Author – sakshi Sharma, university law college Hazaribagh
Abstract
The institution of Waqf occupies a significant position in Islamic jurisprudence and the socio-legal fabric of India. The Waqf Board, constituted under statutory authority, is entrusted with the administration, supervision, and protection of Waqf properties. Despite its welfare-oriented objectives, the Waqf system has often been subjected to disputes, allegations of mismanagement, and judicial scrutiny. This article critically examines the concept of Waqf, the statutory framework governing Waqf Boards in India, their powers and functions, evidentiary requirements, landmark judicial pronouncements, and the challenges faced in governance. The article aims to provide a concise yet comprehensive legal analysis while maintaining academic rigor.
To the Point
A Waqf is the permanent dedication of movable or immovable property by a Muslim for purposes recognized as religious, pious, or charitable under Islamic law. Once a property is declared as Waqf, it becomes inalienable, irrevocable, and perpetual.
The Waqf Board is a statutory body established under the Waqf Act, 1995, with the primary objective of ensuring the proper administration of Waqf properties. Each State in India constitutes its own Waqf Board, functioning as a body corporate with perpetual succession and a common seal.
In essence, the Waqf Board acts as:
A custodian of Waqf properties
A regulatory authority
A litigating body for protection of Waqf assets
Use of Legal Jargon
The governance of Waqf properties is regulated through a complex interplay of statutory provisions, judicial precedents, and principles of Muslim personal law.
Under Section 13 of the Waqf Act, 1995, the State Government is empowered to establish a Waqf Board. The Board is vested with quasi-judicial powers under various provisions of the Act, including the authority to:
Maintain and publish a register of Waqfs (Section 36)
Conduct surveys of Waqf properties (Section 4)
Remove or appoint a Mutawalli (manager of Waqf)
Institute or defend legal proceedings on behalf of Waqfs (Section 32)
Further, Section 85 bars the jurisdiction of civil courts in matters to be decided by Waqf Tribunals, thereby conferring exclusive jurisdiction upon specialized forums.
The Proof
For a property to be legally recognized as Waqf, proof of dedication is essential. The evidentiary requirements may include:
A Waqf deed
Revenue records
Long-standing religious or charitable usage
Gazette notifications issued by the Waqf Board
However, mere inclusion of a property in the Waqf register does not create an irrefutable presumption of Waqf. Courts have consistently held that the burden of proof lies on the party asserting the Waqf character of the property.
The principle of user, recognized in Muslim law, allows a property to be treated as Waqf if it has been used for religious or charitable purposes over a long period without dispute.
Case Laws
- Board of Muslim Waqfs, Rajasthan v. Radha Kishan (1979 AIR 289)
The Supreme Court held that the entry of a property in the Waqf register is not conclusive proof of its Waqf nature. The Court emphasized that such entries are open to judicial scrutiny.
- Sayyed Ali v. Andhra Pradesh Waqf Board (1998) 2 SCC 642
The Court clarified that a valid Waqf requires permanent dedication. Temporary or conditional dedication does not constitute a lawful Waqf.
- Ramesh Gobindram v. Sugra Humayun Mirza Waqf (2010) 8 SCC 726
The Supreme Court ruled that Waqf Tribunals do not have jurisdiction over eviction suits against tenants unless explicitly provided under the Act, reaffirming the limits of tribunal jurisdiction.
- Punjab Waqf Board v. Sham Singh Harike (2019) 4 SCC 698
The Court reiterated that Waqf Boards must act within statutory limits and cannot arbitrarily claim ownership over disputed properties without cogent evidence.
Conclusion
The Waqf Board plays a pivotal role in safeguarding religious and charitable endowments, which serve a crucial socio-economic function, particularly for marginalized communities. However, the effectiveness of the Waqf administration is often undermined by poor record-keeping, prolonged litigation, encroachments, and lack of transparency.
Judicial intervention has acted as a necessary check on the arbitrary exercise of power by Waqf Boards, ensuring adherence to due process and principles of natural justice. Strengthening governance mechanisms, digitization of records, and enhancing accountability can significantly improve the functioning of Waqf institutions.
In conclusion, while the Waqf Board is a constitutionally valid and socially necessary institution, its operation must align strictly with statutory mandates and judicial discipline to preserve public confidence and uphold the rule of law.
FAQs
- What is the legal status of the Waqf Board?
The Waqf Board is a statutory body constituted under the Waqf Act, 1995, having corporate status and legal personality.
- Can a Waqf property be sold or transferred?
No. Waqf property is inalienable and cannot be sold, gifted, or mortgaged, except in exceptional circumstances with statutory approval.
- Does the Waqf Board own Waqf property?
No. The Waqf Board is a custodian and manager, not the owner, of Waqf properties.
- Can civil courts entertain Waqf disputes?
Generally, no. Jurisdiction lies with the Waqf Tribunal under Section 85 of the Waqf Act, subject to judicial interpretation.
- Is registration of Waqf mandatory?
Yes. Registration under Section 36 of the Waqf Act is mandatory for effective administration and legal recognition.
