Are IFA Rulings on Awqaf Progressive Enough?

At the just concluded seminar on Awqaf in India held during March 29-30, 2014 organized by the Islamic Fiqh Academy (IFA), India Mr K Rahman Khan, Honorable Minister of Minority Affairs raised an important concern. He invited the uleme to deliberate upon and show direction on the issue of preservation of large tracts of waqf land classified as “burial ground”. He was of the view that developing the “unused” land should be considered as an effective way to preserving them. Else, these face the prospect of being encroached upon and lost for ever. Maulana Khalid Saifullah Rehmani, Secretary General of IFA sought to address this concern by drawing attention to the Resolutions of Tenth Fiqh Seminar held in 2010 at Mumbai. According to him the issue of preserving and developing burial grounds was adequately covered in the Resolutions. This led me to search and dig out the contents of the Resolutions. These are presented below.

Resolutions of Tenth Fiqh Seminar

1. It is indeed an immensely rewarding act and a “Sadqa-e- Jaria” (perpetual charity) in Islam to do deeds of welfare and endow (waqf) land, property and riches for charitable purposes. That is precisely why the Muslims all over the world even in the remotest parts of the globe endow land, property and riches for welfare purposes. The history of Islam and Muslims is considerably old. The Muslims have dwelt in different parts of the country for centuries altogether. In this perspective, a number of Muslim awqaf have been operative on religions, reformative and charitable lines in almost every nook and corner of the country. It is indubitably, the foremost responsibility of the Muslims of India and the Indian government to protect these Awqaf, to work for their development and expansion, to spend the income of the ‘Awqaf’ in accordance with the intentions of the endower (waqif) and last but not the least to get the Awqaf properties liberated form the clutches of the usurpers.
2. The Islamic point of view, with regards to the Awqaf is that Awqaf are permanent and they certainly should not be sold or transferred under normal circumstances. In this regard,
Prophet Muhammad (S.A.W.) said : لا تباع ولا توهب ولا تورث
(It can neither be sold off, nor gifted away and nor can be inherited).
Therefore, efforts should be made keeping in mind that the waqf, apart form maintaining and looking after it’s properties, ought to reap profits and grow. In this connection, appropriate rules and laws need to be framed which would ensure complete protection and sanctity of the institution called ‘Waqf’ besides the utility enhancement and growth of the waqf taking due care of the objectives and intentions of the endowers (waqifs).
3. We notice that the mosques garner greater sanctity and veneration in comparison with other Awqaf. In this regard, the sale and transfer of mosque is valid under no circumstances. It is strictly prohibited. Even if the mosque happens to become deserted and forsaken with ‘Namaz’ not being performed there, still the piece of the land where such a mosque stands remains a mosque, whatsoever. Moreover, it still commands the sanctity and veneration of a mosque. Sincere efforts ought to be carried out to reconstruct or repair the mosque and rehabilitate it afresh.
Allah says : “ ”وأن المساجد لله فلا تدعوا مع الله أحداً
And that the mosques are for Allah; Therefore, do not call upon anyone else in them along with
Allah. (Jinn-18)
and Allah says : “ ”إنما يعمر مساجد الله من آمن بالله واليوم الآخر
Only he should visit or tend God’s houses of worship who believe in God and the Last Day.
(Tauba -18)
4. It is an enormously sinful act and a cruelty of the worst kind to prohibit the people from offering the Namaz in a mosque.
Allah reveals :
”ومن أظلم ممن منع مساجد الله أن يذكر فيها اسمه وسعى في خرابها“
And who could be a greater wrongdoer than the one who forbids the mention of Allah’s name in places of worship and strives for their ruin? (Baqarah -114)
Once a mosque always a mosque in the eyes of the Shariah, no matter for how long period the Muslims have been disallowed from offering Namaz inside the mosque or it has been forcefully usurped or the mosque building have been demolished.
5. According to the Shariah, it is practically an act of tyranny to stop the offerings of Namaz in archaeologically protected mosques.
Almighty says :
”ومن أظلم ممن منع مساجد الله أن يذكر فيها اسمه وسعى في خرابها“
And who could be a greater wrongdoer than the one who forbids the mention of Allah’s name in places of worship and strives for their ruin? (Baqarah -114)
6. During the tragic time of partition, a sizable chunk of Muslims form India (especially certain parts of Punjab, Haryana, Delhi, Western U. P.) migrated to Pakistan leaving behind various large Awqaf (mosques, madarsas, monastries, graveyards, inns, etc.) in these areas. The local Muslim
populace, whatever their number be, should take the responsibility of maintaining and protecting these Awqaf making them profitable and functional. Also, the respective Waqf Boards should shoulder responsibilities in protecting and looking after the Awqaf in places and localities which have been eventually deserted by the Muslims. As a corollary to it, the Muslims from the neighboring localities need to strive for their protection.
7. As far as awqaf (excluding mosques) which are situated quite distant form the nearest Muslim populace and it appears as if it would be justifiably difficult to rehabilitate and maintain the Awqaf besides complying with the objectives laid down by the waqif (endower) and if fears of
usurpation of the Awqaf property are looming large, then it would be correct and advisable to sell off those Awqaf and establish the Awqaf of similar nature at other places under the above mentioned circumstances provided that: It has been thoroughly investigated that those localities or places have been wholly deserted by the Muslims and there exists no probable chance of the Muslims resettling in these places. The Waqf property is sold off at rates, which are at par with its market value. Of course, it should not be sold off at such a meager price, which cannot be estimated by experts. The Mutawalli or the officer-in charge of the Waqf should not sell off the Waqf to his close relative, hoping to reap some sort of benefit form the deal. In this way, he should also not strike a deal with a person whom he is indebted to.
The Waqf property most preferably should be bartered with another property instead of purchasing it for a monetary sum. However, if the latter course is adopted due to any legal or practical impediments, then the immovable property should be purchased out of the proceeds as earliest as possible to establish the alternate waqf. The permission for the exchange or sale of Waqf should be given only after a thorough investigation of the conditions of the transaction by a Shariah Qazi or a Shariah Committee of Awqaf, comprising of pious and God-fearing scholars, Muslim think tanks and jurists professionally acquainted with the laws pertaining to Awqaf. The permission of the Waqf board or the Waqf officer is not enough for the sale or exchange of the Awqaf properties from the Shariah point of view. The permission given by the Waqf Tribunal would be binding and
shall hold good from the Shariah angle, once it has sought the opinions of at least three renowned Muftis (religious scholars) and acted in accordance with their advices.
Note : It is worth mentioning over here that the aforesaid properties viz. shops, houses, land, property, etc. which are sold off and the new shops, houses, land and property purchased against them shall also fall under the same objectives of the waqf as had been in the first case.

The proceeds of deserted and desolate Awqaf should be spent as per the intentions and objectives of the waqif (endower) as laid down in the waqfnama. If such heads in which the money can be no longer exist, the nearest channels should be considered. However, it would be unfair and unjust to spend the proceeds on other heads being unmindful of the waqif’s (endower’s) intentions and motives. In case the deserted and desolate awqaf are to be sold off, then it would be incumbent to  establish other Awqaf instead of them.
9. It would be obviously right and permissible to use the surplus Waqf land endowed to the mosque in establishing a madrasa or a school for religious education rather than spending frugally on further constructions and expansion of the mosque which it does not require for the time being nor at a later stage, provided that: The mosque remains deserted and the establishment of a madrasa or school might possibly act
as a catalyst in making the mosque functional and rehabilitated once again. There exists an enormous fear of forceful usurpation of the surplus Waqf land endowed to the mosque and the establishment of a religious madrasa or school could get the mosque out of such a danger.
There is hardly any permanent or proper bandobast in sight for the establishment of a religious madrasa or school for Muslim children in a place or locality where a mosque does exist.
However, before taking such a step, the consent of the Mutawalli or the managing committee of the mosque in question must be obtained. Furthermore, it would be certainly better if the mosque committee itself goes ahead and makes adequate arrangements for such a madrasa or
school.
10. The endowed (waqf) lands for the mosque which are supposed to generate income for the mosque, can be given away at an appropriate rent for the establishment of institutions imparting religious, contemporary or technical education. Nevertheless, the agreement and terms should be
finalized taking due care to ensure that the ownership rights of the mosque are not jeopardized.
11. Those mosques which have a much larger income than their total expenditures and are going on accumulating endlessly year after year and there is virtually no probability for the mosque concerned to utilize such an accumulated surplus wealth in the near future, then under such circumstances, the surplus proceeds of the mosque should be diverted towards other places (where there is a need) for constructing mosque or to help the indigent and needy mosques because even today there are numerous dwellings in India which are devoid of any mosque or religious school. Unfortunately, the Muslims crave to hear the ‘Azaan’ in such places. The excess funds of wealthy mosques ought to be utilized for building mosques in such areas.
12. In addition to this, an important head of expenditure from the funds obtained form the lands and properties endowed for the mosque comprises of the Imams, Muazzins and other workers. The participants of the seminar do feel that on certain instances, the Imams, Muazzins and others do not get adequate salaries despite the mosques having sufficient income. Henceforth, the seminar urges the members of the managing committee of mosques to provide sufficient honorarium and perks to the Imams, Muazzins and other workers of the mosque.
13. The surplus incomes of other Awqaf which they no longer need for the time being or in the future seemingly, the security and protection of which is a growing headache for the Mutawallis and the fear of usurpation looms large over it form the government side or form unrighteous or
unscrupulous persons, then the surplus amount should be spent for that particular purpose only. To cite an example, the surplus incomes of the madrasas need to be spent for the causes of madrasas alone, that of inns for inns and the like.
14. In a situation where the income of a Waqf is quite sufficient, it is not suitable to sell it off just for the purpose of generating more and more income because there is ample risk of loss of the original Waqf. Albeit, if the income generated out of the endowed property is so insufficient and
meager that even the necessary expenses of the Waqf property remain unfulfilled and funds need to be borrowed to make it functional and, moreover, there lies no other alternative in question to enhance its income under such grim circumstances, the endowed property might be sold off under the conditions mentioned in Clause 7 above to buy a more beneficial and profitable property. However, if the waqif (endower) is alive, his consent should also be obtained before striking a deal.
15. Those Awqaf whose buildings have become old and are in a dilapidated condition and the Awqaf does not have enough funds to repair it, neither is there any bright chance in the near future, then the Mutawallis of the Awqaf can, enter into an agreement with some builder with a
precondition that he should construct the bui lding and then keep the whole building or a part of it on rent for a certain defined period of time. In this way he would get the benefits of his investments. Nonetheless, it would be of course, inappropriate to pass off the ownership rights of
one or two storey of a multi-storied building to the builder forever.
16. In case, there is a paucity of funds for the construction of a boundary wall or fence around a graveyard for protection- sake, shops can be allowed to be constructed in its premises. However, the passage to these shops should be form outside the graveyard. For this purpose, the rent can be collected in advance and the money can be used for constructing the shops. The income from these shops should be utilized for the security and other requirements of the graveyards. However, it  should be initially ensured that the construction of the shops might not affect those graves whose identities are still existing.
17. The Seminar requests the Secretary General of the Islamic Fiqh Academy, to formulate a committee which would supposedly present a memorandum with regards to the necessary amendments in the Waqf Act along with valuable suggestions to the parliamentary Committee
formed by the Government of India for Muslim Awqaf. The committee ought to execute its plans as soon as possible and represent the Fiqh Academy in this connection. In a nutshell, the Resolutions while prescribing adequate caution, provide for exchange of assets (istabdal) as a way to develop waqf assets (clause 7); use of private investment capital for construction and development of waqf assets while ensuring a fair return on such capital (clause 15); as also development work around graveyards as a way to preservation (clause 16).

Mohammed Obaidullah | April 04, 2014

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