(1) In the case of any change in the management of a registered wakf due to the death or retirement or removal of the mutawalli, the incoming mutawalli shall forthwith, and any other person may, notify the change to the Board.
(2) In the case of any other change in any of the particulars mentioned in section 25, the mutawalli shall, within three months from the occurrence of the change, notify such change to the Board.
Notwithstanding anything contained in this Chapter, where any wakf has been registered before the commencement of this Act under any law for the time being in force, it shall not be necessary to register the wakf under the provisions of this Act and any such registration made before such commencement shall be deemed to be a registration made under this Act.
Every mutawalli of a wakf 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 submit it to the Board for approval.
1*[(1) Every mutawalli shall keep regular accounts.]
2*[(2)] Before the 1st day of May next following the date on which the application referred to in section 25 has been made and thereafter before the 1st day of May in every year, every mutawalli of a wakf shall prepare and furnish to the Board a full and true statement of accounts, in such form and containing such particulars as may be prescribed by the Board, of all moneys received or expended by the mutawalli on behalf of the wakf during the period of twelve months ending on the 31st day of March or, as the case may be, during that portion of the said period during which the provisions of this Act have been applicable to the wakf : Provided that the date on which the annual accounts are to be closed may be varied at the discretion of the Board.
(1) The accounts of wakfs submitted to the Board under section 32 shall be audited and examined annually or at such other intervals as the Board may determine by an auditor appointed by the Board.
(2) The auditor shall submit his report to the Board 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 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 person.
(3) The costs of the audit of the accounts of a wakf shall be paid from the Wakf Fund.
The Board 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.
(1) Every sum certified to be due from any person by an auditor in his report under section 33 unless such certificate is modified or cancelled by an order of the Board made under section 34, 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 Board.
(2) 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.
It shall be the duty of every mutawalli-
(a) To carry out the directions of the Board ;
(b) To furnish such returns and supply such information or particulars as may from time to time be required by the Board ;
(c) To allow inspection of wakf properties, accounts or records or deeds and documents relating thereto ;
(d) To discharge all public dues ; and
(e) To do any other act which he is lawfully required to do by or under this Act.
36A. 1*Transfer of immovable property of wakfs.
Notwithstanding anything contained in the wakf deed, no transfer of any immovable property of a wakf by way of-
(i) Sale, gift, mortgage or exchange ; or
(ii) Lease for a period exceeding three years in the case of agricultural land, or for a period exceeding one year in the case of non-agricultural land or building, shall be valid without the previous sanction of the Board.
36B. Recovery of wakf property transferred in contravention of section 36A.
(1) If the Board is satisfied, after making an inquiry in such manner as may be prescribed, that any immovable property of a wakf entered as such in the register of wakfs maintained under section 26, has been transferred without the previous sanction of the Board in contravention of the provisions of section 36A, it may send a requisition to the Collector within whose jurisdiction the property is situate to obtain and deliver possession of the property to it.
(2) On receipt of a requisition under sub-section (1), the Collector shall pass an order directing the person in possession of the property to deliver the property to the Board within a period of thirty days from the date of the service of the order.
(3) Every order passed under sub-section (2) shall be served-
(a) By giving or tendering the order or by sending it by post to the person for whom it is intended ; or
(b) If such person cannot be found, by affixing the order on some conspicuous part of his last-known place of abode or business, or by giving or tendering the order to some adult male member or servant of his family or by causing it to be affixed on some conspicuous part of the property to which it relates:
Provided that where the person on whom the order is to be served is a minor, service upon his guardian or upon any adult male member or servant of his family shall be deemed to be service upon the minor.
(4) Any person aggrieved by the order of the Collector under sub- section (2) may, within a period of thirty days from the date of the service of the order, prefer an appeal to the district court within whose jurisdiction the property is situate and the decision of the district court on such appeal shall be final.
Explanation.-In this sub-section, "district court" means, in any area for which there is a city civil court, that court, and, in any other area, the principal civil court of original jurisdiction.
(5) Where an order passed under sub-section (2) has not been complied with and the time for appealing against such order has expired without an appeal having been preferred or the appeal, if any, preferred within that time has been dismissed, the Collector shall obtain possession of the property in respect of which the order 121 has been made, using such force, if any, as may be necessary for the purpose and deliver it to the Board.
(6) In exercising his functions under this section, the Collector shall be guided by such rules as may be made in this behalf by the State Government.]
Notwithstanding anything contained in the wakf deed, every mutawalli may pay from the income of the wakf property any expenses properly incurred by him for the purpose of enabling him to furnish any particulars, documents or copies under section 25 or any accounts under section 32 or any information or documents required by the Board or for the purpose of enabling him to carry out the directions of the Board.
(1) Where a mutawalli refuses to pay or fails to pay any revenue, cess, rates or taxes due to the Government or any local authority, the Board may discharge the dues from the Wakf Fund and may recover the amount so paid from the wakf property and may also recover damages not exceeding twelve and a half per cent. of the amount so paid.
(2) Any sum of money due under sub-section (1) may, on a certificate issued by the Board after giving the mutawalli concerned an opportunity of being heard, be recovered in the same manner as an arrear of land revenue.
For the purpose of making provision for the payment of rent and of revenue, cess, rates and taxes due to the Government or any local authority, for the discharge of the expenses of the repair of the wakf property and for the preservation of the wakf property, the Board may direct the creation and maintenance, in such manner as it may think fit, of a reserve fund from the income of a wakf.
The Board may, if it is satisfied that it is necessary so to do, extend the time within which any act is required to be done by the mutawalli under this Act.
(1) If a mutawalli fails-
(a) To apply for the registration of a wakf;
(b) To furnish statements of particulars or accounts or returns as required by this Act;
(c) To supply information or particulars as required by the Board; 122
(d) To allow inspection of wakf properties, accounts or records or deeds and documents relating thereto;
(e) To deliver possession of any wakf property, if ordered by the Board or the court;
(f) To carry out the directions of the Board; 1* * * * *
(h) To discharge any public dues; or
(i) To do any other act which he is lawfully required to do by or under this Act, he shall, unless he satisfies the court that there was reasonable cause for his failure, be punishable with fine which may extend to one thousand rupees.
(2) No court shall take cognizance of an offence punishable under this Act save upon complaint made by the Board or an officer duly authorized by the Board in this behalf.
(3) No court inferior to that of a presidency magistrate or a magistrate of the first class shall try any offence punishable under this Act.
When there is a vacancy in the office of the mutawalli of a wakf and there is no one to be appointed under the terms of the deed of the wakf, or where the right of any person to act as mutawalli is disputed, the Board may appoint any person to act as mutawalli for such period and on such conditions as it may think fit.
(1) Notwithstanding anything contained in any other law or the deed of wakf, the Board may remove a mutawalli from his office if such mutawalli-
(a) Has been convicted more than once of an offence punishable under section 41; or
1*[(b) Has been convicted of an offence of criminal breach of trust or any other offence involving moral turpitude; or
(c) Misappropriates or deals improperly with the properties of the wakf; or
(d) Is of unsound mind or is suffering from other mental or physical defect or infirmity which would render him unfit to perform the functions and discharge the duties of a mutawalli; or
(e) Has failed to pay, without reasonable excuse, for two consecutive years, the contribution payable by him under section 46.]
(2) Where a committee is appointed by the Board 2*[or any person or authority not being a court of law] to act as a mutawalli for managing or administering any wakf property and the committee, in the opinion of 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 Board may supersede the committee and appoint any other person or committee to act as the mutawalli of the wakf property.
(3) For the removal of doubts it is hereby declared that the removal of a person from the office of the mutawalli shall not affect his personal rights, if any, in respect of the wakf property either as a beneficiary or in any other capacity or his rights, if any, as a sajjadanishin.
(4) No action shall be taken by the Board under sub-section (1) or sub-section (2), unless it has held an inquiry into the matter in the prescribed manner and the decision has been taken by a majority of not less than three-fourths of the members of the Board.
2*[(4A) A mutawalli who is aggrieved by an order passed under any of the clauses (c) to (e) of sub-section (1) or under sub-section (2) may, within one month from the date of the receipt by him of the order, appeal against the order to the State Government and the decision of the State Government on such appeal shall be final and shall not be questioned in any court of law.]
(5) Where a mutawalli has been removed from his office under sub- section (1) or sub-section (2), the Board may, by order, direct the mutawalli to deliver possession of the wakf property to the Board or any officer thereof duly authorised in this behalf or to any person or committee appointed to act as the mutawalli of the wakf property; and the order of the Board shall be deemed to be a decree of a civil court and shall be executed by the civil court as if it had passed the decree.
2*[(6) A mutawalli of a wakf removed from his office under this section shall not be eligible for appointment as a mutawalli of that wakf for a period of five years from the date of such removal.]
3*[43A. Assumption of direct management of certain wakfs by the Board.
(1) Where no suitable person is available for appointment as a mutawalli of a wakf under section 42 or under sub-section (2) of section 43, the Board may, by notification in the Official Gazette, assume direct management of the wakf for such period or periods, not exceeding in the aggregate five years, as may be specified in the notification.
(2) Notwithstanding anything contained in section 33, the accounts of every wakf under the direct management of the Board shall be audited annually by an auditor to be appointed by the Board, from among chartered accountants in practice within the meaning of the Chartered Accountants Act, 1949.] 38 of 1949.
Any person interested in a wakf may make an application to the Board supported by an affidavit to institute an inquiry relating to the administration of the wakf and if the Board is satisfied that there are reasonable grounds for believing that the affairs of the wakf are being mismanaged, it shall take such action thereon as it thinks fit.
1*[(1) The Board may, either on an application received under section 44 or on its own motion- (a) hold an inquiry in such manner as may be prescribed; or (b) authorise any person in this behalf to hold an inquiry, into any matter relating to a wakf and take such action as it thinks fit.]
(2) For the purposes of any inquiry under this Act, the Board or any person authorised by it in this behalf shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908.) for enforcing the attendance of witnesses and production of documents.
This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Persons accessing this site are encouraged to seek independent counsel for advice in India abroad regarding their individual legal, civil criminal issues or consult one of the experts online.