Author: Rakhi Jha, IPEM Law Academy
Abstract
Waqf is a concept of Muslim law which states that if a person donates any movable or immovable property permanently in the name of God for some religious or charity purpose, then that property becomes Waqf and the one who is donating it also becomes Waqf. Because in this, if the property is donated once, it is not taken back; the ownership goes on permanently after the donation.
When the property becomes Waqf, then it goes under the State Waqf Board (members nominated by State Govt.), then the state decides whether to build a school or a graveyard or a mosque etc. on that land or property. That state decides the waqf. To manage all this, a manager/caretaker is appointed, they are called mutawalli. Mutawalli cannot sell them, cannot transfer them to someone else’s name but they can definitely generate income. Whatever income is generated, all that money goes as charity or to the Muslim community. And 7% of its income goes to the state waqf board, they do a lot of work on that land.
There is a Waqf Council at the central level which is nominated by the central government. If there is a property dispute, a tribunal is formed to manage it. This is where the Waqf Act 1995 comes from, which manages all this.
These are some amendments that were made – waqf amendment act 1954, waqf amendment act 1995, amendment 2013 and 8 August 2024 Waqf Amendment Bill 2024 and Muslim Waqf Repeal Bill 2024 were introduced in the Lok Sabha. To clarify the Waqf rules, to smoothen the functioning of the Waqf Board, better management and development of Waqf properties.
To The Point
Waqf is a concept of Muslim law that if a person donates any movable or immovable property permanently in the name of God for some religious or charity purpose, then that property becomes waqf and the one who is donating it also becomes waqif. Because in this if a property is donated once, it is not taken back, the ownership becomes permanent after donating it. – “Once a Waqf, Always a Waqf!”
Illegal Alienation and controversy- i.e. Mutawallis to manage all this, a manager/caretaker is appointed, they are called mutawallis. They could not sell or transfer that property, but they could only generate income, so in a 2013 report poor income generation was shown, the actual market value was being shown less. The Waqf land has been transferred in violation of Section 51, making such transactions void.
Tribunal ineffectiveness- In normal cases, for property disputes we used to go to civil court/ revenue court and fight the case. But all property disputes related to Waqf could be fought in tribunal at that time. The problem here was that the decision of the tribunal was the final decision.
Here only in case of some technical error, a person could appeal to the High Court or Supreme Court (like legal error or constitutional matter), in all other cases the decision of the tribunal was final. Due to which the chances of winning the case are less.
Limitation act 1963, legal framework- the time limit for filing any case so that the case does not go on for years and is completed timely. An individual has 12 years, if property is illegally occupied, he has a time period of 12 years to file a case; if the government’s property is illegally occupied, they have a time period of 30 years. But this rule does not apply to waqf property; even if it is a 100 year old property, the waqf board can claim that the property belongs to them.
(Section 107: nothing contained in the limitation act 1953 shall apply to any suit for possession of immovable property comprised in any waqf or for possession of any interest in such property.
Use Of Legal Jagran
“Void ab initio”- There was an allegation in this that the transfer of Waqf property without the approval of the board is legally invalid from the beginning. Under section 51, any sale, gift or transfer of Waqf property without the approval of the board will be considered void ab initio.
Case- State U.P v/s Badrul islam – this case, the transfer was held legally non-existent from the beginning.
The Uttar Pradesh govt. has told the Supreme Court that the well near the sambhal shahi jama masjid is located on public land and has no connection to the mosque. In a status report, the state charifed that the well, known as “Dharani Varah Koop” is outside the mosque boundary and was historically used by all communities. The Dispute arose after a trial court ordered a survey of the shahi jama masjid in chandausi last November, based on claims that it was built over a historic temple.The mosque committee challenged this order in the Supreme Court, which directed them to approach the high court and put the survey on hold.
The supreme court had earlier restrained authorized from taking any action,and the Allahabad high court has since stayed the trial court proceedings. The State now argues that the mosque committee’s petition is baseless and infructuous.
Ultra vires- Any unauthorised action by Waqf Boards or Mutawallis such as selling lands is beyond their legal rights.
Constructive trust – If a person informally holds Waqf property for charitable purpose, the courts declared it constructive trust so that it gets legal effect. The first rule of waqf which is dedication of property says that there is no need of written work documentation, just decide on the basis of usage whether it is waqf or not. Oral deducation of land for mosquitoes are judicially accepted as even without formal documentation.
Missues of waqf funds- Taking independence, changes were made in Waqf with time. Like Muslim Waqf Validating Act, 1913 and Waqf Act, 1954, then Waqf Act 1995 came. But even after so many changes, problems and controversies persisted. Finally, Waqf (Amendment Bill 2025) was passed. But even before this bill, major changes were made in Waqf to solve the problems. Waqf (Amendment) Act of 2013 was based on the 2013 Sachhar Committee report.
This committee was formed in 2005 to analyse the social, economic and educational conditions of Muslim committees. This committee submitted a report in 2006. In this report there was a dedicated section on “status & potential of waqf properties” in which some things are highlighted. In 2006 there are 4.9 lakh registered waqf properties across India. Whose total area is 6 lakh acres. In which the highest concentration is in West Bengal (148200) and Uttar Pradesh (122,839). And their value in the market is being estimated at 1.2 lakh crore. But their total book value is 6000 crore. Even after having such high value and high market, the annual income generated from these properties is only Rs.163 crores. This means a return of 2.7% is being received.
Limitation period- the time limit for filing any case so that the case does not go on for years and is completed timely. An individual has 12 years, if property is illegally occupied, he has a time period of 12 years to file a case; if the government’s property is illegally occupied. And if any non-Muslim’s land was Waqf property, in that case a time limit of one year was given, but in the Waqf Amendment Act 2025, this was removed and a time limit of 12 years was given.
The Proof
Parlimentary standing committee – Despite so much value and high market the annual income generated from these properties is only 163 crore. That means they are getting a return of 2.7%. This shows poor income generation under utillisation and mismanagement of waqf properties.
Sachhar committee Report- while emphasizing the immense potential of these waqf properties said that if these properties are managed efficiently then these Muslim committees can contribute very well in social, economic and educational development. And keeping the rate of return at a minimum 10% of the market value (12000cr) annually can be generated. On the basis of key-finding, the committee recommended things like stricter rule for better management (for Mutawalli), digital record-keeping, power of Waqf Tribunal,
Women representation, timely survey and Non- Muslim professionals for better management of Waqf properties (i.e. you can also hire professional experts from outside the Muslim committee for better development and management of Waqf properties.) Due to all these, the Waqf Amendment Act of 2013 was passed and the recommendation of the Sachhar Committee report was kept in mind while passing the 2024 bill.
RTI Findings (Delhi, 2020) – In this, Delhi Waqf Board failed to publish the mandatory audit report for 5 years. There is no public record of encroachment recovery proceedings.
CASES
Syed mohd. salie labbai v/s mohd hannifa case (1976) – There was a piece of land and the ancestors of that land had built a mosque there. It was publicly open so that people could come and pray there. But when the issue of ownership came up, it was not known whose property it was or whether it was a waqf. This matter reached the Supreme Court. The Supreme Court gave two sales to show that the owner of this piece of land was that person. But the Supreme Court saw that it was publicly open and people were coming and praying. So we will assume that this piece of land is a waqf and you are not its rightful owner.
Gyanvapi mosque case- I had said that if there is a mosque at this place then it is a waqf property. Waqf property cannot be taken back. Waqf by user – it is a property used for prayer, mosque or any prayer, mosque or any other religious purpose for a long time. It will become waqf. But in Waqf Amendment Bill 2025, waqf by user has been removed and it has been clearly said that only if there is an official declaration, any property will be considered waqf, not otherwise. And if a person has been practicing Islam for 5 years and he is the rightful owner, only then can he dedicate his property as waqf, not otherwise.
Case- State U.P v/s Badrul islam- Without a man, he will be deemed free from the inheritance of permission property.
CONCLUSION
The 21st century demand for transparency, accountability and financial efficacy in Waqf governance is undeniable. Important amendment relates to govt land- “50 acres of forest cleared off overnight”: HCU students as deforestation of 400-acre kancha gachibowli land begins.The report tells that there are 1000 more such lands which are claimed in the name of waqf. Because of this, a lot of development structures, railways, highways, everything is stopped.But after the amendment, he said that any govt land should be taken, be it gram samaj or any govt land for which there is no official document,There is no proper record to clear that it is waqf property and he claimed that this land is waqf.
This will not happen after the amendment, it will automatically no longer be a waqf. And the job of verifying this has been given to the district collector to go and verify. And if no official record is found and it is found out that the ownership of the land is of the government. Then the revenue records will be updated and the name of the government property will be removed from the list of waqf.
waqf tribunal changes- earlier there used to be a muslim law expert who used to take decision on the basic of jurisprudence and the judgment of tribunal was final, but now the position of muslim law expert has been removed and there is a present or formal district judge. earlier the decisions of tribunal were based on Islamic legal and principle and after amendment judicial officer takes decision on legal and principal basis.
FAQS
Can waqf land be sold?
No, any sale, gift, transfer and mortgage of waqf property without board approval is viod an initio under sec. 51.
Who can file a complaint about waqf mismanagement?
Any interested person or aggrieved party can approach the waqf tribunal under section 83 or file a PIL.
What is a mutawalli and how are they appointed?
A mutawalli is the manager or caretaker of a waqf appointed under section 63, and the waqf board can appointed, remove and discipline a mutawalli based on fitness, conduct and compliance with waqf.
Can non- muslims challenge or defend a Waqf property claim?
Yes, if a person is a tenant, claimant, or encroacher, or has any legally recognized interest, they may be party to proceeding under the waqf act or regular civil law depending on the nature of dispute.
