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The Wakf Act, 1995

An Act no. 43 of the year 1995 being the Central Government was enacted by the Parliament of India with the name and title as ‘the Wakf Act, 1995’. Said Act was enacted with the purpose and object to make provisions as to better administration of the Wakf, and the said term is replaced with ‘Waqf’ as per Amending Act of 2013 (Act no. 27 of 2013). The present Act was enacted on 46th year of republic of India and was assented on 22nd day of November, 1995 by the President of India. Earlier there was a law on administration of the Wakf namely, The Wakf Act of 1954, but as the same was appeared to have many deficiencies in its working. That Act of 1954 was amended trice, in the years 1959, 1964 and also in the year 1969, within its 15 years of working. The Act of 1954 when last was amended in the year 1984 with the comprehensive changes, it was observed that the provisions of that Amending Act of 1984 were opposed strongly by the Muslim Community and as such after a careful consideration of the oppositions, the new comprehensive bill on matters of Wakf were sought to be introduced. The Act of 1995 was sought to be extended to the entire Indian territories, however, the State of Jammu and Kashmir is exempted from its applicability and the provisions of the Act were brought into effect on 1st day of January, 1996. The Act was recently amended in the year 2013 as afore shown.

The number of provisions of the Act, are divided into several chapters, wherein chapter-I of the Act makes preliminary provisions providing for short title, extension, and commencement of the Act. Section 2 explains the applicability of the Act to the Auqafs irrespective of its creation date is either before or after the present Act was brought into operation. However, applicability of the Act is restricted in relation to Durgah Khawja Saheb, Ajmer, as to which the separate enactment makes provisions. Section 3 of the Act defines various important terms used in the provisions of the Act, including the one most important of Waqf also.

Further, second chapter of the Act makes provisions as to survey of ‘auqaf’, wherein the State Government concerned empowered to appoint Survey Commissioner of Auqaf and certain necessary additional and assistants thereof, for doing survey of auqaf, which if not done prior to the date of commencement of Amending Act of 2013, then as per provision of that Act, should be completed within the period of 1 year from the date on which that Act is brought into operation. After making such necessary inquiry, the Survey commissioner is required to submit his report to the State Government concerned, which should mention the particulars required under the provisions including, number of auqaf in the State, how much of them are shia’s and sunni’s, their nature and object, etc., the list is inclusive. For such inquiry purpose the Survey commissioner is vested with the powers of certain Civil Court which are specified under the Code of Civil Procedure, 1908. The subsequent survey of waqf properties can also be directed by the State Government, however, there should be with the 10 years gap. Section 5, further, requires publication of list of Auqaf by the State Government on examination of report by the Board. Moreover, the Revenue authorities should also include the said list to update the land records, should also consider the same list while deciding mutation cases. The relevant disputes if arise, to be referred to the Tribunal by way of suit within the period of 1 year from such publication.

Chapter III of the Act makes provisions as to Central Waqf Council, which is to be established by the Central Government. Such council is for advising Central and State Governments and also to the Boards on the matters related to working of Boards and also to the due administration of Auqaf.

The next chapter being fourth one, deals with establishment of boards and also explains the functions thereof. Such Boards are to be established and incorporated by the State Government with the specified name. Further, such Boards can establish necessary committees for a particular purpose or for any specified area for having supervision of Auqaf. Further, there should be appointed necessary officers and employees by the Board, for efficient performance of its functions under this Act. The subsequent provisions of the Act specify the powers of the Board. So far as the registration of the Auqaf is concerned, the chapter V makes provisions, where Board is empowered to register such Auqaf. And for maintenance of accounts in relation to auqaf and relevant provisions are concerned, the provisions are given under next chapter and finance related provisions have been contemplated under chapter VII of the Act.

Moreover, the provisions of chapter VIII of the Act are important so far as those are relating to judicial matters and proceedings thereof, the Tribunal is constituted under section 83 of the Act by the State Government for such judicial entertainments. The matters over which, the Tribunal is having jurisdiction, the Civil or Revenue Courts or even any other Authority should not have jurisdiction. And lastly, the chapter IX of the Act makes miscellaneous provisions, where several powers of the Central as well as State Governments and Boards have been mentioned in relation to certain aspects of the Auqaf.

Adv. Faim Khalilkhan Pathan