THE WAQF ACT, 1995

1 THE WAQF ACT, 1995 ________ ARRANGEMENT OF SECTIONS _______ CHAPTER I PRELIMINARY SECTIONS 1. Short title, extent and commencement. 2. Application of the Act. 3. Definitions. CHAPTER II SURVEY OF AUQAF 4. Preliminary survey of auqaf. 5. Publication of list of auqaf. 6. Disputes regarding auqaf. 7. Power of Tribunal to determine disputes regarding auqaf. 8. State Government to bear cost of survey. CHAPTER III CENTRAL WAQF COUNCIL 9. Establishment and constitution of Central Waqf Council. 10. Finance of Council. 11. Accounts and audit. 12. Power of Central Government to make rules. CHAPTER IV ESTABLISHMENT OF BOARDS AND THEIR FUNCTIONS 13. Incorporation. 14. Composition of Board. 15. Term of office. 16. Disqualification for being appointed, or for continuing as, a member of the Board. 17. Meetings of the Board. 18. Committees of the Board. 19. Resignation of Chairperson and members. 20. Removal of Chairperson and member. 20A. Removal of Chairperson by vote of no confidence. 21. Filling of a vacancy. 22. Vacancies, etc., not to invalidate proceedings of the Board. 23. Appointment of Chief Executive Officer and his term of office and other conditions of service. 24. Officers and other employees of the Board. 25. Duties and powers of Chief Executive Officer. 26. Powers of Chief Executive Officer in respect of orders or resolutions of Board. 27. Delegation of powers by the Board. 28. Power of District Magistrate, Additional District Magistrate or Sub-Divisional Magistrate to implement the directions of the Board. 29. Powers of Chief Executive Officer to inspect records, registers, etc. http://www.tnwakfboard.org/1995.43.htm#s1 http://www.tnwakfboard.org/1995.43.htm#s2 http://www.tnwakfboard.org/1995.43.htm#s3 http://www.tnwakfboard.org/1995.43.htm#s4 http://www.tnwakfboard.org/1995.43.htm#s5 http://www.tnwakfboard.org/1995.43.htm#s6 http://www.tnwakfboard.org/1995.43.htm#s7 http://www.tnwakfboard.org/1995.43.htm#s9 http://www.tnwakfboard.org/1995.43.htm#s10 http://www.tnwakfboard.org/1995.43.htm#s11 http://www.tnwakfboard.org/1995.43.htm#s12 http://www.tnwakfboard.org/1995.43.htm#s13 http://www.tnwakfboard.org/1995.43.htm#s14 http://www.tnwakfboard.org/1995.43.htm#s15 http://www.tnwakfboard.org/1995.43.htm#s16 http://www.tnwakfboard.org/1995.43.htm#s17 http://www.tnwakfboard.org/1995.43.htm#s18 http://www.tnwakfboard.org/1995.43.htm#s19 http://www.tnwakfboard.org/1995.43.htm#s20 http://www.tnwakfboard.org/1995.43.htm#s21 http://www.tnwakfboard.org/1995.43.htm#s22 http://www.tnwakfboard.org/1995.43.htm#s23 http://www.tnwakfboard.org/1995.43.htm#s24 http://www.tnwakfboard.org/1995.43.htm#s25 http://www.tnwakfboard.org/1995.43.htm#s26 http://www.tnwakfboard.org/1995.43.htm#s27 http://www.tnwakfboard.org/1995.43.htm#s29 2 SECTIONS 30. Inspection of records. 31. Prevention of disqualification for membership of Parliament. 32. Powers and functions of the Board. 33. Powers of inspection by Chief Executive Officer or persons authorised by him. 34. Recovery of the amount determined under section 33. 35. Conditional attachment by Tribunal. CHAPTER V REGISTRATION OF AUQAF 36. Registration. 37. Register of auqaf. 38. Powers of Board to appoint Executive Officer. 39. Powers of Board in relation to auqaf which have ceased to exist. 40. Decision if a property is waqf property. 41. Power to cause registration of waqf and to amend register. 42. Change in the management of auqaf to be notified. 43. Auqaf registered before the commencement of this Act deemed to be registered. CHAPTER VI MAINTENANCE OF ACCOUNTS OF AUQAF 44. Budget. 45. Preparation of budget of auqaf under direct management of the Board. 46. Submission of Accounts of auqaf. 47. Audit of accounts of auqaf. 48. Board to pass orders on auditor’s report. 49. Sums certified to be due recoverable as arrears of land revenue. 50. Duties of mutawalli. 51. Alienation of waqf property without sanction of Board to be void. 52. Recovery of waqf property transferred in contravention of section 51. 52A. Penalty for alienation of waqf property without sanction of Board. 53. Restriction on purchase of property on behalf of waqf. 54. Removal of encroachment from waqf property. 55. Enforcement of orders made under section 54. 55A. Disposal of property left on waqf property by unauthorised occupants. 56. Restriction on power to grant lease of waqf property. 57. Mutawalli entitled to pay certain costs from income of waqf property. 58. Power of Board to pay dues in case of default by mutawalli. 59. Creation of reserve fund. 60. Extension of time. 61. Penalties. 62. Mutawalli not to spend any money belonging to waqf for self defence. 63. Power to appoint mutawallis in certain cases. 64. Removal of mutawalli. 65. Assumption of direct management of certain auqaf by the Board. 66. Powers of appointment and removal of mutawalli when to be exercised by the State Government. 67. Supervision and supersession of committee of management. 68. Duty of mutawalli or committee to deliver possession of records, etc. 69. Power of Board to frame scheme for administration of waqf. 70. Inquiry relating to administration of waqf. 71. Manner of holding inquiry. http://www.tnwakfboard.org/1995.43.htm#s30 http://www.tnwakfboard.org/1995.43.htm#s31 http://www.tnwakfboard.org/1995.43.htm#s32 http://www.tnwakfboard.org/1995.43.htm#s33 http://www.tnwakfboard.org/1995.43.htm#s34 http://www.tnwakfboard.org/1995.43.htm#s35 http://www.tnwakfboard.org/1995.43.htm#s36 http://www.tnwakfboard.org/1995.43.htm#s37 http://www.tnwakfboard.org/1995.43.htm#s38 http://www.tnwakfboard.org/1995.43.htm#s39 http://www.tnwakfboard.org/1995.43.htm#s40 http://www.tnwakfboard.org/1995.43.htm#s41 http://www.tnwakfboard.org/1995.43.htm#s42 http://www.tnwakfboard.org/1995.43.htm#s43 http://www.tnwakfboard.org/1995.43.htm#s44 http://www.tnwakfboard.org/1995.43.htm#s45 http://www.tnwakfboard.org/1995.43.htm#s46 http://www.tnwakfboard.org/1995.43.htm#s47 http://www.tnwakfboard.org/1995.43.htm#s48 http://www.tnwakfboard.org/1995.43.htm#s49 http://www.tnwakfboard.org/1995.43.htm#s50 http://www.tnwakfboard.org/1995.43.htm#s51 http://www.tnwakfboard.org/1995.43.htm#s52 http://www.tnwakfboard.org/1995.43.htm#s53 http://www.tnwakfboard.org/1995.43.htm#s54 http://www.tnwakfboard.org/1995.43.htm#s55 http://www.tnwakfboard.org/1995.43.htm#s56 http://www.tnwakfboard.org/1995.43.htm#s57 http://www.tnwakfboard.org/1995.43.htm#s58 http://www.tnwakfboard.org/1995.43.htm#s59 http://www.tnwakfboard.org/1995.43.htm#s60 http://www.tnwakfboard.org/1995.43.htm#s61 http://www.tnwakfboard.org/1995.43.htm#s62 http://www.tnwakfboard.org/1995.43.htm#s63 http://www.tnwakfboard.org/1995.43.htm#s64 http://www.tnwakfboard.org/1995.43.htm#s65 http://www.tnwakfboard.org/1995.43.htm#s66 http://www.tnwakfboard.org/1995.43.htm#s67 http://www.tnwakfboard.org/1995.43.htm#s68 http://www.tnwakfboard.org/1995.43.htm#s69 http://www.tnwakfboard.org/1995.43.htm#s70 http://www.tnwakfboard.org/1995.43.htm#s71 3 CHAPTER VII FINANCE OF THE BOARD SECTIONS 72. Annual contribution payable to Board. 73. Power of Chief Executive Officer to direct banks or other person to make payments. 74. Deduction of contribution from perpetual annuity payable to the waqf. 75. Power of board to borrow. 76. Mutawalli not to lend or borrow moneys without sanction. 77. Waqf Fund. 78. Budget of Board. 79. Accounts of Board. 80. Audit of accounts of Board. 81. State Government to pass orders on auditor’s report. 82. Dues of Board to be recovered as arrears of land revenue. CHAPTER VIII JUDICIAL PROCEEDINGS 83. Constitution of Tribunals, etc. 84. Tribunal to hold proceedings expeditiously and to furnish to the parties copies of its decision. 85. Bar of jurisdiction of civil courts. 86. Appointment of a receiver in certain cases. 87. [Omitted.]. 88. Bar to challenge of validity of any notification, etc. 89. Notice of suits by parties against Board. 90. Notice of suits, etc., by courts. 91. Proceedings under the Act 1 of 1894. 92. Board to be party to suit or proceeding. 93. Bar to compromise of suits by or against mutawalli. 94. Power to make application to the Tribunal in case of failure of mutawalli to discharge his duties. 95. Power of appellate authority to entertain appeal after expiry of specified period. CHAPTER IX MISCELLANEOUS 96. Power of Central Government to regulate secular activities of auqaf. 97. Directions by State Government. 98. Annual report by State Government. 99. Power to supersede Board. 100. Protection of action taken in good faith. 101. Survey Commissioner, members and officers of the Board, deemed to be public servants. 102. Special provision for reorganisation of certain Boards. 103. Special provision for establishment of Board for part of a State. 104. Application of Act to properties given or donated by persons not professing Islam for support of certain waqf. 104A. Prohibition of sale, gift, exchange, mortgage or transfer of waqf property. 104B. Restoration of waqf properties in occupation of Government agencies to waqf Board. 105. Power of Board and Chief Executive Officer to require copies of documents, etc., to be furnished. 106. Powers of Central Government to constitute common Boards. 107. Act 36 of 1963 not to apply for recovery of waqf properties. 108. Special provision as to evacuee waqf properties. 108A. Act to have overriding effect. http://www.tnwakfboard.org/1995.43.htm#s72 http://www.tnwakfboard.org/1995.43.htm#s73 http://www.tnwakfboard.org/1995.43.htm#s74 http://www.tnwakfboard.org/1995.43.htm#s75 http://www.tnwakfboard.org/1995.43.htm#s76 http://www.tnwakfboard.org/1995.43.htm#s77 http://www.tnwakfboard.org/1995.43.htm#s78 http://www.tnwakfboard.org/1995.43.htm#s79 http://www.tnwakfboard.org/1995.43.htm#s80 http://www.tnwakfboard.org/1995.43.htm#s81 http://www.tnwakfboard.org/1995.43.htm#s82 http://www.tnwakfboard.org/1995.43.htm#s84 http://www.tnwakfboard.org/1995.43.htm#s85 http://www.tnwakfboard.org/1995.43.htm#s86 http://www.tnwakfboard.org/1995.43.htm#s88 http://www.tnwakfboard.org/1995.43.htm#s89 http://www.tnwakfboard.org/1995.43.htm#s90 http://www.tnwakfboard.org/1995.43.htm#s91 http://www.tnwakfboard.org/1995.43.htm#s92 http://www.tnwakfboard.org/1995.43.htm#s93 http://www.tnwakfboard.org/1995.43.htm#s94 http://www.tnwakfboard.org/1995.43.htm#s95 http://www.tnwakfboard.org/1995.43.htm#s96 http://www.tnwakfboard.org/1995.43.htm#s97 http://www.tnwakfboard.org/1995.43.htm#s98 http://www.tnwakfboard.org/1995.43.htm#s99 http://www.tnwakfboard.org/1995.43.htm#s100 http://www.tnwakfboard.org/1995.43.htm#s101 http://www.tnwakfboard.org/1995.43.htm#s102 http://www.tnwakfboard.org/1995.43.htm#s103 http://www.tnwakfboard.org/1995.43.htm#s104 http://www.tnwakfboard.org/1995.43.htm#s104 http://www.tnwakfboard.org/1995.43.htm#s105 http://www.tnwakfboard.org/1995.43.htm#s105 http://www.tnwakfboard.org/1995.43.htm#s106 http://www.tnwakfboard.org/1995.43.htm#s107 http://www.tnwakfboard.org/1995.43.htm#s108 4 SECTIONS 109. Power to make rules. 110. Powers to make regulations by the Board. 111. Laying of rules and regulations before State Legislature. 112. Repeal and savings. 113. Power to remove difficulties. http://www.tnwakfboard.org/1995.43.htm#s109 http://www.tnwakfboard.org/1995.43.htm#s110 http://www.tnwakfboard.org/1995.43.htm#s111 http://www.tnwakfboard.org/1995.43.htm#s112 http://www.tnwakfboard.org/1995.43.htm#s113 5 THE WAQF ACT, 1995 ACT NO. 43 OF 1995 [22nd November, 1995.] An Act to provide for the better administration of 1 [Auqaf] and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Forty-sixth Year of the Republic of India as follows:— CHAPTER I PRELIMINARY 1. Short title, extent and commencement.—(1) This Act may be called the 2 [Waqf] Act, 1995. (2) It extends to the whole of India 3 ***. (3) It shall come into force in a State on such date 4 as the Central Government may, by notification in the Official Gazette, appoint; and different dates may be appointed for different areas within a State and for different provisions of this Act, and any reference in any provision to the commencement of this Act, shall, in relation to any State or area therein, be construed as reference to the commencement of that provision in such State or area. 2. Application of the Act.—Save as otherwise expressly provided under this Act, this Act shall apply to all 1 [auqaf] whether created before or after the commencement of this Act: Provided that nothing in this Act shall apply to Durgah Khawaja Saheb, Ajmer to which the Durgah Khawaja Saheb Act, 1955 (36 of 1955) applies. 3. Definitions.—In this Act, unless the context otherwise requires,— (a) “beneficiary” means a person or object for whose benefit a 2 [waqf] is created and includes religious, pious and charitable objects and any other objects of public utility sanctioned by the Muslim law: (b) “benefit” does not include any benefit which a mutawalli is entitled to claim solely by reason of his being such mutawalli; (c) “Board” means a Board of 2 [Waqf] established under sub-section (1), or as the case may be, under sub-section (2) of section 13 and shall include a common 2 [Waqf] Board established under section 106; (d) “Chief Executive Officer” means the Chief Executive Officer appointed under sub-section (1) of section 23; (e) “Council” means the Central 2 [Waqf] Council established under section 9; 5 [(ee) “encroacher” means any person or institution, public or private, occupying waqf property, in whole or part, without the authority of law and includes a person whose tenancy, lease or licence has expired or has been terminated by mutawalli or the Board;] (f) “Executive Officer” means the Executive Officer appointed by the Board under sub-section (1) of section 38; 6 [(g) “list of auqaf” means the list of auqaf published under sub-section (2) of section 5 or contained in the register of auqaf maintained under section 37;] (h) “member” means a member of the Board and includes the Chairperson; 1. Subs. by Act 27 of 2013, s. 2, for “wakfs” (w.e.f. 1-11-2013). 2. Subs. by s. 3, ibid., for “wakf” (w.e.f. 1-11-2013). 3. The words “except the State of Jammu and Kashmir” omitted by Act 34 of 2019, s. 95 and the Fifth Schedule (w.e.f. 31-10-2019). 4. 1st January, 1996, vide notification No. S.O. 1007 (E), dated 27th December, 1995, see Gazette of India, Extraordinary, Part II, sec. 3(ii). 5. Ins. by s. 5, ibid. (w.e.f. 1-11-2013). 6. Subs. by s. 5, ibid., for clause (g) (w.e.f. 1-11-2013). http://www.tnwakfboard.org/1995.43.htm#s13 http://www.tnwakfboard.org/1995.43.htm#s106 http://www.tnwakfboard.org/1995.43.htm#s23 http://www.tnwakfboard.org/1995.43.htm#s23 http://www.tnwakfboard.org/1995.43.htm#s9 http://www.tnwakfboard.org/1995.43.htm#s38 http://www.tnwakfboard.org/1995.43.htm#s38 http://www.tnwakfboard.org/1995.43.htm#s38 6 (i) “mutawalli” means any person appointed, either verbally or under any deed or instrument by which a 1 [waqf] has been created, or by a competent authority, to be the mutawalli of a 1 [waqf] and includes any person who is a mutawalli of a 1 [waqf] by virtue of any custom or who is a naib-mutawalli, khandim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being, managing or administering any 1 [waqf] or 1 [waqf] property: Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office-bearer of such committee or corporation: 2 [Provided further that the mutawalli shall be a citizen of India and shall fulfil such other qualifications as may be prescribed: Provided also that in case a waqf has specified any qualifications, such qualifications may be provided in the rules as may be made by the State Government;] (j) “net annual income”, in relation to a 1 [waqf], means net annual income determined in accordance with the provisions of the Explanations to sub-section (1) of section 72; (k) “person interested in a 1 [waqf]” means any person who is entitled to receive any pecuniary or other benefits from the 1 [waqf] and includes— (i) any person who has a right to 3 [offer prayer] or to perform any religious rite in a mosque, idgah, imambara,dargah, 4 [khanqah, peerkhana and karbala], maqbara, graveyard or any other religious institution connected with the 1 [waqf] or to participate in any religious or charitable institution under the 1 [waqf]; (ii) the 5 [waqif] and any descendant of the 5 [waqif] and the mutawalli; (l) “prescribed”, except in Chapter III, means prescribed by rules made by the State Governments; (m) “regulations” means the regulations made by the Board under this Act; (n) “Shia 1 [waqf]” means a 1 [waqf] governed by Shia Law; (o) “Sunni 1 [waqf]” means a 1 [waqf] governed by Sunni Law; (p) “Survey Commissioner” means the Survey Commissioner of 1 [Waqf] appointed under sub-section (1) of section 4 and includes any Additional or Assistant Survey Commissioners of 6 [Auqaf] under sub-section (2) of section 4; (q) “Tribunal”, in relation to any area, means the Tribunal constituted under sub-section (1) of section 83, having jurisdiction in relation to that area; 7 [(r) “waqf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes— (i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser; (ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record; (iii) “grants”, including mashrat-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and 1. Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013). 2. Ins. by s. 5, ibid. (w.e.f. 1-11-2013). 3. Subs. by s. 5, ibid., for “worship” (w.e.f. 1-11-2013). 4. Subs. by s. 5, ibid., for “khangah” (w.e.f. 1-11-2013). 5. Subs. by s. 4, ibid., for “wakif” (w.e.f. 1-11-2013). 6. Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013). 7. Subs. by s. 5, ibid., for clause (r) (w.e.f. 1-11-2013). http://www.tnwakfboard.org/1995.43.htm#s72_Ex1 http://www.tnwakfboard.org/1995.43.htm#s4 http://www.tnwakfboard.org/1995.43.htm#s4 http://www.tnwakfboard.org/1995.43.htm#s83 http://www.tnwakfboard.org/1995.43.htm#s83 7 (iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law, and “waqif” means any person making such dedication;] (s) “ 1 [waqf] deed” means any deed or instrument by which a 1 [waqf] has been created and includes any valid subsequent deed or instrument by which any of the terms of the original dedication have been varied; (t) “ 1 [Waqf] Fund” means a 1 [waqf] fund formed under sub-section (1) of section 77. CHAPTER II SURVEY OF 2[AUQAF] 4. Preliminary survey of 2 [auqaf].—(1) The State Government may, by notification in the Official Gazette, appoint for the State a Survey Commissioner of 2 [Auqaf] and as many Additional or Assistant Survey Commissioners of 2 [Auqaf] as may be necessary for the purpose of making a survey of 3 [auqaf in the State]. 4 [(1A) Every State Government shall maintain a list of auqaf referred to in sub-section (1) and the survey of auqaf shall be completed within a period of one year from the date of commencement of the Wakf (Amendment) Act, 2013 (27 of 2013), in case such survey was not done before the commencement of the Wakf (Amendment) Act, 2013: Provided that where no Survey Commissioner of Waqf has been appointed, a Survey Commissioner for auqaf shall be appointed within three months from the date of such commencement.] (2) All Additional and Assistant Survey Commissioner of 2 [Auqaf] shall perform their functions under this Act under the general supervision and control of the Survey Commissioner of 2 [Auqaf]. (3) The Survey Commissioner shall, after making such inquiry as he may consider necessary, submit his report, in respect of 2 [auqaf] existing at the date of the commencement of this Act in the State or any part thereof, to the State Government containing the following particulars, namely:— (a) the number of 2 [auqaf] in the State showing the Shia 2 [auqaf] and Sunni 2 [auqaf] separately; (b) the nature and objects of each 1 [waqf]; (c) the gross income of the property comprised in each 1 [waqf]; (d) the amount of land revenue, cesses, rates and taxes payable in respect of each 1 [waqf]; (e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each 1 [waqf]; and (f) such other particulars relating to each 1 [waqf] as may be prescribed. (4) The Survey Commissioner shall, while making any inquiry, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely:— (a) summoning and examining any witness; (b) requiring the discovery and production of any document; (c) requisitioning any public record from any court or office; (d) issuing commissions for the examination of any witness or accounts; (e) making any local inspection or local investigation; (f) such other matters as may be prescribed. 1. Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013). 2. Subs. by s. 4, ibid., for “ wakfs” (w.e.f. 1-11-2013). 3. Subs. by s. 6, ibid., for “wakfs existing in the State at the date of the commencement of this Act” (w.e.f. 1-11-2013). 4. Ins. by s. 6, ibid. (w.e.f. 1-11-2013). http://www.tnwakfboard.org/1995.43.htm#s77 8 (5) If, during any such inquiry, any dispute arises as to whether a particular 1 [waqf] is a Shia 1 [waqf] or Sunni 1 [waqf] and there are clear indications in the deed of 1 [waqf] as to its nature, the dispute shall be decided on the basis of such deed. (6) The State Government may, by notification in the Official Gazette, direct the Survey Commissioner to make a second or subsequent survey of 1 [waqf] properties in the State and the provisions of sub-sections (2), (3), (4) and (5) shall apply to such survey as they apply to a survey directed under sub-section (1): Provided that no such second or subsequent survey shall be made until the expiry of a period of 2 [ten years] from the date on which the report in relation to the immediately previous survey was submitted under sub-section (3): 3 [Provided further that the waqf properties already notified shall not be reviewed again in subsequent survey except where the status of such property has been changed in accordance with the provisions of any law.] 5. Publication of list of 4 [auqaf].—(1) On receipt of a report under sub-section (3) of section 4, the State Government shall forward a copy of the same to the Board. (2) The Board shall examine the report forwarded to it under sub-section (1) and 5 [fordward it back to the Government within a period of six months for publication in the Official Gazette] a list of Sunni 4 [auqaf] or Shia 4 [auqaf] in the State, whether in existence at the commencement of this Act or coming into existence thereafter, to which the report relates, and containing such other particulars as may be prescribed. 6 [(3) The revenue authorities shall— (i) include the list of auqaf referred to in sub-section (2), while updating the land records; and (ii) take into consideration the list of auqaf referred to in sub-section (2), while deciding mutation in the land records. (4) The State Government shall maintain a record of the lists published under sub-section (2) from time to time.] 6. Disputes regarding 4 [auqaf].—(1) If any question arises whether a particular property specified as 1 [waqf] property in the list of 4 [auqaf] is 1 [waqf] property or not or whether a 1 [waqf] specified in such list is a Shia 1 [waqf] or Sunni 1 [waqf], the Board or the mutawalli of the 1 [waqf] or 7 [any person aggrieved] may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of 4 [auqaf]: 8 [Provided further that no suit shall be instituted before the Tribunal in respect of such properties notified in a second or subsequent survey pursuant to the provisions contained in sub-section (6) of section 4.] 9 * * * * * (2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any 1 [waqf] shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit. 1. Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013). 2. Subs. by s. 6, ibid., for “twenty years” (w.e.f. 1-11-2013). 3. Ins. by s. 6, ibid. (w.e.f. 1-11-2013). 4. Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013). 5. Subs. by s. 7, ibid., for “publish in the Official Gazette” (w.e.f. 1-11-2013). 6. Ins. by s. 7, ibid. (w.e.f. 1-11-2013). 7. Subs. by s. 8, ibid., for “any person interested therein” (w.e.f. 1-11-2013). 8. Ins. by s. 8, ibid. (w.e.f. 1-11-2013). 9. The Explanation omitted by s. 8, ibid.(w.e.f. 1-11-2013). http://www.tnwakfboard.org/1995.43.htm#s4_3 9 (3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder. (4) The list of 1 [auqaf] shall, unless it is modified in pursuance of a decision of the Tribunal under sub-section (1), be final and conclusive. (5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court in that State in relation to any question referred to in sub-section (1). 7. Power of Tribunal to determine disputes regarding 1 [auqaf].—(1) If, after the commencement of this Act, 2 [any question or dispute] arises, whether a particular property specified as 3 [waqf] property in a list of 1 [auqaf] is 3 [waqf] property or not, or whether a 3 [waqf] specified in such list is a Shia 3 [waqf] or a Sunni 3 [waqf], the Board or the mutawalli of the 3 [waqf], 4 [or any person aggrieved by the publication of the list of auqaf under section 5] therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final: Provided that— (a) in the case of the list of 1 [auqaf] relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of 1 [auqaf]; and (b) in the case of the list of 1 [auqaf] relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement: Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question. (2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this section in respect of any 3 [waqf] shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding. (3) The Chief Executive Officer shall not be made a party to any application under sub-section (1). (4) The list of 1 [auqaf] and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final. (5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of section 6, before the commencement of the Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be. 5 [(6) The Tribunal shall have the powers of assessment of damages by unauthorised occupation of waqf property and to penalise such unauthorised occupants for their illegal occupation of the waqf property and to recover the damages as arrears of land revenue through the Collector: Provided that whosoever, being a public servant, fails in his lawful duty to prevent or remove an encroachment, shall on conviction be punishable with fine which may extend to fifteen thousand rupees for each such offence.] 6 [8. State Government to bear cost of survey.—The total cost of making a survey including the cost of publication of the list or lists of auqaf under this Chapter shall be borne by the State Government.] 1. Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013). 2. Subs. by s. 9, ibid., for “any question” (w.e.f. 1-11-2013). 3. Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013). 4. Subs. by s. 9, ibid., for “or any person interested” (w.e.f. 1-11-2013). 5. Ins. by s. 9, ibid. (w.e.f. 1-11-2013). 6. Subs. by s. 10, ibid., for section 8 (w.e.f. 1-11-2013). http://www.tnwakfboard.org/1995.43.htm#s6 10 CHAPTER III CENTRAL 1[WAQF] COUNCIL 9. Establishment and constitution of Central 1 [Waqf] Council.— 2 [(1) The Central Government may, by notification in the Official Gazette, establish a Council to be called the Central Waqf Council, for the purpose of advising the Central Government, the State Governments and the Boards on matters concerning the working of Boards and the due administration of auqaf. (1A) The Council referred to in sub-section (1) shall issue directives to the Boards, on such issues and in such manner, as provided under sub-sections (4) and (5).] (2) The Council shall consist of— (a) the Union Minister in-charge of 1 [waqf]—ex officio Chairperson; (b) the following members to be appointed by the Central Government from amongst Muslims, namely:— (i) three persons to represent Muslim organisations having all India character and national importance; 3 [(ii) four persons of national eminence, one each from the fields of administration or management, financial management, engineering or architecture and medicine;] (iii) three Members of Parliament of whom two shall be from the House of the People and one from the Council of States; (iv) Chairpersons of three Boards by rotation; (v) two persons who have been Judges of the Supreme Court or a High Court; (vi) one Advocate of national eminence; (vii) one person to represent the mutawallis of the 1 [waqf] having a gross annual income of rupees five lakhs and above; (viii) three persons who are eminent scholars in Muslim Law: 4 [Provided that at least two of the members appointed under sub-clauses (i) to (viii) shall be women.] (3) The term of office of, the procedure to be followed in the discharge of their functions by, and the manner of filling casual vacancies among, members of the Council shall be such as may be, prescribed by rules made by the Central Government. 4 [(4) The State Government or, as the case may be, the Board, shall furnish information to the Council on the performance of Waqf Boards in the State, particularly on their financial performance, survey, maintenance of waqf deeds, revenue records, encroachment of waqf properties, annual reports and audit reports in the manner and time as may be specified by the Council and it may suo motu call for information on specific issues from the Board, if it is satisfied that there was prima facie evidence of irregularity or violation of the provisions of this Act and if the Council is satisfied that such irregularity or violation of the Act is established, it may issue such directive, as considered appropriate, which shall be complied with by the concerned Board under intimation to the concerned State Government. (5) Any dispute arising out of a directive issued by the Council under sub-section (4) shall be referred to a Board of Adjudication to be constituted by the Central Government, to be presided over by a retired Judge of the Supreme Court or a retired Chief Justice of a High Court and the fees and travelling and other allowances payable to the Presiding Officer shall be such as may be specified by that Government.] 1. Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013). 2. Subs. by s. 11, ibid., for sub-section (1) (w.e.f. 1-11-2013). 3. Subs. by s. 11, ibid., for sub-clause (ii) (w.e.f. 1-11-2013). 4. Ins. by s. 11, ibid. (w.e.f. 1-11-2013). 11 10. Finance of Council.—(1) Every Board shall pay from its 1 [Waqf] Fund annually to the Council such contribution as is equivalent to one per cent. of the aggregate of the net annual income of the 2 [auqaf] in respect of which contribution is payable under sub-section (1) of section 72: Provided that where the Board, in the case of any particular 1 [waqf] has remitted under sub-section (2) of section 72 the whole of the contribution payable to it under sub-section (1) of that section, then for calculating the contribution payable to the Council under this section the net annual income of the 1 [waqf] in respect of which such remission has been granted shall not be taken into account. (2) All monies received by the Council under sub-section (1) and all other monies received by it as donations, benefactions and grants shall form a fund to be called the Central 1 [Waqf] Fund. (3) Subject to any rules that may be made by the Central Government in this behalf, the Central 1 [Waqf] Fund shall be under the control of the Council and may be applied for such purposes as the Council may deem fit. 11. Accounts and audit.—(1) The Council 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 by rules made by the Central Government. (2) The accounts of the Council shall be audited and examined annually by such auditor as may be appointed by the Central Government. (3) The costs of the audit shall be paid from the Central 1 [Waqf] Fund. 12. Power of Central Government to make rules.—(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Chapter. (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 term of office of, the procedure to be followed in the discharge of their functions by, and the manner of filling casual vacancies among, the members of the Council; (b) control over and application of the Central 1 [Waqf] Fund; (c) the form and manner in which accounts of the Council may be maintained. (3) Every rule made by the Central Government under this Chapter shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of third days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under the rule. CHAPTER IV ESTABLISHMENT OF BOARDS AND THEIR FUNCTIONS 13. Incorporation.—(1) With effect from such date as the State Government may, by notification in the Official Gazette, appoint in this behalf, there shall be established a Board of 2 [Auqaf] under such name as may be specified in the notification: 3 [Provided that in case where a Board of Waqf has not been established, as required under this sub-section, a Board of Waqf shall, without prejudice to the provisions of this Act or any other law for the time being in force, be established within six months from the date of commencement of the Wakf (Amendment) Act, 2013 (27 of 2013).] 1. Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013). 2. Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013). 3. Ins. by s. 12, ibid. (w.e.f. 1-11-2013). http://www.tnwakfboard.org/1995.43.htm#s72 http://www.tnwakfboard.org/1995.43.htm#s72_2 http://www.tnwakfboard.org/1995.43.htm#s72_1 http://www.tnwakfboard.org/cenrule.htm 12 (2) Notwithstanding anything contained in sub-section (1), if the Shia 1 [auqaf] in any State constitute in number more than fifteen per cent. of all the 1 [auqaf] in the State or if the income of the properties of the Shia 1 [auqaf] in the State constitutes more than fifteen per cent. of the total income of properties of all the 1 [auqaf] in the State, the State Government may, by notification in the Official Gazette, establish a Board of 1 [Auqaf] each for Sunni 1 [auqaf] and for Shia 1 [auqaf] under such names as may be specified in the notification. 2 [(2A) Where a Board of Waqf is established under sub-section (2) of section 13, in the case of Shia waqf, the Members shall belong to the Shia Muslim and in the case of Sunni waqf, the Members shall belong to the Sunni Muslim.] (3) The Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to such conditions and restrictions as may be prescribed and shall by the said name sue and be sued. 14. Composition of Board.—(1) The Board for a State and 3 [the National Capital Territory of Delhi] shall consist of— (a) a Chairperson; (b) one and not more than two members, as the State Government may think fit, to be elected from each of the electoral colleges consisting of— (i) Muslim Members of Parliament from the State or, as the case may be, 3 [the National Capital Territory of Delhi]; (ii) Muslim Members of the State Legislature; 4 [(iii) Muslim members of the Bar Council of the concerned State or Union territory: Provided that in case there is no Muslim member of the Bar Council of a State or a Union territory, the State Government or the Union territory administration, as the case may be, may nominate any senior Muslim advocate from that State or the Union territory, and] (iv) mutawallis of the 1 [auqaf] having an annual income of rupees one lakh and above. 5 [Explanation I.—For the removal of doubts, it is hereby declared that the members from categories mentioned in sub-clauses (i) to (iv), shall be elected from the electoral college constituted for each category. Explanation II.—For the removal of doubts it is hereby declared that in case a Muslim member ceases to be a Member of Parliament from the State or National Capital Territory of Delhi as referred to in sub-clause (i) of clause (b) or ceases to be a Member of the State Legislative Assembly as required under sub-clause (ii) of clause (b), such member shall be deemed to have vacated the office of the member of the Board for the State or National Capital Territory of Delhi, as the case may be, from the date from which such member ceased to be a Member of Parliament from the State National Capital Territory of Delhi, or a Member of the State Legislative Assembly, as the case may be;] 6 [(c) one person from amongst Muslims, who has professional experience in town planning or business management, social work, finance or revenue, agriculture and development activities, to be nominated by the State Government; (d) one person each from amongst Muslims, to be nominated by the State Government from recognised scholars in Shia and Sunni Islamic Theology; (e) one person from amongst Muslims, to be nominated by the State Government from amongst the officers of the State Government not below the rank of Joint Secretary to the State Government;] 1. Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013). 2. Ins. by s. 12, ibid. (w.e.f. 1-11-2013). 3. Subs. by s. 13, ibid., for “the Union territory of Delhi” (w.e.f. 1-11-2013). 4. Subs. by s. 13, ibid., for sub-clause (iii) (w.e.f. 1-11-2013). 5. Ins. by s. 13, ibid. (w.e.f. 1-11-2013). 6. Subs. by s. 13, ibid., for clauses (c), (d) and (e) (w.e.f. 1-11-2013). 13 1 [(1A) No Minister of the Central Government or, as the case may be, a State Government, shall be elected or nominated as a member of the Board: Provided that in case of a Union territory, the Board shall consist of not less than five and not more than seven members to be appointed by the Central Government from categories specified under sub-clauses (i) to (iv) of clause (b) or clauses (c) to (e) in sub-section (1): Provided further that at least two Members appointed on the Board shall be women: Provided also that in every case where the system of mutawalli exists, there shall be one mutawalli as the member of the Board.] (2) Election of the members specified in clause (b) of sub-section (1) shall be held in accordance with the system of proportional representation by means of a single transferable vote, in such manner as may be prescribed: Provided that where the number of Muslim Members of Parliament, the State Legislature or the State Bar Council, as the case may be, is only one, such Muslim Member shall be declared to have been elected on the Board: Provided further that where there are no Muslim Members in any of the categories mentioned in sub-clauses (i) to (iii) of clause (b) of sub-section (1) the ex-Muslim Members of Parliament, the State Legislature or ex-member of the State Bar Council, as the case may be, shall constitute the electoral college. (3) Notwithstanding anything contained in this section, where the State Government is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to constitute an electoral college for any of the categories mentioned in sub-clauses (i) to (iii) of clause (b) of sub-section (1), the State Government may nominate such persons as the members of the Board as it deems fit. (4) The number of elected members of the Board shall, at all times, be more than the nominated members of the Board except as provided under sub-section (3). 2 * * * * * (6) In determining the number of Shia members or Sunni members of the Board, the State Government shall have regard to the number and value of Shia 3 [auqaf] and Sunni 3 [auqaf] to be administered by the Board and appointment of the members shall be made, so far as may be, in accordance with such determination. 2 * * * * * (8) Whenever the Board is constituted or reconstituted, the members of the Board present at a meeting convened for the purpose shall elect one from amongst themselves as the Chairperson of the Board. (9) The members of the Board shall be appointed by the State Government by notification in the Official Gazette. 15. Term of office.—The members of the Board shall hold office for a term of five years 4 [from the date of notification referred to in sub-section (9) of section 14]. 16. Disqualification for being appointed, or for continuing as, a member of the Board.—A person shall be disqualified for being appointed, or for continuing as, a member of the Board if— (a) he is not a Muslim and is less than twenty-one years of age; (b) he is found to be a person of unsound mind; (c) he is an undischarged insolvent; (d) he has been convicted of an offence involving moral turpitude and such conviction has not been reversed or he has not been granted full pardon in respect of such offence; 1. Ins. by Act 27 of 2013, s. 13 (w.e.f. 1-11-2913). 2. Sub-sections (5) and (7) omitted by s. 13, ibid. (w.e.f. 1-11-2013). 3. Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013). 4. Ins. by s. 14, ibid. (w.e.f. 1-11-2013). http://www.tnwakfboard.org/tnrule1.htm 14 1 [(da) he has been held guilty of encroachment on any waqf property;] (e) he has been on a previous occasion— (i) removed from his office as a member or as a mutawalli, or (ii) removed by an order of a competent court or tribunal from any position of trust either for mismanagement or for corruption.] 17. Meetings of the Board.—(1) The Board shall meet for the transaction of business at such time and places as may be provided by regulations. (2) The Chairperson, or in his absence, any member chosen by the members from amongst themselves shall preside at a meeting of the Board. (3) Subject to the provisions of this Act, all questions which come before any meeting of the Board shall be decided by a majority of votes of the members present, and in the case of equality of votes, the Chairperson or, in his absence, any other person presiding shall have a second or casting vote. 18. Committees of the Board.—(1) The Board may, whenever it considers necessary, establish either generally or for a particular purpose or for any specified area or areas committees for the supervision of 2 [auqaf]. (2) The Constitution, functions and duties and the term of office of such committees shall be determined from time to time by the Board: Provided that it shall not be necessary for the members of such committees to be members of the Board. 19. Resignation of Chairperson and members.—The Chairperson or any other member may resign his office by writing under his hand addressed to the State Government: Provided that the Chairperson or the member shall continue in office until the appointment of his successor is notified in the Official Gazette. 20. Removal of Chairperson and member.—(1) The State Government may, by notification in the Official Gazette, remove the Chairperson of the Board or any member thereof if he— (a) is or becomes subject to any disqualifications specified in section 16; or (b) refuses to act or is incapable of acting or acts in a manner which the State Government, after hearing any explanation that he may offer, considers to be prejudicial to the interests of the 2 [auqaf]; or (c) fails in the opinion of the Board, to attend three consecutive meetings of the Board, without sufficient excuse. (2) Where the Chairperson of the Board is removed under sub-section (1), he shall also cease to be a member of the Board. 3 [20A. Removal of Chairperson by vote of no confidence.—Without prejudice to the provisions of section 20, the Chairperson of a Board may be removed by vote of no confidence in the following manner, namely:— (a) no resolution expressing a vote of confidence or no confidence in any person elected as Chairperson of a Board shall be moved except in the manner prescribed and twelve months have not elapsed after the date of his election as a Chairperson and be removed except with the prior permission of the State Government; (b) notice for no confidence shall be addressed to the State Government stating clearly the grounds on which such motion is proposed to be moved and shall be signed by at least half the total members of the Board; 1. Ins. by Act 27 of 2013, s. 15 (w.e.f. 1-11-2013). 2. Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013). 3. Ins. by s. 16, ibid. (w.e.f. 1-11-2013). http://www.tnwakfboard.org/1995.43.htm#s16 15 (c) at least three members of the Board signing the notice of no confidence shall personally present to the State Government, the notice together with an affidavit signed by them to the effect that the signatures on no confidence motion are genuine and have been made by the signatories after hearing or reading the contents of the notice; (d) on receipt of the notice of no confidence, as provided hereinabove, the State Government shall fix such time, date and place as may be considered suitable for holding a meeting for the purpose of the proposed no confidence motion: Provided that at least fifteen days notice shall be given for such a meeting; (e) notice for meeting under clause (d) shall also provide that in the event of no confidence motion being duly carried on or, election of the new Chairperson, as the case may be, shall also be held in the same meeting; (f) the State Government shall also nominate a Gazetted Officer (other than an officer of the department which is concerned with the supervision and administration of the Board) to act as presiding officer of the meeting in which the resolution for no confidence shall be considered; (g) the quorum for such a meeting of the Board shall be one-half of the total number of members of the Board; (h) the resolution for no confidence shall be deemed to be carried out, if passed by a simple majority of the members present; (i) if a resolution for no confidence is carried out, the Chairperson shall cease to hold office forthwith and shall be succeeded by his successor who shall be elected by another resolution in the same meeting; (j) election of the new Chairperson shall be conducted under clause (i), in the meeting under the chairmanship of the said presiding officer referred to in clause (f), in the following manner, namely:— (A) Chairperson shall be elected from amongst the elected members of the Board; (B) nomination of candidates shall be proposed and seconded in the meeting itself and election after withdrawal, if any, shall be held by method of secret ballot; (C) election shall be held by simple majority of the members present in the meeting and in case of equality of votes, the matter shall be decided by drawing of lots; and (D) proceedings of the meeting shall be signed by the presiding officer; (k) new Chairperson elected under clause (h) shall hold the office only up to the remainder of the term of the Chairperson removed by the resolution of no confidence; and (l) if the motion for passing the resolution of no confidence fails for want of quorum or lack of requisite majority at the meeting, no subsequent meeting for considering the motion of no confidence shall be held within six months of the date of the previous meeting.] 21. Filling of a vacancy.—When the seat of a member becomes vacant by his removal, resignation, death or otherwise, a new member shall be appointed in his place and such member shall hold office so long as the member whose place he fills would have been entitled to hold office, if such vacancy had not occurred. 22. Vacancies, etc., not to invalidate proceedings of the Board.—No act or proceeding of the Board shall be invalid by reason only of the existence of any vacancy amongst its member or any defect in the constitution thereof. 23. Appointment of Chief Executive Officer and his term of office and other conditions of service.— 1 [(1)There shall be a full-time Chief Executive Officer of the Board who shall be a Muslim and shall be appointed by the State Government, by notification in the Official Gazette, from a panel of two names suggested by the Board and who shall not be below the rank of Deputy Secretary to the State 1. Subs. by Act 27 of 2013, s. 17, for sub-section (1) (w.e.f. 1-11-2013). 16 Government, and in case of non-availability of a Muslim officer of that rank, a Muslim officer of equivalent rank may be appointed on deputation.] (2) The term of office and other conditions of service of the Chief Executive Officer shall be such as may be prescribed. (3) The Chief Executive Officer shall be ex officio Secretary of the Board and shall be under the administrative control of the Board. 24. Officers and other employees of the Board.—(1) The Board shall have the assistance of such number of officers and other employees as may be necessary for the efficient performance of its functions under this Act, details thereof shall be determined by the Board in consultation with the State Government. (2) The appointment of officers and other employees, their term of office and conditions of service shall be such as may be provided by regulations. 25. Duties and powers of Chief Executive Officer.—(1) Subject to the provisions of this Act and of the rules made thereunder and the directions of the Board, functions of the Chief Executive Officer shall include— (a) investigating the nature and extent of 1 [auqaf] and 2 [waqf] properties and calling whenever necessary, an inventory of 2 [waqf] properties and calling, from time to time, for accounts, returns and information from mutawallis; (b) inspecting or causing inspection of 2 [waqf] properties and accounts, records, deeds or documents relating thereto; (c) doing generally of such acts as may be necessary for the control, maintenance and superintendence of 1 [auqaf]. (2) In exercising the powers of giving directions under sub-section (1) in respect of any 2 [waqf], the Board shall act in conformity with the directions by the 2 [waqf] in the deed of the 2 [waqf], the purpose of 2 [waqf] and such usage and customs of the 2 [waqf] as are sanctioned by the school of Muslim law to which the 2 [waqf] belongs. (3) Save as otherwise expressly provided in this Act, the Chief Executive Officer shall exercise such powers and perform such duties as may be assigned to him or delegated to him under this Act. 26. Powers of Chief Executive officer in respect of orders or resolutions of Board.—Where the Chief Executive Officer considers that an order or resolution passed by the Board— (a) has not been passed in accordance with the law; or (b) is in excess of or is an abuse of the powers conferred on the Board by or under this Act or by any other law; or (c) if implemented, is likely to— (i) cause financial loss to the Board or to the concerned 2 [waqf] or to the 1 [auqaf] generally; or (ii) lead to a riot or breach of peace; or (iii) cause danger to human life, health or safety; or (d) is not beneficial to the Board or to any 2 [waqf] or to 1 [auqaf] generally, he may, before implementing such order or resolution, place the matter before the Board for its reconsideration and, if such order or resolution is not confirmed by a majority of vote of the members present and voting after such reconsideration, refer the matter to the State Government along with his objections to the order or resolution, and the decision of the State Government thereon shall be final. 1. Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013). 2. Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013). 17 1 [27. Delegation of powers by the Board.—The Board may, by a general or special order in writing, delegate to the Chairperson, any other member, the Chief Executive Officer or any other officer or servant of the Board or any area committee, subject to such conditions and limitations as may be specified in the said order, such of its powers and duties under this Act, as it may deem necessary, except the powers and functions of the Board mentioned under clauses (c), (d), (g) and (j) of sub-section (2) of section 32 and section 110.] 2 [28. Power of District Magistrate, Additional District Magistrate or Sub-Divisional Magistrate to implement the directions of the Board.—Subject to the provisions of this Act and the rules made thereunder, the District Magistrate or in his absence an Additional District Magistrate or Sub-Divisional Magistrate of a District in the State shall be responsible for implementation of the decisions of the Board which may be conveyed through the Chief Executive Officer and the Board may, wherever considers necessary, seek directions from the Tribunal for the implementation of its decisions.] 29. Powers of Chief Executive Officer to inspect records, registers, etc.— 3 [(1)] The Chief Executive Officer or any officer of the Board duly authorised by him in this behalf shall, 4 [subject to such conditions as may be prescribed], be entitled at all reasonable time to inspect, in any public office, any records, registers or other documents relating to a 5 [waqf], or movable or immovable properties which are 5 [waqf] properties or are claimed to be 5 [waqf] properties. 6 [(2) The mutawalli or any other person having the custody of any document related to waqf properties shall produce the same, within the prescribed period, before the Chief Executive Officer on being called upon to do so in writing. (3) Subject to such conditions as may be prescribed, an agency of the Government or any other organisation shall supply, within ten working days, copies of the records, registers of properties or other documents relating to waqf properties or claimed to be waqf properties, to the Chief Executive Officer on a written request to this effect from him: Provided that before taking any course of action as mentioned in sub-sections (2) and (3), the Chief Executive Officer shall obtain approval of the Board.] 30. Inspection of records.—(1) The Board may allow inspection of its proceedings or other records in its custody and issue copies of the same on payment of such fees and subject to such conditions as may be prescribed. (2) All copies issued under this section shall be certified by the Chief Executive Officer of the Board in the manner provided in section 76 of the Indian Evidence Act, 1872 (1 of 1872). (3) The powers conferred on the Chief Executive Officer by sub-section (2) may be exercised by such other officer or officers of the Board as may either generally or specially be authorised in this behalf by the Board. 31. 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 7 [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]. 32. Powers and functions of the Board.—(1) Subject to any rules that may be made under this Act, the general superintendence of all 8 [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 8 [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 8 [auqaf] were created or intended: 1. Subs. by Act 27 of 2013, s. 18, for section 27 (w.e.f. 1-11-2013). 2. Subs. by s. 19, ibid., for section 28 (w.e.f. 1-11-2013). 3. S. 29 numbered as sub-section (1) thereof by s. 20, ibid. (w.e.f. 1-11-2013). 4. Subs. by s. 20, ibid., for certain words (w.e.f.1-11-2013). 5. Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013). 6. Ins. by s. 20, ibid. (w.e.f. 1-11-2013). 7. Ins. by s. 21, ibid. (w.e.f. 1-11-2013). 8. Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013). 18 Provided that in exercising its powers under this Act in respect of any 1 [waqf], the Board shall act in conformity with the directions of the 2 [waqif], the purposes of the 1 [waqf] and any usage or custom of the 1 [waqf] sanctioned by the school of Muslim law to which the 1 [waqf] belongs. Explanation.—For the removal of doubts, it is hereby declared that in this sub-section, “ 1 [waqf]” includes a 1 [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 1 [waqf]; (b) to ensure that the income and other property of 3 [auqaf] are applied to the objects and for the purposes for which such 3 [auqaf] were intended or created; (c) to give directions for the administration of 3 [auqaf]; (d) to settle schemes of management for a 1 [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 1 [waqf] consistent with the objects of 1 [waqf]; (ii) in what manner the income of a 1 [waqf], the objects of which are not evident from any written instrument, shall be utilised; (iii) in any case where any object of 1 [waqf] has ceased to exist or has become incapable of achievement, that so much of the income of the 1 [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 1 [waqf], by the Sunni members of the Board only; and (ii) in the case of a Shia 1 [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 3 [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 1 [waqf]; (i) to institute and defend suits and proceedings relating to 3 [auqaf]; 4 [(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: 1. Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013). 2. Subs. by s. 4, ibid., for “wakif” (w.e.f. 1-11-2013). 3. Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013). 4. Subs. by s. 22, ibid., for clause (j) (w.e.f. 1-11-2013). 19 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 1 [Waqf] Fund; (l) to call for such returns, statistics, accounts and other information from the mutawallis with respect to the 1 [waqf] property as the Board may, from time to time, require; (m) to inspect, or cause inspection of, 1 [waqf] properties, accounts, records or deeds and documents relating thereto; (n) to investigate and determine the nature and extent of 1 [waqf] and 1 [waqf] property, and to cause, whenever necessary, a survey of such 1 [waqf] property; 2 [(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 3 [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 1 [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 1 [waqf] land, which is a 1 [waqf] property, 4 [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 1 [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, 5 *** 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 1 [waqf] funds or from the finances which may be raised on the security of the properties of the 1 [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 1 [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 1 [waqf]. 33. 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 6 [or any other person authorised by him in writing] with the prior approval of the Board, 7 ***, may inspect all movable and immovable properties, which are 1. Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013). 2. Ins. by s. 22, ibid. (w.e.f. 1-11-2013). 3. Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013). 4. Subs. by s. 22, ibid., for “offers a feasible potential for development as a shopping centre” (w.e.f. 1-11-2013). 5. The words “with the prior approval of the Government,” omitted by s. 22, ibid. (w.e.f. 1-11-2013). 6. Ins. by s. 23, ibid. (w.e.f. 1-11-2013). 7. 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). 20 1 [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 1 [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 1 [waqf] as may be called for by the person making the inspection and furnish to him such information relating to the 1 [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 1 [waqf] property, or had incurred irregular, unauthorised or improper expenditure from the funds of the 1 [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 1 [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. 34. 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]. 35. 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. 1. Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013). 21 (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. CHAPTER V REGISTRATION OF 1[AUQAF] 36. Registration.—(1) Every 2 [waqf], whether created before or after the commencement of this Act, shall be registered at the office of the Board. (2) Application for registration shall be made by the mutawalli: Provided that such applications may be 3 [made by the waqf] or his descendants or a beneficiary of the 2 [waqf] or any Muslim belonging to the sect to which the 2 [waqf] belongs. (3) An application for registration shall be made in such form and manner and at such place as the Board may by regulation provide and shall contain the following particulars:— (a) a description of the 2 [waqf] properties sufficient for the identification thereof; (b) the gross annual income from such properties; (c) the amount of land revenue, cesses, rates and taxes annually payable in respect of the 2 [waqf] properties; (d) an estimate of the expenses annually incurred in the realisation of the income of the 2 [waqf] properties; (e) the amount set apart under the 2 [waqf] for— (i) the salary of the mutawalli and allowances to the individuals; (ii) purely religious purposes; (iii) charitable purposes; and (iv) any other purposes; (f) any other particulars provided by the Board by regulations. (4) Every such application shall be accompanied by a copy of the 2 [waqf] deed or if no such deed has been executed or a copy thereof cannot be obtained, shall contain full particulars, as far as they are known to the applicant, of the origin, nature and objects of the 2 [waqf]. (5) Every application made under sub-section (2) shall be signed and verified by the applicant in the manner provided in the Code of Civil Procedure, 1908 (5 of 1908) for the signing and verification of pleadings. (6) The Board may require the applicant to supply any further particulars or information that it may consider necessary. 1. Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013). 2. Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013). 3. Subs. by s. 24, ibid., for “made by the wakf” (w.e.f. 1-11-2013). 22 (7) On receipt of an application for registration, the Board may, before the registration of the 1 [waqf] make such inquiries as it thinks fit in respect of the genuineness and validity of the application and correctness of any particulars therein and when the application is made by any person other than the person administering the 1 [waqf] property, the Board shall, before registering the 1 [waqf], give notice of the application to the person administering the 1 [waqf] property and shall hear him if he desires to be heard. (8) In the case of 2 [auqaf] created before the commencement of this Act, every application for registration shall be made, within three months from such commencement and in the case of 2 [auqaf] created after such commencement, within three months from the date of the creation of the 1 [waqf]: Provided that where there is no Board at the time of creation of a 1 [waqf], such application will be made within three months from the date of establishment of the Board. 37. Register of 2 [auqaf].— 3 [(1)] The Board shall maintain a register of 2 [auqaf] which shall contain in respect of each 1 [waqf] copies of the 1 [waqf] deeds, when available and the following particulars, namely:— (a) the class of the 1 [waqf]; (b) the name of the mutawallis; (c) the rule of succession to the office of mutawalli under the 1 [waqf] deed or by custom or by usage; (d) particulars of all 1 [waqf] properties and all title deeds and documents relating thereto; (e) particulars of the scheme of administration and the scheme of expenditure at the time of registration; (f) such other particulars as may be provided by regulations. 4 [(2) The Board shall forward the details of the properties entered in the register of auqaf to the concerned land record office having jurisdiction of the waqf property. (3) On receipt of the details as mentioned in sub-section (2), the land record office shall, according to established procedure, either make necessary entries in the land record or communicate, within a period of six months from the date of registration of waqf property under section 36, its objections to the Board.] 38. Powers of Board to appoint Executive Officer.—(1) Notwithstanding anything contained in this Act, the Board may, if it is of the opinion that it is necessary so to do in the interests of the 1 [waqf], appoint on whole-time or part-time or in an honorary capacity, subject to such conditions as may be provided by regulations, an Executive Officer with such supporting staff as it considers necessary for any 1 [waqf] having a gross annual income of not less than five lakh rupees: Provided that the person chosen for appointment should be a person professing Islam. (2) Every Executive Officer appointed under sub-section (1) shall exercise such powers and discharge such duties as pertain only to the administration of the property of the 1 [waqf] for which he has been appointed and shall exercise those powers and discharge those duties under the direction, control and supervision of the Board: Provided that the Executive Officer who is appointed for a 1 [waqf] having a gross annual income of not less than five lakh rupees shall ensure that the budget of the 1 [waqf] is submitted, the accounts of the 1 [waqf] are regularly maintained, and the yearly statement of accounts are submitted within such time as the Board may specify. (3) While exercising his powers and discharging his functions under sub-section (2), the Executive Officer shall not interfere with any religious duties or any usage or custom of the 1 [waqf] sanctioned by the Muslim law. 1. Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013). 2. Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013). 3. S. 37 numbered as sub-section (1) thereof by s. 25, ibid. (w.e.f. 1-11-2013). 4. Ins. by s. 25, ibid. (w.e.f. 1-11-2013). 23 (4) The salaries and allowances of the Executive Officer and his staff shall be fixed by the Board and in fixing the quantum of such salary the Board shall have due regard to the income of the 1 [waqf], the extent and nature of the duties of the Executive Officer and shall also ensure that the amounts of such salaries and allowances are not disproportionate to the income of the 1 [waqf] and do not operate as an unnecessary financial burden on it. (5) The salaries and allowances of the Executive Officer and his staff shall be paid by the Board from the 1 [Waqf] Fund and, if the 1 [waqf] generates any additional income as a result of appointment of the Executive Officer, the Board may claim reimbursement of amounts spent on the salaries and allowances from the fund of the 1 [waqf] concerned. (6) The Board may, for sufficient reasons, and after giving to the Executive Officer or a member of his staff, a reasonable opportunity of being heard, suspend, remove or dismiss the Executive Officer or a member of his staff from his post. (7) Any Executive Officer or a member of his staff who is aggrieved by any order or removal or dismissal made under sub-section (6) may, within thirty days from the date of communication of the order, prefer an appeal against the order to the Tribunal and the Tribunal may, after considering such representation as the Board may make in the matter, and after giving a reasonable opportunity to the Executive Officer or a member of his staff of being heard, confirm, modify or reverse the order. 39. Powers of Board in relation to 2 [auqaf] which have ceased to exist.—(1) The Board shall, if it is satisfied that the objects or any part thereof, of a 1 [waqf] have ceased to exist, whether such cesser took place before or after the commencement of this Act, cause an inquiry to be held by the Chief Executive Officer, in the prescribed manner, to ascertain the properties and funds pertaining to such 1 [waqf]. (2) On the receipt of the report of inquiry of the Chief Executive Officer, the Board shall pass an order,— (a) specifying the property and funds of such 1 [waqf]; (b) directing that any property or funds pertaining to such 1 [waqf] which have been recovered shall be applied or utilised for the renovation of any 1 [waqf] property and where there is no need for making any such renovation or where utilisation of the funds for such renovation is not possible, be appropriated, to any of the purposes specific in sub-clause (iii) of clause (e) of sub-section (2) of section 32. (3) The Board may, if it has reason to believe that any building or other place which was being used for religious purpose or instruction or for charity has, whether before or after the commencement of this Act, ceased to be used for that purpose, make an application to the Tribunal for an order directing the recovery of possession of such building or other place. (4) The Tribunal may, if it is satisfied, after making such inquiry as it may think fit, that such building or other place— (a) is 1 [waqf] property; (b) has not been acquired under any law for the time being in force relating to acquisition of land or is not under any process of acquisition under any such law, or has not vested in the State Government under any law for the time being in force relating to land reforms; and (c) is not in the occupation of any person who has been authorised by or under any law for the time being in force to occupy such building or other place, make an order— (i) directing the recovery of such building or place from any person who may be in unauthorised possession thereof, and (ii) directing that such property, building or place be used for religious purpose or instruction as before, or if such use is not possible, be utilised for any purpose specified in sub-clause (iii) of clause (e) of sub-section (2) of section 32. 1. Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013). 2. Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013). http://www.tnwakfboard.org/1995.43.htm#s32_2eiii http://www.tnwakfboard.org/1995.43.htm#s32_2eiii http://www.tnwakfboard.org/1995.43.htm#s32_2eiii http://www.tnwakfboard.org/1995.43.htm#s32_2eiii 24 40. Decision if a property is 1 [waqf] property.—(1) The Board may itself collect information regarding any property which it has reason to believe to be 1 [waqf] property and if any question arises whether a particular property is 1 [waqf] property or not or whether a 1 [waqf] is a Sunni 1 [waqf] or a Shia 1 [waqf], it may, after making such inquiry as it may deem fit, decide the question. (2) The decision of the Board on a question under sub-section (1) shall, unless revoked or modified by the Tribunal, be final. (3) Where the Board has any reason to believe that any property of any trust or society registered in pursuance of the Indian Trusts Act, 1882 (2 of 1882) or under the Societies Registration Act, 1860 (21 of 1860) or under any other Act, is 1 [waqf] property, the Board may notwithstanding anything contained in such Act, hold an inquiry in regard to such property and if after such inquiry the Board is satisfied that such property is 1 [waqf] property, call upon the trust or society, as the case may be, either to register such property under this Act as 1 [waqf] property or show cause why such property should not be so registered: Provided that in all such cases, notice of the action proposed to be taken under this sub-section shall be given to the authority by whom the trust or society had been registered. (4) The Board shall, after duly considering such cause as may be shown in pursuance of notice issued under sub-section (3), pass such orders as it may think fit and the order so made by the Board, shall be final, unless it is revoked or modified by a Tribunal. 41. Power to cause registration of 1 [waqf] and to amend register.—The Board may direct a mutawalli to apply for the registration of a 1 [waqf], or to supply any information regarding a 1 [waqf] or may itself cause the 1 [waqf] to be registered or may at any time amend the register of 2 [auqaf]. 42. Change in the management of 2 [auqaf] to be notified.—(1) In the case of any change in the management of a registered 1 [waqf] 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 36, the mutawalli shall, within three months from the occurrence of the change, notify such change to the Board. 43. 2 [Auqaf] registered before the commencement of this Act deemed to be registered.— Notwithstanding anything contained in this Chapter, where any 1 [waqf] 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 1 [waqf] 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. CHAPTER VI MAINTENANCE OF ACCOUNTS OF 2[AUQAF] 44. Budget.—(1) Every mutawalli of a 1 [waqf] shall, in every year prepare, in such form and at such time as may be prescribed, a budget in respect of the financial year next ensuing showing the estimated receipts and expenditure during that financial year. (2) Every such budget shall be submitted by the mutawalli at least 3 [thirty days] before the beginning of the financial year to the Board and shall make adequate provision for the following:— (i) for carrying out the objects of the 1 [waqf]; (ii) for the maintenance and preservation of the 1 [waqf] property; (iii) for the discharge of all liabilities and subsisting commitments binding on the 1 [waqf] under this Act or any other law for the time being in force. 4 [(3) In case the Board considers any item in the budget being contrary to the objects of the waqf and the provisions of this Act, it may give such direction for addition or deletion of such item as it may deem fit.] 1. Subs. by Act 27 of 2013, s. 4, for “wakf” (w.e.f. 1-11-2013). 2. Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013). 3. Subs. by s. 26, ibid., for “ninety days” (w.e.f. 1-11-2013). 4. Subs. by s. 26, ibid., for sub-section (3) (w.e.f. 1-11-2013). 25 (4) If in the course of the financial year the mutawalli finds it necessary to modify the provisions made in the budget in regard to the receipt or to the distribution of the amounts to be expended under the different heads, he may submit to the Board a supplementary or a revised budget and the provisions of sub-section (3) shall, as far as may be, apply to such supplementary or revised budget. 45. Preparation of budget of 1 [auqaf] under direct management of the Board.—(1) The Chief Executive Officer shall prepare, in such form and at such time as may be prescribed, a budget in respect of the financial year next ensuing showing the estimated receipts and expenditure for each of the 1 [auqaf] under the direct management of the Board, showing therein the estimated receipts and expenditure and submit it to the Board for its approval. (2) While submitting the budget under sub-section (1), the Chief Executive Officer shall also prepare statement giving details of the increase, if any, in the income of each 2 [waqf] under the direct management of the Board and the steps which have been taken for its better management and the results accruing therefrom during the year. (3) The Chief Executive Officer shall keep regular accounts and be responsible for the proper management of every 2 [waqf] under the direct management of the Board. (4) Every budget submitted by the Chief Executive Officer under sub-section (1) shall comply with the requirements of section 46 and, for this purpose, references therein to the mutawalli of the 3 [waqf] shall be construed as references to the Chief Executive Officer. (5) The audit of accounts of every 2 [waqf] under the direct management of the Board shall be undertaken by the State Examiner of Local funds or any other officer appointed by the State Government for this purpose, irrespective of the income of the 2 [waqf]. (6) The provisions of sub-sections (2) and (3) of section 47 and the provisions of sections 48 and 49 shall, in so far as they are not inconsistent with the provisions of this section, apply to the audit of accounts referred to in this section. (7) Where any 2 [waqf] is under the direct management of the Board, such administrative charges as may be specified by the Chief Executive Officer shall be payable by the 2 [waqf] to the Board: Provided that the Chief Executive Officer shall not collect more than ten per cent. of the gross annual income of the 2 [waqf] under the direct management of the Board as administrative charges. 46. Submission of Accounts of 1 [auqaf].—(1) Every mutawalli shall keep regular accounts. (2) Before the 3 [1st day of July] next, following the date on which the application referred to in section 36 has been made and thereafter before the 3 [1st day of July] in every year, every mutawalli of a 2 [waqf] shall prepare and furnish to the Board a full and true statement of accounts, in such form and containing such particulars as may be provided by regulations by the Board, of all moneys received or expended by the mutawalli on behalf of the 2 [waqf] 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 2 [waqf]: Provided that the date on which the annual accounts are to be closed may be varied at the discretion of the Board. 47. Audit of accounts of 1 [auqaf].—(1) The accounts of 1 [auqaf] submitted to the Board under section 46 shall be audited and examined in the following manner, namely:— (a) in the case of a 2 [waqf] having no income or a net annual income not exceeding 4 [fifty thousand rupees], the submission of a statement of accounts shall be a sufficient compliance with the provisions of section 46 and the accounts of two per cent. of such 1 [auqaf] shall be audited annually by an auditor appointed by the Board; (b) the accounts of the 2 [waqf] having net annual income exceeding 4 [fifty thousand rupees] shall be audited annually, or at such other intervals as may be prescribed, by an auditor appointed by the 1. Subs. by Act 27 of 2013, s. 4, for “wakfs” (w.e.f. 1-11-2013). 2. Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013). 3. Subs. by s. 27, ibid., for “1st day of May” (w.e.f. 1-11-2013). 4. Subs. by s. 28, ibid., for “ten thousand rupees” (w.e.f. 1-11-2013). http://www.tnwakfboard.org/1995.43.htm#s36 26 Board from out of the panel of auditors prepared by the State Government and while drawing up such panel of auditors, the State Government shall specify the scale of remuneration of auditors; (c) the State Government may, 1 [under intimation to the Board,] at any time cause the account of any 2 [waqf] audited by the State Examiner of Local Funds or by any other officer designated for that purpose by that State Government. (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 cost of the audit of the accounts of a 2 [waqf] shall be met from the funds of that 2 [waqf]: Provided that the remuneration of the auditors appointed from out of the panel drawn by the State Government in relation to 3 [auqaf] having a net annual income of 4 [more than fifty thousand rupees] shall be paid in accordance with the scale of remuneration specified by the State Government under clause (c) of sub-section (1): Provided further that where the audit of the accounts of any 2 [waqf] is made by the State Examiner of Local Funds or any other officer designated by the State Government in this behalf, the cost of such audit shall not exceed one and a half per cent. of the net annual income of such 2 [waqf] and such costs shall be met from the funds of the 3 [auqaf] concerned. 48. Board to pass orders on auditor’s report.—(1) 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 as it thinks fit including orders for the recovery of the amount certified by the auditor under sub-section (2) of section 47. (2) The mutawalli or any other person aggrieved by any order made by the Board may, within thirty days of the receipt by him of the order, apply to the Tribunal to modify or set aside the order and the Tribunal may, after taking such evidence as it may think necessary, confirm or modify the order or remit the amount so certified, either in whole or in part, and may also make such order as to costs as it may think appropriate in the circumstances of the case. (3) No application made under sub-section (2) shall be entertained by the Tribunal unless the amount certified by the auditor under sub-section (2) of section 47 has first been deposited in the Tribunal and the Tribunal shall not have any power to stay the operation of the order made by the Board under sub-section (1). (4) The order made by the Tribunal under sub-section (2) shall be final. (5) Every amount for the recovery of which any order has been made under sub-section (1) or sub-section (2) shall, where such amount remains unpaid, be recoverable in the manner specified in section 34 or section 35 as if the said order were an order for the recovery of any amount determined under sub-section (3) of section 35. 49. Sums certified to be due recoverable as arrears of land revenue.—(1) Every sum certified to be due from any person by an auditor in his report under section 47 unless such certificate is modified or cancelled by an order of the Board or of the Tribunal made under section 48, and every sum due on a modified certificate shall be paid by such person within sixty days after the service of a demand notice 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 as an arrear of land revenue. 1. Ins. by Act 27 of 2013, s. 28 (w.e.f. 1-11-2013). 2. Subs. by s. 4, ibid., for “wakf” (w.e.f. 1-11-2013). 3. Subs. by s. 4, ibid., for “wakfs” (w.e.f. 1-11-2013). 4. Subs. by s. 28, ibid., for “more than ten thousand rupees but less than fifteen thousand rupees” (w.e.f. 1-11-2013). http://www.tnwakfboard.org/1995.43.htm#s34 http://www.tnwakfboard.org/1995.43.htm#s35 http://www.tnwakfboard.org/1995.43.htm#s38_3 http://www.tnwakfboard.org/1995.43.htm#s47 27 50. Duties of mutawalli.—It shall be the duty of every mutawalli— (a) to carry out the directions of the Board in accordance with the provisions of this Act or of any rule or order made thereunder; (b) to