Powers
of the Wak f Boar d inter
alia to sanction any tran sfer
of Wak f Property:
- Section
32 of the Wakf Act stipulates the Powers and Functions of the Wakf Board inter alia for maintenance,
control, administration etc of the wakf properties, income etc. Section 32
reads as under:
“32.
Powers and functions of the Board. (1) Subject to any rules that may be made under
this Act, the general superintendence of all Wakfs in a State shall vest in the
Board established or the State; and it shall be the duty of the Baord so to
exercise its powers under the Act so as to ensure that the Wakfs under the
superintendence are properly maintained, controlled and administered and the
income thereof is duly applied to the objects and for the purposes for which
such Wakfs were created or intended:
………..
(2)
Without prejudice to the generality of the foregoing power, the functions of
the Board shall be:-
……..
(j)
to sanction any transfer of immovable property of a Wakf by way of sale, gift,
mortgage, exchange or elase, in accordance with the provisions of this Act:
Provided that no such sanction shall
be given unless at least two-thirds of the members of the Board vote in favour
of such transaction……”
- In view
of the above, Wakf Board alone has the power to sanction any transfer of
the Wakf property and the procedure and manner of according such sanction
is enshrined under Section 51 of the Wakf Act.
- As per
Section 51 of the Wakf Act, the Wakf Property can be alienated only with
the prior sanction of the Board. The said section provides that, before
according a valid sanction to a transaction, including a sale of the Wakf
property, the proposed transaction should be notified in the Official
Gazette for purposes of inviting objections and suggestions. After
considering the objections and suggestions as may be received pursuant to
such notification and on being convinced that such transaction is
beneficial to the Wakf, is consistent with the objects thereof and the
consideration for the same is also adequate, the Wakf Board may accord
sanction to the proposed transaction.
- Further,
for a valid sanction, alteast two-thirds of the members of the Wakf Board
should vote in favour of such transaction as provided under Clause j of
sub-section 2 of Section 32 of the Wakf Act. Further, as per Rule 12 (1)
of the A.P. Wakf Rules, 2000, the sanction accorded by the Wakf Board
under Section 51 of the Act would be subject to the prior approval of the
State Government and such directions as may be issued under Section 97 of
the Wakf Act. However, Section 97 of the Act does not empower the State
Government either to relax or to give a go-bye to the mandatory provisions
of Section 51 or to accord permission to sale of Wakf land otherwise than
by way of public auction. The Court has held that neither the Wakf Board
nor the Government has the power to permit the sale of immovable property
otherwise than by public auction and it is the only the Tribunal which is
empowered to grant such permission[1].
- As per
the first proviso to Section 51 (2) of the Act, the sale of the Wakf
property is ordinarily required to be by public auction, however, the
second proviso to Section 51(2) carves out an exception to the first
proviso and states that, the Wakf Tribunal, on application from the
aggrieved Muttawalli or other person may permit such sale to be made otherwise
than by public auction for reasons to be recorded by it, if it is of
opinion that it is necessary so to do in the interest of the Wakf.
In view
of the above, for valid sale of a Wakf property, the Wakf Board has to
accord its sanction in terms of Section 51 of the Act and also an approval
is required to be sought from the State Government, prior to the actual
sale, in terms of Rule 12(1) of the A.P. Wakf Rules. Alienation of any Wakf Land
- The land
as defined under Section 3(a) of the Land Acquisition Act, 1894 does not
in any manner excludes Wakf land and moreover such acquisition if for
public purpose cannot be considered as violation of fundamental right to
religion and worship under the Constitution of India.[2]
It may be noted that the Wakf Lands can be subject matter of land
acquisition[3]
provided the said acquisition process is in compliance with the provisions
of Section 91 of the Wakf Act. Section 91 of the Wakf Act reads as under:
“91.
Proceedings under the Land Acquisition Act, 1894:- (1) If, in the course of proceedings under the Land Acquisition Act 1894 or
under any law for the time being in force relating to the acquisition of land
or other property, 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 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 notice. Explanation.- The
reference to the Collector in the foregoing provisions of this sub- section
shall, in relation to any other law referred to therein, be construed, if the
Collector is not the competent authority under such other law to make an award
of the compensation or other amount payable for acquisition of land or other
property thereunder, as a reference to the authority under such other law
competent to make such award.
(2)
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.
(3)
When the Board has appeared under the provisions of sub- section (1) or sub-
section (2), no order shall be passed under section 31 or section 32 of the
Land Acquisition Act, 1894 or under the corresponding provisions of the other
law referred to in sub- section (1) without giving an opportunity to the Board
to be heard.
(4)
Any order passed under section 31 or section 32 of the Land Acquisition Act,
1894 or under the corresponding provisions of the other law referred to in sub-
section (1) without giving an opportunity to the Board to 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 order.”
- Section
91 of the Wakf Act protects the interest of the Wakf Board in respect of
such Wakf properties which are likely to be acquired by the Collector in
course of the proceedings under the Land Acquisition Act, 1894. It,
therefore, requires that whenever it appears to collector that any
property under acquisition is a Wakf property, he shall serve a notice on
the Wakf Board before making any award and shall stay further proceedings
in order to enable the Wakf Board to appear and plead as a party to such
proceedings at any time within 3 months from the date of receipt of such
notice. While complying with the provisions of Wakf Act, the State Government
and District Collector must also follow the procedure laid down under the
Land Acquisition Act, 1894 during the process of land acquisition.
- Clause
27 of the Wakf (Amendment) Bill, 2010 seeks to amend Section 51 of the
principal Act i.e Wakf Act, 1995 which also deals with the aspect of
acquisition of Wakf property for public purpose. Though this is yet to be
passed by the Parliament and become an Act, for the purpose of your
information, relevant portion of the said clause 27 is reproduced as under
and reliance on this cannot be placed till the same is not culminated into
the Act:
“Provided
that nothing contained in this sub-section shall affect any acquisition of waqf
properties for a public purpose under the Land Acquisition Act, 1894 or any
other law relating to acquisition of land:
Provided
further that —
(a)
the acquisition shall not be in contravention of the Places of Public Worship
(Special Provisions) Act, 1991;
(b)
the purpose for which the land is being acquired shall be undisputedly for a
public purpose;
(c)
there shall be no alternative land being available which shall be considered as
more or less suitable for that purpose; and
(d)
the compensation shall be the prevailing market value plus the solatium and a
equally suitable land in lieu of the acquired property to safeguard adequately
the interest and objective of the waqf.’’
[1] M.
Govinda Rao & Ors. vs. A.P. State
[2] Khajamia
Wakf Estates v. State of Madras
[3] The
Revenue Divisional Officer, Nalgonda v.A.P. State
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