Property Donations:

The bill tightens the criteria and procedures for donating properties to Waqf Boards, including stricter verification processes to ensure the legality and eligibility of the donations, thus preventing fraudulent or improper transfers.

d) Changes to Waqf Tribunals:

The bill proposes reforms to improve the efficiency and fairness of Waqf tribunals, which handle legal disputes over Waqf properties. Although details are limited, the intention is to enhance the tribunal's ability to resolve disputes effectively.

e) Clarification on Government Property:

An amendment clarifies that any property initially identified or declared as Waqf but later determined to belong to the government will no longer be considered Waqf. This aims to ensure clarity of ownership and prevent the misuse of government assets.

These reforms mark an important shift toward modernizing the Waqf system while maintaining its foundational religious and charitable objectives.

10. Conclusion

Waqf represents a sacred and enduring dedication of property by a Waqif, meant exclusively for religious or charitable purposes. Whether the property is movable or immovable, the essence of Waqf lies in its permanence and irrevocability, ensuring its continual service to the community. Governed by laws that uphold its sanctity, Waqf provides a framework for the protection and proper administration of these properties. Should any individual’s rights be violated through mismanagement, misuse, or illegal claims on the Waqf property, they are empowered to seek legal recourse to safeguard their interests and preserve the integrity of the Waqf.