The Black
Diamonds (Awqaf) In India
Author:
Nehal Ahmad
B.A.LL.B
(HONS) 2nd Year, Faculty of Law, AMU
Introduction
The word “Waqf” has been derived
from the Arabic word “Waqufa. Its etymological meaning is to detain or hold or
tie up. Meaning thereby detention or tying up of property in perpetuity. It is the
endowment of moveable and immovable property by Muslims for the welfare of the
poor, the needy and for maintaining properties dedicated to Mosques, Tombs,
Orphanages, Shrines, Imambaras, Madrasas, etc.There is no specific verses in
the holy Quran regarding Waqf. It, however, has been interpreted by the Muslim
jurists who developed the institution of Waqf in the light of Quranic verses.
Interestingly, Waqf is a permanent mechanism from within the economy so as to
transfer the income from the rich to the poor in the form of charity in order
to take care of poor people. It aims at the eradication of poverty and to
achieve equality and human development. Sadly enough, in spite of owing
property spanning 600,000 acres Muslims are one of the poorest communities in
our country.
Historical
Development of Waqf
Islam strongly endorses
socio-economic, welfare friendly practices and charitable deeds. So far as the
concept of Waqf in sharia is concerned it is regarded as the empirical
embodiment of this very proposition. The origin of Waqf goes to fourteen
centuries back and is known to have been first practiced by the prophet
Mohammad (peace be upon him) for public utility and social causes. In fact,
when the prophet Mohammad (peace be upon him) migrated to Madina in 1st
Hijri. The land on which the prophet (be peace upon him) laid the foundation of
Masjid Nabawi belonged to two orphans. The prophet wished to buy the land and
insisted to pay the price, but the orphan said “ No by Allah Almighty we will
not take price, and we will take it from the Almighty Allah”. Thus, the 1st
Waqf of Islam came into existence. It was first drafted by the second caliph
Hazrat Umar (R) in 6th Hijri. It was created for the poor, the
needy, and the orphans as they were regarded as the most prominent
beneficiaries from the Awqaf. In India, the institution of Waqf is 800 old. The
Muslim rulers, in fact, donated huge lands for charity. The earliest Waqf was
created by Sultan Moizuddin Sam Ghaori in around 1185 A.D. He dedicated two villages
as Waqf to meet the expenses of Jama Masjid of Multan. During the Mughal rule
also the Waqf institution was established and old Waqfs were provided full
state protection. At the time of Mughal it was used for the religious
endowments of all communities and it was looked upon without any discrimination
of cast and creed. The end of Muslim sultans implied a loosening of control
over the administration of Awqaf. Since then throughout the British rule,
numbers of legislations have been formulated to administer the Waqf property.
Remarkably, in post- independence
India, it was highly anticipated that the responsibility for the administration
of Waqf would be handed over to the Muslim community as they have the well-
established law on Waqf. Unfortunately, it never happened. Under the provisions
of 1954 Act, the government of India became the honcho to administer the Waqf
property in the country. It could be considered as the opening door for undue
political intervention, manipulation and corruption in this religious
institution.
The Definition of Waqf
The term Waqf has been defined by
different statutes with slight differences from time to time. The Mussalman
Waqf validating Act- 1913 defined Waqf in the most comprehensive way under
section two of the Act in the following manner.
Waqf means the permanent
dedication by a person professing Islam faith, of any property for any purpose
recognized by the Muslim law as religious, pious and charitable deeds. While on
the other hand the waqf act 1954 says Waqf means the permanent dedication by a
person professing Islam of any movable and immovable property for any purpose
recognized by the Muslim law as pious, religious and charitable.
The
Waqf legislation currently enforce in India
1.
Mussalman
Waqf Validating Act 6 of 1913.
2.
Dargah
Khawaja sahib Act, 36 of 1955.
3.
Jammu
and Kashmir Waqf Act, 11 of 1978.
4.
Waqf
Act 43 of 1995.
Legal
Status
Awqaf, in India, at present, is
regulated by the Waqf Act 1995. It consists of 113 sections, divided into 9
chapters, encapsulates the legal status of Waqf, its technicalities, rights and
obligations of the related authorities as well. Under the Waqf act of 1995, the
waqf board of specific state, including the Union territory of Delhi are required
to have 7 to 13 members, majority of them are elected from amongst the member
of Parliament, state legislature, bar council, trustees of Waqf which have an
annual income of 100000 or more. The 1995 act was passed in response to the
recommendations of the Waqf inquiry committee by the government of India in
1976. The committee strongly advises the government for minimum interventions,
at the same time democratize the selection procedures for the administration of
Waqf. The Sachar committee report revealed that it was never implemented into
reality.
Sachar
Committee Report
According to the Sachar
committee’s report, there are 490000 registered Waqf properties in the country.
Majority of them are registered in West Bengal and Uttar Pradesh- 148000 and
122839 respectively. The total area that Waqf properties encroach is more than
six hundred thousand acres, and their value is estimated to be INR 60 billion.
It is noteworthy that the official income from these Waqf properties is INR
1.63 billion per annum amounting to a meager rate of return of 2.7 percent.
According to the report if these properties are put into efficient and
marketable use they can generate a minimum return of ten percent which is 120
billion Indian rupees. The Sachar committee even notes “it is quite paradoxical
that the present Indian state in which six hundred thousand acres of land have
been existing since more than one century there still resides almost 38% Muslims
in absolute or relative poverty.
Conclusion
The conclusion can easily be
drawn from the above discussions that Waqf boards apart from the government
official who will always be less than representative shall have –
(a) Representative
of Muslim organization
(b) Representative
of eminent Islamic theology scholars
(c) Representative
of Muslim members of parliament
(d) Representative
of Muslim members of Assembly of the State.
(e) Representative
of Muslim members of state bar council.
If one really
wants to curb the issue of the Waqf properties in the hands of Motawallis under
the Act of 1995 then they should be removed from the office on the basis of
their performance. The Waqf Board (Sunni and Shia) should decide what should be
the rent of the property, while fixing the rents care must be taken of the
market value rent. The government should enact a special provision to vacate
the Waqf properties by the tenants if they are not paying the revised rent. In
other words, there is a strong demand for much needed changes in the
methodology, planning, policies and strategies and formulae of institution’s
administration.
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