Economic potential of Auqaf in India

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Economic potential of Auqaf in IndiaSyed Khalid Rasheed aa Dean of Law , University of Sokoto , NigeriaPublished online: 20 Mar 2007.

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Economic Potential of Auqaf in IndiaSyed Khalid Rasheed

IntroductionThis paper examines the socio-economic potential of auqaf in India. Its mainobjectives are to (i) bring out the extent and magnitude of waqf funds in India,(ii) examine the performance of mutawallis and various bodies connected withwaqf administration, and (iii) suggest certain measures for enhancing theeconomic potential of auqaf in India.

By "economic potential" of auqaf'is meant the capacity of auqaf funds whichthrough proper maintenance and financial management could, after fulfillingthe objects for which they were created, be used for the socio-economic andeducational betterment of Indian Muslims.

The information on which this study is based was collected by on-the-spotenquiries, interviews with people connected with auqaf, visits to nearly allimportant Waqf Boards in the country, questionnaires to persons connectedwith or interested in waqf administration, and the active help of the CentralWaqf Council and the Waqf Section of the Government of India. Some of theenquiries were directed at finding schisms, if any, between laws governingauqaf and their actual implementation, and at detecting infirmities with whicha law may suffer. The overall thrust of the investigation was however to findavenues for the socio-economic and educational betterment of Indian Muslims.

Waqf Funds in IndiaBack in 1963, Humayun Kabir, the then Minister of Auqaf, stated that in Indiathere were more than 100,000 auqaf valued at about 1,000 million Indianrupees (US$110 million).1 On what basis this estimate was made in not knownbut from our inquiries it appears that it was fairly accurate. A look at Table 1will show that the total number of auqafin the country in 1976 was about 152,000valued at 1,080 million Indian rupees or US$120 million). Even this figure was notfinal since auqaf survey2 was still in progress in five States,3 and it had not evenstarted in another seven.4 Unfortunately, the Wakf Section, Government ofIndia has not been able to issue any facts and figures regarding auqaf 'for the lasteight years. The next edition of Review of Wakf Administration is expected tobe published by mid-1985.

There is no doubt that the ultimate figure for auqaf would be larger and ofgreater value. In Andhra Pradesh, for example, the number of known auqafonce stood at 1,200. The State Government asked the tehsildars (sub-divisionalrevenue officers of a district) to undertake survey of auqaf with the help ofrevenue records in addition to their normal duties. The survey was apparentlydone very casually. For when the State Government instituted a random check

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for verification it was discovered that many auqaf were left out. It was thendecided to undertake a fresh survey through deputy tehsildars, especiallyentrusted with this work. The results were astonishing. As against 19,852 auqafworth Rs. 36,09,396, with an annual income of Rs 12,79,218 recorded by tehsil-dars, the second survey even before completion revealed 34,189 auqaf worthRs. 27,50,80,007 with an annual income of Rs. 50,72,223.5

TABLE INumber, Value & Income of Waqf Properties 1976

Name of State/Union of Territory

l.Andhra Pradesh2. Assam3.Bihar(Sunni)

(Shia)4. Delhi5. Karnataka6. Kerala7. Kutch8. Lakshadweep9. Madhya Pradesh

10. Marathawadall.Orissa12. Punjab13. Rajasthan14. Tamil Nadu15. Uttar Pradesh (Sunni)

(Shia)16. West Bengal

Total

Total No*ofauqaf

34,22796

1,566175

4,1959,1083,6261,082

2653,544

19,6772,787

38,22118,0272,2789,8772,0106,146

1,56,907

Total ValueRs.

27,50,80,00020,30,000

2,48,24,0961,08,26,840

6,20,50,900s

5,62,84,0004,50,00,000

59,81,678Not availableNot available28,99,54,4395,18,36,0006,61,96,4382,12,00,0003,46,35,0277,55,09,740

Not available4,71,40,140

107,85,49,298

Total IncomeRs.

50,72,22525,000

18,31,6425,41,342

13,80,235"35,11,33212,00,0001,97,831

29,1476,50,435

24,93,90242,47,80028,49,2618,42,000

28,20,28037,75,487

Not available23,57,000

3,37,65,299

Figures for this Table have been taken from the Review of Waqf Administration, 1973-74 and1975-76. The Review is published by the Wakf Section, Government of India. After 1976, how-ever, the Review could not be published. The Wakf Section is expecting to publish thenextnumber by the middle of 1985. Some of the figures used in this Table have also been taken fromNizam-e-Auqaf, June 1980, op. cit., infra, n. 8.

x The figures do not include the value or income of 571 auqaf. See the Review : 1973-74, pp. 62-63.

Similarly, in Alwar district of Rajasthan, while only 73 auqaf were knownpreviously, the survey revealed as many as 1,965!' In Uttar Pradesh, the firstsurvey by a government appointed commissioner in 1938 showed 5306 Sanniauqaf and 915 Shia auqaf. In 1975 the State Government ordered a fresh sur-vey. By June 1980 with ony 24 out of 54 districts covered the number of Sunniauqaf alone had risen to above 14,000."

The total number of waqf properties in Jammu and Kashmir is not known.

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Provision regarding survey of auqaf exists in the J & K Waqf Act, 1959 and sur-vey work was initiated in 1972, yet no progress has been made since. On thebasis of personal enquiries made in the State, this author is of the opinion thatthe number of auqaf in Jammu and Kashmir may be around 8,000.

Now, if we add the number of auqaf already known, to the number of auqafthat may be discovered in the seven States where no survey has yet been con-ducted1 and also the very many auqaf'that are detected every day through thesurvey now in progress in five different states," it may be easily assumed thatthe total number of auqaf in India exceeds 200,000 with correspondingincreases in valuation (1,500-2,000 million rupees) and annual income of 50million rupees.

The method of conducting surveys of auqaf under the different Waqf Acts12

has not been uniform. The Bengal Wakf Act, 1943 exclusively relies on volun-tary "enrolment" of auqaf by mutawallis or any other interested persons. Priorto the passing of the U.P. Muslim Waqf Act, 1936 (now replaced by the U.P.Muslim Waqf Act, 1960), the survey of auqafin U.P. was carried out by: (i) TheWaqf Enquiry Committee, presided over by the Hon'ble Justice Iqbal Ahmad(1929-30); (ii) the District Judges (1934); and (iii) the District Revenue Officers(1936).13 All these relied upon revenue records and made no on-the-spotenquiries. In 1936, therefore, when the U.P. Muslim Waqf Act was passed, itcontained provisions regarding survey. The Provincial Government appointedone Chief Commissioner of Waqfs, two Assistant Commissioners and 34 WaqfCommissioners. The survey procedure required examination of revenue aswell as registration records in each district, on-the-spot enquiries, and theadjudication of disputes by Waqf Commissioners. The survey, however, paidlittle or no attention to waq/-by-users such as graveyards,mosques, etc. withappertenant lands, cases in which there existed no waqf-deed, yet the propertywas allowed by its owner to be used as a waqf. In 1937, the valuation of theseproperties could have been insignificant, but now after forty five years, recentland development and industrialization have greatly enhanced their value.14

This fact has now to be taken into consideratio n.Another omission made in the 1937 survey of auqaf in U.P. was that some

historical buildings" which were waqf 'but were looked after by the Archaelog-ical Department of the Government of India were not included in the list ofauqaf.

The survey of waqf conducted in the country under the Waqf Act, 1954 gen-erally followed the scheme adopted in U.P. The Commissioners were requiredto make on-the-spot enquiries. However, during the initial survey work in theStates of Rajasthan, Andhra Pradesh and Madhya Pradesh, the Waqf Commis-sioners placed too much reliance on revenue records. So much so that the Gov-ernment had to reprimand them.16 But in Madras (now Tamil Nadu) the surveyhad already been completed by that time. It thus leaves some doubt regardingthe accuracy of survey work in Tamil Nadu particularly and in other abovementioned states generally.

In brief it could be said that the surveys of auqaf conducted in the variousIndian States do not reflect an accurate picture.


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The Role of MutawallisLet us now have a look at the role and working of mutawallis and other bodiesconnected with waqf administration. Their efficiency, or lack of it, directlyeffects the economic potential of auqaf.

Besides the duties imposed by the waqif on a mutawalli, the Waqf Act of 1954and the Waqf Acts of Bengal, U.P. and Jammu & Kashmir lay down severalother duties and responsibilities. For example, it is the legal duty of everymutawalli to apply to the State Waqf Board for registration of his waqf," to fur-nish reports, returns and other documents to the Waqf Board," to prepare andsubmit an annual budget to the Board for approval," and to arrange waqfaccounts to be audited by the Board.20 A mutawalli is prohibited from makingany settlement in a legal suit or proceedings in respect of waqf property underhim without the Board's approval.21 He is liable to be removed from his officeunder certain circumstances,22 and a penalty can be imposed on him for hislapses.23 In short, mutawallis are subject to strict supervision by the WaqfBoards.

In practice however these statutory measures have often proved ineffective.The practice of maintaining bogus accounts, fabrication of vouchers, failure torecord donations or offerings (nazar), illegal alienation of waqf properties,extracting of premium amounts (known as pugree) from prospective tenants,etc. are quite common.

In response to a questionnaire regarding the role and performance ofmutawallis, distributed by this author to persons connected with or interestedin waqf, 131 out of 150 respondants complained of these corrupt practices. Thewaqf administration cannot be placed on a sound footing unless mutawallishonestly discharge their duties.24 The practice of levying fines on erringfunctionaries loses sight of the fact that the amount of fines would in all casescome out of the coffers of the auqaf themselves. It would be better to placeerring mutawallis under suspension for some time and appointing a receiver ora caretaker in their place for the duration. Presently, no such provision existsin any of the Waqf Acts.

Working of Waqf BoardsIn the thirties, a new experiment was conducted in Bengal and U.P. tominimize State control and to leave the supervision of auqaf in the hands ofnominated or elected representatives of the community. Later this experimentwas extended to Bihar and Delhi (in 1947 and 1943 respectively). In the rest ofthe country, however, waqf matters remained dependent on expensive, cum-bersome and obligatory court proceedings under the Mussalman Waqf Act of1923 and the Civil Procedure Code of 1908. This situation was at last remediedby the Waqf Act of 1954 which provided for the establishment of a Waqf Boardin each State.25 These Boards were establshed for the superintendence of allauqaf in a State so as to ensure their proper management and administrationand the use of their income for the objects of dedication.

Audit of waqf accounts is one of the most important functions of WaqfBoards. It is also sadly the most neglected. In Bihar, for example, the Boardneglected the audit of waq/accounts so persistently that the Bihar Governmenthad to supersede the Bihar Subai Sunni Majlis-e-Auqaf'with effect from April,


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1971.26 According to available figures, the number of auqaf that were auditedby various Waqf Boards during eight years (1962-64,1965-66,1967-68,197074) is reflected in the following Table:

TABLE II

NUMBER OF WAQF ACCOUNTS AUDITED BY BOARDS

Name of Waqf Board TotalNo.of Average number ofauqaf Waqf Accounts auditedRegistered annually over eight years

1. Andhra Pradesh Waqf Board2: Assam Waqf Board3. BiharSubaiSunniMajlis-e-Auqaf4. Bihar Subai Shia Majlis-e-Auqaf5. Delhi Waqf Board6. Karnataka Waqf Board 9,1087. Kerala Waqf Board8. Kutch Waqf Board9. Lakshadweep Waqf Board

10. Madhya Pradesh Waqf Board11. Marathawada Waqf Board12. Orissa13. Punjab Waqf Board14. Tamil Nadu15. Rajastha16. U.P.Sunni Waqf Board17. U.P. Shia Waqf Board18. West Bengal

Audit of accounts is the only reliable means for a Waqf Board to knowwhether mutawallis are fulfilling the objects of waqf according to the waqifswishes. If this fundamental duty is not discharged by the Waqf Boards, as isclear from the above Table, they hardly justify their existence.

Waqf Boards generally depend on public zeal to help them catch cases ofmalversations.28 This is so because the Boards have practically no field staff forthis purpose. The ratio of field staff employed by the various Waqf Boards andthe total number of waqfs to be supervised is very low, as is clear from the fol-lowing figures:29

TABLEinNumber of Waqfs and Number of Servicing Field Staff

Name of the State TotalNo.of Total Number of FieldWaqfs to be Staff with thesupervised Waqf Board

1. Andhra Pradesh 34,227 49


34,22796

1,566175

4,195

3,6261,082

2653,544

19,6772,787

38,2212,278

18,0279,8772,0106,146

7.6nil464

8078.216.71.9Nil

51.6146.3

Nil36.5

Figures not available0.37

1267.740.158.1

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2. Assam3. Bihar Swnm

Shia4. Delhi5.Karnataka6. Kerala7. Kutch8. Lakshadweep9. Madhya Pradesh

10. Marathawada11. Orissa12. Punjab (including Haryana,

Himachal Pradesh & Chandigarh)13.Rajasthan14. Tamil Nadu15. West Bengal16. Uttar Pradesh (Sunni)

Shia

961,566

1754,1959,1083,6261,082

2653,544

19,6772,787

38,22118,0272,2786,1469,8772,010

NilNilNil

576

NilNil1010

Nil

132Not available

39

165

As if this was not enough Waqf Boards have allowed themselves to becomehotbeds of corruption and petty politics. The Punjab Waqf Board was superse-ded on precisely these grounds. So were the Waqf Boards in Bihar, TamilNadu and Andhra Pradesh.31 In MadhyaPradesh, the issue was really peurile.The Chairman of the Waqf Board, a non-Bhopali, tried to bring in a Secretaryof his own choice also a non-Bhopali. The Bhopali members (members fromthe city of Bhopal) raised so much resistance that the Chairman had to quit.The State government made an attempt to resolve the problem by suggestinga panel of three persons for the post of Secretary. But since none of these wasa Bhopali, the members raised the issue directly with the State Chief Minister.They then had the name of a Bhopali included in the panel, and maneuveredto select him as Secretary. While all this was going on the work of the Boardremained at standstill.32

In U.P., party politics among Board members and the resulting writ petitionin the High Court challenging the constitution of the Board, forced the U.P.government to appoint a Controller of Waqfs both for Shia and Sunni Boards.The situation remained thus for almost a decade.33

Many hopes were raised when the Waqf Act of 1954 elevated Waqf Boardsfrom being mere instruments of administrative supervision to the level of crea-tive agencies for social, educational and economic development of the Muslimcommunity. However, the failure of the Boards to discharge basic duties, con-tinued dissension and infighting among member and the supersession of oneBoard after another are evidence that the confidence reposed in them by thecommunity was hardly justified.

The Central Waqf CouncilLet us now examine the workings of the other two agencies—the Central WaqfCouncil and the Waqf Section of the Government of India — which are alsoconnected with waqf administration. The inter-state Waqf Conference con-


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vened in 1960 by the Government of India strongly recommended the creationof a Central Advisory Council "to review the administration of waqfs and theworking "of the Waqf Boards in order to recommend measures for betteradministration of waqf and affective working of Waqf Boards."34

In pursuance of this recommendation, the Government of India set up in1961 the Central Waqf Advisory Council consisting of 12 members and a chair-man for a period of three years.5 The successful working of this Council promp-ted the Government of India to give it statutory status. A new Chapter II-Awas inserted in the Waqf Act of 1954 providing for the establishment of a 20member Council "for the purpose of advising (the Government of India) onmatters concerning the working of Boards and due administration of waqf'.36

Every Board is statutorily obliged to give 1% of the annual income of everywaqf to run the Council. During 1979-80, the Council's main sources of incomewere: government grants (Rs. 38,06,000), interest on bank deposits (Rs.46,000), 1% contribution realised from the Waqf Boards (Rs. 1,75,000),arrears of 1% contribution (Rs. 8,16,000), income from 6% interest on build-ing loans granted by the Council to waqf institutions (Rs. 5,960).37

Apart from giving advice to the Government the main purpose behind theestablishment of the Council was to take up such schemes for the betterment ofthe community which could not possibly be undertaken by the Government.The Council has done very useful work in establishing a system for the develop-ment of urban waqf properties, awarding educational scholarships to needyMuslim students (Rs. 74,100 were given during 1982-83) and suggesting certainamendments in the Waqf Act of 1954. But when all is said and done the Councilhas generally failed to come up to expectations.

Since its establishment in 1965, the Council has constituted fifteen commit-tees.38 The heavy expenditure on some of the committees is not all commensu-rate with the results obtained. For instance, the Religious Education Commit-tee produced after seven year's of labour and considerable expense (Rs.20,000) only two Urdu booklets of doubtful utility. The Committee on Co-ordi-nation Between English Education and Deeni Taleem envisaged a new 4-yearcourse of studies which was neither job-oriented nor related to the future needsand prospects of its students, and which proceeded on the assumption that itwas easy to raise Rs. 2,500,000 through donations for this new scheme. TheWaqf Finance Corporation Committee took four long years (1965-69) to arriveat a simple conclusion that the idea of separate Central legislation dealing witha strictly denominational corporation was not practicable and need not be pur-sued further.

These drawbacks in the workings of the Council do not, however, impair thenecessity of having such a body. Given proper attention, it could develop intoa useful instrument for both the government and the community.

Waqf Section of the Government of IndiaAfter the enactment of the Waqf Act of 1954, the Central Government felt theneed for a separate Waqf Section to look after waqf matters. This was createdin 1958. Now permanently attached to the Union Ministry of Law, it has a staffof five headed by an officer of the rank of a Deputy Secretary.


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The main achievements of the Waqf Section consist of convening the Inter-State Waqf Conference of 1960, expediting the establishment of Waqf Boardsin all States and Union Territories; getting survey of waqf properties startedthroughout the country; framing drafts of the Public Waqfs (Extension of Limi-tation) Act of 1959,39 and amendments to the Waqf Act of 1954; establishing theCentral Waqf Council and supervising the administration of Dargah KhwajaSaheb, Ajmer. It also publishes an annual brochure called Review of WaqfAdministration.

However, since 1974 the Waqf Section has virtually ceased to be effective. Ithas left the initiative in all matters to the Central Waqf Council. It has preferredto maintain a silent posture, even when it could act on its own. For instance, theInterim Report of the Waqf Inquiry Committee submitted in 1973 and the FinalReport submitted in 1976 long remained under consideration of the Waqf Sec-tion. It is only recently that the Bill incorporating the suggestions made by theInquiry Committee was passed by the Lok Sabha in August, 1984 and is nowawaiting the President's assent. There were no issues of the Review of WaqfAdministration for the years starting 1976.

The Section has complained of lack of cooperation from Waqf Boards. Buthas never quite explained where the fault lies. In fact, the case of the PunjabWaqf Board leads one to supsect that it is the Waqf Section that is guilty ofinaction. At a meeting of the Punjab Waqf Board in Ambala in 1979 violencebroke out with a large number of outsiders participating. The police intervenedto maintain law and order. But even after the matter was reported to the WaqfSection, it did nothing.40

True, the Waqf Boards ignore queries from the Waqf Section. This isprobably because the Waqf Act of 1954 does not confer any power on the Cent-ral Government to requisition documents or information from the Boards. Itmay be therefore useful to empower the Waqf Section in this regard. It mayalso be worthwhile to consider elevating the Waqf Section to a Departmentallevel with a Research and Planning Section, a Vigilance Section, and an Auditand Accounts Section. This may infuse new life in the Waqf Section.

Re-organisation of Waqf BoardsThere is a definite possibility of improving the economic potential of auqaf'mIndia by making the Waqf Boards more effective. But the discouraging perfor-mance of these Boards so far does not justify the expenditure made on them41

and calls for the replacement of the present system with a powerful Waqf Com-missioner. This functionary should be a Muslim civil servant, assisted by aBoard consisting of four Muslim experts — in law, finance, administration andIslamic law (Shariah), to be nominated by the State Government concerned.The Commissioner is to discharge every function presently exercised by theBoard, except that it will be within the competence of the Board to (i) deter-mine the objects on which surplus waqf income should be spent; (ii) give assentto compromise law suits by or against mutawallis or Waqf Boards; (iii) appointmutawallis in cases where mutawalliship is in dispute or no person suitablewithin the term of the waqf-deed is available and (iv) formulate schemes for thebetterment of the waqf.

These powers of the Board are necessary in order to rule out abuse of powers


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by individuals (i.e. Waqf Commissioner) and to elicit the confidence of thecommunity in these sensitive matters.

In the matter of appointment of Waqf Commissioner and members of theBoard this author issued a questionnaire to all Waqf Boards and many respon-sible Muslims belonging to various walks of life (e.g. advocates, teachers, civilservants, judges, mutawallis, etc.). Seventy percent of the respondentsopposed the system of election,42 mainly because (i) the cost of maintaining andbringing up to date the list of voters, and the actual cost of conducting elections,would be too high; (ii) it would remain doubtful if suitable persons could beelected even after spending much time, labour and money; (iii) the mutawallisand/or persons having vested interests could capture all or the majority of seats,thereby making Waqf Boards pawns in their own hands; and (iv) electionamongst or by members of State Legislatures is also not free from danger, sincelegislators generally represent a political party or ideology and thus politicsmay creep into the Board with disastrous results.

Nearly all of the above referred to respondents favoured the system of nomi-nation by the State Government for reasons of practicability and inexpensive-ness. They were, however, of the firm view that the present system was notworking satisfactorily. Instead of political loyalities and affiliations, strongmoral fibre, religious inclination, character, zeal and drive should determinethe suitability of persons for nomination as Board members. The working ofWaqf Boards will surely improve if an adequate number of field and office staffis recruited. Presently the Boards feel that the 5% contribution out of theincome of every waqf, as prescribed by the various Waqf Acts is not adequateand must be raised to 7% or 10% .43

There is indeed a lot of merit in this demand. If the Boards are to runsmoothly and are expected to initiate a few socio-economic schemes of theirown, the rate of contribution should be raised to 10%, out of which 2% shouldgo to an educational pool for granting scholarships, etc. (see, supra n. 41 forsome figures relating to contributions).

Development of Urban Waqf PropertiesA large number of Urban Waqf properties are situated in busy commercialareas and posh localities, possessing immense potential for development. Withthis in view, the Central Waqf Council devised a scheme for giving loans on anominal interest of 6%,45 repayable in twenty equal half yearly instalments,the first falling due after two years from the date of disbursement of the loan.

According to this scheme the loan is given through a mortgage deed enteredinto by the concerned waqf along with the State Waqf and the Central WaqfCouncil. The property as it is, and in its developed form, are subject to themortgage. In cases of default, the mortgage is deemed to be a sale deed and theproperty mortgaged stands sold to the Central Waqf Council, which need notrefer this matter to anyone.

This scheme is financed by the Government of India which between 1974 and1983, gave a total of Rs. 268,00,000 to the Central Waqf Council for this pur-pose. Out of this amount, plus the amount of repaid loans, Rs. 217,52,000have been sanctioned for the development of urban waqf properties. Thedetails up to 1979 of such properties are as follows:47


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TABLE IV

Urban Waqf Properties Development 1979

Name of the State

1. Andhra Pradesh2. Bihar3. Delhi4. Karnataka5. Kerala6. Marathawada7. Rajasthan8. Tamil Nadu9.U.P.

Total

No. of Schemessanctioned

863643234

39

Total amount of loanssanctioned

45,57,000 Rs.9,23,0005,50,00015,18,0007,00,00012,50,0009,20,0008,00,000

21,00,000

1,33,18,000

Seen in the context of the large number of waqf properties with a potentialto be so developed, the number of properties now under development is verysmall. Such properties in Delhi alone shall be more than hundred.

If the scheme is to run on a permanent basis, a more stable source of incomethan the mere adhoc generosity of the Government has to be found. Such asource may be loans obtained from waqf institutions. If some percentage (say5%) of the annual income of every waqf is borrowed as loan, at least Rs.2,500,000 may be available every year for this scheme. The loan may carry a 5%interest. At its end, the Central Waqf Council may charge from the recipientsof the loans an interest of 6-7%. The balance of 1-2% may form an EducationalFund. The loans may be refunded in 20 half-yearly instalments starting twoyears after the disbursement of the loan.

Presently, the total amount of loans that are sought by the various waqfinstitutions from the Central Waqf Council for only 21 out of the above men-tioned 39 development schemes, comes to a total of Rs. 37,000,000. Againstthis, the total amount of loan that was sanctioned came only to Rs. 8,000,000.The Central Waqf Council feels that it could not meet the total demand so the>vaq/institutions have been told to make their own arrangements.48

Banks and other financial institutions like the Life Insurance Corporation ofIndia are hesitant to give loans on the security of waqf properties. They fearthat in the event of non-payment of debt, the legal complications may not allowthem to sell the waqf property. Thus as long as loans are not forthcoming fromoutside agencies, development schemes are to be financed out of loans col-lected from waqf institutions themselves. Probably, the Islamic DevelopmentBank may think of devising some means to help these waqf institutions.

Reduction of Expenses on LitigationHeavy expenses on litigation puts a constant drain on the financial resources of


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Waqf Boards and waqf institutions. The following figures give an idea of themagnitude of expenses/9

TABLEV

Expenditure on Litigation by all Waqf Boards

Year Amount (Rs.)

1970-711971-721973-741975-76

256,155299,372346,259291,617

In addition to the above, certain Waqf Boards, like Punjab, Rajasthan andTamil Nadu, have spent huge amounts on instituting suits for the recovery ofthousands of illegally occupied waqf properties. Although expenses incurredon this are not known in case of all the Waqf Boards in the country, yet an ideaof the huge amounts involved may be formed from the fact that the PunjabWaqf Board alone spent a total of Rs. 1,142,000 during five years50 on suchrecovery suits.

Now, if we combine the above expenditure with that which should beinvolved in instituting, etc. of the number of suits given in Table VI below, themagnitude of the expenditure becomes apparent.

TABLE VI

Law Suits for Recovery of Waqf Properties

Name of the State

1. Andhra Pradesh2. Delhi

3. Karnataka4. Kerala5. Marathawada6. Punjab7. Rajasthan8. Tamil Nadu

Total No.ofwaqfsunderadversepossession

Not available"severalthousand"

1007

2673,9481,038

Not available

No. of lawsuitsfiledfor theirrecoveryduring1975-1976

428

1200755

261451337

10,920

No. of othersuits during1975-76Filed Defended

725

-221141

-4

37

461135

-

359

77


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The figures given in Table VI are indicative not exhaustive. Moreover, andthis is important, all the above figures relate to litigation by or against some ofthe Waqf Boards. No figures are available to indicate the extent of expenditureon litigation incurred directly by thousands of waqf institutions in India. Theamount must be huge.

The best way of minimizing the expenditure on litigation is to establish WaqfTribunals for the adjudication of waq/disputes. Unlike courts of law, Tribunalsare not tied down to rigid rules contained in the (Indian) Civil Procedure Code,and the (Indian) Evidence Act. It ensures their flexibility, adaptability andnon-technicality, and above all, swiftness in deciding cases. The award of theTribunal may be made final, thus eliminating the delay involved in appeal afterappeal and consequent expenses. The finality attaching to the Tribunal'sawards need not scare us so long as the High Courts possess revisional jurisdic-tion.52

Large Scale Plantation of TreesThere are in India many awqaf which wholly or partly consist of fruit or timbertrees. It is especially so in the States of Kashmir, U.P., and Kerala.53 During hisfield-study of waqf administration in India, this author observed that even whenauqaf possess large pieces of land (and there are thousands of such) no effortsare made to plant either fruit or timber trees, which may greatly add to thevalue and income of these auqaf. There exists a clear possibility of plantingtrees on the boundaries of thousands of graveyards in the country. It may helpnot only to beautify them but also to minimize the chances of encroachmentthat has become such a common occurrance nowadays.

If all the bodies connected with auqaf or their administration launch a driveto impress upon the mutawallis and beneficiaries the obvious usefulness of thescheme, something positive may yet come out.

Exemption from Rent Control LawsIn case of many waqf properties like houses, shops, and godowns, the rentsfixed long ago stand frozen at a very low level, completely out of alignment withcurrent value and rates. Now without entering into the reasons why themutawallis in the past did not increase the rent from time to time, consider thecase of a mutawalli who now desires to bring the rent at par with the marketvalue. He cannot do so because of Rent Control Laws in all the States. Theselaws allow only marginal increases, which in case of waqf properties appearonly to be an eye-wash.

In 1960, the Inter-State Waqf Conference convened by the Government ofIndia took note of this problem and recommened that54

the State Government be requested that the waqf properties whichare rented be exempted from application of control of Rent andEviction laws in force in different States on the analogy of premisesbelonging to Government or local authorities, so that where theyhave been let out on nominal rents by Mutawallis, the Boards maybe able to revise the rent at market rate.

As matters relating to rent and eviction are legally within the competence ofthe State, the Government of India cannot directly legislate on these matters.


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Consequently, the Government of India made a request to all State Govern-ments to exempt auqaf horn Rent Control Laws.35 But even after the lapse ofsixteen years, only the States of Andhra Pradesh, Bihar, Kerala, Karnataka,Tamil Nadu, and Rajasthan, have heeded the request.56

The Government of U.P. grants a conditional exemption depending upontwo important requirements: (i) that the entire income of the educational orcharitable institution is utilized for purposes of that institution, and (ii) sepa-rate justification in each of the thousands of cases had to be presented to theGovernment before claiming exemption from the purview of the Rent ControlLaw.57 Clearly, this is a herculean task. It is enough to state that religious andcharitable institutions by their very nature deserve such exemption. No morejustification should be needed or required.

The Government of Gujrat also gives a qualified exemption; individualauqaf are required to apply for this to the State Government through the Col-lector of the District.58

In the 14th meeting of the Central Waqf Council held on 3 April, 1976 aresolution was unanimously adopted demanding exemption of wag/propertiesfrom Rent Control Laws. However, it is a sad commentary on the state ofaffairs that the resolution of the Council, an agency under the Government ofIndia, has not been heeded.

Recently, when an All-Indian Auqaf Conference was held in New Delhi, itpassed a strong resolution demanding the exemption of auqaf from Rent Con-trol,59 but without any effect.

ConclusionAs seen in the first part of this paper, there are in India a very large number ofwaqf properties having substantial value and income. If we add to it the unac-counted amounts of nazar (offerings) that are generally presented at thethousands of dargah (tombs of Muslim saints) in India, the income from auqafmay go up further. Unfortunately, the total income from nazar is not known.What is known, however, is that this income is not judiciously spent.60 Ifrestraint is exercised and part of the offerings are set aside for general welfareof Muslims, and if this money can be pooled on the national level, very largeamounts may be available annually for the general welfare of Muslims.

One may ask how far is it permissible to divert nazar income to objects otherthan the use of the dargah, even when such objects may be for the generalbenefit of the Muslim community? If we concede that the nazar made at anydargah belongs to it, a question that immediately arises is: do the bricks andmortar of the dargah need to be regarded more sacred than the philanthropicideals of the holy saint who lies buried there?

There can be no better utilization of the surplus income from waqfs than inpromoting educational and economic development of the community. "It isindeed true to say", says A.M. Khusro, "that the idea of investment in man,that is, upgrading of Muslim human material through education and traininghas not caught on so far. The great majority of Mutawallis and managers do notthink in these terms... to promote skill formation among young Muslims."61

The Waqf Boards could play a constructive role by asking the mutawallis to


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reserve a part of their waqf income for such purposes in their budgets, andnothing would be better if all such amounts could be pooled together for humancapital formation. The arguments opposing this move have their roots in pri-vate profit motivations.

At the same time there are many auqaf in all parts of India whose objectshave ceased to exist, or auqaf with general charitable goals. The income fromall such auqaf may without reservation be spent on the above constructiveobjects.

The Waqf Inquiry Committee appointed by the Government of India inDecember, 1970,62 which submitted its final report in 1976 (interim reportinl973), also recommended that the mutawallis spend more liberally on objectsnearer to the welfare of the poor and the educational promotion of Indian Mus-lims.

This author is of the view that no provision of Shariah may be infringed if asmall (2%) share out of the income of every waqf in the country is taken by wayof "Education Cess". This small 2% deduction may neither push the objects ofany waqf beyond fulfilment nor go against the general policy of Shariah norantagonize the community. And even if some still insist on labelling it as adeviation from the pristine principles of the Shariah, it may be excused in thelight of the special circumstances prevailing in India.63

In the final analysis no matter what administrative or statutory measures aretaken to tone up waqf administration, unless Muslims themselves do not makesome self-introspection, no improvement will come.

An aggressive scheme of developing the urban waqf properties seems to bethe answer. The income from such waqfs could be increased a thousand timesin a small span of time. This author is of the view that there are at least 5,000urban waqf properties in India that could be developed in less than ten yearsto give an additional income of at least Rs. 500,000,000. The ony question isfrom where to obtain the necessary finances to undertake this developmentaltask. Surely, an Islamic Bank or financial institution could be of help.

Lastly, a word of caution. It may not be correct to calculate the percentageof income on the basis of the available total value of auqaf in India. It is verylow (about 3%), because not every waqf whose value is added to the total valueis income-giving. For example, the Jama Masjid of Delhi, is assessed by theWaqf Commissioner at Rs. 10,000,000. This huge investment gives no income.Similarly, nearly all the graveyards, mosques, imambaras and even some of thedargahs have high valuation figures but practically no income. The exactnumber of such unproductive auqaf, though not known, is likely to be quitesubstantial.

With this note of caution, let us conclude by reminding ourselves of the vasteconomic potential that waqf funds in India possess for raising the Muslims ofIndian from economic and educational backwardness.

Notes

1. These figures were mentioned by Humayun Kabir while addressing the Muslim members ofthe Indian Parliament, on September 6, 1963 in New Delhi. See, memeographed circularissued by the Waqf Section, Ministry of Scientific Research and Cultural Affairs, Govern-ment of India, Sept. 1963, p. 1.


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2. The survey of waqf is conducted by Waqf commissioners appointed by the State Govern-ments under the various waqf Acts. The cost of survey, however, is payuable out of waqfincome (e.g. Section 7 of the Wakf Act, 1954, also Section 7 of the U.P. Muslim Waqf Act,1960).

3. The five State are: Andhra Pradesh (Telangana Region), Kerala, Delhi, Orissa and UttarPradesh (U.P.). Information obtained from the Waqf Section, Government of India.

4. Bihar, Gujrat (excluding Kutch), Himachal Pradesh, Jammu & Kashmir, Maharashtra(excluding Maradhawada Region), Tripura and Andaman & Nicobar Islands.

5. Facts and figures personally collected by this author from the Office of the A.P. WakfBoard, Hyderabad during 1968.It should be noted here that the deputy tehsildas also did not do much field-work and mainlyrelied on informations given in the revenue records.

6. See, "An Account of the Survey of Waqf Properties and Allied Matters in Rajasthan: 1957-64," p. 17. Mimeographed copy (n.d.) obtained from the Rajasthan Waqf Board.

7. Notification No. 1309-(l)/IX-168-37, dated June 29,1937 issued by the Government of U.P.Also, "The Survey Report of Wakf Properties" submitted in 1938 by the Chief Commis-sioner of Waqfs, U.P. Typewritten copy of this is available in the U.P. Sunni Central WaqfBoard's Office at Lucknow.

8. See, Nizam-e-Auqaf, June, 1980, pp. 36-37. This is a six monthly official Journal in Urdulangaage published by the Central Waqf Council, New Delhi. The Council is a semi-officialbody of the Government of India constituted under Waqf Act, 1954.

9. During 1973 when this author examined the administration of Waqf in Jammu & Kashmirunder a project sponsored by the Indian Council of Social Science Research, he found thatmore than 2,000 wakfs were under the supervision of Indara-i-Auqaf Islamiah, a non-offi-cial organisation under the patronage of the State's Chief Minister, Sheikh Abdullah. Themanagement of many important auqaf was controlled by individuals (e.g. Moulvi Mohd.Farooq managed Srinagar's Jama Masjid; Sheikh Basheeruddin controlled the dargah(tomb) of Syed AH Hamdani at Srinagar), or by local Waqf Committees constituted by theState Government under the J & K Waqfs Act, 1959. Yet another large number of wakfs aresupervised by mutawallis. Incomes and ejxpenditures of these auqaf are generally notrevealed.

10. Supra n.4.11. Supra n.3.12. The Waqf Acts are:

a) The Waqf Act, West Bengal, Jammu & Kashmir, Gujrat and Maharashtra.b) U.P. Muslim Waqf Act, 1960 applied to U.P.c) Bengal Waqf Act, 1934 applicable to West Bengal.d) In Gujrat & Maharashtrja, auqaf art governed by the Bombay Public Trusts Act, 1954

applies.13. See, "Survey Report....", Supra n.7.14. In particular, such is the case in Ghaziabad, Kanpur, Lucknow, Agra, Saharanpur, Dehra-

dun, Mussoorie, Nainital and Allahabad. In Faridabad and Kanpur, which are industrialtowns, land value has appreciated up to 500% or more.

15. For instance, Tajganj Waqf (Agra), Atala Mosque (Janunpur), Fatehpuri Mosque (Agra),etc. were not included in the lsit oiauquf.

16. See, Review of Waqf Administration: 1962-63 (an annual survey of Maladministration pub-lished by the Waqf Section, Government of Indian).

17. Section 25,29 and 44 of the Waqf Act, 1954, U.P. Muslim Waqf Act, 1960 and Bengal WaqfAct, 1934 respectively (hereinafter referred to as Waqf Act, U.P. Act and Bengal Act).

18. Section 15, 49(b) and 57(1) (b) and (c) of the Waqf Act, U.P. Act and Bengal Actrespectively.

19. Section 31,32 of the Waqf Act, S.48 of Bengal Act and S.50 of U.P. Act.20. Section 33,49 and 51 of the Waqf Act, Bengal Act and U.P. Act respectively. Under the J

& K Waqf Act, 1959, there is no such provision, also no provision regarding submission ofannual budget, probably because all the income of every waqf vested in the Committee ofAuqaf constituted by the State Government unde the Act, whose accounts are to be auditedannually under Section 31 of the Act.

21. Sections 60,69, and 69 of the Wakf Act, Bengal Act and U.P. Act respectively. The BengalAct says that instead of Waqf Board's consent, the Mutawalli shall obtain the sanction of the"trying court". The Kashmir Act is silent on this point.

22. Sections 43, 27, 58 and 55 of the Waqf Act, Kashmir Act, Bengal Act and U.P. Act


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respectively. (Grounds of removal include mental incapacity, misappropriation of funds,conviction for any criminal breach of trust, moral turpitude, etc.)

23. See Sections 41,7 and 5 and 54 of the Central, Bengal and U.P. Acts respectively.24. An informative booklet — Waqf Administration — was published in English and Urdu by

the Waqf Section, Government of India, in 1961, mainlt to educate Mutawallis. Other suchbooklets were published in 1965 and 1966. In 1967, the Madras Waqf Board published twouseful booklets entitled: Code of Conduct of Mutawallis, and Audit of Accounts:Instructions.

25. Waqf Boards have been constituted under the Waqf Act, 1954 in these States and UnionTerritories of India: Andhra Pradesh, Andaman & Nicobar Islands, Assam, Karnataka,Kerala, Kutch, Lakshadweep, Madhya Pradesh, Marathawada, Orissa, Punjab (a compo-site Board governing wakfs also in Haryana, Himachal Pradesh and Chandigarh). Rajas-than, Tamil Nadu and Tripura.

26. Fortheorderofsupersession.seeMemoNo. RE(W)2/70-5670datedNov.9,1970issuedbythe Bihar Government to the Sadr (chairman) of the Board.

27. Figures for this Table are taken from the Review of Waqf Administration for the eight years.Op. cit. supra n.16. Average number in column 3 of the Table stands for the sum total of allwag/accounts in one state audited during eight years, divided by eight.

28. In response to a questionnaire issued by this author to Waqf Boards, it was admitted by theBoards that only 3 out of 10 cases of malversation are detected by their staff, rest by thegeneral public.

29. Table prepared with the help of figures in Review of Waqf Administration: 1963-64, but up-dated as far as possible courtesy Waqf Section, Government of India.

30. For the supersession order, see Memo No. 38(219)-3J-63/40283, dated September 26,1963from the Commissioner for Home Affairs and Secretary to Government, Punjab to theChairman, Punjab Waqf Board.See also, observations of the Punjab & Haryana High Court regarding internal dissensionbetween Board members, corruption and nepotism, in the case of Waqf Board for Punjabvs. State of Punjab, P.L.R. (1966) Punjab, 132-43.

31. Information collected personally by this author from the offices of these Waqf Boards.32. Observations are based on this author's correspondence with an ex-Chairman of this Waqf

Board.33. See, Kazi Mohd. AH Vs. Shahid Fakhri, W.P. No. 724 of 1969 before the Lucknow Bench

of the Allahabad High Court which died a natural death when both the petitioner andrespondent died. Later on, another writ against the constitution of both the Shia and SunniBoards was filed, and the U.P. Govt. had to amend the U.P. Act in order to constitute theBoard.

34. "Proceedings of the Inter-State Waqf Conference, 1960", p. 22. Mimeographed copy issuedby the Govt. of India.

35. See, Resolution No. 4(136) 60 MW, dated Sept. 20,1961, Union Ministry of Irrigation andPower.

42. Both under the U.P. and Bengal Acts, Waqf Board is constituted partly through electionand partly nomination. Out of eleven members, 7 are nominated in case of Bengal and 2 inU.P., while the numnber of elected members in Bengal is 4 and 8 in U.P. One member isco-opted in U.P. by the 10 members already there by nomination and election. But he hasto be mutawalli of a waqf whose minimum annual income is Rs.3,000.

43. This is the impression the author formed when he visited the various Waqf Boards in thecountry.

44. Details of securing loan are given in a brochure: Scheme For the Development of UrbanWakf Properties, issued by the Central Waqf Council, New Delhi.

45. Presently, the amount of interest so realized is credited to an Education Fund operated bythe Central Waqf Council for giving scholarships to needy Muslim students. In 1982-83, Rs.3,90,735 were realized as such and Rs. 2,31,820 were desbursed on educationalprogrammes. Vide, Annual Report of CWC, 1982-83. Mimeographed copy obtained fromCWC.

46. CWC Annual Report, 1982-83, p. 3.47. Ibid.48. Supra n.8 at 18.49. See, Review of Waqf Administration for the years cited.50. Year-wise expenditure was: 1967-68 (Rs.350,000), 1968-69 (Rs.250,000), 1973-74

(Rs.242,000), 1974-75 (Rs.150,000), 1975-76 (Rs.150,000). Figures taken from the budgets


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of the Board for the years cited.51. The figures related to litigation instituted by Waqf Boards during 1975-76. See Review of

Waqf Administration: 1975-76, pp. 69-67.52. Waqf Tribunals exist unde the U.P. Muslim Waqf Act, I960. Section 76 of the Act makes their

award final. However, Tribunals in U.P. are not very effective because S. 72 of the Actrequires them to follow both the Civil Procedure Code and the Evidence Act, making themjust ordinary Law courts.The Waqf Inquiry Committee also recommends the establishment of Waqf Tribunals on theHnesofU.P. without suggesting for any improvements. See Report, p. 76, published by theUnion Ministry of Law, New Delhi, 1976.

53. For instance, a mile long jungle is dedicated as waqf in favour of Dargah of Baba Reshi nearGulmarg in Mannu & Kashmir. The Forest Department of the State Government look afterits leasee.Similarly, in Lucknow and Malihabad, mango orchards and in Kerala, Lakshadweep andTamil Nadu, coconut plantations are dedicated as waqf. During his field study, this authorhimself saw many such orchards and plantations.

54. Proceedings of the Inter-State Waqf Conference held on December 26 and 27,1960, p. 21.Mimeographed copy obtained from the Government of India, Ministry of Irrigation &Power.

55. See, Proceedings of the First Meeting of the Central Waqf Council, held in New Delhi onFebruary 27 and 28,1965, p. 15.

56. Supra n.8 at 33, and also information personally collected from the Waqf Section, Govern-ment of India.

57. See, D.O. No.3866/VII-A-II-698/72, dated October 27, 1972, from Secretary (Waqfs),Government of U.P. to the Secretary, U.P. Shia/Sunni Central Waqf Boards, Lucknow.

58. Notification No. G.H. JH., 34 B.R.. 2064-, dated June 26,1964, isued by the Public WorksDept., Government of Gujrat.

59. Resolutions passed by All-India Auqaf Conference, New Delkhi: February 16-18 under theauspices otJamiat Ulama-i-Hind, Lucky Press, Delhi, 1979, p. 20.The conference was attended by nearly 200 persons from all over India. Apart from indi-viduals, various parties that took part in it included — Indian Union Muslim League; MajlisMushawarat; Jamaat-i-Islami Hind, Muslim Personal Law Board; Muslim Majlis, etc. SeeResolutions, loc. cit., kpp. 23-24.

60. During 1975-76, for example, the income (from all sources) of the famous Dargah ofAjmeer—was Rs.485,865 while the expenditure was Rs.526,138. The main item of expen-diture was "miscellaneous expenditure" amounting to Rs. 387,737. Large amounts werespent on sweets, flowers, grave covers (gabr-posh), Sandal (sandal wood), etc. See, Reviewof Waqf Administration, 1975-76, p. 34 and also personal observations at Ajmer.Similarly, income at the dargah of Bahraich in U.P. was Rs.65,106 during 1962-63, so wasthe expenditure. Income rose to Rs.92,522 during 1965-66, so did the expenditure and in1969-70 when the income became Rs.191,921, the expenditure also jumped to Rs.191,581.Out is this, contingent expenses on Urs (death anniversary of the saint) was Rs. 17,775whereas regular allocation was only Rs.10375. There are many such examples. (Figuresobtained from Dargah Office.)

61. A.M. Khusro's forward to S. Khalid Rashid, Waqf Administration in India, New Delhi,1978, pp. VIII-IX.

62. Resolution No.F-10(4)/69-Waqf, dated Dec. 9, 1970. Ministry of Law, Government ofIndia (Legislative Dept.).See also Final Report — Wakf Inquiry Committee, Ministry of Law, Government of India,1976. The Committee consisted of 3 members of Parliament.

63. A resolution somewhat on these lines was passed by the All-India ,/luga/Conference, 1979.See Supra n.59 at 21.

64. The information was obtained from the office of the Delhi Wag/Board, Delhi during 1970.The system of evaluation of historical buildings adopted by the Waqf Commissionersreflects no definite method but a kind of guess work.

Select BibliographySyed Khalid Rashid, Waqf Administration in India, New Delhi, 1978.Syed Athar Hussain & Syed Khalid Rashid, Waqf Kaws & Administration in India, 2nd ed.,Lucknow, 1973 (first published in 1968; reprinted 1979.Syed Khalid Rashid, "Administration of Waqfs in India: Some suggestions," Islamic Law


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in Modern India, New Delhi, 1972.Syed Khalid Rashid, "Waqf Funds in India" National Herald, June 5, 1977, New Delhi.Syed Khalid Rashid, "Waqfs in India: Potential Instruments for Social Change" SundayWorld (Hindustan Times), October 7, 1973, New Delhi.B.G. Verghese, "Waqf Funds for Muslim Progress", being the editorial comment of theHindustan Times on the article listed above under No. 5.Hafiz Ali Bahadur Khan, Delhi Ki Nasajid (Urdu), Delhi, 1963.Moulvi Mohd. Yusuf Review of the Mohammadan Law of the Waqf, Calcutta, 1906.The Central Waqf Council and its Activities (1964-65 to £969-70), Central Waqf Council,New Delhi, 1971.Activities of the Punjab Waqf Board: 1965-70, (mimeographed), issued by Punjab WaqfBoard, Ambala Cent., Haryana, 1972.Waqf Administration: 1961, a booklet published by the Waqf Section, Government of Indiain 1962.Activities of the Punjab Waqf Board: 1965-70, (mimeographed), issued by Punjab WaqfBoard, Ambala Cent., Haryana, 1972.Waqf Administration: 1961, a booklet published by the Waqf Section, Government of Indiain 1962.Review of Waqf Administration, from the year 1962 to 1976, annually published by the WaqfSection, Government of India.The Concept and Purpose of the Central Waqf Act (The Practical Aspect), Waqf Section,Government of India (1965.Proceedings of the Inter-State waqf Conference 1960 (Mimeographed), Ministry of Irrigationand Power, Government of India.Proceedings of the Conference of the Chairmen and Members of the District Waqf Commit-tees of Mysore State, published by thje Mysore (now Karnataka) Wakf Board, Bangalore,1966.Report of the Dargah Khwaja Saheb Committee of Enquire, Ministry of Home Affairs,Government of India, New Delhi, 1949.Final Report of the Waqf Inquiry Committee, Ministry of Law, Government of India, NewDelhi, 1976.Nizam-e-Auqaf (Urdu Journal) published at irregular intervals by the Central WaqfCouncil, New Delhi.An Account of the Survey of Waqf Properties and Allied Matters in Rajasthan: 1957-64(mimeographed copy of Waqf Commissioner, Rajasthan's Survey Report.Report of the Hindu Religious Endowments Commission: 1960-62.Administration Report of the Dargah Khwaja Saheb, Ajmer from the year 1957 onwards(annually published by the Dargah Committee, Ajmer).


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Documents

Economic potential of Auqaf in India