A SOCIO-LEGAL INQUIRY INTO MANAGEMENT AND

DEVELOPMENT OF AWQĀF IN BANGLADESH:

CHALLENGES AND PROSPECTS

BY

MD FAZLUL KARIM

A thesis submitted in fulfillment of the requirement for the

degree of Doctor of Philosophy in Law

Ahmad Ibrahim Kulliyyah of Laws

International Islamic University Malaysia

NOVEMBER 2016
 ABSTRACT

This research is an attempt to respond to the pressing needs to revive and explore the
prospects of awqāf in Bangladesh that has not been seen in any published doctoral
dissertations on this area in the last few decades. awqāf in Bangladesh represents a
sector with huge potentials for welfare oriented developments and the benefits of
unprivileged section of the population. Aligned with its specific research objectives
the study seeks to explore the challenges that the waqf administration in the country is
now facing. Several research hypotheses were set questioning the suitability of the
Waqf Ordinance 1962, which has been thoroughly examined. These were set in order
to check for any possible lacuna and loopholes that may have led to handle the
administration and management of the waqf institutions inefficiently in the country in
question. Relevant data were collected for the analysis of both from primary and
secondary sources, and existing relevant literatures have been reviewed. This study
seeks to demonstrate that despite huge potentials and prospects for welfare based
developments, awqāf in Bangladesh remained largely untapped for diverse challenges
consisting legal and administrative hurdles. Attempts are also made in this study to
explore the extent of serious lacking in efficiency mainly in matters related to the
administration and management of waqf in Bangladesh that have led waqf properties
and assets to remain open to misuse and mismanagement. This includes inter alia,
shortage of competent personnel to administer waqf entities, illegal occupation of
waqf properties, leasing and renting of waqf properties at a lower rate, and
misappropriation of waqf funds. As a result, the institution of waqf in Bangladesh
faces a stagnant situation due to which many waqf properties remained underutilised
or even idle generating no yield. The study argued that the present legal and
regulatory framework is inadequate for the proper development of waqf, and as such
an appropriate legal framework would pave the way for exploiting the fullest
potentials of awqāf. This research finds that there is a pressing need to work on
reforming and developing the waqf establishment in Bangladesh from legal and
regulatory framework as well as the administrative set up of the waqf administration,
which is expected to contribute as stepping stones for further research and stimulate
future researchers to come up with innovative ideas for the developments of awqāf in
Bangladesh. The research also suggests ways to resolve issues related to effective
management of awqāf in Bangladesh jurisdiction. Given that, the role of awaqf in
poverty alleviation and prospects for cash waqf in Bangladesh has been duly pointed
out. This study provides valuable policy recommendations which are expected to be
useful to the appropriate policy makers in their efforts to administer and manage these
important institutions efficiently and sustainably. It also recommends ways for
revitalising awaqf such as enacting a new Waqf Act, developing urban waqf,
introducing waqf bond, collaborating with other Muslim countries, establishing a
national waqf advisory board, educating mutawallis and providing them appropriate
training, enhancing staff benefits, establishing waqf tribunal, conducting a national
waqf survey, establishing a shari`ah board, investing waqf properties in real estate and
commercial building, developing statistics/database for the family waqf,
democratising and decentralising waqf administration, setting-up guidelines and
legislations for managing darghas and takias, initiating cash waqf policy, developing
Mosques properties, and establishing research divisions.

ii
iii
 APPROVAL PAGE

The thesis of Md Fazlul Karim has been approved by the following:

_________________________
Syed Khalid Rashid
Supervisor

_________________________
Muhammad Abdurrahman Sadique
Co-supervisor

_________________________
Sharifah Zubaidah Syed Abdul Kadir
Internal Examiner

_________________________
M. Afzal Wani
External Examiner

_________________________
Muhammad Syukri Salleh
External Examiner

_________________________
Abdul Razak Sapian
Chairman

iv
 DECLARATION

I hereby declare that this thesis is the result of my own investigations, except where

otherwise stated. I also declare that it has not been previously or concurrently

submitted as a whole for any other degree at IIUM or other institutions.

Md Fazlul Karim

Signature …………………………………… Date ……………………..

v
 COPYRIGHT
INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

DECLARATION OF COPYRIGHT AND AFFIRMATION OF

FAIR USE OF UNPUBLISHED RESEARCH

A SOCIO-LEGAL INQUIRY INTO MANAGEMENT AND

DEVELOPMENT OF AWQAF IN BANGLADESH:
CHALLENGES AND PROSPECTS

I declare that the copyright holder of this thesis is

Md Fazlul Karim

Copyright © 2016 by Md Fazlul Karim. All rights reserved.

No part of this unpublished research may be reproduced, stored in a retrieval

system, or transmitted, in any form or by any means, electronic, mechanical,
photocopying, recording or otherwise without prior written permission of the
copyright holder except as provided below.

1. Any material contained in or derived from this unpublished research

may only be used by others in their writing with due acknowledgement.

2. IIUM or its library will have the right to make and transmit copies (print
or electronic) for institutional and academic purposes.

3. The IIUM library will have the right to make, store in a retrieval system
and supply copies of this unpublished research if requested by other
universities and research libraries.

By signing this form, I acknowledged that I have read and understand the IIUM
Intellectual Property Right and Commercialization policy.

Affirmed by Md Fazlul Karim

……………………………. ………………..
Signature Date

vi
 Dedication

To

The departed souls of my parents,

Moulvi Rusmat Ali and Masuma Khatun

And those who care about

Waqf.

vii
 ACKNOWLEDGMENTS

Alhamdulillah, wassalaatu wassalamu ‘ala Rasulillah! It is only due to infinite mercy

and graces of Allah s.w.t. that I was able to undertake this research despite
innumerable challenges faced throughout the research period. Without His grace this
work would not have been accomplished.
Then I would first like to record my profound gratitude and deepest
appreciations for Professor Dr. Syed Khalid Rashid, Professor of Law at the Ahmad
Ibrahim Kulliyyah of Laws (AIKOL) and the Founder Director of the International
Center for Waqf Research (ICWR), International Islamic University Malaysia (IIUM),
for supervising me with utmost patience and compassion throughout this research. He
guided me like a teacher, disciplined me like a trainer and loved me like a father. I am
deeply thankful and grateful for having him as my supervisor who is considered
worldwide an authority on waqf affairs. May Allah’s infinite mercy surround him
always! I am also deeply grateful to Assoc. Prof Dr. Muhammad Abdurrahman
Sadique for his vital assistance during this study. My profound gratitude goes to my
post-viva supervisor Assoc. Prof Dr. Sharifah Zubaidah, the Director of the
International Centre for Waqf Research (ICWR) and Prof Dr. Abdul Haseeb Ansari,
the Deputy Dean (Postgraduate) of AIKOL, for their meticulous attention to details
and invaluable guidance during the final stage of submission of this work.
My heartfelt appreciations go to all my friends and colleagues including, but
not limited to, Dr. Wahid Murad, Dr. Nowshad Amin, Dr. Shabiul Islam, Dr. Tariqul
Islam, Dr. Osmani, Major (Rtd) Abu Sayed, who stood by my side and helped me in
one way or other during this undertaking. I owe a great deal to my father in law Dr.
Abu Bakr Rafique and Uncle Dr. Abu Umar Faruq, my beloved wife Rumman and my
three sons-cum-little-friends Midrar, Israr and Iqrar for their encouragement,
motivation and prayers.
My deepest gratitude go to my eldest brother Sazzadul Karim who himself
stood First Class First in his MSC from Dhaka University and ever since became my
dream man for academic excellence, to my second brother Engineer Mumtazul Karim
who helped me a great deal in my data collection from Bangladesh, to my third
brother Rezaul Karim who is more a friend to me than a brother and was never
unavailable whenever I was in need of his help despite his busy schedule in his
managerial position in a company, my younger brother Faizul Karim whom I always
respect for his mature opinion and company, finally my two gorgeous sisters
Marhuma and Mozeza who relentlessly prayed for my wellbeing and were the sources
of calmness for my heart and soul during this undertaking and always. May Allah
(s.w.t) bless them all!
Last, but by no means least, I am ever grateful to my employer during this
study, Multimedia University (MMU) Cyberjaya, Malaysia for allowing me to pursue
my Ph.D while teaching there and for providing me with all the incentives and
motivation during my Ph.D. research. I am indebted in many ways to my friends and
colleagues in MMU, namely Dr. Sonny, Dr. Bahma and Dr. Shereen Khan, among
others, for their support and encouragements.
As the author of this work I am fully aware of my imperfections more than
anyone else. Any error or omission that might have been committed in this work is,
however, only mine for which I seek the indulgence of all. Wa Ma Taufiqi Illa Billah!

viii
 TABLE OF CONTENTS

Abstract .......................................................................................................................... ii
Abstract in Arabic ......................................................................................................... iii
Approval Page ............................................................................................................... iv
Declaration ..................................................................................................................... v
Copyright ...................................................................................................................... vi
Dedication .................................................................................................................... vii
Acknowledgments ....................................................................................................... viii
Table of Contents .......................................................................................................... ix
List of Tables ............................................................................................................. xvii
List of Figures ........................................................................................................... xviii
List of Cases ................................................................................................................ xix
List of Statutes ............................................................................................................ xxi
List of Abbreviations ................................................................................................. xxii

CHAPTER ONE : INTRODUCTION ....................................................................... 1

1.1 Bangladesh and Awqāf: Preliminary Remarks ........................................... 1
1.2 Beginning of Legislative Control of Awqāf in Bangladesh .......................... 2
1.3 Census of Awqāf in Bangladesh ................................................................... 3
1.4 Waqf Administration under the Ministry of Religious Affairs ..................... 4
1.5 Short-staffed Administration ........................................................................ 5
1.6 Registration Status ........................................................................................ 6
1.7 Disputes Settlement ...................................................................................... 6
1.8 Suitability of the Waqf Ordinance 1962 to the Current Needs ..................... 7
1.9 Prospects of Awqāf in Bangladesh ................................................................ 7
1.10 Objective of this study ................................................................................ 8
1.11 Hypothesis .................................................................................................. 9
1.12 Research Methodology ............................................................................. 11
1.13 Scope of the study..................................................................................... 12
1.14 Limitations of the Study ........................................................................... 13
1.15 Literature Review ..................................................................................... 14
1.15.1 Ph.D. Thesis ................................................................................... 14
1.15.2 Government Reports ...................................................................... 15
1.15.3 Ordinance ....................................................................................... 16
1.15.4 Books ............................................................................................. 17
1.15.5 Chapter in Books ............................................................................ 23
1.15.6 Administrative Reports .................................................................. 26
1.15.7 Articles in Journals......................................................................... 29
1.15.8 Articles in News Papers ................................................................. 36
1.15.9 Articles in News Magazines........................................................... 37
1.15.10 Conference Papers ........................................................................ 38
1.15.11 Some NGO Research Papers that Partly Discuss Awqāf in
Bangladesh....................................................................................... 53
1.15.12 Online Materials and Resources................................................... 57
1.16 Summary and Conclusion. ....................................................................... 58

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CHAPTER TWO : HISTORICAL ACCOUNT OF LEGISLATIVE
DEVELOPMENT AND ADMINISTRATION OF AWQĀF IN BANGLADESH .. 61
2.1 Introduction................................................................................................. 61
2.2 Awqāf in Bangladesh: Tracing the History ................................................. 61
2.2.1 Administration of Awqāf During Muslim Rulers ............................. 62
2.2.1.1 Sultan Muizuddin Sam .......................................................... 63
2.2.1.2 Sultan Alauddin ..................................................................... 63
2.2.1.3 Emperor Sher Shah ................................................................ 64
2.2.1.4 Emperor Akbar ...................................................................... 64
2.2.1.5 Emperor Shahjahan ............................................................... 65
2.2.1.6 Emperor Aurangjeb ............................................................... 65
2.2.1.7 Emperor Iltutmish .................................................................. 66
2.2.1.8 Emperor Muhammad Ali Shah .............................................. 66
2.2.1.9 The Imperial Officers ............................................................ 67
2.2.1.10 Power of Mutawallis under the Emperors ........................... 68
2.2.1.11 Role of the Qazis during Muslim Rule ................................ 69
2.2.1.12 The Qazi system during Muslim rule .................................. 70
2.2.1.12.1 Position of a Qazi in Shariah .................................... 70
2.2.1.12.2 Appointment of Qazis ............................................... 71
2.2.1.12.3 Jurisdiction and function of Qazis on Awqāf ............ 71
2.2.2 Awqāf Administration During British Rule ..................................... 72
2.2.2.1 The East India Company and the beginning of British
influence ................................................................................... 72
2.2.2.2 Waqf administration under the Regulation III of Bengal Code
of 1810 ..................................................................................... 75
2.2.3 Evolution of Awqāf legislations in the Greater Indian Subcontinent78
2.2.3.1 Waqf legislations in undivided Indian Subcontinent from 1810
to1947....................................................................................... 79
2.2.3.1.1 Regulation III of Bengal Code of 1810 ....................... 79
2.2.3.1.2 Regulation VI of Madras Code of 1817 ...................... 79
2.2.3.1.3 Religious Endowment Act 1863 (No. 20 of 1863) ..... 80
2.2.3.1.4 Hussainabad Endowment Act 1878 (No. 15 of 1878) 80
2.2.3.1.5 Charitable Endowments Act 1890 (No. 6 of 1890) .... 80
2.2.3.1.6 Civil Procedure Code 1908 (No. 5 of 1908) ............... 80
2.2.3.1.7 Mussalman Waqf Validating Act 1913 (No. 6 of 1913)
.......................................................................................... 81
2.2.3.1.8 Charitable and Religious Trusts Act 1920 (No. 14 of
1920) ................................................................................. 81
2.2.3.1.9 Mussalman Waqf Act of 1923 (No. 42 of 1923) ......... 82
2.2.3.1.10 Bengal Waqf Act 1934 (No. 13 of 1934) .................. 82
2.2.3.1.11 Mussalman Waqf (Bombay Amendment Act 1935
(No.18 of 1935) ................................................................ 82
2.2.3.1.12 U.P.Muslim Waqf Act 1936 (No. 13 of 1936) ......... 83
2.2.3.1.13 Dargah Khwaja Shaheb Act 1936 ............................. 83
2.2.3.1.14 Hyderabad Endowment Regulation, 1939 ................ 83
2.2.3.1.15 Bihar Waqf Act 1947 ................................................ 83
2.2.3.2 Division of the Subcontinent in 1947 into Two Countries,
namely India and Pakistan ....................................................... 84

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 2.2.4 Waqf Legislations in force in East and West Pakistan Between 1947
to 1971 ............................................................................................. 84
2.2.4.1 Mussalman Waqf Validating Act 1913.................................. 84
2.2.4.2 Mussalman Waqf Act of 1923 ............................................... 84
2.2.4.3 Mussalman Waqf (Sindh Amendment) Act 1935 .................. 85
2.2.4.4 Mussalman Waqf (Bombay Amendment) Act, 1935 ............ 85
2.2.4.5 The Music in Muslim Shrines Act, 1942............................... 85
2.2.4.6 NWFP Charitable Institutions Act 1950 ................................ 86
2.2.4.7 Punjab Muslim Auqaf Survey Act 1950 ................................ 86
2.2.4.8 Punjab Muslim Auqaf Act 1952 ............................................ 86
2.2.4.9 West Pakistan Ordinance No.21 of 1959 – W.P. Waqf
Properties Ordinance ................................................................ 87
2.2.4.10 West Pakistan Ordinance, 28 of 1961-W. P. Waqf Properties
Ordinance ................................................................................. 87
2.2.4.11 East Pakistan Waqfs Ordinance, EP Ordinance 1 of 1962 .. 87
2.2.4.12 Waqf Legislations Relevant and Applied in Bangladesh
from1971 to Date ..................................................................... 87
2.2.4.13 The Religious Endowments Act 1863 (No. 20 of 1863) ..... 88
2.2.4.14 Mussalman Waqf Validating Act 1913 (No. 6 of 1913) ...... 88
2.2.4.15 Mussalman Waqf Act No. 42 of 1923 ................................. 88
2.2.4.16 Bengal Waqf Act No. 13 of 1934 ........................................ 88
2.2.4.17 East Bengal Act No. 22 of 1951 .......................................... 89
2.2.4.18 East Bengal Act No. 12 of 1952 - East Bengal board of
Waafs (Validation) Act,1952 ................................................... 89
2.2.4.19 The Waqfs Ordinance, 1 of 1962 ........................................ 89
2.2.4.20 Islamic Foundation Act 1975 - No. 17 of 1975 ................... 90
2.2.4.21 The Chittagong Shahi Masjid Ordinance1986-No.2 of 1986
.................................................................................................. 90
2.2.4.22 Waqf Legislation Currently in Force in Bangladesh ........... 90
2.2.5 The Present Status of Administration .............................................. 90
2.2.5.1 Types of Waqf Properties in Bangladesh............................... 91
2.2.5.2 Unregistered Waqfs ............................................................... 91
2.2.5.3 The Problem of Adjudication ................................................ 92
2.3 Conclusion .................................................................................................. 92

CHAPTER THREE : A SOCIO-LEGAL PROFILE OF AWQĀF PROPERTIES

IN BANGLADESH ........................................................................................... 95
3.1 Introduction................................................................................................. 95
3.2 Statistical overview of Awqāf in Bangladesh; ............................................ 96
3.2.1 Number of Waqf Estates by Type of Registration ........................... 96
3.2.2 Beneficiaries of the Waqf Estates ..................................................... 97
3.2.3 Mode of Management of the Waqf Estates ...................................... 99
3.2.4 Land Possession, Income (in Taka/BDT) and Expenditure of the
Waqf Estates. ................................................................................. 100
3.2.5 Waqf Estates Not Reporting Land Possession, Income and
Expenditure .................................................................................... 102
3.2.6 Income Received by the Waqf Estates from Broad Sources .......... 103
3.2.7 Annual Reported Income Received by the Waqf Estates from Land
Uses ............................................................................................... 104

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 3.2.8 Reported Immovable Properties of the Waqf Estates ..................... 106
3.2.9 Reported Income of the Waqf Estates from the Sources Other than
Land ............................................................................................... 108
3.2.10 Reported Annual Income of the Waqf Estates from Immovable
Properties except Land .................................................................. 109
3.2.11 Reported Annual Income of the Waqf Estates from Other Sources,
Except Immovable Land Properties .............................................. 111
3.2.12 Reported Annual Expenditure of the Waqf Estates ...................... 112
3.3 Nature of Awqāf properties in Bangladesh ...................................................... 114
3.3.1 Immovable Waqf Properties in Land.............................................. 114
3.3.1.1 Agriculture ........................................................................... 115
3.3.1.2 Orchard ................................................................................ 115
3.3.1.3 Ponds and Tanks .................................................................. 115
3.3.2 Immovable Waqf Properties Other than Land ................................ 116
3.3.2.1 Mosques ............................................................................... 116
3.3.2.2 Madrasah, Maktab, Schools and Colleges ........................... 116
3.3.2.3 Eidgah and Open Space ....................................................... 117
3.3.2.4 Graveyard and Dargah ......................................................... 117
3.3.2.5 Orphanage............................................................................ 118
3.3.3 Movable Waqf Properties ............................................................... 118
3.3.3.1 Cash Waqf ............................................................................ 119
3.3.3.2 Movable Properties Other than Cash ................................... 119
3.3.4 Some Unique Waqf and Waqf-like Institutions in Bangladesh ...... 120
3.3.4.1 Shrine (Dargahs and Mazars) based Waqfs in Bangladesh . 120
3.3.4.2 Islami Bank Foundation ...................................................... 121
3.3.4.2.1 Poverty Alleviation ................................................... 121
3.3.4.2.2 Education .................................................................. 121
3.3.4.2.3 Healthcare ................................................................. 122
3.3.4.2.4 Humanitarian Services .............................................. 122
3.3.4.2.5 Relief and Rehabilitation .......................................... 122
3.3.4.2.6 Cultural and Da’wa Activities .................................. 122
3.3.4.3 Islami Bank Hospital ........................................................... 123
3.3.4.4 Ibn Sina Trust ...................................................................... 123
3.3.4.5 Chashi Kollyan Shomiti ...................................................... 124
3.4 Conclusion ............................................................................................................. 125

CHAPTER FOUR : CHALLENGES ENCOUNTERED BY THE WAQF

ADMINISTRATION IN BANGLADESH ................................................... 127
4.1 Introduction............................................................................................................ 127
4.2 Administration and Management Related Problems..................................... 127
4.2.1 Human Resource and Manpower ................................................... 128
4.2.1.1 Number of Surveyor cum Auditor per District .................... 128
4.2.1.2 Number of Waqf Estates per District to Be Managed ......... 129
4.2.1.3 Huge Gap of Ratio between Manpower and Responsibility 133
4.2.1.4 Operational Inefficiency in Settling Waqf Disputes, Lack of
Transportation and Equipments ............................................. 133
4.2.2 Mutawalli Related Issues ............................................................... 135
4.2.2.1 Lack of Qualification; and Integrity of the Mutawallis ....... 135
4.2.2.2 Lack of Training .................................................................. 137

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 4.2.2.3 Irregular Payment of Annual Contribution.......................... 138
4.2.2.4 Irregularity in Submission of Accounts of Waqf Fund and
Audit Reports ......................................................................... 138
4.2.2.5 Remuneration ...................................................................... 141
4.2.2.6 Lack of Progressive and Innovative Ideas ........................... 142
4.2.2.7 Wakifs’ Objectives Marred by Selfishness ......................... 143
4.3 Waqf Property Related Problems ...................................................................... 144
4.3.1 Illegal Occupation of Waqf Properties ........................................... 144
4.3.2 Requisition and Government Annuity ........................................... 145
4.3.3 Non Enrolment ............................................................................... 145
4.3.4 Loss Due to Natural Disaster ......................................................... 147
4.3.5 Unauthorised Alienation and Transfer ........................................... 147
4.3.6 Small and Insignificant Size .......................................................... 149
4.3.7 Dargah and Mazar (Shrine) ........................................................... 149
4.3.7.1 Lack of Control of the Waqf Administration over Dargah and
Mazars .................................................................................... 150
4.3.7.2 Lack of Transparency in the Income and Expenditure ........ 150
4.3.7.3 Irregular or Non-contribution .............................................. 151
4.3.7.4 Activities Contradictory to the Core Values of Islam ......... 151
4.4 Legal Hurdles ........................................................................................................ 152
4.4.1 Power of the Administrator under the Ordinance .......................... 153
4.4.2 Backlog of Cases and Lengthy Process of Waqf Disputes Resolution
....................................................................................................... 159
4.4.3 Action against Trespass and Illegal Occupation ............................ 159
4.4.4 Lack of Legal Representation of the Waqf Administration at the
District Level ................................................................................. 160
4.4.5 Difficulties in Applying Certain Provisions of the Ordinance ....... 160
4.4.6 Action against Misappropriation and Breach of Trust ................... 162
4.4.7 Absence of Provisions in the Waqfs Ordinance 1962 Relating to
Development of Awqāf .................................................................. 162
4.4.8 Action against Misappropriation of Waqf’s Compensation Payments
....................................................................................................... 164
4.4.9 Trial of Offences Involving Waqfs ................................................. 164
4.4.10 Bar to Suits against Decision of the Administrator ...................... 165
4.4.11 Effect of Order Inconsistent with the Ordinance ......................... 165
4.5 Financial and Budgetary challanges ................................................................. 165
4.5.1 Insufficient Budget ......................................................................... 166
4.5.2 Uncollected Arrears ....................................................................... 166
4.5.3 Insufficient Annual Contribution ................................................... 167
4.5.4 Waqf Fund ...................................................................................... 168
4.6 Conclusion: ............................................................................................... 168

CHAPTER FIVE : CASH WAQF IN BANGLADESH AND THE NEED FOR

MODERN AND INNOVATIVE APPROACH TOWARDS AWQĀF:
LESSONS FROM SELECTED COUNTRIES ............................................ 170
5.1 Introduction............................................................................................... 170
5.2 Definition of Cash Waqf ........................................................................... 171
5.3 Main Features of Cash Waqf..................................................................... 172
5.4 Economic Benefits of Cash Waqf ............................................................. 174

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5.5 Current Practices of Cash waqf in Bangladesh ......................................... 176
5.5.1 Cash Waqf as Financing Means of Islami Banks in Bangladesh ... 176
5.5.2 Operational Guidelines of Cash Waqf Based Products Adopted by
Some Islami Banks in Bangladesh ................................................ 178
5.5.2.1 Cash Waqf based ‘Mudaraba Deposit Account’ .................. 178
5.5.2.2 The Objectives of Cash Waqf Mudaraba Deposit Accounts
(CWMDA) ............................................................................. 178
5.5.2.3 Cash Waqf in Perpetuity and Mutawalli’s Discretions ........ 179
5.5.2.4 CWMDA Created with Lump Sum Amount or by Installment
................................................................................................ 180
5.5.2.5 Issuance of CWMDA Certificate and Receipt .................... 180
5.5.2.6 How CWMDA Operates ..................................................... 180
5.5.2.7 Investment in Conformity with Shariah .............................. 181
5.5.2.8 High Rate of Investment Income ......................................... 181
5.5.2.9 Distribution of Usufruct to the Beneficiaries ...................... 181
5.5.2.10 Profit Loss Sharing ............................................................ 182
5.5.2.11 Waqf Management Committee.......................................... 182
5.5.2.12 Readily Available List of Purposes ................................... 182
5.5.2.12.1 Family Rehabilitation.............................................. 182
5.5.2.12.2 Education, Sports, Da’wa & Culture ...................... 182
5.5.2.12.3 Health & Sanitation: ............................................... 183
5.5.2.12.4 Social Service.......................................................... 183
5.5.2.13 Arrangement after Serving the specific purpose or Death of
Wāqif ...................................................................................... 183
5.5.2.14 Liabilities and Rights of the Bank ..................................... 184
5.6 Application of Cash Waqf in Selected Countries ..................................... 185
5.6.1 Bahrain ........................................................................................... 185
5.6.1.1 Objectives of the Waqf Fund ............................................... 185
5.6.1.2 Contributors of Waqf Fund .................................................. 186
5.6.1.3 Waqf Fund Sponsored Programmes .................................... 186
5.6.1.4 Human Capital Development in Islamic Finance ................ 186
5.6.1.5 Research and Collaboration with Other Nations ................. 187
5.6.1.6 Curriculum Development .................................................... 187
5.6.2 Indonesia ........................................................................................ 188
5.6.2.1 DDR Cash Waqf Fund ......................................................... 188
5.6.2.1.1 Healthcare ........................................................................... 188
5.6.2.1.2 Education ............................................................................ 189
5.6.2.1.3 Economic Empowerment and Social Welfare .................... 189
5.6.3 Kuwait ............................................................................................ 190
5.6.3.1 Objectives of Kuwait Awqāf Public Foundation (KAPF) ... 190
5.6.3.2 Waqf Fund Managed by a Board of Directors ..................... 191
5.6.4 Malaysia ......................................................................................... 191
5.6.4.1 Public Response to cash waqf in Malaysia .......................... 192
5.6.4.2 Potential for Cash Waqf in Malaysia ................................... 192
5.6.4.3 Cash Waqf Shares and the State Islamic Religious Council
(SIRC) .................................................................................... 193
5.6.5 Singapore ....................................................................................... 194
5.6.5.1 Cash Waqf by Salary Deduction .......................................... 194
5.6.6 Turkey ............................................................................................ 195

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 5.6.6.1 Public Facilities Supported by Cash Waqf .......................... 195
5.6.6.2 Financial Services Provided by Cash Waqf ......................... 196
5.6.6.3 Revenue Earned by Cash Waqf ........................................... 196
5.6.6.4 Cash Waqf and the Debate on Interest ................................. 196
5.7 Role of Cash Waqf in Poverty Alleviation ............................................... 197
5.8 Conclusion ................................................................................................ 198

CHAPTER SIX : PROSPECTS OF AWQĀF IN BANGLADESH:

RECOMMENDATIONS AND CONCLUSION ......................................... 200
6.1 Introduction............................................................................................... 200
6.2 Recommendations for Development of Awqāf in Bangladesh ................. 200
6.2.1 Amendments to the Waqf Ordinance 1962. ................................... 200
6.2.2 Provisions to be Reviewed and Amended ...................................... 201
6.3 Human Resource and Manpower Development ....................................... 202
6.3.1 Manpower Increase ........................................................................ 202
6.3.2 Education and Training .................................................................. 204
6.3.3 Establishment of District Level Offices of Waqf Administration .. 205
6.4 Conducting Nationwide Waqf Census Every Ten Years .......................... 205
6.5 Compulsory Registration of un-enrolled Awqāf ....................................... 206
6.6 Regular Inspection and Supervision of Awqāf ......................................... 207
6.7 Recovery and Prevention of Illegally Occupied Awqāf ............................ 209
6.8 Expediting Dispute Resolution ................................................................. 209
6.9 Establishing Stricter Control of the Waqf Administration over Dargah and
Mazar (Shrines.) .................................................................................... 210
6.10 Development of Awqāf ........................................................................... 212
6.10.1 Urban Waqf Properties ................................................................. 212
6.10.2 Rural and Agricultural Awqāf ...................................................... 213
6.10.3 Enactment and Amendment of Statutory Provisions Relevant to
Development of Awqāf .................................................................. 213
6.11 Development of Waqf Fund .................................................................... 214
6.11.1 Increasing the Amount of Mandatory Contribution ..................... 215
6.11.2 Tri-monthly Contribution instead of Annual Contribution .......... 216
6.11.3 Ensuring Regular Collection of Contribution .............................. 216
6.11.4 Non-payment to be made a Punishable Offence .......................... 216
6.11.5 Utilisation and Application of Waqf Fund ................................... 217
6.11.6 Regular Auditing of Waqf Fund ................................................... 218
6.12 Addressing the Lack of Awareness; ....................................................... 219
6.12.1 Introduction of Waqf as a Subject in the Text Book .................... 219
6.12.2 Promotion of Waqf through Electronic and Printing Media ........ 220
6.12.3 Highlighting and Discouraging Abuse and Misuse of Awqāf ...... 220
6.12.4 Involving the Banks and other Relevant Institutions in the
Development Process of Awqāf ..................................................... 221
6.13 Steps to Be Taken By the Government for Revitalisation of Awqāf ...... 221
6.13.1 Need for a New Waqf Act ............................................................ 221
6.13.2 Issuance of Waqf Bond ................................................................ 223
6.13.3 Collaboration with Other Countries ............................................. 223
6.13.4 Establishment of a National Waqf Advisory Board (NAWAB) .. 224
6.13.5 Increasing Staff Benefit ............................................................... 225
6.13.6 Waqf Tribunal............................................................................... 225

xv
 6.13.7 Comprehensive Waqf Survey/ Census ......................................... 226
6.13.8 Establishment of a Shariah Board................................................ 226
6.13.9 Need for Investment of Waqf Properties in Real Estate and
Commercial Buildings ................................................................... 227
6.13.10 Need to Develop Statistics of the Family Waqf ......................... 227
6.13.11 Democratisation and Decentralisation of Waqf Administration 228
6.13.12 Setting-up Guidelines/Legislations for Managing Darghas and
Mazars ........................................................................................... 228
6.13.13 Need for Initiating and Promoting Cash Waqf Policy................ 229
6.13.14 Development of Mosque Properties ........................................... 229
6.13.15 Establishment of Research Division .......................................... 230
6.14. Conclusion ............................................................................................. 230
6.14.1. Response to the Hypotheses Addressed in the Thesis .................. 230
6.14.2. Achievement of the Objectives of the Thesis ................................ 232
6.14.3. Suggestions for Further Research .................................................... 240

BIBLIOGRAPHY .................................................................................................. 244

APPENDIX I : WAQFS ORDINANCE, 1962 ..................................................... 263

APPENDIX II: PUBLICATIONS ........................................................................ 293

APPENDIX III: QUESTIONNAIRE ................................................................... 294

APPENDIX IV: LIST OF RESPONDENTS ....................................................... 295

GLOSSARY ............................................................................................................ 296

xvi
 LIST OF TABLES

Table No. Page No.

4.1 Dhaka Division .................................................................................................. 129

4.2 Chittagong Division ........................................................................................... 129

4.3 Rajshahi Division ............................................................................................... 130

4.4 Khulna Division ................................................................................................. 130

4.5 Sylhet Division .................................................................................................. 131

4.6 Barisal Division ................................................................................................ 131

4.7 Decreasing Trend in Enrolled Awqāf ................................................................ 132

4.8 Annual Income of the Waqfs Administration for a Period of Five Fiscal Years .... 166

6.1 Manpower of Waqf Administration in Bangladesh ........................................... 202

6.2 District Level Waqf Inspector and Auditor’s Offices ....................................... 207

xvii
 LIST OF FIGURES

Figure No. Page No.

3.1 Number of Waqf Estates in Bangladesh by the Type of Registration .................. 96

3.2 Beneficiaries of the Waqf Estates in Bangladesh. ................................................ 97

3.3 Number of Waqf Estates by Mode of Management. ............................................ 99

3.4 Land Possession by the Waqf Estates (in acres) and their Income and Expenditure100

3.5 Waqf Estates Not Reporting Land Possession, Income and Expenditure. ......... 101

3.6 Annual Income Received by the Waqf Estates from Broad Sources. ................ 102

3.7 Average Annual Income Received by the Waqf Estates from Land Uses ......... 104

3.8 Reported Immovable Properties of the Waqf Estates......................................... 106

3.9 Reported Income of the Waqf Estates from the Sources Other than Land ...... 108

3.10 Reported Annual Income of the Waqf Estates from Immovable Properties, Except
Land ........................................................................................................................... 109

3.11 Reported Annual Income of the Waqf Estates from Other Sources, Except
Immovable Land Properties ....................................................................................... 111

3.12 Average Annual Expenditure of the Waqf Estates (by Category of Expenditure) 112

xviii
 LIST OF CASES

Abdullah Al Mamun v. Secretary Ministry of Land, DLR, Vol.10, 2004, 173.

A.K.M Abdullah Harun v. Additional Distric Judge, DLR, Vol.9, 2001, 241
Abdul Khaleq Sawdagar and Abdul Gani v. Md. Mahbubey Alam, DLR, Vol.
A.K.M Abdullah Harun v. Additional District Judge, DLR, Vol. 24, 2001, 201.
Abdul Mazid Khan v. Ajahar Ali Howlader, DLR, Vol.24, 2003, 2004.
Anul Khaleque Shah v. Administration of Waqfs, DLR, Vol. 49, 1196, 427.
Afazuddin Mollah v. Mobarak Ali Munshi, DLR, vol 46, 1193, 587.
Abdul Malek Sawdagar v. Md. Mahbubey Alam, DLR, vol.57, 2004, 19.
A.J.M Asadullah v. A.K.M Ahmad-ul-Huq, DLR, Vol.22, 1970, 781.
Abdur Rahim v. Kaptan Mia, DLR, Vol. 25, 1970, 291.
Abu Syed Rashid Bakht v. Mukhtar bakht Mazumdar, DLR, Vol.19, 1966, 65.
AKM Abdullah Harun v. Additional district Judge, Vol.56, 2001, 654.
Azizul Hoq (Md) v. Administration of Waqfs, DLR, Vol.54, 2001, 561.
Abdur Rashid Lahi v. Mohammad Yunus Gazi, Vol.40, 1988, 429.
Abdul Jabbar v. Attahar Ali, DLR, Vol.17, 1965, 247.
Abdul Gani Mutwali v. Md. Mahbubey Alam, DLR, Vol. 10, 2004, 9.
Aminul Haque Shah v. Abdul Wahab Shah Chowdhury, DLR, Vol.4, 1999, 369.
Bangladesh Biman Air Lines Corporation v. Chairman Second Labour Court, DLR,
Vol.52, 1999, 191.
Bangladesh Shilpa Bank v. Md. Anwarul Haque, DLR, Vol. 10, 2003, 15.
Bikash Ranjan Das v. The Chairman Second Labour Court, DLR, Vol.29, 1977,
Chairman Board of Intermediate and Secondary Education, Jessore v. Md. Amir
Hossain, DLR, Vol.56, 2002,25.
Chairman, Islamic University v. Nil Mhmud, DLR, vol. 13, 1995, 542.
Director of Taxarion & Excise Govt v. Mehdi Ali Khan Panni, DLR, Vol.32, 1978,
138.
Dildar Ahmed Choudhury v. farroque Ahmed, DLR, Vol.27, 1975, 138.
Forrukh Ahmed v. Nazir Ahmed alias, DLR, Vol. 25, 1970, 226.
GM. Jamuna v. Chairman Labour Court, DLR, Vol. 53, 2000, 28.
Golam Ather Chowdhury v. The Administration of waqfs, DLR, vol. 36 , 1984 , 203.
Golam Ather Chowdhury v. Administration of waqfs, DLR, vol. 36 , 1984
Government of Bangladesh v. Chairman Court of settlement, DLR, Vol.53, 2000,
Hafizuddin Ahmed v. M. Aslam Miah, DLR, Vol.8, 2002, 205.
Hashi Meah v. Aminul Islam Chowdhury, DLR, Vol.23, 1970,185.
Hafizuddin Ahmad v. M Aslam Miah, DLR, Vol.55, 2002, 95.
Jamal Uddin Ahmed v. Abdul Haque, DLR, Vol. 55, 2002, 103.
Jobayer Hossain v. Noor Hafez, DLR, Vol.56, 2001, 23.
Mahbubul Huq v. Md. Kader Munshi, DLR, Vol.52, 1999, 194.
Makbulal Haq Khan v. Administration of Waqfs East Pakistan, DLR, Vol.17, 1964.
Maulvi Afsar Uddin Haider v. A.M. Mahiuddin, DLR, Vol. 19, 1999, 302.
Md. Abdul Hoque v. Md. Abdul Gani alias, DLR, Vol. 5, 2000, 331
Md Abdul jabber v. Asia khatun, DLR, Vol. 28, 1976, 333.
Md. Afazuddin Mollah v. Mobarak Ali Munshi, DLR, Vol. 19, 1993, 242.

xix
Md. Azizul Hoq v. the Administrator of Waqf, Bangladesh Government, DLR, Vol.22,
2001, 223.
Md. Abdul Hoque (Md) v. Md. Abdul Gani Alias, DLR, Vol.52, 2000, 295.
Md. Idris Miah v. Haji Abdul Mannan Sarker, DLR, Vol.4, 1998, 18.
Md Khurshed Alam v. Amir Sultan Ali, DLR, Vol.21, 1969.
Md. Shaukat Ali v. Administration of Waqfs, DLR, Vol. 29, 1977,277.
Md Showkat Resbani v. Md Showket osnani, DLR, Vol.35, 1983, 177.
Md. Tabarak Ali Sarder v. Al-Haj Md. Hussain Khan, DLR, vol. 23, 2003, 330
Md. Yousuf v. Bangladesh, DLR, Vol. 3, 2005, 5.
Mobasher Hossain v. Saidur Rahman, DLR, Vol.55, 2002, 51.
Mohammad Ali v. ADC, DLR, Vol.53, 2000, 27.
Mokbul Ahmed v. Shamsul Rashid, DLR, Vol. 49, 1996, 18.
Mokbul Ahmad Majhi v. Abdul Jalil Chowdhury, DLR, Vol.17, 1964, 35.
Moulana Abdul Hannan v. Halima Khatun, DLR, Vol.54, 2000, 159.
Moulana Fariduddin Ahmed v. Md. Kolimullah, DLR, Vol.55, 2001, 49.
M/S Sekander Jute Bailing Ltd v. Sonali Bank, DLR, Vol.18, 1992, 268.
M/s Waagner Biro v. Roushan Ara Begum, DLR, Vol. 25, 1971, 293.
Mohammad Abbasuddin v. Province of East Pakistan, DLR, Vol.17, 1964, 54.
Mohammad Ali v. Administration of Waqfs, DLR, Vol.2, 1997, 395.
M/S. Tanni Knit Wear Limited v. Deputy General Manager, Sonali Bank, DLR, Vol. 2, 1997.
Nader All Shettk v. State & other Opposition Party, DLR, Vol.35, 1982,181.
Nezamat Ali v. Syed Ahmed Chowdhury, DLR, Vol.38 1984, 45.
Nuruzzaman Chowdhury v. Secretary, Education Department, DLR, Vol. 17, 1964, 46.
Prov of E. Pakistan v. Idris Mia, DLR, Vol.25, 1971, 299.
Serajuddin Shah (Md) v. Secretary Ministry of Religious Affairs, Vol.51, 1999, 479
Sayed Masud Ali v. Md. Asmatullah, DLR, Vol. 31, 1978, 249.
Shah Newaz (Md) v. Ahah Wali, DLR, Vol. 54, 2001, 375.
Shahinur Alam v. The State, DLR, Vol.23, 2003, 689.
Shahidullah (Md) v. Abdus Sobhan Talukder, DLR, Vol.50, 1996, 147.
Subash Das Chowdhury v. Sheikh Reazuddin Ahmed Siddique, DLR, Vol. 13, 2003, 682.
Surat Ali (Md) v. Administration of waqfs, DLR, Vol.45, 1991, 219.
Syed Shah Mohammad Osman Ghani v. Bangladesh Through Secy. M/o. Public
Works, DLR, Vol.39, 1987, 451.
Tobarak Ali Sikder v. The Administration of Waqfs, DLR, Vol.45, 1992, 70.
Yar Ali Khan Chowdhury v. Makbul Ahmed Chowdhury, DLR, Vol.45, 1971,
Yar Ali Khan Chowdhury v. Administration of Waqfs Govt of Esat Pakistan, DLR,
Vol. 20, 1968, 635.
Yusuf (MD) and Anr. v. The Government of the people’s Republic of Bangladesh,
DLR, Vol.42 , 1987, 521.
Yusuf Chowdhury v. Administration of Waqfs, DLR, Vol. 57, 2004, 739.

xx
 LIST OF STATUTES

Bengal Waqf Act 1934

Bihar Waqf Act 1947
Charitable and Religious Trusts Act 1920
Charitable Endowments Act 1890
Chittagong Shahi Masjid Ordinance 1986
Civil Procedure Code 1908
Dargah Khwaja Shaheb Act 1936
East Bengal Act 1951
East Bengal Board of Waqfs Act 1952
East Pakistan Waqf Ordinance 1962
Hussainabad Endowment Act 1878
Hyderabad Endowment Regulation 1939
Indian Waqf Act 1995
Islamic Foundation Act 1975
Music in Muslim Shrines Act 1942
Mussalman Waqf (Bombay Amendment) Act 1935
Mussalman Waqf (Sindh Amendment) Act 1935
Mussalman Waqf Act 1923
Mussalman Waqf Validating Act 1913
NWFP Charitable Institutions Act 1950
Punjab Muslim Auqaf Act 1952
Punjab Muslim Auqaf Survey Act 1950
Regulation III of Bengal Code 1810
Regulation VI of the Madras Code 1817
Religious Endowment Act 1863
UP Muslim Waqf Act 1936
Waqfs Ordinance 1962
West Pakistan Waqf Properties Ordinance 1959
West Pakistan Waqf Properties Ordinance 1961

xxi
 LIST OF ABBREVIATIONS

AC Appeal Cases
AER All England Reports
AH After Hijrat (Islamic era counted from the date of migration
of the Muslims from Maccah to Madinah).
AIR All India Reporter
AL J Aligarh Law Journal
AP Andhra Pradesh
AWR Andhra Weekly Reporter
All Allahbad
All L J Allahabad Law Journal
AJCL Americn Journal of Comparative Law
Apr April
Art Article
Ass Assam
Aug August
BC Era Before Christ
BHC RBombay High Court Reports
BLR Bengal Law Reports
BSCR Bangladesh Supreme Court Reports
Bib Ind Bibliotheca Indica Series
BOM Bombay
Bom, L R Bombay Law Reporter
Boulonis Boulonis Reports
Br Mus British Museum
C Century
CA Civil Appeal
C E (A D) Christian Era
CJ Chief Justice
C1J Calcutta Law Journal
CLR Calcutta Law Reporter
CPC Civil Procedure Code
CPD Common Pleas Division (England)
CWN Calcutta Weekly Notes
Cal Calcutta
Ch Chancery
Ch D Chancery Division
C1 Clause
C1 & P Clark and Pinnelly
Cutt Cuttock
Cutt L T Cuttock Law Times
d. date
DLR Dhaka Law Report
Dhak Dhaka
Dec December

xxii
EI Encyclopaedia of Islam
EP Egyptian Pound
ed Edition
Edw Edward (King)
Eli Elizabeth (Queen)
f Folio No
FB Full Bench
FC Federal Court
FCR Federal Court Reports
Feb February
Fn Footnote
Fulton Fulton's Reports
GG Governor-General
GGC Governor-General-in-Council
Geo George
Govt Government
Guj Gujrat
HC High Court
HL House of Lords (England)
HLRCT Hindu Law of Religious and Charitable Trust
(Mukherjea B K)
Harv L R Harvard Law Review (USA)
Hay Hay's Reports
Hen Henry (King)
Hyd Hyderabad
Hyde Hyde's Reports
IA Indian Appeals
IC Indian Cases
ICLQ International and Comparative Law Quarterly
ILR Indian Law Reports
IMHL Introduction to Modern Hindu Law (Derrett JDm)
IOL India Office Library
IT R Income Tax Reports (India)
J Justice
J&K Jammu and Kashmir
JAL Journal of African Law
JILI Journal of Indian Law Institute
JRAS Journal of Royal Asiatic Society
Jan January
Jul July
Jun June
KBD King's Bench Division
KLT Kerala Law Times
LPA Law of Property Act
LQR Law Quarterly Reports
LR Law Reports
Lah Lahore
Luck Lucknow
M Muhammad

xxiii
MIA Moore's Indian Appeals
MLJ Malaysian Law Journal
Mad L J Madras Law Journal
MP Madhya Pradesh
MS Manuscript
MSS Manuscript Section
Mad Madras
Mad H C R Madras High Court Reports
Mad W N Madras Weekly Notes
Mar March
Md Mohammad
Mohd Mohammad
Mst Mosammat
Mt Musammat
Mys Mysore
nd No date available
N0C Notes on Cases
NWFP North-West Frontier Province
Nag Nagpur
No. Number
Nov November
OC Original Civil
OJ Original Jurisdiction
Oct October
Or Order
Ori Orissa
p Page Number
P Used for certain reference purposes
PC Privy Council
PCJ Privy Council Judgments
PGI Proceedings of the Government of India
PH D Consul Proceedings Home Department Consultation
PH D Jud Proceedings Home Department Judicial
PH D Leg Proceedings Home Department Legislative
PHD Proceedings Home Department
Misc Rec Miscellaneous Records
PHD Proceedings Home Department
Misc Ser Miscellaneous Series
P H D Pub Proceedings Home Department Public
PLD Pakistan Legal Decisions
PLR Pakistan Law Reports
P0C Perry's Oriental Cases
Para Paragraph
Pat Patna
Pat L J Patna Law Journal
Pesh Peshawar
Prog No. Progression Number
Pt Part
Pub Publication

xxiv
Punj Punjab
QBD Queen's Bench Division
r Rule
RLSI Religion, Law and State in India
Raj Rajasthan
Rang Rangoon
Ref Referred
Rich Richard (King)
S Section
SC Supreme Court
SCJ Supreme Court Journal
SCR Supreme Court Reports
SDA Sadar Diwany Adalat (also spelt as Sudder Dewanny
Adawlut)
SOAS School of Oriental and African Studies,(London)
SWLJ South Wales Law Journal
SWR Sutherland's Weekly Reports
Sch Schedule
Secs Sections
Sel Rep Selected Reports
Sept September
Ss. Sub-section
Stat Statute
Swan Swanston Reports
Tk Taka
TC Trivancore and Cochin
Tr Translation
UP Uttar Pradesh
Ves R Vesey's Reports
Vict Victoria (Queen)
Vol Volume
WLR Weekly Law Reports
WR Weekly Reports
YLJ Yale Law Journal

xxv
 CHAPTER ONE

INTRODUCTION

1.1 BANGLADESH1 AND AWQĀF:2 PRELIMINARY REMARKS

Bangladesh is predominantly a Muslim country, which has one of the largest Muslim

populations in the world. It is estimated that Bangladesh has an estimated population

of 150 million3 and eighty seven percent of the population is Muslim. Bangladesh is

also known as one of the poorest countries in the world.

A huge number of waqf estates are in existence in Bangladesh and is governed

under ‘The Waqfs Ordinance 1962’,4 which applies nationwide in the administration

and management of awqāf. Waqf as an institution has been in existence in the country

for centuries. Generally awqāf properties in Bangladesh consist of Mosques,

Madrasah, Eidgahs, Graveyards, Dargahs, Mazars, pharmaceuticals, cultivable

agricultural lands, barren lands, forests, hillocks, real estates and both urban and rural

lands. Such waqf properties have been dedicated by the rich and pious Muslims of

Bangladesh for general welfare of the people. Awqāf have been contributing

immensely to the overall wellbeing of the society in various ways. Recent years have

1
Bangladesh is a South Asian country. During British Rule it used to be eastern part of greater India
and was known as East Bengal. In 1947 India got independence from Britain and was divided into two
countries, i.e. India and Pakistan. Present Bangladesh used to be the eastern part of Pakistan and was
known as East Pakistan, which later became independent of Pakistan in 1971 and was named
Bangladesh. The country is surrounded by India from the east, west and north with a brief border
shared with Myanmar in the south-east. The Bay of Bengal lies in south of the country.
2
Plural of waqf. Although it is translated as ‘appropriation’ in some of the classical references of
Islamic law, such as; Hidaya. However, the word ‘waqf’ and its plural ‘awqaf’ both shall be maintained
as such throughout this thesis.
3
Bangladesh Bureau of Statistics, Population & Housing Census 2011, Preliminary Results, Statistics
Division, Ministry of Planning, Government of the People’s Republic of Bangladesh, July 2011, p. 14.
4
Published in gazette on 19 January 1962 in the then East Pakinstan, it was then called the East
Pakistan Waqfs Ordinance, 1962. After independence from Pakistan in 1971, East Pakistan became
Bangladesh and the same Ordinance is still in force in the name of ‘The Waqfs Ordinance 1962’. This
Waqfs Ordinance 1962 has consolidated and amended the law relating to the administration and
management of awqaf in the country.

1
seen the emergence of a new trend of making waqf of intellectual properties, and

money in cash.

1.2 BEGINNING OF LEGISLATIVE CONTROL OF AWQĀF IN BANGLADESH

Awqāf properties in Bangladesh came under government supervision when The

Bengal Waqf Act 1934 was passed5 during the British rule.6 According to the Act an

autonomous Waqf Board was created which was administered by a Waqf

Commissioner. During the Pakistan period, the Waqf Ordinance 1962 governed awqāf

in the then East Pakistan. After East Pakinstan became independent of Pakistan and

Bangladesh was born, the government of Bangladesh retained and adapted the Waqf

Ordinance 1962 as such7 in accordance with Article 5 of the Adaptation of Existing

Bangladesh Laws (PO48 of 1972), which is currently in force in the country.

The Waqfs Ordinance 1962 lays down the administrative structure of the waqf

administration and the procedures to be followed in managing the waqf estate starting

from enrolment of a waqf,8 mutawalli and his power;9 issues related to management

and administration;10 constitution of the relevant committees; accounts of waqfs;

transfer of waqf properties and survey of waqfs. These issues shall be dealt with in this

chapter in order to address various aspects of waqf administration and the

management of awqāf in Bangladesh. According to the Ordinance,11 all waqf

properties shall be enrolled at the office of the Administrator and the application for

5
Sadeq, A. H. M. (2002). Awqaf in Bangladesh, in Syed Khalid Rashid’s Awqaf Experiences in South
Asia, (ed.), Institute of Objective Studies, New Delhi,161.
6
British Rule in India began in 1757 and lasted till 1947 when the country was divided into India and
Pakistan.
7
Sadeq, A. H. M. no.5. 162.
8
The Waqfs Ordinance 1962, S.47.
9
Ibid. S.59-63.
10
Ibid;
11
Ibid. S.47(1).

2
enrolment is to be made by the mutawalli.12 Together with the application the

Administrator is to obtain essential particulars about the waqf13 and a copy of the

waqf-deed. In the absence of such a deed all necessary particulars known to the

applicant shall be obtained by the Administrator.14

1.3 CENSUS OF AWQĀF IN BANGLADESH

The Government of Bangladesh conducted a census of waqf estates countrywide in

1986,15 which has extensively shown in its various tables different types of waqf

estates, their beneficiaries, their income and expenditure, mode of management etc.

According to this census Bangladesh has, up to February 1986,16 a total of 150,593

waqf estates.17 Out of this number, 97,046 waqf estates are registered, 45,607 are

verbal and the rest of the 7,940 are waqf by tradition.18 Whether the number of waqf

estates has increased due to the creation of new awqāf or has it decreased due, for

12
Section 47(2). It is stated in this section that an application for enrolment can be made by "any
person interested in Waqf" and that expression has been defined in the definition clause. But if we refer
to section 35, we find that along with the mutawalli the other person who has been given the right to
challenge the notification made under section 34 is "any person claiming any interest in the property."
A comparison of these two expressions in these two sections with reference to the expressions
used in proviso to section 50 clearly shows three different expres sions have been used in the
same statute. If we refer to section 50, we find, the Adminis trator has been given the power to
decide the waqf character of a property, he has also been given the power of declaration of a
property which is not waqf, In the event of latter the person in favour of whom the declaration
has been made is a person who is not interested in the waqf. Similarly when the Administrator
decides a property is to be waqf and the person challenging it is a person who is not
interested in the waqf.
13
According to Section 47(3) such particulars include (a) a description of the waqf property which is
sufficient for its identification; (b) the gross annual income of the waqf property; (c) the amount of
rents, rates and taxes annually payable in respect of the waqf property; (d) an estimate of the expenses
annually incurred in the realisation of the income of the waqf properties based on such details as are
available; (e) the amount set apart under the waqf for (i) the salary of the mutawalli and allowances to
individuals; (ii) purely religious purposes (iii) charitable purposes and (iv) any other purposes and (f)
any other particulars prescribed by the Administrator.
14
Section 43(4) provides that every such application shall be accompanied by a true copy of the waqf-
deed or, if no such deed has been executed, or a copy thereof cannot be obtained, shall contain full
particulars, as far as they are known to the applicant, of the origin, nature and objects of the waqf.
15
There has been no census ever since and therefore the data provided by this census is the only
available data as far as the census report is concerned.
16
The census was conducted in January- February 1986.
17
Bangladesh Bureau of Statistics, Report on The Census of Waqf Estates 1986. 3.
18
Ibid.

3
instance, to destruction, illegal occupation or mismanagement in the last couple of

decades may not be known unless a systematic census is conducted. There are,

however, indications that many new awqāf have emerged in Bangladesh well after the

census conducted in 1986, which will be discussed in due course in one of the later

chapters.

1.4 WAQF ADMINISTRATION UNDER THE MINISTRY OF RELIGIOUS AFFAIRS

Presently waqf administration in Bangladesh is governed under the Ministry of

Religious Affairs (MRA).19 However, the Ministry is not involved in the day to day

affairs of the Waqf Administration. Under the ministry’s guidance the waqf

administration is run and headed by the Administrator of Waqf who sits in Dhaka,

assisted by a total of 85 employees countrywide.20 The government appoints the

Administrator21 who shall be deemed to be a Public Officer within the meaning of the

Code of Civil Procedure 1908.22 He is appointed for a tenure of five years.23 He must

be a Muslim and possess such qualifications as may be prescribed by the rules.24 The

Administrator shall be a corporate sole by the name of ‘the Administrator of Waqfs,

19
Sadeq, A. H. M. no 5. 161.
20
Sadequr Rahman, (2003) Waqf Shompotti Proshonge (An appraisal of waqf properties) an article
published in six installments from 17.06.2003 to 24.06.03 in The Daily Sangram (a Bengali news paper
published daily from Dhaka), see http://www.dailysangram.com. Also see
http://www.waqfbd.com/organisation.html (last accessed in September, 2012.
21
Section 7(1), the Waqfs Ordinance 1962. By virtue of Section 10 of the Ordinance the Administrator
shall be deemed to be a public officer within the meaning of the Code of Civil Procedure 1908.
22
Ibid. Section 10.
23
According to section 7(3) the Administrator shall be eligible for re-appointment. However it is not
mentioned as to how many re-appointments an Administrator would be eligible for.
24
It was observed in Inayatullah v. M. A. Khan (16 DLR, SC, p.233), that though the Administrator is
required to be a Muslim, however no specific qualifications of an Administrator are laid down in the
Ordinance. As such he may be a person not well versed in Islamic Law. In the circumstances, it is
extremely unlikely that the Legislature could have contemplated the arming of such an officer with
plenary powers not only of control, in the sense of regulating the various ceremonies to be held in a
mosque or other waqf property, but also to enable him to set himself up as final judge of all
controversial questions relating to sectarian religious differences.

4
Bangladesh’.25 He shall have perpetual succession together with an official seal and

shall sue and be sued by the same name.26

The Administrator is generally given a wide range of power and discretion. He

may on his own motion or on the petition of any person interested, direct a mutawalli

to apply for the enrollment of a waqf property or supply any information regarding a

waqf.27 The Administrator may even himself collect such information and may cause

any waqf to be enrolled.28 The Administrator is required29 to maintain a register of

waqfs which shall contain copies of each waqf-deeds and other necessary particulars30

of the waqf property.

1.5 SHORT-STAFFED ADMINISTRATION

As mentioned above, a total of only 85 officers and employees for looking after

150,593 awqāf countrywide and seems far less than needed for proper administration.

Bangladesh has 64 administrative districts. Due to lack of manpower, 24 district

offices are managing waqf estates of all 64 districts. The divisional offices of Dhaka,

Khulna, Rajshahi and Chittagong Divisions have been brought under direct control of

the Headquarter.31

25
Section 11, the Waqfs Ordinance 1962.
26
Ibid.
27
Section 49, the Waqfs Ordinance 1962.
28
Ibid.
29
Section 48, the Waqfs Ordinance 1962.
30
Ibid., Such particulars include (a) the name of the mutawalli; (b) the rules of succession to the office
of mutawalli under the waqf-deed or by custom or usage; (c) particulars of all waqf properties and all
title deeds and documents relating thereto; (d) particulars of the scheme of administration and the scale
of expenditure at the time of enrollment; and (e) such other particulars as the Administrator may
prescribe.
31
Sadequr Rahman, no. 20.

5
1.6 REGISTRATION STATUS

Out of 150,593 waqf properties in the country, as many as 131,375 are not registered

with the Waqf Administration. Many of these unregistered waqf properties are alleged

to be under illegal occupation. The Waqf Administrator has no control whatsoever

over these estates.32 These properties are not only illegally occupied by private

persons, but even the country’s Police HeadquarterS in Dhaka unauthorisedly stands

on a waqf land.33

1.7 DISPUTES SETTLEMENT

Hundreds of waqf related cases are waiting for years to be adjudicated by the various

Courts and the Waqf Administrator’s office.34 This number is increasing every day.

The statutory set up of waqf administration in Bangladesh is empowered to look after

awqāf and to administer awqāf. In many instances, however, mutawallis bring the

waqf cases to the Court where every trick is employed to get them decided in

accordance with the convenience of parties.

The Courts do not have the means to make proper investigation into the affairs

of waqf estates and go by records that are tempered, and evidences given by hired

witnesses. The waqf administration is thus sidelined.35 However, sadly enough, the

waqf administration is also accused of giving less than impartial and just decisions,

and complaints of bribery against the waqf officials are not uncommon.36 In many

cases, the integrity of the waqf officials is questioned. The statutory checks imposed to

32
Ibid.
33
Ibid.
34
Ibid.
35
Ibid.
36
Ibid.

6
check corrupt practices are found to be inadequate and the amount of autonomy

granted to the waqf administration is one of the causes of cover-ups.

1.8 SUITABILITY OF THE WAQF ORDINANCE 1962 TO THE CURRENT NEEDS

There appears a clear need to refurbish and review the Waqf Ordinance 1 of 1962 to

see how it could be made relevant to the changed circumstances. A resolution was

adopted at a seminar held on ‘Awqāf Experiences In South Asia’37 in New Delhi,

where it was resolved, with regard to Bangladesh, that the implementation of Waqf

Ordinance 1962 without repealing the Bengal Waqf Act 1934 has brought uncertainty

to the law of waqf and that the enactment of a new waqf law is necessary. Another

resolution specifically highlighted the need for amending section 86 of the Waqf

Ordinance 1962 which empowers the Administrator to realise from an individual waqf

all costs and legal expenses incurred by the Administrator.38 This shows the need of a

thorough and critical appraisal of all the laws applicable to awqāf in Bangladesh to

judge their appropriateness of meeting the current need of effective waqf management.

1.9 PROSPECTS OF AWQĀF IN BANGLADESH

Waqf properties in Bangladesh have immense potential of being developed into

income earning ventures generating enough income to support social service

programmes in the area of education, health and social sectors, thereby reducing the

expenditure of the government in these areas. It is estimated that proper development

of waqf estates could generate an income of at least 100 million Taka39 a year, which

37
Held in May 1999, jointly organised by the Institute of Objective Studies, New Delhi, the Islamic
Development Bank, Jeddah, the Kuwait Awqaf Public Foundation, Kuwait and Ta’awun Trust, New
Delhi.
38
Resolution No. 17 & 18 of the above mentioned seminar.
39
US$ 1= 60 Taka.

7
could meet part of the socio-economic needs of the Muslims.40 This is a substantial

amount of income, particularly for a populous third world country. As of now, the

waqf sector in the country represents an underdeveloped, underutilised segment of a

national asset. However, it can be transformed into a vital source of national revenue

with necessary amendments and enactment of proper regulation and better

management.

1.10 OBJECTIVE OF THIS STUDY

This study attempts to investigate the issues discussed above and the current laws in

force in the country relating to waqf management and the administration thereof. In

general, the study would also look into the problems besetting the management of

awqāf in the country. Thus, the main objectives of this study are as follows:

 To analyse the problems and issues of the waqf administration and

management of waqf properties in the context of Bangladesh;

 To provide some policy suggestions and recommendations for legal,

institutional and functional reforms in the awqāf sector in order to make it

more effective in the development of waqf in the country;

In realising the above aims and objectives, the researcher proposes to initially

present the historical background of the waqf sector in the country. This would include

the legal developments since the British period. The concept of waqf and its legality

would be briefly examined from the Shariah point of view, as awqāf originally is a

pure domain of the Shariah.

This would be followed by an overview of the awqāf legislations in the country

in order to examine their efficacy and suitability in the present day context. Disputes

40
Sadequr Rahman, no.20.

8
involving awqāf estates, which have been decided either by the courts or by the Waqf

Administrator’s office, will be analysed. Based on this discussion some suggestions

shall be made in the conclusion whether or not necessary amendments are required

and timely. To this end the whole administrative structure would be brought in the

picture, where the problems of management and administration, manpower etc. that

are related to the awqāf sector would be highlighted based on some selected case

studies.

Attention will be focused on some newly emerging trends in creating awqāf

such as that of cash, intellectual properties and media in order to get an in depth sight

to find out whether they abide by and are in line with the main aims and objectives of

awqāf as a whole. In the concluding chapters recommendations shall be made based

on the findings of the research.

1.11 HYPOTHESIS

The hypothesis of this research is built upon some important propositions that are

essential prerequisites and must be addressed before any serious attempt for the

development of awqāf sector in Bangladesh. There are five hypothetical propositions

projected in this research as follows:

1. That the existing laws relevant to awqāf in the country are inadequate for

proper and effective management and development of awqāf. Awqāf in

Bangladesh is an underdeveloped sector that has immense potential for

development. However, the existing laws in the country are inadequate to

cater for such development that would bring expected benefit to the

society. The existing laws will be thoroughly examined in order to

demonstrate that it falls short of what is contemporary requirement.

9
2. That various problems which the waqf sector is now facing could only be

solved by introducing new amendments to the existing laws or by drafting

new comprehensive laws addressing this matter by consulting the experts

in this field. Awqāf in the country is crippled with various problems that

include, but are not limited to, manpower shortage; limited government

budget; lack of proper management; lack of relevant skills and knowledge;

and lack of initiatives for its development.

3. That the waqf sector can be transformed into an alternative source of

revenue. Awqāf in Bangladesh has the potential to generate income that

can contribute to the increase of national revenue which will lessen the

burden on the government and strengthen national spending on much

needed development sectors.

4. That the potentials of awqāf could be exploited to the fullest through

introducing the emerging trends of Awqāf, such as cash waqf. Cash Waqf

is a power house for development and far more dynamic compared to land

and other immovable and movable waqf properties that are in kind and are

not easily adaptable to the needs and necessities of the society. As land

and other types of immovable properties are scant and very expensive

these days in Bangladesh, cash waqf provides and affordable alternative

for almost every well-to-do person to create a waqf that can play crucial

role for the development of the society.

5. That awqāf can play an active and important role in alleviation of poverty

and socio-economic development of the country. Poverty and illiteracy are

among the major challenges that Bangladesh has been facing for long.

Funding educational projects and facilitating micro and macro finances

10
 based on cash waqf may bring much anticipated results. Waqf based

educational projects can reduce illiteracy and breed a knowledge based

workforce and waqf based micro finance will help create jobs which

would pave the way for poverty alleviation in the country.

1.12 RESEARCH METHODOLOGY

In executing this research, a combination of fieldwork and library research was

conducted. Thus, both, primary and secondary data were used. Relevant documents

were collected from waqf administration in Bangladesh which was anticipated to be

difficult as it involved access to some confidential documents. Owing to the general

notion of prevalent corruption in the country, collection of data from the waqf estates

and government offices was the biggest challenge.

There was a general tendency among officials in the waqf administration and

individual waqf estates, may be due to fear of exposer of irregularities if any, to avoid

encounters with the researcher. However, the necessary documents and data were

collected through direct and indirect means, as without these documents it would not

be possible to identify and analyse the challenges the waqf administration is facing in

Bangladesh and to suggest possible solutions.

Data was gathered from a wide variety of sources through fieldwork, such as

interviewing selected key officials, for instance, judges who have decided cases

involving waqf disputes; authors of waqf literature on Bangladesh and media reporters

and journalists who have reported on various aspects of waqf, individual mutawalli

/caretakers of various waqf estates as well as some beneficiaries.

Besides, data was also collected through field survey and questionnaires,

distributed to selected individuals and organisations. Library research was conducted

11
in both the countries, i.e. in Malaysia and Bangladesh. Materials were collected from

the Waqf Administrator’s office and waqf estates in terms of documents and statistical

reports, which were then analysed.

Data analyses were done in line with the objectives and hypotheses of the

research in order to obtain the expected outcome of the research. Collected data have

been analysed and presented through simplified statistical graphs generated by

engaging specific software programmes in order to show different variations of waqf

properties in Bangladesh, their classification, income, expenditure and potential.

1.13 SCOPE OF THE STUDY

The scope of this study is focused on investigating the state of affairs that the waqf

sector in Bangladesh is presently in, by exploring the challenges it is facing from

socio-legal perspectives and the prospects that it holds in terms of its utility and

developments, in an effort to reinstate the huge potential of waqf sector in general; and

for the benefit and welfare of deserving beneficiaries and unprivileged section of

people of Bangladesh in particular.

This approach was necessary as no such study was ever done before on waqf in

Bangladesh. This is because it is not possible to take steps to bring improvement in the

waqf sector in the country without first knowing the current state of affairs. As such

this study was not planned to delve into any specific branch or sub branch of waqf;

such as cash waqf, family waqf etc. which ofcourse remain to be considered and

explored by future researchers41.

41
Some suggestions for future research have been recommended in the conclusion of this research for
consideration. Please see paragraph 6.14.3.

12
1.14 LIMITATIONS OF THE STUDY

A number of limitations were foreseen when this study was undertaken. The main

limitations anticipated and later encountered are stated below.

1.14.1 Lack of postgraduate level research on waqf laws in Bangladesh

Previous studies help greatly in ascertaining an area of research unexplored before.

Previous researches are also helpful in developing a result oriented synopsis. Except

one Ph.D. thesis completed in 1982 at the University of London, this research could

not find any postgraduate level research on the subject. However, this thesis was

written 28 years before the present research started, and as such relevance of that

research to the present research is insignificant.

1.14.2 Lack of Finance

This study has been undertaken on self-finance due to unavailability of scholarship

fund to support a full-funded research. While working fulltime as an academician, the

researcher travelled to Bangladesh for data collection during the semester breaks.

1.14.3 Obtaining data from government sources

As expected, collection of data from the waqf administration under the Ministry of

Religious Affairs was difficult as it involved access to some of the confidential

documents and information. Apart from confidentiality, having access to general

documents and data was also a big challenge. Office-bearers in the waqf

administration and individual waqf estates seemed to have a tendency to avoid

encounters with researchers may be due to fear of exposer of irregularities, if any.

13
1.15 LITERATURE REVIEW

There has not been any serious effort to address the problems related to waqf either at

the intellectual or governmental level.42 To the best of this researcher’s knowledge

there has been no Ph.D. level study in the last 20 years on awqāf in Bangladesh. This

alone may suffice to justify a serious study on awqāf in the country. For the purpose

of this study some of the available literatures, such as books, articles and reports have

been scanned through, of which the summarised versions are presented below.

1.15.1 Ph.D. Thesis

Hoque, Muhammad Nazmul: A Critique of the Law of Waqf in Bangladesh.43 The

thesis in its first chapter deals with the nature of waqf with a special emphasis on its

meaning, origin and relationship with the English trust and the Hindu endowment.The

administration of waqfs in general is the theme of the second chapter. It also mentions

about the internal administration and the state supervision showing the roles played by

the doctrine of siyasa and tanzimat. Chapter three discusses about waqfs

administration during the Muslim period specially, the role of the emperors, qazis and

the mutawallis in the waqf administration. The entire British period as to waqf

administration is covered by chapter four where it has given special emphasis on the

meaning of the Anglo-Indian concept which is not a true Islamic concept. Evolution of

the Civil Procedure Code and the Waqfs Acts are also the important features of this

chapter. The cases decided under the various Waqf Acts and specially under the

Bengal Waqfs Act of 1934 and the Waqfs Ordinance of 1962 have been arranged

under distinct heads and dealt elaborately under chapter five. The main objective of

42
Sadeq, A. H. M. no.5, 156.
43
Hoque, M.N. A Critique of the Law of Waqf in Bangladesh. Ph.D thesis submitted to the School of
Oriental and African Studies (SOAS), Department of Law, University of London, 1982. 711.
.

14
chapter six is to discuss the effect of the EBSA & T Act of 1950. In this context, the

judgment in Jibendra Kishore’s case and its criticism dominates the whole of this

chapter.

Waqfs-alal-aulad has been discussed in chapter seven. After extracting its

psychology, etiology and modern trend and it has been observed that the future of

waqf's-alal-aulad is bleak. Some of the inherent problems in the field of waqf

administration has been identified and at the same time suggested their solutions in

chapter eight. The last chapter explains the necessity for further legislation.

1.15.2 Government Reports

Bangladesh Bureau of Statistics, Bangladesh Mosque Census, 1983.44 Mr. Abdus

Salam, the then Secretary of Statistics Division and Director-General of Bangladesh

Bureau of Statistics has mentioned about this mosque census of 1983 in page 3 of the

Report on Census of Waqf Estates 1986.

Bangladesh Bureau of Statistics, Report on Census of Waqf Estates 1986.45

This is a report on the first ever complete census of waqf estates conducted by the

Government throughout the country during the months of January and February in

1986. This report provides benchmark data on the waqf estates in the country.

According to this census there are 150,593 waqf estates in Bangladesh. Out of the total

waqf estates, 97,046 are registered, 45,607 are verbal and the rest 7,940 are waqf by

tradition. The main objectives of the census were;

a. To determine the exact number of waqf estates in the country by

administrative areas such as Region (District), Zilla (New District),

Upazila, Union and Mauza;

44
Ministry of Planning, Government of The Peoplel’s Republic of Bangladesh, Dhaka, 1983. 60.
45
Ministry of Planning, Government of The Peoplel’s Republic of Bangladesh, Dhaka, 1987, 81.

15
 b. To classify the waqf estates by use such as Mosque, Eidgah, Graveyard,

Madrasah, School etc.; and

c. To determine the sources of income and types of expenditure of waqf

estates along with other characteristics.

In conducting the census, the whole country was divided into 21 regions, 64

zilas (Districts) and 2,021 zones. Zonal officers were appointed as enumerators who

conducted the enumeration of the waqf estates. Supervisory officers were posted in all

the zilas and a senior officer was deputed in each region for co-coordinating the

census work. Field enumeration was done through distribution of questionnaires that

were completed by the targeted respondents. Property donated by other than Muslim

community, such as “Debotar Shampatti” (properties dedicated to the gods) donated

by Hindu community was not included in this census.

In this statistical report there are all together eighteen Tables, which highlight

various aspects of the waqf estates including their problems and prospects. Despite the

possibility that in the last seventeen years the number of waqf estates might have

increased, this report remains so far the latest as an official reference for any statistical

inquiry about waqf estates in the country.

1.15.3 Ordinance

Dhaka Law Reports (DLR), The Waqfs Ordinance 1962.46 This Ordinance is the only

and single most important legal instrument that governs awqāf in Bangladesh. The

first edition of this Ordinance was published in 1979, eight years after the country’s

independence. The second edition was published in 1984. The present edition is the

third edition published in 1998. It has twelve Chapters and 105 sections altogether.

46
Ordinance No. 1 of 1962, published in gazette dated 19.01.1962, Dhaka, (Third Edition) 1998, 78.

16
1.15.4 Books

Chowdhury, Purnendu Bikash. The Waqfs Ordinance 1 of 1962:47 This book is a

commentary on the Waqf Ordinance 1962 and one of the pioneer publications on law

of waqf in Bangladesh after the country’s independence. The author, being a senior

advocate in the High Court Division of the Supreme Court of Bangladesh, has vast

experience in the field. In this book he attempted to discuss the law of waqf

thoroughly with reference to judicial decisions of not only the courts of Bangladesh

but also the relevant cases from other countries of the sub-continent.

Mannan, Abdul, M., Structural Adjustments And Islamic Voluntary Sector With

Special Reference to Awqāf in Bangladesh.48 The author is a renowned economist

who treated the subject from the economic point of view. This study has indicated that

waqf, being one of the major Islamic institutions of Islamic voluntary sector can

contribute towards socio-economic development of the Islamic countries in general

and Bangladesh in particular. It has shown immense possibilities of development of

waqf properties in Bangladesh and income generated from them can support

programmes in the area of education, health and social sector, thereby reducing the

subsidy given by the government in support of progress of this vital area. This study

has also underlined the importance of the cash waqf and indicated strategies of

assigning social responsibility to individual enterprise.

Alam, Muhammad Saiful, Waqf Bishoyok Ain: (Waqf Oddhyadesh 1962)(Waqf

Proshashon Bidhi,1975) [Laws Pertaining to Waqf: (Waqf Ordinance, 1962) (Waqf

47
Chowdhury, P.B. The Waqfs Ordinance 1 of 1962. Chittagong, Books Syndicate, 1988, 202.
48
Islamic Research and Training Institute (IRTI), Islamic Development Bank, Jeddah, Saudi Arabia,
1995, 144.

17
Administration Rules, 1975).]49 This book is a commentary on both the Waqf

Ordinance 1962 and the Bangladesh Waqf Administration Rules 1975. Unlike other

books on the subject, the author in this book has attempted to present and explain the

provisions of both the statutes mentioned above with appropriate annotations and

interpretations with reference to cases and commentaries adding his valuable

observations and remarks in very clear, simple and easily understandable

clarifications.

Mannan, Abdul, M., Cash Waqf.50 Innovative as he is, the author has

explained in this book the Cash Waqf Certificate Scheme managed by the Social

Investment Bank Limited (SIBL) of Bangladesh. This book informs that, besides the

32 areas identified by the bank for investment, the wāqif can select one or more

sectors according to his wish in conformity with Shariah. Money for Cash Waqf can

be deposited at a lump sum or by installment and the bank shall manage Cash Waqf on

behalf of the wāqif. The SIBL’s 32 areas of investments include diverse social

investment activities having enduring value which in its ultimate analysis will create a

base for perpetual social capital and help in the development of a credit programme

that reinforces family values and stimulate a civil caring society.

Rahman, Gazi Shamsur., Waqf Ainer Bhaissho (Lectures on the Law of

Waqf).51 This book is one of the best references on the law of waqf in Bangladesh.

The provisions of the Waqf Ordinance have been interpreted with reference to cases

49
Alam. M.S. Waqf Bishoyok Ain: Waqf Oddyadesh 1962 ebong Waqf Proshashon Bidhi 1975 (Laws
Pertaining to Waqf: Waqf Ordinance 1962 and Waqf Administration Rules 1975). Bangladesh Law
Book Center, Dhaka, 1995, 120.
50
Mannan, M.A. Cash Waqf, Dhaka, Social Investment Bank Ltd.1998. 26.
51
Rahman, G.S. Waqf Ainer Bhaissho.(Lectures on the Law of Waqf). Dhaka, Dhaka Law Book
House, 1999. 135.

18
decided by various courts of the sub-continent. Besides, the author has included a

chapter52 which is a well researched summary of the law of waqf in Bangladesh.

Hasan, S.A.,Waqf Oddhyadesh, 1962 (The Waqf Ordinance, 1962).53 This is a

very good commentary on the Waqf Ordinance 1962. The author in this book has

attempted to present and explain the provisions of the statute mentioned above in very

simple and plain language, avoiding complex legal terminologies that are difficult for

the general public to understand. The author has also added appropriate annotations

and interpretations with reference to cases and commentaries adding his valuable

observations and remarks.

Salih, Siddig Abdelmageed., The Challenges of Poverty Alleviation in IDB

Member Countries.54 This book explores and investigates the challenges of poverty

alleviation in the IDB member countries of which Bangladesh is also a member. The

book has highlighted the role of waqf in contemporary Muslim countries and

communities. It has been shown in the book that the institution of Waqf represents an

economic and social institution, which is able to discharge its developmental role in

society if certain conditions have been met. Important among these conditions is the

existence of a strong will on the part of decision-makers to activate and revive the

traditional role of Waqf in the development and maintenance of human capital, other

social services and environmental protection. Throughout the golden age of Islamic

history, the institution of Waqf has played an important role in economic and social

development. Waqf has taken upon itself to finance and satisfy many of the society’s

basic needs and services, an undertaking that has relieved the burden of many national

52
Ibid., chapter 12. 84-96.
53
Hasan, S.A. Waqf Oddhyadesh(The Waqf Ordinance 1962). Dhaka, Bangladesh Law Book
Company, 1999, 142.
54
Salih, S. A. The Challenges of Poverty Alleviation in IDB Member Countries, Jeddah, Islamic
Development Bank(IDB), 1999, 89.

19
governments in various countries. However, the author has shown that the

development and investment of awqāf properties cannot be achieved without facing

up to the challenges posed by a number of obstacles and difficulties. These include the

administrative and legislative hurdles which will be closely looked into in this thesis

with special reference to Bangladesh.

Mia, Siddiqur Rahman., Waqf Bishoyok Ain: Hiba,Will O Debuttor Shoho

(Laws Pertaining to Waqf including Hiba, Will and Debuttor).55 Being a District and

Da’era Judge himself, the author of this book has written this book in a practical

fashion. Written in simple and easily understandable language, this book is not only a

commentary of the law of waqf in Bangladesh, but also a practical guide for the

Mutawallis and the beneficiaries of waqf estates in the country. It includes two

separate chapters in the fourth part of the book; giving detailed and step by step rules

on how a waqf deed should be written. It also includes some samples of various

standard waqf deeds that are very useful for the people dealing with Awqāf.

Islam, Nurul (National Professor), Hakim Mohammed Said and Hamdard

Bangladesh.56 ‘Hamdard’ is a well known waqf institution of the South Asian Sub-

continent. The author, the Vice-President of Hamdard Foundation in Bangladesh, has

highlighted in this book the development of Hamdard in Bangladesh after the

country’s independence. The contribution made by Hakim Mohammad Said in the

develpment of Hamdard in Bangladesh has been well elaborated in the book. Hakim

Mohammad Said was the younger son of Hakim Abdul Majeed, the Founder of

Hamdard. This book describes the role played by Hakim Mohammad Said in setting

up Hamdard in Bangladesh.

55
Mia, S.R. Waqf Bishoyok Ain: Hiba, Will O Debottor Soho(Laws Pertaining to Waqf including Hiba,
Will and Debottor). Dhaka, New Warsy Book Corporation, Dhaka, 2000, 207.
56
Islam, N. Hakim Mohammed Said and Hamdard Bangladesh, Dhaka, Hamdard Foundation
Bangladesh, 2001, 49.

20
 Amanullah, K. A. T. M., Waqf Bonam Danpotro (Waqf Versus Gift).57 This

book focuses on the differences between waqf and gift. The author has compared and

contrasted these two forms of dedication of properties for religious purposes which

have a lot of common technical issues that must be understood in their proper places.

The book brings to light some of the loopholes existing in the areas of law relating to

waqf and its registration process for a long time. The author urges for immediate

attention of the authority to take necessary measures to curve irregularities that prevail

in this sector.

Chaider S. Bamualim et al (Ed.), Islamic Philanthropy & Social Development

in Contemporary Indonesia.58 The studies presented in this book examine the

operations and activities of organisations operating in the fields of Islamic

philanthropy in Indonesia and looks at the unique and often challenging context in

which these organisations operate. The book highlights the development of Islamic

philanthropy in Indonesia over the past two dacades which has been a positive

phenomenon not only for Muslims but for all Indonesians despite the fact that during

that time dramatic and significant socio-political changes took place.

Cizakca, Murat., A History of Philanthropic Foundations: The Islamic World

From The Seventh Century To The Present,59 The author has attempted to highlight

the basic forces and trends that affected the history of awqāf in the Islamic world. It

has been highlighted that notwithstanding the different schools of thought prevailing

in the Islamic world, the institution of waqf was governed everywhere by basically the

same principles and that the problems relating to waqf administration were also

57
Amanullah, K.A.T.M. Waqf Bonam Danpotro(Waqf versus Donation).Chittagong, Begum Rukeya
Aman Chowdhury, 2004, 244.
58
Chaider S. B. Islamic Philanthropy & Social Development in Contemporary Indonesia, Jakarta,
Center for the Study of Religion and Culture (CSRS), 2006, 295.
59
Cizakca Murat, A History of Philanthropic Foundations: The Islamic World From the Seventh
Century to the Present, Istanbul, Bogazici University Press, 2000. 210.

21
similar in nature. The author has spoken in this paper of the need for a ‘thorough waqf

reform’, and highlighted that the conditio sine qua non for such a reform, is

knowledge about the evolution of this institution in the Islamic world as well as in the

West plus a thorough understanding of the latest developments in both civilisations.

Siti Mashitoh Mahamood, Waqf in Malaysia: Legal and Administrative

Perspectives.60 This is an important book that was derived mainly from the author’s

Ph.D. research. It provides valuable information regarding waqf in Malaysia within

legal and administrative perspectives. The major focus of the discussion deals with the

role of the State Islamic Religious Councils (Majlis Agama Islam Negeri) as the sole

trustees of waqf assets and the various problems faced by the councils in performing

their obligations in dealing with the assets. Besides, the issue of the one-third rule of

waqf and the application of the civil and federal laws in the administration of said

property, have also been highlighted. The book also focuses on the actual concept of

waqf as the non-heritable and non-exchangeable assets which has been accepted as the

only sadaqah jariyah type of endowments by Muslim jurists. The book presents waqf

provisions and other relevant statutes together with cases that may benefit a wide

range of readers from various backgrounds including the general public.

Samiul Hasan, Philanthropy and Social Justice in Islam: Principles, Prospects

and Practices.61 This book analyses the principles and practices of philanthropy and

distributive justice in Islam. It argues, with analysis and examples, that the

accomplishment of purposive philanthropy, as commanded by the fundamental tenets

of Islam, through the professionalisation and rationalisation of zakat management,

modernisation of Awqāf, etc. has the potential of optimising impact of philanthropic

60
Mahamood, S.M. Waqf in Malaysia: Legal and Administrative Perspectives, Kuala Lumpur,
University of Malaya Press, 2006. 191.
61
Hasan, S. Philanthropy and Social Justice in Islam: Principles Prospects and Practices, Kuala
Lumpur, A.S. Noordeen, 2007, 342.

22
activities and thereby augmenting distributive justice in Muslim societies. The author

has drawn references directly from the original sources such as the Quran, Hadith and

other authentic literatures, and also on official documents and publications of

management agencies dealing with philanthropy in different Muslim countries and

societies. The analyses are well documented and enriched for the book to be used as a

text book as well as to draw general readership and an important guidebook to be used

by the non-profit and international organisations in order for them to understand the

principles and issues of philanthropy and distributive justice in Muslim societies.

Magda Ismail Abdel Mohsin, Cash Waqf: A New Financial Product.62 In this

book, the author has argued a strong case for Cash Waqf. The book starts with a legal

overview, then examines the successful practices in various jurisdictions, moving on

to propose the setting up of a Cash Waqf Financial Institution and its possible impact

upon society. The potency of the cash waqf model is that it is capable of attracting the

mobilisation of large amounts of money with which investments of great and

widespread impact can be created. This book is a useful reading for policy planners,

teachers, students and researchers.

1.15.5 Chapter in Books

Basar, Hasmet (ed.), Management and Development of Awqāf Properties.63 The

author in this book has edited the proceedings of the seminar on ‘Management and

Development of Awqāf Properties’ held in 1984 in Jeddah, organised by the Islamic

Research and Training Institute (IRTI) of the Islamic Development Bank (IDB). The

seminar proceedings have been organised into two parts. Part one contains the lectures

62
Magda, I.A.M. Cash Waqf: A New Financial Product, Kuala Lumpur, Prentice Hall Pearson
Malaysia Sdn Bhd. 2009. 116.
63
Basar, H. Management and Development of Awqaf Properties, Jeddah, Islamic Research and
Training Institute (IRTI), IDB,1987, 81-85.

23
and discussion papers. Part two contains the case studies wherein the case of

Bangladesh has been reported which runs from pages 81 to 85. This case study,

though published in 1987, has no reference to the ‘Report on the Census of Waqf

Estates 1986’, published by the government of Bangladesh, which is believed to be

available in 1987. The case study contains inaccurate data on waqf in Bangladesh; e.g.

the total number of enrolled waqf estates has been mentioned to be only 12,579,64

whereas according to the census report the number of registered waqf is 97,046.65

Besides, the case study has quoted word for word the provisions of the Waqf

Ordinance 1962; such as, the sub-sections (a), (b), (c), (d), (e), (f) and (g) of section

27. These sub-sections under section 27 provide for the ‘general powers and functions

of the administrator’. Then the sub-sections (a), (b), (c), (d), (e), (f), (g), (h), (i), (j),

(k), (l) and (m) of section 61 that provide for the grounds for penalising a mutawalli if

he fails to meet the requirement under this section; then sub-sections (a), (b), (c), (d),

(e), (f), (g) and (h) of section 74 of the Ordinance that provide for the ‘application of

waqf fund’ have also been quoted without interpretations or critical examinations.

This reproduction of the sections of the Ordinance mentioned above occupies much

space out of this five-page case study.

Sadeq, Abulhasan M., “Awqāf in Bangladesh”66 In this article, the author has

presented a nutshell overview of awqāf in Bangladesh. It has briefly touched on the

waqf administration, waqf legislation, the administrative structure, and functions of

the Waqf Administrator. The article has focused on some problems related to waqf

administration. These problems include the issue of waqf related cases that are

brought to and decided by the Administrator who may not have knowledge of law. It

64
Ibid., See page 81.
65
Bangladesh Bureau of Statistics, Report on the Census of Waqf Estates 1986, Dhaka, Ministry of
Planning, Government of The Peoplel’s Republic of Bangladesh, 1987, 3.
66
Sadeq, A.H.M. no.5. 161.

24
has been pointed out clearly that in discharging his quasi-judicial functions he may

commit mistakes and the parties with vested interests may take advantage of the

situation and even may bring in corruption. Misappropriations as well as under-

utilisation of waqf properties and the lack of manpower have also been discussed in

the article briefly. The article has underlined the need for a comprehensive survey of

waqf in the country, which may unearth many waqf properties hitherto unknown.

Islahi, Abdul Azim., Waqf: A Bibliography,67 Bibliographies on waqf are

available mainly in Arabic, though some of them contain a few entries of English

works. To the best of the knowledge of this author, this is the first bibliography in

English so far that gives a very good idea of the available literature on waqf

throughout the whole world. On Bangladesh waqf, it includes only six citations. This

literature review is self evident that there were a good number of waqf literature

available on Bangladesh waqf, apart from what has been cited in the bibliography and

some of them were published well before the publication of this bibliography,

however, they had not been included in this bibliography for reasons unknown to this

author. However, this bibliography will no doubt contribute a lot in facilitating

research on waqf and it is hoped that the subsequent editions will be enriched with

more additions.

Alamgir, Abul Muzaffar Muhammad Muhiyuddin Awrangjeb, Fatawa-e

Alamgiree (Ed.).68 Fatawa-e Alamagiree is a well known classic commentary on the

Islamic Laws, edited by the Mughol Emperor His Majesty the King Abul Muzaffar

Muhammad Muhiyddin Awrangjeb Alamgeer (Rh) in Arabic and compiled by nearly

67
Islahi, A.A. Waqf: A Bibliography, K.S.A. Islamic Economics Research Centre, King Abdulaziz
University, Ministry of Higher Education, 2003,15-16.
68
Awrangjeb Alamgir, A.M.M.M. Fatawa-e-Alamgiree, Dhaka, Translated into Bangla and edited by
Islamic Foundation Bangladesh, Vol. 4, 2003, 201-381.

25
40 persons, many of whom were muftis and qadzis69 edited and translated into Bangla

by a board sponsored by Islamic Foundation Bangladesh. This is a significant addition

in the waqf literature in the local language Bangla, which will surely prove to be of

much needed help to those who generally deal with waqf, such as wāqif,

administrators and the beneficiaries of waqf properties. There had been hardly any

jurisprudential literature in the local language for guidance on various technical issues

of the subject until the translation of Fatawa-e Alamgire was published.70 In its

volume four it has a chapter on waqf from page 201 to page 381. This chapter has

fourteen sub-chapters that discuss various technical aspects of waqf, such as, its

definition, arkan, sighah, shurut and how it takes effect etc.

1.15.6 Administrative Reports

Islam, M. A., “Waqf Mosjid, Mondir O Majar bebosthapona Proshongey” (On the

management of waqf mosques, temples, and mazars).71 This report was prepared by

Mr. Islam in his capacity as the Waqf Adminitrator of Bangladesh. In this report he

has outlined the process and procedures under the present law in application for waqf

management in Bangladesh. Some of the problems related to the management of

awqāf have been highlighted and possible solutions have been suggested; such as, lack

of manpower with proper knowledge and management skills. By overcoming these

69
Rashid, S.K., “Analysing the Level of Maturity Attained by the Law of Waqf in Mughal India as
Shown in the Fatwa Alamgiriyya”; a paper presented at ‘The Law of Waqf Conference’ organised by
and held at Harvard Law School from 26 to 28 May 2006.
70
Ibid., Khalid Rashid observes in this paper that “There is hardly any question or problem in
matters of waqf that has not been reasonably covered in the Fatawa Alamgiry. Since the time of its
compilation in around 1084 AH, no other Fatdwa or a law book has been compiled or written on such
a big scale in the Indo-Pakistan sub-continent. Hence, it may be safely said that Fatawa Alamgiry
contains the most recent and authoritative statement of Hanafi law, including the law of waqf in this
part of the world. By applying the law to problem solving, it has narrowed the gap between law in
books and law in action. The law of waqf as contained in the Fataw exhibits a degree of maturity
which qualifies it to be called a statement of law which possesses the youthful ability to solve any
problem which comes its way, inspite of being nearly 325 years old”.
71
Islam, M.A. Waqf Mosjid, Mondir o Mazar Bebosthapona Proshonge (On Management of Waqf
Mosque, Temple and Shrine). Dhaka, Office of the Administrator of waqfs, nd, 4.

26
problems, he suggests, Bangladesh could earn a huge amount of revenue through

proper utilisation of waqf properties and spend that amount for the socio-economic

development of the less privileged portion of the population.

Waqf Bhaban, A Brief Out-Line of Waqf in Bangladesh.72 This report gives a

short account of the awqāf properties in Bangladesh. The official functions and duties

of the Administrator of Waqfs have been discussed with reference to section 27 of the

Waqf Ordinance 1962. The duties of the mutawallis have been explained as well

together with the punitive measures to be taken against those who fail to perform their

duties in accordance with section 61 of the Ordinance.

Office of the Adminiatrator of Waqfs, Dhaka, ‘Bangladesh Shorkar Kortrik

Gothito Waqf Komitir 20.04.95 Tarikhe Onushthitobbo Prothom Shobhar

Karjopotro’, (‘The Working Paper for the First Meeting of the Waqf Committee

Formed By the Government of the People’s Republic of Bangladesh to be held on

20.04.95.’).73 This paper has four sections. In the first section it gives an account of

activities of the Waqf Administration for the previous six years. In the second section

it highlights the problems encountered by the Waqf Administration. These problems

have been divided into two categories; the administrative problems and the legal

problems. The third section discusses the possible solutions to the problems and

finally in the fourth section it highlights the prospects of awqāf properties in

Bangladesh if they are properly developed into income generating projects.

Hoque, Asadul, M., Dhormo Bishoyok Montronaloy Shomporkito

Shongshodiyo Sthayee Komitir Boithoke Uposthaponer Nimitto Bangladesh Waqf

72
Waqf Bhaban, A Brief Outline of Waqf in Bangladesh, Dhaka, nd, 6.
73
The Waqf Administrator, Bangladesh Shorkar Kortrik Gothito Waqf Komitir 20.04.95 tarikhe
Onushtithobbo Prothom Shovar Karjopotro, (The Working Paper for the First Meeting of the Waqf
Committee Formed By the Government of the People’s Republic of Bangladesh held on 20.04.95.)
Dhaka, Office of the Adminiatrator of Waqfs, 1995,14.

27
Proshashoner Karjokromer Protibedon74, (‘The Report on the Activities of the Waqf

Administration for Presenting to the Meeting of the Parliamentary Permanent

Committee Relating to the Ministry of Religious Affairs’). This report was prepared

by the then Waqf Administrator to present it to the Parliamentary Committee. It has

mainly underlined the problems faced by the waqf administration in the country in its

several sections. In the first section a total of twenty administrative problems have

been identified. The second section highlights legal issues whereby some amendments

to the existing Ordinance have been suggested in order to make administration of waqf

more effective. The third section emphasises on the financial crisis faced by the waqf

administration. The contributions of the Waqf Committee have been acknowledged in

this report. The Committee consists of 11 members. This Committee was formed in

September 1994 in accordance with sections 19 and 20 of the Waqf Ordinance 1962.

Lastly some of the development projects undertaken by the Waqf Administration have

been highlighted in concluding chapters.

Waqf Bhaban, Ek Nojore Waqf Proshashon, (Waqf Administration at a

Glance).75 This report gives a brief account of the number of enlisted waqf estates, the

number of divisional and district level offices and the organisational structure that

comprises of total 99 office bearers. It also provides the number of cases that are

pending in various waqf offices, the District Judge Courts, the High Courts and the

Supreme Court.

74
Hoque, A. M. Dhormo Bishoyok Montronaloy Shomporkito Shongshodio Sthayee Komitir Boithoke
Uposthaponer Nimitto Bangladesh Waqf Proshashoner Karjokromer Protibedon.(The Report on the
Activities of the Waqf Administration for Presenting to the Meeting of the Parliamentary Permanent
Committee Relating to the Ministry of Religious Affairs). Dhaka, Office of the Administrator of Waqf.
1997,5.
75
Waqf Bhaban, Ek Nojore Waqf Proshashon (Waqf Adminstration at a Glance). Dhaka, 2007,12.

28
1.15.7 Articles in Journals

Haq, M. N., Development of the Law of Waqf Through Legislation in Bangladesh,76

This article tried to draw the attention of the law makers in Bangladesh to the legal

issues that need to be examined and suggests important changes and amendments in

the present law in force in the country. If those suggestions are incorporated and

implemented the awqāf sector can be developed into a more effective welfare arm of

the government.

Sadeq, Abulhasan M., Waqf, Perpetual Charity and Poverty Alleviation.77

This paper discusses the potential role of the institution of waqf in poverty alleviation,

particularly in the developing world. It attempts to define a new approach to poverty

analysis and suggests a way to make the role of waqf more effective in the poverty

alleviation and socio-economic development of a resource-poor country.

Mark Sidel and Iftekhar Zaman, Philanthropy and Law in South Asia: Key

Themes and Key Choices.78 In this article, the authors have tried to explain the

‘complex’ relationship between the states and philanthropic organisations in South

Asia that includes Bangladesh. It is argued that the governments in these countries

seek to control and manage philanthropy and the nonprofit sector, as they are

concerned about the sector’s rise to national influence and political authority as an

increasingly important factor in development and social change, often with political

implications.

Hidayatul Ihsan and Shahul Hameed Hj. Mohamed Ibrahim, Waqf Accounting

and Management in Indonesian Waqf Institutions: The Cases of Two Waqf

76
Haq, M.N. “Development of the Law of Waqf Through Legislation in Bangladesh”, Law and
International Affairs, Vol.11(1986): 103-111.
77
Sadeq, A.H.M. “Waqf, Perpetual Charity and Poverty Alleviation”, International Journal of Social
Economics, Vol.29, No.1/2(2002):135-151.
78
Mark, S. and Zaman, I. “Philanthropy and Law in South Asia: Key Themes and Key Choices” The
International Journal of Not-for-Profit Law, Volume 7, Issue 2(2005): 28-55.

29
Foundations,79 The paper examines accounting and management practices in two

Indonesian awqāf institutions. It intends to seek evidence with regard to how

mutawallis discharge their accountability. These two case studies were undertaken on

two awqāf institutions in Indonesia, i.e. ABC and XYZ waqf foundations. Data were

collected through various methods, i.e. interviews, document reviews and direct

observations. The findings of this research shows that ABC shows more efficient

management and greater transparency and accountability than XYZ due to the

presence of Islamically committed professionals in the former, despite the better

accounting information system and more “academically” qualified personnel in the

latter. Limitations and implications of this study is that it only concentrates on two

Indonesian awqāf institutions. However, for practical implications this study is

expected to contribute to the improvement of waqf administration. The paper is unique

as it is said to be the first attempt to address accounting issues in awqāf institutions,

particularly in Indonesia.

Paul Stibbard, David Russell Q C and Blake Bromleyz, Understanding the

Waqf in the World of the Trust,80 This paper shows that parallel to the development of

the trust in common law countries, a remarkably similar structure developed in the

Islamic world, the waqf (pl. Awqāf), developed, thrived, and then declined. More

recently, the emergence of great wealth in Islamic countries, and the Islamic tradition

of philanthropy, has resulted in the revival of interest in the structure of the waqf, and

increased resources being held on terms that seek to comply with the requirements of

Islamic law. In this article the author seeks to provide an introduction to the Islamic

jurisprudence underlying the waqf to review what are the interesting parallels between

79
Ihsan, H. and Hameed, S. H.M.I. “Waqf Acounting and Management in Indonesian Waqf
Institutions: The Case of Two Waqf Foundations” Humanomics, Vol. 27 No. 4 (2011): 252-269.
80
Paul, David and Blake, “Understanding the Waqf in the World of Trust”, Trusts & Trustees, Vol. 18,
No. 8 (2012): 785–810.

30
the Islamic waqf and the statutes of one of the most venerable institutions of English

academia, to trace the rise and fall of the waqf in the principal jurisdictions in which it

operated, and finally to offer some suggestions as to the likely private international

law and revenue consequences of awqāf operating within common law and civil law

jurisdictions.

Habibollah Salarzehi, Hamed Armesh, Davoud Nikbin, Waqf As A Social

Entrepreneurship Model in Islam,81 By the end of the twentieth century and

beginning of the third millenary, emergence of social entrepreneurship has been found

as a completion part of commercial entrepreneurship and governmental

entrepreneurship. In religious schools, especially schools inspired by Islam, noble

human values and moral teaching of cooperation, support a suitable depth to dispose

of the social entrepreneurship and goodwill action. Tradition of philanthropic alms,

ehsan and charity are dealt with in this article. It highlights rich culture of Islam

inspired by the values of the friendship, cooperation and voluntary participation in the

various spiritual and material activities; self-sacrifice, personal property and allocation

it to public affairs and social welfare under the name of waqf, specifically showing

unique Islamic almshouses or social entrepreneurship in Islamic countries. The current

article with micro antipathetic descriptive and analytical approach, dedicated to

explain the Islamic and sustainable social entrepreneurship model for development

and social welfare programmes.

Norbert Oberauer, Early Doctrines on Waqf Revisited: The Evolution of

Islamic Endowment Law in the 2nd Century A.H,82 This study examines the early

development of waqf doctrine. Based on sources from the 2nd century AH, it is argued

81
Habibollah, Hamed and Davoud, “Waqf as a Social Enterpreneurship in Islam”, International
Journal of Business and Management, Vol. 5, No.7 (2010): 25.
82
Nobert, O. “Early Doctrines on Waqf Revisited: The Evolution of Islamic Endowment Law in the 2 nd
Century A.H.” Islamic Law and Society, Vol. No.1-2(2013): 1-47.

31
that the institution of waqf emerged from a fusion of two earlier institutions: (1) the

habs fi sabil Allah, a permanent endowment for pious purposes that probably

originated in voluntary contributions to jihad; and (2) the habs in favour of persons,

originally a life estate, which probably had its roots in an earlier institution called

'umrä. Over the course of the 2nd century AH, the legitimacy of life estates was

increasingly challenged, and the doctrine on habs in favour of persons was gradually

modified until the institution eventually lost its temporary character. By the end of the

2nd century, the habs in favour of persons had become a variation of the habs fi sabil

Allah: It was accepted as valid only if the settlor stipulated that after the beneficiaries'

death the donation should become a permanent endowment for a pious purpose.

Magda Ismail Abdel Mohsin, Financing Through Cash-Waqf: A Revitalisation

to Finance Different Needs,83 The paper argues that the revival of the institution of

waqf took a movable form recently especially in terms of the creation of cash waqf

which found its ways as one of the financial institutions financing different goods and

services in the different countries. In an attempt to enrich the literature on this area,

this study is an extension of the authors’ work, focusing mainly on the different goods

and services provided by different cash waqf schemes in Muslim and Muslim minority

countries without depending on the government to provide their needs. This study

uses data collected from primary sources including text from the Hadith, while data

collected from secondary sources include books, articles, journals besides web sites

and e-books. The findings show the potential of cash waqf in financing not only

religious areas but also financing different goods and services needed globally, such

as education, health, social care and commercial activities, basic infrastructures,

besides opening jobs for the majority of people. Practical implications of this research

83
Magda, I.A.M. “Financing Through Cash Waqf: A Revitalisation to Finance Different Needs”,
International Journal of Islamic and Middle Eastern Finance and Management, Vol. 6 No.4(2013): 65.

32
is to open the door wider for more researchers to explore the potential of cash waqf as

one of the instruments to finance all sectors in Muslim and Muslim minority countries

without exhausting the government budget.

Ibrahim Nuruddeen Muhammad, Scholars, Merchants and Civil Society

Imperative for Waqf-based Participatory Poverty Alleviation Initiatives in Kano,

Nigeria.84 The purpose of this paper is to raise awareness of the role of Islamic

endowments (Awqāf) as viable mechanisms for financing poverty alleviation

programmes and the value of the third sector in promoting public welfare. Secondary

sources provided the main data for the study. These were supplemented with personal

discussions and observations. Narrative approach was used for analysis. The lack of

awareness about endowments (Awqāf) is a barrier to harnessing their potentials in

redressing socio-economic inequities and enhancing the quality of life of the poor in

Kano. The paper argues that scholars, merchants and civil society organisations will

be awakened to the need to cooperate in employing the institution of awqāf in

reducing poverty through the provision of quality education, better health care and

employment opportunities. Government will be made aware of the need to explore

non-conventional methods in tackling poverty, recognise Islamic endowments (awqāf)

as viable alternatives in financing community welfare programmes and provide all

necessary policy support for their smooth operation. The worth of this paper lies in

drawing the attention of stakeholders, like policy makers, and the general public to the

contemporary relevance of, and demand for, Islamic endowments (Awqāf) in solving

many of the socio-economic problems excluding the poor from leading a decent life.

84
Ibrahim, N.M. “Scholars Merchants and Civil Sociey Imperative for Participatory Poverty
Alleviation Initiatives in Kano, Nigeria”, Humanomics, Vol. 26, Issue 2(2016):139-157. Also available
online at http://www.emeraldinsight.com/doi/abs/10.1108/08288661011074936#

33
 Muhammad Ridhwan Ab. Aziz and Mohd Asyraf Yusof, Examining the

Relationship between Level of Income and Appointment of Agent in Collecting Waqf

Fund,85 The paper highlights that the institution of waqf has played its role in poverty

alleviation and socioeconomic development through history, especially in the Islamic

history. Until today, this institution still plays an important role especially in Muslim

countries. Still, there are many potential mechanisms in order to make it more

effective to alleviate poverty. Cash waqf is a trust fund established with money to

support services for mankind’s benefits in the name of Allah. The gifted capital was

“transferred” to borrowers for a certain period, which was then spent for all sorts of

pious and social purposes inclusive for the investment objectives. It is recognised that

there is no ample study in the area of cash waqf especially for managing the waqf

fund. Therefore, the study for the management of cash waqf fund is essential in order

for the fund to be used efficiently. The article examines the relationship between level

of income and appointment of agent in collecting waqf fund. The methodology of this

research is a quantitative research towards 231 respondents among the Muslim public

in Malaysia. The general finding of this article shows that, with proper contribution

method and the appointment of Islamic waqf bank as an agent in collecting the cash

waqf fund, there is a strong tendency that the Islamic waqf bank’s operation will be

run effectively.

Abbasi, Muhammad Zubair, Islamic Law and Social Change: An Insight into

the Making of Anglo-Muhammadan Law.86 In this article, the author argues that some

scholars criticise British Indian Courts for their rigid approach towards Islamic law

85
Ridhwan, M.A.A. and Yusof M.A., “Examining the Relationship Between Level of Income and
Appointment of Agent in Collecting Waqf Fund” International Journal of Trade, Economics and
Finance, Vol. 5, No. 2(2014): 167-179.
86
Abbasi, M.Z. “Islamic Law and Social Change: An Insight into the Making of Anglo-Muhammadan
Law”, Oxford University Press, Journal of Islamic Studies, Volume 25, Issue 3(2014): 325-349.

34
that is stagnant by depending solely on the translations of selected classical legal texts

and operating under the doctrine of precedent. This paper challenges that view. It has

been further argued that Anglo-Muhammadan law responded to social change by

providing a venue for discourse to various classes of society. Judges, lawyers, legal

commentators, Muslim scholars and politicians played an active role in the making

and functioning of the legal system, despite holding divergent views. The main

interesting point in this paper is that it focuses on the historical legal process by which

shares and securities, along with similar types of incorporeal property, became a valid

subject matter of waqf. As shares and securities were a new type of property under

Islamic law, judges initially refused, on the basis of classical legal texts, to accept

them as a valid subject matter of waqf. However, Muslim legal commentators

supported such waqf, arguing that Islamic law accommodates social change and

allows flexibility within the ambit of shariah principles.

Mohamed Aslam Haneef et.al, Integrated Waqf Based Islamic Microfinance

Model for Poverty Alleviation in OIC Member Countries.87 This article argues that

poverty dominates the agenda of developing countries. Poverty was and still is one of

the major impediments of human progress and societal development. Its existence is

as old as human history while its alleviation is attributed to effective and successfull

economic policies. Various approaches/policies are offered towards reducing poverty.

These policies vary depending on time, space and the country concerned. However,

reduction of poverty is the major goal of many economic systems as stated by the

Millenium Development Goals, though sometimes not explicitly stated. It was found

that in OIC member countries religious and cultural norms drive preference of Islamic

microfinance over conventional microfinance. The study further developed an

87
Haneef, M.A. et. al, “Integrated Waqf Based Islamic Microfinance Model for Poverty Alleviation in
OIC Member Countries” Middle-East Journal of Scientific Research, Vol 19, No 2(2014): 286-298.

35
integrated waqf based Islamic microfinance model (IWIMM) for poverty reduction in

OIC member countries. This is expected to overcome the challenges of conventional

microfinance such as, high cost of capital, low quality of human resource,

vulnerabilities of poor borrowers due to lack of sustainable takaful and limited

products for the clients with different occupational backgrounds. However, the article

concludes with the note that the model is yet to be verified empirically. Thus, further

studies should be conducted to test the model using quantitative techniques such as,

structural equation modeling (SEM).

1.15.8 Articles in News Papers

Rahman, Sadequr., Waqf Shompotti Proshonge (An appraisal of waqf properties).88

This article was published in a number of installments in Daily Sangram from

17.06.2003 to 24.06.2003. The author has highlighted various irregularities that the

waqf sector is facing in Bangladesh. The main irregularities are: the shortage of man

power, unregistered waqf estates, illegal occupation of waqf estates, piles of cases that

are lying unresolved in the courts for years and complaints of bribery against the waqf

officials.

The Bangladesh Observer, IBBL89 Introducing New Deposit Product.90 This

article is about the new product of the Islami Bank Bangladesh Limited which is a

‘Mudaraba Waqf Cash Deposit Account’ (MWCDA) scheme that came into force

with effect from first July 2004. In this scheme the deposited money is invested and

the profit is spent in accordance with the will and wishes of the wāqif.

88
Rahman, Sadequr. “Waqf Shompotti Proshonge” (An appraisal of waqf properties). The Daily
Sangram, 17 June, 2003, 1.
89
‘IBBL’ stands for Islami Bank Bangladesh Limited.
90
Staff Reporter. “IBBL Introducing New Deposit Product” The Bangladseh Observer, 2nd July, 2004,
3.

36
 Bhuinya, Foyzullah, Waqf Shompotti Bedokhol O Proshashonik Oniyom: Waqf

Aine ke Shongshudhon O Dhele Shajano Proyujon (Illegal Occupation of Waqf

Properties and Irregularities in the Waqf Administration : Need for Review and

Amendment of Waqf Laws).91 This article was published in this daily between 06.08

2007 and 25.09.2007 in a number of installments. The author has reported specific

instances of irregularities in the Waqf Administration in Bangladesh. It has been

strongly emphasised in the article that the laws relating to waqf administration in the

country needs a major refurbishment.

Ahmad, Afsar Uddin., Waqf Proshashon ke Waqf Trust Board Kora Houk

(Waqf Administration should be made a Waqf Trust Board).92 In this article the author

has focused on the financial irregularities of waqf estates with specific reference to the

income of Mazars. The author argues that the government should transform the Waqf

Administration into a Waqf Trust Board under the Ministry of Religious Affairs just

like the Zakat Board formed by the government under the same ministry, in order to

make the waqf sector in the country an income generating institution and the income

can be utilised for various welfare development projects in line with the wishes of the

wāqifs.

1.15.9 Articles in News Magazines

Rafiqullah, Muhammad., Waqf Shompotti Niye Waqf Proshashok Hemayet Uddin er

Durniti-Shojonpriti Choromay (Corruption and Nepotism of Hemayetuddin, the Waqf

91
Bhuinya, Foyzullah. “Waqf Shompotti Bedokhol O Proshashonik Oniyom: Waqf Ainke
Shongshudhon O Dhele Shajano Proyujon” (Illegal Occupation of Waqf Properties and Irregularities in
the Waqf Administration : Need for Review and Amendment of Waqf Laws) The Daily Nayadiganta,
06.August to 25 September, 2007.15.
92
Ahmad, A.U. “Waqf Proshashon ke Waqf Trust Board Kora Houk” (Waqf Administration should be
made a Waqf Trust Board). The Daily Sangram, 31st October, 2007, 14.

37
Administrator, have no limit).93 This article reports on some alleged corrupt practices

of the Waqf Administrator Mr. Hemayet Uddin. Specific allegations have been

reported against him of tempering with the waqf deed and relevant documents of Haji

Ejazuddin Waqf Estates in Hatiya sub-district (Upozila) under the District of

Nuakhali.

Mohiyuddin Niloy et al, 13 Mazare Bosore Aay 23 Koti Taka: Takay Dhaka

Mazar, (The Annual Income of 13 Mazars amounts to 23 Crore94 Taka: Mazars are

Covered with Money).95 This is an interesting cover story of this weekly magazine

which runs up to thirteen pages that shed light on the income of some 13 selected

mazars. Each and every one of these mazars earns an average annual income of nearly

20 million Taka. The sources of income include public donations and various

offerings in cash and kind. Doubts have been aired that the actual amount of the total

income may far exceed the amount acknowledged in this report. The report has also

highlighted the instances of misuse of funds by the mazar management committee and

of various immoral activities that take place within and in the surrounding areas of

these mazars (shrine), particularly during the ‘Uras Mahfil’ (an annual event held

regularly to remember the deceased pious man).

1.15.10 Conference Papers

Mannan, M. A. Cash-Waqf Certificate–An Innovation in Islamic Financial

Instrument: Global Opportunities for Developing Social Capital Market in the 21st

93
Rafiqullah, M. “Waqf Shompotti Niye Waqf Proshashok Hemayetuddin er Durniti-Shojonpriti
Choromay” (Corruption and Nepotism of Hemayetuddin, the Waqf Administrator, have no limit) The
Oporadhbindu, Dhaka, Vol. 1, no.15 July 2007, 37-38.
94
One Crore is equivalent to 10 million.
95
Niloy, M. et al. “13 Mazare Bosore Aay 23 Koti Taka: Takay Dhaka Mazar” (The Annual Income of
13 Mazars amounts to 23 Crore Taka: Mazars are Overwhelmed with Money). The Shaptahik 2000,
October 2007, 27-39.

38
Century Voluntary Sector Banking.96 In this paper the author promotes cash waqf and

argues that cash waqf supported activities could be divided into social and public

good, thereby providing a basis for interesting economic analysis. As a case study he

examines the operational thrust of the Social Investment Bank Limited (SIBL) of

Bangladesh with a view to provide a real life experience and exposure to the process

of floating a Cash-Waqf Certificate as a financial instrument in the voluntary sector

banking.

Waqf Administrator, Awqāf Experiences of Bangladesh in South Asia.97 This

paper examines the waqf sector in Bangladesh from historical and managerial

perspectives as well as from financial and legal perspectives. The present role of

awqāf in Bangladesh and also the future prospects have been highlighted. It has

strongly suggested that the Waqf Ordinance 1962 needs to be reviewed in order to

make it relevant to the present day need.

Monzer Kahf, Role of Zakah and Awqāf in Reducing Poverty: a Proposed

Institutional Setting within the Spirit of Shari’ah.98 This paper proposes an institutional

structure for micro finance that simultaneously deals with the several facets of poverty

and depends on combining the Waqf and the Zakah principles together. The paper is

divided in two Sections: Section I reviews the relevant Shari’ah rulings of Zakah and

Awqāf. Section II outlines the proposed institution and its functions. The paper

proposes that for introducing this kind of institution, there is a need for cooperation

96
Mannan, M. A. (1999, October). Cash-Waqf Certificate–An Innovation in Islamic Financial
Instrument: Global Opportunities for Developing Social Capital Market in the 21st Century Voluntary
Sector Banking. Paper presented at The Third Harvard University Forum on Islamic Finance, Harvard
University, USA.
97
Waqf Administrator. (1999,December). Awqāf Experiences of Bangladesh in South Asia. This
paper was intended and accepted for presentation at a Seminar held in Delhi in May 1999 on the theme
Awqaf Experiences in South Asia. However, due to failure in obtaining visa, the Waqf Administrator
was unable to present this paper in the seminar.
98
Monzer Kahf, (2006, November). Role of Zakah and Awqāf in Reducing Poverty: a Proposed
Institutional Setting within the Spirit of Shari’ah. Paper presented at the Conference on ‘Poverty
Reduction in the Muslim Countries’, Dhaka.

39
between the IDB and domestic Islamic banks that have experience in micro finance

especially in a country like Bangladesh where several Islamic banks have already

started establishing their own foundations for micro finance. The author suggests that

the executive management of the new organisation can be entrusted in the transition

period to one of the Islamic bank that has experience in this area.

Zafor, Mohammad., Islamic Alternative to Poverty Alleviation Zakah, Awqāf

and Microfinance: Bangladesh Perspective.99 It is argued in this paper that it is not

necessary to handover ‘Zakah ‘money directly to the recipients but it can also be

utilised institutionally. On the other hand there is no restriction on using ‘Waqf’ fund

for general welfare of the society including helping the poor if the 'Wāqif' does not

specify its use. In the absence of effective Government sponsored central organ, an

institution could be formed consisting of leading ‘Ulemas’ and Islamic personalities to

collect ‘Zakah, centrally and reorganise the administration of ‘Waqf’ estates across the

country. There is a need to launch a public campaign to create a mass awareness about

legality and desirability of collecting ‘Zakah’ centrally and necessity of reorganising

the ‘Waqf’ estates.

Intan Fatimah Anwar et.al, Attidudes of Muslims Toward Participation in Cash

Waqf: Antecedents and Consequences,100 This paper argues that waqf is an act of

holding certain property and preserving it for the confined benefit of certain

philanthropy that disallows any use or disposition of it outside the specific objective.

In the light of Malaysian National Fatwa Council’s decision that cash waqf is allowed

in Islam, this research aims to investigate Muslim consumer attitude towards

99
Zafor, Mohammad. (2006, November). Islamic Alternative to Poverty Alleviation Zakah, Awqāf and
Microfinance: Bangladesh Perspective. Paper presented at the Conference on ‘Poverty reduction in the
Muslim Countries’, Dhaka.
100
Intan Fatimah Anwar et.al. (2014, April). Attidudes of Muslims Toward Participation in Cash Waqf:
Antecedents and Consequences. Paper presented at The ASEAN Islamic Endowment Seminar 2014
held in Universiti Sains Islam Malaysia (USIM).

40
participation in cash waqf and implications on their attitude towards participation in

cash waqf. This paper reviews literature related to consumer attitude towards

participation in cash waqf with the aim to empirically test conceptual model of

antecedents and consequences of consumer attitude towards participation in cash

waqf. Based on the literature, it is proposed that consumer attitude towards

participation in cash waqf is influenced by consumer trust, perceived risk, product

knowledge and reference group. The paper argues that consumer attitude will then

lead to consumer intention to participate in cash waqf. This research intends to make

contribution to both theory and practice of marketing by providing marketing

implications concerning the targeting of cash waqf customers.

Amirul Faiz Osman et al, An Analysis of Cash Waqf Participation Among

Young Intellectuals,101 This paper highlights the importance of cash waqf in

developing waqf institutions in enhancing the social economic status of Muslims. The

paper argues that the literature that contributes to a social psychological understanding

of the factors that underlie an individual’s decision to donate to cash waqf has been

extremely inadequate. This study therefore aims at examining the determinants of

donor (wāqif) intention to participate in giving cash waqf in the context of Muslims in

Malaysia particularly amongst young intellectuals at the International Islamic

University of Malaysia (IIUM). Employing a theory of planned behavior model as a

baseline theory, a set of questionnaire is constructed to measure donor (wāqif) giving

intention behavior and data are analysed accordingly. Concerned with findings,

attitude, subjective norm and perceived behavioural control are instrumental in

determining cash waqf participation amongst those intellectual. Besides attitude,

101
Amirul Faiz Osman et al. (2014, April) An Analysis of Cash Waqf Participation Among Young
Intellectuals. Paper presented at The ASEAN Islamic Endowment Seminar 2014 held in Universiti
Sains Islam Malaysia (USIM).

41
subjective norm and perceived behavioral control, religiosity is found to have a

significant effect on the behavioral intention.

Nor Masitah Mohd Orip et al, The Priority Projects to be Developed Through

Cash Waqf102 The paper discusses that a cash waqf is one of the methods to gain

financial resources for the Islamic Religious Council. The objective of this paper is to

analyse and determine the priority of projects that is suitable to be developed through

cash waqf. The methodology of this paper is through quantitative data. A survey has

been conducted in random sample size of 65 respondents. The result may help the

Islamic Religious Council in managing cash waqf collection due to the priority of

Muslims' will. The general finding of this paper shows that the most preferred project

to be developed through cash waqf was build mosques. Second is build hospitals/

health Centre. Third is to build schools/ university. Fourth is to buy grave land/

cemetery. Fifth is to build hostel for student. Sixth is to buy agricultural land. Seventh

is to buy shop lots. And the last is to build shopping complexes.

Farhah Binti Saifuddin et al, The Role of Cash Waqf in Poverty Alleviation:

Case of Malaysia.103 The paper highlights that poverty alleviation has always been

one of the biggest challenges faced by the Malaysian government. Since the

establishment of the New Economic Policy in the 1970s, the battle faced by the

Malaysian government against poverty continues up till today. Although the current

government policies used for eradicating poverty have lead to favourable results, the

government, private sector and NGOs are always on the lookout for other new

strategies that could be used as one of the tools to alleviate poverty. The emergence of

102
Nor Masitah, Mohd Orip et al. (2014, April). The Priority Projects to be Developed Through Cash
Waqf.Paper presented at The ASEAN Islamic Endowment Seminar 2014 held in Universiti Sains Islam
Malaysia (USIM).
103
Farhah Binti Saifuddin et al. (2014, April). The Role of Cash Waqf in Poverty Alleviation: Case of
Malaysia. Seminar Paper presented at The ASEAN Islamic Endowment Seminar 2014 held in
Universiti Sains Islam Malaysia (USIM).

42
cash waqf in Malaysia, gives a different light to the formulation of strategies that can

be used in improving the quality of lives of the ones burdened by poverty.

The rapid development of cash waqf in Malaysia has reached great lengths in

these recent years. The increasing awareness among the general public is one of the

contributing factors to this phenomenon. The religious state department and waqf

centres in Malaysia are also active in developing more contemporary waqf instruments

that are beneficial to the general public. This increases the prospects of cash waqf to

play a more prominent role in poverty alleviating initiatives in Malaysia. In the light if

this issue, the objective of this paper is to look into the potential of integrating cash

waqf with the poverty alleviation initiatives in Malaysia. Besides, this paper also

attempts to analyse other forms of cash waqf utilisation, beyond religious purposes.

Abdullaah Jalil and Asharaf Mohd Ramli, Conceptualisation of Corporate

Waqf.104 The paper focuses on the concept of corporate waqf which is usually

considered as the component of cash waqf. However, the paper argues, Hajar et al

(2011) suggested that corporate waqf should be established as an independent waqf

concept. Thus, based on the suggestion, this paper aims to re-conceptualise corporate

as an independent waqf concept. This paper is a theoretical study based on previous

studies and researches on corporate waqf. The paper discusses corporate waqf from

three different aspects; definition of corporate as independent waqf concept, models,

and Shariah considerations. The study tries to establish corporate waqf as an

independent category of waqf due to its salient characteristics and extend the

understanding and concept of the corporate waqf. The novelty of this study lies on its

attempt in defining the corporate waqf independently. This study also discusses the

104
Abdullaah Jalil and Asharaf Mohd Ramli. (2014, April). Conceptualisation of Corporate Waqf.
Paper presented at The ASEAN Islamic Endowment Seminar 2014 held in Universiti Sains Islam
Malaysia (USIM).

43
three models of the corporate waqf and deliberates on the main Shariah considerations

related to the corporate waqf practice.

Nurul Adilah Hasbullah and Khairil Faizal Khairi, Corporate Waqf as an

Instrument for Sustainability of Economic Well Being.105 The paper argues that Waqf

is one of the instrument for poverty alleviation among the community because it can

encourage development of economic well-being. If the economic well-being of people

can be reached, there is no gap between the rich and poor. In order to ensure that the

waqf system works well in line with the modernisation, the corporate waqf was

introduced. Johor Corporation Berhad (JCorp) is an innovator of this corporate waqf

which bring the great changes to the waqf system as a whole. The objective of this

paper is to identify the uniqueness of the corporate waqf and to investigate the

contribution of this type of waqf towards the economic well-being of the people. The

methodology of this paper is a quantitative research based on the document analysis of

relevant references. The general finding of this article shows that the proper

implementation of corporate waqf is very useful in developing the economic well-

being of the people.

Nurul Asykin Mahmood and Ruzian Markom, Transformation of Waqf

Institution: The Case of Waqf An-Nur Corporation.106 The paper argues that the role

and contribution of waqf institutions in the nation's socioeconomic development has

been proven. Al-Azhar University, for example continues to operate through the

application waqf until now. Recognising the importance of waqf in the current life and

the acquisition of reward is prolonged due to waqf systematically implemented and

105
Nurul Adilah Hasbullah and Khairil Faizal Khairi. (2014, April). Corporate Waqf as an Instrument
for Sustainability of Economic Well Being. Paper presented at The ASEAN Islamic Endowment
Seminar 2014 held in Universiti Sains Islam Malaysia (USIM).
106
Nurul Asykin Mahmood and Ruzian Markom. (2014, April). Transformation of Waqf Institution:
The Case of Waqf An-Nur Corporation. Paper presented at The ASEAN Islamic Endowment Seminar
2014 held in Universiti Sains Islam Malaysia (USIM).

44
structured. Although, the management and administration of waqf is not a new issue to

be discussed, the implementation is still more traditional. In line with the expansion of

the global economy, waqf should be transformed in terms of management and

administration of waqf institutions to improve the efficiency and effectiveness leading

to the advancement of the country in general. Therefore, this study aimed to identify

the participating institutions and the role of waqf in Malaysia. The study found that the

Waqf An-Nur Corporation (WANCorp) managed to transform institutions

implementing parallel with the development of waqf contemporary nature. This

descriptive study was done through the acquisition of information from books, theses,

journals and proceedings of the seminar and the website. Thus, the findings are

expected to help boost efforts to transform the participating institutions.

Zurina Shafii et al, Financial and Operational Measures of Waqf

Performance: The Case of State Islamic Religion Council of Singapore and

Malaysia.107 The purpose of this study is to examine the performance of waqf

institutions using financial and operational approaches. Using content and ratio

analysis, this study examines five years (2008-2012) annual reports of waqf

institutions administered by Majlis Ugama Islam Singapura (State Islamic Religious

Council of Singapore) and one Majlis Agama Islam Negeri in Malaysia (one State

Islamic Religious Council in Malaysia). Knowing the factors which can improve

performance is very crucial in every organisation including Waqf institutions as

charitable institutions. Waqf institutions have significant roles in a country to mobilise

and distribute public funds. Examining its performance could be useful to assess

waqf’s perpetual existence. In the context of business organisations, financial ratios

107
Zurina Shafii et al. (2014, April). Financial and Operational Measures of Waqf Performance: The
Case of State Islamic Religion Council of Singapore and Malaysia Paper presented at The ASEAN
Islamic Endowment Seminar 2014 held in Universiti Sains Islam Malaysia (USIM).

45
which rely on the bottom line can be the tools to examine the performance. Financial

ratios somehow reflect the financial health and vulnerability of the organisations.

Besides that, the organisations frequently compare actual performance with standards

or expectations to enhance the organisations’ achievements. Several financial ratios

might be applicable to evaluate non-profit organisations although those ratios do not

seem sufficient. Financial ratios alone cannot serve as measures of success in non-

profits organisations, these organisations have to be assessed in more complex ways,

generally dealing with efficiency and effectiveness. This study found in terms of Waqf

collections, both institutions have growing amount of Waqf funds. This can be a hint

of Waqf awareness among people. Both institutions are also able to generate income

from their core activities. However, it can be highlighted from programmes expenses

that both institutions might not have a number of projects and programmes relating to

the role as Mutawalli. Since financial ratios cannot be the utmost measures of success

in Waqf institutions, these organisations have to develop the performance measures

which can better evaluate efficiency and effectiveness.

Hidayatul Ihsan Abdullah Ayedh, A Proposed Framework of Islamic

Governance for Awqāf.108 The paper argues that along with the revival of waqf as an

institution, the attention to the call for good governance and best practices of waqf has

emerged. It is widely agreed that the best practice of good governance should be

adopted as it is one of the critical success factors for revitalising awqāf institutions. As

far as waqf study is concerned, there is no existing study on good governance of waqf.

This is probably because the conception of governance was used exclusively in the

commercial sectors. In fact, governance in charitable and not-for profit organisations

108
Hidayatul Ihsan Abdullah Ayedh. (2014, April). A Proposed Framework of Islamic Governance for
Awqāf. Paper presented at The ASEAN Islamic Endowment Seminar 2014 held in Universiti Sains
Islam Malaysia (USIM).

46
is much related to demonstrating accountability to stakeholders. This paper attempts to

review some Islamic concepts and values which underpin the governance framework

for awqāf institutions and thus demonstrate the Islamic accountability of mutawalli

(awqāf manager).

Izzuddin Edi Siswanto et al, Management Productive Waqf Optimisation: Case

Study of Tabung Wakaf Indonesia.109 This research investigates productive waqfs

which are not yet able to provide the optimal results with special reference to

Indonesian Waqf Foundation. It argues that waqf is an instrument which is offered by

Islam religion embodying the moral aspect that emphasises the value of social and

economic justice. The history has recorded how the waqf has managed to become a

supporting community economic development in the Caliphate era. Waqf possessed a

great potential to bring fresh air to the development of the Indonesian economy

supported by economists in scientific analysis and conventional as well as Ulama and

Fiqih scholars. Therefore, the optimisation of the management of productive waqf is

interesting to study in the form of scientific papers. The motivation of this study is

starting by looking from the very slow development of waqf in Indonesia. Meanwhile

Indonesia has the world's largest waqf potential. This is because of the lack of

management of waqf both in terms of accumulation and development of waqf assets.

The process of optimising the management of productive waqf is needed by adopting

the theory of the application of Islamic economcs and from other countries which

have been further develop in productive waqf. This study also attempts to provide

alternative productive waqf development, thus the Nazhir is expected to apply it in the

field as an effort to improve the management of productive waqf.

109
Izzuddin Edi Siswanto et al. (2014, April). Management Productive Waqf Optimisation: Case Study
of Tabung Wakaf Indonesia. Paper presented at The ASEAN Islamic Endowment Seminar 2014 held in
Universiti Sains Islam Malaysia (USIM).

47
 Fuadah Johari et al, Intention to Donate Cash Waqf Repeatedly (by

Installments): A Preliminary Descriptive Analysis.110 The awareness on cash waqf

contribution and the obligation to donate is now higher among Malaysians. In fact,

many Malaysians donate cash waqf by installments. In understanding the background

of cash waqf contributors, this paper presents the socio-demographic and socio-

economic profiles of those who donate by installments. A survey has been distributed

to 100 respondents using random sampling. The data was analysed using descriptive

statistics. The findings of this paper show that 51 percent respondents claim that they

will donate cash waqf by repeated installments. Based on the respondents’

demographic background, the prevalence of donating cash waqf repeatedly is more

common among females, aged between 20 to 25 years old, single and living in urban

area. Meanwhile, the socio-economic background of the respondents shows that

repeated cash waqf contributors are mostly professional and management workers,

degree and postgraduate degree holders, those who received formal Islamic education

in university, and those who earn between RM1501-RM3000 monthly. These findings

provide some insights of repeated cash waqf contributor’s profile which might be

beneficial to waqf agencies in accumulating waqf contribution in Malaysia.

Norizah Mohamed @ Haji Daud and Asmak Ab Rahman, Waqf in Healthcare

and Medical: A Case Study in Waqf An-Nur Hospital.111 The paper emphasises that

waqf is a unique form of welfare in Islam because it is worship that combines aspects

of spiritual and materialism. Waqf plays a major role in helping the government to

provide services such as health and education to the society. This can clearly be seen

110
Fuadah Johari et al. (2014, April). Intention to Donate Cash Waqf Repeatedly (by Installments): A
Preliminary Descriptive Analysis. Paper presented at The ASEAN Islamic Endowment Seminar 2014
held in Universiti Sains Islam Malaysia (USIM).
111
Norizah Mohamed @ Haji Daud and Asmak Ab Rahman. (2014, April). Waqf in Healthcare and
Medical: A Case Study in Waqf An-Nur Hospital. Paper presented at The ASEAN Islamic Endowment
Seminar 2014 held in Universiti Sains Islam Malaysia (USIM).

48
as the golden age of Islam at the time of the Ottoman Empire. This paper discusses

about the role and contribution played by the Waqf at Waqf An-Nur Hospital in

providing healthcare and medical services to the local community. Health is a

necessity for all, but for the poor and low-income people, health becomes a very

expensive. The implementation of this hospital is seen as an alternative for low

income people especially for the poor and the needy to get medical treatment,

regardless of race and religion. Data were collected by interviewing the patients who

receive treatment at HWAN and Operations Manager HWAN. The method of

observation is also done to collect data. Data from the interviews were analysed using

content analysis method based on the themes. This study finds that Waqf An-Nur

Hospital charges a lower rate for the patient’s healthcare and medical services. Waqf

is, therefore, an alternative to reduce the burden of government and society in terms of

health care and medicine.

Farhana Mohamad Suhaimi and Asmak Ab Rahman, Community Awareness

and Understanding of Waqf in Malaysia: Experience of the State Islamic Religious

Council.112 This study aims to identify the awareness and understanding of the

Muslims in Malaysia regarding the development of waqf property. An understanding

of the importance of waqf and its impact on the Muslims economy is significant as the

community are the backbone supporting the charitable institutions survival. In fact,

the lack of public awareness on the project will affect the development of waqf. The

research conducted is in the form of field research implemented through interviews

with the selected State Islamic Religious Council (MAIN) Waqf Section officers as

MAIN had vast experience in leading the society on waqf property management. In

112
Farhana Mohamad Suhaimi and Asmak Ab Rahman. (2014, April).Community Awareness and
Understanding of Waqf in Malaysia: Experience of the State Islamic Religious Council.Paper presented
at The ASEAN Islamic Endowment Seminar 2014 held in Universiti Sains Islam Malaysia (USIM).

49
addition, review of literature was performed as part of the study. The study focuses on

the awareness and understanding of the Muslims in Malaysia on waqf property. The

study found that Muslims awareness on the waqf property in Malaysia varies

according to states. This is due to the different approaches by MAIN in developing the

waqf property in their respective states. Overall, the Muslim community has

awareness regarding waqf propery, however, the understanding of waqf property still

needs to be improved. Efforts to increase awareness and understanding of the relevant

endowment should be diversified with an effective approach to optimise the role of

endowment in community development, particularly in Malaysia.

Ainul Kauthar Binti Karim et al, Health Waqf Concept & Its Development in

Malaysia.113 This study is a qualitative study using content analysis. It argues that

waqf is a form of worship to God and have an important role in solving the problems

of the Muslims today such as poverty alleviation, health, education center,

orphanages, mosques and homes for people in need. However, this paper only focused

on the role of waqf related to healthcare issues arising from the impact of high medical

costs, which is why many patients are not being able to get the best care . Therefore,

this study aimed to discuss the concept of health waqf generally, then identify the

form of existing waqf in Malaysia as well as introduce the basic concept of health

waqf in Malaysia. This study shows that there is a high potential to develop health

endowment or waqf to resolve health issues in Malaysia.

113
Ainul Kauthar Binti Karim et al. (2014, April). Health Waqf Concept & Its Development in
Malaysia. Paper presented at The ASEAN Islamic Endowment Seminar 2014 held in Universiti Sains
Islam Malaysia (USIM).

50
 Mohd Haiyazid bin Mohammad and Sanep bin Ahmad, Waqf Land

Development Through Hotel Waqf: National Blue Ocean Strategy.114 This study aims

to evaluate several models of waqf property development and determine the best

model to be implemented in order to generate maximum returns of endowment funds.

In Malaysia, thousands of acres of waqf lands worth millions of ringgit have yet to be

developed. Through the concept of Blue Ocean Strategy, implemented by the

government together with the State Islamic Religious Council (MAIN) and Yayasan

Wakaf Malaysia, several waqf lands have been successfully developed, one of them is

a waqf hotel development project which has been developed in Perak, Malacca,

Terengganu and Negri Sembilan. Nevertheless an assessment to determine the most

profitable development model has not been done yet. The principle of partnership

(joint venture) which is implemented in Perak, Malacca, Terengganu and Negri

Sembilan is the most suitable, profitable and application to be expanded compared to

other models. The implication of this study is to indicate that waqf lands have great

potential to be developed through waqf hotel development. Revenue from the

development contributes in increasing the endowment fund.

Ahmed Barakat, Waqf Financing of Higher Education in The Arab World: A

Bibliographical Survey.115 This paper suggests that the absence of sufficient literature

could stimulate a debate and open opportunities for research to develop further interest

in using Waqf as viable mode of financing education. This paper conducts a

bibliography survey of Waqf literature written in the Arabic language, and critically

reviews the related literature to Waqf-based education. With the help of field-study, 79

114
Mohd Haiyazid bin Mohammad and Sanep bin Ahmad. (2014, April). Waqf Land Development
Through Hotel Waqf: National Blue Ocean Strategy. Paper presented at The ASEAN Islamic
Endowment Seminar 2014 held in Universiti Sains Islam Malaysia (USIM).
115
Ahmed Barakat.(2014, April).Waqf Financing of Higher Education in The Arab World: A
Bibliographical Survey.Paper presented at The ASEAN Islamic Endowment Seminar 2014 held in
Universiti Sains Islam Malaysia (USIM).

51
materials on waqf have been found. An analysis of the literature shows that a majority

of the literature deals with waqf laws, both classical and modern. By ranking these

literatures, the study shows that much attention appears to be paid to Waqf based

education. The paper further suggests that more research should be held in the area of

financing education through waqf, to mobilise additional resources for education in

the Arab and Muslim World.

Farra Munna Harun et al, Cost Benefit Analysis on Government’s Education

Expenditure:Proposed Waqf Model for Education Capital.116 The paper argues that

education is an integral part of the human society as old as life itself. Waqf as an

institution and Islamic finance instrument has a direct and un-direct effect to upgrade

the capabilities of the needy and enhance their quality of life by providing access to

education facilities. Hence, the waqf institution surely can accommodate the issue of

financing for government’s education expenditure in its effective and comprehensive

approach. Thus, the main objective of this paper is to propose the model of Waqf

financing for reducing government’s education expenditure by using cost benefit

analysis. The methodology of this research is a qualitative research towards literature

related to Waqf. The general finding of this paper shows that there is should a strong

willingness from government to devote and make Waqf institution as one of financing

capital for education expenditure.

Muhammad Ridhwan Ab. Aziz and Mohd Asyraf Yusof, Tendency Among

Public And Students For The Establishment of Islamic Waqf Bank.117 Islamic waqf

bank is a concept of specially designed financial institution in Islam. This bank will

116
Farra Munna Harun et al. (2014, April).Cost Benefit Analysis on Government’s Education
Expenditure: Proposed Waqf Model for Education Capital. Paper presented at The ASEAN Islamic
Endowment Seminar 2014 held in Universiti Sains Islam Malaysia (USIM).
117
Muhammad Ridhwan Ab. Aziz and Mohd Asyraf Yusof. (2014, April).Tendency Among Public
And Students For The Establishment of Islamic Waqf Bank.Paper presented at The ASEAN Islamic
Endowment Seminar 2014 held in Universiti Sains Islam Malaysia (USIM).

52
benefit the students and also their parents, due to its unique structure that could

finance student’s education in term of fees and cost of living. Islamic waqfbank uses

the concept of cash waqf in term of funding the education. Cash waqf is a trust fund

established with money to support services for mankind’s benefits in the name of

Allah. It is recognised that there is no ample study in the area of cash waqfespecially

for managing Islamic waqfbank institution. Therefore, the study for the management

of cash waqffund is essential in order for the fund to be use efficiently. The objective

of this paper is to examine the tendencyamong public and students for the

establishment of Islamic waqf bank. The methodology of research in this paper is a

quantitative research based on 210 students and 287 Muslim public.The general

finding of this paper shows that there is a high tendency among public and students

towards the establishment of Islamic waqf bank.

1.15.11 Some NGO Research Papers that Partly Discuss Awqāf in Bangladesh.

Asia Pacific Philanthropy Consortium (APPC), Strengthening Philanthropy in the

Asia Pasific : An Agenda for Action, Background Paper: Bangladesh.118 This paper

highlights charity work in Bangladesh that has a long tradition of religious orientation.

During the British colonial period, Christian missionaries initiated many welfare

activities. They selected remote and poverty-stricken areas to set up hospitals, schools,

orphanages and so forth. Many such institutions have been functioning for well over

one hundred years. Among the oldest still functioning is the Christian Mission

Hospital, which was founded in Rajshahi in 1880. Likewise, there are traditional

educational institutions like madrassas, orphanages and mosques that are founded and

dedicated as waqf by individuals and groups with strong adherence to religious

118
Asia Pacific Philanthropy Consortium .(2001, July). Strengthening Philanthropy in the Asia Pasific :
An Agenda for Action, Background Paper: Bangladesh. Presented at the APPC Conference, Dhaka.

53
principles. Many of these institutions are not meant for the promotion of religion;

however, they definitely provide services to members of particular religious

communities. Waqf estates manage many of these. Waqf is an old institution in which

the individuals and families in the Muslim community donate part or all of their assets

and properties in the name of a welfare institution or activity (like madrassa, mosque

or orphanage). Income from such assets/properties is used to run these activities.

Brigitta Bode, In Pursuit of Powerr: Local Elites and Union-Level Governance

in Rural Northwestern Bangladesh.119 This paper, among others, discusses the role of

the institution of waqf in the rural Bangladesh. Waqf is a very old religious welfare

institution that has been operating in the country in various sectors; such as education,

health care, public utilities like pond and so on.

Zaman, Iftekhar., Bangladesh: Growth and Importance of the Nonprofit

Sector.120 The author discusses the position of non-profit sector in Bangladesh that

includes institution of waqf. The paper highlighted the role of the Waqf Ordinance

1962 in governing awqāf in the country. The author stresses that the laws affecting the

nonprofit sector are premised on a legal framework inherited from the colonial period,

when the primary objective was to extend legal status to the nonprofit sector and

define obligations thereof. The time and situation have changed and therefore the laws

must be amended to adopt the changes. The author insists that the environment in

which nonprofits operate in Bangladesh remains far from fully conducive to realising

the potential of the sector.

119
Brigitta Bode. (2002). In Pursuit of Powerr: Local Elites and Union-Level Governance in Rural
Northwestern Bangladesh. CARE Bangladesh.
120
Zaman, Iftekhar. (2003, September). Bangladesh: Growth and Importance of the Nonprofit Sector.
Paper presented at the Asia Pacific Philanthropy Consortium (APPC) Conference, Dhaka.

54
 Care Rural Livelihoods Programme, Land Policy and Administration in

Bangladesh: A Literature Review.121 The paper focuses on the land policy of the

country and discusses, in part, the status and role of waqf estates in the country. The

paper refers specifically to the water bodies that have been divided into State and

Private properties. The water ponds, and dighis122 dedicated as waqf has been serving

as public utilities since ancient time. However, due to lack of adjustments in the

policies, these properties could not be fully exploited for public good.

Oliver Wagener, Development Cooperation and Islamic values in

Bangladesh.123 This paper discusses, among others, the role of awqāf in Bangladesh

in serving the less privileged segment of the society. It also highlights the

responsibilities of the Waqf Council under the Ministry of Religious Affairs. It has

been shown in this paper that the waqf is an important economic factor in Bangladesh

as its considerable funds go to charitable causes. Some of the problems and challenges

have been identified which need to be overcome in order for this sector to play a vital

role in overall development of the country.

Waseem, Yaqub., Waqf Future Fund: Working towards a better Future.124

This paper highlights the waqf based activities of the Islamic Relief of United

Kingdom (IRUK) in various countries including Bangladesh. For over two decades

Islamic Relief has been providing emergency aid and long term help to some of the

world’s most deprived people. Islamic Relief has with the support of its donors

improved the lives of millions of people worldwide. The Waqf Future Fund was set up

121
Care Rural Livelihoods Programme. (2003). Land Policy and Administration in Bangladesh: A
Literature Review. CARE SDU Reports and Studies, Dhaka.
122
Large water ponds.
123
Oliver Wagener. (2006, June). Development Cooperation and Islamic values in Bangladesh. Paper
presented at the conference on Instruments of Development Cooperation and Islamic Values in Asia.
Eschborn.
124
Waseem, Yaqub.(2006). Waqf Future Fund: Working towards a better Future. Islamic Relief,
Birmingham.

55
by Islamic Relief in 2000, aimed primarily at reviving a great tradition of setting up a

charity that continues to benefit the needy for many future generations. Waqf has

become a vital source of funding for Islamic Relief enabling them to continue saving and

improving lives of the world’s neediest people.

Sumaiya Khair and Saira Rahman Khan, ‘Philanthropy and Law in

Bangladesh’, The Legal Context for Philanthropy and Law in Bangladesh.125 This

paper discusses waqf and other philanthropic activities in Bangladesh. Some of the

important provisions of the governing law for Awqāf, i.e. the Waqf Ordinance 1962

has been discussed in this paper in details. The process of registration of Awqāf, their

purposes and management have been analysed.

United Nations Human Settlements Programme (UN-HABITAT), Islam, Land

& Property Research Series- Paper 7: Waqf (Endowment) and Islamic

Philanthropy.126 This research paper looks at waqf as an important key Islamic

institution which has incorporated within its legal sphere vast areas of land within

Muslim world. It argues that at its heart the Islamic endowment is connected firmly

with the religious precept of charity. Modern reforms in several Muslim countries

have abolished nationalised or highly regulated endowments (Awqāf). The eclipse of

the endowment (waqf) has left a vacuum in the arena of public services, which the

State has been unable to fill easily in many Muslim countries. However, both the

'idea' of the endowment (waqf) and the endowment (waqf) doctrine itself remain

influential and there are clear signs of its reinvigoration. The endowment (waqf)

served and continues to serve as an instrument of public policy and impacts on all

125
Sumaiya Khair and Saira Rahman Khan, n.d. Philanthropy and Law in Bangladesh: The Legal
Context for Philanthropy and Law in Bangladesh. Philanthropy and Law in South Asia, Dhaka.
126
United Nations Human Settlements Programme (2005). Islam, Land & Property Research Series-
Paper 7: Waqf (Endowment) and Islamic Philanthropy. United Nations Human Settlements Programme
(UN-HABITAT), Nairobi, Kenya.

56
aspects of Muslim life, including access to land. The paper has discussed various

aspects of waqf in six sections. In section 1, it examines the legal sources. In section 2,

it discusses structure and types of waqf. In section 3, it explores the socio-economic

impacts of waqf. Section 4 considers the reasons for economic decline of the

endowment (waqf) while Section 5 examines the contemporary revival of waqf.

Section 6 offers five strategies for empowerment through Islamic endowments

(Awqāf).

1.15.12 Online Materials and Resources

http://www.waqfbd.com/index.html This is the official website of the Waqf

Administration of Bangladesh. It gives some basic information about the waqf

administration in Bangladesh; such as history and functions of the administration and

provides some guidelines for the prospective wāqifs as to how a waqf should be

enrolled and why it is important to do so. It also provides some basic data on waqf

properties in Bangladesh and the administrative structure of the waqf administration.

http://www.asianphilanthropy.org/countries/bangladesh/history.html. This is

the web address of the Asia Pacific Philanthropy Consortium. It provides with some

useful and up-to-date information on the philanthropy sector in Asia and the Pacific. It

also provides reference materials that tackle current issues in philanthropy within and

outside the region.

http://www.dailysangram.com. This is a web page of a Bengali news paper;

The Daily Sangram, in which a number of articles on waqf administration in

Bangladesh were published in installments from 17.06.2003 to 24.06.2003. The paper

has highlighted various issues related to awqāf in Bangladesh including some

57
irregularities that the waqf sector is facing Bangladesh. (Reports on waqf published

from 17.06.2003 to 24.06.03 may be accessed through the above link.)

http://www.dailynayadiganta.com. This is another Bengali news daily which

came up with a number of news articles on waqf administration in Bangladesh

published from 06.08. 2007 to 25.09.2007). The issues may be accessed through the

above link.

http://banglapedia.search.com.bd/HT/H_0037.htm. This website is an online

encyclopedia on Bangladesh and contains some useful information on awqāf in

Bangladesh.

1.16 SUMMARY AND CONCLUSION.

This chapter is summarised and concluded in the following points:

1. Ever since the Census of Waqf Estates was held for the first time ever after

the country’s independence in 1986, the awqāf sector in Bangladesh has

not received the kind of attention it deserves. The census report brought

many important matters to limelight, for instance, unregistered and less

productive waqf estates, with suggestions for the required course of action.

A good follow-up plan based on the census could have brought much

anticipated results. The lack of government initiatives for development of

awqāf has not only deprived the government from earning sizeable

revenue, but also it has been counterproductive in the sense that waqf

sector has suffered various socio-legal repercussions, some of which will

be discussed in this research in due course.

2. After highlighting some of the problems faced by the waqf administration,

the objectives and hypothesis of this research have been devised to address

58
 the key issues related to the development of awqāf from an empirical point

of view, dealing with aspects that are result oriented and devoid of

repeating conceptual and traditional issues that have been already

discussed before by many researchers.

3. The collection of literatures on Bangladesh waqf is huge. They clearly

suggest that those who are concerned about development of waqf did their

bit through their writing for betterment of waqf by bringing various related

issues to the attention of the parties concerned that this sector has immense

potential of contributing towards society’s wellbeing. It was then up to the

authority to take heed of it.

4. Attempts have been made to make the literature review as comprehensive

as possible. However, literatures that were found to be dealing only with

the basic concepts of waqf; such as the meaning, classification and validity

of waqf with opinions of different schools of thoughts, have not been

reviewed here as the scope of this research does not warrant such

inclusion.

5. The guiding principle of selecting literature for the purpose of this

research has been therefore to focus on those literature that deal with

development, advancement and socio-legal aspects of waqf with modern

and innovative approach, thus avoiding classical literature. However,

literatures that are purely on waqf in Bangladesh have not been spared

even if some of them were old and not quite up to date, for instance the

Census of Waqf. There has been no census of waqf in Bangladesh since

1987, but the data of the census has not since been analysed or tested in

any post graduate level research, at least to the best of this researcher’s

59
knowledge. Therefore the data provided by the census is the ‘latest’

official record of waqf properties in Bangladesh and as such remains

relevant.

60
 CHAPTER TWO

HISTORICAL ACCOUNT OF LEGISLATIVE DEVELOPMENT

AND ADMINISTRATION OF AWQĀF IN BANGLADESH

2.1 INTRODUCTION

Bangladesh1 is predominantly a Muslim2 country, which has the third largest Muslim

population3 in the world.4 The history of waqf administration in Bangladesh goes

beyond the history of the independent Bangladesh. It is a shared history5 with the

whole subcontinent which was under the Muslim rulers for more than five hundred

years6 before the British colonisation of the subcontinent began.

2.2 AWQĀF IN BANGLADESH: TRACING THE HISTORY

Awqāf, as an institution, was first introduced in the subcontinent by the Muslim rulers7

and, therefore, has been in existence in the country for centuries, 8 well before the

British colonisation9 of the Indian subcontinent, of which Bangladesh was an integral

1
The official name of the country is ‘The People’s Republic Of Bangladesh’, situated between India
and Myanmar, in South Asia.
2
The ‘State Religion’ of the country is Islam as provided for under the Section 2A of the country’s
constitution.
3
http://www.bangla2000.com/Bangladesh/overview.shtm, estimated population of the country is one
hundred and fifty (150) million. Accessed on 25 July 2013.
4
Hoque, M.N. no.43. xxi. He observes that ninety percent of the total population in the country is
Muslim. Bangladesh has not seen an official population census in the last few decades and therefore the
exact number of population at this point of time is not available.
5
W.Haig, ed. Cambridge History of India, Vol iii, Cambridge University Press, 1928, 2-11.
6
Muslim Rule started from 1194 till 1757. It was Ikhtiyaruddin Muhammad Bakhtiar Khilji who
conquered Bengal in 1194 and established Muslim rule that continued until the British East India
Company came to the subcontinent in 1757. For details see Cambridge History of India, Vol iii,
Cambridge University Press, edited by W. Haig.
7
Hoque, M.N. 49.
8
Sadeq, A.H.M.no 5.163.
9
British colonisation began after the last Nawab of Bengal, Nawab Siraj-ud-Dulla, surrendered to the
British East India Company in the battle of Palashi in 1757. The dominion of the East India Company
on the subcontinent continued from 1757 till 1858 when the Government of India Act 1858 was passed

61
part. As such, the history of awqāf in the subcontinent took several turns; i.e. the era

of the Muslim Rulers then the British rulers.

After that British India got independence from British Empire and was divided

into two independent states, namely; India and Pakistan. Then East Pakistan became

independent from Pakistan and was named Bangladesh as a new state. As such, we

would like to have a brief look into the pre-independence as well as the post-

independence history of Bangladesh which became an independent sovereign state

only in 1971.10

2.2.1 Administration of Awqāf During Muslim Rulers

Muslim rulers made their presence felt in India as early as 712 A.D. 11 However,

Bakhtiar Khilji was the first Sultan who conquered Bengal in 1194 and established

Muslim rule.12 Then the Muslim rulers introduced the institution of waqf in India.13

Since there was no proper and adequate record keeping system about the

administration in those days, it is difficult to find much source about the mode of waqf

administration of that time except that under the Muslim rulers, administration of

waqfs was entrusted to District Qazis14 who were the trustees of all waqfs in their

and the British Government assumed the task of directly administering Indian subcontinent till 1947.
See http://en.wikipedia.org/wiki/Company_rule_in_India for more.
10
Prior to that, since 1947 it was the Eastern Province of Pakistan and was called East Pakistan. Before
1947 the whole Indian subcontinent used to be under British control since 1757. After nearly two
hundred years under the British rule, India and Pakistan became independent in 1947. Bangladesh
declared its independence from Pakistan on 7 th of March 1971(as such this day is celebrated annually as
the Independence Day) and after a nine month long freedom fight the final victory was declared on 16 th
of December 1971(and this day is celebrated annually as the Victory Day).
11
Muhammad bin Qasim was the first Muslim general who conquered Sind (India) in 712 A.D. See
Cambridge History of India, vol iii, 2-11.
12
Hoque, M.N. 49.
13
Hasanuddin & Ahmedullah, Strategies to Develop Waqf in India, IRTI, Jeddah, 1998. 32.
14
An Islamic legal scholar and a judge. According to the B.Y. Dictionary (available online at
http://www.experiencefestival.com/a/Kazi/id/172586 accessed on 26.07.2013. A Qazi used to be a
Muslim Majistrate, usually the ruler of a city or a town, just like present day mayor of a city. The word
Qazi is an Arabic word and in English it is spelt differently such as Qazi, Qadi, Kazi, Kadi and Cazi by

62
areas.15 During the whole periods of Moghul Emperors, waqf used to be governed by

the Emperors themselves,16 the Qazis, the mutawallis and other imperial officers in

accordance with the provisions of the Islamic law of property and Muslim Family

laws,17 until the British colonial power colonised the whole subcontinent.18 The

Muslim Emperors were generous towards the institution of waqf, which used to be

under their domains and supervision. During Delhi Sultanate many waqf were

created19 and it was observed by Ibn Batuta that during the sultanate waqf used to be

administered by the mutawallis.20

2.2.1.1 Sultan Muizuddin Sam

Muizuddin was one of the Ghaurid Sultans who dedicated two villages in favour of a

Jame’ Mosque in Multan and handed over its administration to the Shaikh al-Islam.21

2.2.1.2 Sultan Alauddin

Sultan Alauddin restored a great number of ruined and neglected waqf buildings; then

he also restored the superintendents and officers of these endowments who had been

driven out of them.22 The Sultan appointed mutawallis for every khanqah who were

paid from the Government Treasury.

various writers in different places of the Muslim world. For consistency we will stick to the spelling as
Qazi.
15
Hoque, M.N.49.
16
Ibid.
17
Mannan M.A., Structural Adjustments and Islamic Voluntary Sector with Special Reference to Awqaf
in Bangladseh, IRTI, Jeddah, 1995. 30.
18
The present day Bangladesh, India and Pakistan.
19
Hasanuddin & Ahmedullah. 32.
20
Ibid.
21
S.K.Rashid, Waqf Law and Administration in India, 14 as cited in Hasanuddin & Ahmedullah, 32.
22
Afif, Shams-i-Shiraj, Tarikh-e Firozshahi, Elliot and Dawson, Vol. III, p. 355 as cited by Hoque, 52.

63
2.2.1.3 Emperor Sher Shah

Sher Shah advised through an official ‘ferman’ to his subjects during his time from

which it appears that he was actively involved in the waqf management. The ‘ferman’

reads:

“They (villagers) should build a mosque in every village and should

attach productive land to it as waqf. The income of this village should
be utilised in making arrangements for it. The management of this
village should be entrusted to a group of men according to the
population of that village so that every one of then might try to look
after it. The crier who is called Mulla should be a reader of the Quran
and versed in the principal tenets of religion. This Mulla is connected
with the Sadr of religion who superintends this department and whose
name is entered at the capital (in the Imperial office). The Hindus also
are granted waqf by the Government, according to the above mentioned
principles. This is under the management of five Hindus. Every Mulla
should keep the accounts in proper order and should get them inspected
by the auditors and entered in their office. In the other book he should
enter the matters of legacy and marriage. A school should also be
attached to it so that the students might be instructed there in the Quran
and the principal tenets of religion. The Hindus are also authorised to
control and manage their own school…”23

2.2.1.4 Emperor Akbar

Emperor Akbar himself took action against those who did not perform well in the

administration of waqf. A report during Akbar’s time shows the position of waqfs,

which was in bad condition, such as irregularities, sufferings and want of

administration. He removed a large number of qazis and sajjadanshin in order to

preserve the sanctity of Awqāf.24 Emperor Akbar made a generous ‘Madad-I-Ma'ash’

grant in favour of ancestors of a family that was well known for its religious

contributions and named it as "Farangi Mahal" at Lucknow.25 The later Moghul

23
Khan HA Rashid and Tripathi, Tarikh-e-Daulat-e-Sher Shahi, in Medival India Quarterly, Vol I, No
I, p 62-63 as cited by Hoque, Ibid.
24
Hoque, 52.
25
Hasanuddin & Ahmedullah, 34.

64
Emperors also did the same Madad-I-Ma'ash grants and paid cash allowances for the

maintenance of the madarsah.26

2.2.1.5 Emperor Shahjahan

Emperor Shahjahan built the famous monument of Tajmahal27 which is a waqf and

the Emperor himself was the first mutawalli of the Tajmahal Waqf Estate.28 He also

built a mosque known as "Moti Masjid" and an Ibadat-Khana29 and endowed thirty

villages and a Parganah,30 both yielding about one hundred thousand rupees31 a year.

The objects of these awqāf as mentioned in his ‘Parwana’32 are recognised by

Muslim law as religious, pious and charitable purposes.33

2.2.1.6 Emperor Aurangjeb

Emperor Aurangjeb took great interest in waqf administration.34 He was a great

patron of Islamic legal studies and edited the famous ‘Fatwa-e-Alamgiri’, which is

one of his most important contributions to the field of Islamic Law in general and the

Law of Waqf in particular. In the Fatwa, a specific ‘Book of Waqf’ (Kitab al-Waqf)

was included which consisted of a total of 14 chapters dealing with various legal and

Fiqhi issues of waqf administration and management. It was during his time that the

26
Ibid.
27
Shah Jahan, the Moghul Emperor, constructed the beautiful building under supervision of Makramat
Khan and Abd-al-Karim in about twelve years time at a cost of the then fifty lakhs of rupees and
completed it in the year 1631 AD and named it after his beloved wife as Taj Mahal. See Hasanuddin &
Ahmedullah, 34.
28
Hoque, 52.
29
Place for worshipping.
30
An administrative district.
31
Official name of Indian currency unit.
32
Royal declaration.
33
Hasanuddin & Ahmedullah, 34.
34
Kazim,M, Alamgir Namah, Bib Ind, 1097, as cited by Hoque,52.

65
law of waqf matured to a very high level.35 During his time ‘Diwan-e-Mazalim’ was

established for the inspection of public grievances to set right any miscarriage of

justice and it was also entrusted with the waqf supervision. He handed over the

management of mosques to sadre-sarkar.36

2.2.1.7 Emperor Iltutmish

During the reign of Iltutmish, a magnificent mosque named ‘Shamsi Mosque’ was

built in the province of Badaun.37 The Emperor also built an Eidgah38 in Badaun.39

2.2.1.8 Emperor Muhammad Ali Shah

Emperor Muhammad Ali Shah the 3rd built a mosque and placed it under a waqf

estate named ‘Husainabad Mubarak’ in 1838.40 Then in 1839 he deposited a sum of

Rs. 1.2 million with the East India Company and assigned its interest to two specified

trustees and agent with a direction that the income generated from it should be spent

for the payment of pensions for a number of persons and to various religious and

charitable purposes. The trustees and the agent were king’s own servants and they

35
Rashid, S.K. “Analysing the Level of Maturity Attained by the Law of Waqf in Mughal India as
Shown in the Fatwa Alamgiriyya”; a paper presented at ‘The of Waqf Conference’ organised by and
held at Harvard Law School from 26 to 28 May 2006. Prof Rashid observes, “from the contents of the
‘Kitab al Waqf’ it becomes clear that unlike the efforts of an individual who single-handedly writes a
book, the compilation by a team, which was probably forty strong, is very detailed and comprehensive.
The cumulative insight of these many experts, the combination of their varied and vast experiences and
their zeal to produce a book containing the sum total of fiqh knowledge existing at that time, succeeded
in producing a masterpiece. The book of waqf shows that it has really succeeded to achieve a level of
comprehensiveness which is difficult to surpass even today. Problems connected with the law of
waqf that were relevant to the society of those days (and which are to a great extent relevant even
today) are being given relatively more emphasis. For instance, creation of waqf is a pivotal area
and hence it finds extensive coverage….. the advantage which the compilers of Alamgiriyya enjoyed
was that it was compiled by nearly 40 persons, quite a good number of whom were muftis and qadis
and rest were ulama.”
36
Hoque, 54.
37
Hasanuddin & Ahmedullah, 33.
38
A large field dedicated for the Eidul Fitr and Eidul Adha prayers.
39
Hasanuddin & Ahmedullah, 33.
40
Ibid. 35.

66
were to hold office generation after generation and in the event of failure of any of

these persons the British Resident was to elect a substitute from amongst the

pensioners. He further deposited a sum of Rs 2.4 million in the East India Company

securities and the securities now held by the estate are of the face value of Rs.

3,787,500.41

Thus, the Muslim Emperors of the subcontinent paid special attention towards

administration and management of Awqāf. While preserving the existing Waqfs, they

also constructed mosques and tombs, water-reservoirs and canals, roads and sarai-

khanas, cities and educational institutions, etc. It became a tradition among the

Muslim Emperors, while they are on throne, to create waqf of villages and lands for

religious and public welfare.42

2.2.1.9 The Imperial Officers

The Muslim Emperors used to appoint certain officers at various levels of

administration who were called Sadr-e-Sarkar,43 Sadre-e-Suba,44 Sadr-us-.sudur,45

etc., for effective supervision of awqāf along with their other duties.46 Sadr-e-Sarkar

is said to have been empowered with the authorities of checking the Sanads of

mutawallis of shrines and passing bills for payment to charitable Awqāf. Public

mosques also came under this category.47

41
Ibid.
42
Ibid.
43
Imperial officer at the district level.
44
Imperial officer at the provincial level.
45
Imperial officer at the s Imperial officer at the state level.
46
Hoque, M.N. 56.
47
Ibid.

67
 Sadr-e- Subah was the Chief Religious Officer of the Province. He is said to

have only supervisory authority on waqfs, because the collection of dues on charitable

endowments was entrusted to the Diwan of the Province.48

Sadr-us-Sudur was the Chief Religious Officer of the Empire. It is also

reiterated that he had the authority on all lands devoted to religious and benevolent

purposes, and possessed an almost unlimited authority of conferring such lands

independently of the King.49

2.2.1.10 Power of Mutawallis under the Emperors

The mutawallis50were given discretionary power under the Muslim Emperors.

Although they used to govern awqāf under the auspices of the Sultans, they enjoyed

48
Ibid.
49
Ibid.
50
Generally mutawalli is a person who manages a waqf-property. Mutawalli may even happen to be
the original owner of the property before its dedication as waqf. But once a property is dedicated,
ownership of the property is vested in Allah s.w.t. and the property then is considered belonging to
Him. Therefore mutawalli acts as a human agency whose job is to look after the dedicated property on
His behalf. Hence the person, who supervises or takes over the management of a waqf, is called the
mutawalli. He also distributes the benefits of the property according to the directions laid down in the
waqf deed. A mutawalli has no personal interest in the property. He is merely a servant of God,
managing the property for the good of His creatures. Therefore, besides legal duties, a mutawalli has
also the religious and moral obligation to take care of the waqf- property. Any mismanagement or
negligence on his part may amount disrespect towards God. The office of a mutawalli is similar to that
of a trustee, but his powers and functions are different.
It is relevant to note that presently, the Waqfs Ordinace 1962 of Bangladesh in its Section 2(6) defines
Mutawalli as any person who is appointed either orally or under any deed or instrument by which a
waqf has been created or by a competent authority to be the mutawalli of a waqf, and
includes a naib-mutawalli, any other person appointed or entrusted by a mutawalli, to
perform the duties of a mutawalli . , the guardian of a mutawalli who is a minor or o f
unso und mind and any person or committee for the time being managing or administering any waqf
property as such’. Further explanation to the section provides that a Receiver appointed under
the provisions of the Code of Civil Procedure, 1908 or under section 145 or 146 of the Code of
Criminal Procedure, 1898, to manage or administer a waqf property, or a Common Manager managing
any waqf property under the provisions of any law for the time being in force, shall he deemed to be a
mutawalli for the purposes of this Ordinance. The Ordinance further empowers a mutawalli that, unless
there is anything to the contrary in the waqf-deed, he may convert waqf property and invest money in
certain cases. Mutawalli, however will need approval from the Administrator for the conversion and
investment of the waqf property. If the property consists of money which cannot be applied
immediately or the waqf property is of wasting nature he may convert and invest the proceeds in such
manner as may be approved by the Administrator (Section 59). It has not been clearly mentioned as to
what property as a waqf could be of ‘wasting nature’. However, an instance of a fruit tree as waqf
would be a good example whereby the fruits are clearly perishables and as such in order to prevent
wastage the fruits may be sold and the money invested. In the event that there are co-mutawallis to a

68
enormous powers and control with regard to the management of Awqāf. There was

hardly any imperial control over the waqf even though the waqf was created by the

Emperor himself.51 For instance, as to the waqfs for the tomb of Sultan Qutbuddin

Mubarak Shah, the wakif was Sultan Muhammad Tughlaq. His appointed mutawalli

was Ibn Batuta.52 The Sultan, as wakif, ordered that twelve maunds53 of flour and an

equal amount of meat be used in the preparation of daily food. Ibn Batuta (as

mutawalli) raised the quantity to 35 maunds of flour and meat. On special occasions,

he raised the amount to 100 maunds. He also appointed some 450 individuals to

discharge various functions without consulting the Sultan.54

2.2.1.11 Role of the Qazis during Muslim Rule

During the Muslim period, a Qazi55 used to play significant role in the overall

administration of awqāf apart from his usual task of dispute settlement. The first

register of awqāf in India was opened in736 A.D. by an Egyptian Qazi named Tawba

Ibn Namir56 who introduced a better system of keeping waqf records that was said to

be followed in India. Before this such properties had been under the exclusive control

of private administrators or the beneficiaries. Tawba, as Qazi, decided to take charge

of waqfs to protect their interests as he believed that the ultimate purpose of awqāf is

given waqf estate, all the mutawallis are to act jointly in the exercise of their functions and performance
of their duties unless the waqf deed provides otherwise. (Section 67) But the Ordinance has not clearly
set out the ambit of any discretionary powers conferred on a mutawalli in clear terms. However, it
provides in Section 68 that where a discretionary power conferred on mutawalli is not exercised
reasonably and in good faith such power may be revoked by the Administrator.
51
Husain, Mabdi. The Rehla of Ibn Battuta, (India, Maldive Islands and Ceylon). Translation and
Commentary, Oriental Institute, Baroda, India,1953(Second edition 1976).40.
52
It is interesting to note that Ibn Batuta, who is better known as a traveler-historian, came to serve as
a mutawalli in the subcontinent during the Muslim Emperors. He was also a noted specialist in fiqh at
that time. See Hoque, 51.
53
1 maund = 80 lbs or slightly more than 40kg
54
Hoque, 51.
55
Zain al-Abidin, Bohur al Raik, Vol. V. Cairo, ed, p 252. Here Qazi meaning the Chief Qazi ( Qazi-
ul-Quzat). In relation to waqf affairs it was the Chief Qazi who had this power as there were different
types of qazis but not all had the power to deal with waqf affairs.
56
He was one of the later Umayyad Judges. His term of office in Egypt was from 733 to 737.

69
the benefit of the poor and needy. His initiative enhanced the importance of the Qazi’s

office in the affairs of awqāf management.57

2.2.1.12 The Qazi system during Muslim rule

The Muslim rulers of the Subcontinent implemented Islamic law through qazis who

were paid judicial officers. This system takes its origin from the time of Omar, the

second caliph. According to Amir Ali: “Omar was the first ruler in Islam to fix

salaries for his judges (Qazis) and to make the offices distinct from those of executive

officers...”58 The system was closely followed by the Umayyads and Abbsids. Further

it is said: “the Muslim sovereigns of India took for their model the administrative

system of the Abbãsid caliphs of Iraq, the Umayyad caliphs of Spain, and the Fatimid

caliphs of Egypt. Their judicial machinery was also set up on the same model.”59 The

above statements lead us to believe that the qazi system in the Indian subcontinent was

taken from the Umayyads’ and Abbasids’ administration. At the beginning, Qazis had

no particular well-defined duty. Subsequently, they appeared as judges.

2.2.1.12.1 Position of a Qazi in Shariah

The institution of Qazi has a special status in shariah and is deeply rooted in the core

teachings and values of Islam. As such, it is naturally unexpected of a Muslim Qazi

giving an order or holding views in contravention of the Divine Law, or else, he

would be considered as ‘fasik’, or ‘zalim’ or ‘kafir’ (apostate) depending on the stand

he takes in a judgment.60

57
Zain al-Abidin, 252.
58
Amir Ali, A Short History of the Saracens, Islamic Book Service, India, nd, 62.
59
Husain, Wahid, the Administration of Justice during Muslim Rule in India, Calcutta, nd, p.10.
60
The Holy Quran, Surah al-Maa’idah:44 – 47.

70
2.2.1.12.2 Appointment of Qazis

The Qazis were appointed to perform the functions of the court of justice. They used

to be appointed by the Emperor himself, or by the Wazir or by the provincial

Governor vested with necessary power of doing so. All the officers including Qazis

were required to sign a covenant for the proper discharge of duties.

2.2.1.12.3 Jurisdiction and function of Qazis on Awqāf

A Qazi’s jurisdiction and function were similar to that of a judge of Anglo-Saxon

court. It has been reported:

The Kazi is assisted by Mufti61 and Muhtasib62 in this court. After

hearing the parties and the evidence, the Mufti writes the fatawa or the
law applicable to the case in question and the Kazi pronounces
judgenent accordingly. If either the kazi or Muhtasib disapproves of the
Fatawa, the case is referred to the Nazim who summons Ijlas or
Assembly consisting the Kazi, Mufti, Muhtasib, Daroga-i-Adalat63 the
Moulvis64 and all learned in law to meet and decide upon it. Their
decision was final.65

In Bengal, especially during Nawab’s regime, Qazi’s tribunal took cognizance

of causes concerning, inter alia, testaments and the appointment of mutawallis. In the

name of Sadr or Civil Judge, kazi’s duty was:

To maintain lists of rent-free lands and daily allowances to pious

men, scholars and darvisheses, to supervise the endowments created by
the Emperor and the princes for charities, and to see that the grants were
rightly applied to the purposes for which they were made; further he
was required to note deaths and scrutinise the applications for fresh
grants.66

Further, it has been said that in addition to the judicial duties of the court, a

Qazi was vested with the general authority to perform quasi-judicial works as to the

61
A lawyer, the judges used to accept the view of the law given by him. See Husain, 90.
62
He was the censor of morals…in charge of prosecution. See Husain, ibid.
63
A court superintendent not required to be a lawyer, See Husain, ibid.
64
Learned men in Islamic law.
65
Husain, Wahid, 94.
66
Ibid. 78.

71
administration of Trust Properties, such as Waqf.67 In this connection, it has been

added that:

...although the powers of the Kazi are more comprehensive under the
Muhammadan law than those of a Mutawalli or trustee and the Kazi had
to protect such properties from waste and misappropriation, it appears
that he seldom interfered with the Management of such endowments by
non-Muslims. The Muslim rulers of India adhered to this policy leaving
the Hindus to manage their own endowments and trust properties to
their temples.68

While describing the Muslim Ruler’s courts of religious laws it is stated:

the Kazi dealt with questions which were popularly felt to be closely
connected with religious disputes in points of family law or inheritance
and legal questions concerning religious foundations (Awqāf).69

2.2.2 Awqāf Administration During British Rule

During British period the institution of waqf was brought under direct control of the

government when British Government enacted governing statutes on waqfs,70 some of

which are still in existence in the Indian Subcontinent. Thus, waqf, as an Islamic

institution, was introduced in the subcontinent during the Muslim rule, but was given

a definite and permanent structure, for the first time, by the Government.

2.2.2.1 The East India Company and the beginning of British influence

The battle of Palashi in 1757 was a turning point in the history of the subcontinent as

the East India Company’s victory in this battle was the beginning of British influence

in the administration of justice.71 It is observed in a report by the Parliamentary

Committee of Secrecy in 1772 that:

67
Ibid.
68
Ibid.
69
Ibid.
70
Such as the Waqf Act of 1913, 1923 and 1934.
71
The subsequent history is the mixed facts of hostilities and treaties between the Company and the
Muslim rulers. After the vitory in Palashi, the Company had to fight other battles and finally won the

72
 During the first period of Meer Jaffier’s government, although he had
been raised to the Nababship by the power and influence of the English,
the administration of justice continued in its former course, without any
interruption or alteration from that power, that, during the government
of Cossim Ally Cawn, the English influence began to operate... because
from that time many English, with or without the consent of the
presidency, dispersed themselves over the country, and engaged in its
interior commerce, which often led them to interfere with the judicature
and government of the country... The third revolution made by the
English, in restoring Meer Jaffier, necessarily added to their power and
influence in the whole administration of government in Bengal, and of
course rendered the administration of justice in the judicatures of the
country very liable to be swayed or influenced by any servant of the
company, whose situation gave him an opportunity, and whose interest
afforded him incitement, to interfere in any of their judicial
proceedings.72

The report adds further:

...that since the establishment of he English power in Bengal on

its present footing, the banyans of English gentlemen, wherever they
reside, entirely govern the course of judicature, and that they even
frequently sit as judges in these courts.73

In 1765 the administration of justice in Bengal took another shape, on the basis

of a farman74 issued to the Company by the Emperor Shah Alam.

It is interesting to note that when the Portuguese, the French, and the British

acquired territories in India, and especially when the British East India Company

became de facto Sovereign of Bengal, Bihar and Orissa in 1765, the need to

administer justice devolved upon the unqualified and at first reluctant European

adventurers who found themselves vested with political power.75

On the 12th August, 1765, Emperor Shah Alam of Delhi, made a perpetual

grant to the East India Company of the Diwani of the three provinces of Bengal,

Bahar, and Orissa. The farman reads as follows:

battle of Buxer in 1764 leading to a treaty in February 1765, confirming all the previous grants to the
Company.
72
The Sixth Report by the Parliamentary Committee of Secrecy, 1772, as cited in Hoque, M.N. 75.
73
Ibid.
74
Meaning a Royal proclamation.
75
Husain, Wahid. 78.

73
 We have granted them the Diwani of Bengal, Bihar and Orissa, from
the beginning of the Fasl-i-rabii (spring harvest) of the Bengal year
1172, as a free gift and altamgha76 without the association of any other
persons, a with an exemption from the payment of the customs of the
Diwani, which used to be paid by the court. It is requisite that the said
Company engages to be security for the sum of twenty-six lakhs77 of
rupees a year, for our royal. revenue, which sum has been appointed
from the Nawab Nadjam ud Daulah Bahadur, and regularly remit the
same to the royal Sarkar (Government); and in this case, as the said
Company are obliged to keep up a large army for the protection of the
province of Bengal, we have granted to them whatsoever may remain
out of the revenues of the said provinces, after remitting the sum of
twenty six lakhs of rupees to the royal Sarker and providing for the
expenses of the Nizamat.78

Thus, there were limitations imposed by the farman on the administration by

the Company. The de jure Sovereign was still the Mughal Emperor of Delhi.

Therefore, it is apparent that the waqf matters were still in the hands of the Emperor’s

personnel. But very soon some forms of involvement in the administration of justice

were started by the personnel of the Company. For example, it has been reported:

Mr Sykes, who was appointed Resident at the Durbar in October,

l765,...applied to the Government for the establishment of some new
courts of judicature, but without proposing any alternations in those
already established.. ,

Mr Becher, who succeeded Mr Sykes in January, 1769, as Resident at

Durbar, informed.., that he allotted one day in every week to inspect the
proceeding of the Supreme Courts at Moorshedabad, he added, that, as
Resident at the Durbar, he possessed a very extensive authority, but that
he could safely aver had always used it to promote justice, and protect
the natives from injury.

Mr Jekyl, ..., said, that whilst he was at Patna, in 1771, the members of
the Company’s council sat alternatively the revenue Court at that place,
together with the Rajah.79

This is how British influence was exerted through East India Company in

the administration of justice in India. Ultimately, the actual administration began

76
A Royal grant in perpetuity.
77
1 lakh= 100,000 Rupees.
78
Husain, W. 92.
79
See: Sixth Report by the Parliamentary Committee of Secrecy 1772 as cited in Hoque, M.N. 75.

74
from 1771 when the Court of Directors announced their intention of standing

forth as Diwan (Fiscal Register).

2.2.2.2 Waqf administration under the Regulation III of Bengal Code of 1810

The East India Company handled waqf matters under the first regulation in this

respect, when the Regulation III of Bengal Code of 1810 was enacted in the early

period after obtaining the diwany.80 For a clear picture as to the exercise of

jurisdiction by the EICo over waqf matters, we would like to look into the decisions of

the courts set up by the said authority. It is important to note that the waqf litigations

were dealt with in the Sadar Diwany Adalat (Central Revenue Court).81

In an early case of 1798 Moohummud Sadik v Moohummud Ali and Others82

the fatawa as to the basic principles of waqf had been clearly recorded. Needless to

say, as we shall see below, the fatawa was necessarily to be expounded by the Muslim

native judicial officers. How they used to expound the law, we can see from the

following:

We have considered the proceedings in the case, and shall preface our
futwa by stating that wukf, according to the opinions of Yusuf and
Moohummud (which on this point are adopted as law), implies the
relinquishing the proprietary right in any article of property, such as
lands, tenements, and the rest: and consecrating it in such manner to the
service of God, that it may be of benefit to men; provided always, that
the thing appropriated be, at the time of appropriation, the property of
the appropriator; as is specifically stated in the Buhr-i-Rayik. Towleut83
implies the consignment of the thing appropriated, by the appropriator,
to another person, for the purpose of such person’s applying it in the
manner designed; and the appointment of the trustee or superintendent
is vested in the appropriator, or order that he may, confer the office, on
a person of integrity, morality, information and economy: and, on the

80
Patra, AC, The Administration of Juctice under the East India Company in Bengal, Bihar and Orissa,
London, 1962. 50.
81
Ibid.
82
(1798) 1 SDA, 22.
83
Towleut means the governance of the trust. Towleut nama means a deed of transfer for the
governance. Specially it is related to the superintendence of mosque and religious establishments.

75
 death of the appropriator, the power of appointing a superintendent is
vested in his executor, should he have left no executor, in the cazee84
and hakim, that is, the magistrate and the sovereign. It is stated in the
Buhr-i-Rayik, in a quotation from the Futawa-Soghra that in the event
of the demise of the superintendent while the appropriator is in
existence, the latter, and not the cazee, is authorised to appoint another
superintendent, and that, if the appropriator be dead, his executor has a
title superior to the cazee’s; and, in the event of the appropriator not
having appointed an executor, the nomination falls to the cazee and
hakim.85

The plaintiff brought this case to prevent the defendant’s interference of the

plaintiff in the superintendence of the tomb of Sheikh Moohwomud Ali Huzeen, a

Muslim saint, and of other buildings; which superintendence the plaintiff stated

himself to have held thirty years, under an assignment from Moohumoud Hoosein,

executor to the will of Ali Huzeen; and under confirmatory sunnuds from the ruling

powers of the time. A decision was passed in city court which directed that the

defendant, agreeably to the order of the former court, should confer the

superintendence on either of the sons of the plaintiff whom he might deem qualified;

and should not dismiss him except on proof of misconduct to the satisfaction of the

court.

The Provincial court in appeal, reversed the above decision, after taking an

opinion from their law officers; and decreed, that the sons of the plaintiff should share

the superintendence amongst them, and the emoluments accruing, the heir of the

executor having no right of interference.

In appeal from the above decree to the Sadar Diwany Adalat, the proceedings

were given to the ‘Mohummudan law officers’ for their perusal and opinion. The most

interesting side of this case is its judgment. So, we quote the exact wordings of this

court of early days of the East India Co.

84
Same as Qazi.
85
From the judgment of the case, mentioned in footnote no. 82.

76
 “..it appears that the spot on which Sheikh Ali Huzeem erected his
tomb, was a rugged uneven jungle; and that the Sheikh, after clearing it,
allotted part of it for a burial ground, and appropriated the remainder for
a mosque; and that, contiguous to the spot in question, is an old
apartment, denominated the astanah (or abode) of Fatima, Syudut-on-
nisa,86 and another called the punja (or hand) of Shah Huzrut Murdan.
This is moreover specifically stated in the Soorut-hal, or written
statement, made out by the Sheikh himself; ... The superintendent
having, on his death bed, assigned the superintendence of the tomb to
his own sons, as proved by the evidence of witnesses, such assignment,
according to good authorities is valid. It is stated in the Buhr-i-Rayik,
the Tatarkhanea, the Zeheerea, the Himadea and the Fussol-ol-Amadea,
that if the superintendent desires, on his death bed, to bequeath the
superintendence to another, it is allowable for him to do so: but he
would not be authorised to appoint a successor in his life time, and
during health; unless the consignment of the superintendence to him
have been general, that is, with permission (from the appropriator or his
executor, as he may have received it from either), to confer it on
another; in which case he may be authorised to appoint a successor
during health. It is likewise stated in the Buhr-i-Rayik, that if the death
of the superintendent happen subsequently to that of the appropriator
who appointed him, the cazee shall appoint a successor. It is, however,
stipulates as a condition, in the Moojtuba, that the superintendent shall
not, on his death bed, have bequeathed it to any person, and that, in the
event of his having bequeathed it, the cazee is not authorised to appoint.
There are also other authorities to this effect, from which it is clear, that
the superintendent is authorised, on his death bed, to appoint a
successor, though the appropriator have not given him general
permission. The sovereign, then, according to the best authorities, is not
authorised to remove the sons of the plaintiff and to confer the
superintendence on the defendant, unless it shall appear that they have
been guilty of dishonesty with respect to the property appropriated, in
which case the sovereign may remove them, and appoint a person of
integrity in their stead. The superintendence in question belongs to all
the sons of the plaintiff, and is not the exclusive right of any one of
them. The temple dedicated to Fatima, and the Punja of Huzrut Shah,
not having constituted the property of Au Huzeen, he having himself
declared them to be ancient edifices, plaintiff was not entitled to them
under the towleut-nameh from the executor. But he might have had the
superintendence of them, had it been conferred on him by the ruling
powers; which, however, does not appear. The sovereign, therefore,
may now, as shall be thought proper, relinquish the superintendence of
these to the sons of the plaintiff or assign it to the defendant, or any
other individual.
In conformity with the above exposition of the law, the Court of Sudder
Dewanny Adawlut (present W. Cowper) adjudged, that the
superintendence of the tomb of Sheikh Ali Huzeen was vested in all the

86
Named after the daughter of the Prophet s.a.w.

77
 sons of the late plaintiff and was to be held by them in common with all
appurtenances and just emoluments annexed to it, until they should be
removed by Government for misconduct in the discharge of the trust
confided to them. With respect to the sacred building dedicated to
Syudut-on-nisa and the Punja of Shah Huzrut, of which, as they were
not the property of Ali Huzzeen, the superintendence could not be
legally conferred by the towleut-nameh of his executor, and was now to
be conferred as Government should think fit, it was directed as they had
been long under the superintendence of the plaintiff and were in his
possession when this suit was commenced, that they should remain with
the sons of the plaintiff until Government should appoint a
superintendent; or some other person should show a good title to the
possession of them. It was further directed that the heirs of the plaintiff
should be indemnified by the defendant for all losses sustained by them
or their father, in consequence of being molested by the defendant in the
exercise of the superintendence vested in them”.87

Likewise, in Khodabandha Khan v Musst Oomutul Fatima and Others,88 the

Court said that the term waqf, as used in the Islamic law was imported in which

proprietary right was relinquished, and which was consecrated in such a manner to the

service of God, that it may be of benefit to man. In this case the question arose,

whether the provision made for the reading of Koran at, and lighting of, the tomb of a

testator could be looked upon as creating waqf property? The Court said in the

negative on the basis of the above principle.

2.2.3 Evolution of Awqāf legislations in the Greater Indian Subcontinent

As mentioned earlier, the British involvement with awqāf in Indian subcontinent

began under the Regulation III of Bengal Code of 1810. All the subsequent Waqf Acts

of the entire Subcontinent, including Bangladesh, are the by-products of some British

Regulation evolved with reference to awqāf since 1810. As such, the period of

evolution may be divided as: 1810-1947(undivided Indian Subcontinent); 1947-

87
From the judgment of the case mentioned in footnote no 82.
88
(1857). 1 SDA, 235.

78
1971(Pakistan period after Independence from British Government); 1971- to date

(Bangladesh after independence from Pakistan.).

2.2.3.1 Waqf legislations in undivided Indian Subcontinent from 1810 to1947

During this period the Indian subcontinent was under the British control yet totally

undivided. This was the period when the British government’s interference with the

waqf administration was substantial. This resulted in the enactment of various

legislations with regard to waqf as follows:

2.2.3.1.1 Regulation III of Bengal Code of 1810

This was the first regulation in respect to waqf administration that allowed the British

authority to interfere with the waqf management directly or indirectly.89 The

preamble of the Regulation III of Bengal Code of 1810 states:

Whereas considerable endowments have been granted in land by the

preceding governments of this country, and by individuals, for the
support of mosques, Hindu temples, colleges and other pious and
beneficial purposes, and whereas there are grounds to suppose that the
produce of such land is used in many instances contrary to the intentions
of the donors and whereas it is an important duty of every Government
to provide that all such endowments be applied to the real interest and
will of the grantor …..the following rules have been framed.90

2.2.3.1.2 Regulation VI of Madras Code of 1817

Subsequently, in 1817, the Regulation VI of the Madras Code was enacted that

authorised the Board of Revenue and the Board of Commission to exercise general

superintendence of endowments including waqf.91

89
Hoque, M.N. 122.
90
Ibid. also see Hasanuddin & Ahmedullah. 39.
91
Rashid S.K., Awqaf Legislation in South Asia: A Comparative Study, an article published in the book
‘Awqaf Experiences in South Asia’ edited by him, Institute of Objective Studies, New Delhi, 2002. 64.

79
2.2.3.1.3 Religious Endowment Act 1863 (No. 20 of 1863)

Both the previous regulations of 1810 and 1817 were repealed by this Act92 that

introduced substantial change in the Government policy regarding responsibility for

the protection and preservation of the waqf properties.93 According to this Act all

endowment properties including waqf94 relating to mosques, temples and other

religious establishments under the possession of the Board of Revenue or local agents

were transferred to Trustees, mutawallis, managers, or superintendents and local

Committees were appointed to exercise the powers of the Board of Revenue.95

2.2.3.1.4 Hussainabad Endowment Act 1878 (No. 15 of 1878)

This Act was enacted exclusively for supervision of the Hussainabad Imambara in

Lucknow province.96

2.2.3.1.5 Charitable Endowments Act 1890 (No. 6 of 1890)

This Act was enacted to cover the public endowments including waqf of non-religious

character,97 such as; medical aid, relief to poor and any other object relating to Public

utility. It did not apply to institutions of a purely religious teaching or worship.98

2.2.3.1.6 Civil Procedure Code 1908 (No. 5 of 1908)

Only Section 92 and 93 of the Code are relevant to waqf administration. By virtue of

theses two sections, in the event of mismanagement of a public waqf, two or more

92
Ibid.
93
Hasanuddin & Ahmedullah, 39.
94
Rashid S.K. 64.
95
Ibid.
96
Rashid S.K. 65.
97
Ibid.
98
Hasanuddin & Ahmedullah. 40.

80
persons interested in the matter could bring a suit against a trustee or mutawalli after

obtaining permission from the Advocate General.99

2.2.3.1.7 Mussalman Waqf Validating Act 1913 (No. 6 of 1913)

This Act was enacted after the Privy Council’s judgment in Abul Fata Muhamed’s

case in 1894. Prof. Rashid describes this Act merely as a ‘declaratory law’ 100 as the

sole purpose of this law was to validate waqf ala al-aulad, otherwise it neither contains

any substantive nor procedural law relating to waqf except a definition of waqf which

has since been repeated in the various waqf legislations throughout South Asia.101

Later in 1930 this Act was amended to give it retrospective effect.

2.2.3.1.8 Charitable and Religious Trusts Act 1920 (No. 14 of 1920)

This Act applied only to waqfs created for public charity, and it did not apply to

private waqfs,102 This Act did not provide for any administrative mechanism to

exercise supervision over the waqfs. But an interested party could apply to the court of

the District Judge to seek information, from the trustee regarding value, condition,

management, nature and object of a waqf. The court direction could be obtained to get

the accounts examined and audited. However, this Act was found to be ineffective103

and was repealed, making way for the Mussalman Waqf Act of 1923.

99
Rashid S.K. 65.
100
Ibid.
101
Ibid. Refernce is made to the waqf legislations of India, Pakistan, Bangladesh, Srilanka and
Myanmar.
102
Hasanuddin & Ahmedullah. 43.
103
Rashid S.K. 66. According to him the Act was a ‘total failure.’

81
2.2.3.1.9 Mussalman Waqf Act of 1923 (No. 42 of 1923)

This Act was passed requiring mutawallis of public waqf to furnish detailed

particulars of a waqf to the court of the District Judge regarding description of the

property, gross annual income, gross income accumulated during previous five years,

amount payable as revenue, rents, annual estimate or expenditure incurred, etc. This

resulted in causing heavy burden of work of Civil Courts.104 “It was too much to

expect from the court”, observes Prof. Rashid. 105 Since there was no separate

administrative machinery for the supervision of Waqf administration, the Act was also

found to be ineffective and was repealed by Waqf Act 1954.

2.2.3.1.10 Bengal Waqf Act 1934 (No. 13 of 1934)

Awqāf properties in the Bengal106 came under government supervision when The

Bengal Waqf Act 1934 was passed.107 This Act is considered to be a more

comprehensive Act as it introduced, for the first time, the idea of Waqf Board and

Waqf Commissioner.108 According to the Act an autonomous Waqf Board was created

which was administered by a Waqf Commissioner.109

2.2.3.1.11 Mussalman Waqf (Bombay Amendment Act 1935 (No.18 of 1935)

This Act amended the Mussalman Waqf Act of 1923 for it to be applied in Bombay

and to make it more effective. It was later repealed.110

104
Hasanuddin & Ahmedullah. 43.
105
Ibid.
106
Present day Bangladesh.
107
Sadeq, A. H. M. Awqaf in Banglades.161.
108
Hasanuddin & Ahmedullah, 45.
109
Ibid.
110
Rashid S.K. 67.

82
2.2.3.1.12 U.P.Muslim Waqf Act 1936 (No. 13 of 1936)

One of the main characteristics of this Act was that it provided for the establishment

of a Waqf Board for Shia and Sunni Awqāf. Later in 1960 it was replaced by the U.P.

Waqf Act, 1960.

2.2.3.1.13 Dargah Khwaja Shaheb Act 1936

This Act was enacted precisely for the regulation of the affairs of Ajmeer Dargah.

This Act also provided, inter alia, for the Khadim to receive nazar and a Dargah

Committee was established. The Act was replaced by the Dargah Khwaja Shaheb Act

of 1955.

2.2.3.1.14 Hyderabad Endowment Regulation, 1939

This Regulation 1939 allowed all endowments including awqdf to be directly

governed by the government. The law ceased to apply to waqfs since 1957 when

WaqfAct, 1954 was extended there.

2.2.3.1.15 Bihar Waqf Act 1947

This Act provided for separate Majlis-e-Awqāf for Shia and Sunni Awqāf in the State.

However, it had no provision for survey and the Act suffered with many defects.111

This Act provided for protection and administration of waqf properties and also for

achieving the objectives of dedication of waqf properties. This Act was, however,

replaced by the Central Waqf Act, 1954, which came into force in the State of Bihar

on 12th of April 1973.112

111
Ibid.
112
Hasanuddin & Ahmedullah. 97.

83
2.2.3.2 Division of the Subcontinent in 1947 into Two Countries, namely India and

Pakistan

In August 1947 India and Pakistan emerged as two separate nations after getting

independence113 from British Government. Pakistan’s geographical territory,

however, was in two parts. The western part, called West Pakistan, fell towards the

west of India while the eastern part, called East Pakistan,114 fell towards the east of

India. Since 1947 Bangladesh (then East Pakistan) came under Pakistan rule. As such,

we will now focus on the legislative development during the Pakistan period between

1947 and 1971.

2.2.4 Waqf Legislations in force in East and West Pakistan Between 1947 to 1971

Many of the pre 1947 enactments were adopted by Pakistan after independence. Some

of those enactments are still in force in Pakistan, while some others were repealed at a

later date as mentioned bellow.

2.2.4.1 Mussalman Waqf Validating Act 1913

This Act continued to apply in Pakistan as the sole purpose of this law was to validate

waqf ala al-aulad, which was of equal importance in Pakistan. It was repealed by the

West Pakistan Waqf Properties Ordinance, 21 of 1959.

2.2.4.2 Mussalman Waqf Act of 1923

This Act was applicable to East and West Pakistan until 1959. The Act required every

Mutawalli to furnish all the relevant information and accounts of the waqf to the

Court. This Act heavily relied on the Courts to inspect the details of each waqf.

113
Pakistan celebrates its Independence Day on 14 August, while India does on 15 August.
114
Present day Bangladesh.

84
Pakistan repealed this Act in 1959 after independence from Britain by the West

Pakistan Waqf Properties Ordinance, 21 of 1959.

2.2.4.3 Mussalman Waqf (Sindh Amendment) Act 1935

This Act remained in force in Pakistan and was repealed only in 1959 by the West

Pakistan Waaf Properties Ordinance, 21 of 1959.

2.2.4.4 Mussalman Waqf (Bombay Amendment) Act, 1935

This Act was applicable in the District of Karachi until 1961. Later this Act was

repealed by the West Pakistan Waqf Properties Ordinance, 28 of 1961.

2.2.4.5 The Music in Muslim Shrines Act, 1942

This Act imposed a ban in the province of Punjab on female performer’s dance and

music performance in the Muslim shrines. The Act makes it a penal offence for “any

woman or girl sings to the accompaniment of a musical instrument or dances with or

without a musical instrument in a Muslim Shrine, she shall be guilty of an offence

under this Act and shall be liable on conviction to be punished with fine not exceeding

five hundred rupees or with imprisonment of either description for a term not

exceeding six months or with both such fine and imprisonment”.115 According to

section 4 of the Act, any person abetting the offence was also punished. This Act is

still in force.116

115
Section 3, The Music in Muslim Shrines Act, 1942 (Punjab Act VII of 1942)
116
Rashid S.K. 71.

85
2.2.4.6 NWFP Charitable Institutions Act 1950

According to this Act, In North West Frontier Province, an Administrator of

Charitable Institutions was appointed to administer awqāf and Failure to surrender

endowed property to Administrator was made a penal offence. This Act was repealed

by West Pakistan Waqf Ordinance, 1961.

2.2.4.7 Punjab Muslim Auqaf Survey Act 1950

This Act provided for appointment of Nazim-i-ala-i-Auqaf with whom every waqf

shall be registered. Nazim had powers of a civil court under CPC, 1908. Failure of

Mutawalli to register the waqf with Nazim was made penal offence. The Act was

amended in 1951 (No. 17 of 1951) to make it more effective. The Act was repealed by

Punjab Muslim Auqaf Act, 1951.

2.2.4.8 Punjab Muslim Auqaf Act 1952

The Act provided for a 12 member Board of Waqf to be elected by Muslim members

of Punjab Assembly, two of whom must be Shia. Registration of awqāf with Board

was made compulsory. Adalat- i-Auqaf (Waqf Tribunal) was established for deciding

waqf cases, but in accordance with Civil Procedure Code, 1908. Five percent

contribution to be made by every waqf towards administration costs. Audit by auditor

appointed by government, but report to be made to Board. This Act was repealed by

West Pakistan Waaf Properties Ordinance, 1959.

86
2.2.4.9 West Pakistan Ordinance No.21 of 1959 – W.P. Waqf Properties Ordinance

The Ordinance defined waqf very comprehensively.117 The Waqf Board was

abolished by this Ordinance. It provided for the appointment of the Administrator of

Waqfs, assisted by his Deputies and staff. No jurisdiction of Civil or Revenue Courts

in many matters where waqf administrator exercised his powers. This ordinance was

repealed by West Pakistan Waqf Properties Ordinance, 28 of 1961.

2.2.4.10 West Pakistan Ordinance, 28 of 1961-W. P. Waqf Properties Ordinance

It is identical to the 1959 Ordinance except that now rent and lease monies in respect

of waqf properties may be recovered as arrears of land revenue; that Administrator

may call for returns from mutawallis, and disobeying Administrator’s directions was

made punishable with fine. The Ordinance was later repealed 1976 by the Auqaf

(Federal Control) Act, 56 of 1976.

2.2.4.11 East Pakistan Waqfs Ordinance, EP Ordinance 1 of 1962

This Ordinance provides for the appointment of an Administrator, his Deputy and

Assistants, who are given vast powers. The Ordinance provides for a Waqf Committee

to be established at the national level. Punishments for erring mutawallis were laid

down in the Ordinance.118

2.2.4.12 Waqf Legislations Relevant and Applied in Bangladesh from1971 to Date

Some of the pre 1947 and post 1947 enactments were adopted by Bangladesh after

independence in 1971. Some of those enactments are still in force in Bangladesh,

while some others were repealed at a later date as mentioned bellow.

117
Ibid.
118
This Ordinance, EP Ordinance 1 of 1962, was the last enactment before East Pakistan got separated
from West Pakistan in 1971 and emerged as Bangladesh.

87
2.2.4.13 The Religious Endowments Act 1863 (No. 20 of 1863)

Section 4 of the Waqfs Ordinance 1 of 1962 provides for the application of the

Religious Endowments Act 1863. The section provides that the Government may, by

notification in the official gazette, exempt any waqf property, which has been retained

under the superintendence of the Board of Revenue in accordance with the provisions

of section 21 of the Religious Endowments Act, 1863 (Act XX of 1863) from all or

any of the provisions of this Ordinance, as long as such property remains under such

superintendence. Some of the awqāf are still under the superintendence of the Board

of Revenue. So long they so remain, the Waqfs Ordinance, 1962 would not apply to

them.

2.2.4.14 Mussalman Waqf Validating Act 1913 (No. 6 of 1913)

The Act which validated waqf ala al-aulad in the whole Indo-Pakistan sub-continent,

still applies in Bangladesh.

2.2.4.15 Mussalman Waqf Act No. 42 of 1923

The Act solely relied on District Courts to exercise supervisory control on awqāf

without giving them any regulatory power to do so. The Act could not do much, and

was repealed by the Bengal Waqf Act, 13 of 1934.

2.2.4.16 Bengal Waqf Act No. 13 of 1934

In 1947 this Act was adopted for East Pakistan and even after the Waqfs Ordinance, 1

of 1962, this Act continues to apply to waqfs in so far as its provisions do not come in

conflict with the Ordinance. It provided for Waqf Boards and a Waqf Commissioner

88
and for Shia representation on the Board. But after 1962, the Administrator of Waqfs

appointed under the 1962 ordinance looks after waqfs.

2.2.4.17 East Bengal Act No. 22 of 1951

East Bengal Act No. 22 of 1951-Bengal Waqf (Extension to Sylhet) Ordinance, 1950.

Bengal Waqf Act, 1934 which was applicable to East Pakistan, except the district of

Sylhet, where the Mussalman Waqf Act, 1923 applied, was extended to Sylhet also. It

was repealed by itself.

2.2.4.18 East Bengal Act No. 12 of 1952 - East Bengal board of Waafs (Validation)

Act,1952

To remove difficulties as to the preparation of electoral rolls for the election of

members of Waqf Board, and also to declare valid the constitution of Board of Waqfs,

East Bengal on 9th Sept., 1948.

2.2.4.19 The Waqfs Ordinance, 1 of 1962

The Ordinance’s original title was the East Pakistan Waqfs Ordinance, 1 of 1962. The

words ‘East Pakistan’ were dropped by P0 48 of 1972. This enactment did not repeal

those provisions of the Bengal Waqf Act, 1934 which were not inconsistent with this

Ordinance. This Ordinance provides for the appointment of an Administrator, his

Deputy and Assistants, who are given vast powers. Waqf Committee to be established

at the national level. Punishments for erring mutawallis were laid down.

89
2.2.4.20 Islamic Foundation Act 1975 - No. 17 of 1975

An Islamic Foundation for founding, managing and assisting mosques and Islamic

centres, academic institutions, etc. A board of Trustees appointed by the government

runs the Foundation.

2.2.4.21 The Chittagong Shahi Masjid Ordinance1986-No.2 of 1986

To establish a separate committee for managing he historical Shahi Masjid of

Chittagong.

2.2.4.22 Waqf Legislation Currently in Force in Bangladesh

1. Mussalman Waqf Validating Act, 6 of 1913 (as amended in 1930);

2. Bengal Waqf Act, 13 of 1934 (in so far as it is not inconsistent with any

provision of the Waqfs Ordinance, 1 of 1962).

3. Waqfs Ordinance, 1 of 1962.

4. Islamic Foundations Act, 17 of 1975.

5. Chittagong Shahi Masjid Ordinance, 2 of 1986.

2.2.5 The Present Status of Administration

Waqf administration in Bangladesh is under the Ministry of Religious Affairs, and run

by Bangladesh Waqf Board which is headed by an Administrator of Waqf who is

assisted by a total of 85 officers and employees.119 According to a census of waqf

estates conducted countrywide in 1986, Bangladesh has a total of 150,593 waqf

119
Sadequr Rahman, Waqf Shompotti Proshonge (An appraisal of waqf properties) an article published
in six installments from 17.06.2003 to 24.06.03 in The Daily Sangram (a Bengali news paper published
daily from Dhaka), see http://www.dailysangram.com

90
estates.120 This number is expected to have increased in the last 20 plus years as pious

Muslims in Bangladesh continue to dedicate properties as Awqāf. The total of only 85

officers and employees seem far lower than necessary for proper administration and

management of such a huge number of waqf estates in the country. Bangladesh has 64

administrative districts. Due to lack of manpower, 24 districts offices are managing

waqf estates of all 64 districts. The divisional offices of Dhaka, Khulna, Rajshahi and

Chittagong Divisions have been brought under direct control of the Head Quarter.121

2.2.5.1 Types of Waqf Properties in Bangladesh

Generally awqāf properties in Bangladesh consist of Mosques, Madrasah, Eidgahs,

Graveyards, Dargahs, Mazars, Pharmaceuticals, cultivable agricultural lands, barren

lands, forests, hillocks, urban lands and real estates. Recent years have seen the

emergence of a new trend of making waqf of intellectual properties, and of money in

cash or better known as cash waqf.

2.2.5.2 Unregistered Waqfs

Nevertheless, the lack of manpower is only the tip of the iceberg. In an interview the

Waqf Administrator has revealed that out of 150,593 waqf properties in the country, as

many as 131,375 are not registered and many of these are under illegal occupation.

The Waqf Administratior has no control whatsoever over these estates.122 These

properties are not only illegally occupied by private persons, but even the country’s

Police Headquarter in Dhaka stands on a waqf land.123 The above mentioned sad state

of affairs raise doubts about the efficacy of the existing waqf legislation, the waqf

120
Bangladesh Bureau of Statistics, Report on The Census of Waqf Estates 1986. 3.
121
Sadequr Rahman, no.119.
122
Ibid.
123
Ibid.

91
administration which operates under it, and the way in which the management of waqf

properties is handled.

2.2.5.3 The Problem of Adjudication

The problems, which the waqf institutions face in the country are numerous and of

enormous magnitude. Hundreds of waqf related cases are waiting for years to be

adjudicated by the various Courts and the Waqf Administrator’s office.124 This

number is increasing everyday. The statutory set up of waqf administration in

Bangladesh is empowered to look after awqāf and to administer Awqāf. But in many

instances mutawallies bring the waqf cases to the Court where every trick is employed

to get them decided in accordance with the convenience of parties. The Courts do not

have the means to make proper investigation into the affairs of waqf estates and go by

records that are tempered, and evidences given by hired witnesses. The waqf
125
administration is thus sidelined. However, sadly enough, the waqf administration

is also accused of giving less than impartial and just decisions, and complaints of

bribery against the waqf officials are not uncommon.126 In many cases, the integrity

of the waqf officials is questioned. The statutory checks imposed to check corrupt

practices are found to be inadequate and the amount of autonomy granted to the waqf

administration is one of the causes of cover-ups.

2.3 CONCLUSION

This chapter was a brief sketch of the rich history of awqāf development generally in

the greater Indian subcontinent and particularly in Bangladesh. This shows that

124
Ibid.
125
Ibid.
126
Ibid.

92
throughout history the development and good governance of awqāf have always been

a government priority for welfare of the society. This was because awqāf was able to

cater for services, facilities and amenities that could have otherwise been a burden on

the government in terms of expenditure and revenue. We find that historically waqf

sector became an important tool for serving essential needs of people and saving

government revenue that significantly contributed in reducing government

expenditure for various services to people. This tells us clearly that waqf can still

contribute in a similar way to cater for services that would afford public good and

bring ease to revenue. To do that, however, waqf sector needs a revamp in terms of

restructuring and redesigning a workable model for Awqāf.

There appears a clear need to refurbish and review the waqf related laws in the

country and to see how it could be made relevant to the changed circumstances. A

resolution was adopted at the seminar held on ‘Awqāf Experiences In South Asia’127

in New Delhi, where it was resolved, with regard to Bangladesh, that the

implementation of Waqf Ordinance 1962 without repealing the Bengal Waqf Act 1934

has brought uncertainty to the law of waqf and that the enactment of a new waqf law is

necessary. Another resolution specifically highlighted the need for amending section

86 of the Waqf Ordinance 1962 which empowers the Administrator to realise from an

individual waqf all costs and legal expenses incurred by the Administrator.128 This

shows the need of a thorough and critical appraisal of all the laws applicable to awqāf

in Bangladesh to judge their appropriateness of meeting the current need of effective

waqf management.

127
Held in May 1999, jointly organised by the Institute of Objective Studies, New Delhi, the Islamic
Development Bank, Jeddah, the Kuwait Awqaf Public Foundation, Kuwait and Ta’awun Trust, New
Delhi.
128
Resolution No. 17 & 18 of above mentioned seminar.

93
 Waqf properties in Bangladesh have immense potential of being developed into

income earning ventures generating enough income to support social service

programmes in the area of education, health and social sectors, thereby reducing the

expenditure of the government in these areas. It is estimated that proper development

of waqf estates could generate an income of at least 100 million Taka129 a year, which

could meet part of socio-economic needs of the Muslims.130 This is a substantial

amount of income, particularly for a populous third world country. Based on the

above description, it would be correct to say that waqf sector in the country represents

an underdeveloped, underutilised segment of a national asset, which is waiting for

proper and better management and legal regulation.

129
US$ 1= 80 Taka approximately.
130
Sadequr Rahman, no.119.

94
 CHAPTER THREE

A SOCIO-LEGAL PROFILE OF AWQĀF PROPERTIES IN

BANGLADESH

3.1 INTRODUCTION

Bangladesh has six administrative Divisions1 and sixty four administrative districts.2

Dhaka is the capital of Bangladesh, where the Office of the Waqf Administrator

(OWA) is located. This chapter attempts to examine the present administrative and

legal framework, under which the waqf properties in Bangladesh are managed in

divisional and district levels.

Then we will empirically analyse the socio-legal profile and explore potential

yet unexplored expenditure options of the waqf institutions in Bangladesh. The issues

relating to expenditure are discussed alongside the discussion on socio-legal profile

with the view to examine whether or not the current socio-legal profile of the

Bangladesh waqf estates is compatible with potential expenditure options.

With data collected from several sources this study first analyses the socio-

legal profile of the waqf estates in Bangladesh. Several issues of the waqf estates such

as their number, registration type, beneficiaries, mode of management, properties,

income and expenditures are mainly discussed in this section. The study then

1
The six administrative divisions are Dhaka, Chittagong, Rajshahi, Barisal, Khulna and Sylhet. Each
of these Divisions has a number of Districts under their administrative control.
2
There are total sixty four Districts in six Divisions. They are as follows; Dhaka Division: Dhaka,
Gazipur, Manikgonj, Narayangonj, Munshigonj, Narshingdi, Faridpur, Rajbari, Gopalgonj, Madaripur,
Shariatpur, Jamalpur, Sherpur, Kishorgonj, Mymensing, Netrokona, Tangail. Chittagong Division :
Chittagong, Bandarban, Cox’s Bazar, Khagrachari, Rangamati, B.Baria, Chandpur, Comilla, Feni,
Laksmipur, Noakhali. Barisal Division: Barisal, Bhula, Jhalokathi, Perojpur, Barguna, Patuakhali.
Khulna Division: Khulna, Shatkhira, Chuadanga, Kushtia, Meherpur, Jessore, Jhenaidah, Magura,
Narail, Bagerhat. Rajshahi Division: Rajshahi, Gaibandha, Kurigram, Lalmonirhat, Nilphamari,
Rangpur, Pabna, Sirajgonj, Naogaon, Natore, Nawabganj, Bogra, Jaipurhat, Dinajpur, Panchagarh,
Thakurgaon. Sylhet Division: Sylhet, Moulvibazar, Sunamgonj and Hobigonj.

95
discusses and recommends some potential yet unexplored expenditure options for the

Bangladesh Waqf estates. It is expected that the empirical findings of this study would

be useful for the appropriate authorities in their efforts to operate and manage the

Waqf estates in an efficient and sustainable way.

3.2 STATISTICAL OVERVIEW OF AWQĀF IN BANGLADESH;

This section briefly analyses the socio-legal profile of the Waqf estates in Bangladesh.

Several issues of the Waqf estates such as their number, registration status,

beneficiaries, and mode of management, properties, income and expenditures are

mainly discussed in this section. It is expected that the analysis of socio-legal profile

of the Waqf estates would provide a clear and overall picture with regards to their

operation and management in Bangladesh.

3.2.1 Number of Waqf Estates by Type of Registration

This study found that there are a total of 144,934 waqf estates in Bangladesh. All of

them are registered primarily into three different types of registration (Figure 3.1). A

total of 88,733 (62%) waqf estates are found to be registered while 45,607 (32%) are

reported to be verbally3 registered. Six percent (7,940) of all the Waqf estates in

Bangladesh was also reported as traditionally4 registered.

3
A property that was only verbally declared as waqf by an individual and remained operative as such
without undergoing any formalilities of registration with waqf administration or revenue administration.
For details please see Report on the Census of Waqf Estates 1986, Bangladesh Bureau of Statistics,4.
4
A waqf property that has traditionally been operating for long as such and there is no record which
could help trace its founder. Such waqf properties include, but limited to, mosque and madrasahs. For
details please see Report on the Census of Waqf Estates 1986, Bangladesh Bureau of Statistics.4.

96
 Number of Waqf Estates in Bangladesh by the Type of
Registration

160,000 144,934
140,000
Total No of Waqf
120,000
88,733 Estates
Numbers
100,000
80,000 Registered
45,607
60,000
40,000 Verbal Registered
7,940
20,000
0 Traditional Registered
1
Type of Registration

Figure 3.1 Number of Waqf Estates in Bangladesh by the Type of Registration5

The above scenario clearly reveals that there is no mandatory implementation

of registration process required by section 47 of the Waqf Ordinance 1962 for the

Waqf estates in Bangladesh and thus they can still be registered both verbally and

traditionally. If there is no obligatory implimentation for the Waqf estates to be

formally registered it is very likely that the administration and management of awqāf

will become a great challenge in the country.

3.2.2 Beneficiaries of the Waqf Estates

The beneficiaries of the Bangladesh Waqf estates include public, heirs, religious

organisations / institutions, educational institutions and others (Figure 3.2). Among

the beneficiaries the religious institutions/organisations (orphanage, moktob, madrasa

and so on) have significantly benefitting from the operation of the Waqf estates in

5
All the 12 Figures in this chapter are prepared by the author and the data used in them (Figure 3.1 till
Figure 3.12) is obtained from the Report on the Census of Waqf Estates1986, published by Bangladesh
Bureau of Statistics, Government of Bangladesh in 1987. As no such census of waqfs has been
conducted ever since, this census still stands as latest.

97
Bangladesh. For example, there are currently 140,735 (76% of the total beneficiaries)

religious institutions benefitting directly from the operation of the Waqf estates in

Bangladesh. Moreover, a total of 33,408 (18% of the total beneficiaries) public

institutions have also benefited from the Bangladesh Waqf estates while a total of

6,397 (3% of the total beneficiaries) educational institutions are found to be the third

largest beneficiaries of them. However, the fourth and fifth largest beneficiaries of the

Bangladesh Waqf estates include heirs (3,381 or 2% of the total beneficiaries) and

others (1,910 or only 1% of the total beneficiaries), respectively.

Beneficiaries of the Waqf Estates in Bangladesh

160,000 140,735
Number of Beneficiary

140,000
120,000 Public
100,000 Heirs
80,000 Religious
60,000 Educational Institute
33,408
40,000 Others
6,397
20,000 3,381 1,910
0
1
Name of Beneficiary

Figure 3.2: Beneficiaries of the Waqf Estates in Bangladesh.

It is thus apparent from the above diagram that the Waqf estates in Bangladesh

are being operated with the view to primarily benefit the religious institutions, as

mentioned above. It is also apparent here that the educational institutions such as

schools and colleges have not benefited much from the Bangladesh Waqf estates. This

is actually consistent with traditional objective of formulating a Waqf by its Muslim

donor as he/she is bearing the religious principle/value in his/her mind. Waqf estates

98
usually form/appear with the view to benefit the poorest group of people residing in

any particular area and thus the heirs of the Waqf donor/s are reasonably excluded

from such beneficiaries. This study shows that a considerable number of heirs is also

benefiting from the Waqf estates donated by their family predecessor/s. This certainly

raises the question whether the Waqf estates in Bangladesh are operated efficiently

without any interventions from the heirs of their donors.

3.2.3 Mode of Management of the Waqf Estates

This study found that the Waqf estates in Bangladesh have five different modes of

management and they are mainly managed by heirs, trustee board, committee,

government and others. Most Waqf estates (146,483 or 94% of all the Waqf estates)

are currently managed and operated by the respective committees while only 8,145

(5% of all the Waqf estates) are managed by the heirs of the Waqf donors (Figure 3.3).

There are still considerable number of the Waqf estates that are managed by the trustee

board, government and others. For example, a total of 1,840 (1% of all the Waqf

estates) are managed/operated by others, which include management personnel not

officially authorised to manage the Waqf estates and they could be someone other than

the first four management group/committee. Even though a total of 743 (about 0% of

all the Waqf estates) Waqf estates are managed by the trustee board and 532 (also

about 0% of all the Waqf estates) are managed by the government, but such modes of

management appear to be not significant in comparison with other modes of

management.

99
 Waqf Estates by Mode of Management

160,000 146,483

Number of Waqf Estates

140,000
120,000 Heirs
100,000 Trustee Board
80,000 Committee
60,000 Government
40,000 Others
20,000 8,145
743 532 1,840
0
1
Mode of Management

Figure 3.3: Number of Waqf Estates by Mode of Management.

The above findings are highly anticipated as almost all the Waqf estates in

Bangladesh are managed by an established committee. In fact, the management of the

Bangladesh Waqf estates by their heirs is very much unanticipated due to the fact that

inheritance of those heirs may bring an impediment to their competitive, smooth and

efficient operation/management. But question still remains whether or not the

management/operation of the Waqf estates by the committee is efficient and worthy.

3.2.4 Land Possession, Income (in Taka/BDT) and Expenditure of the Waqf Estates.

The total land under possession of all the reported Waqf estates in Bangladesh is

equivalent to 117,624 acres (Figure 3.4). The available data gathered from various

sources also reveal the income and expenditure of all the Waqf estates in the country.

The following figure reveals that all the Waqf estates in Bangladesh are currently

having a total annual income of Taka 906,436,918 while their corresponding total

annual expenditure is estimated to be Taka 853,067,822. This just indicates an overall

net balance credit (equivalent to Taka 533,69,096) enjoyed by all the Waqf estates in

100
the country. This finding is really worth noting in the sense that with limited social

and humanitarian services provided to the poorest groups the Waqf estates in

Bangladesh are not running out of necessary income, which is vital for their constant

service provision and operational sustainability.

Land Possession by the Waqf Estates (in acres) and their Income
and Expenditure (in Taka/BDT)

1,000,000,000
Amount of Land, Income and

906,436,918
853,067,822

800,000,000 Land (In Acres)

Expenditure

600,000,000
Annual Income (In Taka)

400,000,000
Annual Expenditure (In
Taka)
200,000,000
117,624
0
1
Land, Annual Income and Annual
Expenditure

Figure 3.4: Land Possession by the Waqf Estates (in acres) and their Income and
Expenditure (in Taka/BDT)

Nevertheless, analysis of income and expenditure of all the Waqf estates in

Bangladesh must be done with caution as the sources of such income and expenditure

have not yet been analysed in terms of their operational and management efficiency.

As analysis continues the other part of this chapter intends, among others, to analyse

the operational and management efficiency of the Waqf estates with regards to their

income and expenditure.

101
3.2.5 Waqf Estates Not Reporting Land Possession, Income and Expenditure

The previous section has already discussed the land possession, income and

expenditure of all the Waqf estates in Bangladesh. This study, however, found a

significant number of Waqf estates in Bangladesh are not reporting such information.

The following figure (Figure 3.5) reveals that a total of 44 Waqf estates are not

reporting how many acres of land they possess. Moreover, a total of 13,815 Waqf

estates are not reporting their annual income while the annual expenditure is also

found to be not reported by a total of 14,832 Waqf estates in the country.

Waqf Estates Not Reporting Land Acquisition, Income and

Expenditure
Number of Waqf Estates

20,000
13,815 14,832
15,000
Land
10,000 Income
Expenditure
5,000
44
0
1
Land (in acres), Income and Expenditure
(BDT)

Figure 3.5: Waqf Estates Not Reporting Land Possession, Income and Expenditure.

This is not particularly known why these Waqf estates have kept information

on their land possession, income and expenditure a secret. This could primarily be the

fact, among others, that these Waqf estates do not maintain any formal record on their

land possession, income and expenditure and thus it was not possible to collect such

information from them. In addition, these Waqf estates are also assumed to be very

new in their operation or they are very small in size.

102
3.2.6 Income Received by the Waqf Estates from Broad Sources

The broad income sources of the Bangladesh Waqf estates include land, other property

and other sources. It has been estimated that all the Waqf estates in the country is

currently receiving a total income of Taka 897,526,919 from all broad sources (Figure

3.6). The data estimation also reveals that the most income of all the Waqf estates is

received from their other sources and that such total income is equivalent to an

amount of Taka 708,293,652 (79% of the total broad income). The land income of all

the Waqf estates stands as the second highest with an amount of Taka 157,900,872

while with a total income of Taka 40,242,395 (4% of the total broad income) the other

property stands as the third highest source of their broad income.

Annual Income (in Taka) of Waqf Estates Received from Broad

Sources

1,000,000,000 897,526,919

800,000,000 708,293,652
Income Received

Total (all sources)

600,000,000 Land
Other Property
400,000,000
Other Sources
157,900,872
200,000,000
40,242,395

0
1
Sources of Income

Figure 3.6: Annual Income Received by the Waqf Estates from Broad Sources.

This study has already revealed that all Waqf estates in Bangladesh hold

possession of a considerable amount of land (117,624 acres as mentioned earlier). But

the above figure clearly indicates that only 17% of the total income received by all the

103
Waqf estates is coming from their land possession. With a total population of about

160 million and an area of 55,598 square miles Bangladesh offers a very competitive

land price and every square feet of Bangladesh land is thus considered to be very

valuable as well as productive. Since the Bangladesh Waqf estates are not earning a

considerable amount of income from their land possession it is very likely that either

these lands are not used efficiently or they are being used as orphanage, madrasa,

moktab, mosque, ponds, graveyard, dargah, and so on. There is nothing wrong with

the uses of Waqf lands in such purposes as these land are devoted by the Muslim

people with strong religious belief and devotion. But if the Waqf lands are just unused

without any productive future plan it is really an efficiency loss to the whole society,

which must be resolved for the survival of the Waqf estates in this very competitive

world.

3.2.7 Annual Reported Income Received by the Waqf Estates from Land Uses

The major sources of annual reported income received by the Waqf estates from land

uses include madrasah/school, others, agriculture and all uses. The estimation of

available data reveals that the highest land use related annual reported income (Taka

237,179 or 19% of the total land use related income) received by all the Bangladesh

Waqf estates comes from madrasah/school, followed by an annual reported land use

related income of Taka 219,787 (18% of the total land use related income), which

comes from some other land sources. Graveyard and dargah are jointly reported to

stand as the third highest source (Taka 146,226 or a bit higher than 13% of the total

land use related income) of land use related income while all uses are found to have

been reported as the fourth highest income (Taka 145,367 or about 13% of the total

land use related income) received by all the Waqf estates from their land uses. All

104
these Waqf estates are also receiving a considerable amount of income from some

other land uses. For example (Figure 3.7), the following amounts of income are

received from the following land uses: (1) Taka 137,776 (or about 12% of the total

land use related income) is received from agricultural lands, (2) Taka 100,800 (or 9%

of the total land use related income) from ponds/tanks, (3) Taka 75,623 (or 7% of the

total land use related income) from mosques, (4) Taka 56,294 (or 5% of the total land

use related income) from orchards, and (4) The least amount of income (Taka 41,419

or only 4% of the total land use related income) is received from eidgahs/open spaces.

Average Annual Reported Income (in Taka) of Waqf Estates Received from
Land by Detail Uses

250,000 237,179
219,784
All uses
200,000 Agriculture
Income Received

Orchard
145,367 146,226
150,000 137,776 Pond / Tank

100,800
Mosque
100,000 75,623 Idgah / open Space
56,294 Graveyard and Dargah
41,419
50,000 Madrasah / School
Others
0
1
Land Uses

Figure 3.7: Average Annual Income Received by the Waqf Estates from Land Uses

In the economically developed countries religious learning institutions (like

madrasa in Bangladesh) and schools are fully subsidised by the local or federal

governments and thus the question of earning incomes from such institutions is

completely out of question. This is because providing basic education

(religious/traditional) to the citizens is one of the five fundamental and foremost

105
objectives of the governments in economically developed countries. This study

reveals that the Bangladesh Waqf institutions can earn their highest income from such

learning institutions instead of providing free religious and traditional education to the

poorest groups in the country.

Thus question arises: Do the Bangladesh Waqf estates properly and efficiently

manage their available assets and properties? As mentioned in the previous part that

land is very valuable asset in Bangladesh and thus any land possessed by the Waqf

estates in the country should never be used inefficiently. Land must be utilised in the

way that its worth is always at the highest value. If not, Waqf estates will incur loss of

a substantial portion of income due to this mismanagement. The Waqf lands can also

be used as partial financing contributing to the cost of a project. The price of the same

land can further be used in the exercise of securitisation thereby enabling the Waqf

estates to contribute substantially to the costs and own a larger share in equity. Since

Waqf is a permanent dedication of both movable and immovable properties for

religious or charitable purposes recognised by Islamic law, it is obligatory for them to

deal with the religious, social and economic life of Muslims, supporting not only

mosques, dargahs, madrasahs, schools, eidgahs, graveyards, but also colleges,

universities, hospitals, and micro-credit facilities to the poorest groups in the country.

In fact if Bangladesh waqf lands and properties are well managed then no Muslim in

the country may have to live below the poverty line income.

3.2.8 Reported Immovable Properties of the Waqf Estates

The main immovable properties of the Bangladesh Waqf estates include houses,

factories and others. The following figure (Figure 3.8) depicts that most immovable

properties held by the Waqf estates in the country are others. It should be noted here

106
that other properties include mosques, dargahs, madrasahs, schools, eidgahs,

graveyards, ponds, and so on. The estimation based on available data also shows that

all the Waqf estates own a total of 1,341 other immovable properties (53% of the total

number of immovable properties). Housing estates stand as the second most

immovable properties (A total of 874 or 33% of the total number of immovable

properties) held by the Waqf estates while factories stand as the third highest with a

total of 356 (14% of the total number of immovable properties).

Reported Immovable Properties of the Waqf Estates

1,600
1,341
Number of Immovable

1,400
1,200
Properties

1,000 847 House(s)

800 Factories
600 Others
356
400
200
0
1
Types of Immovable Properties Except Land

Figure 3.8: Reported Immovable Properties of the Waqf Estates

It is observed that Waqf properties in Malaysia, Singapore, and Saudi Arabia

and in some other countries of the gulf region have been developed substantially and

profitably by applying creative and innovative solutions to their immovable

properties. In fact, these countries have had used, among others, the concept of time

sharing bond or Sukuk Al-Intifaa. For example, Zam Zam Towers utilised this

concept, where the Towers are constructed in Mecca utilising a 28 year BOT (Built,

Operate and Transfer) contract structure. Under this contract structure, purchasers

107
bought the units based on a 28 years leased period (a specific time) in a specific

complex of the Zam Zam towers, and in return, the purchasers will give revenue

stream to the authority of the complex (the Waqf estate) based on the return the

complex generated. The Bangladesh Waqf estates could, however, also apply such

creative business model to some types of their immovable properties. There are also

many other creative solutions being applied in the development of immovable

properties held by the Waqf estates. For example, in current properties investment,

Islamic Real Estate Investment Trust (IREIT) instrument is a popular route to owning

properties as the structure is highly attractive particularly to the Muslim investors. In

order to earn constant and higher income earnings and then spending them for socio-

economic development of the poorest groups in the country the Bangladesh Waqf

estates can also explore and apply this business model to develop their immovable

properties efficiently.

3.2.9 Reported Income of the Waqf Estates from the Sources Other than Land

Most Waqf estates in Bangladesh earn their movable income from public subscriptions

or donations. A total of 117,593 Waqf estates in the country have had earned income

from such sources followed by 46,433 Waqf estates who have had earned income from

other donations in kind. The third highest number of Waqf estates received income

from others is 12,927 while their fourth highest number is 5,837 and all they have had

earned income from investments, shares, and so on. The least number of Waqf estates

(5,639) is reported to have had earned income from government grants (Figure 3.9).

108
 Number of Waqf Estates Reporting Income from Sources
Other Than Immovable Land

Number of Waqf Estates

140,000
117,593 Public Subscription /
120,000 Donation
100,000 Other Donations in Kind
80,000
60,000 46,433 Govt Grants
40,000
12,927
20,000 5,639 5,837 Investments, shares etc.
0
1 Others
Sources of Income

Figure 3.9: Reported Income of the Waqf Estates from the Sources Other than Land

Since Waqf is the permanent dedication by a Muslim of any movable or

immovable property for any purpose recognised by the Muslim Law as pious,

religious and charitable, it is very likely that the most Waqf institutions would receive

their movable income mainly from public subscriptions or donations and other

donations in kind. So the above findings from Bangladesh are found to be consistent

with the universal Waqf framework.

3.2.10 Reported Annual Income of the Waqf Estates from Immovable Properties

except Land

The key sources of immovable property related annual income of the Bangladesh

Waqf estates include factories, houses and other immovable properties. In fact, the

total annual immovable income for the above each category varies, but not

significantly. The Figure 3.10 shows that the highest immovable income of the all

Waqf estates comes from their factory businesses and worth an amount of Taka

109
489,171 (37% of the total immovable income). The second highest immovable income

of the Waqf estates comes from their other properties and worth an amount of Taka

425,474 (32% of the total immovable income), while the third and least immovable

income comes from house rents and worth an amount of Taka 404,598 ((31% of the

total immovable income).

Annual Income of the Waqf Estates from Immovable

Properties, Except Land

600,000
Immovable Income (in

489,171
500,000 425,474
404,598
400,000 House(s)
Taka)

300,000 Factories
200,000 Others
100,000
0
1
Sources of Income

Figure 3.10: Reported Annual Income of the Waqf Estates from Immovable
Properties, Except Land

It has been mentioned earlier that other immovable properties of the Waqf

estates include mosques, dargahs, madrasahs, schools, eidgahs, graveyards, ponds,

and so on and the present study has empirically found that the above institutions have

been earning their second highest immovable income from such properties. In fact,

business is the key to survival of any institutions, particularly in the long run. Even

though the Waqf institutions have not universally been formed with such business

goal, but these institutions in Bangladesh are proven to have been earning the highest

immovable income from their factory businesses. Such a finding is certainly

110
interesting and also important to the policy and decision makers in their efforts to

enable the global Waqf institutions to survive in long-run.

3.2.11 Reported Annual Income of the Waqf Estates from Other Sources, Except

Immovable Land Properties

Government grants have been found to be the highest source of annual income

received by all the Bangladesh Waqf estates from the sources other than their

immovable land properties (Figure 3.11). An amount of total Taka 664,012 (42% of

total such income) is reported to have annually been received by all the Waqf estates

from such source. The second highest of such income is received from the source of

their investments, shares, etc. with a total amount of Taka 293,559 (19% of total such

income). Both public subscription/donation and other subscription/donation have

been found to be contributing almost equally to Bangladesh Waqf institutions’ such

income category with total incomes of Taka 230,191 (a bit higher than 15% of total

such income) and Taka 225,995 (about 15% of total such income), respectively. Other

donations in kind have been reported by all the Waqf estates to be contributing the

least to such of their income with a total amount of Taka 132,253 (9% of total such

income).

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 Average Annual Income (in Taka) of the Reporting Waqf
Estates Received from Other Sources of Income, Except
Immovable Land and Others

664,012
700,000 Public
Income Received 600,000 subscription/donation
500,000 Other donations in kind
400,000 293,559
300,000 230,191 225,995
Govt. grants
200,000 132,253
100,000
Investments, shares etc.
0
1
Others
Types of Income Source

Figure 3.11: Reported Annual Income of the Waqf Estates from Other Sources, Except
Immovable Land Properties

The prospect of receiving government grants continually is very low in the real

world scenario as the governments, regardless of their economic status, often

experience economic recession and/or depression. With such economic uncertainties

affecting the countries in the world the receipt of government grants by the Waqf

institutions remains uncertain. Rather than depending much on government

grants/donations the Bangladesh Waqf instititutions must look for potential and greater

income earnings from their investments and share businesses. This will enable them to

operate efficiently and sustainably.

3.2.12 Reported Annual Expenditure of the Waqf Estates

It is apparent that the Bangladesh Waqf estates spend a large amount of their income

for the establishment/maintenance of orphanages followed by the payments given to

heirs. The Figure 3.12 depicts that a total amount of Taka 1,430,100 (25% of total

expenditure) has been spent (in the reported year) by all the Waqf estates in the

112
country for the purpose of either establishing new orphanages or maintaining the

existing ones.

The second largest amount of expenditure of all the Waqf estates is reported to

have been spent as the payments given to heirs with an amount of Taka 959,031 (18%

of total expenditure). As much as Taka 794,271 (15% of total expenditure) have also

been spent by all the Waqf estates in the reported year to establish new

schools/colleges or to operate/maintain the existing ones. However, the other

expenditures of the Waqf estates for all other categories (as shown in Figure 3.12) are

not individually found to be significant or higher than 7% of their total expenditures.

For example, the total expenditure in all use is only found to be 7% with an amount of

Taka 377,313, while the percentage of expenditure for all other categories ranges

individually between less than 1% (Taka 17,571) for taxes/rents etc. to 6% (344,601)

for charitable clinics.

Average Annual Expenditures (in Taka) of the Waqf Estates by Category of Expenditure

All Use
1,600,000
1,430,100 Paid to heirs
1,400,000 Taxes / rent etc.
Mosque
1,200,000 Madrasa / Maktab
959,031 School / College
1,000,000
794,271 Orphanage
800,000 Charitable Clinics
Local employees
600,000
Honorarium to Committee Membrs
377,313 344,601 Maintenance / gas / electricity / w ater / phone
Expenditures

400,000
249,729 211,339
217,490 220,842 Religious Functions
169,138 157,327 141,592
200,000 Musafir/ Poor Feeding
17,571 84,74972,972
Stipends
0
Other grants / donations
1
Category of Expenditure

Figure 3.12: Average Annual Expenditure of the Waqf Estates

(by Category of Expenditure).

113
 It is vital for the Bangladesh Waqf estates to initiate efficient, returnable and

sustainable expenditure methods in order for them to ultimately be sustainable in their

operation. An impression has been developed from the above analysis of

socioeconomic profile that the working authorities of the Bangladesh Waqf institutions

are really ignorant of the broad scopes of such institutions. Even though a detailed and

attention-grabbing correlation analysis among all the expenditure categories of the

Bangladesh Waqf estates has been put forward in another part of this chapter the next

part has thus been devoted to briefly analyse the potential but unexplored scopes of

these institutions with regards to their expenditure options.

3.3 NATURE OF AWQĀF PROPERTIES IN BANGLADESH

Awqāf properties in Bangladesh are of diverse nature. They may be mainly classified

as immovable properties in land, immovable properties other than land, movable

properties, and properties in kind and cash waqf.6

3.3.1 Immovable Waqf Properties in Land

The total amount of waqf land in acre is 606107.232 acres.7 These properties in land

are scattered in the six administrative divisions of the country and are used for various

nonreligious social welfare purposes and mainly found to be used in the following

kinds of usage:

6
Bangladesh Bureau of Statistics, Report on the Census of Waqf Estates, 1986.23-26.
7
For more details see or log on to www.waqfbd.com/aboutus.html, (accessed on 11.2.2010).

114
3.3.1.1 Agriculture

Bangladesh has a total number of 51,704 waqf properties8 that are used as agricultural

lands. These lands are mainly low laying lands used for growing seasonal crops;

among which is mainly paddy, but other agricultural products are also grown

depending on the location of the land and weather conditions.9

3.3.1.2 Orchard

The total number of this type of waqf is 7,558.10 These properties include various

types of local fruit gardens that are seasonal; such as mango, jackfruit, laichi, papaya

and so on.these orchard also include other copse, coppice, groves and woods that are

grown for timber productions.

3.3.1.3 Ponds and Tanks

Ponds and tanks are a common sight in almost all localities, particularly in the rural

Bangladesh of which many are waqf properties dedicated by the rich people for social

welfare purposes. The number of pond and tanks that are registered as waf property

comes to 16,496.11 Such ponds are used for bathing, cleansing household items and

cloths. They are also used for breeding and growing fish to meet, to a certain extend,

the local demand for fish. Ponds or tanks that are closed to or attached to a mosque are

also used for making ablution for prayers.

8
Ibid. 34.
9
There are six weather seasons in Bangladesh. They are Grismo (Summer), Barsha (Rainy), Sharat
(Autumn), Hemonto (Cool), Sheeth (Winter) and Boshonto (Spring). For agricultural purposes,
however, three seasons are distinguishable: Summer, Rainy, and Winter. Agricultural lands in
Bangladesh are mainly low lands that mostly lay under water during the rainy season and therefore
remain unutilised or under utilised. The remaining two seasons, i.e. summer and winter are the two
major harvesting seasons. During winter various green vegetables and spices; such as onion, garlic,
mustard etc. are grown that can not be grown during summer. During summer the main agricultural
product is paddy and is vastly cultivated to meet the domestic demand.
10
Bangladesh Bureau of Statistics, 34.
11
Ibid. 34.

115
3.3.2 Immovable Waqf Properties Other than Land

These types of properties are those which have been dedicated as waqf to serve

religious and socio religious purposes. Such properties represent the vast majority of

awqāf in the country comprising of mosques, madrasah, eidgah, dargah and mazars,

graveyard and orphanage.

3.3.2.1 Mosques

According to the last Waqf Census there are 123,649 mosques12 that are enlisted as

waqf properties in the country. However, Waqf Administration has direct control over

9,429 mosques.13 Most of these mosques are run mainly by non-periodical donations

by general public. Mosques that are in strategic locations14 get just enough donations

to cover the relevant expenditures of the mosque. Mosques that are not in such

strategic locations, particularly rural ones face a lot of hardship in meeting the

maintenance costs. The activities of the mosque are mainly limited to daily five times

prayer and the weekly Fiday prayer. Mosques based social and welfare activities are

scanty if not rare in Bangladesh.

3.3.2.2 Madrasah, Maktab, Schools and Colleges

Educational institutions represent a significant number of awqāf in the country.

Madrasahs are the institutions of religious education. There are two streams of

madrashas in Bangladesh: Alia Madrasahs15 that combines traditional and modern

12
Ibid.
13
See or log on to www.waqfbd.com/aboutus.html, (accessed on 15.2.2010).
14
Such as in town or near market.
15
Alia Madrasahs operate with syllabus prescribed by the Bangladesh Madrasah Education Board
(BMEB) which is under the Ministry of Education, Government of Bangladesh. Apart from studying
Quran, Hadith, Fiqh, Usul alFiqh etc. students also study science, mathematics, geography, chemistry
etc in these madrasahs. Graduates from these madrasahs can get government job as well as job in the
private sector.

116
syllabus and Qoumi Madrasah16 that do not include modern syllabus. Both the types

are found among the madrasahs that are made waqf. Maktabs are the primary religious

schools wherein basic religious teachings17 such as how to pray, how to recite the

holy Quran etc are taught. Many of such maktabs operate within mosque compound

and the Imam and or Muadzin of the respective mosque are the ones who teach in

those maktabs. The combined number of such waqf madrasahs and maktabs is 7,491.

The number of schools and colleges that are awqāf is 276 in the country.18

This number is far below than the number of waqf mdrasahs and maktabs. This shows

that people are more inclined to making waqf for religious education than secular or

non religious education.

3.3.2.3 Eidgah and Open Space

An Eidgah is an open field dedicated and maintained specifically for annual Eidul Fitr

and Eidul Adha prayers. Apart from Eidgah there are open spaces that are dedicated as

waqf along with a school, college or madrasah for the purpose of annual religious

mahfil, sports and various students’ and social activities. There are at least 55,584 of

such Edgahs and open spaces in the country.19

3.3.2.4 Graveyard and Dargah

There are two types of graveyards found in the country for burial of Muslim dead

bodies: private or family graveyard and public graveyard. It has been observed that

16
Ooumi Madrasahs, however, neither follow syllabus prescribed by BMEB under the education
ministry, nor they have any unified syllabus followed throughout the country. Graduates from these
madrasahs go for nongovernmental job of religious nature and their degrees are not ‘recognised’ for
government job.
17
The concept is similar to what is called ‘fardu ain’ classes in Malaysia.
18
Bangladesh Bureau of Statistics. 21.
19
Ibid. 34.

117
many well-to-do families prefer to have their own graveyard beside a mosque that has

been dedicated by them as waqf. In these graveyards only family members and close

relatives are buried. Public graveyards are maintained by committees and are open to

all. There is a specific graveyard in the capital city of Dhaka for the fallen national

heroes, intellectuals and members of the high ranking government services. Many of

those who are buried with ‘state honor’ are buried here.

Dargah is a saint’s graveyard which is also called ‘Mazar’ alternatively. There

are some prominent mazars in the country that have grown into big institutions by

including mosque, madrasah, orphanage and library within the large compound of the

mazar. For instance, Shah Jalal’s (R.A.) mazar, Mirpur’s mazar, Bayejid Bustami’s

mazar etc. Hundreds of people pay respect and visit these mazars everyday and donate

generously for the up keeping of the facilities. There are thousands of other mazars of

moderate and least repute scattered throughout the country in which local people pay

tribute occasionally. The combined number of graveyards, dargah and mazars comes

to 21,163 in the country.20

3.3.2.5 Orphanage

There are 578 orphanages in the country.21 Most of these orphanages are part of a

waqf estate which provides the necessary the financial and other supports to the

orphanage.

3.3.3 Movable Waqf Properties

Movable waqf properties have an inherent risk of being lost, reduced or perished and

they are subject to decay. Such properties remain a waqf only until they can be
20
Ibid.
21
Ibid. 21.

118
benefited from and remain useable. They can be divided into two categories: firstly,

cash money or better known as Cash Waqf. Secondly, properties that are other than

cash.

3.3.3.1 Cash Waqf22

Cash waqf is a recent development in Bangladesh. However, we have found that in

Bangladesh a couple of private banks have introduced cash waqf. For instance, the

Social Islami Bank Ltd (SIBL23) and the Islami Bank Bangladesh Limited (IBBL)

have introduced cash waqf. SIBL offers Cash Waqf Certificate Scheme which is an

innovative financial product aimed at social welfare. The Waqf properties are

converted into income generating units and the income so derived is utilised as per

instruction of the Wāqif or in the absence of such instructions, on the basis of Islamic

Shariah. The Islami Bank Bangladesh Limited (IBBL) has introduced a ‘Mudaraba

Waqf Cash Deposit Account’ (MWCDA) scheme. In this scheme the deposited money

is invested and the profit is spent in accordance with the will and wishes of the wāqif.

3.3.3.2 Movable Properties Other than Cash

It has been observed in Bangladesh that there are many movable and perishable

properties that are made waqf for religious services specifically attached to mosques.

Such properties include but not limited to the following items that are traditionally

made waqf in Bangladesh for the welfare of students at madrasahs and for the

convenience of musallies at any typical mosque. They are: copies of the holy Quran,

22
Discussion on Cash Waqf occupies a distinct chapter in this thesis. For details please see Chapter
Five.
23
Formerly known as Social Investment Bank Ltd (SIBL)

119
books of hadith and Islamic literature, cap and scarf for prayer, khatia24 for bathing

and carrying dead body for jenazah and burial, Hurricane lantern25 or Kerosene

lamp,26 tube well,27 wall clock, microphone system for mosque to be used for azan

and conducting prayer, electric fan, water dispenser, utensils and khorom28 or slipper

in the mosque for ablution and lavatory purposes, etc.

3.3.4 Some Unique Waqf and Waqf-like Institutions in Bangladesh

In addition to thousands of registered institutions that are generally known as waqf

estates, there are many institutions that are run and operated like waqfs. Such

institutions include, for instance, Dargahs and Mazars, charitable foundations,

hospitals, farmer welfare associations etc.

3.3.4.1 Shrine (Dargahs and Mazars) based Waqfs in Bangladesh

There are many waqf estates in Bangladesh that include a Mazar29 or Dargah,30

which are usually graves of great ulama and highly regarded religious priests, 31 many

of whom came from Arab world long time ago to preach Islam in this part of the

world.

24
Wooden carriers specially made for this purpose. There are two types of khatia; one is used to bath
dead body and the other is used to carry it up to the graveyard.
25
Kerosene lamp with a glass cover.
26
Kerosene lamp without a glass cover.
27
This is a manual water pump to extract water from under ground. It is commonly seen in rural
Bangladesh where municipal water supply through pipe line is not available.
28
Wooden sandals.
29
Mazar is an Arabic word that literally means 'a place for visit'. As these graves are visited by many
people regularly they are called mazar.
30
Dargah a Persian word refers to the grave of a wali or Sufi. In the subcontinent, buildings have been
erected upon the graves of Sufis and dervishes. After the death of such individuals their disciples and
followers built mosques and madrasahs in the vicinity of their grave to which the followers used to pay
regular visit. mazars. Mazar literally means 'a place for visit'. Mazar and Dargah are synonymous
referring to such graves.
31
Noted among them are the mazars of Hazrat Shah Jalal (R) in Sylhet, a north-eastern district of the
country; Khan Jahan Ali (R) in Bagherhat District, Makhdum Shah (R) in Rajshahi District; Shah
Amanat (R) in Chittagong, and Shah Ali Baghdadi (R) in Dhaka. In Chittagong there is a combined
mazars of twelve saints, called Barah Awliya’s Mazars.

120
3.3.4.2 Islami Bank Foundation

The Islami Bank Foundation (IBF) operates under Islami Bank Bangladesh Limited

(IBBL) as a welfare wing of the bank. IBF was established with the sole objective to

serve less privileged portion of the country’s population and work for sustainable

socio-economic development of Bangladesh.32

Through its various activities IBF serves the needy and distressed, promotes

and funds education, provides healthcare services, promotes arts and culture, science

and technology and provides assistance in productive self-employment and

development of human resources for enhancing economic growth and quality of life.33

IBF governed welfare programmes and projects are the following:

3.3.4.2.1 Poverty Alleviation

This includes various income generating programmes to make the unemployed youth

self-reliant. Some important income generating programmes are: a. Rickshaw

Project;34 b. Sewing Training; c. Poultry project; d. Rural Health Worker Training

project; e. Milk-Cow rearing project; f. Self-employment project; g. Small Business

project; h. Small Industry project etc.

3.3.4.2.2 Education

Islami Bank Foundation undertakes following programmes to provide education to the

poor: a. Adrasha Forquania Maktab;35 b. Scholarship for poor and meritorious

32
‘Islami Bank: 30 Years of Progress’ a Special Report on the 30th anniversary of Islami Bank
Bangladesh Limited published by its publication wing in November 2012. 30.
33
The sources of fund of the Foundation are: 1. Zakat of Islami Bank Bangladesh Ltd and other
institutions & persons. 2. Donation or gift from any person or institution. 3. Income of Islami Bank
which are not free from interest in view of Shariah (These are not included in the profits of the Bank
rather spent for welfare of the poor through the Foundation). 4. Income from the projects run by the
Foundation. The Foundation maintains separate accounts of the aforementioned income and spends
them according to Shariah.
34
Rickshaw is three-wheeled human pulled vehicle, most commonly used for transporting people,
equally used in town and rural areas of Bangladesh.
35
These are mosque based projects where children learn how to recite the holy Quran.

121
students; c. Scholarship for the students of higher studies; d. financial support for

educational institutions; e. Lump-sum grant for poor students etc.

3.3.4.2.3 Healthcare

Under this programmes the following activities have been taken: Establishment of

Medical Centre; Supporting Charitable dispensaries; Lump-sum help for treatment of

poor Patients; Tube well Installation; Sanitary latrine construction etc.

3.3.4.2.4 Humanitarian Services

Establishment and operation of orphanages; Providing fund for the marriage of poor

girls; Assisting indebted people; Helping distressed wayfarers and such other activities

are among the services provided under this category.

3.3.4.2.5 Relief and Rehabilitation

Participation in relief and rehabilitation activities after natural disasters and in

emergency situations is among the foremost programmes of Islami Bank Foundation.

The Foundation operates relief and rehabilitation activities during natural calamities

like flood, tornado, tidal surge, river erosion, conflagration etc.

3.3.4.2.6 Cultural and Da’wa Activities

One important objective of Islami Bank Foundation is to disseminate the true

knowledge and teachings of Islam and to enlighten the common people as well as the

elites and make them familiar with the concept of Islam. The activities of this

programmes are: Distribution of Islamic research magazines; Audio-video cassettes;

financial help to youth clubs and voluntary organisations; Taleemul Quran etc.

122
3.3.4.3 Islami Bank Hospital

The Islami Bank Hospital is another successful project under Islami Bank Foundation

(IBF) and has been a milestone in Bangladesh as far as medical education and

healthcare services are concerned. It has several branches in different parts of the

country. It has established a Nurse Training College in Dhaka and the Islami Bank

Medical College in Rajshahi, a southern district in Bangladesh which is providing

medical education to thousands of students at affordable fees and producing skilled

and devoted doctors to serve the nation and in particular the poor and distressed

population36.

3.3.4.4 Ibn Sina Trust

Ibn Sina Trust is a welfare trust organisation started in 1980 with a small amount of

investment.37 Over the period of slightly more than three decades the trust has

expanded tremendously and so far has built a number of Hospitals, Laboratories,

Consultation Center, Medical College and Pharmaceutical Industry. It renders

humanitarian services from earnings through various Medicare services such as the

Hospital, Laboratories, Medical Checkup and other facilities. Since 1980, Ibn Sina has

become one of the most reputed names in medical services. Along with social welfare

programmes Ibn Sina Trust is a pioneer in private medical services38.

36
‘Islami Bank: 30 Years of Progress’, 56.
37
The first amount of investment was 100 thousand Taka (USD 1,200) which was a combined amount
of donation contributed by some like minded people including the then Saudi Arabian Ambassador to
Bangladesh H.E. Fouad Abdul Hamid Al-Khateeb, as cited in the website of the Ibn Sina Trust at
http://www.ibnsinatrust.com, (accessed on 23 June 2014).
38
Ibid.

123
3.3.4.5 Chashi Kollyan Shomiti

The Bangladesh Chasi Kallyan Samity (The Farmers' Welfare Society) was founded in

197739 in order to undertake steps to provide help and assistance to the farmers. The

main objectives40 of the Bangladesh Chasi Kallyan Samity is to make the farmers self-

reliant economically through self-employment. Interest based agricultural loan has

always been a burden on the poor and distressed farmers. Sometimes they were forced

to sell their own agricultural lands, homes and household items to repay the loan.

Hundreds of local and foreign N.G.O.s in Bangladesh started giving agricultural loan

to the farmers in the name of poverty alleviation as well as socioeconomic uplift.

However, people who failed to repay the loans with heavily imposed interest became

victims of oppressions by the loan giver N.G.O.s. In such a situation, the Bangladesh

Chasi Kallyan Samity (The Farmers' Welfare Society) was founded in 1977. Since its

inception it has been working as a bridge in the context of securing all needs and

facilities for the farmers and helping these poorest of the poor class, the farmers, by

providing them with much needed help so as to get them out of poverty through

various activities41 of BCKS.

39
The Bangladesh Chashi Kallyan Samity (The Farmers' Welfare Society) was registered on 6th
September 1977 under the Societies' Registration and Control Ordinance (Act.XXVI) 1961.
40
The aims and objectives in details are as follows: 1. Organisation: To promote the interest of the
downtrodden farmers by organising them under the banner of the society. 2. Movement: To make
organised efforts for safeguarding the interest of the farmers and also to make all out efforts to get their
due share from the national Government. 3. Training: To arrange regular training on the latest
technology in agricultural science and to help promote moral values of the farmers. 4. Formation of
capital: To make the farmers conscious and interested in making regular savings for the future. 5.
Undertaking of scheme: To make them interested in co-operative farming and collective agricultural
projects with a view to alleviating their poverty by self-help and mutual co-operation. 6. Rendering of
service: To render benevolent services to the needy people of the country.
41
The Activities of BCKS include the followings: 1. To assist the farmers to solve problems related to
agriculture and to try to introduce appropriate techniques and technologies according to the need of
time and place. 2. To make all out efforts to remove moral degradation from the society and to improve
religious and moral values, especially, of the farmers and also to help them settle their internal disputes
and conflicts amicably on the basis of fair play and justice. 3. To remove illiteracy from the farmers
society and to arrange proper education for their children. 4. To give incentive for regular savings
among the farmers and to educate them on modern agricultural system. 5. To assist the farmers in
collect necessary information and receiving training so as to obtain all kinds of facilities, including

124
3.4 CONCLUSION

A general overview of the selected aspects of awqāf properties in Bangladesh has

been presented analysing the statistical data from the census of waqfs conducted by

Bangladesh Bureau of Statistics under the government of Bangladesh. Due to a

number of reasons the data from the census has been included and studied in this

research. First and foremost, this census has never been subjected to any post graduate

level research to the best of this researcher’s knowledge and search. Secondly, it

provides a wealth of information about the totality of waqf properties in the country

and no other documents provide such a vast, collective data and detailed information

on waqf in the country. Thirdly, since no census has ever since been conducted this

data was a light in the dark to have a wholesome idea on waqf in the country. Last but

not least, due to the nature and scope of this study, latest data on waqf properties in the

country was not essential though up to date data could have been helpful and would

have revealed many other new aspects of waqf in the country.

A detailed analysis of the data has been presented in twelve categories of

tables and graphs. These figures illustrate the nature and types of waqf properties in

the form of cultivable land, immovable waqf properties other than land, movable waqf

properties including their annual income and expenditure and the beneficiaries

thereof. Some unique waqf and waqf-like institutions in Bangladesh has also been

equipments and accessories from the Govt. agricultural departments and other autonomous and non-
government organisations dealing with different aspects of agriculture. 6. To try establishing industries,
especially cottage industries, connected with agriculture in the rural areas with a view to solving the
problems of unemployment and poverty of the teeming millions of rural population. 7. To introduce the
system of Zakat and Ushar as also to make the farmers acquainted with the land tenure system of Islam.
8. To help the rural people, particularly the farmers, at the time of natural calamities and disaster. 9. To
motivate the farmers to plant more and more trees not only to earn livelihood but also to protect the
environment from the disastrous green house effect. 10. To extend whole-hearted co-operation to the
welfare programmes undertaken by the Government for the farmers so that the farmers get the due
benefits. For details see the website of BCKS at http://www.angelfire.com/journal/chasi/aims.htm
(accessed in 23rd June 2014).

125
brought into attention to highlight their waqf-like welfare contributions that give a

new insight into the present trends of philanthropic activities in the country.

The study in this chapter has brought to light many aspects of waqf properties

and their administration and management in the country that shed light on various

strength and weaknesses of the waqf management in the country. This study raises

important aspects of administration that would be helpful in determining if waqf sector

should be privatised or should remain under government control for increasing its

efficiency. It has been shown that Bangladesh has a vast wealth of immovable or land

based waqf that could be turned into a giant revenue generating source.

On the other hand the movable waqf assets and their utilisation in the modern

context have been discussed to promote the increasing necessity and utility of

movable waqf. The role of waqf in welfare services has been emphasised that include

purely religious and many socio-religious services that waqf in the country has been

providing for ages. In order to revamp waqf sector some waqf-like institutions and

their welfare oriented activities have been analysed so as to adopt innovative

approaches that would help waqf sector transform itself into a more people-friendly

and welfare oriented institution.

126
 CHAPTER FOUR

CHALLENGES ENCOUNTERED BY THE WAQF

ADMINISTRATION IN BANGLADESH

4.1 INTRODUCTION

Waqf sector in Bangladesh faces a host of challenges 1 that require serious attention

from the government and other relevant authorities. Due to problems related to

administration and management, finance and above all lack of up-to-date legal

enactments, awqāf in the country remains underdeveloped and underutilised. This

chapter classifies the challenges faced by the waqf sector in Bangladesh into several

broader categories; such as administrative and management related issues; waqf

property related issues; waqf related legal and financial issues. Then under each of

these broader categories more detailed and minute issues are discussed.

4.2 ADMINISTRATION AND MANAGEMENT RELATED PROBLEMS

Awqāf in Bangladesh represent a huge and important segment of the national assets,

which should be developed for proper and better utilisation. Despite immense potential

and huge resource, Bangladesh has not been able to extract the fullest benefit from the

awqāf sector; due to various issues related to administration and management that need

to be addressed with immediate effect. The problems, which the Waqf Administration

faces in the country are numerous and of enormous magnitude. Some of the major

problems that the waqf sector is currently facing in Bangladesh are as follows:

1
See for details: Karim, M.F., ‘Problems and Prospects of Awqaf in Bangladesh : A Legal Perspective’,
A paper presented by this author in a conference organised by the Management Center and Kulliyyah of
Laws, International Islamic University Malaysia (IIUM) on 20-22 October 2009.

127
4.2.1 Human Resource and Manpower

One of the main problems of Waqf administration in Bangladesh is the shortage of

manpower to manage this sector.2 Compared to the magnitude of the total number of

waqf estates, a very small number of officials are managing the awqāf sector. Only 98

officers and employees are managing more than 150,000 waqf estates scattered in the

whole country. Out of 64 administrative districts of Bangladesh, only 29 districts

offices are managing waqf estates of all 64 districts. Due primarily to this shortage of

manpower they cannot open and operate offices in the rest of the districts.3

4.2.1.1 Number of Surveyor cum Auditor per District

The district offices have only one supervisor to cover nearly 800 waqf estates. The

divisional offices of Dhaka, Khulna, Rajshahi and Chittagong Divisions have been

brought under direct control of the Headquarters in Dhaka due to lack of manpower.4

In the previous 19 Districts,5 there was only one Surveyor cum Auditor in each

District.6 Although the number of Districts is now sixty four, the number of Surveyor

cum Auditor has not increased. So when the officer goes to a waqf estate to collect

waqf revenues and to do auditing, he has to leave his office locked. While he is away

if any mutawalli comes to see him he has to go back without meeting him which

creates a bad impression among mutawallis about the Surveyor cum Auditor.7

2
Office of the Adminstrator of Waqfs, Bangladesh, Bangladesh Shorkar Kortrik Ghotito Wqaf Komitir
20.04.1995 Tarikhe Onushthitobbo Prothom Shovar Karjopotro. (Working Paper for the First Meeting
of the Waqf Committee formed by the Government of Bangladesh), page 1, 1997.
3
Ibid.
4
Md. Azharul Islam, Waqf Mosjid, Mondir O Majar Bebosthapona Proshongay (On the Management
of Waqf Mosques, Temples and Tombs), Office of the Administrator of Waqfs, Dhaka, n.d. 4-6.
5
Formerly Bangladesh had 19 Administrative Districts. Later those Districts have been subdivided and
the total number of Districts is now sixty four.
6
Office of the Adminstrator of Waqfs, Bangladesh, 1.
7
Ibid.

128
 The Ordinance has specific provision8 that empowers the Administrator to

conduct survey of waqf properties and to appoint necessary manpower to conduct the

survey, who upon completion of the survey shall submit a detailed report to the

Administrator. The wordings of section 6 (1) of the Ordinance raise an important

question whether such survey should be made only once or at regular intervals.

Section 6 (1) reads as follows:

“6 (1) The Administrator shall cause a survey to be made of all waqf

properties existing at the date of the commencement of this Ordinance in
such manner as may be prescribed by the rules, and, for this purpose,
may appoint such persons as may be necessary, who shall, on
completion of the survey, submit to the Administrator a report
containing such particulars as may be prescribed by the rules.”
(2) On receipt of the report under sub -section (1) the
Administrator shall take such action as he may deem necessary
under Chapter IV of this Ordinance for the enrolment of the waqfs.”

Hence, it appears that the purpose of section 6(1) was to conduct a survey of

waqf properties existing “at the date of the commencement of this Ordinance”. And

therefore it is not clear if the Administrator may cause such surveys to be conducted at

regular intervals, which would include the waqfs made subsequently.

4.2.1.2 Number of Waqf Estates per District to Be Managed

Each of the previous 19 Districts had about eight hundred waqf estates on average.9

After subdividing the previous Districts the number of Districts has increased to sixty-

four Administrative Districts, which operate under six Administrative Divisions 10 The

following Charts11 show the number of Waqf estates in each District under six

Administrative Divisions (Table 4.1, 4.2, 4.3, 4.4, 4.5, and 4.6):

8
Section 6.
9
Office of the Adminstrator of Waqfs, Bangladesh, 2.
10
Ibid. Also see www.waqf.gov.com (accessed on 2 July 2014).
11
The data shown here represent all the sixty four administrative districts under six Divisions.These
data are collected personally from from the Office of the Administrator of Waqfs in Dhaka as well as
from their website (accessed on 2 July 2014). For details see www.waqf.gov.bd .

129
1. Dhaka Division:

Table 4.1 : Dhaka Division

Classes of Waqf
Name of the Districts No of waqf estates
Public Waqf Private Waqf
Dhaka 867 735 132
Gazipur 162 157 5
Manikgong 109 98 11
Narayangonj 343 321 22
Munshigonj 109 104 5
Narsingdi 129 123 6
Farudpur 55 43 12
Madaripur 64 51 13
Shariatpur 33 32 1
Razbari 25 23 2
Gopalgonj 25 23 2
Kishorgonj 372 337 35
Jamalpur 41 30 11
Sherpur 61 61 -
Netrokona 75 62 13
Tangail 270 250 20
Mymensing 318 285 33
Total 3058 2735 323

2. Chittagong Division

Table 4.2: Chittagong Division

Classes of Waqf
Name of the Districts No of waqf estates
Public Waqf Private Waqf
Chittagang 1923 1769 145
Cox’sbazar 208 205 3
Rangamaty 2 2 -
Noakhali 674 572 102
Fani 260 228 32
Laxmipur 548 412 133
Comilla 551 542 21
Chandpur 219 200 19
Brahmanbaria 120 110 9
Total 4505 4040 464

130
3. Rajshahi Division

Table 4.3 : Rajshahi Division

Classes of Waqf
Name of the Districts No of waqf estate
Public Waqf Private Waqf
Rajshahi 208 183 25
Nator 36 16 20
Chapainawabgonj 131 118 13
Naogaon 490 385 105
Bogra 886 748 138
Jaipurhat 134 117 17
Dinajpur 429 400 29
Thakurgaon 122 85 37
Panchagorh 16 12 4
Rangpur 311 297 14
Gaibandha 57 47 10
Lalmonirhat 21 19 2
Nilphamari 229 220 9
Kurigram 26 24 2
Pabna 93 73 20
Sherajgonj 98 86 12
Total 3287 2830 457

4. Khulna Division:

Table 4.4: Khulna Division

Classes of Waqf
Name of the Districts No of waqf estate
Public Waqfs Private Waqfs
Khulna 45 37 8
Bagerhat 87 54 33
Shatkhira 94 87 7
Kustia 41 31 10
Chuadanga 27 18 9
Meherpur 6 5 1
Jessore 43 38 5
Jhinaidha 32 26 6
Magura 9 7 2
Narail 2 2 -
Total 386 305 81

131
 5. Sylhet Division

Table 4.5: Sylhet Division

Classes of Waqf
Name of the Districts No of waqf estate
Public Waqfs Private Waqfs
Sylhet 240 185 55
Shunamgonj 53 39 14
Hobigonj 115 87 28
Moulavibazar 163 138 25
Total 571 449 122

6. Barisal Division

Table 4.6: Barisal Division

Classes of Waqf
Name of the Districts No of waqf estate
Public Waqfs Private Waqfs
Borisal 475 279 196
Bhola 269 213 56
Pirojpur 137 111 26
Jhalokathi 115 70 45
Patuyakhali 546 289 257
Borguna 459 224 235
Total 2001 1186 815

At present, the total number of waqf estates enrolled under the Waqf

Administration is 13,808 as per above charts. However, the number of enrolled waqfs

was 17000 in 1987 and in 1998 the number was 18,597. So it is interesting to note that

the number of enlisted waqfs was 17,000 in 1987 according to the Waqf Census held

in 1987. Then after a decade the number of enrolled waqfs rose to 18,597 in 1998.12

However, the number of enlisted waqfs at present is 13,808.13 This is better seen in

the Table 4.7.

12
Office of the Adminstrator of Waqfs, Bangladesh, 2.
13
Ibid. Also see www.waqf.gov.com (accessed on 2 July 2014).

132
 Table 4.7: Decreasing Trend in Enrolled Awqāf

Year Waqfs enrolled under the Waqf Administration

1987 (Waqf Census) 17,000
1998 18,597
2014 13,808

By dint of the above record more than 3,000 (three thousands) enrolled waqfs

seem to have decreased between 1987 and 2014. However, there is no official

explanation from the Waqf Administration as to why there is such a decreasing trend

in the enrolled waqf estates. As such it is anyone’s guess what might have been the

fate of such a big number of enrolled waqf estates.

4.2.1.3 Huge Gap of Ratio between Manpower and Responsibility

According to the latest official record from the Office of the Waqf Administration the

total number of Surveyor / Inspector is just 20(twenty) and the total number of

Auditor is 18 (eighteen).14 That means a total number of 38 Surveyor and Auditors

have to take care of a total number of 13,808 waqf estates in Bangladesh. With such a

huge gap in the ratio naturally it is next to impossible for an individual visit and

survey nearly 400 waqfs, and to prepare audit report and taking account of all the

estates. More over he has to settle a lots of petty disputes and guide officials and

mutawallis in the district.

4.2.1.4 Operational Inefficiency in Settling Waqf Disputes, Lack of Transportation

and Equipments

Hundreds of waqf related disputes are adjudicated by the various Courts and the Waqf

Administrator’s office.15 This number is increasing everyday. The Waqf

14
Ibid. Also see www.waqf.gov.com (accessed on 2 July 2014).
15
For details of such misappropriation see “In Pursuit of Power: Local Elites and Union-Level
Governance In Rural Northwestern Bangladesh” CARE Bangladesh. August 2002, 17.

133
Administrator performs quasi-judicial functions. Disputes related to illegal possession

or transfer of waqf estates, misappropriation, improper management, and so on, are

referred to the Waqf Administrator. He conducts the hearings like a Judge, and

delivers judgment, which is binding unless it is overruled by an Appeal Court. In cases

of illegal possession or transfer a waqf property, or illegal interference in the

management of Waqf estates, Waqf Administrator enforces his order with the help of

the local administration of the Government at the district level. However, as

mentioned above, compared to the total number of waqf estates in the country, a very

small number of officials are managing the waqf sector and as such the waqf

administration in is over-burdened not only with a large number of cases but also

many other relevant matters that require due attention. This results in slow and

inefficient operation.16

The statutory set up of waqf administration in Bangladesh is empowered to

look after awqāf and to administer Awqāf. But in many instances mutawallies bring

the waqf cases to the Court where every trick is employed to get them decided in

accordance with the convenience of parties. The Courts do not have the means to

make proper investigation into the affairs of waqf estates and go by records that are

tempered, and evidences given by hired witnesses. The waqf administration is thus

sidelined. However, sadly enough, the waqf administration is also accused of giving

less than impartial and just decisions, and complaints of bribery against the waqf

officials are not uncommon. In many cases, the integrity of the waqf officials is

questioned. The statutory checks imposed to check corrupt practices are found to be

16
Office of the Administrator of Waqfs, Dhaka, “Bangladesh Sharkar Kortrik Gothito Waqf Komitir 20-
04-95 Tarikhey Onushtitabya Prothom Shobhar Karjopotro” (The Working Paper for the First Meeting
of the Waqf Committee Formed by the Government of the People’s Republic of Bangladesh held on
20.04.95).7-9.

134
inadequate and the amount of autonomy granted to the waqf administration is one of

the causes of cover-ups.

Due to lack of own transport facilities, it is very difficult to pay regular visit to

various district waqf offices for the purpose of conducting audit, survey and

investigations into waqf disputes.17 Compared to the huge volume of works, office

equipments such as the number of computers necessary for proper up keeping of

valuable data and the number of relevant Computer Operator is far from satisfactory.18

4.2.2 Mutawalli Related Issues

Mutawallis are the immediate guardians of waqf estates. Success of a waqf estate in

achieving the objectives of the waqf rests largely on a qualified Mutawalli. However,

a host of problems hover around them which are the roots of many other problems.

Problems that need to be addressed immediately include the following:19

4.2.2.1 Lack of Qualification; and Integrity of the Mutawallis

Many mutawallis lack in educational qualifications.20 The Waqfs Ordinance is silent

on the requirement of minimum educational qualifications for eligibility to be a

mutawalli. What is even more alarming is the lack of their knowledge in shariah

which is supposed to be the main tool in governing all aspects of waqfs

management.21 This deficiency alone is responsible for many mutawallis’ substandard

performance. A mutawalli’s lack of education puts him in bad light when he has to

deal with the officers in the Waqf Administrator’s office.

17
Office of the Adminstrator of Waqfs, Bangladesh, 5.
18
Office of the Adminstrator of Waqfs, Bangladesh, ‘Report from the Office of the Administrator of
Waqfs in response to the queries from the Ministry of Religious Affairs, dated 25.03.1998. 2.
19
Office of the Adminstrator of Waqfs, Bangladesh, 5.
20
Sadeq, A. H. M. 161.
21
Ibid.

135
 In many cases the integrity of the mutawallis is in question. Cases of

dishonesty on the part of some mutawallis are not uncommon.22 Dishonesty may be

in the form of incorrect accounts of income, fabrication of bogus vouchers for

amounts not spent, subscription not accounted for, illegal alienation of waqf

properties, rents at high rates realised from the tenants but receipts for lower amounts

issued and the balance pocketed as black money and so on. The Ordinance has a

number of provisions to prevent such occurrences. For instance, a mutawalli is

debarred from making compromise in any suit or proceedings in respect of any waqf

property without the Administrator’s approval and the sanction of the trying court.23

But very often these statutory checks prove inadequate.24 The ordinance provide for

the imposition of fines on an erring mutawalli. It is, however, to be noted that the

Ordinance has given the power of imposing fines to the courts of law,25 acting upon a

complaint made by the Administrator. Thus, in every case of default by a mutawalli,

they have to knock at the door of a court where the process of complaints, counter

complaints and explanations generally consume much time and money. This is why

more often than not; the authorities prefer not to make use of the penal provisions.

Many waqf estates are headed by mutawallis who are near illiterate or not educated

enough to keep and maintain accounts of income and expenditure. This sometimes

may open the door for corruption.26

Legally, a mutawalli is not allowed to delegate his office or any of his duties

to anyone without the permission of the Administrator. However, it is observed that

22
For details please see, for instance, the case of Hafiz Mohamed Fateh v Swarup Chand Hukum
Chand. AIR, 1948, PC 76.
23
See sections 60 – 80 of the Ordinance.
24
Sadequr Rahman, 139.
25
See for details, section 61(1) of the Ordinance.
26
Sadeq. A. H. M. 5.

136
such instances occur27 partly due to lack of adequate knowledge of the relevant laws.

Failure on the part of an existing mutawalli28 and or an outgoing mutawalli29 to act in

accordance with the relevant laws may subject him to punishments set out by the

Ordinance. Such punishments include a fine not more than two thousand takas30 only

and in default with an imprisonment not more than six months. However, this

punishment of two thousand takas in particular can not be considered as a deterrent

nowadays as this amount is considered to be insignificant and trivial.

4.2.2.2 Lack of Training

Due to lack of regular training for mutawallis, proper maintainance of waqf estates are

being affected severely.31 Mutawallis come from various educational and social

backgrounds. They need practical training which is vital for proper management of

Awqāf. Irrespective of their educational qualifications, mutawallis need proper

training to be able to perform their duties up to the expectation. Managerial skills,

maintaining and facilitating audit of accounts of waqf fund and its application and

their overall knowledge and understanding of the governing law, i.e. the Waqfs

Ordinance 1962, just to name a few basic necessities, all require training.

27
In Abdul Subhan Bhuiya v Wasim Bhuiya (1 DLR 164, P 166), the court was of the view that a
mutawalli has no power to transfer his office unless is expressly conferred upon him by the waqif but
he may appoint a deputy to assist him in the management of the waqf property. It has also been opined
in Wilson’s Anglo-Muhamedan Law (6th Edn, para 329) that a mutawalli has no power to transfer the
office to another person while he himself alive and in good health, unless such a power was expressly
conferred upon him by the founder or by the court that appointed him.
28
The Waqfs Ordinance 1962, S.61.
29
The Waqfs Ordinance 1962, S. 63.
30
Taka is the name of local currency units and one US dollar equals to eightty takas approximately.
31
Office of the Adminstrator of Waqfs, Bangladesh, 5.

137
4.2.2.3 Irregular Payment of Annual Contribution

It is one of the common complaints32 against many mutawallis that that they are

negligent and irregular when it comes to payment of the annual contribution to the

Office of the Administrator of Waqfs, which is sometimes forced to initiate civil

litigation against such mutawallis. However, once the matter ends up in litigation the

annual contribution remain unpaid as the mutawallis use such litigation against them

as a ground to withhold payment awaiting judgment.

4.2.2.4 Irregularity in Submission of Accounts of Waqf Fund and Audit Reports

The Ordinance requires 33 every mutawalli 34 of a waqf shall prepare and furnish to

the Administrator a full and true statement35 of accounts of waqfs for the period 36 he

is either singly or jointly in-charge of the waqf estate.37 However, complaints

against mutawallis are commonplace with regard to proper maintainance and regular

submission of accounts and audit report.38 When auditors and inspectors come to

waqf estates, many mutawallis fail to show the relevant title document of the waqf,

present and past year’s activity report and information on waqf disputes if any.

Furthermore, failure to facilitate vouchers for expenditure and providing accurate

32
Ibid.5.
33
S.52-55 of the Ordinance.
34
Mutawalli includes a committee of management.
35
Section 52 (b) requires that such statement shall also contain the following p articula rs - (i) any
change which may have taken place since the application for enrolment or since the submission of the
last annual statement, as the case may be, in the extent, nature or quality of the waqf properties
including transfer, acquisition or transaction affecting such properties. (ii) the amount of the
liabilities, if any, of the waqf on account of outgoings such as rent, rates, taxes, salaries and
allowances and on account of all other matters; and (iii) any other particulars which the Administrator
may require. Section 52 (c) provides that in the case of a Receiver appointed by any court in any suit
or proceeding in respect of a waqf property he shall submit a statement of accounts to the
Administrator under the provisions of this section in addition to the statements that may be submitted
by him to the court.
36
Section 52 of the Ordinance requires submission of waqf account every year. Therefore,
Administrator’s power to call for an account of waqf property is not limited to one year only.
37
It was observed in Yar Ali Khan v Administrator of Waqfs (20 DLR 535) that such rendering of
accounts of waqf is not necessarily for the purpose of detection of mal-administration.
38
Ibid.

138
information on accounts makes it difficult for the inspectors to submit a complete

report to the Waqf Administrators Office.39

After enrolment of a waqf according to section 47 of the Ordinance the first

submission of waqf accounts becomes due by the fifteenth day of September next

following the date of enrolment. Thereafter accounts of waqfs must be submitted to

the office of the Administrator before fifteenth day of July every year.40

The Ordinance requires41 every mutawalli42 of a waqf shall prepare and

furnish to the Administrator a full and true statement43 of accounts of waqfs for the

period44 he is either singly or jointly in-charge of the waqf estate.45 The Waqf

Ordinance provides46 that before the fifteenth day of July in every year, every

mutawalli of a waqf shall prepare and furnish to the Administrator a full and true

statement of accounts,47 containing such particulars48 as may be prescribed by the

39
Ibid.
40
S.52-53 of the Ordinance.
41
S.52-55 of the Ordinance.
42
Mutawalli includes a committee of management.
43
Section 52 (b) requires that such statement shall also contain the following particulars- (i)any change
which may have taken place since the application for enrolment or since the submission of the last
annual statement, as the case may be, in the extent, nature or quality of the waqf properties including
transfer, acquisition or transaction affecting such properties. (ii) the amount of the liabilities, if any, of
the waqf on account of outgoings such as rent, rates, taxes, salaries and allowances and on account of
all other matters; and (iii) any other particulars which the Administrator may require. Section 52 (c)
provides that in the case of a Receiver appointed by any court in any suit or proceeding in respect of a
waqf property he shall submit a statement of accounts to the Administrator under the provisions of this
section in addition to the statements that may be submitted by him to the court.
44
Section 52 of the Ordinance requires submission of waqf account every year. Therefore,
Administrator’s power to call for an account of waqf property is not limited to one year only.
45
It was observed in Yar Ali Khan v. Administrator of Waqfs (20 DLR 535) that such rendering of
accounts of waqf is not necessarily for the purpose of detection of mal-administration.
46
The Waqfs Ordinance 1962, S.52(a).
47
In Yar Ali Khan Chowdhury v Administrator of Waqf (20 DLR 535) the question was raised if the
purpose of section 52 of the ordinance was to detect mismanagement. The court was of the view in this
case that the purpose is not necessarily to detect maladministration rather it is for the purpose of proper
maintenance.
48
Section 52(b) of the Ordinance requires that such statement of account shall also contain the
following particulars: (i) Any change which may have taken place since the application for enrolment
or since the submission of the last annual statement, as the case may be, in the extent, nature or quality
of the waqf properties including transfer, acquisition or transaction affecting such properties. (ii) The
amount of the liabilities, if any, of the waqf on account of outgoings such as rent, rates, taxes, salaries
and allowances and on account of all other matters; and (iii) Any other particulars which the
Administrator may require. Section 52(c) provides that in the case of a Receiver appointed by any

139
Administrator, of all moneys received or expended by the mutawalli on behalf of the

waqf during the period of twelve months ending on the thirtieth day of June or on the

last day of the Bengali year,49 or, as the case may be. The Ordinance similarly

requires50 that the accounts of waqf fund be audited51 annually by an auditor

appointed by the Government.

The appointed auditor shall prepare and submit the audit report to the

Administrator of Waqfs in accordance with section 53(3) of the Ordinance. In

preparing the report the auditor may by written notice require any person or document

to be before him that he finds necessary to prepare such report.52

The audit report shall specifically make mentions of the followings:

a. Any irregularities of illegal or improper expenditure;

b. Failure to recover money or other property lost by neglect or misconduct;

c. Any loss of property or money;

d. Names of persons who is responsible for such expenditure or failure

together with the amount of such expenditure or loss due from such

persons;

Court in any suit or proceeding in respect of a waqf property he shall submit a statement of accounts to
the Administrator under the provisions of this section in addition to the statements that may be
submitted by him to the court.
49
Parallel to the English calendar the Bengali calendar is followed in many business and institutions in
Bangladesh.
50
The Waqfs Ordinance 1962, S.72(1).
51
Under section 52 (1) of the Ordinance, the accounts of waqfs submitted to the Administrator shall be
audited and examined annually or at such other intervals as the Administrator may determine by an
auditor appointed by the Administrator. Subsection (2) provides that the auditor may, by written notice,
require tile production before him of any document, or require the attendance before him of any person
responsible for the preparation of the account, to enable the auditor to obtain such information as he
may consider necessary for the proper conduct of his audit. Subsection (3) provide that after completing
the audit, the auditor shall submit a report to the Administrator; Provided that the auditor may submit an
interim report at any time if he thinks fit. And subsection (4) provides that the report of the auditor
shall, among other things, specify the cases of irregular, illegal or improper expenditure or of failure to
recover money or other property lost by neglect or misconduct, loss of any property or money, and any
other matter which the auditor considers it necessary to report. The report shall also contain the name of
any person who, in the opinion of the auditor is responsible for such expenditure or failure and the
auditor shall, in every case, certify the amount of such expenditure or loss as due from such person.
52
The Waqfs Ordinance 1962, S.53(2).

140
 e. Any other matter the auditor thinks necessary to report.53

4.2.2.5 Remuneration

The Ordinance provides for remuneration for a mutawalli if the waqf deed does not

provide for such remuneration. Or even the waqf deed provides for remuneration but it

is considered to be inadequate, the mutawalli will have the right to apply to the

Administrator of Waqfs for an increment in his remuneration.54 Administrator may

then fix a sum as remuneration not exceeding one-tenth of the net available income of

the waqf estate.

However, it is observed that many a mutawalli gets a share in the income of the

waqf estate as his remuneration in addition to various other amenities and benefits that

he is allowed to enjoy under the waqf deed, not because he is mutawalli but because

he is a descendant of the wāqif. Therefore the share so reserved for the mutawalli is

held as a benefit intended to accrue to the advantage of a member of the wāqif’s

family and not as expenditure connected to the management of waqf estate.55 Waqf is

supposed to provide charity and not luxury. But in such situations a huge chunk of

waqf income together with a host of amenities and benefits are lavishly consumed by

the mutawallis at the cost of many deserving beneficiaries.

During enrolment of a waqf property the particulars that are to be submitted to

the Administrator of waqf include information on salary of the mutawalli.56 However,

the Ordinance further provides that in the event that there is no fixed salary mentioned

in the waqf deed for the mutawalli, or where the amount mentioned is inadequate, the

mutawalli may apply to the Administrator to fix a salary for him. The Administrator

53
The Waqfs Ordinance 1962, S.53(4).
54
The Waqfs Ordinance 1962, S. 69.
55
See for details Md Fakirullah Miah v. Commissioner of Waqfs, 4 DLR, 173.
56
The Waqfs Ordinance 1962, S.47(3)(i).

141
then may fix a sum not exceeding one–tenth of the net available income of the waqf as

the remuneration for mutawalli.57

Besides, a mutawalli is entitled58 to pay certain costs from waqf fund or from

the income of the waqf property. This includes any expenses properly

incurred by him for the preservation or benefit of the waqf property and for the

purpose of enabling him to furnish any particulars, documents or copies59 or

any accounts60 or any information or documents required by the Administrator

or a person authorised by the Administrator 61.

4.2.2.6 Lack of Progressive and Innovative Ideas

It is sadly observed that progressive and innovative ideas for the development and

extension of waqf properties are not much in evidence, neither from public nor from

private sector. The great majority of mutawallis and managers do not think in terms of

57
The Waqfs Ordinance 1962, S. 69. In M d . F a k i r u l l a h M i a h v C o m o f W a q f s ( 4 D L R 173)
it was observed that where a mutawalli is given a share in the net income of the waqf estate as his
remuneration which was not included in the expenditure of the management of the estate separately
provided in the waqfnama which also allowed his various amenities which could not be on account of
his position as a mutawalli but could be only as a descendant of the waqif, the share so reserved must
be held as a benefit intended to accrue to the advantage of a member of his family and not as an
expenditure connected with the management o f w a q f .
58
The Waqfs Ordinance 1962, S.60.
59
The Waqfs Ordinance 1962, S.47.
60
The Waqfs Ordinance 1962 S.52.
61
It was observed b y the cour t in Md.Yakub v. Ali Muhammad (10 DLR, 27) that the
mutawalli may do all acts that are reasonable and proper for the protection of the waqf property and for
the administration of the waqf. The mutawalli may employ for hire agents or managers for the
administration of the waqf whenever he is empowered by the declaration of waqf, or it is necessary, or
in accordence with the usual course of business to do so. It is stated in the Hedaya : "it is incumbent
that the income of an appropriation be in the first instance expended in the repairs of whether the
appropriator may have stipulated for this or not". There must not be any neglect on the part of the
mutawalli in the supervision and examination of his cash balance. Although there was gross neglect on
the part of the mutawalli in the supervision and examination of his cash balance, yet as there was
evidence of fraud or mutual connivance at the delinquency of the treasurer, the former was entitled to
recover from the sureties the sum misappopriated by the treasurer. When the waqif spends the income
for his maintenence in accordance with the direction embodied in the waqf-nama, the income is simply
being applied to a purpose for which the waqf was created. It should be remembered that the income,
even during the life time of the founder, is not the personal property of the founder. The income is Waqf
; only it is to be spent for maintenance of the waqf, a purpose which Hanafi Law regards as a charitable
purpose. If out of the income, which accrued during the life time of the waqif, some part remained
unspent, it will not pass to his personal heirs. It will just be the income of the waqf property in the hand
of the mutawalli.

142
suitably adjusting the objects of the waqfs in these changing times. Mutawallis, even

those who are known and believed to be honest, have no concept of property

maintenance and development. The idea of investment in man, that is, upgrading of

Muslim human capital through education and training has not been given any

attention. Most waqf deeds do not have a built-in-provision for maintaining property.

The above mentioned sad state of affairs raise doubts about the efficacy of the

existing waqf legislation, the waqf administration which operates under it, and the way

in which the management of waqf properties is handled. The problems mentioned

above are deep rooted. The waqf administration is far from being satisfactory and

efficient. If the Ordinance was enacted to eradicate the evils tormenting the holy

purpose of the waqf institution in Bangladesh, it has failed to achieve its purpose. The

Ordinance in the present circumstances is not potential enough to become the model

waqf legislation in Bangladesh. It must be replaced by a new one. In this respect, a

legal and administrative analysis is necessary.

4.2.2.7 Wakifs’ Objectives Marred by Selfishness

Complaints are often heard that the compensation money derived from the acquisition

of waqf properties are kept for the personal use of the officials. 62 The Ordinance

provides that where any waqf property is acquired under the Land Acquisition Act,

1894, (Act I of 1894) or any other law for the time being in force, the compensation

money payable for such property shall be paid to the Administrator and shall be kept

in deposit in the Waqf Fund till it is invested for the purposes stated in sub-section (3)

of section 74.63 This provision should be reviewed and amended to prevent possible

corrupt practices on the part of the Administrator. Such amendment will surely build
62
Sadequr Rahman,139.
63
The Waqfs Ordinance 1962, S.85.

143
public confidence in Waqf Administration in Bangladesh and ensure that the Waqf

institutions are above corruptions and irregularities.

4.3 WAQF PROPERTY RELATED PROBLEMS

A huge portion of the total waqfs in Bangladesh is land properties. From non-

enrolment to unauthorised occupation; and from mismanagement to loss due to natural

disasters, a host of issues surround waqfs estates that are crippling the waqf sector.

Although some of these problems are an ‘act of God’, many others are man made and

are avoidable. Some of the prominent issues are as follows:

4.3.1 Illegal Occupation of Waqf Properties

Many of the awqāf properties are illegally occupied by private individuals and or

organisation and groups or even by government agencies. It has been reported, just to

mention one prominent example, that the country’s Police Headquarters in Dhaka

stands on a waqf land.64 This area (that the Police HQ occupies) is in the heart of the

capital city. It could be developed into a huge profit earning business enterprise. Many

waqf properties are under-utilised such as being leased at a very low rental rate while

many others are being misappropriated.65

There are innumerable cases of neglect and encroachments and illegal

occupations. There is hardly any machinery to detect this and to recover the property

in and outside the courts of' law. No social pressure exists for such recoveries.

Adequate and competent staff are lacking and as a result the single Waqf Committee

for the whole country cannot make frequent and thorough inspections to prevent the

64
Sadequr Rahman,139.
65
For details of such misappropriation see “In Pursuit of Power: Local Elites and Union-Level
Governance in Rural Northwestern Bangladesh” Care Bangladesh. August 2002, 17.

144
mismanagement of waqf properties. The 5% contribution from waqf income which is

diverted towards the Committee has not benefited the country very much. Nearly the

whole amount is spent in administration. Nor is the contribution realised effectively

and very large realisable balances are reported to have accumulated. Therefore it can

be said to the minimum that the Waqf Committee of Bangladesh have not delivered

any good for the country and so is the case with the mutawallis.

4.3.2 Requisition and Government Annuity

Government has taken over various waqf properties through requisition for which the

government did not pay any compensation money or yearly annuity. 66 In order to run

and bear the administrative costs, the Waqf Administration depends heavily on the

contributions from the waqf estates and the annual annuity from the Government.

Waqf properties that are taken over by the Government through requisition are the big

estates; such as the land occupied and used by the Police Head Quarters. As such the

Waqf Administration could earn a sizable income as annuity from such properties,

which did not happen. As a result the Waqf Administration is losing a lot of money as

annuity which could help achieve the welfare objectives of the wāqifs.

4.3.3 Non Enrolment

Although section 47 of the Ordinance requires that “all waqfs existing at or created

after the commencement of this Ordinance shall be enrolled at the office of the

Administrator”, more than one-third of the total waqf properties in Bangladesh

remains unregistered. Sub section (2) of section 6, however, provides for such waqfs

to be enrolled as required under Chapter four of the Ordinance. This may be

66
Ibid.

145
interpreted to imply that the Administrator may invoke section 6(1) to conduct regular

survey so that the newly found waqfs may be enrolled. Otherwise, sub section (1) may

be rendered inapplicable. According to the Census of Waqfs, out of 150,593 waqf

estates in the country, only 97,046 are registered, 45,607 are verbal and the rest 7,940

are waqf by tradition. These shows as many as 53,547 waqf estates are not registered.

If there is any change in the management of an enrolled waqf which may be

occasioned by the death, or retirement or removal of mutawalli, the prospective

mutawalli is to notify the change to the Administrator.67 In case of any other change

in any of the particulars mentioned in section 47, the mutawalli shall, within six

months from the occurrence of the change, notify such change to the Administrator.68

The reasons for not enrolling the waqf estates are not clearly known. In the

event of a dispute as to the waqf character of a property, the question whether it is a

waqf property needs to be resolved first. In such situation the property may remain un-

enrolled pending decision. If such question is raised either before or at the time of

enrolment or after the enrolment, the jurisdiction to decide the waqf character is that

of the Administrator. The Waqf Ordinance being a special statute providing a special

procedure is to be followed. The cognisance of the civil court is to that extent

excluded.69 In SSM Osman Ghani v Bangladesh,70 it was highlighted that the Waqfs

Ordinance 1962 provides an adequate, sufficient and comprehensive forum and

procedure to decide the question if it is waqf property.

However, the non enrolment could be due to various other factors. First, the

existence of the Waqf Administration is not known to many people particularly in the

rural areas. Second, there might be a deliberate attempt not to register to evade being

67
The Waqfs Ordinance 1962, S. 51(1).
68
The Waqfs Ordinance 1962, S. 51(2).
69
Ibid. Section 50, also see S.Masud Ali v. Md. Asmatullah, 31 DLR (AD) 249- 254.
70
DLR, Vol 39, 451.

146
controlled by the waqf administration. Third, to evade payment of 5% levy as this

payment is imposed upon all registered waqf estates. As such the Waqf

Administration has no control whatsoever over these estates.71 This is a very

disappointing state of affairs which must be addressed seriously. Bringing these

estates under the direct control of the office of the Administrator would, among many

other benefits, definitely increase the waqf income in the country.

4.3.4 Loss Due to Natural Disaster

Many waqf lands have been lost to natural disasters. During monsoon season

Bangladesh regularly faces overwhelming floods that causes erosion of river bank,

resulting in disappearance of valuable land properties into river belly. 72 Many of such

properties are in remote parts of the country and due to lack of manpower73 the Waqfs

Administrator’s office is unable to obtain and trace accurate statistics on such loss.

4.3.5 Unauthorised Alienation and Transfer

Instances of unauthorised alienation and transfer of waqf properties pose one of the

biggest problems. Though the Ordinance puts a bar on transfer of immovable waqf

properties by a mutawalli, for which the term exceeds 5 years without prior sanction

of the Administrator, such transfers and alienations such as lease, mortgage, sale, gift,

exchange etc do occur.74 Any such transfer without prior approval from the office of

71
Sadeq, A. H. M.166.
72
Office of the Adminstrator of Waqfs, Bangladesh, 6.
73
Ibid.
74
In Sirajul Karim Chowdhury v. Heirs of deceased Abul Khayer Chowdhury, Md Abu Ali Chowdhury
and Others ( 2 BLC, 517), it was observed by the learned judge that since the land under waqf is given
away to Allah s.w.t. for the purpose of His house for which the Mosque and the said land cannot be
alienated by anybody or even by the mutawalli unless any provision is made to that effect in the deed of
waqf by the waqif himself. I n ano ther case Narain Das v. Kazi Abdur Rahim, (24 CWN 690)it was
held that the mutawalli of a waqf estate is not the ostensible owner of the estate but a mere manager and
in the case of a public charitable endowment the legal ownership is in the Devine Being or in the

147
the Administrator is invalid by virtue of section 56 of the Ordinance. 75 As to the

recovery of such property, the Administrator may institute a suit or proceeding in a

court under S-83 of the Ordinance, which provides:

"If there is no mutawalli or the mutawalli refuses or neglect to act in the

matter, within a reasonable time, the Administrator may, in his own
name, institute a suit or proceeding in a court against a stranger to the
waqf or any other person (a) for the establishment if right, title and
interest in a waqf property, or (b) for confirmation of possession in a
waqf property, or (c) for the recovery of any waqf property wrongfully
possessed, alienated or leased. or (d) for having any waqf property
discharged of an encumbrance or obligation wrongfully created, or (e)
for the recovery of any money belonging to waqf. or (f) for any other
relief in the interest of a waqf he may consider necessary."

Moreover, the general procedure which is usually followed appears to be that,

in case the mutawalli or the stranger defies this provision, the Administrator may send

a requisition to the Deputy Commissioner within whose jurisdiction the property is

situated to obtain and deliver possession of the property to him. On receipt of such

requisition, the Deputy Commissioner shall take action. Any person aggrieved by the

order of the Deputy Commissioner may prefer an appeal to the District Judge within

whose jurisdiction the property is situated. The decision of the District Judge or when

there is an appeal the decision of the High Court shall be final. Surely, the above

procedure involves delay and costs. Therefore, a tribunal could be set up to handle

these matters more efficiently.

It is to be noted that Section 33 of the Ordinance authorises the Administrator

to transfer waqf property for the purpose of improvement and benefit of the waqf.

However, section 56 restricts the power of the Administrator by providing that the

charity created in His name. A transfer by a mutawalli who assumes to deal with the trust property as if
he were the true owner in breach of his or her duty and in fraud of the trust reposed in him is ultra vires
and may be avoided by timely proceedings properly taken for the purpose.
75
Ibid.

148
Administrator’s sanction must not validate any transfer which is in contravention of

any other law for the time being in force.76

4.3.6 Small and Insignificant Size

A vast number of waqf properties are small in size and insignificant in terms of its

value and output for beneficiaries.77 Such waqfs are mostly found in rural areas and

include small Musalla (Prayer Hut), small pond, small or family graveyards etc., many

of these waqfs are non-income-generating waqfs. Most of the mutawallis of such

waqfs are less educated or even illiterate villagers who have no knowledge of proper

waqf management and keeping proper accounts of income and expenditures.78

4.3.7 Dargah and Mazar (Shrine)

Mazars and Dargahs79 are a common sight in both urban and rural Bangladesh. Many

of them are big and famous and some of them are centuries old, while some others are

not so big and famous. Dargahs and Mazars constitute a big portion of the waqf

estates in Bangladesh. Most of these estates are recognised as waqf by long user.80

Some of these waqf estates are quite prominent where devotees come from every

corner of the country to pay visit and they include, for instance, Shah Jalal(R) and

Shah Poran(R)’s Mazars in the north-eastern district of Sylhet and Shah Ali Baghdadi

(R)’s mazar in Mirpur, Dhaka.

76
The Waqfs Ordinance 1962, S.56(1).
77
Office of the Administrator of Waqfs, Bangladesh, 6.
78
Ibid.
79
Graveyards of Sufis, Ulama and Priests.
80
Where there is no formal deed on the waqf estate but the owner of the estate has for long allowed the
estate to be used for some religious or charitable purposes such awqaf are known as waqf by user.

149
4.3.7.1 Lack of Control of the Waqf Administration over Dargah and Mazars

There are two hundred and seventeen (217) dargahs that are enrolled under the Waqf

Administration.81 As mentioned above, the Waqf Administration is facing severe

manpower crisis and already struggling with handling a total of 13,808 enrolled waqf

estates with a record low number of total 98 officials in the whole country. With such

a huge manpower deficiency, the Waqfs Administration is naturally unable to pay any

special attention to and control over the management affairs of dargahs and mazars.

As a result dargahs and mazars are being governed by the mutawallis, khadims and

the committee members.

4.3.7.2 Lack of Transparency in the Income and Expenditure

Irrespective of their size, the main source of income of such waqf estates is donations

and nazars82 from the devotees that continue to pour in on a daily basis. The big

estates commonly include in their premise a mosque and or a madrasah and

sometimes an orphanage, which also receive separate donations from people. So the

main sources of income for these estates are various kinds of offerings, hadiyah and

consecration of charities made. Usually devotees would go to such mazars and

dargahs to seek blessings from those saints who are buried in those maqbarahs and

offer valuables such as livestock and domestic animals, poultries and vegetables,

money in cash and jewelry etc. These offerings come in enormous volume particularly

81
The Office of the Waqf Administrator, ‘Ek Nozore Waqf Proshashon’ (‘Waqf Administration At A
Glance’), A report published by the Waqfs Admi istration on the enrolled waqfs in the country. P.
1,1998. according to this report the number of enrolled dargah in the country was 217 untill 1998.
82
Dedicated wealth in cash and kind. Nazars in kind include a wide range of consumer products from
live cows and goats to food grains and various agricultural products including fresh vegetables. These
items continue to come from the devotees everyday. Many of these items are perishables and as such
need to be sold out as the estates either can not consume or do not need such a quantity daily. This is
how these donations in kind are also converted into cash.

150
during the annual celebration of Urs Mahfil83 which is held on a regular basis.

Looking at the volume of crowed that come to any typical mazar, it is anybody’s

guess that these mazars are getting hundreds of thousands of Taka daily from the

donations of the devotees. However, most of these estates do not keep proper accounts

of these incomes; neither do they submit any report to the Waqf Administration nor

publish any annual report on their income and expenditures. This creates doubt and a

lack of transparency as to the real income of these estates and the ways of expenditure.

4.3.7.3 Irregular or Non-contribution

The Ordinance requires every waqf estate to pay annually a contribution at the rate of

five percent of the net available income of the estate to the Office of the Waqfs

Administrator84. However, despite earning a huge income many of such waqf estates

are irregular in paying this statutory contribution; while many others find one excuse

or the other for not paying their contribution to the Waqf Administration at all.85

4.3.7.4 Activities Contradictory to the Core Values of Islam

A lot of activities take place in the Mazars and Dargahs throughout the year. Some of

these activities are contradictory to the core beliefs of Islamic faith; many of these

activities are even considered tantamount to ascribing a partner or rival to Allah

(shirk) by many right thinking ulama. For instance, many devotees while paying visit

to the grave, prostrate to the grave, just like the Muslims do in their daily obligatory

83
A huge annual anniversary get-together of the followers and devotees to commemorate the saints.
84
The Waqfs Ordinance 1962, S.71.
85
Office of the Administrator of Waqfs, Dhaka, “Bangladesh Sharkar Kortrik Gothito Waqf Komitir 20-
04-95 Tarikhey Onushtitabya Prothom Shobhar Karjopotro” (The Working Paper for the First Meeting
of the Waqf Committee Formed by the Government of the People’s Republic of Bangladesh held on
20.04.95). 6.

151
prayers; and seek blessings and assistance from the deceased priest. 86 Besides, when

the annual ‘Urus Mahfil’ is held in the Dargah premise, large scale celebrations

continue for up to two weeks and thousands of devotees come daily to join this

celebration from all parts of the country. The Dargah authority organise ‘Jalsah

Nights’ where famous Ghazal singers sing Ghazals praising and paying homage to the

deceased priest, during which many male and female devotees are seen dancing

together while others enjoy it throughout the night. Instances of various immoral

activities taking place in and around dargah premises are an open secret. The Dargah

authorities seem less than keen in taking steps to stop such practice which is rather

tantamount to encouraging it. This has been tolerated for such a long time that it has

become almost an accepted norm, against which no body seem to have the courage

protesting it; albeit fearing repercussions.

4.4 LEGAL HURDLES

The Waqf Ordinance, presently in force, was enacted in 1962 without repealing the

Bengal Waqf Act of 1934 and to date the status of the Act so remains. Section 103 of

the Waqf Ordinance 1962, however, provides that this Ordinance shall have effect

notwithstanding anything inconsistent therewith contained in any document, decree or

order of any Court, deed, enactment other than this Ordinance. Therefore, by virtue of

section 103, the provisions of the Ordinance shall prevail over the Bengal Waqf Act of

1934 in the event of any provision thereof comes in clash with the Ordinance.

However, decades have past since 1962 when the Ordinance was enacted years

before the birth of Bangladesh in 1971. Since then there has been no significant

86
This researcher has visited some of the Dargahs, such as the Dargah of Shah Jalal (R) and personally
witnessed that the devotees are praying and crying to the deceased priest sitting right by the side of his
grave.

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revision of the law. As a result, due to lack of timely amendments, waqf laws did not

have the opportunity to mature with time.

4.4.1 Power of the Administrator under the Ordinance

Some of the major changes that the Ordinance brought about include; that the very

post of the Waqf Commissioner was re-designated as Waqf Administrator, giving him

some quasi-judicial and administrative powers. So the Administrator of Waqfs has a

wide range of powers and functions to exercise conferred to him by the Ordinance.

Some of the key areas that the Administrator exercises his power are briefly

highlighted here.

The Ordinance in the sub sections of section 27 provides for seven categories

of general powers and functions for the Administrator as follows:

a. That he may investigate the waqf properties in order to determine its

nature and extent and call for their accounts, returns and other relevant

information from the mutawalli from time to time;87

b. That he would exercise his power to ensure that the waqf and its usufruct

are benefiting the group and classes of people for whom the waqf is

dedicated.

c. That he would give directions for the proper administration of waqfs;

87
In the case of Yar Ali Khan Chowdhury v. Administrator of Waqfs (20 DLR 535) it was highlighted
that the Administrator's power to call for account of the waqf property is not limited to one year only
under section 52 of the Ordinance. The mutwatlli has been directed to submit accounts of waqf estates
annually to the Administrator. This does not restrict the powers of the Administrator from asking for
accounts of estates from the Mutwallis beyond the period of one year, because, in view of section
27(a) one of the powers of the Administrator shall be to investigate and determine the nature and extent
of waqfs and waqfs properties and calling from time to time for accounts, returns and information from
Mutawallis. This is a power given to the Administrator in general and wide terms and under this
provision, if not under secton 52 (a), the Administrator is given ample authority to call for accounts of
the waqf estate from the Mutwalli either present of past.

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 d. That for the proper control, administration and management of any waqf

property he himself or his officers and servants or any other authorised

persons would do everything and all such acts that are necessary.

e. That in the event there is no provision in the waqf deed on remuneration

for the mutawalli, he would fix remuneration for him.

f. That he would ensure the money received as compensation for acquisition

of waqf property under any law in force would properly be invested by

him or by mutawalli in charge of the waqf; and

g. That generally he would do all such acts as may be necessary for the

proper and due control, maintenance and administration of waqfs.88

The Administrator is also authorised to transfer any waqf property89 provided

such transfer is intended for development, improvement and benefit of the waqf. Such

transfer may be executed through sale, mortgage, exchange90 or lease if the

Administrator considers it necessary for the improvement and benefit of the waqf.

The Administrator may take over and assume the administration, control,

management and maintenance of any waqf property including any shrine, dargah,

imambara or other religious institution that are part of such waqf property.91 Such

88
In relation to section 27(g) it was held by the court in Abdul Khaleque Sowdagor v. Abu Jafar (12
BLD 426) that there is no scope to appoint permanent mutawalli under section 43of the Ordinance.
89
According to Section 33 of the Ordinance the Administrator may execute such transfer
notwithstanding anything contained elsewhere in the Ordinance or in any other law for the time being
in force.
90
The fiqhi term for such exchange of waqf is ‘istibdal’ whereby the waqf property is replaced by a
better land or property, if the original waqf property is considered to be unstrategic and therefore
unproductive,. The value of the replacing property must be better or equal to original waqf. Such
exchanges are allowed in order to make way for better utilisation of the waqf resources. Such istibdal is
approved by the Islamic legal jurists in various Muslim countries, for instance, it has been approved in
Malaysia by the state Muftis in Malaysia.
91
The Waqfs Ordinance 1962, S.34 provides that the Administrator shall cause a notice to be
served on the mutawalli of the waqf property specified in such notification requiring him to make over,
by a specified date, the possession of the waqf property together with all papers relating thereto; and if
the mutawalli fails to make over possession by the specified date, the Ad ministrator may apply
to the Deputy Commissioner who shall evict the mutawalli and make over the possession of the waqf
property to the Administrator.

154
taking over may only be executed by notification in the Official Gazette,

notwithstanding anything contained elsewhere in this Ordinance, or any other law for

the time being in force, or in any decree or order of any court, or in any deed or

instrument.92 Then Administrator may manage the waqf property taken over by him

through any officer subordinate to him or by an agent or official mutawalli93 or if he

considers necessary, by appointing a managing committee.94 The Administrator is

under an obligation95 to plan a scheme for the waqf property and administer it in

conformity with the wishes of the wāqif and the terms and conditions of the Ordinance

after taking over. He is also required to maintain a complete record of all such waqf

properties taken over by him and keep accounts of income and expenditure; and the

money received or realised in respect of such properties shall be credited to the Waqf

Fund.96

In the event that there is no mutawalli in any waqf, the Administrator may

appoint a person97 to act as mutawalli for such period as he deems fit 98 with notice

92
In Md Abdul Jabbar v. Asia Khatun (28 DLR 333) it was held that Section 34 of the Ordinance
further empowers the Administrator to override the terms of the waqf-deed for appointment of
mutawalli, if there is any impediment to the appointment of Mutawalli in terms of the waqf -
deed.
93
It was held in AJM Asadulla v. AKM Ahmad-ul-Huq (22 DLR 781) that the mutawalli appointed by
the Administrator of waqfs 32(4) and 43 is only to function as a Mutawalli in a stop-gap arrangement as
an acting Mutawalli until a regular appointment is made in accordance with the provisions of Muslim
Personal Law. Such appointment will not disentitle any other competent person to bring proper
action for an appointment of regular and permanent Mutawalli.
94
The Waqfs Ordinance 1962, S.34(3). If a managing committee is appointed according to secton 34,
the mutawalli of the waqf property concerned, the manager or sajjada-nashin, if there be one,
and the Deputy Commissioner or his representative, shall be among the members of the committee
and the President and the Secretary of each such committee shall be appointed by the Administrator from
among the members of the committee.
95
Ibid. S.34(5).
96
Ibid. S.34(6).
97
In appointing a mutawalli in case of vacancy in the office of Mutawalli, the Principle generally
followed is that a member of the Wakif's family will be preferred and a senior member in preference
of a junior. In case of dispute as to who will be the Mutawalli, the Administrator while appointing
Mutawalli for a specified period has to refer parties to a Civil Court. (33 DLR (AD) 108).
98
It was held in Abdul Jabbar v. Attahar Ali (17 DLR, 240) that the Administrator of Waqfs and
District Judge may appoint a person Mutawalli temporarily only ie for a specified period. Under section
43 of the Ordinance the Administrator and in case of an appeal, the District Judge, may appoint a
person to act as Mutawalli only for a specified period which he deems fit in the circumstances of the

155
to all the persons interested in the waqf. Any person aggrieved 99 by such an

appointment may, within three months from the date of the receipt of the notice, appeal

to the District Judge; and the decision of the District Judge shall be final. Such

appointment is allowed in the Ordinance to cater for situations where there is an

impediment100 to the appointment of a mutawalli in terms of the deed waqf or where

the successor to the office of mutawalli is a minor, a person of unsound mind or a

person adjudged insolvent by a competent court of law.

The Administrator may remove a mutawalli on his own motion or an

application of any person. The grounds for such removal are provided in section 32

of the Ordinance. However, such order for removal of a mutawalli shall take effect

only after giving him an opportunity of being heard.101 The grounds for removal of a

mutawalli are as follows:102

a. for breach of trust, mismanagement, malfeasance or misappropriation; or

b. for any act of the mutawalli causing loss of waqf property or affecting the

proper administration, control of preservation of the waqf ; or

case. It is obvious that the Administrator has been empowered to make a temporary appointment limited
to a specified period. He cannot pass an indefinite order of appointment without any limitation as to the
duration of the office of the mutawalli appointed by him. The power of the District Judge in appeal is
also similarly limited.
99
See above footnote no.56.
100
See above footnote no.51.
101
It was held in Shaukat Ali vs. Administrator of Waqfs (29 DLR,SC 276) that when passing an
order under section 32 (1) t he Administrator of Waqfs acts judicially and any such order
passed without giving an opportunity to the party affected by the order to be heard will
not be a judicial order.
102
The Waqfs Ordinance 1962, S. 32(1). Under section 32 of the Waqf Ordinance a Mutawalli may be
removed for breach of trust, mismanagement, malfeasance or misappropriation. He can also be removed
for any act causing loss of the waqf property or affecting the proper administration, control or
preservation of the waqf and also when he had been convicted under section 61 of this
Ordinance and lastly, if he is found unsuitable, incompetent, negligent or otherwise undesirable. Any
matter not envisaged in the provisions of section 32 for the purpose of removing a mutawalli from
his office, his removal will be illegal. (35 DLR 277).

156
 c. if the mutawalli has been convicted more than once under section 61 of

this Ordinance;103 or

d. i f t h e ex i s t i n g m u t a w a l l i i s f o u nd u ns u i t a b l e , incompetent,

negligent or otherwise undesirable.104

The Alaws under -dinistrator may sometimes feel the necessity to make by

.anagarial needsprovisions of the Ordinance to facilitate various administrative and m

and may laws are to be published from time to time in the Official Gazette-Such by

:be made for the following purposes

a. the time and place of meetings of the Committee;

b. the business to be transacted at meetings;

c. the period of notice of meetings and the manner in which such notice shall

be given;

d. the procedure and conduct of business at meetings;

e. the books to be kept at the office of the Administrator

f. the manner in which the accounts of waqfs shall be kept and audited, the

time and place of audit of accounts of waqfs and the form and contents of

the auditor's report;

g. the fees for inspection of proceedings and records of the Administrator

and for copies of the same.105

103
Apart from section 32 two other sections also provide grounds for the removal of mutawalli. In
Tobarak Ali Sikder v. Administrator of Waqfs )45 DLR 70 it was held that (Sect io n 3 7 o f t h e
Ord i na n ce g i ve s t he Administrator of Waqf an option either to remove a mutawalli or to take over
the waqfs estate for its management and control or to take any other action as he deems fit. Section 37 is
however to be read with sections 34 and 39. In the facts of this case the Waqf Administrator should not
have appointed a committee for management of the waqf estate in place of the mutawalli.
104
It was held in Golam Athar Chowdhury v. Administrator of Waqfs (36 DLR AD, 203) that
under s.32 removing a mutawalli is applicable before the District Judge whose order is open to
revision by the High Court Division. An order appointing a mutawalli under s.43 is applicable to
the District Judge whose order is final. No appeal to order revision lies against an order passed
under s.44 of the Ordinance.
105
S.45 of the Ordinance.

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 h. the form of application for enrolment, the particulars to be contained

therein, and the manner and place of enrolment of waqfs.106

i. the further particulars to be contained in the register of waqfs

maintained107 and

j. the form of, and the further particulars to be contained in, the statement of

accounts 108

However, according to section 15 of the Ordinance, the Administrator of waqfs

would need prior sanction of the government from time to time to determine the

number of officers needed, their designations and grades. He may also employ

servants if necessary and determine their salary and other benefits according to the

Ordinance.109

As mentioned above, the statutory set up of waqf administration in Bangladesh

also allows Waqf Administrator to exercise quasi-judicial power to settle waqf

disputes. But in many instances mutawallies bring the waqf cases to the Court where

every trick is employed to get them decided in accordance with the convenience of

parties. The Courts do not have the means to make proper investigation into the affairs

of waqf estates and go by records that are tempered, and evidences given by hired

witnesses. The waqf administration is thus sidelined. However, sadly enough, the waqf

administration is also accused of giving less than impartial and just decisions, and

complaints of bribery against the waqf officials are not uncommon. In many cases, the

106
The Waqfs Ordinance 1962, S.47.
107
Ibid. S.48.
108
Ibid. S.52.
109
The power given to the Administrator therefore is not absolute; apart from section 15 of the
Ordinance there are other sections, such as section 17, that indicate that Administrator’s decision may
be altered by the government if it is deemed fit when an appeal is filed against his decision. So it may
be said that there is a good check-and-balance when it comes to the powers of the Administrator which
the law may have intended to prevent corrupt practices and abuse of power, if any, on the part of the
office of the Administrator of Waqfs.

158
integrity of the waqf officials is questioned. The statutory checks imposed to check

corrupt practices are found to be inadequate and the amount of autonomy granted to

the waqf administration is one of the causes of cover-ups.

4.4.2 Backlog of Cases and Lengthy Process of Waqf Disputes Resolution

A huge number of waqf related disputes are adjudicated by the various Courts and the

Waqf Administrator’s office.110 This number is increasing everyday and a backlog of

cases is easily built up. The Waqf Administrator performs quasi-judicial functions.

Disputes related to illegal possession or transfer of waqf estates, misappropriation,

improper management, and so on, are referred to the Waqf Administrator. He conducts

the hearings like a Judge, and delivers judgment, which is binding unless it is

overruled by an Appeal Court. In cases of illegal possession or transfer a waqf

property, or illegal interference in the management of Waqf estates, Waqf

Administrator enforces his order with the help of the local administration of the

Government at the district level. However, as mentioned above, compared to the total

number of waqf estates in the country, a very small number of officials are managing

the waqf sector and as such the waqf administration in is over-burdened not only with

a large number of cases but also many other relevant matters that require due

attention. This results in slow and inefficient operation.111

4.4.3 Action against Trespass and Illegal Occupation

Illegal occupation of waqf estates is probably single most important threat to the waqf

sector in Bangladesh. According to a report, more than 125,000 waqf estates are being

110
Karim, M.F., no.1.
111
Office of the Administrator of Waqfs, Dhaka, “Bangladesh Sharkar Kortrik Gothito Waqf Komitir
20-04-95 Tarikhey Onushtitabya Prothom Shobhar Karjopotro”,7 – 9.

159
illegally occupied in the country;112 a vast majority of these estates are not enrolled

with the Waqfs Administration. Representatives of the Waqfs Administration in

various districts have no power to force out the illegal occupants without help from

local district authorities.113 Most illegal occupants are local thugs with connections

with local elites. Some of the illegal occupants have criminal records. Due to lack of

manpower, waqf administration is unable to take action against such illegal occupants.

In addition, regular communication and close cooperation between waqf officials and

the district officials are also seriously lacking, which could otherwise strengthen

initiatives to recover the illegally occupied waqf estates.114

4.4.4 Lack of Legal Representation of the Waqf Administration at the District Level

The waqf administration in Bangladesh is highly centralised. The divisional and

district level officers do not have power to make decisions and pass order. The power

to make decisions and to give orders lies solely with The Administrator sitting at the

Headquarter in Dhaka.115

4.4.5 Difficulties in Applying Certain Provisions of the Ordinance

The Waqfs Ordinance 1962 is the main law in force in the country governing waqf

sector. Looking at the trends of waqf related disputes that pour in heavily in the courts

over the years; we observe that there are some complexities and limitations

surrounding some of the provisions of the Waqfs Ordinance 1962. In particular, such

sections involve Sections 32, 34, 43, 44, 47, 50, 61 and 64 among others.

112
Sadequr Rahman, 139.
113
Ibid.
114
Ibid.
115
Karim, M.F.110.

160
 Section 32 provides for removal of mutawalli in certain cases and his liability

for breach of trust. When read together with section 43 that provides for appointment

of mutawallis in certain cases; the court feels that section 43 has no application. In AS

Rahid Bakht Mazumdar v Mukhtar Mazumdar116 the learned judge was of the opinion

that section 43 has no application where there is removal of a mutawalli under section

32; when a mutawalli is removed under section 32, the office falls vacant and calls for

an appointment. In Amir Sultan Ali Hyder v Md K Alam117 it was observed by the

court that the District Judge has the same legal authority as the Administrator under

section 43 in appointing a mutawalli.

Similarly, Section 44 of the Ordinance provides that the Administrator may

appoint an ‘Official Mutawalli’ notwithstanding anything contained in the ordinance

or any other law in force or any deed or instrument. In Golam Ather Chowdhury v

Administrator of Waqfs118 it was held that no appeal or revision lies against an order

passed under section 44. However, an order under section 32 removing a mutawalli is

appealable before the District Judge whose order is open to revision by the High Court

Division. Likewise, an order under section 43 appointing a mutawalli is also

appealable to the District Court Judge whose order is final. In short, the cases dealt

with under these sections obviously demonstrate that the equal and dual jurisdictions

of the Waqfs Administrator and the District Court Judge in settling wqaf disputes are

creating an atmosphere where disputing parties naturally choose an option that suits

them most. In one hand the District Judges do not always have all the records and

information on the waqf estate that may be necessary to decide a case. This weakness

serves as strength for many who have vested interest in the disputed waqf and want an

116
19 DLR, 65.
117
29 DLR (SC), 295.
118
36 DLR (AD), 203.

161
easy way out by referring the case to the District Judge’s court. The Office of the

Administrator, on the other hand, has all the relevant information necessary to deal

with the case and the disputing parties are likely to get a fair decision. However, many

would bypass the Administrator’s office for reasons they are not bound to explain to

anyone.

4.4.6 Action against Misappropriation and Breach of Trust

Instances of misappropriation of waqf property and breach of trust on the part of both

mutawalli and beneficiaries are not uncommon.119 In such cases the Ordinance does

not authorise the Administrator to take punitive actions such as suspending the

mutawalli or sacking him or issue an injunction on the relevant parties. In the absence

of such mechanism the Office of the Waqfs Administrator is unable to take any swift

action in order to avoid further loss to the waqf estate.

4.4.7 Absence of Provisions in the Waqfs Ordinance 1962 Relating to

Development of Awqāf

The Waqfs Odinanace 1962 contains no provision concerning the development of

waqf properties. This is a stagnant situation due to which many of the waqf properties

are not utilised fully or remain idle. Those estates that are in use are under-utilised, i.e.

they are not developed to their optimum level. The Indian Waqf Act 1995, for

instance, regards the issue of development of waqf properties as a function of the

Waqf Board of every state in India to undertake the development of Awqāf. Section 32

of the Indian Waqf Act 1995 provides in its sub-sections (4) to (6) as follows:

119
Office of the Administrator of Waqfs, also see Sadequr Rahman, above.

162
 (4) Where the Board is satisfied that any waqf land, which is a waqf
property, offers a feasible potential for development as a shopping
center, market, housing flats and the like it may serve upon the
mutawalli of the concerned waqf a notice requiring him within such
time, but not less than sixty days, as may be specified in the notice, to
convey its decision whether he is willing to execute the development
works specified in the notice.
(5) On consideration of the reply, if any, received to the notice issued
under sub-section (4) the board, if it is satisfied that the mutawalli is not
willing or is not capable of executing the works required to be executed
in terms of the notice, it may, with the prior approval of the Government
take over the property, clear it of any building or structure thereon,
which, in the opinion of the Board is necessary for execution of the
works and execute such works from waqf funds or from the finances
which may be raised on the security of the properties of the waqf
concerned and control and manage the properties till such time as all
expenses incurred by the Board under this section together with interest
thereon the expenditure on maintenance of such works and other
legitimate changes incurred on the property are recovered from the
income derived from the property: Provided that the Board shall
compensate annually the mutawalli of the concerned waqf to the extent
of the average annual net income derived from the property during the
three years immediately preceding the taking over of the property by the
Board.
(6) After all the expenses as enumerated in sub-section (5) have been
recouped from the income of the developed properties, the developed
properties shall be handed over to mutawalli of the concerned waqf.

The absence of a similar provision in the Waqf Ordinance 1962 is a serious

lacking and an impediment to the development of Awqāf. Many waqf estates in

Bangladesh have a lot of potential to be developed into shopping and housing

complexes, office and residential buildings that may bring in large amounts of income.

Likewise, unused cultivable lands may be brought under cultivation and dairy

farming. Waqf estates that are in the hilly areas like Chittagong and Sylhet could be

used for tea plantation, while those in the costal areas could be utilised for fishery and

salt industries. The income generated from these projects could then be utilised for the

benefit of waqf beneficiaries and thus for the benefit of the ummah at large.

163
4.4.8 Action against Misappropriation of Waqf’s Compensation Payments

Complaints are often heard that the compensation money derived from the acquisition

of waqf properties are kept for the personal use of the officials.120 The Ordinance

provides that where any waqf property is acquired under the Land Acquisition Act,

1894, (Act I of 1894) or any other law for the time being in force, the compensation

money payable for such property shall be paid to the Administrator and shall be kept

in deposit in the Waqf Fund till it is invested for the purposes stated in sub-section (3)

of section 74.121 This provision should be reviewed and amended to prevent possible

corrupt practices on the part of the Administrator. Such amendment will surely build

public confidence in Waqf Administration in Bangladesh and ensure that the Waqf

institutions are above corruptions and irregularities.

4.4.9 Trial of Offences Involving Waqfs

Courts with jurisdiction lower than First Class Magistrate Court will have no

jurisdiction to try waqf related disputes under the Waqfs Ordinance 1962.122 Although

the Waqfs Ordinance empowers the Administrator of Waqfs to hear and decide waqf

disputes, the parties are free to refer their cases to the courts. Parties aggrieved by

such decision made either by the First Class Magistrate’s Court or by the

Administrator of Waqfs may appeal to the District Judge and his decision would

override decision of the First Class Magistrate Court or the Administrator of Waqfs.123

120
Sadequr Rahman, 119.
121
The Waqfs Ordinance 1962, S.85.
122
Ibid. S.101.
123
Ibid. S.43.

164
4.4.10 Bar to Suits against Decision of the Administrator

The Waqfs Administrator’s decision on any dispute related to waqfs cannot be

questioned in any court of law; except otherwise expressly provided in the Waqfs

Ordinance.124 The Ordinance clearly bars any court proceedings against decisions

made by the Administrator of Waqfs. However, Section 102 of the Ordinance is

apparently in conflict with section 43 that allows a decision of the Administrator to be

referred to the District Judge and his decision would be final.

4.4.11 Effect of Order Inconsistent with the Ordinance

Once an order or decision is made or an action taken under this Ordinance, according

to section 103 such order or decision will take effect notwithstanding anything

inconsistent contained in any document, decree or order of any court or any other

enactment other than this Ordinance, except otherwise is expressly provided by this

Ordinance. The issues that have been raised in the above point numbers 5.4.5., 5.4.9.

and 5.4.10. are also affected by this section to the extent of their relevance. The court

in Chief Administrator of Auquaf v Md Saeed Khan125 observed that if this view is

taken as correct then it would amount to making the Administrator so powerful an

officer as to be beyond the control of any authority in the country for checking him

even when he happened to commit within broad limits, a worst possible misdeed.

4.5 FINANCIAL AND BUDGETARY CHALLANGES

The Waqfs Administration has to finance its expenditures from within its means; i.e.

from the five percent contribution received from the waqf sector. The Annual Budget

of Bangladesh Government does not have any specific allocation for the Ministry of
124
Ibid., Section 102.
125
PLD 1965, Kar, 490-492.

165
Religious Affairs which administer waqfs sector. However, the Government’s

‘Development Budget’ for the 2013-14 fiscal year shows that a total of 4.7% of the

total budget is allocated for social security and welfare sector.126

4.5.1 Insufficient Budget

The five percent contribution from the waqf estates,127 provided under section 71 of

the Ordinance is an insignificant and trivial amount compared to the needs of the waqf

sector. The Waqfs Ordinance allows the Administrator to borrow money128 from the

government which is a loan and known as ‘Government Annuity’129 that comes in a

lump sum amount in order to meet the shortage of fund and or budget deficit of the

waqf administration. This is not a fixed amount rather it is given based on availability

of fund and ‘as and when’ necessary.

4.5.2 Uncollected Arrears

The recovery of arrears of contribution is another challenge that the waqf

administration faces. The Ordinance requires for annual contribution under its S.71.

Moreover, it provides a punitive method of realising contribution. But, despite these

provisions, huge amounts of arrears have piled up during recent years. In order to put

the finances of the Waqf Committee on an even keel, it is necessary that unpaid

contributions shall be speedily recovered. In this respect, the experiences faced and

procedure adopted under the Indian Waqf Acts 1995 may be taken into consideration.

126
Source: Ministry of Finance (MOF), Government of Bangladesh. See for details:
http://www.mof.gov.bd/en/index.php?option=com_content&view=article&id=222&Itemid=1 (accessed
on 18 July 2014.
127
See paragraph 5.5.3. below for the details on the five percent contribution. Also see paragraph
5.2.2.3, 5.3.7.3 above.
128
Section 72. The money so borrowed is a loan and repayment of the loan with interest must be made
in accordance with section 74(1)(b) of the Ordinance.
129
Office of the Administrator of Waqfs.5.

166
4.5.3 Insufficient Annual Contribution

Section 71 of the Ordinance requires every waqf to pay to the office of the

Administrator an annual contribution of five percent of the net available income of the

waqf. This is such a small amount that it is not even enough to cater for the

administrative cost of waqf administration in the whole country. The Table 4.8 shows

the annual income of the Waqfs Administration for a period of five fiscal years.130

Table 4.8: Annual Income of the Waqfs Administration for a Period of Five Fiscal
Years

Serial No Fiscal Year Amount of Annual Contribution in Taka and

USD
1 2008-2009 Taka 28,319,045.00 (USD 350,000)
2 2009-2010 Taka 32,981,809.00 (USD 412,000)
3 2010-2011 Taka 41,343,409.00 ( USD 516,000)
4 2011-2012 Taka 48,292,215.00 ( USD 600,000)
5 2012-2013 Taka 54,120,888.00 (USD 677,000)

The above chart131 is self evident of the amount collected as ‘Annual

Contribution’ from the waqf estates from all over Bangladesh. Although Bangladesh

has more than 150,000 thousands of waqfs, only 20,216132 waqfs are enrolled with the

office of the Waqf Administration from whom the annual contribution is obtained.

Even than many of the enrolled waqfs are either not paying it at all or their payment is

irregular. Therefore waqf administration is seriously in shortage of fund necessary to

develop the waqf sector in the country.133

130
The Office of the Waqfs Administration, “Bangladesh Shorkarer Waqf Proshashoner Panch
Bochorer Orthonoitik, Shamajik Shoho Bivinno Khate Orjon Bishoye Bistarito Totyahadi Shombolito
Protibedon” (The Detailed Report on Various Success of the Waqf Administration, Including Financial
and Social Aspects Under the Government of Bangladesh). 1-3.November 2013. This Report is also
available in the following website: http://www.waqf.gov.bd/images/Tender/5years_Success.pdf
(accessed on July 16, 2014.)
131
The chart is prepared by the author with the data collected from the report mentioned in the
preceding footnote.
132
The Office of the Waqfs Administration, 130.
133
Ibid.

167
4.5.4 Waqf Fund

Various income and monetary contributions received and realised by the

Administrator of Waqfs under the Ordinance is channeled to a ‘Waqf Fund’.134 The

fund is controlled by the Administrator,135 however, government regulates payment,

investment, custody and disbursement of the fund.136 The Administrator has to keep

and maintain Accounts of the Waqf Fund137 and would be audited annually by an

auditor appointed by the Government.138

4.6 CONCLUSION

This chapter divided the challenges faced by the waqf sector in Bangladesh into

four general categories; such as issues related to administration and management of

waqf; issues that are purely related to waqf properties in the country; legal and

financial issues. Then under each of these broader categories more detailed and

minute issues have been tallied and discussed. It has become obvious from the

discussion and the detailed analysis in this chapter that despite having a vast amount

of waqf assets, people are deprived of the benefits of waqf because the awqāf sector in

Bangladesh is crippled with multidimensional problems and challenges. And without

delving into who to blame, solid steps must be taken by the government and the

relevant authorities to address the problems.

The problem is not the lack of waqf assets; rather it is the lack of proper

maintenance, preservation and management of those assets that need to be addressed.

134
The Waqfs Ordinance 1962, S.73 (1).
135
Ibid. S.73(3).
136
Ibid. S.73(2).
137
Ibid. S.75.
138
Ibid. S.76.

168
The issues that have been highlighted and discussed in this chapter need to be

addressed by the relevant authorities carefully and one by one in order to bring

efficiency in the sector. Efficient Monitoring and Proper Management of Waqf

Properties could bring an enormous amount of income per year from the wealth of

waqfs already existing in the country, which has been subject to neglect for such a

long period. From India to Middle East and from South Africa to Singapore waqf is

being given due attention in proper perspective; not only because of the benefits that

can be yeiled from it for the less privileged section of the population; but also because

it eases the economic burden on a government that may not always be able to afford to

provide the type of assistance the waqf sector does to its population.

169
 CHAPTER FIVE

CASH WAQF IN BANGLADESH AND THE NEED FOR MODERN

AND INNOVATIVE APPROACH TOWARDS AWQĀF: LESSONS

FROM SELECTED COUNTRIES

5.1 INTRODUCTION

This chapter is an attempt to briefly introduce cash waqf and its practice in

Bangladesh. Brief sketch of cash waqf practices in some selected countries; namely

Bahrain, Indonesia, Kuwait, Malaysia, Singapore and Turkey, have also been included

so as to induce learning from them and encourage similar initiatives in Bangladesh so

as to make awqāf more relevant and thereby more beneficial in the social context of

the country.

Today, cash waqf is recognised in the whole Muslim world as one of the most

effective mechanisms in realising the socio economic and welfare objectives of the

institution of waqf. In the Muslim world, it was Imam Zufar who had approved of the

cash waqfs for the first time in the eighth century, on condition that the cash endowed

should be invested through mudaraba and the returns generated be spent for charity.1

Cash waqfs practice can also be traced back to ancient Mesopotamia, Greece and the

Roman Empire.2 During the Ottoman Empire, the Ottoman courts approved the

practice of cash waqf as early as in the beginning of fifteenth century and by the end

of sixteenth century it gained huge popularity all over Anatolia and as far as the

1
Cizakca, Murat. Incorporated Cash Waqfs: Islamic Non-Banking Financial Instruments form the Past
to the Future, INCIEF, 2009.16.
2
Ibid.

170
European provinces of the empire3 and by then cash waqf accounted for more than

half of all the newly created awqāf in the Ottoman Empire.4

A renewed enthusiasm towards cash waqf can now be seen in many parts of the

Muslim world, including Bangladesh. Compared to the standard traditional concept of

dedicating immovable properties as waqf, cash waqf is a favourite to many Muslims,

affluent or otherwise. Bangladesh is one of the densely populated third-world

countries where land is becoming increasingly scarce every day even for agriculture

and housing sector. Therefore cash waqf is a futuristic alternative that is gaining

popularity and acceptance to a wider range of the population willing to get involved in

welfare oriented activities.

5.2 DEFINITION OF CASH WAQF

Cash waqf has been defined by many scholars5. With minor variations, however, their

definitions6 come to a common point that cash waqf is a charitable endowment

established with cash capital permanently dedicated and privately7 owned by a

Muslim, or a group of Muslims or a corporate body governed according to shariah

3
___, Ottoman Cash Waqf Revisited: The Case of Bursa 1555- 1823. Foundation for Science
Technology and Civilisation, FSTC Limited, June, 2004. 1.
4
Ibid.
5
Such as Al-Tasuli from Maliki School defined cash waqf as ‘the process of dedicating cash as waqf
for the purpose of lending it to designated beneficiaries without interest’. Similarly, Zufar from Hanafi
School defines cash waqf as the process of dedicating cash as waqf and then upon investing it the profit
would be used for the specific charitable purpose. Despite slight variations in the definitions there is a
unanimous fatwa among classical scholars that cash waqf is permissible. See for details: Mahadi
Ahmad (2015), Cash Waqf: Historical Evolution, Nature and Role as an Alternative to Riba-based
Financing for the Grassroot.’in Journal of Islamic Finance Vol 4, No. 1,(2015) 063-074. IIUM Institute
of Islamic Banking and Finance.
6
It is neither intended nor in line with the scope of this study to delve into the detailed discussions of
differences of opinions in terms of its definitions and legality given by various scholars, rather it looks
for the common and unanimous grounds for advancing the cause of waqf.
7
Cizakca, Incorporated Cash Waqfs: Islamic Non-Banking Financial Instruments form the Past to the
Future, INCIEF, 2009. 9. Professor Cizakca insists that such an endowment cash capital “must” be
privately owned and placed under a trustee who may be the owner / founder himself.

171
with perpetual dedication8 of its usufruct to be spent on any purpose recognised by

shariah. The definition of waqf in section 2 of the Waqfs Ordinance 1962 includes

‘any other endowment or grant’ to be within the ambit of waqf for the purposes

mentioned in the Ordinance,9 as such cash waqf is deemed to be covered by the

definition.

5.3 MAIN FEATURES OF CASH WAQF

The distinguishing features of Cash Waqfs are as follows:

a. Liquid Fund as Corpus. In a ‘Cash Waqf’ the main corpus is a ‘cash

capital’ as opposed to standard immovable waqfs in which the corpus is

usually a ‘real estate’.10 Any corpus should be waqfable, as long as it

gives some usufruct for others to benefit from it. In Bangladesh many

waqf lands have perished and disappeared by river erosion.11 Then

nothing is nonperishable. Everyone on the face of earth is perishable.12

Simply by being perishable a corpus does not lose its eligibility of being

waqfable so long shariah approves it.

b. Immediate Usufruct. Unlike real estate benefit from cash waqf follows

almost immediately after creating it. An immovable property; such as a

piece of land may be worth millions but unless it is developed into an

income generating project, it is unable to give any benefit. Whereas, even

8
Magda, I. A. M. Cash Waqf: A New Financial Product, Kuala Lumpur, Prentice Hall Pearson
Malaysia Sdn Bhd. 2009. 4.
9
Section 2(10) of the Waqfs Ordinance 1962 reads: "Waqf means the permanent dedication by a person
professing Islam of any movable of immovable property for any purpose recognised by Muslim Law as
pious, religious, or charitable, and includes any other endowment or grant for the aforesaid purposes, a
waqf by user, and a waqf created by a non-Muslim”.
10
Cizakca, no.15. 2. Cizakca argues that irrespective of the debate on the legality of the cash waqf that
started as early as 16th Century, the fact remains that “Cash Waqfs’ are being endowed world wide and
it is gaining acceptance and popularity to wider audience.
11
Office of the Administrator of Waqfs, 6.
12
The Holy Quran, Surah Ar-Rahan :25.

172
 a small amount of cash waqf may start generating income through

investment right from its inception.

c. Affordability and Convenience. Buying real property and dedicating it as

waqf is only affordable to the rich people. With cash waqf it is much easy

and affordable compared to real estate due to high expense and scarcity of

immovable properties. Many Muslims who wish to contribute to the

society through awqāf cannot afford to buy an immovable property, i.e.

land or real estate property because such properties are both expensive and

scarce. Cash waqf brings that opportunity even to not-so-rich people.

d. Remarkable mobility of cash waqf. It enables transfer of waqf capital

across economic sectors13 simply by redirecting loans from one set of

borrowers to another. This makes a huge difference. The core objective of

creating a waqf, cash or otherwise, is to do a good deed by helping others.

This objective is better achievable by cash waqf.

e. Benefits from cash waqf can be provided to varied types of activities such

as education, food, social and religious services14. When the waqf is in the

form of cash-capital and it is invested in order to grow, a regular usufruct

can be earned and has the flexibility to be spent for any welfare purposes.

Such flexibility is not available when the waqf property is an immovable

property such as land; particularly if the land is not being utilised and not

producing regular harvests or otherwise earning a steady income from

rentals etc. If a land based waqf is not at its best in terms of its location,

13
Kuran (2001). 874. As cited by Samiul Hasan in Philanthropy and Social Justice in Islam:
Principles, Prospects and Practices, A.S.Noordeen, Kuala Lumpur, 2007. 217.
14
Baskan (2002). 13. As cited by Samiul Hasan, Ibid.

173
 size and productivity, it is unable to be a steady source of regular usufruct

and the land, despite its current value, lies worthless.

5.4 ECONOMIC BENEFITS OF CASH WAQF

The institution of awqāf in general and the cash waqf in particular has brought

multidimensional economic benefits to many Muslim nations throughout Islamic

history. Many essential services, which otherwise would have been an economic

responsibility and burden on the state, were provided to the citizens at no cost to the

state.15 The cash waqf could fulfill these functions by voluntary donations made not

only by the well to do and rich but also such donations may as well be made by the

poor according their ability, even in small amount of cash. Thus, privately

accumulated capital may be voluntarily endowed to finance all sorts of social services

to the society. By doing this it helps reduce government expenditure and consequently

the rate of interest. Thus waqf can be instrumental in lowering interest rate16 by

providing the most essential social services without the government having to spend

any money on them. Because it helps reduce government expenditure therefore the

rate of interest goes down. Thereby, a cash waqf based system can reduce and even

eliminate riba. Such services include, but not limited to, the following:

In Bangladesh the pioneer bank in Islamic banking is Islami Bank Bangladesh

Limited (IBBL), which has introduced a “Mudaraba Waqf Cash Deposit Account”

with specified options of purposes. This list of purposes is made readily available to

the wāqif who will have the right to choose the purpose(s) to be served either from the

15
Cizakca, M. Awqaf in History and Its Implications for Modern Islamic Economies, Islamic Economic
Studies, Vol. 6, No. 1, November 1998. 1.
16
Ibid. Cizakca argues that even many economists are not aware of the fact that waqf based system can
even lower and finally eliminate Riba (interest) from an economy.

174
list or any other purpose(s) permitted by the Shariah. The list of purposes includes the

following areas:17

a. Family Rehabilitation: This includes improving the conditions of

absolutely poor living below poverty line, rehabilitating physical

handicapped and disadvantaged group of people, beggars, destitute women

and uplifting of urban slum dwellers.

b. Education and Culture: This covers providing formal and informal

education for orphans and poor, development of proper education for skill

development, supporting physical and vocational training, providing

scholarship for deserving students, conducting da’wah activities,

supporting religious education and research, religious and social services

and establishing educational chair.

c. Health and Sanitation: This area includes village health care and

sanitation, supplying drinking water, establishing hospitals and clinics,

health research grant and research in particular disease.

d. Social Utility Service: This includes providing legal aid for the deserving

people in dispute settlement, assisting in marriage of poor girls,

rehabilitating reverted Muslims (New-Muslims) and providing assistance

to peace-loving non-Muslims, maintenance of public roads, mosques,

eidgahs, graveyards, plantation of trees, construction of public utility

services and creating social awareness to prohibit social vices such as

gambling and other anti-social activities.

The services mentioned above provided by IBBL through its cash waqf

programmes would have been otherwise the government’s responsibility. These

17
Islami Bank Bangladesh Limited (IBBL), Instruction Circular No. BCD/836. 01.06.2004.

175
services through awqāf would definitely reduce economic burden on the Bangladesh

government.

5.5 CURRENT PRACTICES OF CASH WAQF IN BANGLADESH

The emergence of Cash Waqf in Bangladesh is an encouraging trend and the degree of

awareness on cash waqf in recent years in Bangladesh has been remarkable. A couple

of private banks in Bangladesh have pioneered in introducing cash waqf. After

government of Bangladesh enacted the Private University Act of 1992, many private

universities and higher learning institutions have been established in the country some

of which are financed by cash waqf. One such institution is the Social Science

Institute (SSI).18 SSI has an endowment fund which is a cash waqf. The cash waqf

fund is kept in the investment fund of an Islamic Bank which operates on the basis of

mudarabah. Then the profits are spent for fulfilling some Islamic objectives laid down

in the constitution of SSI. This is an encouraging trend for the rich segment of

Muslims in the country who may come forward and pool their fund to create cash

waqf to help the poor segment of the population. In this way cash waqf may add a new

dimension to the charity activities in the country.

5.5.1 Cash Waqf as Financing Means of Islami Banks in Bangladesh

The Social Islamic Bank Bangladesh (SIBL), for instance, offers both conventional

financial services and microfinance loans in accordance with Islamic principles and

participates in developing and managing the waqf and other religious institutions.

SIBL started to operate in 1995. As corporate objective, SIBL defined its operation in

three different sectors – formal, non-formal and voluntary. While formal sector deals

18
Sadeq, A. H. M. Awqaf in Bangladesh,168.

176
with general commercial activities as a scheduled bank, non-formal sector aims at

‘Empowering Family’ by creating investment opportunities for micro and SME

clients. Its voluntary sector offers Cash Waqf Certificate Scheme which is an

innovative financial product aimed at social welfare. The Waqf properties are

converted into income generating units and the income so derived is utilised as per

instruction of the Wāqif or in the absence of such instructions, on the basis of Islamic

Shariah.

The Islami Bank Bangladesh Limited (IBBL) has introduced a ‘Mudaraba

Waqf Cash Deposit Account’ (MWCDA) scheme which came into force with effect

from first July 2004. In this scheme the deposited money is invested and the profit is

spent in accordance with the will and wishes of the wāqif.19 The main objectives of

the MWCDA scheme are as follows:

a. to provide Banking services as facilitator to create cash waqf and to assist

in the overall management of waqf;

b. to assist mobilisation of social savings by creating cash waqf with a view

to commemorating alive or deceased parents, children and to strengthen

the integration of the family relationship of the well-off people and the

rich;

c. to increase social investment and to transform the social savings into

capital;

d. to benefit the general public, specially the poor sections of the people out

of the resources of the rich;

e. to create awareness among the rich regarding their social responsibilities

to the society;

19
Islami Bank Bangladesh Limited, Instruction Circular No. BCD/836. 01.06.2004.

177
 f. to assist in developing capital market;

g. to assist in overall development efforts of the country and to make a

unique integration of social security and social peace.

5.5.2 Operational Guidelines of Cash Waqf Based Products Adopted by Some

Islami Banks in Bangladesh

Cash Waqf deposit accounts have long been introduced by a number of Islamic Banks

in the country. All these banks have guidelines for operating this type of account that

are convenient, customer-friendly and motivational in promoting good deeds.

5.5.2.1 Cash Waqf based ‘Mudaraba Deposit Account’

Islami Bank Bangladesh (IBBL), Exim Bank, Shah Jalal Islami Bank and Social

Islami Bank all have introduced ‘Mudaraba Cash Waqf Deposit’ as a product that

creates an opportunity for the wealthy people to invest in different religious,

educational and social services. Income generated from the Cash Waqf fund is spent

for different purposes chosen by the Wāqif.

5.5.2.2 The Objectives of Cash Waqf Mudaraba Deposit Accounts (CWMDA)

The followings are the objectives set by the above banks for the Cash Waqf based

mudaraba deposit accounts:

 To provide assistance in overall development efforts of the country and to

make a unique integration of social security and social peace.

 To help transform the collected Cash Waqf to social capital, as well as to

help develop social capital market.

 To help increase social investment aiming eradication of poverty;

178
  To motivate, promote and encourage rich communities' awareness on their

responsibility for social development in the country and to create

awareness among the rich regarding their responsibilities to the society.

 To stimulate integration between social security and social welfare.

 To provide banking services as facilitator to create Cash Waqf and assist

the deprived people of the society.

 To assist mobilisation of social savings by creating Cash Waqf with a view

to commemorating alive or deceased parents, children and to strengthen

the integration of the family relationship of the well-off people and the

rich.

 To benefit the general public, especially the poor sections of the people

out of the resources of the rich.

 To facilitate for religious activities that are otherwise neglected due to lack

of financial resources.

5.5.2.3 Cash Waqf in Perpetuity and Mutawalli’s Discretions

These Cash Waqf Mudaraba Deposit Accounts are created in Perpetuity where cash

deposit is received as endowment on Mudaraba principle. Bank manages the Waqf

Fund on behalf of the Wāqif. The principal amount of the account will not be allowed

to be withdrawn. But the Wāqif in his/her life time may however transfer the account

else where at his/her own discretion.

In life time, the Wāqif himself will act as the Mutawalli. A Mutawalli

nominates his successive Mutawalli through written application to the bank. After the

demise of the Wāqif, Mutawalli will not be allowed to dismantle the Waqf deposit

amount.

179
5.5.2.4 CWMDA Created with Lump Sum Amount or by Installment

Wāqif has a choice to create cash Waqf with a lump sum amount given at once or on

installment basis where he/she may start with a minimum deposit of Tk,10,000.00

(taka ten thousand) only and the subsequent deposit shall also be made in thousand or

in multiple of thousand taka. In case of installment basis Cash Waqf, advance payment

for any number of installments will be received by the bank. In the event that the

wāqif fails to continue depositing the installment(s), the amount accumulated so far

throughout the period shall be counted for profit to be given to that account. Next year

the Wāqif will get the opportunity to deposit his/her installment(s) again. Mentionable

that, one particular Wāqif will not be entitled to repeat non-depositing of

installment(s) more than five times.

5.5.2.5 Issuance of CWMDA Certificate and Receipt

Cash Waqf is accepted in specified Endowment Receipt and a Certificate for the entire

amount is issued as and when the declared amount is built up in full. In case of failure

of the Wāqif to deposit installment any more, the Wāqif may request in writing to the

effect that he is unable to deposit the rest amount to cover the declared Cash Waqf.

Thereby, he may be issued Cash Waqf Certificate considering the amount so far

deposited.

5.5.2.6 How CWMDA Operates

Cash Waqf Mudaraba Deposit Account (CWMDA) operates as a contract between the

depositor and the bank where the account will be governed by the Mudaraba

Principles of Islami Shariah. In this contract, the depositor is termed as Wāqif or

180
Saheb-Al-Maal or owner of fund and the Bank as Nadjir or Mudarib or business

organiser.

5.5.2.7 Investment in Conformity with Shariah

The amount deposited in the Cash Waqf account is invested as per Bank's own

decision in conformity with the Shariah.

5.5.2.8 High Rate of Investment Income

The Wāqif or the beneficiary under MCWD scheme shall get maximum 65% of

investment income or the percentage as the Bank decides from time to time to their

proportion of deposit applying the weightage allocated there-against. Weightage

against deposit of Mudaraba Cash Waqf Deposit (MCWD) Account is 1.19.

5.5.2.9 Distribution of Usufruct to the Beneficiaries

Before declaration of final rate of profit, monthly profit amount will be credited to the

account as per provisional rate of profit offered by the bank from time to time. Profit

under this scheme shall be adjusted annually i.e. after declaration of final rate of profit

of the bank. Profit amount only will be spent for the purpose(s) specified by the

Wāqif. Unspent profit amount is automatically added to Waqf amount. Profit earned

can be withdrawn and spent by the Bank/Wāqif/Mutawalli for the cause(s) specified in

the list. Specified cause may however, be changed by the Wāqif during his/her life

time. The Wāqif can give standing instruction to the bank to transfer specified

installment from his/her account maintained with the branch. In such cases the bank

charges a minimal service charge from the wāqif's account.

181
5.5.2.10 Profit Loss Sharing

As the waqf fund is operated under Mudaraba Principle, the waqf amount may not

remain intact due to sharing the profit and loss. As per Mudaraba Principle if any loss

is incurred in course of business, the loss is to be realised through deduction of the

Waqf deposit.

5.5.2.11 Waqf Management Committee

A special Waqf Management Committee comprising of the officials of the bank will

manage the waqf fund. In case of any query/complaint (if raised by the Wāqif)

regarding the mismanagement of the fund or others, the committee shall look upon the

issue and the decision of the Committee will be the final.

5.5.2.12 Readily Available List of Purposes

The Wāqif has the right to choose from the list of purposes to be served either from

the following list or any other purposes permitted by Shariah:

5.5.2.12.1 Family Rehabilitation

This includes providing food to the poor; making shelter for the poor; improving the

conditions of hardcore poor living below the poverty line. rehabilitation of physically

handicapped and disadvantaged people; street beggars; destitute women and Up-

liftment of urban slum dwellers.

5.5.2.12.2 Education, Sports, Da’wa & Culture

Providing Education facilities to the orphans; such as supplying books, development

of technical education for skill development and vocational education in general,

182
providing scholarships to deserving students and also deserving dependants and

descendants, financing research and establishing educational chair. Physical education

and sports facilities. Conducting Dawah activities. Supporting to Islamic culture,

heritage and art promotion. Celebrating different Islamic Festivals.

5.5.2.12.3 Health & Sanitation:

Providing health care by establishing hospitals, clinics and providing health care

programmes especially for the poor. Health research grant and research in particular

disease. Supplying sanitation facilities to villages and supplying pure drinking water

by providing dip tube well.

5.5.2.12.4 Social Service

This includes providing legal aid to the poor and deserving people. Providing

assistance to dowry-less marriage(s) to poor girls. Planting and maintaining trees on

the sides of public roads; to rehabilitate the Reverted Muslims (New Muslims).

Providing assistance to peace loving Non-Muslims and solving their problems.

Creating social awareness to prohibit gambling and other social vices such as theft and

other anti-social activities. Construction, installation and development of public utility

services. Maintenance of specific mosque(s) with/without an income generating

project. Maintenance of a specific graveyard with/without an income generating

project. Maintenance of specific Eidgah(s) with/without an income generating project.

5.5.2.13 Arrangement after Serving the specific purpose or Death of Wāqif

If the goal/purpose of waqf is attained/ended, the income/profit of the waqf account

will be spent as per additional indication of the wāqif which is to be mentioned at the

183
time of opening the account. If it is not mentioned or if there arise any contradiction,

the Committee's (Waqf Management Committee) decision shall be final.

In the event of death of Wāqif, profit of that Waqf Account will be spent as per

option given by the Wāqif. However, in case of the shortfall amount of the declared

amount (if any) may be deposited by the successor(s) of the deceased Wāqif.

5.5.2.14 Liabilities and Rights of the Bank

The Wāqif agrees that the bank will not be liable for any loss or any damage if the

bank is unable to provide services in connection with the account(s) due to postal,

courier, electrical, mechanical, telecommunications or by reason of act of god,

catastrophe, war, civil or industrial disturbance, computer failure or any other cause

beyond Bank's control and that cannot be overcome by reasonable diligence and

without unusual expenses. Operation of this account will be guided by the Money

Laundering Prevention Act-09 and other terms & conditions as prescribed by the Bank

from time to time. VAT/Tax, Excise Duty or other charges (if applicable) to be

deducted from the account as per prevailing rules of competent authority (ies). Bank

reserves the right to change/amend/alter/modify the weightage, profit distribution

principles or any of the rules of the scheme from time to time as per Bank's standard

& policy.

The laws, rules and regulations of Bangladesh and custom and procedures

applicable to the scheduled bank in Bangladesh shall apply to and govern the conduct

of the account opened with bank.

Though the Bank maintains strict confidentiality in all affairs of the account,

Bank shall always be entitled to disclose any information regarding Wāqif's accounts

held with the Bank to any of the followings:

184
 a. Any regulatory, supervisory, governmental or quasi governmental

authority with the jurisdiction over the bank.

b. Any person to whom the bank is required or authorised by law or court

order to make disclosure.

Any change of the information furnished by the Wāqif must be notified to the

bank immediately, otherwise the bank will not be liable for the consequences.

5.6 APPLICATION OF CASH WAQF IN SELECTED COUNTRIES

Cash Waqf practices have flourished in different parts of the world. In order to

highlight the learning points from those countries, some of the countries are being

briefly evaluated in this thesis that include Bahrain, India, Indonesia, Kuwait,

Malaysia, Singapore, South Africa, Sudan, Turkey and United Kingdom. Besides,

World Waqf Fund under IDB and OPEC Waqf Fund will also be discussed briefly.

5.6.1 Bahrain

A Cash Waqf Fund was established in Bahrain in November 2006 under the auspices

of the Central Bank of Bahrain (CBB) in partnership with Islamic Financial

Institutions (IFIs) in Bahrain.20

5.6.1.1 Objectives of the Waqf Fund

The main objectives of this Cash Waqf Fund is to finance research, education and

training in Islamic finance (the Waqf Fund); and is active in working with the industry

and stakeholders in developing industry standards and the standardisation of market

practices.
20
See The Central Bank of Bahrain (CBB)’s website for details: http://www.cbb.gov.bh/page-p-waqaf-
fund-page.htm, (accessed on August 3, 2014).

185
5.6.1.2 Contributors of Waqf Fund

Among the founding IFIs were Arcapita Bank, Bahrain Islamic Bank, Kuwait Finance

House (Bahrain), AlBaraka Banking Group, Unicorn Investment Bank, ABC Islamic

Bank, Shamil Bank (now Ithmaar Bank) and Gulf Finance House. The member

institutions made one-time contributions to the Waqf Fund's corpus which is invested

in Islamic money market instruments and the return is used to finance the Fund's

initiatives21. These initiatives are executed through partner organisations.

5.6.1.3 Waqf Fund Sponsored Programmes

Ever since its establishment, the Waqf Fund has been active in sponsoring some

important flagship initiatives22 that include:

5.6.1.4 Human Capital Development in Islamic Finance

There is a global shortage of the right human resources who combine conventional as

well as Islamic principles, understanding of the underlying principles and standards

and exposure of practical issues facing Islamic financial institutions. Therefore in

order to provide the right human resource capital the Waqf Fund sponsors important

training and qualification development programmes for a number of organisations

central to the development of Islamic finance. Such organisations include ‘the

Accounting and Auditing Organisation for Islamic Financial Institutions (AAOIFI23)

21
Ibid.
22
See for details the press release by the Central Bank of Bahrain in http://www.cbb.gov.bh/page-p-
waqf_fund_sponsors_aaoifi_qualification_development.htm (accessed on August 3, 2014).
23
AAOIFI is the Standard Setting Body for Islamic financial industry worldwide, which has issued
over 88 Shari'a, accounting, auditing and governance standards, as well as a code of ethics. In a number
of jurisdictions the AAOIFI standards are either mandatory or adopted voluntarily by Islamic financial
institutions. For details, see:
http://www.cbb.gov.bh/page-p-waqf_fund_sponsors_aaoifi_qualification_development.htm (accessed
on August 3, 2014).

186
that provides its flagship Islamic accounting qualification ‘Certified Islamic

Professional Accountant’ (CIPA) programme.24

Besides, the Waqf Fund has also been instrumental in organising various other

human capital development programmess that include launching a training

programme for the senior management officials in order to qualify them as Islamic

finance leaders. Waqf Fund also holds Corporate Governance Workshop for CEOs and

Directors.

5.6.1.5 Research and Collaboration with Other Nations

As part of its support for Islamic finance training, education and research, the Waqf

Fund hosts and sponsors regular dialogue, monthly conferences and special sessions

with leading Shari’a and Islamic finance Scholars.25 The Waqf Fund sponsors

government collaboration with other Muslim and non-Muslim nations26 in the field of

Islamic Finance.

5.6.1.6 Curriculum Development

The Waqf Fund is playing a crucial role in developing the curriculum for Islamic

financial services sector. The Fund joined hands with University of Bahrain to provide

financial support to its 4-year Bachelor degree in Shari’a for Banking & Finance

programme. The Waqf Fund has also announced the launch of Diploma in Islamic

24
See for details ‘The Review’ Issue 39, June 2014, published by the Central Bank of Bahrain(CBB) in
: http://www.cbb.gov.bh/assets/The%20Review/The_Review_CBB_June_2014-final.pdf (accessed on
August 3, 2014).
25
Ibid.
26
Ibid.

187
Commercial Jurisprudence aimed primarily at those working for Internal Shari'a

Review departments of Islamic Financial Institutions.27

5.6.2 Indonesia

A non-profit organisation under the Ministry of Religious Affairs in Indonesia has

turned the concept of Cash Waqf into a movement.28 A group of Indonesian

journalists established the non-profit organisation named Dompet Dhuafa Replubika

(DDR) to raise a pool of fund for the welfare of the poor through Zakat, Infaq,

Sadaqah and Waqf (ZISWAF). Though informally established in 1993, Dompet

Dhuafa Republlika (DDR) was registered in October 2001 with the government as

National Zakat Institution (Lembaga Amil Zakat) under the auspices of the Ministry

of Religious Affairs.29

5.6.2.1 DDR Cash Waqf Fund

DDR then created a waqf fund named Indonesian Waqf Fund (Tabung Wakaf

Indonesia) with a four fold network of welfare programmes that includes Healthcare,

Education, Economy and Social Development.30

5.6.2.1.1 Healthcare

DDR has established several healthcare institutions to serve the poor patients. Under

this programme they have a hospital named Rumah Sehat Terpadu (RST) equipped

with inpatient and outpatient services including surgery and intensive care units.

27
For details, see:
http://www.cbb.gov.bh/page-p-waqf_fund_sponsors_aaoifi_qualification_development.htm (accessed
on August 3, 2014).
28
See for details: http://www.dompetdhuafa.org/about, (accessed on August 3, 2014).
29
Ibid.
30
Ibid.

188
Located in Bogor, West Java this hospital provides healthcare services free of charge

for the poor who are unable to afford adequate health care. This hospital serves more

than 50,000 patients a year.31

They have also established a Free Clinic named ‘Layanan Kesehatan Cuma

Cuma’ that provides medical services to the poor patients who do not need to be

warded in hospital. Many Muslim doctors come forward to serve in this clinic on

voluntary basis.

5.6.2.1.2 Education

DDR helps Indonesian deserving children selected to pursue their education and

provide them regular stipend under scholarship programmes. Under this division

several training schools and business schools are run, such as ‘Sekolah SMART

Ekselensia Indonesia’ and ‘Umar Usman Business School’ which has a campus

named Prophetic Entrepreneur Campus where they introduced a special

entrepreneurship programme. Their training schools also offer ‘Character Building

Trainings’.

5.6.2.1.3 Economic Empowerment and Social Welfare

DDR has various empowerment programmes to reduce poverty in Indonesia and

create entrepreneurs who are otherwise less privileged. In return, these entrepreneurs

are gaining the ability to contribute to the social development later by themselves.

DDR works on disaster management, migrant workers welfare, da’wah activities, free

funeral services and other voluntary services.

31
Ibid.

189
5.6.3 Kuwait

In Kuwait, the Waqf, whether cash or non-cash, is aimed at contributing to the efforts

intended to serve the revitalisation of the Waqf practice and tradition by putting

forward developmental projects in Islamic forms in order to meet the needs and

requirements of the society. This aim is usually achieved by requesting the people to

donate cash funds or other norms of assets as Waqf. These Waqf funds are managed

and overseen by Kuwait Awqāf Public Foundation (KAPF) in order to meet the social

as well as developmental needs as addressed by various action programmes. These

action programmes grant Waqf authority an allowance for achieving the highest

developmental return and to help achieve the connection among the Waqf projects.

This is conducted between them and other projects undertaken by Government

Agencies and Associations of Public Benefit

5.6.3.1 Objectives of Kuwait Awqāf Public Foundation (KAPF)

The Kuwait Awqāf Public Foundation has set several objectives of Waqf funds, which

are outlined below:

a. to restore and revitalise the practice and tradition of Waqf by calling for

projects which are closer to the hearts of the people and more responsive

to their needs,

b. to renew and modernise the developmental role of the Waqf,

c. to advance the Charity Work by introducing a new model to be followed

as an example,

d. to meet the needs of the society and the citizens in the domains which are

not properly subsidised,

e. to create a balance between external charity work and the internal one,

190
 f. to bring into effect the popular participation in the call for Waqf and

managing its projects, and

g. to start off the Waqf work through an "Organisation" that fulfils flexibility

as well as discipline at the same time.

5.6.3.2 Waqf Fund Managed by a Board of Directors

In Kuwait, each Cash Waqf fund is managed by a Board of Directors consisting of a

number of popular and eminent persons to be chosen by the President of Waqfs

Affairs Council. This council is permitted to add representatives of some Government

Agencies interested in the areas of work of the fund. The Board is appointed for two

years with the possibility of further renewal of term. The Board shall choose a

Chairman and two Vice-Chairmen from the Members. The Board of Directors is

assisted by a Fund Manager, who is appointed by the Secretary General. The

Secretary General is chosen from the general staff of the Kuwait Public Awqāf

Foundation. He must be an ex-officio Member of the Board of Directors, and would

act as the Secretary of the Board. An assistant to the Director may be appointed,

according to the needs of the project.

5.6.4 Malaysia

There are several issues pertaining to Waqf management in Malaysia in general and

cash Waqf in particular. Waqf administration in Malaysia is regulated and managed

under different laws and regulations within the purview of the States Islamic Religious

Council (SIRC) consisting of thirteen states and federal territories.32 As Waqf

institutions are governed by state laws, the nature of the administration of these

32
Mahamood, Siti Mashitoh (2006). Waqf in Malaysia: Legal and Administrative Perspective. Kuala
Lumpur: Penerbit Universiti Malaya. 36.

191
institutions may differ from one state to another. Such dissimilarity could cause

inefficiency in cash Waqf collection and management in Malaysia.

5.6.4.1 Public Response to cash waqf in Malaysia

Studies reveal that the response of the Malaysian public towards cash Waqf is still

lacking.33 According to Mohsin who reported that even though the amount of cash

Waqf collected is quiet considerable the response received is not significant. This view

is shared by many who think that cash Waqf collected from Waqf shares are leverage

to buy a property and other approved project. While there have been some

improvements in the cash Waqf management it still needs more effort to strengthen

Waqf as a third sector in an Islamic economic system. According Arshad (2011),

understanding of Malaysian public toward cash Waqf is too narrow where they only

linked it with the construction of mosque and Waqf land for cemetery despite a wider

function and roles of Waqf itself. This is also supported by Laldin (2005) saying that

in Malaysia Waqf is only for donation for the purposes of building mosque and sites

for graveyard. He also argued that Malaysian donors are not aware of the fact that

Waqf properties are wider in terms of uses compared to zakat and sadaqah. However,

subsequent developments, as discussed in the following paragraph, suggest otherwise

and this author is of the view that the future of cash waqf in Malaysia looks very

promising.

5.6.4.2 Potential for Cash Waqf in Malaysia

Some studies have revealed that cash Waqf in Malaysia has a potential to grow. For

example, Salleh & Muhammad34 estimated that the cash Waqf collection in Malaysia

33
Mohsin, M.A. (2009). “Cash Waqf a new financial product”. Petaling Jaya. Prentice Hall. 16.
34
Salleh, S.M. & Muhammad, S. (2008). Waqf Development in Malaysia Issues and Challenges. Jurnal
Pengurusan Jawhar, 2(1): 13-37.

192
could reach RM4.3 billion a year if each Muslim adult Malaysian citizen donated

RM1 a day or RM30 a month to the cash Waqf fund. They further revealed that the

State of Penang has a very high potential to develop a cash Waqf fund because of its

planning and marketing strategies, which are used for the promotion of the cash Waqf

funds (Amir, Masron & Ibrahim, 2010).

Another research35 stated that the cash Waqf implementation through Selangor

Waqf Shares Scheme has a high potential growth. The study by Siti Mashitoh

Mahamood36 (2007) stated that cash Waqf cash in Malaysia is not very popular.

Nevertheless, Perak State Islamic Religious Council has in fact has established cash

Waqf in their respective council a very long time ago under the rules 18 (2) Waqf

Regulation Control 1959 and followed by Pulau Pinang Islamic State Religious

Council in July 2005.

5.6.4.3 Cash Waqf Shares and the State Islamic Religious Council (SIRC)

In Malaysia, cash Waqf model has been supported by seven out of nine State Islamic

Religious Council (SIRC). All of which are in the states of Peninsular Malaysia, such

as Selangor, Johor, Melaka, Pulau Pinang, Pahang, Perak and Negeri Sembilan.37 In

Malaysia, cash Waqf is usually executed by people through shares or stock and several

states in the country have already established this kind of Waqf. According to Section

2 of Selangor Waqf Enactment 1999, the creation of cash Waqf is through shares

which is offered to buyer who buys it and then dedicates it to the Council as Waqf.

However, the implementation process and relevant guidelines have been specified

35
Sayyin, B., Ali, A. and Suyurno, S.S (eds) (2006). Pengenalan Kepada Konsep Wakaf dalam Islam.
Kuala Lumpur: Ampang Press Sdn Bhd. 46.
36
Mahamood, Siti Mashitoh, (2007). Pembentukan Dana Wakaf Menurut Perspektif Syariah Undang
Undang Serta Aplikasinya di Malaysia. Jurnal Syariah, 15(2): 61-83.
37
Mohsin, M.A.14.

193
under Section 17(1) of the same enactment. It also stated that the council can offer

cash Waqf shares of any property acquired or to be acquired to any person for the

shares to be purchased and subsequently endowed (Waqf) to the council.38

5.6.5 Singapore

In Singapore, the first known Waqf that was created in the country is the Waqf of the

Omar Mosque of Kampung Melaka, which was endowed by the late Syed Omar

Aljunied, who originally was a trader from Indonesia. The first Waqf legislation in the

country was passed by the British legislation in 1905, which was provided under the

Muhammedan and Hindu Endowments Ordinance and was enacted on 8th September

1905. In fact, philanthropists like Syed Omar Aljunied created or built not only

mosques but also revenue stream to ensure that these mosques have income for their

maintenance and religious activities. These philanthropists had actually developed a

socio-religious enterprise model, which is now becoming a new trend in charity and

non-profit enterprises.

5.6.5.1 Cash Waqf by Salary Deduction

However, Waqf in the form of cash is found to be unique here in Singapore, and the

cash Waqf fund there included mostly the Mosque Building Fund. Under this kind of

cash Waqf philosophy, each Muslim employee is required to contribute a stipulated

amount to the fund on a monthly basis. As of 1 July 2005, there were about 175,000

Singaporean Muslim employees who contributed towards this fund. Their contribution

was deducted from their monthly salary by their employer and then channeled it

through the Central Provident Fund.

38
Mahamood, Siti Mashitoh, 12.

194
 As of the same date as mentioned earlier, the fund received an estimated $6

million contribution annually from those Muslim employees. This fund has enabled

Waqf authority to build 22 mosques with an accumulated amount of $130 million. In

fact, the act of creating a Waqf from a pool of fund to build mosques is proven to be

excellent instruments. These instruments have been used to generate income streams,

which will enable the mosque to have a continuous income for the maintenance and

subsistence of those mosques.

5.6.6 Turkey

During the 15th and 16th Centuries, the Ottoman Courts approved a particular form of

endowment or trust fund, the cash endowment, by which money was settled for social

and pious purposes.39 In fact, the majority of Turkey’s awqāf (endowments) were

land, where the permanence and security of the act of 'continuous charity', which is

central to the Waqf (endowment), is easily realised. Some moveable assets, such as

furniture, books or farm animals, were also tied up in a Waqf.

5.6.6.1 Public Facilities Supported by Cash Waqf

During the Ottoman period, education, public works, health and religious services

were financed by cash waqf. Educational services financed by the Turkish government

today were financed by awqāf in the Ottoman Empire. Cash waqf was also used as a

means of social security; thus, they played a vitally important role in the Ottoman

social fabric and did so without any cost to the State.

39
Cizakça, M. (2004). Incorporated Cash Waqfs and Mudaraba, Islamic Non-bank Financial
Instruments from the Past to the Future, Bahcesehir University, Turkey.34.

195
5.6.6.2 Financial Services Provided by Cash Waqf

The Cash Waqf provided much needed credit and other financial services. Cizakça

estimated that during the eighteenth century about 10 per cent of the total population

of the city of Bursa, which averaged about 60,000 inhabitants during that period,

borrowed from Cash Awqāf. Cash waqf records show that the awqāf’ expenditures had

been mainly done in the following areas: education, food, family, justice; such as

salaries of judges in local courts, and payments to the jails, maintenance of Waqf

buildings, mosques, rent, religion, social services such as repair of pavements, social

baths, helping the public to pay their taxes, mutawalli’s salaries, water works and

workers.

5.6.6.3 Revenue Earned by Cash Waqf

Cash Waqf in Turkey was used to earn revenue through profit bearing loans. This

credit provision aspect of Cash waqf raised interesting questions for Islamic law and

has proved a modern debating point for jurists and historians. Did Cash waqf violate

the Islamic prohibition on riba (interest)? Some historians have claimed that the Cash

waqf lent money on interest, or used transactions which were designed to get around

the strict legal prohibition on riba but produced an ‘interest-like’ payment.40

5.6.6.4 Cash Waqf and the Debate on Interest

Many critics argued that Cash waqf violated the waqf tradition of immovable property

and Islamic injunction against interest collection. However, defenders (including

clerics) did not deny religious objections but argued for the practice on the grounds of

practicality and economic need. So, the practice remained hotly debated among legal

40
Ibid.

196
and religious scholars and, despite the controversy, remained popular among those

who saw a need for protecting ‘liquid’ wealth and flexibility in directing charitable

investments. Interest / profit charged on loans by Cash waqf was often fixed to

‘comply’ with Sharia. However, it is undeniable that by organising such things as

financing expenditure on education, health, welfare and a host of other activities, cash

endowments fulfilled services that are today financed by the State or local authorities.

5.7 ROLE OF CASH WAQF IN POVERTY ALLEVIATION

Since the concept of Waqf is similar to trust and endowments of resources Cash Waqf

can actually be used for any specified purpose that benefits mankind, including

poverty alleviation programmes and interest-free loans. Although most established

Waqf Institutions are based on real estate, there have been examples in history during

the Ottoman Empire where waqf institutions were established for the specific purpose

of giving out interest-free loans to the beneficiaries of the Waqf, who were actually

living in poverty. These loans were considered to be self-sustaining and were based on

the Islamic finance concept of Diminishing Musharaka. In this framework, borrowers

are provided loans against their houses, although they continue to stay in them by

paying a fixed rental. Borrowers pay back the principal through a series of

transactions, leading to eventual ownership. So it can be argued that a cash waqf fund

could be tailored to provide the poorest communities an easy access to finance and

help them to come out of poverty and impoverishment. This has been an interesting

model, which was implemented in Bangladesh by a private bank, namely Social

Islami Bank Limited (SIBL).

197
5.8 CONCLUSION

It has been regretfully observed that there is no initiative at all from the Office of the

Waqf Administration in Bangladesh to introduce and nurture cash waqf practices in

the country. As such this research has focused on private and non-government

initiatives for cash waqf developments in the country. Some of the private Islamic

Banks have come up with some products on cash waqf. However, these products are

not enough to bring this practice to the door steps of the greater audience. This chapter

has discussed the current situations of cash waqf in Bangladesh and argued for the

need of modern and innovative approach towards awqāf in general and cash waqf in

particular drawing lessons from selected countries including Bahrain, Indonesia,

Kuwait, Malaysia, Singapore and Turkey. A brief discussion of the role of cash waqf

in poverty alleviation is also provided in the later section of this chapter.

The purpose of this chapter was by no means to deal with cash waqf

comprehensively, because the scope of this research does not warrant that. The topic

of cash waqf deserves to be undertaken as an independent topic of a graduate level

research and it has been so suggested for the future researchers in the conclusion of

this thesis41. However, since there has been no Ph.D. level studies before on waqf

sector in Bangladesh, this research attempted to show where does the country stand in

terms of cash waqf practices, without which this research would have remained

incomplete. The purpose to include some discussion on cash waqf practices in selected

countries is to draw lessons from those countries as cash waqf holds a lot of potential

for an overpopulated country like Bangladesh where the prospects for creating land

based waqf has narrowed down substantially.

41
See paragraph No. 6.14.3 in the chapter six of this thesis.

198
 The six countries, of which cash waqf practices have been presented, represent

a combination of countries with different demographics; such as overpopulated

country like Indonesia; Muslim-minority country like Singapore; and affluent Muslim

nations like Bahrain, Kuwait, Malaysia and Turkey. It has been shown in this chapter

that cash waqf practices in these countries address different welfare needs of the

deserving sections of population and sectors of these countries. And it has been

demonstrated well with specific examples of cash waqf based projects from these

nations that irrespective of a country’s economic and demographic standing; cash

waqf can play its role of welfare not only for the poor countries’ unprivileged

population but also for the deserving section of population in apparently rich and

wealthy countries.

199
 CHAPTER SIX

PROSPECTS OF AWQĀF IN BANGLADESH:

RECOMMENDATIONS AND CONCLUSION

6.1 INTRODUCTION

In this chapter which is the final and last chapter of this thesis, some recommendations

are presented based on the discussions in the previous chapters. In the context of

Bangladesh these recommendations are aimed at improvement of service and better

utility of waqf through rigorous development of awqāf in the country for greater

benefits of the society. Recommendations would then be followed by a final

conclusion that would reflect the outcome of research in the preceding chapters.

6.2 RECOMMENDATIONS FOR DEVELOPMENT OF AWQĀF IN BANGLADESH

The recommendations consist of various practical steps including some important

amendments to the Waqf Ordinance 1962 related to the Administrator of Waqfs and

his administration, survey and management of awqāf and developments of the awqāf

in general.

6.2.1 Amendments to the Waqf Ordinance 1962.

In order for the general public to get greater benefit from the waqf sector as well as for

better management of Awqāf, certain amendments are necessary to some of the

provisions of the Waqf Ordinance 1962. Such amendments should aim to make the

waqf administration more dynamic, vibrant and result oriented and to accommodate

new and creative ideas into the waqf sector. One of the major amendments proposed is

200
centered on the Administrator of Waqfs. ‘The Administrator of Waqf’ is the Chief

Executive Officer for the whole country. According to the Waqf Ordinance 1962 the

Waqf Administrator has to be actively involved in a very wide range of administrative

and quasi judicial activities in managing all affairs of Awqāf. This is mainly due to

lack of manpower1 with proper knowledge and skills necessary to administer Awqāf.

6.2.2 Provisions to be Reviewed and Amended

Sections 32, 47, 61 and 64 among others, may be mentioned here that may be brought

to the attention of the relevant authorities for reviewing and possible amendment

needs. Section 32 provides for the grounds for removal of a mutawalli under certain

circumstances and his liabilities for breach of trust. However, any matters not

envisaged in the provisions of section 32 for the purpose of removing a mutawalli

from his office, his removal may be illegal.2 A careful study of section 32 shows that

the mutawalli has little room for his side of the story to be heard before such removal.

In Shaukat Ali v Administrator of Waqfs,3 it was upheld by the court of law that when

passing an order under section 32, the Administrator of Waqfs acts judicially and any

such order passed without giving an opportunity to the party affected by the order to

be heard will not be a judicial order.

Secondly, section 47 deals with enrolment of waqfs. Subsection 1 of this

section provides that all waqfs existing at or created after the commencement of the

Ordinance shall be enrolled at the office of the Administrator. However, in reality the

vast majority of the waqf estates are not enrolled at the Administrator’s office.

According to the census of waqfs conducted in 1986-87, the total number of waqf

1
This issue is addressed in paragraph 7.3. below.
2
For details see Golam Athar Chowdhury v Administrator of Waqfs, 35 DLR, 277.
3
29 DLR (SC) 276.

201
estates was 150,593, whereas only 18,500 estates were enrolled with the office of the

Administrator.

6.3 HUMAN RESOURCE AND MANPOWER DEVELOPMENT

Lack of manpower and the development of human resource are the major areas of

concerns in the Waqf sector in Bangladesh. As such the issues that need to be

addressed with immediate effect are as follows:

6.3.1 Manpower Increase

Currently there are 111 posts for employees in the Waqf Administration including 58

third-class employees and 32 fourth-class employees. However, the Waqf

Administration is running countywide with only 73 employees including clerical staff,

security guard and sweeper/cleaner.4 The following is a table (Table 6.1) that shows

the current manpower of the Waqf Administration. The chart also shows the expected

number of people needed to run the administration proposed by the Waqf

Administration that comes to a total number of staff of 425.

4
See for details: www.waqf.gov.bd (accessed on 8 November 2014).

202
 Table 6.1 : Manpower of Waqf Administration in Bangladesh

Sanction of working Vacant Proposed

Sl. No- Post / Designation
post manpower Post post

Sanctioned 1st Class

Officer -9.
01. Administrator 01 1 -
02. Deputy-Administrator 02 2 - 1
03. Assistant Administrator 07 06 01 12
Sanctioned 3rd Class
Employees (58)
04. Stenographer 03 01 02 10
05. Inspector 21 17 4 67
06. Office Superintendent 01 01 - 01
07. Accountant 01 01 - 01
08. Steno-Typist 04 03 01 04
09. Computer Operator 01 - 01 01
10. Auditor 21 06 15 69
11. Cashier 01 - 01 01
Office Assistant
12. 10 4 6 106
computer Operator
13. Driver 03 02 01 12
Sanctioned 4th Class
Employees (32)
14. Cash Sarkar 01 01 - 01
15. Daptori 01 01 - 01
16. M.L.S.S. 29 25 04 109
17. Guard/Night grad 02 01 01 09
18. Sweeper/Cleaner 01 01 - 10
19. Data Entry operator 01 - 01 02
Total 111 73 38 425

203
 The number of ‘working manpower’ in the category of ‘Auditors’ is only six,

whereas the actual need of auditors is sixty nine5. Here the administration is in

shortage of sixty auditors. Similarly, the number of ‘working manpower’ in the

category of ‘Inspector’ is seventeen, whereas the actual need of Inspector is sixty

seven6, i.e. the administration is in shortage of fifty Inspectors.

6.3.2 Education and Training

Many waqf estates are headed by mutawallis who are near illiterate or not educated

enough to keep and maintain accounts of income and expenditure. This is an

impediment because many mutawallis do not know the rules and regulations for

proper maintenance of waqf estates and sometimes it may open the door for

corruption.7 The ‘Office of the Administrator of Waqfs’ is an autonomous religious

entity under the Ministry of Religious Affairs governed by the Waqfs Ordinance 1962.

The mutawallis therefore have to have the basic knowledge about the DOs and the

DON’Ts on the waqf laws governing awqāf as well as on shariah and must be

adequately trained. The objective of such training would be to equip them with proper

knowledge and guidelines for productive utilisation the awqāf properties. The training

should also serve them to realise that they are holding a trust and they must exhibit a

high standard of trustworthiness. This can be achieved by holding regular training

camps at the district and divisional levels. Booklets and brochures containing

instructive material written in easy language can be issued by the Waqf

Administrator’s Office and distributed for free to the mutawallis.

5
Ibid. Also see ‘Proposed Posts’ in item no.10 in the above Table 6.1.
6
Ibid. Also see ‘Proposed Posts’ in item no.5 in the above Table 6.1.
7
Sadeq. A. H. M. 162.

204
6.3.3 Establishment of District Level Offices of Waqf Administration

Waqf estates are scattered all over Bangladesh’s 64 Administrative Districts but the

Office of the Administrator of Waqfs has its offices only in 38 Districts. Out of these

38 offices, 18 offices are Waqf Auditor’s office and 20 offices are Waqf Inspector’s

office. Presently only 18 Waqf Auditors are covering the whole country, i.e. all the 64

Districts and 20 Waqf Inspectors are covering the whole country as well.8 This

manpower is extremely low. If any of these Auditors or Inspectors goes to visit a waqf

estate for inspection or audit, or goes to the court for any case, his office remains

closed.9

But there are more responsibilities of the Districts Waqf Offices than simply to

inspect and audit. Their responsibilities include enlistment of waqf estates, their

supervision, collection of 5% fees, settlement of disputes and safeguarding various

waqf interests that may arise from time to time. For a single Auditor or Inspector

stationed in a District Waqf Office the volume of works is far too much. In order for

better management of Awqāf, the Waqf Administration should have one office in each

and every District of all the 64 Districts with more man power to handle all the

relevant issues.

6.4 CONDUCTING NATIONWIDE WAQF CENSUS EVERY TEN YEARS

The Census of Waqfs Estates was held in 1986 conducted under the Ministry of

Planning, Government of Bangladesh.10 That was the one and only census held after

the independence of Bangladesh in 1971 to date. For any references with regard to

8
See for details: www.waqf.gov.bd (accessed on 8 November 2014).
9
Sadeq. A. H. M. 164.
10
Published in 1987 by the Bangladesh Bureau of Statistics under Ministry of Planning, Dhaka,
Government of Bangladesh.

205
waqf estates in the country, researchers and policy makers have to cite and depend on

the data published in the census of 1986 which is too out dated.

A new and fresh census of waqfs is overdue. This researcher is of the view that

a census of waqfs should be held every ten years or so on regular intervals. Otherwise

it would be difficult to keep up to date records of waqf estates. Due to creation of new

waqfs, many waqf estaes are not included in the census data collected in the past.

Similarly, many waqf estates have vanished due to various natural disasters, such as

river erosions, that are to be excluded from census data. As such nationwide waqf

census should be held at least every ten years in order to ensure up to date records and

proper administration.

6.5 COMPULSORY REGISTRATION OF UN-ENROLLED AWQĀF

Although there are more than 150,000 (One hundred and fifty thousands) waqf estates

in Bangladesh,11 only 20,216 waqf estates are enrolled and enlisted under the Waqf

Administrator’s Office. Due to non-enrolment of such a huge number of waqf estates

the Waqf Administration does not get the 5% fee from the un-enrolled waqf estates’

income and therefore is deprived of much needed revenue. The Waqfs Ordinance

clearly states12 that all waqfs existing at or created after the commencement of the

Ordinance shall be enrolled at the Office of the Administrator.

However, in reality only 20,000 (twenty thousand) waqfs have been enrolled

with the Office of the Administrator of Waqf up to year 2013. There has to be some

ways and means in order to make enrolment of waqf estates mandatory. The Penalty

11
Office of the Administrator of Waqf, Bangladesh, ‘Bangladesh Waqf Proshashoner Shorkarer Pach
Bochorer Orthonoitik Shamajik Soho Bivinno Khate Orjon Bishoye Bistarito Tothyadi Shombolito
Protibedon’ (Detailed Report on Waqf Administration’s Five Year’s Achievements including Socio-
Economic Aspects), November 2013. 2.
12
The Waqfs Ordinance 1962. S.47.

206
for failure to enroll a waqf estate, provided under section 61 of the Ordinance, is

trivial and should be reviewed. Introduction of a stiffer penalty may be more effective

in order to get all the waqf estates enrolled which will also contribute in generating

more revenues.

6.6 REGULAR INSPECTION AND SUPERVISION OF AWQĀF

The following table (Table 6.2) shows that out of 64 Districts in the country only 21

Districts have Inspectors of Waqf, and only 17 Districts have Auditors of Waqf.13

Regular inspection, auditing and supervision are necessary from the Waqf

Administration to the waqf estates14 to make management of waqf estates more

dynamic and fruitful. Such inspection and supervision would also contribute in

reducing misappropriations of awqāf by people with vested interests.

13
Data collected from the Office of the Administratior of Waqfs. For details please see
www.waqf.gov.bd (accessed on 12 November 2014).
14
In paragraph 7.3.3. it has been highlighted that increased manpower and setting up district level
office in every district are necessary to revitalise the awqaf in the country.

207
 Table 6.2 : District Level Waqf Inspector and Auditor’s Offices

Sl No. Name of Districts Waqf Auditor’s Office Waqf Inspector’s Office

1 Comilla. Yes No
2 Dhaka 4 No Yes
3 Chittagong 1 No Yes
4 Dhaka- 2 No Yes
5 Sylhet No Yes
6 Chittagong- 3 No Yes
7 Bogra No Yes
8 Cox's Bazar Yes No
9 Rangpur No Yes
10 Chittagong- 2 No Yes
Tangail & No Yes
11
Manikgonj
12 Chittagong- 4 No Yes
13 Norsingdi No Yes
14 Dhaka- 2 No Yes
15 Dhaka- 1 No Yes
16 Naogaon No Yes
17 Dinajpur. Yes No
18 Rajshahi Yes No
19 Noakhali. Yes No
20 Borguna. Yes No
21 Narayangonj. No Yes
22 Dhaka- 1 No Yes
23 Kishoregonj Yes No
24 Nilfamari. Yes No
25 Joypurhat. No Yes
26 Thakurgaon No Yes
27 Kustia Yes No
28 Khulna Yes No
29 Jessore Yes No
30 Barisal Yes No
31 Jhalkathi. No Yes
32 Bhola Yes No
33 Potuakahali Yes No
34 Mymensingh No Yes
35 Faridpur Yes No
36 Moulovibazar Yes No
37 Laxmipur Yes No
38 Pabna Yes No
Total 39 Districts 17 Auditors 21 Inspectors

In order to ensure regular inspection and auditing of waqf estates, Each and

every District should have one Inspector and one Auditor; or at least the number of

Waqf Inspectors and Auditors should be increased to a satisfactory level so that all

waqf estates can be brought under close supervision of the Waqf Administration.

208
6.7 RECOVERY AND PREVENTION OF ILLEGALLY OCCUPIED AWQĀF

Illegal occupation of waqf properties is a serous concern in Bangladesh. Various

reports published from the Office of the Waqf Administrator as well as in the

nationwide circulated newspapers15 clearly suggest that many waqf estates have been

occupied illegally by the local thugs under political shelter. Many of the illegally

occupied waqf estates are not enrolled with the Office of the Waqf Administrator. Due

to such non-enrollment the Waqf Administration is technically not in a position to

initiate legal action against such illegal occupation. As such Bangladesh is losing a lot

of waqf estates every year to widespread illegal occupation that is taking place

rampantly and remains the order of the day. A nationwide recovery plan of illegally

occupied waqf estates is imminently necessary. Exemplary strong action should be

taken against illegal occupants so that such illegal occupation can significantly be

reduced.

6.8 EXPEDITING DISPUTE RESOLUTION

Waqf Administration is burdened with quasi-judicial duties. The Administrator of

Waqfs is performing duties of a judge although he is not required to be from the

judiciary or from the legal profession. He has to settle a large number of waqf disputes

and cases.16 Dispute settlement is not his full time task; rather this is an additional

duty on top of his statutory duties as the Administrator of Waqfs. So he has to divide

his time for the settlement of waqf cases and for performing his duties as

Administrator of Waqfs. As a result the process of dispute settlement takes longer time

which creates a backlog of cases and remains in a long queue waiting for the

settlement by the Administrator. This duty can be entrusted completely to the

15
Sadequr Rahman, Waqf Shompotti Proshonge (An appraisal of waqf properties).15.
16
Sadeq. A. H. M. 164.

209
judiciary, where the judges are well versed on law and legal procedure unlike the

Administratior of Waqfs who usually comes from Civil Service and may not be well

acquainted with the judicial procedure. In this way waqf disputes will not have to be

referred to the Office of the Waqf Administrator situated in the capital city Dhaka and

can be instead referred to relevant courts in same District from where the waqf dispute

originates. This will certainly expedite dispute resolution involving waqf.

6.9 ESTABLISHING STRICTER CONTROL OF THE WAQF

ADMINISTRATION OVER DARGAH AND MAZAR (SHRINES.)

As mentioned earlier Dargahs and Mazars constitute a big portion of the waqf estates

in Bangladesh. There are two hundred and seventeen (217) dargahs that are enrolled

under the Waqfs Administration.17 Most of these estates are recognised as waqf by

long user.18 Some of these waqf estates are quite prominent where devotees come

from every corner of the country to pay visit and they include, for instance, Shah

Jalal(R) and Shah Poran(R)’s Mazars in the north-eastern district of Sylhet and Shah

Ali Baghdadi (R)’s mazar in Mirpur, Dhaka, just to name a few.

Due to huge manpower deficiency, the Waqfs Administration lacks control

over the management affairs of dargahs and mazars. As a result dargahs and mazars

are being self-governed entities administered by mutawallis, khadims and the

committee members.

17
The Office of the Waqfs Administrator, ‘Ek Nozore Waqf Proshashon’ (‘Waqf Administration At A
Glance’), A report published by the Waqfs Administration on the enrolled waqfs in the country.1998.1.
according to this report the number of enrolled dargah in the country was 217 untill 1998.
18
Where there is no formal deed on the waqf estate but the owner of the estate has for long allowed the
estate to be used for some religious or charitable purposes such awqaf are known as waqf by user.

210
 The main source of income of most Mazars and Dargahs is donations and

nazars19 from the devotees that continue to pour in on a daily basis. Such donations

and nazars include money in cash and various kinds of offerings, such as livestock and

domestic animals, poultries and vegetables, and jewelry etc. These offerings come in

enormous volume particularly during the annual celebration of Urs Mahfil 20 which is

held on a regular basis. Looking at the volume of crowed that come to any typical

mazar, it is anybody’s guess that the income of such mazars are hundreds of

thousands taka daily.

However, most of these estates do not keep proper accounts of these incomes;

neither do they submit any report to the Waqf Administration nor publish any annual

report on their income and expenditures. The statutory annual contribution of five

percent of the net available income of the estate to the Office of the Waqfs

Administrator21 is not strictly maintained by many mazars, despite earning a huge

income. Many of such waqf estates do not pay their contribution to the Waqf

Administration at all.22

Besides, lots of activities take place in the Mazars and Dargahs throughout the

year. Some of these activities are contradictory to the core beliefs of Islamic faith;

many of these activities are even considered tantamount to Shirk by many right

thinking ulama. For instance, many devotees while paying visit to the grave prostrate

(making Sijdah / Sujud just like in Salat) and seek blessings from the deceased

19
Dedicated wealth in cash and kind. Nazars in kind include a wide range of consumer products from
live cows and goats to food grains and various agricultural products including fresh vegetables. These
items continue to come from the devotees everyday. Many of these items are perishables and as such
need to be sold out as the estates either can not consume or do not need such a quantity daily. This is
how these donations in kind are also converted into cash.
20
A huge annual anniversary get-together of the followers and devotees to commemorate the saints.
21
The Waqfs Ordinance 1962, S.71.
22
Office of the Administrator of Waqfs, “Bangladesh Sharkar Kortrik Gothito Waqf Komitir….
Karjopotro”. 6.

211
priest.23 Moreover, during the annual ‘Urus Mahfil’, large scale celebrations continue

for weeks and the Dargah authority organise ‘Jalsah Nights’, during which male and

female devotees are seen dancing together which is certainly un-Islamic. Such an

atmosphere opens the door for other immoral activities that are an open secret. This

has been going on for such a long time that it is obvious that the Dargah authorities do

not take any steps to stop such practices. It has become almost an accepted norm.

All activities in Dargah and Mazar premises must be taken under close

supervision by the authority. There has to be some mechanisms in place to make all

income and expenditures transparent and regular audit and supervisions on these

estates must be ensured.

6.10 DEVELOPMENT OF AWQĀF

Bangladesh has a wide range of waqf properties scattered in the urban as well as rural

areas that have a lot of potential to be developed into revenue generating enterprises

through proper initiative and planning.

6.10.1 Urban Waqf Properties

The urban waqf properties situated in busy commercial areas possess immense

potentials for development. Shopping and housing complexes, office and residential

buildings may be built on urban waqf land bring in large amounts of revenue.24 There

is no scheme to develop these urban properties. These properties being more secure,

financing may be easily available. It seems to be the need of the hour that the

government should engage consultants and engineers to help develop these waqf

23
This researcher has visited some of the Dargahs, such as the Dargah of Shah Jalal (R) and personally
witnessed that the devotees are praying and crying to the deceased priest sitting right by the side of his
grave.
24
Sadeq. A. H. M. 164.

212
properties. There should be a suitable clause included in the Waqf Ordinance by

amendment or it may be added to the future Waqf Act. The procurement of necessary

finances for such ventures could be negotiated by the Administrator with various

banking institutions locally and internationally. Moreover, the Waqf Administration

should be empowered to issue bonds and debentures for making available necessary

finances. This venture may attain a bright prospect. Therefore, adequate attention must

be paid to the development of urban waqf properties.

6.10.2 Rural and Agricultural Awqāf

Likewise, unused cultivable lands may be brought under cultivation and dairy

farming. Waqf estates that are in the hilly areas like Chittagong and Sylhet could be

used for tea plantation, while those in the costal areas could be utilised for fishery and

salt industries. The income generated from these projects could then be utilised for the

benefit of waqf beneficiaries and thus for the benefit of the ummah at large.25

6.10.3 Enactment and Amendment of Statutory Provisions Relevant to

Development of Awqāf

Absence of clear legal provision in the Waqfs Odinanace 1962 is an obstacle for

taking steps to develop waqf properties. Despite having the potential to be developed

into income generating enterprises, most of these properties remain idle or are not

utilised to the fullest.26 This is because there is no specific provision in the Waqf

Ordinance 1962 providing any guidelines for carrying development works of awqāf

25
Karim, M.F., Problems and Prospects Of Awqaf in Bangladesh: A Legal Perspective, article published
as a chapter in book printed and published from New Delhi. 260.
26
Office of the Administrator of Waqfs,16. Also see Sadeq.A. H. M. 162.

213
properties. This is a stagnant situation and must be addressed by the relevant

authority.

The Indian Waqf Act 1995, for instance, regards the issue of development of

waqf properties as a function of the Waqf Board of every state in India to undertake

the development of Awqāf.27 The absence of a similar provision in the Waqf

Ordinance 1962 is a serious lacking and an impediment to the development of Awqāf.

Many waqf estates in Bangladesh have a lot of potential to be developed into shopping

and housing complexes, office and residential buildings that may bring in large

amounts of income.

6.11 DEVELOPMENT OF WAQF FUND

The Ordinance provides for a ‘Waqf Fund’28 which is formed of all monies and

income received by the Administrator including annual contribution of 5% of the net

available income under section 71. Although sub-section (3) of section 73 provides

27
The Indian Waqf Act 1995, S. 32 provides in its sub-sections (4) to (6) as follows:
"(4) Where the Board is satisfied that any waqf land, which is a waqf property, offers a feasible
potential for development as a shopping center, market, housing flats and the like it may serve upon the
mutawalli of the concerned waqf a notice requiring him within such time, but not less than sixty days,
as may be specified in the notice, to convey its decision whether he is willing to execute the
development works specified in the notice.
“(5) On consideration of the reply, if any, received to the notice issued under sub-section (4) the board,
if it is satisfied that the mutawalli is not willing or is not capable of executing the works required to be
executed in terms of the notice, it may, with the prior approval of the Government take over the
property, clear it of any building or structure thereon, which, in the opinion of the Board is necessary
for execution of the works and execute such works from waqf funds or from the finances which may be
raised on the security of the properties of the waqf concerned and control and manage the properties till
such time as all expenses incurred by the Board under this section together with interest thereon the
expenditure on maintenance of such works and other legitimate changes incurred on the property are
recovered from the income derived from the property: Provided that the Board shall compensate
annually the mutawalli of the concerned waqf to the extent of the average annual net income derived
from the property during the three years immediately preceding the taking over of the property by the
Board.
“(6) After all the expenses as enumerated in sub-section (5) have been recouped from the income of the
developed properties, the developed properties shall be handed over to mutawalli of the concerned
waqf.”
28
The Waqfs Ordinance 1962, S.73.

214
that the Fund shall be under the control of the Administrator,29 it is subject to sub-

section (2) of section 73 that clearly states that the government may make rules

regulating the payment of monies into the Waqf Fund, the investment by the

Administrator of monies received into that fund and the custody and disbursement of

such monies. Therefore, sub-section (2) has rendered sub-section (3) virtually

ineffective and the Administrator does not seem to have power to make decisions with

regard to investment and development of waqf properties.

The provision on Waqf Fund does not make any direct reference to cash waqf.

Whereas cash waqf is now a very popular and convenient mode of waqf. In order to

develop a sizable waqf fund the relevant provisions need to be thoroughly reviewed

and adjusted to address and accommodate current developments on cash waqf for

maximum benefit from this mode of waqf.

6.11.1 Increasing the Amount of Mandatory Contribution

At present mandatory annual contribution payable by waqf estates to the Office of the

Administrator is set at the rate of five percent (5%)30 of the net available income of the

waqf. This amount was set more than fifty years ago in 1962 when the Waqfs

Ordinance came to effect. At that time this amount might have been considered

adequate for expenditures31 of the Waqf Administration. However,in present days this

amount is trivial compared to the myriad of expenses the Waqf Administration has to

afford. As such, the mandatory contribution should be increased at least up to 10%

with no exemptions.32

29
The Waqfs Ordinance 1962, S.73(3).
30
The Waqfs Ordinance 1962, S.71(1).
31
Please see the nine categories of expenditures discussed in paragraph 7.11.5. below.
32
The Waqfs Ordinance 1962, S. 71(7) provides for exemption of all mosques which have no landed
property for their maintenance or which have such property with an income of less than Rs / Tk300 per

215
6.11.2 Tri-monthly Contribution instead of Annual Contribution

Instead of annual payment of the mandatory contribution it may be made a tri-monthly

contribution. This will ensure a more frequent and regular injection of money into the

Waqf Administration. There have been instances when the Waqf Administration runs

out of money and has to borrow it from the government in order to meet the running

expenditures.

6.11.3 Ensuring Regular Collection of Contribution

Irregular or nonpayment of the mandatory contribution is an obstacle that the Waqf

Administration has to overcome.33 Although it is a duty of the mutawallis34 to make

the payment of the contribution to the Office of the Administrator, the Administrator’s

Office should take steps to ensure regular collection of payments. District level offices

of the Waqf Administration may issue reminder letters to the mutawallis to make

timely payments. Mutawallis who make regular payments may be rewarded by the

government for doing so which may encourage and motivate other mutawllis to do the

same.

6.11.4 Non-payment to be made a Punishable Offence

The Ordinance provides for penalties35 for failure of a mutawalli to make payments of

contribution payable under section 71. However, the penalty is subject to the

annum (Equivalent to USD 4 only). Even mosques in remote villages of Bangladesh have income far
more than the amount of Tk300 set in this section and therefore is not practically applicable in
Bangladesh anymore.
33
Various reports of the Waqf Administration cite the nonpayment of the contribution as a problem.
Many mutawallis are negligent in making regular payments, some do not pay at all. For details please
see “Dhormo Bishoyok Montronaloy Shomporkito Shongshodio Sthayi Komitir Boithoke
Uposthaponer Nimitto Bangladesh Waqf Proshashoner Karjokromer Protibedon” (Working Report on
Waqf Administration for presentation to the permanent parliamentary committee of Ministry of
Religious Affairs), Office of the Administrator of Waqfs, 27.11.1997.
34
The Waqfs Ordinance 1962, S.71(1).
35
The Waqfs Ordinance 1962, S.61(1)(g).

216
maximum of two thousand Taka36 only.37 This is a trivial and insignificant amount as

a punishment in today’s value for nonpayment of mandatory contributions. Moreover,

the arrears and overdue payments often reach up to the amount of hundreds of

thousands of Takas. Such a petty amount as punishment for nonpayment is rather

encouraging nonpayment. This section must be reviewed. Nonpayment or any

negligence on the part of mutawalli in making regular payments should be made a

punishable offence with stiffer penalties.

6.11.5 Utilisation and Application of Waqf Fund

Society’s welfare is the core purpose of any Waqf. Therefore, it should be the first

priority when it comes to utilisation of the Waqf Fund. However, there are other

expenses that are incurred in running an administration of a waqf estate. The

Ordinance provides for such relevant expenses to be borne from the Waqf Fund and

specifies nine categories of expenditure of the Waqf Fund under section 74(1). They

are as follows:

a. Payment of the cost of survey of waqf properties under section 6;

b. Repayment of any loan incurred under section 72 and payment of interest

thereon;

c. Payment of cost of audit of the Waqf Fund;

d. Payment of the salaries and allowances of the Administrator, Deputy

Administrator and Assistant Administrator;

e. Payment of the salaries and allowances of the officers and servants

appointed by the Administrator under section 17;

36
The Waqfs Ordinance 1962, S. 61(1)(n).
37
Equivalent to 25 USD.

217
 f. Payment of traveling allowances to the Administrator, Deputy

Administrator, Assistant Administrator, other officers and servants of the

office of the Administrator and to the members of the Committee;

g. Payment of the cost of the establishment employed by the Administrator;

h. Payment of all expenses incurred by the Administrator in the performance

of the duties imposed and the exercise of the powers conferred by this

Ordinance; and

i. Payment for reconstruction and repairs of mosques;

However,74(2) provides that “if any balance remains after meeting the

expenditure referred to in sub-section (1), the Administrator may use any portion of

such balance of the fund for the improvement, preservation and protection of waqf

property and also other religious and charitable works consistent with the purposes of

the waqf.”

Subsection 2 is therefore conditional. This means if there is no balance

remaining after meeting the expenditure referred to in subsection 1, there is no scope

for development of Awqāf. Hence, this section should be reviewed and a certain

percentage of the income received in the Waqf Fund should be reserved for

developmental purposes, or else any plans for the development of awqāf will remain

shelved and unfulfilled.

6.11.6 Regular Auditing of Waqf Fund

The Ordinance requires annual auditing under section 53. However, due to shortage of

manpower regular auditing of all the waqf estates is extremely difficult. For the same

reason auditing is allowed to be conducted by an Inspector or any other person or

218
officer authorised by the Administrator.38 This allowance opens the door for

conducting audit by persons or officers who are not professional auditors. But without

professional auditing, it would be difficult to detect and make report on cases of

irregular, illegal or improper expenditure, failure to recover money or other property

lost by neglect or any other type of misconduct. Therefore, auditing should be

regularised and the allowance of conducting audit by non-auditors should end.

6.12 ADDRESSING THE LACK OF AWARENESS;

There is considerable lack of awareness among mass people in Bangladesh about the

institution of waqf and the benefit it may bring to the society. Many rich individuals

and families in Bangladesh establish ‘Family Trust’ or ‘Foundations’ and the like for

welfare purposes, but not waqf. The Waqf Administration should take initiatives to

promote the concept of waqf among general mass in order to attract and encourage the

rich section of the society to create waqf.

6.12.1 Introduction of Waqf as a Subject in the Text Book

As a welfare institution Waqf may be promoted by introducing it in the text books at

the primary, secondary as well as higher education level.39 The lives of well known

donors and Wāqifs like Haji Muhammad Mohsin40 can be taught as part of history of

philanthropy in the schools to inculcate the notion of welfare in the young minds.

38
Please see “Explanation” provided under Section 53 of the Waqfs Ordinance 1962.
39
Many institutions of higher learning are now introducing courses related to waqf. Such as an MBA
Programme on Waqf Management is now under active consideration to be introduced in the
International Islamic University Malaysia (IIUM). Some Middle-Eastern universities are teaching
courses on management and development of Waqf.
40
Haji Muhammad Mohsin (1732-1812) is a household name in Bangladesh known for his charitable
and philanthropic legacy in the country. He inherited a huge fortune from his parents and dedicated his
wealth for charity as waqf in 1806. Due to his huge contribution in the field of education, many
educational institutions and establishments have been named after Haji Muhammad Mohsin in

219
6.12.2 Promotion of Waqf through Electronic and Printing Media

Media can play very effective role to reach greater audience and promote the cause of

waqf effectively. Waqf Administration may consider Radio,41 Television,42 Internet43

and print based announcements on various waqf related activities which would be

helpful in encouraging people to create more waqf and or participate in waqf activities.

6.12.3 Highlighting and Discouraging Abuse and Misuse of Awqāf

Waqf sector in Bangladesh is a helpless victim of various abuse and misuse. Illegal

occupation, misappropriation of waqf properties and fund, undervaluation in renting

out of waqf properties, unauthorised selling and alienation are all too common in

Bangladesh. A number of satellite based private television channels in Bangladesh

have programmes that highlight various cases of crimes and high level corruptions.

Initiatives can be taken to draw these private channels’ attention to the corrupt

practices in the waqf sector so that such programmes may have some deterring effect

on such misappropriation of waqf properties. Such programmes may contribute a lot

in terms of creating public awareness about abuse and misuse of waqf estates in

various parts of the country.

Bangladesh, such as Haji Muhammad Mohsin College in Chittagong and Haji Muhammad Mohsin Hall
in the University of Dhaka. For details please see: http://en.wikipedia.org/wiki/Muhammad_Mohsin
41
Dompet Dhuafa Republlika (DDR), a waqf based NGO in Indonesia has a Radio Channel that airs
various welfare oriented programmes designed to encourage Muslims to participate in waqf based
activities. In Malaysia the Institute Kefahaman Islam Malaysia IKIM (the Institute of Islamic
Understanding) has a radio channel called “Radio IKIM” that airs various waqf related programmes and
advertising.
42
Television Talk Show on waqf may be arranged, where officers from the Waqf Administration can
be invited to give a talk on waqf and its prospects.
43
Waqf Administration in Bangladesh has a website. Generally a website is not interactive. So in
addition to the website they can have Facebook and Twitter accounts and Blogs of their own and can
reach millions of facebook and Twitter users easily and at a minimum cost.

220
6.12.4 Involving the Banks and other Relevant Institutions in the Development

Process of Awqāf

A number of Islamic Banks in Bangladesh have introduced various modes of Islamic

Finances that may be suitable for the development of waqf properties. Depending on

the locations of the waqf lands residential or shopping complexes may be built on

those lands and if the location is in remote areas then agricultural investments may be

a better option. In this way a big amount of income can be earned by the waqf sector

which then can be channeled for the supporting and sponsoring welfare activities.

6.13 STEPS TO BE TAKEN BY THE GOVERNMENT FOR

REVITALISATION OF AWQĀF

There are steps that must be undertaken by the government and they are not within the

jurisdiction of the Waqf Administration. For the betterment of awqāf there appears a

clear need to refurbish and review the whole awqāf sector in Bangladesh. The socio-

economic role that awqāf can play in the betterment of Muslim society is very

significant. Therefore, in order to revitalise awqāf and to make it more relevant to the

overall development process in Bangladesh, the government should take the

followings steps:

6.13.1 Need for a New Waqf Act

A fresh Waqf Act is the need of the day in Bangladesh. The existing "Waqfs

Ordinance of 1962" emerged as a poorly drafted piece of legislation in the face of the

present day needs. Many of its important provisions are poorly drafted. The machinery

221
of administration it laid down in those days of Pakistan Martial law is now

incompatible in the new framework of Bangladesh.44

A resolution was adopted at the seminar held on ‘Awqāf Experiences In South

Asia’45 in New Delhi, where it was resolved, with regard to Bangladesh, that the

implementation of Waqf Ordinance 1962 without repealing the Bengal Waqf Act 1934

has brought uncertainty to the law of waqf and that the enactment of a new waqf law is

necessary. Another resolution specifically highlighted the need for amending section

86 of the Waqf Ordinance 1962 which empowers the Administrator to realise from an

individual waqf all costs and legal expenses incurred by the Administrator.46 This,

again, shows the need of a thorough and critical appraisal of all the laws applicable to

awqāf in Bangladesh to evaluate their appropriateness of meeting the current need of

effective waqf management.

As mentioned earlier that waqf plays an important role in the religious and

socio-economic development of the Muslims. The vast resources of waqfs can, in

theory become a strong instrument not only for the preservation of religious,

charitable and philanthropic institutions but also for the educational and economic

boost up of the community. It is of utmost importance that waqfs should be

maintained properly. So the need of a pragmatic and empirical approach in the area of

waqfs is obvious. The Ordinance cannot fulfill this task in today’s changed situation, it

has become ineffective. Hence, an ideal Act is essential.

44
The Ordinance originated during Martial Law. It came into force on 19th January, 1962 when there
was no Parliament. Pakistan’s 1962 Constitution was promulgated on March 1, 1962. East Pakistan
became independent Bangladesh in 1971.
45
Held in May 1999, jointly organised by the Institute of Objective Studies, New Delhi, the Islamic
Development Bank, Jeddah, the Kuwait Awqaf Public Foundation, Kuwait and Ta’awun Trust, New
Delhi.
46
Resolution No. 17 & 18 of above mentioned seminar.

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6.13.2 Issuance of Waqf Bond

Waqf Administration may issue ‘Waqf Bonds’ in order to create a pool of fund for the

development of waqf properties and for sponsoring various waqf based charitable

projects. This is a contemporary approach which has been adopted by various

institutions for the development of awqāf in different countries. Such as, ‘Muqaradah

Bonds’47 allocated to awqāf projects introduced by the Ministry of awqāf in the

Kingdom of Jordan.48 A private bank in Bangladesh, Social Islamic Bank of

Bangladesh (SIBL49) has issued Cash Waqf Certificate50 since 1997 for pooling in

fund which then is invested and the income generated from the fund is spent for the

selected purpose chosen by the wāqif of the fund, i.e. the certificate holder.

6.13.3 Collaboration with Other Countries

In Bangladesh, what really remains to be done in this important and interesting area is

to undertake collaboration and comparative study of waqf administration with

countries where an administrative set-up for waqfs exists. Such countries include

almost all the Middle-Eastern countries, Malaysia and Indonesia just to name a few.

Among countries where Muslims are minorities, India and Singapore have made

considerable development in awqāf sector. Obviously, such a step would go a long

way towards the betterment of waqf administration in Bangladesh.

47
Mannan, M.A. The Role of Waqf in Improving the Ummah Welfare, Seminar paper presented at the
International Seminar on Islamic Economics as Solution, organised by Indonesian Association of
Islamic Economists and Muamalat Institute Jakarta, held in Medan Indonesia on 18-19 September
2005.14-15.
48
Act of Muqaradah Bond No.10 of Kingdom of Jordan 1981.
49
Formerly known as Social Investment Bank Limited (SIBL).
50
Issued in pursuance of the clause Nos 3, 18 & 32 0f the Memorandum and Articles of Association of
Social Investment Bank Ltd, as approved by the central bank Bangladesh Bank. as mentioned in the
Specimen of Cash Waqf Certificate of SIBL, cited by M.A.Mannan in his paper referred to in footnote
above.

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6.13.4 Establishment of a National Waqf Advisory Board (NAWAB)

Bangladesh should establish a National Waqf Advisory Board (NAWAB) that would

work in collaboration with the Waqf Administration. It may serve as a Think-Tank and

a key driving force that would have, inter alia, the following strategic functions:

 To establish branches of NAWAB in District and Thana (Sub-District)

level. Its aim, among others, would be to encourage, attract and strive to

solicit every able Muslim to create waqfs;

 To provide consulting services to the Waqf Administration and its various

chapters;

 To help establish various community development projects and

institutions that would be supported primarily from awqāf revenues and

resources.

 To promote and establish stronger cooperation and coordination with

Islamic NGOs and financial institutions nationally and internationally in

order to find and determine common and innovative ways of finance for

better utilisation of Awqāf.

 To establish cooperation and collaboration with World Waqf Foundation

(WWF) established by the Islamic Development Bank (IDB).

It is an admitted fact, that in order to improve the situation, there must be a

Waqf Administrator competent to perform all functions entrusted to him. Government

should nominate experts in law, finance and administration as member of NAWAB to

help the Administrator. The body will advise in matters such as compromising suits by

or against mutawallis and appoint mutawallis in cases where mutawalliship is in

dispute or no suitable person is available according to the waqf deed.

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6.13.5 Increasing Staff Benefit

Waqf sector is less attractive in the competitive job market in terms of salary and other

relevant benefits that many other sectors’ employees enjoy, such as social security

benefits, medical benefits for the employees and his next of keens, children education

benefit and so on. There is no Insurance Scheme which can help the employees in

different situation in their career. Adequate salary plus other benefit for the staff are a

must without which waqf administration can not attract young talented persons to this

sector. Waqf Administration can be rejuvenated by taking some bold steps to free

itself from the present sub-standered situation through increasing benefits for the staff.

6.13.6 Waqf Tribunal

Hundreds of waqf related disputes keep the waqf administration busy throughout the

year. A report published51 by the Office of the Waqf Administration highlighted this

situation by providing a statistics of that year in which a total of 601(six hundred and

one) cases were waiting to be resolved by different adjudicating authorities. Among

them were Waqf Administrator’s Office with 201(Two hundred and one case), District

Judge’s Court with 250 (Two hundred and fifty) cases and a total of 150 (One hundred

and fifty cases) in High Court and Supreme Court.52 It is obvious that resolving Waqf

disputes is another area that must be improved. There must be a way out for quick

resolution of waqf disputes, otherwise if litigation alone remains the mode of

resolving such disputes; it would be a wastage of time, money and vital waqf

resources.

51
Office of the Administrator of Waqfs, ‘Ek Nojore Waqf Proshashon’(Waqf Administration at a
glance), 1998. 1.
52
Ibid.

225
 Therefore, establishing a Special Waqf Tribunals for expediting dispute

resolution would be a huge step forward in dispute resolution of Awqāf. Such

tribunals, for instance, are operating in India and have been found to be effective. It

may be made mandatory for the disputing parties who must go to the Special Waqf

Tribunal for mediation and arbitration before the dispute may be taken to a court of

law. Then, waqf institutions must be exempted from paying court fees and registration

charges, and preferably, any legal action against a religious or charitable waqf may be

defended at the cost of the state, because the state is the custodian of public interest,

and the waqf is a public matter. Only cases relating to family waqf need to be

defended by the beneficiaries themselves, as it is their private matter.

6.13.7 Comprehensive Waqf Survey/ Census

Ever since the Census of Waqf was held in 1986/87 there has been no nationwide

census in Bangladesh so far. A new comprehensive census is therefore a call of time.

With data and records in hand from the previous census a new census would reveal

how many waqf estates have been newly created after 1987 and how many of them are

no more.53 The new census should also take into account the new trends in creating

waqf, such as waqf of intellectual properties54 and particularly the cash waqf, which

were not separately reported in the previous census.

6.13.8 Establishment of a Shariah Board

The whole concept of waqf is derived from divine sources of Islam. As such it is an

undeniable fact that the administration, management and governance of waqf should

53
Due to natural disasters like flood sometimes affects waqf lands in the rural areas that are situated at
the river banks. New census should determine how many of them are lost in such river erosions.
54
Sadeq. A. H. M. 162.

226
only be based on principles of shariah. The Waqf Ordinance 1962 and the present

system of administration do not require that the Administrator of Waqfs, or any office

bearer for that matter, must be a shariah educated person. Neither it is required that

there must be a shariah board to advise the Waqf Administration. This is a lacuna in

law and the system that must be filled in. A Shariah Board may be set up to advise the

Office of the Waqf Administration on matters that are from within the domain of

shariah.

6.13.9 Need for Investment of Waqf Properties in Real Estate and Commercial

Buildings

Urban waqf properties have the potential to be developed into income generating

enterprises. Many waqf lands in urban areas have old buildings that are rented out for

residential purposes or as shops at a very cheap rate. Such properties can be developed

into multistoried residential or shopping complexes that can bring in a lot more

revenue than the present income.

6.13.10 Need to Develop Statistics of the Family Waqf

The Census of Waqf Estates conducted in 1986/87 was a landmark activity in the

history of waqf in Bangladesh. In a total of 18 Tables presented in the Report on the

Census, various categories of waqf estates have been reported. However, there was no

mention of Family Waqfs or Waqf alal-Awlad in the whole report. Either the data on

family waqf was not collected at all or even if it was collected it may have been

reported under other categories making it difficult to determine the actual number of

family waqfs in the country. Family waqfs should be accounted for as it is also subject

to the rules and regulations of the Waqfs Ordinance. But without proper data and

227
statistics in hand it is difficult to address the issues related to the family waqfs.

Therefore a census or survey should be conducted to develop up to date data and

statistics on the family waqf.

6.13.11 Democratisation and Decentralisation of Waqf Administration

Waqf Administration is highly centralised in Bangladesh. The whole waqf

administration hovers around the Administrator of Waqfs who sits in the capital city of

Dhaka and is already burdened with administrative as well as quasi judicial functions

ordained by the Ordinance. It is practically very difficult for him to oversee the awqāf

in the remote districts of the country. The issue of lack of manpower has been

addressed earlier. It is therefore a primary prerequisite to bring necessary amendments

to the Ordinance and by increasing manpower the whole administration should be

decentralised for effective management of the waqf administration.

6.13.12 Setting-up Guidelines/Legislations for Managing Darghas and Mazars

There are no legislative guidelines for hundreds of Dargahs and Mazars in

Bangladesh. Due to the absence of legal and regulatory mechanism, the Dargahs and

Mazar management have become largely unproductive entities. Only 217 Dargahs are

enrolled55 with the Office of the Administrator of Waqfs. Other than these there are

hundreds of non-enrolled Dargahs that are waqf estates. These waqf estates are

occupying thousands of acres of lands that are unutilised or underutilised. If these

lands could be properly utilised, they could easily earn a lot of income for the

beneficiary as well as for the waqf administration. Due to lack of government control

many Mazars and Dargahs are directly or indirectly involved in activities that are
55
Office of the Administrator of Waqfs, ‘Ek Nojore Waqf Proshashon’(Waqf Administration at a
glance), 1998.14.

228
unwarranted in religion and even prohibited. This situation is driving certain section

of people with vested interest and greed to establish more and more Mazars and

Dargahs in strategic and crowd pulling locations. It is a common knowledge that

every year many Dargahs and Mazars are emerging out of nowhere; many of them are

situated beside roads and highways. These are purely commercial Dargahs that are

earning a huge fortune every year by capitalising on unsuspecting general mass. There

must be some sort of legal measures to stop these malpractices and bring them under

administrative control.

6.13.13 Need for Initiating and Promoting Cash Waqf Policy

Due to shrinking of land based resources, creation of new waqfs based on real estates

is very difficult and therefore is a rare commodity these days. Even if lands are

available in certain parts of the country the price of land is sky high. Although the

concept of cash waqf has gained popularity and flourished in many parts of the world,

the scenario is not so in Bangladesh. Although a couple of Private Islami Banks has

initiated ‘Cash Waqf Certificate’ and ‘Mudaraba Cash Waqf’ and similar products,

there is no concrete initiative or action plan from the waqf administration or the

government to promote cash waqf policy. As such promoting the concept of cash waqf

in Bangladesh is essential to encourage the wealthy to create more cash based new

waqfs.

6.13.14 Development of Mosque Properties

Bangladesh has hundreds of thousands of mosques and a vast majority of them are

dependant on donations from public for their maintenance and day to day

expenditures. Although many mosques have adjacent land properties they remain

229
unutilised or underutilised due to lack of fund and initiative. Such properties can be

developed into income generating ventures which may reduce their dependency on

donations and at the same time mosques can organise and sponsor socio-religious

events for musallis. In this way mosques can contribute greatly in social service apart

from holding regular congregational prayers.

6.13.15 Establishment of Research Division

Establishing a research division for the development of awqāf in Bangladesh is of

utmost importance. The Waqf Administration should engage itself in outcome based

research and it is only through research that they will be able to find exactly how and

what is to be done in the context of Bangladesh for the development of awqāf in the

country in order to make it result driven, people friendly and welfare oriented.

6.14. Conclusion

In the final conclusion of the thesis, it is only appropriate that we revisit the

hypotheses and objectives of this thesis set at the outset of the research that would

demonstrate, first, how the hypotheses have been well answered and then how the

objectives of the thesis have been achieved by delving in them, in an order as follows:

6.14.1. Response to the Hypotheses Addressed in the Thesis

Responses of this research to the five hypotheses set in the beginning are as follows:

1. That the laws governing awqāf fall short of what is present-day

requirement for development of awqāf. The existing laws relevant to

awqāf in the country are inadequate for proper and effective management

and development of Awqāf. Although waqf sector in Bangladesh has

230
 immense potential for development, however, the existing laws in the

country are insufficient to cater for such development that would bring

anticipated benefit to the society.

2. That awqāf in the country is handicapped with various problems that

include, but not limited to, manpower shortage; limited government

budget; lack of proper management; lack of relevant skills and knowledge;

and lack of initiatives for its development. These problems could only be

solved by introducing new amendments to the existing laws or by drafting

a new Waqf Act that would address these matters.

3. That awqāf in Bangladesh has the potential to generate income that can

contribute to the raise of national revenue which will ultimately reduce the

burden on the government and strengthen national spending on much

needed development sectors. With proper planning and implementation

thereof waqf sector can be transformed into an alternative source of

revenue.

4. That the Cash Waqf is a power house for progress and advancement of

waqf sector in the country. Compared to real-estate properties and other

immovable properties cash waqf is more suitable and adaptable to the

needs and necessities of the society. As land is limited and very pricey

these days in Bangladesh, cash waqf provides and affordable alternative

for almost every well-to-do person to contribute to the society by creating

cash-waqf based awqāf that can play crucial role for the development of

the society.

5. That particularly in Bangladesh where a huge section of the population

live below the poverty line, waqf can be an effective instrument for

231
 alleviation of poverty and socio-economic development of the country.

Illiteracy due to poverty and poverty due to illiteracy are the two sides of

the same coin and among major challenges Bangladesh is facing today.

Cash Waqf can help by funding educational projects and facilitating micro

and macro finances that may bring projected results. Training and

education sponsored by waqf fund can reduce illiteracy and at the same

time produce knowledge based workforce. Besides, waqf based Islamic

financing can help create more jobs that would ease the burden of

unemployment in the country.

6.14.2. Achievement of the Objectives of the Thesis

In the preceding paragraphs, recommendations and findings of the study were

presented that reflect on the hypothesis set at the outset of the research. Now in this

final part of the work, the study concludes by explaining what objectives this research

aimed to attain and how the project was carried out in realising the objectives.

1. This research had two objectives to attain. The first was to analytically

examine the problems and issues of the administration and management of

awqāf in the context of Bangladesh. The second aim of the thesis was to

offer various policy recommendations and suggestions for legal,

institutional and functional reforms in the awqāf sector in the country in

order to make waqf administration more effective and relevant in pursuit

of the development of the country.

2. In realising the above objectives, this research at the very outset, has

introduced the present scenario of the awqāf sector in the country in

details. In doing so it has highlighted the rich and noble practices of

232
 Bangladeshis in creating waqf for the welfare of the society. The study

then shed light on the beginning of legislative control of awqāf in

Bangladesh in illustrating how the legislative control contributed in

bringing waqf sector into the fold of administrative control. A brief note

on the challenges that awqāf sector is facing in the country was also

highlighted in the beginning. Then an extensive literature review that

covers a wide range of literatures on waqf and philanthropy in Bangladesh

has been presented that was never undertaken at any level of post graduate

studies before.

3. Followed by the introduction, the thesis then focused on the historical

background of the development of waqf administration in Bangladesh.

Administration of awqāf During Muslim Rulers of greater India followed

by awqāf Administration during British rule was briefly discussed; as

Bangladesh was part of India before British occupation. Then the

evolution of awqāf legislations in the greater Indian subcontinent was

highlighted before discussing Legislations after Division of Subcontinent

in 1947 into two countries, namely India and Pakistan; Finally the Present

Status of Administration in Bangladesh since her independence from

Pakistan was discussed.

4. Given the above, the thesis has presented in brief the types of waqf

properties in Bangladesh including their registration status, their

beneficiaries, annual income and expenditures, modes of management,

movable and immovable waqf properties and so on. It gives a clear picture

of how affluent Bangladesh is with different categories of waqf properties

by presenting different ‘figures’. It has been shown that the total number

233
 of registered, unregistered, verbal and tradional waqf estates (Figure 3.1)

in the country exceeds one hundred and fourty thousand. However, only

eighteen thousand waqf properties are enrolled with the waqf

administration of the country. It has also been shown that the major

portions of beneficiaries are religious institutions (Figure 3.2) compared to

public and educational institutions. In terms of management, more than

hundred and fourty thousand waqf estates are managed by the committee

(Figure 3.3). Management by a committee is less prone to corrupt

practices and as such this should be a very good sign in comparision to

management by heirs, government and others. The amount of waqf land

and their total income (Figure 3.4) is another area that needs closer look.

An annual income of ninety million taka (USD1.2 million) is not a very

big amount from one hundred and seventeen thousand acres of land. This

can surely be improved with proper initiatives. There are a considerable

number of waqf estates56 that do not report their land possession, income

and expenditures (Figure 3.5), for unknown reasons.

This study has revealed that all Waqf estates in Bangladesh hold

possession of a considerable amount of land (117,624 acres). But the

figure (Figure 3.6) clearly indicates that only 17% of the total income

received by all the Waqf estates is coming from their land possession.

Other than land, the highest income comes from public donations (Figure

3.9) in cash followed by other donations in kind. It is also to be noted in

this figure that the income from investment, share and government grants

are very little and insignificant in amount. In Figure 3.10 it has been
56
Thirteen thousand eight hundred waqf estates are not reporting their income and fourteen thousand
and eight hundred waqf estates are not reporting their expenditures. Please see figure 3.5 above.

234
 shown that the annual income of the immovable properties other than land

is encouraging. These institutions include houses, factories and other

immovable properties. Subsequent two figures have shown the annual

income of the waqf estates from other sources, except immovable land

properties (Figure 3.11) and the average annual expenditure of the waqf

estates by category of expenditure (Figure 3.12).

The result of this analysis, as presented, is interesting and important for

the policy makers to take note in order to make necessary steps for waqf

estates to survive in the long-run. Awqāf in Bangladesh should instead

look for potential and greater income earnings on its own from

investments and share businesses rather than depending much on

government grants and donations This will enable them to operate

efficiently and sustainability.

5. Being the sole governing law, the Waqf Ordinance of 1962 has then been

looked into; to evaluate its suitability in the present day context.

Administration and management of waqf under the Ordinance provides

rulings from enrolment of a waqf property to the various stages of its

management. Many of the provisions relating to mutawalli’s powers have

been scrutinised and have been found to be either inadequate or not

compatible for effective administration of waqf. Such aspects include but

not limited to, Mutawalli’s remunerations and other entitlements;

mutawalli’s discretionary power; mutawalli’s penalties in certain cases.

Powers and functions of the Administrator of Waqf have been brought to

attention that seems to be largely centralised which this study proposes to

be decentralised for better and effective administration of awqāf in the

235
 country. It has been demonstrated that the Ordinance needs to be updated

with necessary amendments in order to cater for and accommodate new

trends and developments in the awqāf sector. Bangladesh can not afford to

neglect the awqāf sector which is suffering from lack of administrative

and managerial and legal tools, resulting in underutilisation of a potential

resource that could otherwise, be a strength for the government to provide

much needed assistance to the less privileged section of the population.

6. A thorough investigation has been undertaken to find out the underlying

problems and various challenges faced by the waqf administration in

Bangladesh. These problems are the main reasons why the awqāf sector in

the country cannot perform better. This thesis has divided these problems

into five different categories as follows:

i. Administration and Management Related Issues

ii. Mutawalli related issues;

iii. Waqf Property related issues;

iv. Legal issues; and

v. Finance and government budget related issues

In the administration and management related issues the study has

highlighted one of the major setbacks of the waqf administration; that it is

an extremely short-staffed administration. With nearly hundred and fifty

thousand waqf estates scattered throughout the country, the waqf

administration is running with less than one hundred employees including

3rd and 4th class employees. The number of officers with decision making

authorities comes to a handful people. Due to lack of manpower the

administration is unable to perform its duties. The latest data up to 2014

236
has been presented and shown to be seriously lacking in almost all the

official positions, such as the number of Surveyor cum Auditor per

District and number of waqf estates per district to be managed by them,

huge ratio gap between manpower and their responsibilities and

operational inefficiency due to facilities like transportation and other

equipments. The less attractive remuneration package for the office

bearers has also been brought to attention with recommendation to

increase their salary and other benefits. This has been one of the reasons

why waqf sector is unable to attract talented human resource who are able

to contribute with their progressive and innovative ideas for the betterment

of Awqāf.

While discussing mutawalli related problems, the thesis has illustrated

their lack of educational and managerial qualifications. Lack of crucial

training for the mutawallis is another area that has been discussed with

illustration. These shotcomings have been counter productive; making

them less professional in submission of regular annual contribution and

submission of account and audit reports. Had it not been for lack of

training, the integrity and the public image of the mutawallis would have

been much better.

The problems related to the waqf property are enormous in number. This

study has examined the problems of illegal occupation of waqf properties,

requisition and government annuity, non enrolment, loss due to natural

disaster, unauthorised alienation and transfer, small and insignificant sizes,

dargah and mazar and the lack of control of the Waqf Administration over

dargah and mazars and their income and expenditure. Activities

237
contradictory to the core values of Islam which are taking place in and

around many dargah premises have also been looked into. In highlighting

registration status of the waqf properties it has been pointed out that a

waqf may be registered yet not enrolled with the waqf administration that

makes it difficult for the waqf administration to exercise control over such

estates.

Some of the pressing legal issues with regard to the power of the

Administrator under the Ordinance have been scrutinised. Backlog of waqf

related cases and lengthy process of disputes resolution are consuming

much of Waqf Administration’s resources. The research has pointed out

that flawed practices of adjudication of waqf disputes have been

continuing and cases are handled by people not required to have any legal

or shariah background. It has been also shown that the lack of manpower

is a serious barrier in taking action against trespass and illegal occupation.

Lack of legal representation of the Waqf Administration at the district

level is an impediment to any action against misappropriation and breach

of trust. It has been argued and demonstrated that the absence of clear

provisions in the Waqfs Ordinance 1962 relating to development is one of

the underlying factors why waqf sector remained under developed.

Last but not least the issues pertaining to finance and government budget

have been discussed whereby the study has pointed out that insufficient

budget for the development of Awqāf; uncollected arrears of annual

contributions from the waqf estates and small amount of annual

contribution are the main reasons for an insufficient waqf fund that is

unable to afford and undertake development plans.

238
7. Followed by the above, the thesis has discussed Cash Waqf. Presently

Cash Waqf is gaining acceptance and popularity not only in the Muslim

countries but also in non-Muslim countries with Muslim population alike.

In this study, primarily the development of cash-waqf-practices in

Bangladesh has been discussed demonstrating that in the context of an

overpopulated nation like Bangladesh the prospects of creating land based

waqfs are in the decline.

It has been argued that in such context the Cash Waqf seems to hold a lot

of hope for Bangladesh in terms of its potential for solving the problem of

poverty alleviation in Bangladesh. Therefore the role of cash waqf in

poverty alleviation has been discussed. Moreover, in order for Bangladesh

to be in per with developments in the awqāf sector taking place

worldwide, a brief sketch of the development of cash waqf in selected

countries have been undertaken in this study. The need for a modern and

innovative approach towards cash waqf has been highlighted, drawing

lessons from those selected countries that include Bahrain, Indonesia,

Kuwait, Malaysia, Singapore and Turkey.

Cash Waqf or otherwise, Bangladesh has a huge wealth of awqāf

properties as demonstrated in this study that could be utilised to bring out

the poor section of the population out of poverty. And this can be done by

bringing in the necessary changes in the administration of awqāf in the

country. The sufferings of poor section of the population in Bangladesh

can be relieved by empowering them through waqf- based various Islamic

micro finance schemes and not by donation grants. The study concludes

with the remarks that making the poor segments of the society an integral

239
 part of the development process should be the primary goal of the Waqf

Administration in Bangladesh.

6.14.3. Suggestions for Further Research

Waqf research has developed tremendously in the recent past in various parts of

the world; particularly in the Muslim world. However, research on waqf has never

been a priority in Bangladesh as far as government initiative is concerned. Bangladesh

spends only a trivial portion of its national annual budget in running waqf

administration under the Ministry of Religious Affairs which is mainly spent for the

salaries of the office bearers. It is obvious from this thesis that the waqf sector in

Bangladesh, despite its huge potential to contribute immensely to the overall national

development, does not receive the attention it deserves. This research has highlighted

that the Office of the Waqf Administration has no Research and Development (R & D)

wing that could conduct research to address and adopt current practices in the field of

waqf. Such inclusion of a wing could help propel innovations and ideas in the field of

waqf that could benefit awqāf in Bangladesh and beyond.

This author puts forward the following six suggestions for further research on

waqf in the context of Bangladesh by government organs as well as non-government

organisations, academia and individual researchers for consideration.

1. Waqf ‘alal-Awlad

Waqf ‘alal-Awlad or Family Waqf is an important and vast area for research that needs

to be adequately addressed in Bangladesh. This category of waqf alone deserves in

depth investigation and could be chosen for graduate level research. Many wealthy

Muslims create such waqf for the benefit of their future generations. Innovative

240
research may be able to come up with ideas that could regulate and guide such waqf

better in future.

2. Cash Waqf

Cash waqf is a revolutionary idea that has immense potential for welfare.

Traditionally, creating waqf of land-based properties could only be afforded by

wealthy Muslims who used to own vast land-based properties. However, in an

overpopulated country like Bangladesh land is a precious commodity and as a result

the prospect of land-based waqf has narrowed down unprecedentedly. The idea of

cash waqf has revolutionised the way to create waqf that is no more limited to wealthy

Muslims only. A person with modest income may also create a waqf by contributing

an insignificant amount of cash as waqf on a regular instalment basis. Thus cash waqf

has liberated the whole concept of waqf beyond any limit.

3. Waqf and Islamic Finance

Islamic Finance has emerged as a formidable and sustainable alternative to the

mainstream financing and has effectively been practiced in various parts of the world

in general and in the Muslim world in particular. It would be truly rewarding to do

some result-oriented post graduate level research to investigate how waqf, particularly

cash waqf, may play a role in the field of Islamic Finance.

4. Comparative Study of Waqf Laws in the Muslim World

Many Muslim countries, such as Kuwait, Egypt, Turkey, Iran and India have

developed up to date waqf laws and applied them. Comparative research of the laws of

other countries would greatly enhance harmonisation of waqf laws across borders.

241
Such research may play key role to innovate new ideas and would be pivotal to make

waqf more relevant to the present day needs and challenges.

5. Comparative Study of Waqf and Conventional Law of Trust

The conventional law of trust has developed well and many institutions worldwide,

including Muslim institutions are governed by the law of trust. Comparative study of

trust and waqf laws may be instrumental to figure out and bring to light the underlying

strengths and weaknesses of both the streams that may pave the way for learning and

developing new and effective laws.

6. Nationalisation and Privatisation of Waqf Administration

This would be a particularly interesting research in the context of Bangladesh to study

whether privatisation of the waqf administration would be better and more effective

than the present form of administration under the government. Such research may also

study the possibilities to make waqf administration a semi government entity where

greater autonomy may be given to the waqf administration.

In addition to the above suggestions what the prospective researchers will

always have to keep in mind in choosing an ideal area of waqf research is that an

innovative approach towards waqf is the key to discover untapped and unforeseen

possibilities of waqf just like many other branches of knowledge. It is this need-based

practical approach that would reintroduce waqf in a timely fashion and bring it closer

to people; people who would dedicate their wealth as waqf, people who deserve the

benefit of the waqf most and, last but by no means least, closer to the Almighty by

242
attaining the ultimate goal of waqf to serve humanity as was first shown57 by none

other than the greatest of all human beings who was sent as ‘mercy on the worlds’ 58,

the last Prophet (s.a.w.) of Allah (s.w.t).

57
‘Ibn Umar reported: Umar acquired a land at Khaibar. He came to Allah's Apostle (may peace be
upon him) and sought his advice in regard to it. He said: Allah's Messenger, I have acquired land in
Khaibar. I have never acquired property more valuable for me than this, so what do you command me
to do with it? Thereupon he (Allah's Apostle) said: If you like, you may keep the corpus intact and give
its produce as Sadaqa. So 'Umar gave it as Sadaqa declaring that property must not be sold or inherited
or given away as gift.’ Hadith No.4006. Sahih Muslim translation by Abdul Hamid Siddiqui , The Book
of Bequests (Kitab Al-Wasiyya). Available online at: http://www.theonlyquran.com/hadith/Sahih-
Muslim/?volume=13&chapter=5 (accessed on 19 August 2016).
58
Al-Quraan: Surah al-Anbiya, verse107: “And We have sent you not but as a mercy for the worlds.”

243
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 APPENDIX I : WAQFS ORDINANCE, 19621

(1 of 1962)

(19th January, 1962)

An Ordinance

To consolidate and amend the law relating to the administration and management
of Waqf properties in Bangladesh.2

Whereas it is expedient to consolidate and amend the law relating to the

administration and management of Waqf properties in Bangladesh;2
Now, Therefore, in pursuance of the Presidential Proclamation of the seventh day
of October, 1958, and having received the previous instructions of the President,
the Governor is pleased, in exercise of all powers enabling him in that behalf, to
make and promulgate the following Ordinance, namely:

1
The original title of this Ordinance (EP Ord I of 1962) was 'East Pakistan Waqfs Ordinance' as
promulgated in January, 1962. Article 6 of die Bangladesh (Adaptation of Existing Bangladesh Laws)
Order, 1972 (PO 48 of 1972) runs as follows:
“Reference in any existing law to ‘Pakistan,' 'Bengal' or 'East Pakistan' in a title or preamble or any
citation or description in any Act, Ordinance or Regulation shall, except where the context otherwise
requires, to be Comitted.”
Therefore, according to what is laid down in Article 6 referred to above, the words "East Pakistan' must
be omitted being part of the title of this Ordinance. Hence the title of EP Ord. I of 1962 shall be 'the
Waqfs Ordinance, 1962.
2
Vide article 5 of Bangladesh (Adaptation of Existing Bangladesh Laws) Order (PO 48 of 1972)
which requires that the word 'Bangladesh' shall replace die words 'East Pakistan' throughout.

263
 Chapter I

1. Short Title, Extent and Commencement-

(l) This Ordinance may be called the Waqfs Ordinance, 1962.
(2) It extends to the whole of Bangladesh531
(3) It shall come into force at once.

2.Definitions-In this Ordinance, unless there is anything repugnant in the subject

or context, -
(l) "Administrator" means the Administrator of Waqfs appointed under section 7:

(2) “beneficiary" means any person entitled to receive any pecuniary or other material
benefits from a waqf and includes any institution, such as mosque,shrine, dargah,
khanquah, school, madrasha, idgah, or graveyared to receive any such benefits;

(3) "benefit" does not include any benefit which a mutawalli is entitled to claim solely
by reason of his being such mutawalli',

(4) "committee" means the waqfs committee establishedunder section 19;

(4A)3 "Deputy Commissioner" shall include Additional Deputy Commissioner.

(5) "enrolment" means the enrolment of a waqf under section 47;

(6) "mutawalli" means any person appointed either orally or under any deed or
instrument by which a waqf has been created or by a competent authority to be the
mutawalli of a waqf, and includes a naib-mutawalli, any other person appointed or
entrusted by a mutawalli, guardian to perform the duties of a mutawalli, the guardian
of a mutawalli who is a minor or of unsound mind and any person or committee for
the time being managing or administering any waqf property as such.
Explanation-A Receiver appointed under the provisions of the Code of Civil
Procedure, 1908 (Act V of 1908) or under section 145 or 146 of the Code of
Criminal Procedure, 1898 (Act V of 1898.) to manage or administer a waqf
property, or a Common Manager managing any, waqf property under the
provisions of any law for the time being in force, shall be deemed to be a rnutawalli
for tho purposes of this Ordinance;

(7) "net available income", of a waqf means the income as determined from time to
time, in the manner prescribed by the rules;

(8) "person interested in a waqf" includes a beneficiary and any person who has a
right to worship or to perform any religious rite in a mosque, idgah, imambarah,
dargah, maqbara or other religious institution and establishment connected with the
waqf or to participate in any religious or charitable institutions under the waqf;

(9) "stranger to waqf" mex.is a person other than a person interested within the
meaning of clause (8);

3
Added by Fast Pakistan Order II of 1967 and came into force on 4-9-67.

264
(10) "Waqf" means the permanent dedication by a person professing Islam of any
movable of immovable property for any purpose recognised by Muslim Law as
pious, religious, or charitable, and includes any other endowment or grant for the
aforesaid purposes, a waqf by user, and a waqf created by a non-Muslim.
Explanation-- When more than fifty per cent of the net available income of a waqf
is exclusively applied for Religious and charitable purposes, Such a waqf shall be
deemed to be a public waqf within the meaning of clause (e) of sub-section (1) of
section 85 of the East Bengal Non-Agricultural Tenancy Act, 1949 (EB Act XXIII
of 1949) and shall be deemed, to be a trust for public purposes of a charitable or:
religious nature within the meaning of section 92 of the Code of Civil Procedure,
1908 (Act V of 1908) and section 14 of the religious Endowments Act, 1863 (Act
XX of 1863);

(11) "Waqf deed" means any deed or instrument by which a waqf has been created
and includes any valid subsequent deed or instrument by which any of the terms of
the original dedication has been verified;

(12) "Waqf property" includes property of any kind acquired with the sale-proceeds
of, or in exchange of, or from the income arising out of, waqf property, and all
offerings made, or charities consecrated or contributed, on or to waqf property; and

(13) "wāqif" means any person creating a waqf.

3. Application-This Ordinance shall apply to all waqfs, whether created before or

after the commencement of this Ordinance, and to any part of the property which is
situated in Bangladesh.

4. Exemption of Certain Waqf Property-The Government may, by notification in

the official gazette, exempt any waqf property, which has-been retained under the
superintendence of the Board of Revenue in accordance with the provisions of
section 21 of the Religious Endowments Act, 1863 (Act XX of 1863) from all or
any of the provisions of this Ordinance, as long as such property remains under
such superintendence.

5. Power to Exempt Waqfs from the Operation of this Ordinance-The

Administrator may, with the previous sanction of the Government, and subject to
rules made by the Government in this behalf, exempt any waqf from all or any of
the provisions of this Ordinance.

6. Survey or Waqf Properties-

(1) The Administrator shall cause a survey to be made of all waqf properties
existing at the date of the commencement of this Ordinance in such manner as may
be prescribed by the rules, and, for this purpose, may appoint such persons as may
be necessary, who shall, on completion of the survey, submit to the Administrator a
report containing such particulars as may be prescribed by the rules.

(2) On receipt of the report under sub-section (1) the Administrator shall take such
action as lie may deem necessary under Chapter IV of this Ordinance for the
enrolment of the waqfs.

265
 Chapter II

Appointment of Administrator of Waqfs, Officers and

Staff, and Constitution of Committee.
The Administrator of Waqfs

7. Appointment of the Administrator-

(1) The Government shall appoint an Administrator of Waqfs for Bangladesh.

(2) No person shall be appointed as Administrator unless he is a Muslim and possesses

such qualifications as may be prescribed by the rules.

(3) The Administrator shall ordinarily be appointed for five years, and shall be eligible
for re-appointment.

8. Terms and Conditions of the Administrator-Subject to the provisions of this

Ordinance, the salary and the terms and conditions of service of the Administrator
shall be Such as may be prescribed by the rules.

9. Removal of the Administrator-If at any time it appears to the Government that the
Administrator has shown himself to be unsuitable for his office, or has been guilty of
misconduct or neglect which renders his removal expedient, it may, by notification in
the official Gazette, declare that the Administrator shall cease to hold such office.

10. Administrator to be a Public Officer-The Administrator shall be deemed to be a

public officer within the meaning of the Code of Civil Procedure, 1908 (Act V of
1908).

11. Administrator to be a Corporation Sole-The Administrator shall be a

corporation sole by name of the Administrator of Waqfs, Bangladesh and shall have
perpetual succession and an official seal and shall by the said name sue and be sued.

12. Office of the Administrator-The office of the Administrator shall be situated at

Dacca.

13. Appointment of Deputy and Assistant Administrators-The Government may,

in consultation with the Administrator, appoint such number of Deputy Administrators
and Assistant Administrators as may be deemed necessary.

14. Renumeration of the Deputy Administrators and Assistant

Administrators-The salaries, and the terms and conditions of service, of the Deputy
Administrators and Assistant Administrators shall be such as may be prescribed by the
rules.

15. Strength and Remuneration of Staff-The Administrator, with the previous

sanction of the Government, may, from time. to time, determine the number,
designations and grades of other officers and servants which he considers necessary to

266
employ for the purpose of this Ordinance and the amount and nature of the salary, fees
and allowances to be paid to each such officer and servant.

16. Service Condition of the Officers and Servants-The conditions of service of the
officers and servants mentioned in section 15 shall be such as may be prescribed by
the rules.

17. Power of Appointment, etc., Vested in the Administrator-The power of

appointing, promoting and granting leave to officers and servants mentioned in section
15 and reducing, suspending or dismissing them for misconduct, shall be vested in the
Administrator:
Provided that any such officer or servant in receipt of a monthly salary exceeding one
hundred and fifty takas, who is reduced, suspended or dismissed by the Administrator,
may appeal to the Government whose decision shall be final.

18. Traveling Allowances-There shall be paid to Administrator, Deputy

Administrators, Assistant Administrators and other officers and servants allowances
for journeys undertaken in the discharge of their duties under this Ordinance at such
reasonable rates as may, from time to time, be determined by the Government.

19. Establishment of the Waqf Committee-The Government shall establish a

Committee to be called the Waqfs Committee for assisting and advising the
Administrator in administering the waqfs and their funds and in the exercise and
performance of his powers and duties in accordance with the provisions of this
Ordinance.

20. Constitution of Committee-

(1) The Committee shall consist of the Administrator as Chairman and ten members to
be appointed by the Government of whom one shall be a mutawalli of Shia sect, and
three shall be mutawallis of the Sunni sect, and the remaining six shall be from among
the prominent, respectable and benevolent citizens of the Muslim Community,
well-versed in Muslim Law.

(2) The names of the members of the Committee, when appointed, shall be published
by the Government in the official gazette.

21. Terms of Office of Members-

(l) Every member of the Committee shall hold office for a term of five years, and
shall, if otherwise qualified, be eligible for reappointment on the expiry of his term of
office.

(2) A member of the Committee, notwithstanding the expiry of his term of office,
shall continue to hold office unit the vacancy caused by tile expiry of the said term has
been filled.

(3) If any mutawalli who is, as such, a member of the Committee, ceases to be a
mutawalli the Government shall, by notification in the Official Gazette, declare his
place to be vacant.

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22. Removal of Members-
(1) The Government may, by notification in the Official Gazette, remove any member
of the Committee, if he-
(a) refuses to act or becomes incapable of acting as a member of the
Committee:
(b) is declared insolvent :
(c) has been or is convicted of any such offence or has been' or is subjected
by a criminal court to any such order which, in the opinion of the
Government, renders him unfit to continue as a member of the Committee;
or
(d) is absent without the permission of the Committee from more than three
consecutive meetings of the Committee.

(2) The Government may fix a period during which any person so removed shall not
be eligible for reappointment.

23. Resignation of Members-A member of the Committee may resign his office by
giving notice in writing to the Government, and on such resignation being accepted,
shall be deemed to have vacated his office.

24. Casual Vacancies-When the place of a member of the Committee is declared

vacant under sub-section (3) of section 21 or becomes vacant by his removal under
section 22 or resignation under section 23, or. by death, a new member shall be
appointed in the manner provided in section 20 and shall hold office so long as the
member whose place he fills would have been entitled to hold office if such vacancy
had not occurred:
Provided that no act of the Committee shall be deemed to be invalid by reason only
that the number of members of the Committee at the time of the performance of such
act was less than the number provided in section 20.

25. Quorum and President at Meetings of the Committee-

(1) The presence of at least four members of the Committee shall be necessary to form
a quorum at a meeting of the Committee.

(2) The Administrator, or, in his absence, a member elected by the members present at
a meeting of the Committee, shall preside at every meeting of the Committee, and
shall have a second or casting vote in all cases of equality of votes.

26. Allowance to Members for Journeys-There shall be paid to each member of the
Committee, allowances for journeys undertaken in the discharge of their duties under
the Ordinance at such reasonable rates as may, from time to time, be determined by
the government.

268
 Chapter III

Powers and functions of the Administrator and the Committee

27. General Powers and Functions of the Administrator-Subject to the provisions
of the Ordinance and the rules made there under the powers and functions of the
Administrator shall include-
(a) investigation and determining the nature and extent of waqfs and waqf
properties, and calling, from time to time, for accounts, returns and
information from mutwallis;
(b) ensuring that the waqf properties and income arising there from are
applied to the objects, and for the purposes and for the benefit of any class
of persons for which such waqfs were created or intended;
(c) giving directions for the proper administration of waqfs;
(d) managing himself, or through the officers and servants employed under
this Ordinance or persons authorised by him, any waqf of which he may
take or retain charge under this Ordinance and doing all such acts as may
be necessary for the proper control, administration and management of
any such property;
(e) fixing the remuneration of mutawalli, where there is no provision for such
remuneration in the waqf deed;
(f) investing any money received as compensation for the acquisition of waqf
properties under any law for the time being in force, by himself or by
issuing directions for proper investment by the mutawalli; and
(g) generally doing all such acts as may be necessary for the due control,
maintenance and administration of waqfs.

28. General Powers and Functions of the Committee-Subject to the provisions of

this Ordinance and the rules made there under, the powers and functions of the
Committee shall include-
(i) in the absence (if any directions by the waqf or any lawful authority,
declaring what proportion of the income or other property of the waqf
shall be allocated to any particular object of the waqf:
(ii) declaring in what manner any surplus income of a waqf shall be utilised:
(iii) setting, altering or revising schemes for the proper administration of a waqf
in a manner not inconsistent with the terms and conditions of the waqf
deed or the wishes of the waqf-, and
(iv) exercising and performing such other powers and duties as are expressly
conferred or imposed on the Committee by or under this Ordinance.

29. The Administrator and the Committee to Carry Out Purposes of Waqf but
Administrator May Revise Inoperative Provisions-The Administrator and the
Committee, in exercising, their power and functions under this Ordinance in respect of
the waqf, shall act in conformity with the directions of the waqf, the purposes of the
waqf, and any custom or usage relating to waqf under the Muslim law:
Provided that, in furtherance of the objects of the waqf or in the interest of the
beneficiaries, the Committee may revise any provision in the waqf deed which has
become inoperative or impossible of execution owing to the efflux of time or changed
conditions.

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30. Exercise of Committee's Powers by Administrator
(1) All decisions and actions of the Committee shall be given effect to by orders
passed by the Administrator.

(2) The Committee may, from time to time, authorise the Administrator to exercise
and perform any of the powers and duties conferred or imposed on the Committee by
or under this Ordinance.

(3) The powers vested in the Committee under this Ordinance, shall when there is no
Committee or when the Committee cannot function for any reason, be exercisable by
the Administrator.

31. Powers and Duties of the Deputy Administrators and Assistant

Administrators - the Deputy Administrator and the Assistant Administrator shall,
subject to the control of the Government and of the Administrator, be competent to
discharge such duties and exercise such powers of the Administrator under this
Ordinance or the rules made there under as may be assigned and delegated to him by
the Administrator by notification in the official Gazette, with the prior approval of
Provincial Government.

32. Removal of Mutawalli in Certain Cases and his Liability for Breach of Trust
(1) Notwithstanding anything contained elsewhere in this Ordinance or in any other
law for the time being in force, the Administrator may, on his own motion or an
application of any person, remove a mutawalli-
(i) for breach of trust, mismanagement, malfeasance or misappropriation or
(ii) for any act of the mutawall causing loss of waqf property or affecting the
proper administration, control of preservation of the waqf : or
(iii) if the mutawalli has been convicted more than once under section 61 of this
Ordinance; or
(iv) if the existing mutawalli is found unsuitable, incompetent. Negligent or
otherwise undesirable:

Provided that no such order for removal of a mutawalli shall be made without giving
him an opportunity of being heard.

(2) A mutawalli aggrieved by an order under sub-section (1) may within three months
from the date of communication of such order, appeal to the District Judge against
such order of removal,
Provided that no appeal shall lie against an order under sub-section (1) unless the
mutawalli has made over charge of the waqf to the new mutawalli appointed under
sub-section (4).

(3) A revision from every order passed in appeal by the District Judge under
sub-section (2), if presented within ninety days from the date of such order, shall lie to
the High Court, whose decision shall be final.

(4) When a mutawalli has been removed, or when a mutawalli has resigned and his
resignation has been accepted, the Administrator may appoint a new "mutawalli to

270
whom the outgoing mutawalli shall make over possession and charge of management
of the waqf property together with the case and all papers relating thereto by such date
as may be specified by the Administrator.

(5) If an outgoing mutawalli fails or refuses to make over possession and charge of
management of the waqf property together with the case and all papers relating thereto
to the succeeding mutawalli under sub-section (4), the succeeding mutawalli or the
Administrator may apply to the Deputy Commissioner who shall evict the outgoing
mutawalli and make over possession of the waqf property together with the case and
all papers relating thereto to the succeeding mutawalli or the Administrator, as the
case may be.

(6) When a mutawalli commits a breach of trust or does any wrongful act causing loss
to the waqf property, he shall be liable to make good the loss sustained by the waqf
property or its beneficiaries.

33. Power of the Administrator to Transfer Waqf Property-Notwithstanding

anything contained elsewhere in this Ordinance or in any other law for the time being
in force or in any waqf deed or in any contract, the Administrator may, with the
previous sanction of the Government, transfer any part of waqf property for the
improvement and benefit of the waqf.

34. Administrator may take over Waqf Property by Notification;

(1) Notwithstanding in g anything contained elsewhere in this Ordinance, or any other
law for the time being in force, or in any decree or order of any court, or in any deed
or instrument the Administrator may, by notification in the Official Gazette, take over
and assume the administration, control, management and maintenance of any waqf
property including any shrine, dargah, imambara or other religious institution
appertaining to such waqf property.

(2) As soon as may be after the publication of the notification under sub-section (1),
the Administrator shall cause a notice to be served on the mutawalli of the waqf
property specified in such notification requiring him to make over, by a specified date,
the possession of the waqf property together with all papers relating thereto; and if the
mutawalli fails to make over possession by the specified date, the Administrator may
apply to the Deputy Commissioner who shall evict the mutawalli and make over the
possession of the waqf property to the Administrator.

(3) The Administrator may manage the waqf property taken over by him under
sub-section (1) through any officer subordinate to him or by an agent or official
mutawalli or, if he considers necessary, by appointing a managing committee in the
case of a shrine, dargah, imambara or other religious institutions.

(4) If a managing committee is appointed under the provisions of sub-section (3), the
mutawalli of the waqf property concerned, the manager or sajjada-nashin, if there be
one, and the Deputy Commissioner or his representative, shall be among the members
thereof; and the President and the Secretary of each such committee shall be appointed
by the Administrator from among the members of the committee.

271
(5) The officer or agent or official mutawalli, or the managing committee appointed
under sub-section (3) for the management of any waqf property taken over by the
Administrator under sub-section (1) shall frame a scheme for the administration of
such waqf property as nearly as possible in conformity with the wishes of the waqf
and the terms and conditions of the waqf and in accordance with the provisions of this
Ordinance subject to the approval of the Administrator who may make such
modifications in the scheme as he considers necessary.

(6) The Administrator shall maintain a complete record of all waqf properties taken
over by him under sub-section (1), and shall keep accounts of income and expenditure
of such property including the expenditure on the Administrator and his establishment
for Such purpose in such manner as may be prescribed; and all moneys received or
realised by the Administrator in respect of such properties under his control and
management shall be credited to the waqf Fund.

35. Petition and appeal against notification or order by Administrator-

(1) The mutawalli, or any person claiming any interest in the property in respect of
which a notification has been issued under sub-section (1) of section 34, may, if
aggrieved by such notification, submit a petition within three months of the
publication of such notification or of passing of such order, to the District Judge
within whose jurisdiction such waqf property or a part thereof is situated, for a
declaration-
(a) that the property is not a waqf property; or
(b) that the property is waqf property within the limits stated in the petition.

(2) The District Judge may pass such order as he thinks fit after hearing the parties, or
he may, for reasons to be recorded in writing, refuse to issue any process for
compelling the attendance of any witness or the production of any document, if he
considers that the petition has been made for the purpose of vexation and delay, and
dismiss the petition summarily.

(3) Any person aggrieved by the decision of the District Judge under sub-section (2)
may, within sixty days of the order, appeal to the High Court.

(4) The decision of the District Judge, or when there is an appeal, the decision of the
High Court, shall be final.

36. Exercise of Powers Through Deputy Commissioners, or Others-Subject to any

rules made in this behalf, the Administrator may exercise any of the powers conferred
on him by this Ordinance through the Deputy Commissioner of the districts in which
the waqf property concerned is situated or through any other person whom he may
appoint for such purpose and may, from time to time, delegate any of his powers to
such Deputy Commissioners or other persons as aforesaid and may, at any time,
revoke such delegation.

37. Application for Enquiry or Audit of Accounts-Any person interested in a waqf

may make an application, supported by an affidavit, to the Administrator to institute
an enquiry relating to the administration of a waqf or for examination and audit of the
accounts of a waqf, and the Administrator, on receipt of such application and on being

272
satisfied from facts set forth in the affidavit that there are reasonable grounds for
believing that the affairs of the waqf are being mismanaged, shall take such action
thereon as he thinks fit :
Provided that an application for the examination and audit of accounts shall not be
made in respect of accounts relating to a period more than three years prior to the date
of such application.

38. Power of the Administrator for the Purpose of an Enquiry Under this
Ordinance
(1) For the purpose of any enquiry under this Ordinance, the Administrator shall have
the power to summon and enforce the attendance of persons and witnesses including
the parties interested to examine them, to compel the production of documents, and to
issue commissions for the examination of witnesses, in the same manner as is
provided in the case of Civil Court under the Code of Civil Procedure, 1909 (Act V of
1908).

(2) Me Administrator shall be deemed to be a public servant for the purposes of

section 188 of the Penal Code and Civil Court for the purposes of section 195 and
Chapter XXXV of the Code of Criminal Procedure, 1898 (Act V of 1898).

39. Protection of Waqf from Mismanagement- If after making an enquiry under

section 37 the Administrator is of opinion that the affairs of any waqf have been
mismanaged to such an extent as to make it desirable, for the protection of the waqf
property or in the interest of the beneficiaries, that the waqf should be subjected to
greater control and supervision, he may take over and assume the administration,
control, management and maintenance of such waqf property under the provisions of
section 34, or he may subject the waqf property to such provisions of this Ordinance
for such specified period as he deems fit.

40. Power of Mutawalli to Apply for Directions-

(1)Any mutawalli may apply to the Administrator for the opinion, advice or direction
of the Administrator on any question affecting the management or administration of
the waqf property or on any point in a deed of waqf requiring clarification and the
Administrator shall give his opinion, advice or direction, as the case may be, thereon.
Provided that, if the Administrator cannot suitably dispose of the question, he may
refer the mutawalli to the court of the District Judge having local jurisdiction over the
place where the waqf property or any part thereof is situated; and if the mutawalli
thereafter applies by petition to such court, the court shall give its opinion, advice and
direction in the manner provided in sub-sections (2) and (3).

(2) The Administrator on receiving a petition under sub-section (1) may either give his
opinion, advice or direction thereon forthwith, or fix a date for the hearing of the
petition, and may direct a copy thereof, together with notice of the date so fixed to be
served on such of the persons interested in the waqf, or to be published for
information, in such manner as he thinks fit.

(3) On any date fixed under sub-section (2) or on any subsequent date to which the
hearing may be adjourned, the Administrator before; giving any opinion, advice or

273
direction shall offer a reasonable opportunity of being heard to all persons appearing
in connection with the petition.

(4) Every mutawalli acting upon or in accordance with the opinion, advice or direction
given by the Administrator or the court, as the case may be, shall be deemed, so far as
his own responsibility is concerned to have discharged his duties as a mutawalli in the
matter in respect of which the petition was made :
Provided that nothing herein contained shall indemnify any mutawalli for any act done
in accordance with such opinion, advice or direction if such mutawalli has been guilty
of any fraud or wilful concealment or misrepresentation in obtaining such opinion,
advice or direction.

41. Creation of Reserve Fund-For the purpose of making provision for the payment
of rent, rates and taxes due to Government or to any local authority and for the
discharge of the expenses of repairs of the waqf property and for the preservation of
the waqf property, Administrator may direct the creation and maintenance, in such
manner as it may think fit, of a reserve fund from the income of a waqf.

42. Power to Pay Dues in Case of Default by Mutawalli

(1) Where a mutawalli refuses to pay or does not pay any rates and taxes due to the
Government or any local authority, the Administrator may discharge the dues from the
"Waqf Fund," and then proceed to recover the same from the waqf property and may
also recover damages at twelve and a half per cent of the dues from the mutawalli.

(2) Any sum of money due under sub-section (1) shall be recoverable as a public
demand under the Bengal Public Demands Recovery Act, 1913. (Ben. Act III of
1913.)

43. Power to Appoint a Mutawalli in Certain Cases-In the case of any waqf of
which there is no mutawalli or where there appears to the Administrator to be an
impediment to the appointment of a mutawalli in terms of the deed of waqf or where
the successor to the office of mutawalli is a minor, a person of unsound mind or a
person adjudged insolvent by a competent court of law, the Administrator may, for
such period as he deems fit, appoint a person to act as mutawalli with notice to all the
persons interested in the waqf. Any person aggrieved by such an appointment may,
within three months from the date of the receipt of the notice, appeal to the District
Judge; and the decision of the District Judge shall be final.

44. Appointment of Official Mutawalli-Notwithstanding anything contained in this

Ordinance or in any other law for the time being in force or in any deed or instrument,
the Administrator may, where considered necessary, appoint an official mutawalli on
such terms and conditions as to remuneration and other matters as the Administrator
thinks fit for the administration and management of a waqf property and institution
attached there.

45. Inspection of Records and Granting of, Copies-

(1) The Administrator may grant inspection and copies of proceeding or other records
of his office on payment of such fees as may be prescribed by him and subject to such
conditions as he may determine. Copies shall be certified by the Administrator or by

274
such officer as may be authorised in that behalf by the Administrator in the manner
provided in section 76 of the Evidence Act, 1872 (1 of 1872).

(2) Any beneficiary or other person interested in a waqf shall be entitled, with the
permission of the Administrator, to inspect and obtain copies of such proceedings or
other records relating to the waqf.

(3) The Administrator at his discretion may allow a stranger to a waqf to inspect and
obtain copies of such proceedings or other records relating to the waqf.

46. Extension of Time for Performance of an Act-The Administrator may, from

time to time, extend the time within which any act is required or ordered to be done by
or under this Ordinance

275
 Chapter IV

Enrolment of waqfs

47. Enrolment of Waqfs-

(1) All waqfs existing at or created after the commencement of this Ordinance shall be
enrolled at the office of the Administrator.

(2) An application for enrolment shall be made by the mutawalli: Provided that any
person interested in a waqf may apply for such enrolment.

(3) An application for enrolment shall be made in such form and manner and at such
place as the Administrator may prescribe and shall obtain the following particulars as
far as possible-
(a) a description of the waqf properties sufficient for the identification thereof:
(b) the gross annual income from such properties;
(c) The amount of rents, rates and taxes annually payable in respect of the
waqf properties;
(d) an estimate of the expenses annually incurred in the realisation of the
income of the waqf properties based on such details as are available :
(e) the amount. set apart under the waqf for-
(i) the salary of the mutawalli and allowances to individuals;
(ii) purely religious purposes;
(iii) charitable 'purposes; and
(iv) any other purposes; and
(f) any other particulars prescribed by the Administrator.

(4) Every such application shall be accompanied by a true copy of the waqf deed or, if
no such deed has been executed, or a copy thereof cannot be obtained, shall contain
full particulars, as far as they are known to the applicant, of the origin, nature and
objects of the waqf.

(5) The Administrator shall, on receipt of every application for enrolment and before
enrolling any property therein as waqf property, send a copy of the application to the
Deputy Commissioner of the district in which the property it situated and ascertain
from him whether such property is the khas property of the Government. If the Deputy
Commissioner objects to the enrolment on the ground that the said property belongs to
the Government the applicant shall be informed accordingly and, unless the applicant
can produce a decision of the Civil Court to the contrary, the application for enrolment
shall be rejected.

(6) Where an application for enrolment has not been rejected under sub-section (5),
the Administrator may, before enrolling the waqf, make such further enquiries as he’
thinks fit in respect of the genuineness and validity of the application, and the
correctness of any particulars therein; and when the application is made by any person
other than the person administering the waqf property the Administrator shall, before
enrolling the waqf, give notice of the application to the person administering, the waqf
property and shall hear him if he desires to be heard.

(7) In the case of waqfs created before the date on which this Ordinance comes into
force, the application for enrolment shall be made within three months from that date,

276
and in case of waqfs created after that date within three months from the date of the
creation of the waqf: Provided that, in the case of a testamentary waqf, the application
for enrolment shall be made within three months from the date on which this
Ordinance comes into t0rce or from the date of the death of the testator, whichever
event happens later.

(8) Every application made under sub-section (2) shall be written in the English or
Bengali language and shall be signed and verified by the applicant in the manner
provided in the Code of Civil Procedure, 1908 (Act V of 1908) for the signing and
verification of pleadings.

(9) If the applicant omits or refuses on notice to sign or verify the application, a note
to the effect shall be made in the register maintained under section 48.

48. Register of Waqfs-The Administrator shall maintain a register of waqfs which

shall contain in respect of each waqf copies of the waqfs deeds and the following
particulars
(a) the name of mutawalli :
(b) the rules of succession to the post of mutawalli under the waqf deed or by
custom or usage;
(c) particulars of all waqf properties, and all title deeds and documents
relating thereto;
(d) particulars of the scheme of administration and the scale of expenditure at
the time of enrolment; and
(e) such other particulars as the Administrator may prescribe.

49. Power to Cause Enrolment of Waqf and to Amend Register-The Administrator,

on his own motion or on the petition of any person interested, verified in the manner
referred to in sub-section (8) of section 47, may direct a mutawalli to apply for the
enrolment of a waqf or to Supply any information regarding a waqf, or may himself
collect such information, and may cause any waqf to be enrolled, or may at any time
amend the register of waqfs.

50. Direction if a Property is Wāqif Property-Any question whether a particular

property is waqf property or not shall be decided by he administrator:
Provided that the mutawalli or an person aggrieved by any decision or order of the
Administrator in this behalf may, within three months from the date of such decision
or order, submit a petition to the District Judge in accordance with the provision of
sub-section (1) of section 35; and if such a petition is filed, the provision of section 35
shall apply.

51. Notification of Changes in Enrolled Waqfs-

(1) In the case of any change in the management of an enrolled waqf due to the death,
retirement or removal of the mutawalli, the prospective mutawalli who is eligible or
who considers himself to be eligible to succeed to the office of mutawalli in terms of
the waqf deed or according to the custom or usage of the waqf, shall forthwith, and
any other person may, notify the change to the Administrator.
(2) In the case of any other change in any of the particulars mentioned in section 47,
the mutawalli shall, within six months from the occurrence of the change, notify such
change to the Administrator.

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 Chapter V

Waqfs Accounts

52. Submission of Accounts of Waqfs-

(a) Before the fifteenth day of September next following the date on which the
application referred to in section 47 has been made and thereafter before the fifteen
day of July in every year, every mutawalli of a waqf shall prepare and furnish to the
Administrator a full and true statement of accounts, in such form and language and
containing such particulars as may be prescribed by the Administrator, of all moneys
received or expended by the mutawalli on behalf of the waqf during the period of
twelve months ending on the thirtieth day of June or on the last day of the Bengali
year, or, as the case may be, during that portion of the said period during which the
provisions of this Ordinance have been applicable to the waqf.

(b) Such statement shall also contain the following particulars-

(i) any change which may have taken place since the application for
enrolment or since the submission of the last annual statement, as the case
may be, in the extent, nature or quality of the waqf properties including
transfer, acquisition or transaction affecting such properties.
(ii) the amount of the liabilities, if any, of the waqf on account of outgoings
such as rent, rates, taxes, salaries and allowances and on account of all
other matters; and
(iii) any other particulars which the Administrator may require.

(c) In the case of a Receiver appointed by any court in any suit or proceeding in
respect of a waqf property he shall submit a statement of accounts to the Administrator
under the provisions of this section in addition to the statements that may be submitted
by him to the court.

53. Audit of Accounts of Waqfs-

(1) The accounts of waqfs submitted to the Administrator under section 52 shall be
audited and examined annually or at such other intervals as the Administrator may
determine by an auditor appointed by the Administrator.

(2) The auditor may, by written notice, require the production before him of any
document, or require the attendance before him of any person responsible for the
preparation of the account, to enable the auditor to obtain such information as he may
consider necessary for the proper conduct of his audit.

(3) After completing the audit, the auditor shall submit a report to the Administrator;
Provided that the auditor may submit an interim report at any time if he thinks fit.

(4) The report of the auditor shall, among other things, specify the cases of irregular,
illegal or improper expenditure or of failure to recover money or other property lost by
neglect or misconduct, loss of any property or money, and any other matter which the
auditor considers it necessary to report, The report shall also contain the name of any
person who, in the opinion of the auditor. i s* responsible for such expenditure or

278
failure and the auditor shall, in every case, certify the amount of such expenditure or
loss as due from such person.

(5) The cost of the audit of the accounts of a waqf including the traveling allowance of
the auditor shall be paid from the Waqf Fund.
Explanation-For the purposes of this section and sections 54 and 55, an "auditor" shall
include an Inspector and any other person or officer authorised by the Administrator
to audit and examine the accounts of a waqf.

54. Administrator to pass Orders on Auditor's Report-The Administrator shall

examine the auditor's report and may call for the explanation of any person in regard
to any matter mentioned therein, and shall pass such orders on the report as he thinks
fit.

55. Sums Certified Due Recoverable as Public Demand-

(1) Every sum certified to be due from any person by an auditor in his report under
section 53, unless such certificate is modified or cancelled by the Administrator by an
order made under section 54, and every sum due on a- modified certificate shall be
paid by such person within sixty days after the service of a demand for the same
issued by the Administrator.

(2) If such payment is not made in accordance with the provisions of sub-section (1),
the sum payable shall be recoverable as a public demand under the Bengal Public
Demands Recovery Act, 1913, (Ben. Act. III of 1913).

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 Chapter VI

Transfer of Waqfs Properties

56. Bar to Transfer of immovable Property of Waqf-

(1)No transfer by a mutawalli of any immovable property of a waqf by way of sale,
gift, mortgage or exchange, or by way of lease for a term exceeding 5 years shall be
valid without the previous sanction of the Administrator:
Provided that the sanction by the Administrator shall not validate any transfer which is
in contravention of any other law for the time being in force or is otherwise invalid.

(2) No Court shall grant permission to an y Receiver appointed by the Court for the
transfer of any waqf property unless the prior sanction of the Administrator has been
obtained.

(3) In the absence of the sanction required by sub-section (1) any transfer made by a
mutawalli shall be declared void, if the Administrator, within 4 months of his coming
to know of such transfer, or within 3 years from the date of such transfer, whichever is
later, applies to the Civil Court in this behalf.

(4) Where a mutawalli transfers a waqf property in contravention of sub-section (1)

and afterwards himself becomes the owner of the property, the mutawalli shall, on the
direction of the Administrator, reconvey the property to the waqf.

(5) Any transfer made in contravention of the provisions of sub-section (1) shall be
deemed to be an act of malfeasance and breach of trust for the purpose of sub-section
(1) of section 32.

57. Power of Administrator to Grant Sanction to Transfer-A mutawalli or a

Receiver may apply to the Administrator for sanction to transfer waqf property under
sub-section (1) of section 56, and the Administrator, after making such enquiry and
giving notice to such persons in such manner as he thinks fit and hearing them, if they
desire to be heard, may accord sanction to such transfer on such terms and conditions
as he may, in his discretion, impose:
Provided that where such transfer is to be made under an express power conferred by
the waqf-deed, the Administrator shall not refuse to accord sanction.

58. Bar to any Debt, Compromise and other Transactions by Mutawalli

(1) No debt incurred by a mutawalli shall be binding on a waqf property unless it is for
the benefit of the waqf and previous written permission has been obtained from the
Administrator authorising the incurring of such debt.

(2) No mutawalli shall compromise, compound, abandon, submit to arbitration or

otherwise settle any debt, account or claim relating to a waqf or for any of these
purposes enter into and execute any agreement or instrument of compromise or
arrangement, without the previous permission of the Administrator

280
 Chapter VII

Mutawallis

59. Mutawalli to Convert Property and Invest Money in Certain Cases-Every

mutawalli, unless there is anything to the contrary in the waqf- deed, shall invest, in
such manner as may be approved by the Administrator, any of the waqf property
which consists of money which cannot be applied immediately or at early date to the
purpose of the waqf and shall, with the sanction of the Administrator, convert any of
the waqf property which is of wasting nature and invest the proceeds in such manner
as may be approved by the Administrator.

60. Mutawalli Entitled to Pay Certain Costs from Waqf Property Fund-Notwith-
standing anything contained in the waqf-deed, every mutawalli may pay from the
income of the waqf property any expenses properly incurred by him for the purpose of
enabling him to furnish any particulars, documents or copies under section 47, or any
accounts under section 52, or any information or documents required by the
Administrator or a person authorised by the Administrator, and for the preservation or
benefit of the waqf property.

61. Penalties-
(1) If a mutawalli fails-
(a) to apply for enrolment; or
(b) to maintain clear and accurate accounts and furnish statements of
particulars or of accounts or returns as required by the Ordinance; or
(c) to supply information or particulars as required by the Administrator or a
person authorised by him; or
(d) to allow inspection of waqf properties accounts, or records, deeds and
documents relating thereto, or assist enquiries and investigations, if called
upon to do so by the Administrator or a person authorised by him; or
(e) to deliver possession of any waqf property if ordered by the Administrator
or the court; or
(f) to carry out the directions of the Administrator or a person authorised by
him; or
(g) to pay the contribution payable under section 7 1; or
(h) to pay the dues of any individual beneficiary of a waqf payable to him in
terms of the waqf deed; or
(i) to furnish accounts and other full and accurate information as to the
position and affairs of the waqf to the beneficiary or any person interested
in a waqf in terms of the waqf-deed; or
(j) to pay towards and look after, the proper maintenance and preservation of
any mosque or other religious, charitable and educational institution or
establishment, in terms of the waqf-deed; or
(k) to discharge any public dues; or
(l) to co-operate with the Committee and carry out its directions in the
performance of its functions: or
(m)to protect title to the waqf property and look after its preservation and
safety; or

281
 (n) to do any other act which he is lawfully to do by or under this Ordinance;
he shall, unless he satisfies the Court that there was reasonable cause for
his failure, be punishable with fine which may extend to two thousand
takas and, in default with simple imprisonment which may extend to six
months:
Provided that when a Mutawalli has been prosecuted for failure to pay the
contribution payable under section 71 of this Ordinance, the amount of fine shall
double the amount of the contribution due; and unpaid, subject to the maximum of
two thousand takas.

(2) If a mutawalli furnishes any statement, return or information referred to in clause

(b) or clause (c) of sub-section (1) which he knows or has reason to belive to be false,
misleading, inaccurate or untrue in any material particular, he shall be punishable with
fine which may extend to two thousand takas and in default with simple imprisonment
which may extend to six months.

(3) The fine imposed by the court under sub-section (1) or (2) and under section 63
shall, if realised, be paid and credited to the Waqf Fund.

62. Purchase of Property by Mutawalli Under Certain Conditions to be Act of

Malfeasance and Directions upon him to Recovery the Same-If a mutwalli
intentionally and dishonestly allows a waqf property to be sold for arrears of rent,
rates or taxes, and purchases the said property in the name of himself or any other
person, such a purchase by the mutawalli shall be deemed to be an act of malfeasance
and breach of trust for the purpose of sub-section (1) of section 32; and the.
Administrator shall issue directions upon him to reconvey the property to the waqf or
adequately compensate the waqf within the specified date.

63. Penalties Against Outgoing Mutwalli-If an outgoing mutawalli fails or refuses to

make over charge of management of the waqf, and of the accounts, documents,
records, papers and cash of the waqf and to surrender possession of the property and
produce of the land, if any, to the succeeding mutawalli, on being required to do so
under any of the provisions of this Ordinance, he shall be punishable with fine which
may extend to two thousand takas and in default with imprisonment which may
extend to six months.

64. Action Against Trespassers and Miscreants-

(1) If a co-sharer in waqf property or an individual beneficiary or any other person
interested in a waqf, or a stranger, creates disturbances or obstruction in the peaceful
management of the waqf or any institution attached thereto in any way, or disturbs the
possession of a waqf property by the mutawalli or any person or a managing
committee appointed by the Administrator for managing the said property, or commits
trespass on any such property, the Administrator shall apply to the Deputy
Commissioner, who shall evict the trespasser, or take such steps for preventing such
disturbance or obstruction as he deems fit.

(2) Any person evicted by the Deputy Commissioner under sub-section (1) may,
within three months from the date of his eviction, appeal to the District Judge against

282
such order of eviction; and the decision of the District Judge on such appeal shall be
final.

65. Resignation, Retirement or Discharge of a Mutawalli-

(1) A mutawalli shall not resign or retire from his service except with the permission
of the Administrator.

(2) If a mutawalli proposes to retire or tenders resignation or applies for discharge

from the office of the mutawalli, he shall not be permitted to retire or his resignation
shall not be accepted and he shall not be discharged unless he has submitted the
statement of accounts up to the date of his retirement, resignation or discharge and the
same has been audited unless he has paid the contribution payable under section 71 up
to the said date.

66. Mutawalli cannot Delegate except with the Permission of the Administrator-A
mutawalli shall not delegate his office or any of his duties to anyone except with the
permission of the Administrator:
Provided that the appointment of an attorney or proxy to do an act merely ministerial
and involving no independent discretion shall not be a delegation within the meaning
of this section.

67. Co-mutwallis Cannot Act Singly-Where there are more than one mutwallis to a
waqf, all of them shall act jointly in the exercise of their functions and performance of
their duties unless the waqf deed otherwise provides.

68. Control of Discretionary Power-Where a discretionary power conferred on a

mutawalli is not exercised reasonably and in good faith such power may be revoked
by the Administrator.

69. Remuneration of Mutawalli-Where no remuneration has been provided by a waqf

deed for the office of mutawalli, or where the amount provided, is inadequate, the
Administrator may, on the application of the mutawalli, fix a sum not exceeding
one-tenth of the net available income of the waqf as his remuneration.

70. Fixation of Imam's Pay and his Appointment and Removal by the
Administrator-
(1) The Administrator may, by a general or special order, fix the minimum
qualification and remuneration of the Imam of a mosque under the waqf, and every
mutawalli or any person or a managing committee appointed by the Administrator to
manage the waqf property, shall abide by his directions in this behalf.

(2) The Administrator may, if he considers it necessary, himself appoint the Imam of a
mosque under the waqf by removing an existing Imam if he is considered unfit,
unqualified or unsuitable.

283
 Chapter VIII

Finance
71. Annual Contributions Payable to the Office of the Administrator
(1) The mutawalli of every waqf shall pay annually to the office of the Administrator
contribution at the rate of five per cent of the net available income of the waqf.

(2) The Administrator may, in the case of any particular waqf and in the interest
thereof, reduce or remit any such contribution for such time as it thinks fit if the
income of the waqf concerned so deteriorates for any reason as would justify such
reduction or remission.

(3) Subject to any provisions in the waqf deed, the mutawalli may realise the
contributions payable by him under sub-section (1) from the various persons entitled
to receive any pecuniary or other material benefits from the waqf, but the sum
realisable from any one of such persons shall not exceed such amount as shall bear to
the total contribution payable, the same proportion as the value of benefits receivable
by such person bears to the entire net available income of the waqf:
Provided that, if there is any income of the waqf valuable in excess of the amount
payable as dues under this Ordinance, other than as the contribution, and excess of the
amount payable under the waqf deed, the contribution shall be paid out of such
income.

(4) The contribution payable under sub-section (1) in respect of a waqf shall, subject
to the prior payment of any dues to the Government or to any local authority, and of
any other statutory first charge on the waqf property or the income thereof be a first
charge on the income of the waqf and shall be recoverable as a public demand, under
the Bengal Public Demands Recovery Act, 1913. (Ben Act III of 1913).

(5) If a mutawalli realises the income of the waqf and refuses to pay or does not pay
such contribution, he shall also be personally liable for such contribution which may
be realised from his person or property in the manner aforesaid.

(6) Where a mutawalli dies or retires without paying the arrears of contribution due,
the next succeeding mutawalli shall be liable to pay such arrears out of the income of
the waqf.

(7) All mosques which have no landed property for their maintenance or which have
such property with an income of less than Rs. 300 per annum, shall be exempted from
the levy of any contribution under sub-section (1).

72. Administrator May Borrow Money-

(1) The Administrator, with the previous sanction of the Government, may, for the
purpose of giving effect to the provisions of this Ordinance, borrow such sum of
money and on such terms and conditions as the Government may fix; and the
Administrator shall-repay the money borrowed, together with any interest or costs due
in respect thereof, according to the terms and conditions of the loan.

284
(2) The Administrator shall not borrow money upon the security of the Waqf Fund.

73. Waqf Fund-

(1) All monies received by the Administrator in respect of properties under his control
and management and for the purposes of this Ordinance and all other monies realised
under this Ordinance shall form a fund to be called the 'Waqf Fund."

(2) The Government may make rules regulating the payment of monies into the Waqf
Fund, the investment by the Administrator of monies received into that fund and the
custody and disbursement of such monies.

(3) The Waqf Fund shall, subject to the provisions of sub-section (2), be under the
control of the Administrator.

74. Application of Waqf Fund-

(1) The Waqf Fund shall be applied to-

(a) payment of the cost of survey of waqf properties under section 6:

(b) repayment of any loan incurred under section 72 and payment of interest
thereon :
(c) payment of cost of audit of the Waqf Fund;
(d) payment of the salaries and allowances of the Administrator, Deputy
Administrator and Assistant Administrator;
(e) payment of the salaries and allowances of the officers andservants
appointed by the Administrator under section 17; 1
(f) payment of traveling allowances to the Administrator, Deputy
Administrator, Assistant Administrator, other officers and servants of
the office of the Administrator and to the members of the Committee;
(g) payment of the cost of the establishment employed by the Administrator;
(h) payment of all expenses incurred by the Administrator in the perfo;mance
of the duties imposed and the exercise of the powers conferred by this
Ordinance; and
(i) payment for reconstruction and repairs of mosques;4

(2) If any balance remains after meeting the expenditure referred to in sub-section (1),
the Administrator may use any portion of such balance of the fund for the
improvement, preservation and protection of waqf property and also other religious
and charitable works consistent with the purposes of the waqf.

(3)
(a) All monies received by the Administrator under the provisions of section
85 shall be invested by the Administrator in the purchase of those
properties, lands and other properties for the waqf; and
(b) If such purchase cannot be readily affected, such monies shall be invested
in such Government or other approved securities as the Administrator
thinks fit until such monies can be applied in the purchase of properties as

4
Added by EP Ord. U of 1967 and came into force on 4-6-67

285
 aforesaid; and the Administrator shall direct the payment of the interest or
other proceeds arising from such investment to persons interested in the
waqf in fulfillment of the objects specified in the waqf deed.

75. Accounts of Waqf Fund-The Administrator shall keep such accounts of the
receipts and disbursements of the Waqf Fund as may be prescribed by the rules and
shall submit the same for examination from time to time by auditors.

76. Audit of Accounts of Waqf Fund-

(1) The Accounts of the Waqf Fund shall be audited and examined annually by such
auditor as may be appointed by the Government.

(2) The auditor may, by written notice, require the production before him of any
document, or require the attendance before him of any person responsible for the
preparation of the account, to enable the auditor to obtain such information as he may
consider necessary for the proper conduct of his audit.

(3) After completing the audit, the auditor shall submit a report to the Government:
Provided that the auditor may submit an interim report at any time if he thinks fit.

(4) The report of the auditor shall, among other things, specify all cases of irregular,
illegal or improper expenditure or of failure to recover monies or other property due or
of loss or waste of money or other property caused by neglect or misconduct and any
other matter which the auditor considers it necessary to report. The report shall also
contain the name of any person who, in the opinion of the auditor, is responsible for
such expenditure or failure, and the auditor shall, in every such case, certify the
amount of such expenditure or loss as due from such person.

77. Government to Pass Orders on Auditor's Report-The Government shall

examine the auditor's report and may call for the explanation of any person in regard
to any matter therein, and shall pass such orders on the report as it thinks fill.

78. Sum Certified due Recoverable as Public Demand-

(1) Every sum certified to be due from any person by an auditor in his report under
section 76, unless such certificate is modified or cancelled by the Government by an
order made under section 77, and every sum due on a modified certificate, shall be
paid by such person within sixty days after the service of a demand for the same
issued by the Government.

(2) If such payment is not made in accordance with the provisions of sub-section (1),
the sum payable shall be recoverable as a public demand under the Public Demands
Recovery Act, 1913. (Act III of 1913).

286
 Chapter IX

Judicial Proceedings
79. Deposits of Decretal Amount in Court In Certain Waqf Cases -Where a decree
for rent or any other relief claimed under or on behalf of a waqf is passed or such
decree is executed by any Court, the decretal amount, if any, shall, unless an
application for enrolment of the waqf has been made under section 47, be paid into the
Court passing or executing the decree, as the case may be, and shall be kept in deposit
by the Court until an application for enrolment of the waqf has been made under
section 47 or the waqf has been exempted under section 5.

80. Bar to Compromise of Suits, etc, Without Sanction of the Administrator-No.

suit, proceeding or appeal by or against a mutawalli as such in any Court shall be
compromised without the prior approval of the Administrator and the sanction of the
trying Court.

81. Notice of Suits, etc. to be Given to the Administrator-

(1) In every suit or proceeding in respect of any, waqf property, or of a mutawalli as
such, except a suit or proceeding for the recovery of rent by or on behalf of a
mutawalli, the Court in which, or the Deputy Commissioner or other authority before
whom, such suit or proceeding is instituted, shall issue notice to the Administrator
along with a copy of the plaint or application, as the case may be, at the cost of the
party instituting such suit or proceeding.

(2) Before any waqf property is notified for sale in execution of a decree or order for
the recovery of any dues other than a public demand under the Public Demands
Recovery Act, 1913, (Act III of 1913) notice shall be given to the Administrator by
the Court or other authority concerned under whose decree or order the sale is
notified.

(3) In the absence of a notice under sub-section (1) any decree or order passed in the
suit or proceeding shall be declared void irrespective of the description of the property
as waqf property or otherwise in such suit or proceeding, if the Administrator, within
four months of his coming to know of such suit or proceeding, applies in this behalf to
the Court, Deputy Commissioner or other authority concerned.

(4) In the absence of a notice under sub-section (2) the sale shall be declared void,
irrespective of the description of the property as waqf property or otherwise in the
proceedings for sale, if the Administrator, within four months of his coming to know
of the sale, applies in this behalf to the Court or other authority under whose order the
sale was held.

82. Administrator May be Made a Party to a Suit or Proceeding Regarding a Waqf on

His Application-In any suit or proceeding in respect of a waqf or any waqf property,
whether instituted or preferred before or after the commencement of this Ordinance,
the Administrator may intervene and shall, on his application, be added as a party and

287
shall be entitled to conduct or defend such suit or proceeding on behalf of and in the
interest of the waqf.

83. Administrator May Institute Suit for Proceeding Regarding a Waqf-If there is no
mutawalli or the mutawalli refuses or neglects to act in the matter, within a reasonable
time, the Administrator may, in his own name, institute a suit or proceeding in a Court
against a stranger to the waqf or any other person-
(a) for the establishment of right, title and interest in a waqf property, or
(b) for confirmation of possession in a waqf property, or
(c) for the recovery of any waqf property wrongfully possessed, alienated or
leased, or
(d) for having any waqf property discharged of an encumbrance or obligation
wrongfully created, or
(e) for the recovery of any money belonging to waqf, or
(f) for any other relief in the interest of a waqf he may consider necessary.

84. Breach of Trust by a Beneficiary-Where one of several beneficiaries-

(a) joins with the mutawalli in committing a breach of trust, or
(b) knowingly gains any advantage therefrom without the consent of the other
beneficiaries, or
(c) becomes aware of a breach of trust committed or intended to be committed
and either actually conceals it or does not, within a reasonable time, take
proper steps to protect the interest of the other beneficiaries, or
(d) has deceived the mutawalli and thereby induced him to commit a breach
of trust, he shall be liable to compensate the other. beneficiaries for any
loss caused to them by such breach.

85. Compensation for Acquisition of Waqf Property to be Paid to the

Administrator-Where any waqf property is acquired under the Land Acquisition Act,
1894, (Act I of 1894) or any other law for the time being in force, the compensation
money payable for such property shall be paid to the Administrator and shall be kept
in deposit in the Waqf Fund till it is invested for the purposes stated in sub-section (3)
of section 74.

86. Cost in Suits or Proceedings-All costs and expenses incurred by the

Administrator in connection with any suit or proceedings in respect of any waqf or any
waqf property to which the Administrator Is a party and all costs decreed against the
Administrator by the Court, shall be payable out of the funds of such waqf.

Chapter X

[Repealed by Bangladesh Ordinance No. XIII of 1966, Second Schedule].

288
 Chapter XI

Miscellaneous
95. Certain Functions under EB Act XXVIII of 1951 to be Performed by the
Administrator-Notwithstanding anything contained in sections 58 and 59 of the East
Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951) the functions of
the Commissioner of Waqfs under sub-section (3) of section 58 and sub-section (4) of
section 59 of that Act and the functions of the Deputy Commissioner under
sub-section (3) of section 58 and sub-sections (1), (2) and (3) of section 59 of that Act,
in respect of compensation for waqfs-al-al-aulad properties, shall, with effect from the
date of coming into force of this Ordinance, be performed by the Administrator; and
the cost referred to in sub-section (3) of section 59 of that Act, shall be met from the
Waqf Fund.

96. Method of Recovery of Sums Realisable as Public Demand-

(1) Any sum of money payable by a mutawalli from the funds of a waqf to the
Administrator under this Ordinance including any damage chargeable thereon and
costs, if any, incurred, shall be recoverable as a public demand.

(2) The Administrator shall forward to the Deputy Commissioner a requisition in the
form prescribed under the Public Demands Recovery, Act, 1913. (Act III of 1913.)
under his signature specifying the sum recoverable under this Ordinance as a public
demand, and the Deputy Commissioner, on receipt of such requisition, shall proceed
to recover the sum under the Public Demands Recovery Act, 1913. (Act III of 1913).

97. Administrator and every Officer and Servant to Maintain Secrecy about Particulars
of Waqfs-Subject to the provisions of this Ordinance, the Administrator and every
officer and servant ofhis office shall maintain secrecy about the particulars and all
other information relating to a waqf which comes into his possession in his capacity as
Administrator or as an officer or servant of his office.

98. Administrator, Auditor, etc to be Deemed Public Servants-The Administrator,

Deputy Administrator, Assistant Administrator, Inspector, Auditor and any other
person appointed or authorised by the Administrator to do any act by or under this
Ordinance shall be deemed to be a public servant within the meaning of section 21 of
the Bangladesh Penal Code, 1860 (Act XLV of 1860).

99. Service of Notice or Requisition-A notice or requisition under this Ordinance may
be served on the persons named in the notice or requisition either by post or as a
summons issued by a Court under the Code of Civil Procedure, 1908 (Act V of 1908)
or in such manner as may be prescribed by the rules.

100. Attendance before Administrator may be Either in Person or by an Agent-Any

mutawalli or other person who is entitled to attend before the Administrator or any
other officer subordinate to him in connection with any proceedings under this
Ordinance may, with the permission of the Administrator or such other officer, as the
case may be, attend either in person or through any person authorised by him in
writing in that behalf.

289
101. Trial of Offences-No Court inferior to that of a Magistrate of the First Class shall
try any offences punishable under this Ordinance.

102. Bar to Suits-Except as otherwise expressly provided in this Ordinance, no

decision or order of the Administrator shall be questioned in any suit or other
proceeding in any Court.

103. Effect of Orders, etc. Inconsistent with this Ordinance-Except as otherwise

expressly provided in this Ordinance, every order made and every action taken under
this Ordinance shall have effect notwithstanding anything inconsistent therewith
contained 1r, any document, decree or order of any Court, deed, enactment or any
instrument having effect by virtue of any such enactment other than this Ordinance.

290
 Chapter XII

Rules and by-laws

104. Power to Government to Make Rules

(1) The Government may make rules for carrying out the purposes of this Ordinance.

(2) In particular, and without prejudice to the generality of the foregoing power, such
rules may provide for all or any of the following matters, namely:
(a) the exemptions of waqfs under section 4:
(b) the manner in which the net available income of waqf shall be determined;
(c) the delegation of powers by the Administrator to Commissioners of
Divisions, to Deputy Commissioners and to other persons;
(d) the preparation of schemes for administration of waqf property;
(e) the budgets, reports, accounts, returns or other information to be submitted
by the Administrator;
(f) the appointment and remuneration of auditors for auditing the accounts of
the waqf fund :
(g) the manner in which the accounts of the Waqf Fund shall be kept, audited
and published and the form and contents of the auditors report;
(h) the payment of monies into the Waqf Fund and the investment, custody
and disbursement of such monies;
(i) the regulation of functions of the Administrator and of the Committee
referred to in sections 27 and 28;
(j) the preparation of schemes of management and the allocation ofincomes
of shrines and dargahs and other religious institutions taken over by the
Administrator under section 34; and
(k) the services of notice and requisitions under section 99.

(3) All rules made under this section shall be published in the Official Gazette.

105. Power to the Administrator to Make By-Laws

(1) The Administrator may, with previous sanction of the Government, from time LO
time, make by-laws as to-
(a) the time and place of meetings of the Committee;
(b) the business to be transacted at meetings;
(c) the period of notice of meetings and the manner in which such notice shall
be given;
(d) the procedure and conduct of business at meetings;
(e) the books to be kept at the office of the Administrator
(f) the manner in which the accounts of waqfs shall be kept and audited, the
time and place of audit of accounts of waqfs and the form and contents of
the auditor's report;
(g) the fees for inspection of proceedings and records of the Administrator and
for copies of the same under section 45;
(h) the form of application for enrolment, the particulars to be contained
therein, and the manner and place of enrolment of waqfs under section 47.
(i) the further particulars to be contained in the register of waqfs maintained
under section 48; and

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 (j) the form of, and the further particulars to be contained in, the statement of
accounts under section 52.

(2) All by-laws made under this section shall be published in the Official Gazette.

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 APPENDIX II: PUBLICATIONS

There are six publications by this researcher on the area of his Ph.D. research that
have been presented in international conferences and published in academic journal
and as chapters in books:

Papers Presented in International Conferences

1. “Awqāf in Bangladesh and its Potential for Poverty Alleviation and Social
Wellbeing: A Socio-legal Perspective on the Prospects of Cash Waqf
based Microenterprise.” paper presented at the ‘International Conference
on Development of Social Enterprise and Social Business for Eradication
of Extreme Poverty and Street Begging’, organised by the International
Islamic University Chittagong (IIUC), Bangladesh, held in December
2014.
2. ‘Waqf Estates in Bangladesh – Analyzing Socio-Economic Profile and
Exploring Potential but Unexplored Expenditure Options’, presented at the
Seventh International Conference the Tawhidi Epistemology: Zakat and
Waqf Economy, held at and sponsored by Faculty of Economics,
Universiti Kebangsaan Malaysia in 2010.
3. “Problems and Prospects of Awqāf in Bangladesh: A Legal Perspective” a
paper presented at the International Conference on Waqf Laws and
Management, Kuala Lumpur, Malaysia, organised by the International
Islamic University Malaysia (IIUM) in 2009.

Article Published in Refereed Journal.

4. Article titled ‘An Analysis of Disbursement of Waqf Funds and Their
Potential in Bangladesh’ has been published in the Journal of Islamic
Economics Banking and Finance (JIEBF), Vol 6 No 4 (Oct- Dec 2010),
Dhaka, Bangladesh.

Chapters Published in Books.

5. Article titled ‘Waqf Estates in Bangladesh – Analyzing Socio-Economic
Profile and Exploring Potential but Unexplored Expenditure Options’ has
been accepted to be published as a chapter (Chapter 15) in the book titled
‘The Tawhidi Epistemology: Zakat and Waqf Economy’ edited by Prof
Dr. Abdul Ghafar Ismail of UKM and accepted for publication by the
Dewan Bahasa Dan Pustaka, Kuala Lumpur, Malaysia, forthcoming in
2016.
6. Article titled “Socio-Legal Perspectives of Awqāf Development in
Bangladesh” has been published as a chapter (Chapter 12) in a book titled
‘Waqf Laws and Management’, jointly edited by Professor Dr. Syed
Khalid Rashid and Prof Dr. Arif Hasan, published by ‘Genuine
Publications & Media Pvt. Ltd., New Delhi. India in 2012.

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 APPENDIX III: QUESTIONNAIRE

[The following questions were asked to various respondents who are, in one way or
the other, related to waqf affairs; in order to gather feedback from the fieldworks of
the research.]

1. Are you involved in any way in waqf affairs, and if yes, in what capacity?

2. In your opinion, do you think there is public awareness about waqf in general?

3. How would you like to benefit from waqf?

4. In your opinion, do you think waqf ordinance 1962 of Bangladesh, as it is

now; is an effective tool for waqf management in the country?

5. Should waqf administration be public or private?

6. In your opinion, why there seems to be a decline in creating new waqf?

7. If you were to create a waqf what type of waqf would you choose from:
a. Land based waqf; b. cash waqf.

8. In your opinion how can waqf play a bigger and better role in the society?

9. Do you have knowledge of any specific problem that is faced by waqf sector in
Bangladesh?

10. In your opinion, what needs to be done to improve waqf management in the
country?

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 APPENDIX IV: LIST OF RESPONDENTS

List of Professionals and Experts Interviewed

No. Name Office Date Remarks

1 Golam District Daira Judge May 2011 District Daira Judge,
Rabbani Court, Dhaka, Dhaka, Bangladesh.
Bangladesh
2 Siddiqur District Daira Judge May 2011 District Daira Judge,
Rahman Court, Chittagong, Chittagong, Bangladesh.
Bangladesh
3 Professor M A Baridhara residence, June 2012 Former MD, Social
Mannan Dhaka, Bangladesh Investment Bank,
Bangladesh;
Former Chief
Economist, IDB Jeddah.
KSA.
4 Md Jahangir Office of the Waqf July 2012 Deputy Administrator,
Alam Administrator, Dhaka, The Waqf Administraton
Bangladesh of Bangladesh
5 Foyezullah The Daily July Senior Staff Reporter of
Bhunya Nayadiganta, 2012 the Daily
Bangladesh
6 Haji Golam Haji Golam Rasul May 2013 Mutawalli of the waqf
Muhammad Sowdagor Waqf estate
Estate Chittagong
7 A.N.M. Huda Islamic Foundation May 2013 Director, Chittagong
Chittagong Branch office
8 Shamsudduha Islami Bank June 2013 Assistant Vice President,
Bangladesh Limited
9 Dr. Md Yusuf Hamdard Laboratories June 2014 Managing Director
Harun (Waqf) Bangladesh
Bhuiyan
10 Masum Khalili The Daily July 2014 Senior Editor of the
Nayadiganta Daily

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 GLOSSARY

Adrasha Forquania Maktab Ideal Elementary School for learning to read Quran
Arkan Pillars, Preconditions
Awqāf Endowment (plural of waqf)
Crore One Crore is equivalent to 10 million.
Dargah, Mazar Priests’ burial ground / shrine
Da’wa Dissemination
Diwan-e-Mazalim Office for the inspection of public grievances
Ferman Ruling / official notice
Habs Endowment
Habs fi sabil Allah Endowed for the cause of Allah
Ibadat-Khana A place for worshipping
Ehsan / Ihsan Utmost sincerity
Eidgah Open field designated for Eid prayer
Ferman Proclamation
Imambara A shrine built by Shia Muslims
Jalsah: Concert session
Jenazah The dead body
Khadims Facilitators
Khanqah A place of spiritual retreat
Khatia Dead body carrier
Khorom Wooden slipper
Kitab al-Waqf Book of Waqf
Mazar(s) Shrine
Madrasah Religious School
Maddad-al-ma’ash Revenue
Moktab / Maktab Primary religious school
Mulla Priest
Mutawalli Manager of a waqf property/estate
Nazhir Superintendent
Parganah Administrative district
Parwana Royal declaration
Qazi / Qadzi Islamic legal scholar and or a judge
Rickshaw Three-wheeled human pulled vehicle
Sadre Sarkar Administrative authority
Sajjadanshin Religious officers
Shaikh al-Islam A person of religious authority
Shurut Conditions
Siyasa Policy
Sigah Phrase
Sijdah / Sujud: Prostration
Sultan King
Sultanate Kingdom
Taka Currency unit in Bangladesh

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Tanzimat Reform / reorganisation
Ulema Religious experts
Uras Mahfil: Anniversary celebration at the shrines
Waqf: Endowment (plural Awqāf)
Zila Administrative Districts

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