Section 31 in The Waqf Act, 1995
Title: Prevention of disqualification for membership of Parliament
It is hereby declared that the offices of the Chairperson or member 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 1[or a Member of Union territory Legislature or a Member of a State Legislature if so declared under a law made by the appropriate State Legislature.]
1 Ins. by s. 21, ibid. (w.e.f. 1-11-2013).
Title: Powers and functions of the Board
(1) Subject to any rules that may be made under this Act, the general superintendence of all 1[auqaf] 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 1[auqaf] 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 1[auqaf] were created or intended:
Provided that in exercising its powers under this Act in respect of any 2[waqf], the Board shall act in conformity with the directions of the 3[waqif], the purposes of the 2[waqf] and any usage or custom of the 2[waqf] sanctioned by the school of Muslim law to which the 2[waqf] belongs.
Explanation.--For the removal of doubts, it is hereby declared that in this sub-section, "2[waqf]" includes a 2[waqf] 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 2[waqf];
(b) to ensure that the income and other property of 4[auqaf] are applied to the objects and for the purposes for which such 4[auqaf] were intended or created;
(c) to give directions for the administration of 4[auqaf];
(d) to settle schemes of management for a 2[waqf]:
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 2[waqf] consistent with the objects of 2[waqf];
(ii) in what manner the income of a 2[waqf], the objects of which are not evident from any written instrument, shall be utilised;
(iii) in any case where any object of 2[waqf] has ceased to exist or has become incapable of achievement, that so much of the income of the 2[waqf] 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 without 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 2[waqf], by the Sunni members of the Board only; and
(ii) in the case of a Shia 2[waqf], 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 mutawallis and to arrange for auditing of account of 4[auqaf];
(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 2[waqf];
(i) to institute and defend suits and proceedings relating to 4[auqaf];
5[(j) to sanction lease of any immovable property of a waqf in accordance with the provisions of this Act and the rules made thereunder:
Provided that no such sanction shall be given unless a majority of not less than two-thirds of the members of the Board present cast their vote in favour of such transaction:
Provided further that where no such sanction is given by the Board, the reasons for doing so shall be recorded in writing.]
(k) to administer the 6[Waqf] Fund;
(l) to call for such returns, statistics, accounts and other information from the mutawallis with respect to the 6[waqf] property as the Board may, from time to time, require;
(m) to inspect, or cause inspection of, 6[waqf] properties, accounts, records or deeds and documents relating thereto;
(n) to investigate and determine the nature and extent of 6[waqf] and 6[waqf] property, and to cause, whenever necessary, a survey of such 6[waqf] property;
7[(na) to determine or cause to be determined, in such manner as may be specified by the Board, market rent of the waqf land or building;]
(o) generally do all such acts as may be necessary for the control, maintenance and administration of 8[auqaf].
(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 6[waqf] 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 6[waqf] land, which is a 6[waqf] property, 9[has the potential for development as an educational institution, shopping centre, market, housing or residential flats and the like], market, housing flats and the like, it may serve upon the mutawalli of the concerned 6[waqf] 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 be executed in terms of the notice, it may, 10*** 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 6[waqf] funds or from the finances which may be raised on the security of the properties of the 6[waqf] 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 maintenance of such works and other legitimate charges 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 6[waqf] to the extent of the average annual net income derived from the property during the three years immediately preceding 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 handed over to mutawalli of the concerned 7[waqf].
1. Subs. by s. 4, ibid., for "wakfs" (w.e.f. 1-11-2013).
2. Subs. by Act 27 of 2013, s. 4, for "wakf" (w.e.f. 1-11-2013).
3. Subs. by s. 4, ibid., for "wakif" (w.e.f. 1-11-2013).
4. Subs. by s. 4, ibid., for "wakfs" (w.e.f. 1-11-2013).
5. Subs. by s. 22, ibid., for clause (j) (w.e.f. 1-11-2013).
6. Subs. by Act 27 of 2013, s. 4, for "wakf" (w.e.f. 1-11-2013).
7. Ins. by s. 22, ibid. (w.e.f. 1-11-2013).
8. Subs. by s. 4, ibid., for 'wakfs" (w.e.f. 1-11-2013).
9. Subs. by s. 22, ibid., for "offers a feasible potential for development as a shopping centre" (w.e.f. 1-11-2013).
10. The words "with the prior approval of the Government," omitted by s. 22, ibid. (w.e.f. 1-11-2013).
Title: Powers of inspection by Chief Executive Officer or persons authorised by him
(1) With a view to examining whether, by reason of any failure or negligence on the part of a mutawalli in the performance of his executive or administrative duties, any loss or damage has been caused to any 1[waqf] or 1[waqf] property, the Chief Executive Officer 2[or any other person authorised by him in writing] with the prior approval of the Board, 3***, may inspect all movable and immovable properties, which are 4[waqf] 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 4[waqf], 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 4[waqf] as may be called for by the person making the inspection and furnish to him such information relating to the 4[waqf] as may be required by him.
(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 4[waqf] property, or had incurred irregular, unauthorised or improper expenditure from the funds of the 4[waqf], 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 mis-appropriated, 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 4[waqf], 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-section (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.
1. Subs. by Act 27 of 2013, s. 4, for "wakf" (w.e.f. 1-11-2013).
2. Ins. by s. 23, ibid. (w.e.f. 1-11-2013).
3. The words "either himself or any other person authorised by him in writing in this behalf" omitted by s. 23, ibid. (w.e.f. 1-11-2013).
4. Subs. by Act 27 of 2013, s. 4, for "wakf" (w.e.f. 1-11-2013).
Title: 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 1[waqf].
1. Subs. by Act 27 of 2013, s. 4, for "wakf" (w.e.f. 1-11-2013).
Title: 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 the property; or
(b) is about to remove the whole or any part of the property from the jurisdiction of the Chief Executive Officer,
he may, with 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.