THE WAKF ACT, 1995 ACT NO. 43 OF 1995 [22nd November, 1994.]

An Act to provide for the better administration of Wakfs and for matters connected therwith or incidental thereto. BE it enacted by Parliament in the Forty-sixth Year of the Republic of India as follows:-

1. Short title, extent and commencement. (1) This Act may be called the Wakf Act, 1995. (2) It extends to the whole of India except the State of Jammu and Kashmir. (3) It shall come into force in a State on, such date as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different areas within a State, and for different provisions of this Act, and any reference in any provision to the commencement of this Act, shall in relation to any State or area therein, be construed as reference to the commencement of that provision in such State or area. 1. 1.1.1996: Vide Notification No. S. O. 1007 (E), dt. 27.12.1995. 2 2. Application of the Act. 2. Application of the Act. Save as otherwise expressly provided under this Act, this Act shall apply to all wakfs whether created before or after the commencement of this Act: Provided that nothing in this Act shall apply to Durgah Khawaja Saheb, Ajmer to which the Durgah Khawaja Saheb Act, 1955 (36 of 1995.) applies.

3. Definitions. In this Act, unless the context otherwise requires-

(a) "beneficiary" means a person or object for whose benefit a wakf is created and includes religious, pious and charitable objects and any other objects of public utility sanctioned by the Muslim law; (b)"benefit" does not include any benefit which a mutawalli is entitled to claim solely by reason of his being such mutawalli;

(c) "Board" means a Board of Wakf established under sub- section (1), or as the case may be, under sub-section (2) of section 13 and shall include a common Wakf Board established under section 106;

(d) "Chief Executive Officer" means the Chief Executive Officer appointed under sub-section (1) of section 23; (e) "Council" means the Central Wakf Council established under section 9;

(f) "Executive Officer" means the Executive Officer appointed by the Board under subsection (1) of section 38;

(g) "list of wakfs" means the list of wakfs published under sub-section (2) of section 5; (h) "member" means a member of the Board and includes the Chairperson;

(i) "mutawalli" means any person appointed, either verbally or under any deed or instrument by which a Wakf has been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any Custom or who is a naib-mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any wakf or wakf property: Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office bearer of such committee or corporation;

(j) "net annual income", in relation to a wakif, means net annual income determined in accordance with the provisions of the Explanations to sub-section (1) of section 72;

(k) "person interested in a wakf" means any person who is entitled to receive any pecuniary or other benefits from the wakf and includes (i) any person who has a right to Worship or to perform any religious rite in a mosque, idgah, imambara, dargah,khangah, maqbara, graveyard or any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf; 3 (ii) the wakif and any descendant of the wakif and the muta- walli;

(l) "prescribed", except in Chapter III, means prescribed by rules made by the State Government;

(m) "regulations" means the regulations made by the Board under this Act; (n) "Shia wakf" means a wakf governed by Shia law;

(o) "Sunni wakf" means a wakf governed by Sunni law;

(p) "Survey Commissioner" means the Survey Commissioner of Wakf appointed under sub-section (1) of section 4 and includes any Additional or Assistant Survey Commissioners of Wakfs under sub-section (2) of section 4;

(q) "Tribunal", in relation to any area, means the Tribunal constituted under sub-section (1) of section 83, having jurisdiction in relation to that area;

(r) "wakf" means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes- (i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser; (ii) "grants", including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and (iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and "wakf" means any Person making such dedication-;

(s) "wakf deed" means any deed or instrument by which a wakf has been created and includes any valid subsequent deed or instrument by which any of the terms of the original dedication have been varied; (t)"Wakf Fund" means a wakf fund formed under sub-section (1) of section 77.

4. Preliminary survey of wakfs. (1) The State Government may, by notification in the Official Gazette, appoint for the State a Survey Commissioner of Wakfs and as many Additional or Assistant Survey Commissioners of Wakfs as may be necessary for the purpose of making a survey of wakfs existing in the State at the date of the commencement of this Act. (2) All Additional and Assistant Survey Commissioners of Wakfs shall perform their functions under this Act under the general supervision and control of the Survey Commissioner of Wakfs. (3) The Survey Commissioner shall, after making such inquiry as he may consider necessary, submit his report, in respect of wakfs existing at the date 4 of the commencement of this Act in the State or any part thereof, to the State Government containing the following particulars, namely:- (a) the number of wakfs in the State showing the Shia wakfs and Sunni wakfs separately; (b) the nature and objects of each wakf; (c) the gross income of the property comprised in each wakf; (d)the amount of land revenue, cesses, rates and taxes payable in respect of each wakf; (e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each wakf; and (f) such other particulars relating to each wakf as may be prescribed. (4) The Survey Commissioner shall, while making any inquiry, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908.) in respect of the following matters, namely:- (a) summoning and examining any witness; (b) requiring the discovery and production of any document; (c) requisitioning any public record from any court or office; (d) issuing commissions for the examination of any witness or accounts; (e) making any local inspection or local investigation; (f) such other matters as may be prescribed. (5) If, during any such inquiry, any dispute, arises as to whether a particular wakf is a Shia wakf or Sunni wakf and there are clear indications in the deed of wakf as to its nature, the dispute shall be decided on the basis of such deed. (6) The State Government may, by notification in the Official Gazette, direct the Survey Commissioner to make a second or subsequent survey of wakf properties in the, State and the provisions of sub- sections (2), (3), (4) and (5) shall apply to such survey as 'they apply to a survey directed under sub-section (1): Provided that no such second or subsequent survey shall be made until the expiry of a period of twenty years from the date on which the report in relation to the immediately previous survey was submitted under sub-section (3).

5. Publication of list of wakfs. (1) On receipt of a report under sub-section (3) of section 4, the State Government shall forward a copy of the same to the Board. (2) The Board shall examine the report forwarded to it under sub-section (1) and publish in the Official Gazette a list of Sunni wakf or Shia wakfs in the State, whether in existence at the commencement of this Act or coming into existence thereafter, to which the report relates, and containing such other particulars as may be prescribed.

6. Disputes regarding wakfs. (1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs.

Explanation.--For the purposes of this section and section 7, the expression "any person interested therein", shall, in relation to any property specified as wakf property in 'the list of wakfs published after the commencement of this Act, shall include also every person who,though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under section 4. (2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit. (3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder. (4) The list of wakfs shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive. (5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court in that State in relation to any question referred to in sub-section (1)

7. Power of Tribunal to determine disputes regarding wakfs. (1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, or whether a wakf specified in such list is a Shia wakf or a Sunni wakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final: Provided that-- (a) in the case of the list of wakfs relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of wakfs; and (b) in the case of the list of wakfs relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application 6 may be entertained by Tribunal within the period of one year from such commencement: Provided further that where any such question has been heard and finally decided by a civil court in a "suit instituted before such commencement, the Tribunal shall not re-open such question. (2) Except where the Tribunal has no jurisdiction by reason of the provisions of subsection (5), no proceeding under this section in respect of any wakf shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding. (3) The Chief Executive Officer shall not be made a party to any application under sub-section (1). (4) The list of wakfs and where any such list is modified in pursuance of a decision of the Tribunal under Sub-section (1), the list as so modified, shall be final. (5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under subsection (1) of section 6, before the commencements of this Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding, or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be.

8. Recovery of costs of survey. (1) The total cost of making a survey including the cost of publication of the list or lists of wakfs under this Chapter shall be borne by all the mutawalli of the wakfs the net annual income whereof exceeds five hundred rupees, in proportion to the net annual income, accruing in the State to such wakfs, such proportion being assessed by the Survey Commissioner. (2) Notwithstanding anything contained in the deed or instrument by which the wakf was created, any mutawalli may pay from the income of the wakf any sum due from him under sub-section (1). (3) Any sum due from a mutawalli under sub-section (1) may, on a certificate issued by the State Government, be recovered from the property comprised in the wakf in the same manner as an arrear of land revenue.

CHAPTER III CENTRAL WAKF COUNCIL

9. Establishment and constitution of Central Wakf Council. (1) For the purpose of advising it, on matters concerning the working of Boards and the due administration of wakfs, the Central Government may, by notification in the Official Gazette, establish a Council to be called the Central Wakf Council. (2) The Council shall consist of- (a) the Union Minister in charge of wakfs-ex officio Chairperson; (b) the following members to be appointed by the Central Government from amongst Muslims, namely:- (i) three persons to represent Muslim organisations having all India character and national importance; (ii) four persons of national eminence of whom two shall 7 be from amongst persons having administrative and financial expertise; (iii) three Members of Parliament of whom two shall be from the House of the People and one from the Council of States; (iv) chairpersons of three Boards by rotation: (V) two persons who have been Judges of the Supreme Court or a High Court; (vi) one advocate of national eminence; (vii) one person to represent the mutawallis of the wakf having a gross annual income of rupees live lakhs and above; (viii) three, persons who are eminent scholars in Muslim Law. (3) The term, of office of, the procedure to be followed in the discharge of their functions by, and the manner of filling casual vacancies among, members of the Council shall be such as may be prescribed by rules made by the Central Government.

10. Finance of Council. (1) Every, Board shall pay from its, Wakf Fund annually to the Council such contribution as, is equivalent to one per cent. of the aggregate of the net annual income of the wakfs in respect of which contribution is payable under, sub-section (1) of section 72: Provided that where the Board, in the case of any particular wakf has remitted under sub-section (2) of section 72 the whole of the contribution payable to it under sub-section (1) of that section, then for calculating the contribution payable to the Council under this section the net annual income of the wakf in respect of which such remission has been granted 'shall not be taken into account. (2) All monies received by the Council under sub-section (1)and all other monies received by it as donations, benefactions and grants shall form a fund to be called the Central Wakf Fund. (3) Subject to any rules that may be made by the Central Government in this behalf, the Central Wakf Fund shall be under the control of the Council and may be applied for such purposes as the Council may deem fit.

11. Accounts and audit. (1) The Council shall cause to be maintained such books of account and other books in relation to its accounts in such form and in such manner as may be prescribed by rules made by the Central Government. (2) The accounts of the Council shall be audited and examined annually by such auditor as may be appointed by the Central Government. (3) The costs of the audit shall be paid from the Central Wakf Fund.

12. Power of Central Government to make rules. (1) The Central Government may, by notification in the. Official Gazette, make rules to carry out the purposes of this Chapter. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide ,for all or any of the following matters, namely:- (a) the term of office of, the procedure to be followed in the discharge of their functions by, and the manner of filling casual vacancies among,, the members of the Council; (b) control over and application of the Central Wakf Fund; (c) the form and manner in which accounts of the Council may be maintained. 8 (3) Every rule made by the Central Government under this Chapter shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following, the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule,shall thereafter, have effect only in such modified form or be of no effect, as the care may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

13. Incorporation. (1) With effect from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf, there shall be established a Board of Wakfs under such name as may be specified in the notification. (2) Notwithstanding anything contained in sub-section (1), if the Shia wakfs; in any State constitute in number more than fifteen per cent. of all the wakfs, in the State or if the income of the properties of the Shia wakfs in the State constitutes more than fifteen per cent. of the total income of properties of all the wakfs in the State, the State Government may, by notification in the Official Gazette, establish a Board of Wakfs each for Sunni wakfs and for Shia wakfs under such names as may be specified in the notification. (3) The Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued.

14. Composition of Board. (1) The Board for a State and the Union territory of Delhi shall consist of- (a) a Chairperson; (b)one and not more than two members, as the State Government may think fit, to be elected from each of the electoral colleges consisting of- (i) Muslim Members of Parliament from the State or, as the case may be, the Union territory of Delhi, (ii) Muslim Members of the State Legislature, (iii) Muslim Members of the, Bar Council of the State, and (iv) mutawallis of the wakfs having an annual income of rupees one lakh and above; (c) one and not more than two members to be nominated by the State Government representing eminent Muslim organisations; (d) one and not more than two members to be nominated by the State Government, each from recognised scholars in Islamic Theology; (e) an officer of the State Government not below the rank of Deputy Secretary. (2) Election of the members specified in, clause (b) of sub- section (1) shall be held in accordance with the system of proportional representation by means of a single transferable vote, in such manner as may be prescribed: 9 Provided that where the number of Muslim Members of Parliament, the State Legislature or the State Bar Council, as the case may be, is only one, such Muslim Member shall be declared to have been elected on the Board: Provided further that where there are no Muslim Members in any or the categories mentioned in sub-clauses (i) to (iii) of clause (b) of sub-section (1), the ex-Muslim Members of Parliament, the State Legislature or ex-member of the State Bar Council, as the case may be, shall constitute the electoral college. (3) Notwithstanding anything contained in this section, where the State Government is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in sub-clauses (i) to (iii) of clause (b) of sub-section (1), the State Government may nominate such persons as the members of the Board as it deems fit. (4) The number of elected members of the Board shall, at all times, be more than the nominated members of the Board except as provided under sub-section (3). (5) Where there are Shia wakfs but no separate Shia Wakfs Board exists, at least one of the members from the categories listed in sub- section (1), shall be a Shia Muslim. (6) In determining the number of Shia members or Sunni members of the Board, the State Government shall have regard to the number and value of Shia wakfs and Sunni wakfs to be administered by the Board and appointment of the members shall be made, so far as may be, in accordance with such determination. (7) In the case of the Union territory other than Delhi, the Board, shall consist of not less than three and not more than five members to be appointed by the Central Government from amongst the categories of persons specified in sub-section (1): Provided that there shall be one mutawalli as the member of, the Board. (8) Whenever the Board is constituted or re-constituted, the members of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board. (9) The members of the Board shall be appointed by, the State Government by notification in the Official Gazette.

15. Term of office. The members of the Board shall hold office for a term of five years. 16. Disqualification for being appointed, or for continuing as, a memberof the Board. 16. Disqualification for being appointed, or for continuing as, a member of the Board. A person shall be disqualified for being appointed, or for continuing as, a member of the Board if- (a) he is not a Muslim and is less than twenty-one years of age; (b) he is found to be person of unsound mind; (c) he is an undischarged insolvent; 10 (d) he has been convicted of an offence involving moral turpitude and such conviction has not been reversed or he has not been granted full pardon in respect of such offence; (e) he has been on a previous occasion- (i) removed from his office as a member or as a mutawalli, or (ii) removed by an order of a competent court or tribunal from any position of trust either for mismanagement or for corruption.

17. Meetings of the Board. (1) The Board shall meet for the transaction of business at such time and places as may be provided by regulations. (2) The Chairperson, or in his absence, any member chosen by the members from amongst themselves shall preside at a meeting of the Board. (3) Subject to the provisions of this Act, all questions which come before any meeting of the Board shall be decided by a majority of votes of the members present, and in the case of equality of votes, the Chairperson or, in his absence, any other person presiding shall have a second or casting vote.

18. Committees of the Board. (1) The Board may, whenever it considers necessary, establish either generally or for a particular purpose or for any specified area or areas committees for the supervision of wakfs. (2) The constitution, functions and duties and the term of office of such committees shall be determined from time to time by the Board: Provided that it shall not be necessary for the members of such committees to be members of the Board.

19. Resignation of Chairperson and members. The Chairperson or any other member may resign his office by writing under his hand addressed to the State Government: Provided that the Chairperson or the member shall continue in office until the appointment of his successor is notified in the Official Gazette.

20. Removal of Chairperson and member. (1) The State Government may, by notification in the Official Gazette, remove the Chairperson of the Board or any member thereof if he-- (a) is or becomes subject to any disqualifications specified in section 16; or (b) refuses to act or is incapable of acting or acts in a manner which the State Government, after hearing any explanation that he' may offer, considers to be prejudicial to the interests of the wakfs; or (c) fails in the opinion of the Board, to attend three consecutive meetings of the Board, without sufficient excuse. (2) Where the Chairperson of the Board is removed under sub-sec- tion (1), he shall also cease to be a member of the Board.

21. Filling of a vacancy. When the seat of a member becomes vacant by his removal, resignation, death or otherwise, a new member shall be appointed in his place and such member shall hold office so long as the member whose 11 place he fills would have been entitled to hold office, if such vacancy had not occurred.

22. Vacancies, etc., not to invalidate proceedings of the Board.

22. Vacancies, etc., not to invalidate proceedings of the Board. No act or proceeding of the Board shall be invalid by reason only of the existence of any vacancy amongst its members or any defect in the constitution thereof.

23. Appointment of Chief Executive Officer and his term of office andother conditions of service.

23. Appointment of Chief Executive Officer and his term of office and other conditions of service. (1) There shall be a Chief Executive Officer of the Board who shall be a Muslim and shall be appointed by the State Government, in consultation with the Board, by notification in the Official Gazette. (2) The term of office and other conditions of service of the Chief Executive Officer shall be such as may be prescribed. (3) The Chief Executive Officer shall be ex officio Secretary of the Board and shall be under the administrative control of the Board.

24. Officers and other employees of the Board. (1) The, Board shall have the assistance of such number of officers and other employees as may be necessary for the efficient performance of its functions under this Act, details thereof shall be determined by the Board in consultation with, the State Government. (2) The appointment of officers and other employees, their term of office and conditions of service shall be such as may be provided by regulations.

25. Duties and powers of Chief Executive Officer. (1) Subject to the provisions of this Act and of the rules made thereunder and the directions of the Board, functions of the Chief Executive Officer shall include.- (a) investigating the nature and extent of wakfs and wakf properties and calling whenever necessary, an Inventory of wakf properties and calling, from time to time, for accounts, returns and information from mutawallis; (b) inspecting or causing inspection of wakf properties and account records, deeds or documents relating thereto; (c) doing generally of such acts as may be necessary for the control, maintenance and superintendence of wakfs. (2) In exercising the powers of giving directions under sub- section (1) In respect of any wakf, the Board shall act in conformity with the directions by the wakif in the deed of the wakf, the purpose of wakf and such usage and customs of the wakf as are sanctioned by the school of Muslim law to which the wakf belongs. (3) Save as otherwise expressly provided in this Act, the Chief Executive officer shall exercise such powers and perform such duties as may be assigned to him or delegated to him under this Act.

26. Powers of Chief Executive officer in respect of orders or resolutionsof Board.

26. Powers of Chief Executive officer in respect of orders or resolutions of Board. Where the Chief Executive Officer considers that an order or resolution passed by the Board--- (a) has not been passed in accordance with the law; or (b) is in excess of or is an abuse of the powers conferred on the Board by or under this Act. or by any other law; or (c) if implemented. is likely to- (i) cause financial loss to the Board or to the concerned wakf or to the wakfs generally; or (ii) lead to a riot or reach of peace; or (iii) cause danger to human life, health or safety; or (d) is not beneficial to the Board or to any wakf or to wakfs generally, he may, before implementing such order or resolution place the matter before the Board for its reconsideration and, if such order or resolution is not confirmed by a majority of vote of the members present and voting after such reconsideration, refer the matter to the State Government along with his objections to the order or resolution, and the decision of the State Government thereon shall, be final.

27. Delegation of powers by the Board. The Board may, by a general or special order in writing, delegate to the Chairperson, any other member, the secretary or any other officer or servant of the Board or any area committee, subject to such conditions and limitations as may be specified in the said order, such of its powers and duties under this Act, as it may deem necessary.

28. Chief Executive Officer to exercise powers through Collectors, etc.

28. Chief Executive Officer to exercise powers through Collectors, etc. (1) Subject to the provisions of this Act and of the rules made thereunder, the Chief Executive Officer may exercise all or any of the powers conferred on him by or under this Act with the previous approval of the Board through the Commissioner of the division or the Collector of the district in which the concerned wakf property is situated or through any other Gazetted Officer whom he may appoint for such purpose and may, from time to time, delegate any of his powers to any such Commissioner of the division or Collector or any other Gazetted Officer and may, at any time, revoke the delegations so made by him. (2) Where any delegation of powers is made by the Chief Executive Officer under sub-section (1), the person to whom such delegation is made may exercise those powers in the same manner and to the same extent as if they have been conferred on him directly by this Act and not by way of delegation.

29. Powers of Chief Executive Officer to inspect records, registers, etc.

29. Powers of Chief Executive Officer to inspect records, registers, etc. The Chief Executive Officer or any officer of the Board duly authorised by him in this behalf shall, subject to such conditions and restrictions as may be prescribed and, subject to the payment of such fees as may be leviable under any law for the time being in force, be entitled at all reasonable time to inspect, in any public office, any records, registers or other documents relating to a wakf or movable or immovable properties which are wakf properties or are claimed to be wakf properties.

30. Inspection of records. (1) The Board may allow inspection of its proceedings or other records in its custody and issue copies of the same, on payment of such fees and subject to such conditions as may be prescribed. 13 (2) All copies issued under this section shall be certified by the Chief Executive Officer of the Board in the manner provided in section 76 of the Indian Evidence Act, 1872. (1 of 1872.) (3) The powers conferred on the Chief Executive Officer by sub- section (2) may be exercised by such other officer or officers of the Board as may either generally or specially be authorised in this behalf by the Board.

31. Prevention of disqualification for membership of Parliament.

31. Prevention of disqualification for membership of Parliament. It is hereby declared that the offices of the Chairperson or members of a Board shall not be disqualified and shall be deemed never to have been disqualified for being chosen as, or for being, a Member of Parliament.

32. Powers and function of the Board. (1) Subject to any rules that may be made under this Act, the general superintendence of all wakfs in a State shall vest in the Board established or the State; and it shall be the duty of the Board so to exercise its powers under this Act as to ensure that the wakfs under its superintendence are properly maintained controlled and administered and the income thereof is duly applied to the objects and for the purposes for which such wakfs were created or intended: Provided that in exercising its powers under this Act in respect of any wakf, the Board shall act in conformity with the directions of the wakf, the purposes of the wakf and any usage or custom of the wakf sanctioned by the school of Muslim law to which the wakf belongs. Explanation.-For the removal of doubts, it is hereby declared that in this sub-section, "wakf" includes a wakf in, relation to which any scheme has been made by any court of law, whether before or after the commencement of this Act. (2) Without prejudice to the generality of the foregoing power, the functions of the Board shall be.- (a) to maintain a record containing information relating to the origin, income, object and beneficiaries of every wakf; (b) to ensure that the income and other property of wakfs are applied to the objects and for the purposes for which such wakfs were intended or created; (c) to give directions for the administration of wakfs; (d) to settle schemes of management for a wakf: Provided that no such settlement shall be made without giving the parties affected an opportunity of being heard; (e) to direct- (i) the utilisation of the surplus income of a wakf consis- tent with the objects of a wakf; (ii) in what manner the income of a wakf, the objects of which are not evident from any written instrument, shall be utilized; 14 (iii) in any case Where any object of wakf has ceased to exist or has become incapable of achievement, that so much of the income of the, wakf as was previously applied to that object shall be applied to any other object, which shall be similar, or nearly similar or to the original object or for the benefit of, the poor or for the purpose of promotion of knowledge and learning in the Muslim community: Provided that no direction shall be given under this clause with- out giving the parties affected an opportunity of being heard. Explanation.-For the purposes of this clause, the powers of the Board shall be exercised- (i) in the case of a Sunni wakf, by the Sunni members of the Board only; and (ii) in the case of a Shia wakf, by the Shia members of the Board only: Provided that where having regard to the number of the Sunni or Shia members in the Board and other circumstances. it appears to the Board that the power should not be exercised by such members only, it may co-opt such other Muslims being Sunnis or Shias, as the case may be, as it thinks fit, to be temporary members' of the Board for exercising its powers under this clause; (f) to scrutinise and approve the budgets submitted by muta- wallis and to arrange for the auditing of account of wakfs; (g) to appoint and remove mutawallis in accordance with the provisions of this Act; (h) to take measures for the recovery of lost properties of any wakf; (i) to institute and defend suits and proceedings relating to wakfs; (j) to sanction any transfer of immovable property of a wakf by way of sale, gift, mortgage, exchange or lease, in accordance with the provisions of this Act: Provided that no such sanction shall be given unless at least two-thirds of the members of the Board vote in favour of such transaction; (k) to administer the Wakf Fund; (l) to call for such returns, statistics, accounts and other information from the mutawallis with respect to the wakf property as the Board may, from time to time, require; (m) to inspect, or cause inspection of, wakf properties, accounts, records or deeds and documents relating thereto; (n) to investigate and determine the nature and extent of wakf and wakf property, and to cause, whenever necessary, a survey of such wakf property; 15 (o) generally do all such acts as may be necessary for the control, maintenance and administration of wakfs. (3) Where the Board has settled any scheme of management under clause (d) or given any direction under clause (e) of sub-section (2), any person interested in the wakf or affected by such settlement or direction may institute a suit in a Tribunal for setting aside such settlement or directions and the decision of the Tribunal thereon shall be final. (4) Where the Board is satisfied that any wakf land, which is a wakf property, offers a feasible potential for development as a, shopping centre, market, homing flats and the like, it may service upon the mutawalli of the concerned wakf a notice requiring him within such time, but not less than sixty days, as may be specified in the notice, to convey its decision whether he is willing to execute the development works specified in the notice. (5) On consideration of the reply, if any, received to the notice issued under sub-section (4), the Board, if it is satisfied that the mutawalli is not willing or is not capable of executing the works required to he executed in terms of the notice, it may, with the prior approval of the, Government, take over the property, clear it of any building or structure thereon, which, in the opinion of the Board is necessary for execution of the works and execute such works from Wakf funds or from the finances which may be raised on the security of the properties of the wakf concerned, and control and manage the properties till such time as all expenses incurred by the Board under this section, together with interest thereon, the expenditure on main- tenance of such works and other legitimate changes incurred on the property are recovered from the income derived from the Property: Provided that the Board shall compensate annually the mutawalli of the concerned wakf to the extent of the average annual net income derived from The property during the three Yeam, iniffiediately precetling the taking over of the property by the Board. (6) After all the expenses as enumerated in sub-section, (5) have been recouped from the income of the developed properties, the developed properties shall be banded over to mutawalli of the concerned wakf.

33. Powers of inspection by Chief Executive Officer or person authorisedby him.

33. Powers of inspection by Chief Executive Officer or person authorised by him. (1) With a view to examiningr whether, by reason of any failur- or negligence on the part of a mutawalli in the performance of his executive or adminsitrative duties, any loss or damage has been caused to anY wakf or Wakf Property, the Chief Executive Officer with the prior approval of the Board, either himself or any other person authoriged by him in writing in three behalf, may inspect all movable and immovable properties, which are wakf properties. and all records, correspondences-, plans, accounts and other documents relating thereto. (2) Whenever any such inspection as referred to in sub-section (1) is, made, the concerned mutawalli and all officers and other employees working under him and every person connected with the administration of the wakf, shall extend to the person making such inspection, all such assistance and facilities as may be necessary and reasonably required by him to carry out such inspection, and shall also produce for inspection any movable property or documents relating to the wakf as may be called for by the person making the inspection and furnish to him such information relating to the wakf as, may be required by him. 16 (3) Where, after any such inspection, it appears that the concerned mutawalli or any officer or other employee who is or was working under him had mis-appropriated, misapplied or fraudulently retained, any money or other wakf property, or had incurred irregular, unauthorised or improper expenditure from the funds of the wakf, the Chief Executive Officer may, after giving the mutawalli or the person concerned a reasonable opportunity of showing cause why an order. for the recovery of the amount or property, should not be passed against him and after considering such. explanation, if any, as such person may furnish, determine the amount or the property, which has been misappropriated, misapplied or fraudulently retained, or the amount of the irregular, unauthorised or improper expenditure incurred by such person, and make an order directing such person to make payment of the amount so determined and to restore the said property to the wakf, within such time as may be specified in the order. (4) A mutawalli or other person aggrieved by such order may, within thirty days of the receipt by him of the order, appeal to the Tribunal: Provided that no such appeal shall be entertained by the Tribunal unless the appellant first deposits with the Chief Executive Officer the amount which has been determined under sub-sectoin (3) as being payable by, the appellant and the Tribunal shall have no power to make any order staying pending the disposal of the appeal, the operation of the order made by the Chief Executive Officer under sub- section (3). (5) The Tribunal may, after taking such evidence as it may think fit, confirm, reverse or modify the order made by the Chief Executive Officer, under sub-section (3) or may remit, either in whole or in part, the amount specified in such order and may make such orders as to costs as it may think appropriate in the circumstances of the case. (6) The order made by the Tribunal under sub-section (5) shall be final.

34. Recovery of the amount determined under section 33. Where any mutawalli or other person who has been ordered, whether under sub- section (3) or sub-section (5) of section 33, to make any payment or to restore the possession of any property, omits or fails to make such payment or restoration within the time specified in such order, the Chief Executive Officer, with the prior approval of the Board shall, take such; steps as he may think fit for the recovery of possession of the property aforesaid and shall also send a certificate to the Collector of the district in which the property of such mutawalli or other person is situate, stating therein the amount that has been determined by him or by the Tribunal, as the case may be, under section 33, as being payable by such mutawalli or other person, and, thereupon, the Collector shall recover the amount specified in such certificate as if it were an arrear of land revenue and on the recovery of such amount, pay the same to the Chief Executive Officer, who shall, on receipt thereof, credit the amount to the funds of the concerned wakf.

35. Conditional attachment by Tribunal. (1) Where the Chief Executive Officer is satisfied that the mutawalli or any other person who has been ordered under. sub-section (3) or sub-section (5) of section 33 to make any payment, with intent to defeat or delay the execution of the said order,-- (a) is about to dispose of the whole or any part of his property; or 17 (b) is about to remove the whole or any part of his property from the jurisdiction of the Chief Executive Officer, he may, with the prior approval of the Board, apply to the Tribunal for the conditional attachment of the said property or such part thereof, as he may think necessary. (2) The Chief Executive Officer shall, unless the Tribunal otherwise directs, specify in the application the property required to be attached and, the estimated value thereof. (3) The Tribunal may direct the mutawalli or the person concerned, as the case may be, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Tribunal when required, the said property or the value of the same or such portion thereof as may be sufficient to satisfy the amount specified in the certificate referred to in section 34, or to appear and Show cause why he should not furnish such security. (4) The Tribunal may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (5) Every attachment made under this section shall be made in accordance with the provisions of the Code of Civil Procedure, 1908, (5 of 1908.) as if it were an order for attachment made under the provision of the said Code.