Friday 12 May 2017

The Black Diamonds (Awqaf) in India || Nehal Ahmad Nadwi

                          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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