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The Waqfs Ordinance, 1962 (East Pakistan Ordinance)

( Ordinance NO. I Of 1962 )

Chapter III

POWERS AND FUNCTIONS OF THE ADMINISTRATOR AND THE COMMITTEE

General powers and functions of the Administrator
27. Subject to the provisions of this Ordinance and the rules made thereunder the powers and functions of the Administrator shall include-
 
 
 
 
(a) investigating and determining the nature and extent of waqfs and waqf properties, and calling, from time to time, for accounts, returns and information from mutawallis;
 
 
 
 
(b) ensuring that the waqf properties and income arising therefrom 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 a 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.
General powers and functions of the Committee
28. Subject to the provisions of this Ordinance and the rules made thereunder, the powers and functions of the Committee shall include-
 
 
 
 
(i) in the absence of any directions by the waqif 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) settling, 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 waqif; and
 
 
 
 
(iv) exercising and performing such other powers and duties as are expressly conferred or imposed on the Committee by or under this Ordinance.
The Administrator and the Committee to carry out purposes of waqfs but Administrator may revise inoperative provisions
29. The Administrator and the Committee, in exercising their powers and functions under this Ordinance in respect of the waqf, shall act in conformity with the directions of the waqif, the purposes of the waqf, and any custom or usage relating to waqfs 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.
Exercise of Committee’s powers by Administrator
 
 
30. (1) All decisions and actions of the Committee shall be given effect to by orders passed by the Adminis¬trator.
 
 
 
 
(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.
Powers and duties of the Deputy Administrators and Assistant Administrators
31. 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 thereunder as may be assigned and delegated to him by the Administrator by notification in the official Gazette with the prior approval of the Government.
Magistarial powers of Administator and others.
1[31A. (1). The Adminidtrator shall have such powers of an Executive Magistrate as may be necessary for due administration, management, maintenance and protection of properties of a waqf estate.
 
(2) The Administrator may, with prior approval of the government, by notification in the official Gazette, delegate to any Deputy Administrator and Assistant Administrator such of his powers of an Executive Magistrate as he may deem necessary for due administraton, management, maintenance and protection of properties of waqf estate.
 
(3) The magistarial powers of the Administrator, Deputy Administrator and Assistant Administrator may extend all over the country, and while exercising the powers of an Executive Magistrate under this section within the territorial jurisdiction of a particular district, the Administrator shall be deemed to be a District Magistrate of that District and a Deputy Administrator or Assistant Administrator shall be deemed to be an Executive Magistrate of that District.
 
(4) While exercising the powers of Executive Magistrate under this section within the territorial jurisdiction of a particular district or metropilitian area the Administrator, Deputy Administrator and Assistant Administrator, may, if necessary, ask for assistance of police and district Administration of that district or metropolition area, as the case may be, and, if so asked for, such assistance shall be provided.]
 
Removal of mutawalli in certain cases and his liability for breach of trust
32. (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 on an application of any 2[beneficiary], remove a mutawalli-
 
 
(i) for breach of trust, mismanagement, malfeasance or misappropriation; or
 
 
 
 
(ii) for any act of the mutawalli causing loss of waqf property or affecting the proper administration, control or 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 3[High Court Division], 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 whom the outgoing mutawalli shall make over possession and charge of management of the waqf property together with the cash 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 cash 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 cash 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.
Power of the Administrator to transfer waqf property
33. 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 a waqf property by sale, mortgage, exchange or lease if he considers it necessary for the improvement and benefit of the waqf.
Administrator may take over waqf property by notification
34. (1) Notwithstanding anything contained elsewhere in this Ordinance, or in 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.
 
 
 
 
(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 waqif 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 expenditures on the administration 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.
Petition and appeal against notification or order by Administrator
35. (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 the 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 4[High Court Division].
 
 
 
 
(4) The decision of the District Judge, or when there is an appeal, the decision of the 5[High Court Division], shall be final.
Exercise of powers through Deputy Commissioners, or others
36. 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 Commissioners 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.
Application for enquiry or audit of accounts
37. 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 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.
Power of the Administrator for the purpose of an enquiry under this Ordinance
38. (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 wit¬nesses 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 a Civil Court under the Code of Civil Procedure, 1908.
 
 
 
 
(2) The Administrator shall be deemed to be a public servant for the purposes of section 188 of the 6[* * *] Penal Code and Civil Court for the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898.
Protection of waqfs from mismanagement
39. 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.
Power of mutawalli to apply for directions
40. (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 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.
Creation of Reserve Fund
41. For the purpose of making provision for the pay¬ment 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.
Power to pay dues in case of default by mutawalli
42. (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 7[* * *] Public Demands Recovery Act, 1913.
Power to appoint a mutawalli in certain cases
43. 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.
Appointment of official mutawalli
44. Notwithstanding anything contained in this Ordi¬nance 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 Administra¬tion and management of a waqf property and institution attached thereto.
Inspection of records and granting of copies
45. (1) The Administrator may grant inspection and copies of proceedings or other records of his office on pay¬ment 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 such officer as may be authorised in that behalf by the Administrator in the manner provided in section 76 of the Evidence Act, 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.
Extension of time for performance of an act
46. 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.
 
 
 
 

  • 1
    Section 31A was inserted by section 4 of the Waqfs (Amendment) Act, 2013 (Act No. XVIII of 2013).
  • 2
    The word “beneficiary” was substituted for the word “person” by section 5 of the Waqfs (Amendment) Act, 2013 (Act No. XVIII of 2013).
  • 3
    The words “High Court Division” were substituted for the words “High Court” by Article 7(1)(a) of the Bangladesh (Adaptation of Existing Laws) Order, 1972 (President’s Order No. 48 of 1972) as amended by the Bangladesh Adaptation of Existing Laws (Amendment) Order, 1972 (President’s Order No. 150 of 1972)
  • 4
    The words “High Court Division” were substituted for the words “High Court” by Article 7(1)(a) of the Bangladesh (Adaptation of Existing Laws) Order, 1972 (President’s Order No. 48 of 1972) as amended by the Bangladesh Adaptation of Existing Laws (Amendment) Order, 1972 (President’s Order No. 150 of 1972)
  • 5
    The words “High Court Division” were substituted for the words “High Court” by section 3 and the Second Schedule of the Bangladesh Laws (Revision And Declaration) Act, 1973 (Act No. VIII of 1973)
  • 6
    The word “Pakistan” was omitted by Article 6 of the Bangladesh (Adaptation of Existing Laws) Order, 1972 (President’s Order No. 48 of 1972)
  • 7
    The word “Bengal” was omitted by Article 6 of the Bangladesh (Adaptation of Existing Laws) Order, 1972 (President’s Order No. 48 of 1972)
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Ministry of Law, Justice and Parliamentary Affairs