Introduction

The registration of a waqf is one of the most important legal requirements under the Waqf Act, 1995. Registration creates an official record of a waqf with the State Waqf Board, enabling the Board to identify, supervise, protect, and regulate waqf properties in accordance with the law. It also helps prevent disputes, unauthorized transfers, encroachments, and mismanagement of waqf assets.

The provisions relating to the registration of waqf are primarily contained in Sections 36 to 43 of the Waqf Act, 1995. These sections prescribe who can apply for registration, the registration procedure, the documents and particulars required, maintenance of the register of auqaf, and the legal consequences of changes in registered particulars. The objective is to ensure transparency, accountability, and proper administration of waqf properties while safeguarding the interests of the waqf and its beneficiaries.

In the following sections, each provision relating to the registration of waqf is explained in a simple, section-wise manner for easy understanding by law students, judiciary aspirants, legal professionals, researchers, and competitive examination candidates.

Section 36 : Registration of Waqf

Introduction

Section 36 makes registration of every waqf compulsory. Registration creates an official record of the waqf with the State Waqf Board. It helps the Board identify genuine waqf properties, maintain accurate records, prevent disputes, and ensure that the waqf is administered according to law.

In simple terms, a waqf cannot be properly supervised by the Waqf Board unless it is registered.

Sub-section (1) – Mandatory Registration of Every Waqf

Every waqf, whether it was created before or after the commencement of the Waqf Act, must be registered with the office of the State Waqf Board.

Simple Meaning

Registration is not optional. Every existing and newly created waqf must be entered in the official records of the Waqf Board.

Purpose

Creates an official record of every waqf.
Enables effective supervision by the Board.
Helps protect waqf properties from encroachment or misuse.

Sub-section (2) – Who Can Apply for Registration?

The primary responsibility for registration lies with the Mutawalli.

However, if necessary, the application may also be made by:

The waqif (the person who created the waqf).
The descendants of the waqif.
Any beneficiary of the waqf.
Any Muslim belonging to the same sect as the waqf.

Simple Meaning

Although the Mutawalli is expected to register the waqf, the law allows other interested persons to apply so that a genuine waqf does not remain unregistered merely because the Mutawalli fails to act.

Purpose

Prevents delay in registration.
Protects the interests of beneficiaries.
Ensures every genuine waqf can be registered.

Sub-section (3) – Information Required in the Registration Application

The application for registration must be submitted in the form and manner prescribed by the Waqf Board and should contain important information about the waqf.

The application should include:

Description of Waqf Property

A complete description of the waqf property so that it can be clearly identified.

Annual Income

The total gross annual income earned from the waqf property.

Government Dues

Details of land revenue, cesses, rates, taxes, or other charges payable every year.

Annual Expenses

An estimate of the expenses incurred for collecting or managing the income of the waqf.

Utilisation of Waqf Income

The application should mention how the waqf income is distributed, including:

Salary of the Mutawalli.
Religious purposes.
Charitable purposes.
Any other authorised purposes.

Other Information

Any additional particulars required by the Waqf Board through its regulations.

Purpose

This information enables the Board to maintain a complete financial and administrative record of every waqf.

Sub-section (4) – Documents to be Attached

Every application should be accompanied by a copy of the waqf deed.

If:

no waqf deed exists, or
the copy cannot be obtained,

the applicant must provide complete details regarding:

the origin of the waqf,
its nature, and
its objectives.

Simple Meaning

The absence of a written deed does not prevent registration. Other reliable details about the waqf can also be submitted.

Sub-section (5) – Signing and Verification

The application must be signed and verified by the applicant in the manner prescribed under the Code of Civil Procedure, 1908.

Purpose

This ensures that the information provided is officially verified and legally accountable.

Sub-section (6) – Power of the Board to Seek Further Information

If the Waqf Board finds that the application is incomplete or requires clarification, it may ask the applicant to submit:

additional information,
supporting documents, or
further particulars.

Purpose

This helps the Board verify the correctness and completeness of the registration application.

Sub-section (7) – Inquiry Before Registration

Before registering a waqf, the Board may conduct an inquiry to verify:

whether the application is genuine,
whether the waqf is legally valid, and
whether the information provided is correct.

If the application has been made by someone other than the person administering the waqf, the Board must:

issue notice to the existing administrator (Mutawalli), and
provide an opportunity of hearing before registration.

Simple Meaning

The Board does not register a waqf blindly. It first verifies the facts and follows the principles of natural justice by hearing the concerned administrator.

Sub-section (8) – Time Limit for Registration

Waqf Created Before the Act

The registration application must be filed within three months from the commencement of the Act.

Waqf Created After the Act

The application must be submitted within three months from the date of creation of the waqf.

Where No Board Exists

If no Waqf Board exists when the waqf is created, the application must be filed within three months from the date on which the Board is established.

Purpose

The prescribed time limit ensures that waqf properties are registered without unnecessary delay.

Practical Example

Suppose Mr. Ahmed creates a waqf by dedicating agricultural land for the maintenance of a mosque and a free educational institution.

The Mutawalli should apply to the State Waqf Board within three months and provide:

details of the land,
annual income,
taxes payable,
expenditure,
allocation of income for religious and charitable purposes, and
a copy of the waqf deed.

Before registering the waqf, the Board may verify the documents and, if necessary, conduct an inquiry. Once satisfied, the Board registers the waqf in its official records.

Section 37 : Register of Auqaf

Introduction

Section 37 of the Waqf Act, 1995 requires every State Waqf Board to maintain an official Register of Auqaf (plural of Waqf). This register serves as the primary legal record containing complete information about every registered waqf, including its properties, management, administration, and supporting documents.

The main objective of this provision is to ensure that every waqf is properly documented, transparently managed, and protected from disputes, illegal transfers, encroachments, or loss of property. It also helps government authorities maintain accurate land records relating to waqf properties.

Section 37(1) – Board shall maintain a Register of Auqaf

The law makes it mandatory for every State Waqf Board to maintain a register of all registered waqf properties.

This register acts as the official database of every waqf under the jurisdiction of the Board.

Wherever available, the Board must also preserve:

Copies of the waqf deed.
Other legal documents relating to the creation of the waqf.

Even if an old waqf deed is unavailable (which is common in centuries-old waqfs), the Board must still record all available information regarding that waqf.

The register becomes an important public record for administration and legal purposes.

Particulars to be entered in the Register

The Act specifies various details that must be recorded.

(a) Class of the Waqf

The register must mention the nature or category of the waqf.

Examples include:

Sunni Waqf
Shia Waqf
Public Waqf
Private Waqf (where legally recognised)
Charitable Waqf
Religious Waqf
Educational Waqf
Family Waqf (Waqf-alal-aulad)

Recording the class helps determine:

applicable legal rules,
beneficiaries,
administrative powers, and
jurisdiction in case of disputes.

(b) Name of the Mutawalli

The register must contain the name of the Mutawalli, who is the lawful manager or administrator of the waqf.

This provides official recognition of the person responsible for:

managing the property,
maintaining accounts,
implementing the objects of the waqf,
protecting the assets,
complying with directions of the Waqf Board.

Whenever the Mutawalli changes, the Board updates the register accordingly.

(c) Rule of succession to the office of Mutawalli

The register must specify how future Mutawallis will be appointed.

The rule may arise from:

1. Waqf Deed

If the founder has laid down a succession method in the waqf deed, that rule is recorded.

Example:

After the founder’s death, the eldest son shall become Mutawalli.

2. Custom

If there is no written deed, succession may follow an established custom.

Example:

A particular family has traditionally managed the waqf for generations.

3. Usage

Sometimes continuous historical practice determines succession.

The register records such accepted practice to avoid future disputes.

Recording the succession rule ensures continuity in administration and reduces litigation.

(d) Particulars of all Waqf properties and title documents

This is one of the most important entries.

The register must contain complete information about every property belonging to the waqf.

It generally includes:

land details,
survey numbers,
plot numbers,
area,
location,
boundaries,
buildings,
shops,
agricultural land,
residential properties,
commercial properties,
graveyards,
mosques,
educational institutions,
hospitals,
any movable property where applicable.

The register should also contain details of:

title deeds,
sale deeds (where relevant),
gift deeds,
revenue records,
mutation records,
court decrees,
ownership documents,
lease records,
maps and other legal documents.

Maintaining these records helps establish ownership whenever disputes arise.

(e) Scheme of administration and expenditure

The register must also record how the waqf is administered.

This includes:

Administrative Scheme

It explains:

who manages the waqf,
powers of the Mutawalli,
duties of staff,
maintenance procedures,
decision-making process.

Scheme of Expenditure

It records how the waqf income is intended to be spent.

For example:

maintenance of mosque,
salaries of Imam and staff,
scholarships,
orphan welfare,
poor relief,
hospitals,
religious education,
repairs of buildings,
charitable activities.

Recording the expenditure scheme helps ensure that the income is used strictly according to the founder’s intentions.

(f) Other particulars prescribed by regulations

The Act also allows the Waqf Board to include additional information through regulations.

Examples may include:

GIS coordinates,
digital property records,
valuation,
litigation details,
encroachment status,
annual income,
lease information,
inspection reports,
audit details,
mutation status,
photographs,
online registration details.

This provision gives flexibility to modernize record keeping as administrative requirements evolve.

Section 37(2) – Information to be sent to the Land Record Office

After entering a waqf property in the Register of Auqaf, the Waqf Board must send the details of that property to the concerned land record office having jurisdiction over the property.

The information typically includes:

property description,
survey number,
ownership details,
registration details,
location,
boundaries,
other relevant records.

Purpose

The objective is to ensure that the government land records accurately reflect the status of the property as waqf property. This coordination helps prevent conflicting ownership claims and strengthens the legal protection of waqf assets.

Section 37(3) – Duty of the Land Record Office

Once the land record office receives the details from the Waqf Board, it must act according to the established legal procedure.

It has two options:

Option 1 – Make Necessary Entries

If the documents are found to be in order, the land record office updates its records by recording the property as a waqf property.

This creates consistency between the Waqf Board’s register and the official land records maintained by the government.

Option 2 – Raise Objections

If there is any discrepancy, missing document, or legal issue, the land record office may communicate its objections to the Waqf Board.

The Act requires that these objections be communicated within six months from the date of registration of the waqf under Section 36.

This time limit promotes timely verification and avoids unnecessary delays in updating land records.

Purpose of Section 37

The key objectives of this section are:

To maintain a comprehensive and authentic register of every registered waqf.
To preserve all important legal and administrative details relating to waqf properties.
To provide transparency in the management of waqf institutions.
To safeguard waqf properties from encroachment, fraud, or unauthorized transfers.
To establish clear records regarding the Mutawalli and the succession to that office.
To document the administration and expenditure pattern of each waqf.
To ensure coordination between the Waqf Board and government land record authorities.
To facilitate accurate updating of official land records.
To reduce ownership disputes through reliable documentation.

Practical Illustration

Suppose Mr. Ahmed creates a waqf by dedicating 15 acres of agricultural land for a mosque, a madrasa, and scholarships for needy students.

After registration under Section 36, the State Waqf Board records the following in the Register of Auqaf:

The waqf is classified as a public charitable and religious waqf.
The name of the Mutawalli is entered.
The succession rule states that the founder’s eldest competent descendant will become the next Mutawalli.
Full details of the 15-acre property, including survey numbers and title deeds, are recorded.
The administration and expenditure scheme specifies how income will be used for the mosque, madrasa, scholarships, and maintenance.
The Board then forwards these property details to the local land record office.
The land record office verifies the information and updates the official land records to show the land as waqf property, unless it raises objections within the prescribed six-month period.

This process creates a legally recognized and coordinated record of the waqf in both the Waqf Board’s register and the government’s land records.

Key Takeaway

Section 37 is the record-keeping and documentation provision of the Waqf Act. It requires the State Waqf Board to maintain a detailed register of every registered waqf, including information about its classification, Mutawalli, succession, properties, title documents, administration, and expenditure. It also establishes a mechanism for sharing these details with the land record authorities, ensuring that official government records accurately reflect the status of waqf properties and helping protect them from disputes and unauthorized claims.

Section 38 : Powers of the Board to Appoint an Executive Officer

Introduction

Section 38 empowers the State Waqf Board to appoint an Executive Officer (EO) for the efficient administration of a waqf whenever it considers such appointment necessary. The purpose is to ensure professional management, proper maintenance of accounts, transparency, and protection of waqf properties, especially in waqfs with substantial income. The Executive Officer is responsible only for the administrative and financial management of the waqf and has no authority over religious affairs.

Section 38(1) – Power of the Board to Appoint an Executive Officer

The State Waqf Board may appoint an Executive Officer (EO) if it believes that such an appointment is necessary in the interest of a waqf.

Key Points

The appointment can be:
- On a full-time basis,
- On a part-time basis, or
- In an honorary capacity.
The Board may also appoint supporting staff if required.
The appointment is made according to the regulations framed by the Board.
This provision applies to a waqf having a gross annual income of not less than ₹5 lakh.
The person appointed as Executive Officer must profess Islam, as required by the proviso.

Purpose

The objective is to improve the administration of financially significant waqfs and ensure that their assets and income are managed efficiently.

Section 38(2) – Powers and Duties of the Executive Officer

The Executive Officer performs only those functions that relate to the administration and management of the waqf property.

Key Responsibilities

Manage the administrative affairs of the waqf.
Work under the direction, control, and supervision of the State Waqf Board.
Ensure that the annual budget of the waqf is prepared and submitted.
Maintain proper books of accounts.
Submit the annual statement of accounts within the time prescribed by the Board.

Purpose

This provision promotes financial discipline, accountability, and proper record-keeping in the management of waqf properties.

Section 38(3) – No Interference in Religious Matters

While carrying out administrative functions, the Executive Officer cannot interfere with religious duties, rituals, customs, or practices that are recognised under Muslim law.

Purpose

This provision maintains a clear distinction between:

Administrative management, which is the responsibility of the Executive Officer, and
Religious functions, which continue to be governed according to Muslim law and established customs.

Thus, the Executive Officer manages the property, not the religious affairs of the waqf.

Section 38(4) – Salary and Allowances

The salary and allowances of the Executive Officer and supporting staff are fixed by the State Waqf Board.

While fixing the salary, the Board must consider:

The income of the waqf.
The nature and extent of the duties performed.
Whether the salary is reasonable and proportionate to the income of the waqf.

Purpose

The Board must ensure that administrative expenses do not become an unnecessary financial burden on the waqf.

Section 38(5) – Payment of Salary

Initially, the salary and allowances of the Executive Officer and staff are paid by the Board from the Waqf Fund.

However, if the appointment of the Executive Officer results in additional income for the waqf, the Board may recover the salary and allowance expenses from the funds of that waqf.

Purpose

This ensures that efficient management benefits the waqf while allowing the Board to recover expenses where appropriate.

Section 38(6) – Suspension, Removal or Dismissal

The Board has the authority to suspend, remove, or dismiss the Executive Officer or any member of the supporting staff.

However, before taking such action, the Board must:

Have sufficient reasons for the action, and
Give the concerned person a reasonable opportunity of being heard.

Purpose

This provision upholds the principles of natural justice by ensuring that disciplinary action is fair and not arbitrary.

Section 38(7) – Right to Appeal

If the Executive Officer or any member of the staff is aggrieved by an order of removal or dismissal, they may file an appeal before the Waqf Tribunal.

Important Points

The appeal must be filed within 30 days from the date of communication of the order.
The Tribunal will:
- Hear both the Board and the aggrieved person.
- Examine the facts and evidence.
- Pass an appropriate order.

The Tribunal may:

Confirm the Board’s decision,
Modify the decision, or
Reverse the decision.

Purpose

This provides an independent legal remedy against unfair disciplinary action.

Objectives of Section 38

Section 38 aims to:

Ensure efficient and professional administration of waqf properties.
Improve financial management and transparency.
Maintain proper budgets and accounting records.
Protect valuable waqf assets from mismanagement.
Separate administrative functions from religious functions.
Ensure fair disciplinary procedures and provide a right of appeal.

Simple Example

Suppose a waqf managing a large mosque and several commercial shops earns ₹20 lakh annually. The State Waqf Board finds that the accounts are poorly maintained and the income is not properly managed.

The Board appoints a full-time Executive Officer to:

Prepare the annual budget.
Maintain proper accounts.
Supervise administrative activities.
Protect the waqf property.

However, the Executive Officer cannot decide religious matters, such as the manner of offering prayers or conducting religious ceremonies. If the Executive Officer is later removed for misconduct, he has the right to appeal to the Waqf Tribunal within 30 days.

Key Takeaway

Section 38 authorizes the State Waqf Board to appoint an Executive Officer for waqfs with a gross annual income of at least ₹5 lakh whenever such an appointment is necessary. The Executive Officer is responsible for the administrative and financial management of the waqf under the Board’s supervision, while religious functions remain entirely outside his authority. The section also regulates the Executive Officer’s salary, disciplinary proceedings, and provides a statutory right to appeal before the Waqf Tribunal..

Section 39 : Powers of the Board in Relation to Auqaf Which Have Ceased to Exist

Introduction

Section 39 of the Waqf Act, 1995 deals with situations where a waqf has ceased to exist or its original purpose can no longer be fulfilled. Sometimes, the institution created by the waqf disappears, its beneficiaries no longer exist, or the religious or charitable activities for which it was created come to an end. However, the waqf property itself does not automatically lose its legal character as waqf property.

This section empowers the State Waqf Board to investigate such waqf properties, identify their assets, recover them if necessary, and ensure that they continue to be used for lawful religious, charitable, or pious purposes instead of remaining abandoned or being misused.

The provision reflects the Islamic principle that once a property becomes waqf, it remains dedicated to God permanently, even if the original object of the waqf ceases to exist.

Purpose of Section 39

The main objectives of this provision are:

To identify waqf institutions that have ceased to function.
To protect abandoned waqf properties from illegal occupation.
To recover waqf assets and funds wherever possible.
To ensure that waqf properties continue serving religious or charitable purposes.
To prevent valuable waqf properties from being wasted or diverted for private benefit.
To enable the Board to restore the original spirit of the waqf.

Sub-section (1): Inquiry When the Objects of a Waqf Have Ceased to Exist

If the State Waqf Board believes that:

the entire object of a waqf has ceased to exist, or
only a part of its objectives no longer survives,

the Board must initiate an inquiry.

This rule applies irrespective of whether the cessation occurred:

before the Waqf Act came into force, or
after the Act came into force.

The Board cannot make assumptions. Instead, it must direct the Chief Executive Officer (CEO) to conduct a proper inquiry in the prescribed manner.

What the CEO Investigates

During the inquiry, the Chief Executive Officer examines:

the history of the waqf,
the purpose for which it was created,
whether those purposes still exist,
the present condition of the institution,
details of all movable and immovable properties,
bank accounts,
investments,
income,
cash,
documents,
records,
any missing or illegally occupied assets.

The CEO then prepares a detailed inquiry report for the Board.

Example

A waqf was created 150 years ago to maintain a madrasa.

Over time:

the madrasa permanently closed,
no students remain,
the educational institution no longer exists.

The Board directs the CEO to investigate:

whether the madrasa has genuinely ceased to exist,
what lands belong to the waqf,
whether any buildings remain,
whether there are funds or income attached to the waqf.

Sub-section (2): Order of the Board After Receiving the CEO’s Report

After receiving the inquiry report, the Board must pass a formal order.

The order has two important parts.

(a) Specification of Waqf Property and Funds

The Board officially identifies and records:

land,
buildings,
shops,
agricultural land,
bank deposits,
investments,
cash,
income,
any other assets belonging to the waqf.

This creates legal certainty regarding what constitutes the waqf property.

(b) Utilisation of Recovered Property and Funds

If any property or funds have been recovered during the inquiry or subsequent action, the Board must decide how they should be used.

First Preference

Recovered funds should be used for:

renovation,
repair,
restoration,
preservation

of any waqf property.

This helps protect old mosques, graveyards, dargahs, madrasas, or other waqf institutions.

If Renovation Is Not Needed

Sometimes:

no waqf property requires renovation, or
renovation is impossible.

In such cases, the recovered funds may be used for the purposes mentioned in Section 32(2)(e)(iii).

These purposes generally relate to broader religious, charitable, educational, or welfare activities that fall within the functions of the Board under the Act.

Thus, even if the original waqf has disappeared, its assets continue to benefit the Muslim community through lawful waqf purposes.

Example

A waqf owned several shops.

The mosque attached to it was demolished decades ago and no longer exists.

The Board recovers rental income from the shops.

Instead of allowing the income to remain unused, the Board may:

renovate another old waqf mosque,
repair a waqf graveyard,
support recognised charitable activities under Section 32.

Sub-section (3): Recovery of Religious Buildings No Longer Used for Their Purpose

Sometimes, a building originally used:

as a mosque,
madrasa,
prayer hall,
charitable institution,
religious school,
or any place of religious instruction,

stops being used for those purposes.

It may instead be:

illegally occupied,
converted into private use,
rented unlawfully,
abandoned.

In such cases, the Board may apply to the Waqf Tribunal seeking an order to recover possession of the property.

This provision ensures that waqf properties do not permanently lose their religious or charitable character merely because their use has changed.

Example

A waqf building originally functioned as an orphanage.

Years later:

private individuals occupy it,
commercial activities are carried on without authority.

The Board may approach the Tribunal seeking recovery of possession.

Sub-section (4): Powers of the Tribunal

The Tribunal does not automatically order recovery.

Instead, it independently examines the facts.

If satisfied after inquiry, it may pass appropriate orders.

However, three important conditions must first be fulfilled.

Condition (a): The Property Must Be Waqf Property

The Tribunal must first determine whether the building or place legally belongs to the waqf.

If it is not waqf property, Section 39 does not apply.

Condition (b): Property Should Not Have Been Legally Acquired by the Government

The Tribunal must ensure that the property has not:

been acquired under any land acquisition law,
been vested in the State Government under land reform legislation,
or is not already under acquisition proceedings.

If Government acquisition has lawfully taken place, the Tribunal cannot order recovery under this section.

Condition (c): No Person Should Be Lawfully Authorised to Occupy It

The Tribunal must verify that the present occupant has no legal authority under any law to occupy the property.

If the occupation is legally authorised, recovery cannot be ordered.

However, if occupation is illegal or unauthorised, recovery may be directed.

Orders That the Tribunal May Pass

If all the above conditions are satisfied, the Tribunal may pass two kinds of orders.

1. Recovery of Possession

The Tribunal may order eviction of unauthorised occupants and direct that possession be restored to the waqf.

2. Future Use of the Property

After recovery, the Tribunal may direct that:

the building again be used for its original religious purpose,
religious instruction be resumed,
charitable activities be restarted.

If restoration of the original purpose is impossible, the property may instead be utilised for the charitable and religious purposes mentioned in Section 32(2)(e)(iii).

Thus, the property continues serving public religious or charitable objectives rather than remaining idle.

Importance of Section 39

Section 39 is significant because it:

protects waqf properties even after their original institution ceases to function;
prevents abandonment and misuse of religious endowments;
empowers the Board to investigate and recover lost assets;
ensures that recovered funds are applied for lawful waqf purposes;
enables restoration of abandoned religious institutions wherever possible;
authorises the Tribunal to evict unauthorised occupants after due inquiry;
preserves the perpetual nature of waqf property in accordance with Islamic legal principles.

Practical Illustration

Suppose a waqf was established in 1920 to run a free Islamic school.

Over time:

the school closed permanently;
the building was occupied by private persons;
rental income from waqf shops disappeared.

Under Section 39:

The Board directs the CEO to investigate.
The CEO identifies all waqf properties and funds.
The Board records the assets and recovers the missing income.
The Board files an application before the Tribunal for possession of the occupied school building.
The Tribunal confirms that:
- the property is a waqf property,
- it has not been acquired by the Government,
- the occupants have no legal right to remain.
The Tribunal orders eviction.
If reopening the school is not feasible, the recovered property and funds may be used for another lawful religious or charitable purpose under Section 32.

Key Legal Principles

A waqf does not lose its legal status merely because its original object has ceased to exist.
The State Waqf Board has the authority to investigate discontinued waqf institutions.
The Chief Executive Officer conducts the statutory inquiry.
The Board identifies and safeguards all waqf assets and funds.
Recovered funds should primarily be used for renovation of waqf properties.
If renovation is unnecessary or impossible, the funds may be applied to other purposes permitted under Section 32(2)(e)(iii).
The Waqf Tribunal has the power to order recovery of waqf buildings from unauthorised occupants after satisfying the statutory conditions.
Recovered properties should, as far as possible, be restored to their original religious or charitable use, or otherwise utilised for other lawful waqf purposes.

Section 40 : Decision Whether a Property is Waqf Property

Introduction

Section 40 of the Waqf Act, 1995 empowers the State Waqf Board to determine whether a particular property is waqf property and, if so, whether it belongs to a Sunni Waqf or a Shia Waqf. This provision is important because disputes often arise regarding the legal status of land, buildings, mosques, graveyards, dargahs, schools, shops, and other properties claimed to be waqf.

The section authorises the Board to conduct inquiries, collect evidence, and make a decision. However, the Board’s decision is not beyond judicial review. Any aggrieved person may challenge the decision before the Waqf Tribunal, which has the authority to confirm, modify, or set aside the Board’s decision.

The purpose of Section 40 is to prevent uncertainty regarding waqf properties and to ensure that properties dedicated for religious or charitable purposes are properly identified, protected, and administered under the Waqf Act.

Purpose of Section 40

The main objectives of this section are:

To empower the Board to identify genuine waqf properties.
To resolve disputes regarding the nature of a property.
To determine whether a waqf belongs to the Sunni or Shia denomination.
To prevent waqf properties from being wrongly treated as private property.
To protect waqf assets from unlawful transfer or misuse.
To bring genuine waqf properties under the supervision of the Waqf Board.

Sub-section (1): Power of the Board to Decide Whether Property is Waqf Property

Under this provision, the Waqf Board may itself collect information whenever it has reason to believe that a particular property is waqf property.

The Board is not required to wait for a complaint or application. It can initiate the process on its own if credible information suggests that a property may belong to a waqf.

What the Board May Investigate

The Board may investigate questions such as:

Whether a particular land is waqf property.
Whether a building belongs to a waqf.
Whether a mosque or dargah is legally a waqf.
Whether agricultural land forms part of a waqf.
Whether shops or commercial buildings belong to a waqf.
Whether a waqf is a Sunni Waqf or a Shia Waqf.

Inquiry Conducted by the Board

Before making any decision, the Board conducts an inquiry.

The inquiry may include examining:

waqf deeds,
historical records,
revenue records,
land records,
registration documents,
survey reports,
witness statements,
old government records,
judicial decisions,
evidence relating to the dedication of the property.

The Board has discretion to conduct the inquiry in the manner it considers appropriate, provided the principles of fairness and natural justice are followed.

Example

A piece of agricultural land has been used for the maintenance of a mosque for over 150 years.

The land is recorded in the name of a private individual, but historical records indicate that it was dedicated as waqf.

The Board may:

collect documentary evidence,
inspect records,
hear interested parties,
determine whether the land is legally waqf property.

Determination of Sunni or Shia Waqf

Apart from deciding whether property is waqf, the Board may also determine whether the waqf belongs to the Sunni or Shia denomination.

This determination is important because:

separate Sunni and Shia Waqf Boards may exist in some States;
management and administration may differ;
beneficiaries and religious practices may vary;
the appropriate Board must exercise jurisdiction over the waqf.

The Board examines:

the intention of the founder (waqif),
the waqf deed,
historical usage,
religious practices followed,
evidence from the concerned community.

Sub-section (2): Finality of the Board’s Decision

After completing the inquiry, the Board gives its decision.

The decision remains binding and operative unless it is:

revoked, or
modified

by the Waqf Tribunal.

Therefore, the Board’s decision is not absolutely final. It has legal force but remains subject to judicial scrutiny.

This provision creates a balance between administrative efficiency and judicial oversight.

Practical Meaning

Until the Tribunal interferes, the Board’s decision continues to operate.

Any person dissatisfied with the decision may approach the Tribunal for appropriate relief.

The Tribunal may:

confirm the Board’s decision,
modify it,
cancel it,
or pass any other appropriate order based on the evidence.

Sub-section (3): Inquiry into Trust or Society Properties

Sometimes, property that is actually waqf property may have been registered under another law, such as:

the Indian Trusts Act, 1882,
the Societies Registration Act, 1860,
or any other law governing trusts or societies.

Section 40 empowers the Waqf Board to examine such cases.

If the Board has reason to believe that a property registered under another law is in fact waqf property, it may hold an inquiry notwithstanding anything contained in those Acts.

This means the Board’s inquiry is not barred merely because the property is registered as a trust or society.

Notice to the Trust or Society

If, after inquiry, the Board concludes that the property is waqf property, it cannot immediately register it as such.

Instead, it must first issue a notice to the trust or society requiring it to:

register the property as waqf under the Waqf Act, or
explain why the property should not be treated as waqf property.

This ensures compliance with the principles of natural justice, particularly the right to be heard.

Notice to the Registering Authority

The proviso to sub-section (3) further requires that notice must also be given to the authority that originally registered the trust or society.

This requirement ensures:

transparency,
coordination between authorities,
and fairness before altering the legal status of the property.

Example

A charitable society registered under the Societies Registration Act manages an old mosque and several shops.

Historical records show that these properties were permanently dedicated as waqf long before the society was formed.

The Board may:

conduct an inquiry,
collect evidence,
issue notice to the society,
notify the Registrar of Societies,
decide whether the properties should be registered as waqf.

Sub-section (4): Orders After Considering the Reply

After receiving the explanation from the trust or society, the Board carefully considers:

all documents,
legal submissions,
historical records,
oral evidence,
objections raised.

After evaluating the material, the Board passes an appropriate order.

Possible outcomes include:

declaring the property to be waqf property,
rejecting the proposed registration,
directing registration under the Waqf Act,
passing any other suitable order based on the evidence.

Finality of the Order

The Board’s order is treated as final.

However, like the decision under sub-section (2), it remains subject to review by the Waqf Tribunal.

The Tribunal may:

affirm the order,
modify it,
revoke it,
or issue fresh directions if warranted.

Thus, the Tribunal acts as the judicial authority to resolve disputes arising from the Board’s determination.

Importance of Section 40

Section 40 is significant because it:

empowers the Waqf Board to identify genuine waqf properties;
enables the Board to resolve disputes regarding the legal character of property;
determines whether a waqf is Sunni or Shia for proper administration;
protects waqf properties that may have been wrongly recorded as private, trust, or society property;
ensures that trusts and societies receive notice and an opportunity to present their case before any adverse decision is made;
provides judicial oversight by allowing challenges before the Waqf Tribunal;
strengthens the protection and proper administration of waqf assets.

Practical Illustration

Suppose a charitable society registered under the Societies Registration Act manages an old Islamic educational institution. The institution owns land and buildings that were originally dedicated by a donor as a permanent waqf.

The Waqf Board receives information suggesting that the property is, in reality, waqf property.

The Board then:

Collects historical and documentary evidence.
Conducts an inquiry into the property’s status.
Issues a notice to the society asking it to register the property as waqf or explain why it should not be so registered.
Sends a notice to the Registrar who registered the society.
Considers the society’s reply and supporting evidence.
Passes an order declaring the property to be waqf property if satisfied by the evidence.
If the society disagrees, it may challenge the Board’s order before the Waqf Tribunal.

Key Legal Principles

The Waqf Board may suo motu (on its own initiative) investigate whether a property is waqf property.
The Board may determine both the existence of a waqf and whether it is a Sunni or Shia waqf.
Before making a decision, the Board must conduct an inquiry based on relevant evidence and follow principles of natural justice.
The Board’s decision has legal effect but is subject to appeal or challenge before the Waqf Tribunal.
The Board may inquire into properties registered under the Indian Trusts Act, 1882, the Societies Registration Act, 1860, or any other law if there is reason to believe they are waqf properties.
A trust or society must be given an opportunity to show cause before its property is declared waqf property.
The authority that originally registered the trust or society must also receive notice.
The Waqf Tribunal is the final judicial authority to review, modify, or revoke the Board’s decision or order under Section 40.

Section 41 of the Waqf Act, 1995 – Power to Cause Registration of Waqf and to Amend the Register

Introduction

Section 41 empowers the State Waqf Board to ensure that every waqf is properly registered and that the official Register of Auqaf remains accurate and up to date. Registration is not merely a formality; it creates an official record of the waqf, its properties, its objects, and its management. If a mutawalli fails to register a waqf or provide necessary information, the Board can intervene and complete the registration itself. It can also amend the register whenever corrections or updates are required.

The purpose of this section is to ensure that no waqf remains outside the supervision of the Board because of negligence, delay, or deliberate omission by the mutawalli.

Purpose of Section 41

The objectives of this provision are:

To ensure compulsory registration of every waqf.
To maintain an accurate Register of Auqaf.
To empower the Board to act where the mutawalli fails to perform his duty.
To keep official records updated whenever changes occur.
To prevent disputes arising from outdated or incorrect records.
To strengthen transparency and effective administration of waqf properties.

Power of the Board to Direct Registration

The Board may direct the mutawalli to apply for the registration of a waqf.

This direction becomes necessary when:

the waqf has not been registered,
the mutawalli has failed to submit the registration application,
or the Board discovers an unregistered waqf during its inspection or inquiry.

The mutawalli is legally expected to comply with the Board’s direction.

Power to Call for Information

Apart from directing registration, the Board may require the mutawalli to furnish information relating to the waqf.

The information may include:

details of the waqf property,
income and expenditure,
particulars of beneficiaries,
copies of the waqf deed,
management details,
boundaries of the property,
records of tenants,
or any other information necessary for maintaining proper records.

This power enables the Board to verify the correctness of the Register of Auqaf.

Power of the Board to Register the Waqf Itself

If the mutawalli:

refuses,
neglects,
delays,
or fails to register the waqf,

the Board is not powerless.

It may itself complete the registration of the waqf without waiting indefinitely for the mutawalli.

This ensures that valuable waqf properties do not remain outside the statutory framework merely because of the inaction of the person managing them.

Power to Amend the Register of Auqaf

The Board may amend the Register of Auqaf at any time.

Amendment may become necessary because of:

correction of clerical mistakes,
addition of newly discovered waqf property,
deletion of incorrect entries,
change in property details,
correction of ownership particulars,
change in management,
or any other legally relevant alteration.

The power to amend ensures that the official register always reflects the true legal position.

Practical Illustration

A waqf was created many years ago, but the mutawalli never applied for registration.

During an inspection, the Board discovers the waqf.

The Board:

Directs the mutawalli to register it.
Calls for copies of the waqf deed and property records.
If the mutawalli still fails to act, the Board registers the waqf itself.
The Register of Auqaf is updated with the correct details.

Importance of Section 41

Section 41 is important because it:

ensures that every waqf comes under the supervision of the Waqf Board;
prevents evasion of statutory registration;
authorises the Board to obtain necessary information directly from the mutawalli;
allows the Board to register a waqf even without the cooperation of the mutawalli;
keeps the Register of Auqaf accurate, complete, and legally reliable.

Section 42 : Change in the Management of Auqaf to be Notified

Introduction

Section 42 requires that whenever there is a change in the management of a registered waqf, the Waqf Board must be informed promptly. Since the mutawalli is responsible for administering the waqf and safeguarding its properties, the Board must always know who is legally managing the waqf.

This provision also requires notification of changes in the particulars furnished at the time of registration, ensuring that the Board’s records remain current and accurate.

Purpose of Section 42

The objectives are:

To maintain updated records of waqf management.
To ensure continuity in administration.
To prevent disputes regarding the identity of the mutawalli.
To keep registration records current.
To enable the Board to supervise waqf administration effectively.

Sub-section (1): Notification of Change in Mutawalli

Whenever the management of a registered waqf changes because of:

death of the mutawalli,
retirement,
removal,
or appointment of a new mutawalli,

the incoming mutawalli must immediately notify the Board.

The Act uses the word “forthwith,” meaning the notification should be given without unnecessary delay.

Although the primary responsibility lies with the incoming mutawalli, any other person may also inform the Board if such a change has taken place.

This helps prevent situations where the Board remains unaware of changes in management.

Example

A mutawalli dies.

A new mutawalli is appointed according to the waqf deed.

The new mutawalli must promptly inform the Waqf Board about the change so that the official records can be updated.

Sub-section (2): Notification of Other Changes

Apart from changes in management, there may be changes in the particulars originally supplied under Section 36 at the time of registration.

Such changes may relate to:

additional waqf property,
change in property boundaries,
alteration in income,
modification of beneficiaries,
change in the objects of the waqf where legally permissible,
or other registered particulars.

In all such cases, the mutawalli must notify the Board within three months from the date the change occurs.

This statutory time limit ensures that the Register of Auqaf remains updated.

Practical Illustration

A waqf acquires an adjoining parcel of land through a lawful dedication.

Since the property details recorded under Section 36 have changed, the mutawalli must inform the Board within three months so that the Register of Auqaf can be amended.

Importance of Section 42

Section 42 is important because it:

keeps the Board informed about the current mutawalli;
maintains accurate and updated registration records;
prevents confusion over the lawful management of waqf property;
facilitates effective supervision by the Board;
imposes a legal obligation to report changes within the prescribed time.

Section 43 : Auqaf Registered Before the Commencement of the Act Deemed to be Registered

Introduction

Section 43 provides a saving provision for waqf properties that had already been registered under earlier laws before the Waqf Act, 1995 came into force. Instead of requiring fresh registration, the Act recognizes the validity of the earlier registration and treats it as registration under the present Act.

This provision avoids unnecessary duplication, reduces administrative burden, and ensures continuity in the legal status of previously registered waqf properties.

Purpose of Section 43

The objectives are:

To preserve registrations made under previous laws.
To avoid repeated registration of the same waqf.
To ensure continuity in legal records.
To reduce unnecessary administrative procedures.
To protect existing rights and records.

Effect of Earlier Registration

If a waqf was validly registered under any law in force before the commencement of the Waqf Act, 1995, that registration continues to remain valid.

The waqf does not have to submit a fresh application for registration under the 1995 Act.

The earlier registration is automatically treated as though it had been made under the present Act.

Meaning of “Deemed to be Registered”

The expression “deemed to be registered” is a legal fiction created by the statute.

It means that, although the registration was actually made under an earlier law, the law treats it as if it had been made under the Waqf Act, 1995.

This ensures continuity without requiring any further procedural steps.

Example

A mosque was registered under a State Waqf Act in 1985.

After the Waqf Act, 1995 came into force, there is no requirement to register the mosque again.

The earlier registration automatically continues to have legal validity under the 1995 Act.

Importance of Section 43

Section 43 is important because it:

recognises the validity of registrations made under previous waqf laws;
eliminates the need for duplicate registration;
ensures uninterrupted legal recognition of existing waqf properties;
reduces administrative workload for both the Board and mutawallis;
protects the continuity and stability of waqf administration.

Top 20 FAQs on Registration of Auqaf (Sections 36–43 of the Waqf Act, 1995)

These FAQs are SEO-friendly, exam-oriented, and suitable for legal blogs, law students, judiciary aspirants, and competitive examination preparation.

1. What is the purpose of registering a waqf under the Waqf Act, 1995?

The registration of a waqf creates an official record of its existence, properties, objects, income, and management. It enables the State Waqf Board to supervise the waqf, protect its assets, prevent encroachment, and ensure that the waqf is administered according to law.

2. Is registration of a waqf mandatory under Section 36 of the Waqf Act?

Yes. Section 36 makes it mandatory for every waqf, whether created before or after the commencement of the Waqf Act, 1995, to be registered with the State Waqf Board.

3. Who is responsible for applying for the registration of a waqf?

The primary responsibility lies with the Mutawalli. However, in certain situations, the Board or other interested persons may also initiate the registration process in accordance with the Act.

4. What information must be provided while registering a waqf?

The registration application generally includes details of the waqf deed, founder (waqif), Mutawalli, properties, income, expenditure, beneficiaries, objects of the waqf, and other prescribed particulars necessary for maintaining the Register of Auqaf.

5. What is the Register of Auqaf under Section 37?

The Register of Auqaf is the official record maintained by the State Waqf Board containing comprehensive information about every registered waqf, including its properties, management, income, and other legal particulars.

6. Why is the Register of Auqaf important?

It serves as the primary legal record for identifying waqf properties, verifying ownership, monitoring management, resolving disputes, and ensuring transparency in the administration of waqf assets.

7. Can the Waqf Board appoint an Executive Officer for a waqf?

Yes. Under Section 38, the Waqf Board may appoint an Executive Officer, along with supporting staff, if it considers such appointment necessary for the proper administration and protection of a waqf.

8. What are the functions of an Executive Officer appointed under Section 38?

An Executive Officer manages the day-to-day administration of the waqf under the supervision of the Board, implements its directions, safeguards waqf properties, maintains records, and performs duties assigned by the Board or prescribed by regulations.

9. What happens if the original object of a waqf ceases to exist?

Under Section 39, the Waqf Board may conduct an inquiry through the Chief Executive Officer, identify the waqf properties and funds, recover them if necessary, and utilise them for the renovation of other waqf properties or other lawful purposes specified under the Act.

10. Can abandoned waqf properties be recovered?

Yes. If a religious or charitable building belonging to a waqf has ceased to be used for its original purpose and is under unauthorised occupation, the Waqf Board may approach the Waqf Tribunal to recover possession and restore or appropriately utilise the property.

11. Who decides whether a property is waqf property?

Under Section 40, the State Waqf Board has the authority to inquire into and decide whether a particular property is waqf property or whether it belongs to a Sunni or Shia waqf, subject to review by the Waqf Tribunal.

12. Can the Waqf Board inquire into properties owned by trusts or societies?

Yes. If the Board has reason to believe that property registered under a trust, society, or any other law is actually waqf property, it may conduct an inquiry and require its registration under the Waqf Act after following due process.

13. Is the decision of the Waqf Board final regarding the nature of a waqf property?

The Board’s decision is binding unless it is modified or revoked by the Waqf Tribunal. Therefore, any aggrieved person may challenge the Board’s decision before the Tribunal.

14. Can the Waqf Board register a waqf on its own?

Yes. Under Section 41, if the Mutawalli fails to register a waqf or provide the required information, the Waqf Board may itself cause the waqf to be registered and may also amend the Register of Auqaf whenever necessary.

15. When should changes in the management of a waqf be reported?

Under Section 42, whenever there is a change in the management of a registered waqf due to the death, retirement, removal, or appointment of a Mutawalli, the incoming Mutawalli must notify the Waqf Board without delay.

16. Is there a time limit for reporting changes in the particulars of a registered waqf?

Yes. Any change in the particulars furnished at the time of registration must be notified to the Waqf Board by the Mutawalli within three months from the date the change occurs.

17. Does a waqf registered under an earlier law require fresh registration under the Waqf Act, 1995?

No. Under Section 43, a waqf validly registered under any law before the commencement of the Waqf Act, 1995 is deemed to be registered under the present Act and does not require fresh registration.

18. Why is timely registration and updating of waqf records important?

Timely registration and regular updating of records help protect waqf properties from encroachment, fraud, illegal transfers, and administrative disputes while ensuring effective supervision by the Waqf Board.

19. What role does the Waqf Tribunal play in matters relating to registration and waqf property?

The Waqf Tribunal hears disputes arising from decisions of the Waqf Board, including questions relating to the registration of waqf, the status of waqf property, recovery of possession, and other matters under Sections 39 and 40.

20. What is the overall objective of Sections 36 to 43 of the Waqf Act, 1995?

Sections 36 to 43 establish a comprehensive legal framework for the registration, maintenance of records, supervision, protection, and proper administration of waqf properties. They ensure transparency, accountability, effective management, and preservation of waqf assets for religious, charitable, and pious purposes.