Discussion On The Motion For Consideration Of The Amendments Made By Rajya Sabha ... on 5 September, 2013

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Lok Sabha Debates

Discussion On The Motion For Consideration Of The Amendments Made By Rajya Sabha ... on 5 September, 2013

> Title: Discussion on the motion for consideration of the Amendments made by Rajya Sabha to the Wakf (Amendment) Bill, 2010.

THE MINISTER OF MINORITY AFFAIRS (SHRI K. RAHMAN KHAN): Mr. Chairman, I beg to move:

“That the following amendments made by Rajya Sabha in the Bill to amend the Wakf Act, 1995, be taken into consideration.” ENACTING FORMULA

1.

That at page 1, line 1, for the word “Sixty-first”, the word “Sixty-fourth” be substituted. CLAUSE 1

2. That at page 1, line 3, for the figure “2010”, the figure “2013” be substituted. CLAUSE 5

3. That at page 2, line 7, after the word “person”, the words “or institution, public or private” be inserted.

4. That at page 2, line 9, after the words "terminated by" the words "mutawalli or" be inserted.

5. That at page 2, line 18, the word "such" be deleted.

6. That at page 2, line 22, after the word "Khanqah" the words "peerkhana and karbala" be inserted.

7. That at page 2, for lines 23 to 27, the following be substituted, namely:-

“(v) for clause (r), the following clause shall be substituted, namely:-

(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

(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;”. CLAUSE 6

That at page 2, after line 28, the following be inserted, namely:-

“(a) in sub-section (1), for the words 'wakfs existing in the State at the date of the commencement of this Act', the words 'auqaf in the State' shall be substituted;".

9. That at page 2, line 29, for the bracket and alphabet "(a)", the bracket and alphabet "(b)", be substituted

10. That at page 2, line 33, for the figure “2010" the figure "2013" be substituted

11. That at page 2, line 34, for the figure “2010" the figure "2013" be substituted

12.

That at page 2,    for lines 38 and 39, the following be substituted,   namely:-                 

             

"(c) in sub-section (6).-     

(i)                in   the proviso, for the words "twenty years", the words "ten   years" shall be substituted;     

(ii)      after the proviso, the following proviso shall be inserted, namely:-

"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."

CLAUSE 7

13.

That at page 3,    for lines 2 to 4,    the following be substituted  namely:-                  

             

   “(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.”. CLAUSE 9

14. That at page 3, line 23, after the word "have" the word "the" be inserted . CLAUSE 11

15. That at page 4, line 9, for the word "or" the word "and" be substituted .

16. That at page 4, line 20, for the words "Central Council and the Council" the words "Council and it" be substituted.

17. That at page 4, line 27 the words "Central Waqf" be deleted.

18. That at page 4, line 30, for the words "Judge of the Supreme Court and the fee" the words "Judge of the Supreme Court or a retired Chief Justice of a High Court and the fees" be substituted.

19. That at page 4, line 31 for the word “determined”, the word “specified” be substituted. CLAUSE 12

20. That at page 4, line 38, for the words “one year from the date of the”, the words “six months from the date of” be substituted.

21. That at page 4, line 39, for the figure “2010”, the figure “2013” be substituted.

22.

That at page 4,    for lines 42 and 43, the following  be substituted, namely:-     

           "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".        CLAUSE 13               

23.

That at page 5, line 4, for the words “members enrolled with”, the words “members of” be substituted.

24. That at page 5, for lines 6 to 9, the following proviso be substituted, namely:-

“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”;.

25. That at page 5, for lines 33 and 34, the following be substituted, namely:-

“(d) one person each from amongst Muslims, to be nominated by the State Government from recognised scholars in Shia and Sunni Islamic Theology;”.

26. That at page 5, line 37, for the words “Deputy Secretary”, the words “Joint Secretary” be substituted.

27. That at page 5, line 42, for the words “less than three and not more than five”, the words “less than five and not more than seven” be substituted.

28. That at page 6, line 3, for the bracket and figure “(7)”, the bracket and figure “(5)” be substituted.

29. That at page 6, after line 3, the following be inserted, namely:-

   “(IV)   sub-section (7) shall be omitted;”.        NEW CLAUSE 14A               

30.            

That at page 6, after line 5, the   following new clause be inserted, namely:-

“14A. In section 16 of the principal Act, after clause (d), the following clause shall be inserted, namely:-

Amendment of section 16.

“(da) he has been held guilty of encroachment on any waqf property;”.

CLAUSE 15

31.

That at page 7, line 5, for the words “show of hands”, the words “method of secret ballot” be substituted.

CLAUSE 16

32. That at page 7, line 18, for the word “sub-sections”, the word “sub-section” be substituted.

33. That at page 7, line 23, after the words “State Government”, the words “and in case of non availability of a Muslim officer of that rank, a Muslim officer of equivalent rank may be appointed on deputation” be inserted.

34.

That at page 7, lines 24 and 25, be deleted.        NEW CLAUSE 17A               

35.            

That at page 7, after line 34, the following   be inserted,  namely:

17A. For section 28 of the principal Act, the following section shall be substituted, namely:-

Substitution of new section for section 28.

“28. 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.”.

Power of District Magistrate, Additional District Magistrate or Sub Divisional Magistrate to implement the directions of the Board.

CLAUSE 18

36.

That at page 7, for lines 37 to 40, the following be substituted, namely:-

“(a) in sub-section (1) as so numbered, for the words ‘subject to such conditions and restrictions as may be prescribed and subject to the payment of such fees as may be leviable under any law for the time being in force’, the words ‘subject to such conditions as may be prescribed’ shall be substituted;”. CLAUSE 20

37.

That at page 8, for lines 14 to 22, the following be substituted, namely:-

‘(I) in sub-section (2), for clause (j), the following clause shall be substituted, namely:-

“(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:

Provided further that where no such sanction is given by the Board, the reasons for doing so shall be recorded in writing.”;’.

38.

That at page 8, line 26, for the word “fair”, the word “market” be substituted.

39. That at page 8, for lines 29 and 30, the following be substituted, namely:-

“educational institution, shopping centre, market, housing or residential flats and the like” shall be substituted;”. CLAUSE 21

40. That at page 8, for lines 33 to 35, the following be substituted, namely:-

“21. In section 33 of the principal Act, in sub-section (1), -

(a) after the words “the Chief Executive Officer”, the words “or any other person authorised by him in writing” shall be inserted;

(b) the words “either himself or any other person authorised by him in writing in this behalf” shall be omitted”.

Amendment of section 33. CLAUSE 24

41. That at page 9, lines 2 and 3, be deleted.

42. That at page 9, line 4, for the bracket and alphabet “(b)”, the bracket and alphabet “(a)” be substituted.

43. That at page 9, line 6, for the bracket and alphabet “(c)”, the bracket and alphabet “(b)” be substituted. CLAUSE 26

44. That at page 9, for lines 13 to 19, the following be substituted, namely:-

“26. In section 47 of the principal Act, -

Amendment of section 47.

(I)in sub-section (1), -

(i) in clause (a), for the words “ten thousand rupees”, the words “fifty thousand rupees” shall be substituted;

(ii) in clause (b), for the words “ten thousand rupees”, the words “fifty thousand rupees” shall be substituted;

(iii) in clause (c), after the words “the State Government may,”, the words “under intimation to the Board”, shall be inserted;

(II) in sub-section (3), in the first proviso, the words “more than ten thousand rupees but less than fifteen thousand rupees”, the words “more than fifty thousand rupees” shall be substituted.

CLAUSE 27

45. That at page 9, for lines 20 to 41, the following be substituted, namely:-

“27. In section 51 of the principal Act,-

(i) for sub-section (1), the following sub-sections shall be substituted, namely:-”.

(1) Notwithstanding anything contained in the waqf deed, any lease of any immovable property which is waqf property, shall be void unless such lease is effected with the prior sanction of the Board:

Provided that no mosque, dargah, khanqah, graveyard, or imambara shall be leased except any unused graveyards in the State of Punjab, Haryana and Himachal Pradesh where such graveyard has been leased out before the date of commencement of the Wakf (Amendment) Act, 2013.

(1A) Any sale, gift, exchange, mortgage or transfer of waqf property shall be void ab initio:

Amendment of section 51.

Provided that in case the Board is satisfied that any waqf property may be developed for the purposes of the Act, it may, after recording reasons in writing, take-up the development of such property through such agency and in such manner as the Board may determine and move a resolution containing recommendation of development of such waqf property, which shall be passed by a majority of two-thirds of the total membership of the Board.

Provided further that nothing contained in this sub-section shall affect any acquisition of waqf properties for a public purpose under the Land Acquisition Act, 1894 or any other law relating to acquisition of land if such acquisition is made in consultation with the Board;

Provided also that –

(a) the acquisition shall not be in contravention of the Places of Public Worship (Special Provisions) Act, 1991;

(b) the purpose for which the land is being acquired shall be undisputedly for a public purpose;

(c) no alternative land is available which shall be considered as more or less suitable for that purpose; and

(d) to safeguard adequately the interest and objective of the waqf, the compensation shall be at the prevailing market value or a suitable land with reasonable solatium in lieu of the acquired property;

(ii)      sub-sections (2), (3), (4) and (5) shall be omitted.”.     

             

      

      

      

1 of 1894.     

      

      

         42 of 1991.        CLAUSE 29               

46.

That at page 10, line 14, for the word “save”, the word “except” be substituted.

47. That at page 10, line 15, for the words “an officer duly authorised by the Board”, the words “any officer duly authorised by the State Government” be substituted. CLAUSE 30

48. That at page 10, for lines 18 and 19, the following be substituted, namely:-

“30. In section 54 of the principal Act,-

Amendment of section 54.

(a) in sub-section (3), for the words “he may, by an order, require the encroacher to remove”, substitute “he may, make an application to the Tribunal for grant of order of eviction for removing”

(b) for sub-section (4), the following sub-sections shall be substituted, namely:-

“(4) The Tribunal, upon receipt of such application from the Chief Executive Officer, for reasons to be recorded therein, make an order of eviction directing that the waqf property shall be vacated by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the waqf property:

Provided that the Tribunal may before making an order of eviction, give an opportunity of being heard to the person against whom the application for eviction has been made by the Chief Executive Officer.

(5) If any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-section (2), the Chief Executive Officer or any other person duly authorised by him in this behalf may evict that person from, and take possession of, the waqf property.”.

NEW CLAUSES 30A AND 30B

49. That at page 10, after line 19, the following be inserted, namely:-

“30A. In section 55 of the principal Act, -

Amendment of section 55.

(a) for the word, bracket and figure “sub-section (3)”, the word, bracket and figure “sub-section (4) shall be substituted;

(b) for the words “apply to the Sub-Divisional Magistrate”, the words “refer the order of the Tribunal to the Executive Magistrate” shall be substituted.

30B. After section 55 of the principal Act, the following section shall be inserted, namely:-

Insertion of new section 55A.

“55A. (1) Where any person has been evicted from any waqf property under sub-section (4) of the section 54, the Chief Executive Officer may, after giving fourteen days’ notice to the person from whom possession of the waqf property has been taken and after publishing the notice in at least one newspaper having circulation in the locality and after proclaiming the contents of the notice by placing it on conspicuous part of the waqf property, remove or cause to be removed or dispose of by public auction any property remaining on such premises.

Disposal of property left on waqf property by unauthorised occupants.

(2) Where any property is sold under sub-section (1), the sale proceeds shall, after deducting the expenses relating to removal, sale and such other expenses, the amount, if any, due to the State Government or a local authority or a corporate authority on account of arrears of rent, damages or costs, be paid to such person, as may appear to the Chief Executive Officer to be entitled to the same:

Provided that where the Chief Executive Officer is unable to decide as to the person to whom the balance of the amount is payable or as to the apportionment of the same, he may refer such dispute to the Tribunal and the decision of the Tribunal thereon shall be final.”.

CLAUSE 31

50. That at page 10, for line 21 to 36, the following be substituted, namely:-

‘(a) in sub-section (1), –

(i) for the words “A lease or sub-lease for any period exceeding three years”, the words “A lease for any period exceeding thirty years” shall be substituted;

(ii) the following proviso shall be inserted at the end, namely:-

Provided that a lease for any period up to thirty years may be made for commercial activities, education or health purposes, with the approval of the State Government, for such period and purposes as may be specified in the rules made by the Central Government:

Provided further that lease of any immovable waqf property, which is an agricultural land, for a period exceeding three years shall, notwithstanding anything contained in the deed or instrument of waqf or in any other law for the time being in force, be void and of no effect:

Provided also that before making lease of any waqf property, the Board shall publish the details of lease and invite bids in at least one leading national and regional news papers.’;

(b) in sub-section (2), for the words “A lease or sub-lease for any period exceeding one year and not exceeding three years”, the words “A lease for a period of one year but not exceeding thirty years” shall be substituted;’.

(c) in sub-section (3), –

(i) the words “or sub-lease”, at both the places where they occur, shall be omitted;

(ii) the following proviso shall be inserted at the end, namely:-

51. That at page 10, lines 38 and 39, for the words “regarding a lease or sub-lease for any period exceeding one year and exchange or mortgage”, the words “regarding a lease for any period exceeding three years” be substituted. CLAUSE 34

52. That at page 11, for lines 19 to 21, the following be substituted, namely:-

“34. In section 68 of the principal Act, -

(i) in sub-section (2), for the words “Magistrate of the first class” and “Magistrate”, the words “District Magistrate, Additional District Magistrate, Sub-Divisional Magistrate or their equivalent” shall be substituted;

(ii) in sub-sections (3), (4), (5) and sub-section (6), for the words “the Magistrate” the words “any Magistrate” shall be substituted. CLAUSE 39

53. That at page 12, for lines 3 to 5, the following be substituted, namely:-

“and a copy of the said auditor’s report, along with orders shall be forwarded by the State Government to the Council within a period of thirty days of laying of such report before each House of the State legislature where it consists of two Houses or where such Legislatures consist of one House, before that House.”. CLAUSE 40

54. That at page 12, for lines 6 and 7, the following be substituted, namely:-

“40. In section 83 of the principal Act, –

(a) for sub-section (1), the following sub-section shall be substituted, namely:-

(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals;

(b) for sub-section (4), the following sub-sections shall be substituted, namely:-

55. That at page 12, line 18, for the word “presented”, the word “prescribed” be substituted. NEW CLAUSE 42A

56. That at page 12, after line 22, the following be inserted, namely:-

“42A. Section 87 of the principal Act shall be omitted.

Omission of section 87. NEW CLAUSE 43A

57. That at page 12, after line 24, the following be inserted, namely:-

“43A. In section 91 of the principal Act, in sub-section (1), for the words “it appears to the collector before an award is made that any property”, the words “and before an award is made, in case the property” shall be substituted.

Amendment of section 91. CLAUSE 46

58.

That at page 12, line 41, the words “Central Waqf”   be deleted.        CLAUSE 47               

59.            

That at page 13, for lines 3 to 8,  the following be substituted, namely:-

“104A. (1) Notwithstanding anything contained in this Act or any other law for the time being in force or any waqf deed, no person shall sell, gift, exchange, mortgage or transfer any movable or immovable property which is a waqf property to any other person.

Prohibition of sale, gift, exchange, mortgage or transfer of waqf property.

(2) Any sale, gift, exchange, mortgage or transfer of property referred to in sub-section (1) shall be void ab initio.”.

NEW CLAUSE 47A

60. That at page 13, after line 8, the following be inserted, namely:-

“47A. After section 104A of the principal Act, the following section shall be inserted, namely:-

Insertion of new section 104B.

“104B. (1) If any waqf property has been occupied by the Government agencies it shall be returned to the Board or the mutawalli within a period of six months from the date of the order of the Tribunal.

Restoration of waqf properties in occupation of Government agencies to waqf Boards.

(2) The Government agency may, if the property is required for a public purpose, make an application for determination of the rent, or as the case may be, the compensation, by the Tribunal at the prevailing market value.”.

CLAUSE 48

61.

That at page 13, line 10, the words “Central Waqf”   be deleted.        NEW CLAUSE 48A               

62.            

That at page 13, after line 11, the   following be inserted, namely:-

‘48A. After section 108 of the principal Act, the following section shall be inserted, namely:-

Insertion of new section 108A.

“108A. The provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”.’.

Act to have overriding   effect.        CLAUSE 49               

63.            

That at page 13, after line 26, the   following be inserted, namely:-                 

             

      “(d)   clause (xi) shall be omitted;”.                 

64.

That at page 13, line 27, for the bracket and alphabet “(d)”, the bracket and alphabet “(e)” be substituted.

Sir, I have the honour to commend the amendments made by Rajya Sabha on 19th August 2013 in the Wakf (Amendment) Bill, 2010 as passed by the Lok Sabha, for consideration of this august House.

The Wakf Act, 1995, came into force on 1st January 1996 except for the State of Jammu & Kashmir. During all these years, there has been a widespread feeling that the Act has not proved effective in improving the administration of Auqaf.

The Sachar Committee considered this issue and suggested a number of amendments to the Act.

The Joint Parliamentary Committee on Waqf (JPC), constituted on 2.1.2006, in its third report recommended a wide range of amendments relating to time bound survey of waqf properties, prevention and removal of encroachments, making the Central Waqf Council more effective, provisions for development of waqf properties, etc, The amendments proposed were considered in consultation with other stakeholders.

The Wakf (Amendment) Bill, 2010, with the amendments proposed, was introduced in the Lok Sabha on 27th April, 2010 and was passed by the Lok Sabha on 7th May, 2010. Subsequently, the Bill came up before the Rajya Sabha. The Rajya Sabha decided to refer the Bill to its Select Committee. The Select Committee submitted its report on 16th December, 2011.

Based on the consultations with the stakeholders, the Government also proposed various amendments. The Wakf (Amendment) Bill, 2011 as reported by the Select Committee, along with the amendments proposed by the Government was passed by the Rajya Sabha on 19th August, 2013. The major amendments proposed are as under:-

(i)To replace the words "by a person professing Islam" with the words "by any person" in the definition of wakf. This will allow non-Muslims also to create wakf;

(ii) Wakf properties already surveyed and notified are not to be reviewed again in subsequent surveys except where the status of such property has been changed in accordance with the provisions of any law;

(iii) The revenue authorities to include the list of auqaf published in the Official Gazette while updating the land records, and take into consideration this list while deciding mutation in the land records;

(iv) Any dispute arising out of a directive issued by the Central Wakf Council to 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;

(v) The Establishment of State Wakf Boards within 6 months (instead of one year) from the date of commencement of this Act;

(vi) The level of the officer of the State Government to be nominated as Member of the Board has been raised from Deputy Secretary to Joint Secretary to the State Government;

(vii) Disqualification for being appointed or for continuing as a member of the Waqf Board for a person who has been held guilty of encroachment on any wakf property;

(viii) Chief Executive Officer (CEO) of the Board will be appointed by State Governments from a panel of two names suggested by the Board. The CEO should be of the rank of a Deputy Secretary to the State Government or above and in case of non availability of a Muslim officer of that rank, a Muslim officer of equivalent rank may be appointed on deputation;

(ix.) The District Magistrate or in his absence an Additional District Magistrate or Sub Divisional Magistrate of a district in the State would implement the decisions of the Board which may be conveyed through the Chief Executive Officer and the Board may, wherever considered necessary, seek directions from the Tribunal for the implementation of its decisions;

‘Sale’, 'Gift', 'Mortgage', 'Exchange' and 'Transfer' of Waqf properties have been prohibited to curb alienation of Waqf properties. 'Lease' of waqf properties is being allowed. However, 'Lease' of Mosque, Dargah, Khanquah, Graveyard and Imambara has been prohibited. Further, based on the recommendations of the Punjab, Haryana and Himachal Pradesh Wakf Boards, unused graveyards, which have already been leased out before the date of commencement of the Wakf (Amendment) Act, 2013 in these States, are being permitted to be leased now.

The Board will sanction 'lease' when two-thirds of the total membership of the Board is present and cast their vote in favour of such transaction. The lease period has been enhanced uniformly up to 30 years for commercial activities, education or health purposes with the approval by the State Government because of the long gestation periods of such projects and the long periods of return on capital employed. The maximum period of lease of agricultural land is fixed for three years. Further, lease beyond three years is to be intimated to the State Government and it would become effective only after 45 days.

The Chief Executive Officer is being empowered to remove encroachments from waqf properties by applying to the Tribunal for grant of order of eviction from waqf properties. However, the Tribunal before making an order of eviction, may give an opportunity to stakeholder of being heard.

Section 87 of the Wakf Act 1995, has been deleted which is pertaining to enforcement of right on behalf of the unregistered waqf.

The jurisdiction of the Tribunal has been extended by inclusion of disputes concerning the eviction of a tenant in occupation of a waqf property or the rights and obligations of the lessor and the lessee of such property.

A new section is proposed to be inserted regarding restoration of waqf properties occupied by the Government or the Government Agencies to the Waqf Boards. If any waqf property has been occupied by the Government agencies, it shall be returned to the Board or the mutawalli within a period of six months from the date of the order of the Tribunal. The Government may, if the property is required for a public purpose, make an application for determination of the rent or, as the case may be, the compensation which would be decided by the Tribunal at the prevailing market rate.

The provisions of this Act shall have an over-riding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

Sir, with these words, I would submit this Bill for the consideration of the House.

MR. CHAIRMAN : Motion Moved: