Property Rights & Cultural References in Muslim Personal Law

Wakf Simpliciter

Simply put, wakf is any movable or immovable property "capable of being used without being consumed"^[1] wherein the ownership lies with God while the fruit of its usufruct is with the community, and in particular with the needy. Our country has been witness to a wide set of laws governing wakf management, disenchantment with which led to newer amendments. Wakf management works as a two-tier mechanism in India^[2]. Every State is mandated to have a State Wakf Board^[3] with a Central Wakf Council (hereinafter referred to as CWC) headed by a Union Minister, to advise the Central Government on matters relating to Wakfs^[4]. However, it is essential to understand the functioning of Wakf Boards in each State before ascertaining whether they truly live up to their theological objective, i.e. "endowment of property, that implies a surrender of properties to Allah, on the premise that the transfer will benefit the needy".^[5]

In the Cause of God

The above-mentioned phrase is an English translation of the Arabic word 'Fi-Sabilillah' which means any act performed for charitable or religious purpose which takes the doer on the true path shown by God.

A Wakf may be created for a variety of reasons^[6] such as the creation or maintenance of schools, hospitals, colleges, madrasas, imambaras, mosques, but the impetus to do so may not be restricted to pious or religious purposes only. Consequently, a public Wakf may very well be created for secular purposes and its beneficiaries may be non-Muslims as well^[7].

The very first requirement of a Wakf is evident with respect to the testator (also known as a Wakif) who must mention that he was in a state of perfect lucidity when dispossessing himself of his property and the act so done was of his own volition since a coerced Wakf is automatically disavowed thereby fulfilling the requisite criteria under Section 7 of Transfer of Property Act and Section 11 of Indian Contract Act. Now, quite like any person competent to contract under civil law, a testator under Muslim Wakf laws must be an adult, of sound mind and must not be an insolvent person. Additionally, the property, or the Mawquf, which is the subject of transfer must neither be illegally obtained nor 'Un-Islamic'^[8], for instance it must not be for establishment for a liquor business or a brothel. Within the Wakf deed itself, it is imperative, and also convenient, the testator name an Administrator, or Mutawalli, who is to manage proceeds from the property according to the deed and ensure proper execution of the desired reason/genesis of Wakf.

Two striking features of the Wakf deed would be the twin essential elements of perpetuity and continuity. Furthermore, with reference to the 'bundle of rights' theory often referred to in property law jurisprudence, ownership and title (under a Wakf) is bestowed by the testator in the name of Allah while possessory rights and the right to enjoy proceeds from the said immovable property are for the community. An interesting character of a Wakf deed is that which perches itself along the lines of Section 18 of the Transfer of Property Act (TPA) that deals with transfer in perpetuity for the benefit of public. Another similarity between a general transfer of property under TPA and a Wakf is that not only does it require to be registered with the state Wakf Board but also needs two competent witnesses similar to Section 3 (3) of Transfer of Property Act. We are cognisant of the fact that the TPA, a substantive law, itself aims to codify and 'amend existing laws relating to transfer of property'^[9]. Hence the TPA, with refreshing accommodative generosity, leaves out of its purview certain transfers and donations made under Muslim Law furnishing us with Section 129^[10] i.e., that the Act shall not be deemed to affect any rule of Mohammedan law.

Prior to diving in the deep end of Islamic jurisprudence and property law, revisiting its history will provide sub-structural context. A high-level committee under the leadership of Justice Rajinder Sachar was constituted in 2005 to prepare a comprehensive report on the social, economic and educational status of Muslims in India. According to its report presented to Parliament in 2006, there are more than 4.9 lakh registered Wakf properties in the country with the largest concentration found in West Bengal (1,48,200) followed by Uttar Pradesh (12,839). An estimated 6 lakh acres, spread all over the country, constitute Wakf property with the then book value of Rs 6,000 crore^[11].

If not ploughed back into the community then where are these endowments vanishing?

The focus of this article spans over four states, namely Delhi, Karnataka, Maharashtra and Tamil Nadu. Beginning with Delhi, as early as 1910, the British government annexed several Wakf properties and built its new capital around it. Thus, it comes as no surprise that a number of hotels, monuments, markets, schools in the heart of the city are built on Wakf land. Some of these include the Oberoi Hotel, the Commonwealth Games Village complex, Jawaharlal Nehru Stadium, parts of the Delhi Public School on Mathura Road, media offices on Bahadur Shah Zafar Marg, among others. The case of unauthorised acquisition of Wakf land in Delhi is particularly important given the fact that there is evidence in the form of the Burney Report of 1974, commissioned by Prime Minister Indira Gandhi, which discovered nearly 300 properties under the effective control of Delhi government. Accepting the Burney Report, the Delhi government in 1974 agreed to revert 123 properties out of the total 300 properties to the Delhi Wakf Board^[12]. It is at this juncture that the Vishwa Hindu Parishad^[13] demanded a stay against the transfer of these 123 prime properties from being government-owned to 'religious property'. It is ironic to note that the two essentials of a valid Wakf deed -- irrevocability and perpetuity -- have been put in question since the advent in this vindictive game of communal politics.

The Delhi High Court, in 1984, granted the Vishwa Hindu Parishad a stay that continued for 27 years and was recently disposed off by a judgment by Justice Valmiki Mehta in 2014^[14]. Post this the Delhi Development Authority published a public notice de-notifying 123 properties from its acquisition. Out of these 123, 62 belonged to the DDA while the remaining 62 were in possession of the Land and Development Office (Ministry of Housing and Urban Affairs. Emphasis is sought on the fact that only by virtue of this notification could these properties finally be reverted to its rightful custodian i.e. Wakf Board. The idea of parting with a defined portion of your life savings in the name of Allah and towards the betterment of one's community is entirely defeated if the years in which it would have yielded fruit are spent in a tug of war that the custodian was battling with the State only to ascertain its ownership. It is worrisome to conclude that the aforementioned two government authorities spent valuable time demarcating the right of ownership which is only ever saved in the hands of God.

As per the Sachar Committee Report, the market value of the 123 prime properties was Rs 3,000 crore in 2003, then Rs 6,000 crore in 2006 (when the report was submitted). To imagine the countless educational, infrastructural and employment possibilities that this humongous untapped economic reserve could conjure for the community are not only vast but also economically feasible.

Southern states, like their northern counterparts, are not immune to illegal encroachments and have had to bear the brunt of decade-long litigation battles coupled with acute wastage of land originally belonging to the Wakf boards. In Pune, 46.4 acres of land has been labeled 'disputed property' when, in fact, it is registered with the Maharashtra Wakf Board. Despite the Central Wakf Council having written to the Ministry of Minority Affairs, the issue has been ongoing since 1996 and it was only in November of 2017 that an enquiry was initiated by the CEO of Maharashtra Wakf Board^[15]. In 2012, a state-appointed committee to survey Wakf land 'stumbled upon properties worth Rs 2 lakh crore'. What drew tremendous attention were the statistics this report presented. It claimed nearly 22,000-27,000 acres of property out of the 3,37,411 acre belonging to the Board were not being used for its intended purpose.^[16]

"Tie down" is often cited as the literal meaning of Wakf. But to tie down in a modern sense is to fasten the ropes of the Boards' administrative operation to the pier of efficiency and transparency so as to ensure that a community which has been made to feel an outcast for decades, even post Independence, is able to stand on its feet. As seen above, devising mandates is not the tricky part; it the execution thereof which has proved to be elusive for governments in the past. But to safeguard not only interests but social advancement and economic growth of its minority communities is a rudimentary duty of any government and, in the fullness of time, it has to be assured that Islamic endowments must reach their intended audience. Given the safeguards for the rights of the minorities enshrined in the Constitution of India, promulgating Wakf laws and ensuring their implementation is only in the fitness of things.

Aaliya Waziri is a lawyer at the High Court of Delhi.