CHAPTER VI FINANCE OF THE BOARD
Annual contributions payable to the Board.
- Annual contributions payable to the Board. (1) The mutawalli of every wakf shall pay annually to the Board such contribution not exceeding 3*[six] per cent. of the 4*[net annual income accruing in the State to the wakf] as ————————————————-
——————– 1 Ins. by Act 34 of 1964, s. 14.
2 Subs. by s. 15, ibid., for sub-section (1) 3 Subs. by s. 16, ibid., for “five”. 4 Subs. by Act 38 of 1969, s. 9. for certain words (with retrospective effect). 124A the Board may, subject to the sanction of the State Government, from time to time, determine: Provided that no such contribution shall be payable by the mutawalli of a wakf of which the net annual income does not exceed one hundred rupees.
- The Board may in the case of any particular wakf reduce or remit such contribution for such time as it thinks
- The mutawalli of a wakf may realise the contributions payable
by him under sub-section (1) from the various persons entitled to receive any pecuniary or other material benefits from the wakf, but the sum realisable from any one of such persons shall not exceed such amount as shall bear to the total contribution payable the same proportion as the value of the benefits receivable by such person bears to the entire net annual income of the wakf: Provided that if there is any income of the wakf available in excess of the amount payable as dues under this Act, other than as the
contribution under sub-section (1), and in excess of the amount payable under the wakf deed, the contribution shall be paid out of such income.
- The contribution payable under sub-section (1) in respect of a wakf shall, subject to the prior payment of any dues to the Government or any local authority or of any other statutory first charge on the wakf property or the income thereof, be a first charge on the income of the wakf and shall be recoverable, on a certificate issued by the Board after giving the mutawalli concerned an opportunity of being heard, as an arrear of land revenue.
- If a mutawalli realises the income of the wakf and refuses to pay or does not pay such contribution, he shall also be personally liable for such contribution which may be realised from his person or property in the manner
Power of the Board to borrow. 47. Power of the Board to borrow. For the purpose of giving effect to the provisions of this Act, the Board may, with the previous sanction of the State Government, borrow such sum of money and on such terms and conditions as the State Government may determine and the Board shall repay the money borrowed, together with any interest or costs due in respect thereof, according to the terms and conditions of the loan.
- Wakf Fund. 1*[(1) All monies received or realised by the Board under this Act and all other monies received as donations, benefactions or grants by the Board shall form a fund to be called the Wakf Fund.
1 Subs. by Act 34 of 1964, s. 17, for sub-section (1). 124B (1A) All monies received by the Board as donations, benefactions and grants shall be deposited and accounted for under a separate sub- head.]
- Subject to any rules that may be made by the State Government in this behalf, the Wakf Fund shall be under the control of the
- The Wakf Fund shall be applied to- (a) repayment of any loan incurred under section 47 and payment of interest thereon; (b) payment of the cost of audit of the Wakf Fund and the accounts of wakfs; (c) payment of the salary and allowances of the Secretary and staff of the Board; (d) payment of travelling allowances to the Chairman, members, Secretary and staff of the Board; (e) payment of all expenses incurred by the Board in the performance of the duties imposed, and the exercise of the powers conferred, by or under this
- If any balance remains after meeting the expenditure referred
to in sub-section (3), the Board may use any portion of such balance for the preservation and protection of wakf properties or for such other purposes as it may deem fit.
Budget of the Board. 49. Budget of the Board. The Board shall in every year prepare, in such form and at such time as may be prescribed, a budget for the next financial year showing the estimated receipts and expenditure during that financial year and forward a copy of the same to the State Government.
Accounts of the Board. 50. Accounts of the Board. The Board shall cause to be maintained such books of account and other books in relation to its accounts in such form and in such manner as may be prescribed.
Audit of accounts of the Board.
- Audit of accounts of the Board. (1) The accounts of the Board shall be audited and examined annually by such auditor as may be appointed by the State Government.
- The auditor shall submit his report to the State Government and the report of the auditor shall, among other things, specify all cases of irregular, illegal or improper expenditure or of failure to recover money or other property caused by neglect or misconduct and any other matter which the auditor considers it necessary to 124C report; and the report shall also contain the name of any person who, in the opinion of the auditor, is responsible for such expenditure or failure and the auditor shall in every such case certify the amount of such expenditure or loss as due from such
- The cost of the audit shall be paid from the Wakf
State Government to pass orders on auditor’s report. 52. State Government to pass orders on auditor’s report. The State Government shall examine the auditor’s report and may call
for the explanation of any person in regard to any matter mentioned therein, and shall pass such orders on the report as it thinks fit.
Sums certified due recoverable as arrears of land revenue. 53. Sums certified due recoverable as arrears of land revenue.
- Every sum certified to be due from any person by an auditor in his report under section 51 unless such certificate is modified or cancelled by an order of the State Government made under section 52, and every sum due on a modified certificate shall be paid by such person within sixty days after the service of a demand for the same issued by the State
- If such payment is not made in accordance with the provisions
of sub-section (1), the sum payable may, on a certificate issued by the Board after giving the person concerned an opportunity of being heard, be recovered in the same manner as an arrear of land revenue.
NO financial liability of Government. 54. [No financial liability of Government.] Repealed by the Wakf (Amendment) Act, 1964 (34 of 1964.), s. 18.
CHAP JUDICIAL PROCEEDINGS CHAPTER VII JUDICIAL PROCEEDINGS
Institution of suits under section 92 of the Code of Civil Procedure,1908. 1*[55. Institution of suits under section 92 of the Code of Civil
Procedure, 1908. (1) A suit to obtain any of the reliefs mentioned in section 92 of the Code of Civil Procedure, 1908, (5 of 1908.) relating to any wakf may, notwithstanding anything to the contrary contained in that section, be instituted by the Board without obtaining the consent referred to therein.
(2) No suit to obtain any of the reliefs referred to in section 92 of the Code of Civil Procedure, 1908, relating to any wakf shall be instituted by any person or authority other than the Board without the consent in writing of the Board and for the institution of any such suit, it shall not be necessary to obtain the consent referred to in that section, notwithstanding anything contained therein: Provided that nothing in this sub-section shall apply in relation to any such suit against the Board.] —————————————–
—————————- 1 Subs. by Act 34 of 1964, s. 19, for s. 55. 124D
Notice of suits by parties against the Board. 56. Notice of suits by parties against the Board. No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.
Notice of suits, etc., by courts.
- Notice of suits, etc., by courts. (1) In every suit or proceeding relating to a little to wakf property or the right of a mutawalli, the court shall issue notice to the Board at the cost of the party instituting such suit or
- Whenever any wakf property is notified for sale in execution of a decree of a civil court or for the recovery of any revenue, cess, rates or taxes due to the Government or any local authority, notice shall be given to the Board by the court, collector or other person under whose order the sale is
- In the absence of a notice under sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the court in this
- In the absence of a notice under sub-section (2), the sale shall be declared void, if the Board, within one month of its coming to know of the sale, applies in this behalf to the court or other authority under whose order the sale was
Proceedings under the Land Acquisition Act, 1894.
- Proceedings under the Land Acquisition Act, 1894. (1) If, in the course of proceedings under the Land Acquisition Act, 1894 (1 of 1894.) it appears to the Collector before an award is made that any property under acquisition is wakf property, a notice of such acquisition shall be served by the Collector on the Board and further proceedings shall be stayed to enable the Board to appear and plead as a party to the proceeding at any time within three months from the date of the receipt of such
- Where the Board has reason to believe that any property under acquisition is wakf property, it may at any time before the award is made appear and plead as a party to the proceeding.
- When the Board has appeared under the provisions of
subsection (1) or sub-section (2), no order shall be passed under section 31 or section 32 of the Land Acquisition Act, 1894 (1 of 1894.) without giving an opportunity to the Board to be heard.
- Any order passed under section 31 or section 32 of the Land Acquisition Act, 1894 without giving an opportunity to the Board to 124E be heard shall be declared void, if the Board, within one month of its coming to know of the order, applies in this behalf to the authority which made the
Board to be made a party to a suit or proceeding regarding a wakf onits application. 59. Board to be made a party to a suit or proceeding regarding a wakf on its application. In any suit or proceeding in respect of a wakf or any wakf property by or against a stranger to the wakf or any other person, the Board may appear and plead as a party to the suit or proceeding.
Bar to compromise of suits by or against mutawallis. 60. Bar to compromise of suits by or against mutawallis. No suit or proceeding in any court by or against the mutawalli of a wakf relating to title to wakf property or the rights of the mutawalli shall be compromised without the sanction of the Board.
Power to make application to the court in case of failure of mutawallito discharge his duties. 61. Power to make application to the court in case of failure of
mutawalli to discharge his duties. (1) Where a mutawalli is under an obligation to perform any act which is recognised by Muslim law as pious, religious or charitable and the mutawalli fails to perform such act, the Board may apply to the court for an order directing the mutawalli to pay to the Board or to any person authorised by the Board in this behalf the amount necessary for the performance of the Act.
(2) Where a mutawalli is under an obligation to discharge any other duties imposed on him under the wakf and the mutawalli willfully fails to discharge such duties, the Board or any person interested in the wakf may make an application to the court and the court may pass such order thereon as it thinks fit. CHAP MISCELLANEOUS CHAPTER VIII MISCELLANEOUS
Directions by the Central Government.
- Directions by the Central Government. 1*[(1) The Central Government may issue such directions, as it may think fit, on questions of policy to be followed by a Board and for issuing such directions it may call for any periodic or other report or information from any Board through the Government of the State concerned.] ————————————-
1 Subs. by Act 34 of 1964, s. 20 for sub-section (1). 125
(2) In the performance of its functions under this Act, the Board shall be guided by the directions issued under sub-section (1).
Directions by the State Government. 63. Directions by the State Government. Subject to any directions on questions of policy issued under section 62, the State Government may, from time to time, give to the Board such general or special directions as the State Government thinks fit and in the performance of its functions, the Board shall comply with any such directions.
Power to supersede the Board.
- Power to supersede the Board. (1) If the State Government is of opinion that the Board is unable to perform, or has persistently made default in the performance of, the duty imposed on it by or under this Act or has exceeded or abused its powers, the State Government may, by notification in the Official Gazette, supersede the Board for such period as may be specified in the notification: Provided that before issuing a notification under this sub- section, the State Government shall give a reasonable time to the Board to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the Board.
- Upon the publication of a notification under sub-section (1) superseding the Board,–
(a) all the members of the Board shall, as from the date of supersession, vacate their offices as such members; (b) all the powers and duties which may, by or under the provisions of this Act, be exercised or performed by or on behalf of the Board shall, during the period of supersession, be exercised and performed by such person or persons as the State Government may direct; and (c) all property vested in the Board shall, during the period of supersession, vest in the State Government.
- On the expiration of the period of supersession, specified in
the notification issued under sub-section (1), the State Government may– (a) extend the period of supersession for such further period as it may consider necessary; or (b) reconstitute the Board in the manner provided in section 10 and section 11.
Protection of action taken in good faith. 65. Protection of action taken in good faith. No suit or other legal proceeding shall lie against the Board or the Commissioner or any other person duly appointed under this 126 Act in respect of anything which is in good faith done or intended to be done under this Act.
The Commissioner, auditor, etc., to be deemed to be public servants. 66. The Commissioner, auditor, etc., to be deemed to be public servants. (45 of 1860.) The Commissioner, every auditor, every officer and servant of the Board and every other person duly appointed to discharge any duties imposed on him by this Act or rules or orders made thereunder shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code. 66A. Special provision for reorganisation of certain Boards. 1*[66A. Special provision for reorganisation of certain Boards.
- Where on account of the reorganisation of States under the States Reorganisation Act, 1956, (37 of 1956.) the whole or any part of a State in respect of which a Board was, immediately before the 1st day of November, 1956, functioning has been transferred on that day to another State and by reason of such transfer, it appears to the Government of a State in any part of which the Board is functioning that the Board should be dissolved or that it should be reconstituted and reorganised as an intra-State Board for the whole or any part of that State, the State Government may frame a scheme for such dissolution or such reconstitution and reorganisation, as the case may be, including proposals regarding the transfer of the assets, rights and liabilities of the Board to any other Board or State Government and the transfer or re-employment of employees of the Board and forward the scheme to the Central
- On receipt of a scheme forwarded to it under sub-section (1), the Central Government may, after consulting the State Governments concerned, approve the scheme with or without modifications and give effect to the scheme so approved by making such order as it thinks
- An order under sub-section (2) may provide for all or any of the following matters, namely:– (a) the dissolution of the Board; (b) the reconstitution and reorganisation in any manner what-soever of the Board including the establishment, where necessary, of a new Board; (c) the area in respect of which the reconstituted Board or new Board shall function and operate; (d) the transfer, in whole or in part, of the assets, rights and liabilities of the Board (including the rights and liabilities under any contract made by it) to any other Board or State Government and the terms and conditions of such transfer; —
1 Ins. by Act 30 of 1959, s. 4. 126A (e) the substitution of any such transferee for the Board, or the addition of any such transferee, as a party to any legal proceeding to which the Board is a party; and the transfer of any proceeding pending before the Board to any such transferee; (f) the transfer or re-employment of any employees of the Board to, or by, any such transferee and subject to the provisions of section 111 of the States Reorganisation Act, 1956, (37 of 1956.) the terms and conditions of service applicable to such employees after such transfer or re-employment; (g) such incidental, consequential and supplemental matters as may be necessary to give effect to the approved scheme.
- Where an order is made under this section transferring the assets, rights and liabilities of any Board, then, by virtue of that order, such assets, rights and liabilities of the Board shall vest in, and be the assets, rights and liabilities of, the
- Every order made under this section shall be published in the Official Gazette and this Act and the notifications issued there under shall have effect subject to the provisions of the
- Every order made under this section shall be laid before each House of Parliament, as soon as may be, after it is made. 66B. Special provision for establishment of Board for part of a State. 66B. Special provision for establishment of Board for part of a
State. (1) Where on account of the territorial changes brought about by the States Reorganisation Act, 1956, (37 of 1956.) this Act is, as from the 1st day of November, 1956, applicable only to any part or parts of a State but has not been brought into force in the remaining part thereof, then, notwithstanding anything contained in this Act, it shall be lawful for the Government of the State to establish one or more Boards for such part or parts in which this Act is in force and in such a case, any reference in this Act to the word “State” in relation to a Board shall be construed as a reference to that part of the State for which the Board is established.
(2) Where any such Board has been established and it appears to the Government of the State that a Board should be established for the whole of the State, the State Government may, by order notified in the Official Gazette, dissolve the Board established for the part of the State or reconstitute and reorganise such Board or establish a new Board for the whole of the State and thereupon, the assets, rights and liabilities of the Board for the part of the State shall vest in, and be the assets, rights and liabilities of the reconstituted Board or the new Board, as the case may be.] 126B 66C. Application of Act to properties given or donated by persons notprofessing Islam for support of certain wakfs. 1*[66C. Application of Act to properties given or donated by persons not professing Islam for support of certain wakfs. Notwithstanding anything contained in this Act where any movable or immovable property has been given or donated by any person not professing Islam for the support of a wakf being– (a) a mosque, idgah, imambara, dargah, khangah or a maqbara; (b) a Muslim graveyard; (c) a choultry or a musafarkhana, then such property shall be deemed to be comprised in that wakf and be dealt with in the same manner as the wakf in which it is so comprised.]
Power to make rules.
- Power to make rules. (1) The State Government may, by notification in the Official Gazette, make rules to carry out the 2*[purposes of this Act other than those of Chapter IIA].
(2) In particular, and without prejudice to the generality of the foregoing power such rules may provide for all or any of the following matters, namely:– (a) the particulars which a list of wakfs published under
sub-section (2) of section 5 may contain; (b) the conditions and restrictions subject to which the Board may transfer any property; (c) the regulation of the functions of the Board; (d) the terms and conditions of service of the Secretary of the Board; (e) the manner in which any inquiry may be held under this Act; (f) the powers vested in a civil court which may be exercised by the Board or the Commissioner or any other person while holding an inquiry under this Act; (g) the form in which a register of wakfs may be maintained and the further particulars which it may contain; (h) the form in which, and
the time within which, the budget of the Board may be prepared and submitted by the Board 3*; 1 Ins. by Act 34 of 1964,
- 21. 2 Subs. by s. 22, ibid. for “purposes of this Act”. 3 The words “and approved by the State Government” omitted by s. 22, ibid 127 (i) the manner in which the accounts of the Wakf Fund may be kept and audited and the contents of the auditor’s report; (j) the payment of moneys into the Wakf Fund, the investment, custody and disbursement of such moneys; (k) the circumstances under which, and the terms and conditions on which, the Board may be allowed to borrow; (l) the circumstances in which, and the conditions subject to which, the Board may reduce or remit the contribution payable in respect of a wakf; (m) the procedure to be followed in the recovery of any sum due under this Act as an arrear of land revenue; (n) any other matter which has to be, or may be, prescribed.
Power to make regulations.
- Power to make regulations. (1) The Board may, with the previous sanction of the State Government, make regulations not inconsistent with this Act or the rules made there under for carrying out its functions under this
- In particular, and without prejudice to the generality of the foregoing powers, such regulations may provide for all or any of the following matters, namely:– (a) the time and place of the meetings of the Board and the number of members required to form a quorum at its meetings; (b) the procedure and conduct of business at the meetings of the Board; (c) the constitution and functions of committees of the Board and the procedure for transaction of business at the meetings of such committees; (d) the allowances or fees to be paid to the Chairman or members of the Board or members of committees; (e) terms and conditions of service of the officers, and servants of the Board; (f) the form of application for registration of wakfs, further particulars to be contained therein and the manner and place of registration of wakfs; (g) further particulars to be contained in the register of wakfs; (h) the books to be kept at the office of the Board; (i) the form in which, and the time within which, the budgets of wakfs may be prepared and submitted by the mutawallis and approved by the Board; 128 (j) the manner in which the accounts of wakfs may be kept and audited and the contents of the auditor’s report; (k) the method of calculating the income of a wakf for the purpose of levying contributions under this Act;
(l) fees payable for inspection of proceedings and records of the Board or for issue of copies of the same; (m) persons by whom any order or decision of the Board may be authenticated; (n) any other matter which has to be, or may be, prescribed.
- All regulations made under this section shall be published in the Official Gazette and the regulations shall have effect from the date of such publication. 68A. Laying of rules and regulations before State Legislature. 3*[“68A. Laying of rules and regulations before State Legislature. Every rule made under section 67 and every regulation made under section 68 shall be laid, as soon as may be after it is made, before the State “]
Repeal and savings.
- Repeal and savings. (1) The following enactments, namely;–
- The Bengal Charitable Endowments, Public Buildings and Escheats Regulation, 1810; (Ben. Reg. XIX of )
- 1* The Religious Endowments Act, 1863; (20 of )
- The Charitable Endowments Act, 1890; (6 of )
- The Charitable and Religious Trusts Act, 1920; (14 of )
- The Mussalman Wakf Act, 1923; (42 of 1923.) shall not apply to any wakf to which this Act
(2) If, immediately before the commencement of this Act in any State, there is in force in that State any law which corresponds to
this Act [other than an enactment referred to in sub-section (1)] that corresponding law shall stand repealed: Provided that such repeal shall not affect the previous operation of that corresponding law, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under the corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such things was done or action was taken.
Removal of difficulties. 2*[70. Removal of difficulties. If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the purposes of this Act, as appear to it to be necessary or expedient for removing the difficulty. ———————-
———————————————– 1 The words and figure “Section 5 of” omitted by Act 34 of 1964, s.
3 Ins. by Act 4 of 1986, s. 2 and Sch. (w.e.f. 15.5.1986). 128A SCHE LIST OF AMENDMENTS THE SCHEDULE
[See section 9 (1A)] LIST OF AMENDMENTS
- In sub-section (2) of section 5, for the words “a list of wakfs”, the words “a list of Sunni wakfs or, as the case may be, Shia wakfs” shall be substituted. 2. In section 11,– (a) for clause (b), the following clause shall be substituted, namely:– “(b) persons having knowledge of Muslim law and representing, in the case of a Sunni Board of Wakf’s, associations such as State Jamiat-ul- Ulama-i-Hind (whether such persons are Hanafi, Ahle-Hadis or Shefai) and in the case of a Shia Board of Wakfs, associations such as State Shia Conference;”; (b) the second proviso shall be omitted.
- In clause (e) of sub-section (2) of section 15, the Explanation shall be omitted. 4. For section 27, the following section shall be substituted, namely:– Decision if a property is wakf property.
“27. (1) The Board may itself collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not or whether a wakf is a Sunni wakf or a Shia wakf, it shall refer the question to a civil court of competent jurisdiction.
(2) The decision of the civil court on any question referred to it under sub-section (1) shall be final.”]