Preface

In the Name of Allah, The Most Gracious, Most Merciful

Praise be to Allah who created the heavens and earth; praise be to Allah to whom gratitude for even one of His favours cannot be paid; I ask help of Him; I ask Him for His guidance; I ask Him for His forgiveness; I bear witness that there is no God except Allah, Who has no associate whatever, and that Muhammad is His servant and Apostle. May Allah bless and give peace to our Prophet. May Allah’s blessings be upon him and his family as His blessings were upon Abraham and his family. Thou art praiseworthy and glorious!

This book consists of papers presented at a three-day Seminar held in May, 1999 on "Awq?f Experiences in South Asia", jointly organised by the Institute of Objective Studies, New Delhi, the Islamic Development Bank, Jeddah, the Kuwait Awq?f Public Foundation, Kuwait and Ta??wun Trust, New Delhi. The book also includes a few papers which were not presented at the Seminar but their inclusion appeared necessary to fill certain gaps which would have affected the usefulness of this book. It was for the first time ever that a Seminar of this nature was held in this region that consists of India, Pakistan, Bangladesh, Sri Lanka, Myanmar, Maldives and Nepal. Way back in 1960, the Wakf Section, Government of India, organised an All-India conference on waqf administration in India. One of the resolutions it passed emphasised the need of organizing an international conference on awq?f by the Government of India to discuss various issues and problems confronting awq?f. However this useful resolution never materialized. The organisers of the present Seminar deserve to be praised and congratulated for fulfilling a need that was outstanding for long. It is now hoped that the Government of India or some private institution or organisation may come forward to organise an international conference on waqf administration on even a more bigger scale.

It appears in order to briefly introduce the four joint organizers of the present Seminar. Two of them are Indian institutions, one is Kuwaiti and the fourth one is the Islamic Development Bank based in Saudi Arabia.

The Institute of Objective Studies, New Delhi, established in 1986, undertakes critical analysis and objective study of those modern ideologies, issues and problems which have a bearing on Indian Muslims, and the society they live in. During 1985-2000, the Institute organised more than hundred seminars/conferences both national and international. The Institute has a total of six chapters, one each in Kolkata (Calcutta), Chennai (Madras), Calicut, Aligarh, Ahmedabad and Patna.

The Ta??wun Trust, New Delhi, the other co-organiser, was established in 1989 as a public trust, to undertake educational and charitable activities, mainly focused on Indian Muslims.

The Islamic Development Bank and its Research and Training Institute are actively involved in devising measures for the betterment of awq?f. The Institute has organised a large number of seminars on the administration of awq?f in the various parts of the world.

Kuwait Awq?f Public Foundation is an arm of the Ministry of Awq?f, Government of Kuwait, which is actively engaged in reviving the socio-economic and developmental role of awq?f and in solving the problems besetting them. In this task it co-operates with the Islamic Development Bank.

South Asia has more than 300 million Muslims. They have created in the past a very large number of awq?f in this region. In India alone, for instance, there are 297,000 known awq?f which have survived the vagaries of changing governments and times. Many more awq?f may come to light once the survey now being undertaken is completed. In other countries of the region, it is unfortunate that the survey of waqf has yet to be taken up.

Delhi Sultans and the Mughals once ruled an area which now covers many countries of South Asia like India, Pakistan and Bangladesh. In keeping with the well established Islamic tradition, they entrusted supervision of awq?f to qadis. However, after the Muslim rule came to an end, the British Government abolished the institution of qadi which deprived awq?f of all the supervisory control. Moreover, the religious nature of the institution of waqf, made the British to believe that their political survival depended on a policy of total non-interference in waqf matters. Mutawallis (managers) of waqf had a field day in the absence of any supervisory control and malversation of waqf became rampant. The abuse increased to an extent that Muslims themselves demanded imposition of some kind of official supervisory control over awq?f. It was with much reluctance, and only after they carefully weighed the political implications, that the British intervened in waqf affairs. They however went to the other extreme and took over all the waqf properties and their income and appropriated these as they wished. However soon they realised the mistake and stopped administering awq?f directly. Some of the waqf laws they enacted during the first half of the last century in Bengal, U.P., Bihar and Delhi provided a model for later waqf legislation in the country. India, Pakistan, Bangladesh, Myanmar and Sri Lanka, which were once under the British rule, naturally have a common history of waqf legislation. These legislation of the British era constitute the foundation of the modern waqf legislation in the region.

To devise some sort of ideal administrative set-up for awq?f in the various countries of the region has always remained difficult and elusive. Neither the British nor the present governments could arrive at a satisfactory solution. In the process of their search, various experiments were and are still being conducted from time to time. In India, for example, once the policy of decentralization was followed and consequently separate waqf enactment existed in Bengal, Bihar, U.P, J & K and Delhi, whereas now there is a single federal waqf law extending to the whole of the country, except Jammu and Kashmir. In Pakistan, on the contrary, there was till recently a federal waqf legislation for the whole of the country, but now each of the four Provinces has a separate waqf law. Myanmar is still following the outdated Mussalman Waqf Act, 1923 enacted during the British rule in India, which has the unsatisfactory system of entrusting the supervision of waqf to the district courts. If we look back into history, the State control of waqf started during 1839 to 1875 when Ottoman government enacted a series of laws taking away administration of awq?f from mutawallis and putting them under State control. It was a departure from the age old practice followed since the times of Ummayyads of leaving the supervision of awq?f in the hands of local q?dis. Ottomans justified the action on the ground of alleged malpractices of the q?dis, their inability to give full attention to waqf matters, and the alleged incompetence of mutawallis to effectively administer properties under their charge. The system of entrusting the administration of awq?f to a separate Ministry of Awq?f is now being practiced in nearly every Islamic country.

In the whole of South Asia, survey of waqf properties has been conducted only in India. It is very hard to believe that the exact number of awq?f in Pakistan, Bangladesh, Sri Lanka, Myanmar or Maldives is not known. Information about the number, income, valuation, objects etc. is indeed a pre-requisite for any serious attempt to streamline waqf administration in any country.

It is necessary to launch an aggressive campaign to undertake development of waqf properties in order to enhance their value and income. This task shall be taken up in right earnest in all the countries of the region. However, with the sole exception of India, not much has been done in this regard in any other country of South Asia.

Finding the most appropriate administrative set-up for awq?f is a challenge for every country in the region. The tussle is between elected Waqf Board, government appointed Administrator, and partly elected and partly nominated Waqf Board. All the countries are still experimenting and trying to find the right answer.

These are some of the issues confronting awq?f in South Asia. Some of these came to be examined in the present Seminar, but no definite solutions could be found. Naturally, these complex issues need more than one Seminar to find some solutions. The present Seminar has made a good beginning from where future discussions may proceed.

The scope and coverage of the Seminar was indeed widened when representatives from certain non-South Asian countries like Kuwait and Turkey presented their papers outlining the position of awq?f in these countries. The representative of the Islamic Development Bank gave a resume of IDB’s activities in enhancing the role of awq?f in the development of the Ummah.

The Seminar has succeeded in bringing to the attention of public and respective Governments the need of streamlining waqf administration and making the institution of waqf more useful for the socio-economic betterment of Muslims and the society in general.

The book consists of five parts: (i) About Awq?f Generally, (ii) Waqf Experiences in South Asia, (iii) Waqf Experiences Outside South Asia, (iv) Matters Relating to Seminar; and (v) Appendices.

Part I has two such papers and Part II has one paper which were not presented in the Seminar. These are included to fill gaps that appeared necessary to be filled. The appendices consist of major awq?f enactment currently in force in the various countries of South Asia. Such a compilation is appearing in print for the first time and would furnish useful information to waqf administrators of different countries.

Dr. Manzoor Alam, Chairman, Institute of Objective Studies, entrusted the big task of editing this volume to me probably in the hope that I would finish it quickly. But my serious illness extending over several months, delayed the work considerably. I am so sorry for this delay.

As the editor of this volume, I am fully aware of my imperfections more than anyone else. I might have committed many mistakes for which I seek the indulgence of the contributors and readers.

Wa Ma Taufiqi Illah Billah

 

January 2002

Syed Khalid Rashid

Professor

Ahmad Ibrahim Kulliyyah of Laws

Contents : Preface i-v Table of Cases vi-xi Books, Journal & Reports cited in this volume xii-xviii

PART I ABOUT AWQÃF GENERALLY

1. Waqf in Islamic Fiqh : Preliminary Remarks Qazi Mujahid ul Islam Qasmi( 3 - 10)  2.Origin and Early History of Waqf and .Other Issues by Syed Khalid Rahsid (11 - 28) 3..Statutory and Judicial Deviations in the Law of Waqf in India by Syed Khalid Rahsid (29 – 53)   4.Importance of Awqaf and Suggestions for Improvements by Ashfaque Ali (55 - 59)

13.Enhancing the Growth and Performance of Awqaf: The IDB Experience by Mahmoud A. Mahdi (231 - 247) 14.Role of Kuwait Awqaf Public Foundation In Promoting Awqafby Abdul Mohsen M. Ali Othman & Dahi Al Fadhli (249 - 262)15. Awqaf and their Structure in Turkey by Ahmet Ihsan Eryilmaz (263 - 269)

16.Programme of the Seminar (273 - 279 )17. Welcome Address by Dr. M. Manzoor Alam (281 - 285)18. Inaugural Address by Prof. Tahir Mahmood(287 - 297) 19. Resolutions Adopted at the Seminar (299 - 302) 20. Recommendations of Various Sub-Committees (303 - 306 )

I.Central Waqf Council: Development  of Urban Waqf Properties SCHEME(309 - 311.) II.MAJOR AWQÃF STATUTES OF SOUTH ASIA( 313 - 314)

A: India 1. Mussalman Waqf Validating Act, 6 of 1913 (315 - 316) 2. Jammu & Kashmir Wakaf Act, 11 of 1978 (317 - 347) 3. Wakf Act, 43 of 1995 (349 - 443) B: PAKISTAN 4.Baluchistan Waqf Properties Ordinance, 4 of 1979 (445 - 459) 5. N.W.F.P Waqf Properties Ordinance, 1 of 1979 (461 - 475) 6.Punjab Waqf Properties Ordinance,4 of 1979 (477 – 489) 7. Sind Waqf Properties Ordinance, 9 of 1979 ( 491 - 505) C: BANGLADESH 8. Waqfs Ordinance, 1 of 1962 (507 - 556) D: SRI LANKA 9. Muslim Mosques and Charitable Trusts or Waqfs Act, 51 of 1956 (557 - 601) E: MYANMAR 10. Mussalman Waqf Act, 42 of 1923 (603 - 611) Index (613 - 634 )