BIHAR WAQF RULES, 2020

PREAMBLE

In exercise of the powers conferred by Section 109 of the Waqf Act, 1995 (Central Act 43 of 1995), as amended by Act 27 of 2013, the Government of Bihar hereby makes the following rules, namely:-

CHAPTER I

Rule - 1. Short title, extent and commencement.

(i)       These Rules may be called "The Bihar Waqf Rules, 2020".

(ii)      It shall extend to the whole of the State of Bihar.

(iii)     It shall come into force from the date of its publication in the Official Gazette.

Rule - 2. Definitions.

(1)     In these rules, unless there is anything repugnant in the subject or context:

(i)       "Act" means the Waqf Act, 1995 (Central Act 43 of 1995).

(ii)      "Amin" means and includes a person appointed by the Sajjada Nasheen to perform the religious or spiritual functions in his absence;

(iii)     "Azakhana/Ashoorkhana" means and includes a place where Alam, Panjas, Nishan, Tabut, Zarih, etc., are kept.

(iv)    "Ballot Box" includes any box or container used for the insertion of ballot papers by voters having a lock & seal.

(v)      "Board" means Bihar State Shia/Sunni Waqf Boards established under Section 13.

(vi)    "Chairperson" means the Chairperson of the Board elected under Sub Section (8) of Section 14.

(vii)   "Candidate" means any candidate in electoral fray though not elected and not excluded from the poll at any given time.

(viii)  "Count" means all the operations involved in the counting of the votes recorded for candidates.

(ix)    "Dargah" means a shrine or a tomb, Mazar of a Muslim Saint including the properties attached to it.

(x)      "District Auqaf Committee" means a committee constituted by the Board under Section 18 of the Act.

(xi)    "Eidgah" means and includes an open air place duly surrounded for prefer congregational where Namaz is performed for Eid-ul- Fitr & Eid-ul-Azha other than mosque.

(xii)   "Election" means an exercise of a choice among the candidates to fill a vacancy/vacancies in the office of the Board members, under Sub Section (I) (II) (III) & (IV) of Clause (b) of Section (1) of Section 14 of the Act.

(xiii)  "Elector" means in relation to election to any category of member of the Board means any person whose name is specified in the Electoral Roll of that category unless disqualified by the Returning Officer.

(xiv)  "Electoral College" means the categories from which members are to be elected under Clause (b) of Sub Section (1) and second proviso of Sub Section (2) of Section 14.

(xv)   "Electoral Registration Officer" means officer appointed under Rule 11 of these rules.

(xvi)  "Electoral Roll" means a list of voters prepared under Sub-Rule (3) of Rule 11 of these Rules.

(xvii) "Exhausted paper" means a voting paper on which no further reference is recorded for a continuing candidate and includes a voting paper on which:

(a)      The names of two or more candidate, whether continuing or not are marked with the same figure and are next in order of preference; or

(b)      The name of the candidate next in order of preference whether continuing or not in marked by a figure not following consecutively after some other figure on the voting paper by two or more figures; or

(c)      There is such effacement, obliteration, erasure or mutilation as to make any preferences other than the first preference ambiguous.

(xviii)   "Form" means a Form appended to these Rules.

(xix)  "Government" means Government of Bihar.

(xx)   "Imam Barah" means a place/Building/Room where religious rituals like Majlis/Chahallum etc. held in the memory of Hazrat Ali & his two Sons Hazrat Hasan and Hazrat Hussain.

(xxi)  "Qabristan" means and includes a Muslim burial ground either Private or Public.

(xxii) "Khadim"/Naib means and includes a person appointed by the Sajjada Nashin/Mutawalli of a Waqf to assist him in performing the duties of such Waqf.

(xxiii)   "Khanqah" means and also includes Daira, Takiya, Jamat Khana and the premises where a Dervesh or Sufi Saint had imparted/imparts religious and spiritual teachings to the Disciples and seekers of truth, congregate for religious instructions and devotional exercise.

(xxiv)   "Legal practitioner" shall have the same meaning as assigned to it in the Advocates Act, 1961 (25 of 1961).

(xxv)"Madarsa" means and includes Islamic learning centre where religious education, alongwith other curriculum, is imparted.

(xxvi)   "Maktab" means and includes a place where elementary Islamic education and teachings are imparted.

(xxvii)  "Mansha-e-Waqif" means intention of a person who dedicated his property as a Waqf and includes the object, purpose of dedication and scheme for administration of the Waqf.

(xxviii) "Maqbara" means a grave or a tomb.

(xxix)   "Masjid" means a place/Building of worship where Muslims offer Congregational prayers/Salath (Namaz).

(xxx)"Mouzan/Moazzin" means a person appointed or nominated or volunteer to call for Aazan/Salath and to carry out such other duties as assigned from time to time by the management of the Mosque.

(xxxi)   "Muzawar/Mujabir" means a person appointed by the Sajjada Nasheen or Mutawalli or any competent authority under the law for the time being enforced in respect of Dargah/Mazar or a shrine to discharge the functions assigned to him from time to time;

(xxxii)  "Musafir Khana/Sarai" is a place for the accommodation of travelers;

(xxxiii) "Pesh-e-Imam" means a person working/appointed by the management of a mosque to lead congregational prayers/salath;

(xxxiv) "Preferential Voting" means casting of vote in the order of preference. 'First preference' means the figure '1' written opposite the name of a candidate, 'Second Preference' means the figure '2' written opposite the name of candidate;

(xxxv)  "Premises" means any land or any building or part of building and includes,-

(a)      Gardens, water bodies, grounds, if any, appertaining to such building or part of the building

(b)      Dargah, Graveyard, Peerkhana, Karbala, Maqbara, Mosque, Tomb, Imambara, Lunger Khana, Ziarat Khana, Kutub Khana and the courtyard appertaining thereto; and

(c)      Any fittings affixed to such building or part of the building for the more beneficial enjoyment thereof;

(xxxvi) "Presiding Officer" includes any Polling Officer performing any of the functions of a Presiding Officer under rule 26;

(xxxvii)               "Public Holiday" means any day which is a public holiday for the purpose of Section 25 of Negotiable Instruments Act, 1881;

(xxxviii)              "Registrar" means the Registrar of the Tribunal and includes Assistant Registrar or any other person to whom the Registrar may, with the approval of the Tribunal, delegate any function to be exercised by the Registrar;

(xxxix) "Returning Officer" means an officer appointed under sub-rule (1) of rule 16 and includes any Assistant Returning Officer performing any functions authorized to perform under sub-rule (4) of rule 16;

(xl)    "Sajjada Nasheen" means a spiritual superior of a Khankah, Dargah, Jamatkhana, Takiya and in-charge of spiritual affairs of such institutions;

(xli)   "Section" means the section of this Act;

(xlii)  "Senior Muslim Advocate" as per proviso to Clause (iii) of sub-section (1) of section 14 means a Muslim Advocate who has put in active practice for a minimum period of 20 years;

(xliii) "Sheristadar" means an official of Management cadre working in Waqf Tribunal;

(xliv) "Surplus" means the number by which the value of the votes, original and transferred, of any candidate exceed the quota;

(xlv)  "Transferred Vote" in relation to any candidate means a vote the value or part of the value of which is credited to such candidate and which is derived from a ballet paper on which a second or a subsequent preference is recorded for such candidate;

(xlvi) "Unexhausted paper" means a voting paper on which a further preference is recorded for a continuing candidate;

(xlvii)   "Waqf Inspector" means an Official appointed by the Bihar State Shia/Sunni Waqf Board(s), at the District level as such;

(xlviii)  "Waqf Officer" means an Officer appointed by the Bihar State Shia/Sunni Waqf Board(s), at the District level as such;

(xlix) "Waqf Premises" means,-

(a)      Any premises dedicated by a person of movable or immovable property orally or by an instrument in writing and used for any purpose recognized by Muslim Law as pious, religious and charitable.

(b)      Premises notified as Waqf property in the official gazette; or

(c)      Premises registered as Waqf in the Register of Auqaf maintained by the Board; or

(d)      Premises being treated as Waqf by user.

(l)       "Waqf Property" means any movable or immovable property referred to in clause (r) of Section 3 of the Act and includes premises thereof;

(li)      "Waqf Tribunal" means the 'Bihar State Waqf Tribunal' constituted under sub-section (1) of section 83 of the Act;

(lii)     "Yateem Khana" means an institution providing care, shelter and education to destitute and orphans.

(2)     All words and expressions used in these rules and not defined herein but defined in the Act, shall respectively have the same meaning as assigned to them in the Act. 

CHAPTER II SURVEY OF PROPERTIES OF AUQAF

Rule - 3. Appointment of Survey Commissioner.

(1)     The State Government under Sub Section 1 of Section 4 shall by notification in the official gazette appoint an officer to be the Survey Commissioner of Waqfs or instead of making such appointment may notify the secretary to the Government, Minority Welfare Department, to hold simultaneously the post of Survey Commissioner of Waqfs.

(2)     The State Government by notification in the official Gazette shall appoint an officer to be the Additional Survey commissioner or may notify the Collector or Additional collector of a district to perform and exercise all the powers and duties of an Additional Survey Commissioner.

(3)     The State Government by notification in the official gazette to notify an Assistant Survey Commissioner or may notify the Deputy Collector, Land Reforms of a revenue Sub Division to exercise and perform all the duties and powers of an Assistant Survey commissioner and shall have assistance by:-

(a)      Waqf Officer;

(b)      Waqf Inspector,

(c)      District Auqaf Committee,

(d)      Mutawalli of the Waqf Estate,

(e)      District Minority Welfare Officer,

(4)     The Survey Commissioner shall submit the survey report to the Revenue Department and Minority Welfare Department of the State Government as well as the Bihar State Shia/Sunni Waqf Board.

Rule - 4. Other particulars to be included in the report of the Survey Commissioner of Auqaf.

The report to be submitted by the Survey Commissioner to the Government under sub-section (3) of Section 4 of the Act shall be in Form No. 1.

Rule - 5. Survey and Publication of list of Auqaf.

The State Government shall cause Survey of Auqaf and shall cause publication of list of Auqaf as provided under Chapter-II of the Act by the Revenue Department.

Rule - 6. Particulars to be included in the list of Auqaf to be published by the State Government.

The list of Auqaf published by the Revenue Department of the State Government under section 5 shall be in Form No. 2.

Rule - 7. Updating of Auqaf Property in Revenue Records.

(1)     The State Government, after receipt of the list of Auqaf from the Board under section 5 of the Act, after publication in the official gazette either by the Department of Minority Welfare or by the Revenue Department shall send it within a period of one month to the Authorities in Revenue, Urban Development and Panchayat Raj Departments.

(2)     On receipt of the lists under sub-rule (1) from the Government, the concerned authorities shall, after updating the Revenue Records of the Government at circle level, submit a copy of such updated records to the Government and the Board within a period of six months.

Rule - 8. Updating of Records of Waqf properties.

(1)     Whenever any new property is acquired by a registered Waqf institution or a new Waqf institution is registered, and in every case of Waqf by user, the Mutawalli or the Executive Officer in relation to the Waqf shall apply in Form No. 3 to the Collector of the District/Land Reforms Deputy Collector and/or Circle Officer, Municipal Commissioner and in difficulty, within whose local limits the property is situated for updating of property in the Revenue Records of the Government and also to the Chief Executive Officer of the Waqf Board for updating Register of Auqaf.

(a)      Where the property is an agricultural land to the Revenue Circle in whose jurisdiction the land is situated; and

(b)      Where the property falls under Municipality or Corporation or Village Panchayat within whose local limits the property is situated before that institution also.

(2)     The Mutawalli (which include Managing Committee) or the Executive Officer shall update the records of each of such property by entering in the relevant column of the record the words "Waqf property" followed by the name of the "Waqf".

(3)     The Mutawalli of every Waqf institution shall maintain the following Registers; namely:-

(a)      Register containing the details of immovable properties belonging to the Waqf in Form No. 4.

(b)      Register containing the details of moveable properties belonging to the Waqf in Form No. 5.

(c)      Register containing the details of lease granted under Section 51 and 56 of the Act in respect of immovable properties of the Waqf in Form No. 6.

(d)      Register containing details of properties developed under various schemes as per Section 51 of the Act in Form No. 7.

(e)      Register containing details of the Waqf properties acquired under Land Acquisition Act, 1894 or any other law relating to acquisition of land in Form No. 8.

(4)     The Mutawalli shall update the registers maintained in rule 3 on or before 31st of January every year.

(5)     The Mutawalli shall submit the aforesaid registers duly updated to the District Minority Welfare Officer-cum-Waqf Nodal Officer on or before the end of February every year.

(6)     The District Minority Welfare Officer-cum-Waqf Nodal Officer shall after verification of the entries made by the Mutawalli in the prescribed registers and cause necessary entries in the corresponding registers to be maintained in the District Waqf Office in Form Nos. 9,10,11,12 and 13.

(7)     The District Minority Welfare Officer-cum-Waqf Nodal Officer shall submit report of the aforesaid entries made under rule (6) to the Chief Executive Officer in Form Nos. 9,10,11,12 and 13 on or before 31st March every year.

(8)     On receipt of the report from the District Minority Welfare Officer-cum-Waqf Nodal Officer, the Chief Executive Officer shall cause necessary entries in the corresponding registers to be maintained in the office of the Board in Form Nos. 14, 15, 16, 17 and 18.

Rule - 9. Assessment of damages.

In assessing damages for unauthorized use and occupation of Waqf property, under sub-section (6) of section 7 of the Act, the Waqf Tribunal shall take into consideration the following matters; namely:-

(1)     The purpose and the period for which the Waqf property is in unauthorized occupation.

(2)     The extent of the property available in such premises.

(3)     The rent that would have been realized, if the properties had been let out on rent for the period of unauthorized occupation.

(4)     Penalizing the unauthorized occupants: The penalty levied under subsection (6) of section 7 of the Act by the Tribunal shall not exceed double the amount of damages assessed.

(5)     Any other matter relevant for the purpose of assessing the damages including any damage caused to the building.

Rule - 10. Powers to acquire, hold and transfer of property as per Section 13 of the Act.

(1)     The Board being a body corporate having perpetual succession shall have power to acquire, hold and transfer any such property as Board's own property and that property shall not be treated as Waqf property. The income derived from such property shall be determined by the Board and shall be utilized for its development and other contingent expenditure as decided by the Board.

(2)     The Board shall have power to acquire and hold the moveable or immovable properties obtained from any source other than the Auqaf.

(3)     The power to sue and to be sued in pursuance of sub-section (3) of section 13 is confined to the property belonging to the Board. 

CHAPTER III ELECTION CONDUCTING AUTHORITY

Rule - 11. Appointment of Electoral Registration Officer.

(1)     The Government shall appoint an Electoral Registration Officer who shall be an Officer not below the rank of a Additional Secretary, whose appointment shall be made not less than six months prior to the completion of the respective term of each of the Boards.

(2)     Notification regarding Electoral Rolls:- The Electoral Registration Officer shall issue notification regarding preparation of Electoral Rolls in Form No. 19 within seven days from the date of his appointment which shall be published at the office of the Electoral Registration Officer, Office of the Bihar State Sunni/Shia Waqf Board and in all the District Waqf Offices and such Waqf institutions as Electoral Registration Officer may think fit. Wide Publicity of the Notification shall also be given by publishing it in local dailies having circulation in the area, at least one each in Hindi, Urdu and English languages.

(3)     Preparation of Electoral Roll:- The Electoral Roll for the four Categories of Electoral Colleges under Clause (b) of sub-section (1) of section 14 shall be prepared or revised before the date of the notification of the election to the Board.

(4)     Obtaining list of Electoral Colleges by Electoral Registration Officer:-The Electoral Registration Officer at the time of revision of Electoral Roll to the four Electoral Colleges shall obtain the list of eligible voters in case of categories specified in Sub-Clause (i) and (ii) of Clause (b) of sub-section (1) of section 14, from (i) Secretary-General of Lok Sabha and Rajya Sabha, (iii) Secretary, Bihar Legislative Assembly and Secretary, Bihar Legislative Council, (iv) the Secretary, Bihar State Bar Council and from the Chief Executive Officer, (v) Bihar State Sunni/Shia Waqf Board respectively.

(5)     The Electoral College for the category of Mutawalli shall consist of Auqaf having an annual income of Rupees One Lakh and above for the financial year preceding the year of election.

Rule - 12. Application for Registration by Voters to the Electoral Registration Officer.

(1)     The Electoral Registration Officer shall furnish the form of application in Form No. 20 to all those, whose names are not included in the list obtained under sub-rule (4) of rule 11 and to all persons eligible for registration, on their request.

(2)     The voters intending to get registered in the respective Electoral College shall fill up Form No. 20 and Form No. 20 (A) and submit them so as to reach the Electoral Registration Officer within seven days from the date of Notification under sub-rule (2) of rule 11.

(3)     No person shall be entitled to seek election unless his name is in the Electoral Roll.

Rule - 13. Publication of Provisional Electoral Roll.

The Electoral Registration Officer shall prepare and publish the Provisional Electoral Roll in not more than three months from the date of his appointment.

(a)      The last date for filing of Claims/Objections for the Provisional Electoral Roll shall be fifteen days from the date of its publication.

(b)      If any objections are received the Electoral Registration Officer shall consider them by holding summary inquiry and pass appropriate orders within fifteen days from the last date fixed for receipt of objections.

(c)      The Final Electoral Roll shall be published within seven days from the completion of the process under this rule.

Rule - 14. Forms and Language of Electoral Roll.

(1)     The Electoral Roll in respect of the four Electoral Colleges shall be prepared in Form Nos. 21A, 21B, 21C and 21D.

(2)     The Electoral Roll shall be in Urdu, Hindi and English languages.

Rule - 15. Electoral Roll of Ex-Muslim Members of Parliament from Bihar, Ex-Muslim Members of State Legislature and Ex-Muslim Members of the Bar Council.

The procedure specified under rules 11 to 14 shall mutatis mutandis apply to the preparation of rolls of the Electoral Colleges of Sunni and Shia sects specified in the second proviso to sub-section (2) of section 14. Separate Electoral Roll shall be maintained for each category respectively there under, in Forms Nos. 22A, 22B and 22C respectively.

Rule - 16. Returning Officer and Assistant Returning Officer.

(1)     The State Government shall appoint an Officer not below the rank of a Additional Secretary to be the Returning Officer for conduct of Election to the Members of the Shia and Sunni Board from the four Electoral Colleges respectively.

(2)     For the purpose of polling to the election of member/s of the Shia and Sunni Board from the respective Electoral College of Mutawalli of the State of Bihar shall be made at the office of respective Waqf Boards. The Returning Officer shall conduct such polling at the office of Waqf Boards respectively. The Returning Officer shall appoint Under Secretary rank Officer, as the Presiding Officer for the purpose of such polling.

(3)     There may be one or more polling booths where election has to be conducted.

(4)     The Returning Officer may also appoint Chief Executive Officer or Additional Chief Executive Officer of Bihar State Shia/Sunni Waqf Board(s) as Assistant Returning Officer.

(5)     The Returning Officer shall appoint sufficient number of Presiding Officers and Polling Officers for the booths:

Provided that, no Assistant Returning Officer shall perform any of the functions of the Returning Officer which relates to the scrutiny of nominations unless the Returning Officer is unavoidably prevented from performing the said functions.

Rule - 17. Notification of election by the State Government.

The State Government shall notify in Form No. 23 the schedule of election to the four Electoral Colleges consisting of one or two members from each Electoral College under Clause (b) of sub-section (1) of section 14, indicating the dates of commencement and completion of election which shall not be less than thirty days.

Rule - 18. Publication of Notice of Election by Returning Officer.

(1)     Public Notice of election notified under rule 17 shall be published by the Returning Officer indicating clearly,-

(a)      the number of persons to be elected to each of the Electoral Colleges for which election is declared;

(b)      the last date for filing of nominations shall be the seventh day after the date of publication of the Notice under this rule;

(c)      the place at which such nominations are to be filed;

(d)      the date of scrutiny of nominations which shall be the day next after the last date for filing nominations;

(e)      the last date for withdrawal of nominations shall be the third day after the date for the scrutiny of nominations;

(f)       the date on which polling shall be held being a date not earlier than the tenth day after the last date for withdrawal of nominations;

(g)      the date before which the process of election shall be completed; and

(h)     the date, place and time for counting of votes:

Provided that, the last date for the filing of the nomination shall not be less than thirty clear days before the date of the election.

Provided further that, if any date notified under Clauses (b), (d) and (e), falls on a public holiday such date shall be deemed to be the date on the working day falling immediately next after the holiday.

(2)     The notice shall be issued in Form No. 24 and published in local dailies having wide circulation in the area, at least one in each language namely Hindi, Urdu and English, and at the offices of:

(i)       The Returning Officer;

(ii)      The Bihar State Shia/Sunni Waqf Board(s);

(iii)     The District Auqaf Committees; and

(iv)    Any other offices deemed appropriate by the Returning Officer.

Rule - 19. Presentation of Nomination Papers.

(1)     Nomination papers duly filled in all respects in Form 25 shall be filed on any day before the last day notified, at such place and within such time as may be specified in the notice published under rule 18.

(2)     Every candidate for election as Member of the Board shall be proposed by one voter and seconded by another voter. The nomination paper shall be delivered to the Returning Officer either personally or by/through an Agent on or before the date specified in the notification under rule 18.

(3)     A candidate may file not more than two nomination papers for any seat; however the proposer in respect of each nomination shall not be the same person.

(4)     Where there is a single Member/Voter of any category of Electoral College, he himself shall file Nomination without proposer and seconder.

Rule - 20. Deposit.

Every nomination paper shall be accompanied by the demand draft or cash receipt for having paid non-refundable deposit of an amount of Rs. 2,000/- (Rupees Two Thousand only) in favour of the respective Waqf Board(s) and produce the receipt along with the Nomination Paper.

Rule - 21. Notice of Nomination, time and place of scrutiny of nomination papers.

The Returning Officer shall on receipt of the nomination paper, inform the candidate or authorized person delivering the same, the date, time and place fixed for scrutiny of nomination papers and record on the nomination paper its serial number in the category and the date and time at which the nomination paper was delivered to him. Thereafter the Returning Officer shall cause to be affixed in a conspicuous place in his office a notice of the nominations in Form No. 26, separately in respect of each Electoral Colleges.

Rule - 22. Oath of Affirmation.

(1)     Every candidate shall at the time of filing the nomination take oath of affirmation in Form No. 27 before the Returning Officer.

(2)     The candidate can appoint his Election Agent by making an application in Form No. 28 to the Returning Officer.

Rule - 23. Scrutiny of Nomination.

(1)     On the date fixed for scrutiny of nomination under rule 21, no other person other than the candidate or the Election Agent and one proposer of each candidate shall be allowed to be present at the time of scrutiny.

(2)     The Returning Officer shall examine the nomination papers and receive objections, if any, in respect of any nomination to the respective Electoral College, may either on receipt of such objections or on his own motion after summary inquiry, as he deems fit, reject any nomination on any of the following grounds; namely:-

(a)      That the candidate is ineligible for election as Member of that particular category of the Board;

(b)      That the candidate incurred any of the disqualifications specified in section 16 of the Act;

(c)      That the name of the candidate is not entered in the Electoral Roll.

(d)      That there has been a failure to comply with any of the provisions of rules 20, 21 and 22(1); and

(e)      That the signature/thumb impression of the candidate or the proposer in the nomination paper is not genuine:-Provided that, the Returning Officer shall permit any clerical or technical error in nomination paper with regard to the said names or numbers to be corrected in order to bring them into conformity with the corresponding entry in the Electoral Roll and wherever necessary direct that any clerical or technical errors may be overlooked.

(3)     Nothing contained in Clause (b) or (c) of sub-rule (2) shall be deemed to authorize the rejection of nomination of any candidate on the ground of any irregularity in respect of a nomination paper if the candidate has been duly nominated by means of another nomination paper, in respect of which no irregularity has been committed.

(4)     The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial nature.

(5)     The Returning Officer shall hold scrutiny on the date appointed in this behalf under rule 21 and shall not allow any adjournment of the proceedings except when such proceedings are intercepted or obstructed by causes beyond his control:-Provided that, in case any objection is raised by the Returning Officer or any contesting candidate to that particular category or his election agent concerned may be allowed time to rebut it, not later than the next day fixed for scrutiny and the Returning Officer shall record his decision on the date on which the proceedings have been adjourned.

(6)     The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.

(7)     The Returning Officer shall take up the scrutiny of nomination paper of various Electoral Colleges as per the sequence under Clause (b) of subsection (1) of Section 14.

(8)     Immediately after all the nomination papers for the various Electoral Colleges have been scrutinized and decisions accepting or rejecting the same have been recorded, the Returning Officer shall prepare a list of candidates whose nominations have been found valid in Form 29.

Rule - 24. Withdrawal of candidature.

(1)     A candidate may at any time before the date and time notified under rule 18 withdraw his candidature by giving in writing to the Returning Officer, either in person or his Election Agent who is authorized in this behalf, a notice of withdrawal in Form 30 and on receipt of such notice, the Returning Officer shall endorse thereon, the date and time at which it was delivered.

(2)     No person who has given a Notice of withdrawal of the candidature, under sub-rule (1), shall be allowed to recall the notice.

(3)     The Returning Officer shall on being satisfied the genuineness of notice and the identity of the person delivering it, notify the withdrawal of candidature in Form 31, on the Notice Board or at a conspicuous place of his office for each of the Electoral Colleges separately.

Rule - 25. Preparation and Publication of list of contesting candidates.

(1)     Immediately on expiry of the period within which candidature may be withdrawn under rule 24, the Returning Officer shall prepare in Form 32 in respect of each Electoral College, a list of such contesting candidates alphabetically in English with addresses.

(2)     The Returning Officer shall immediately after the preparation of the list of contesting candidates, cause a copy of the list to be published on the Notice Board or affixed at a conspicuous place in his office. The list shall also be published in Hindi and Urdu languages.

Rule - 26. Presiding Officer and Polling Officer.

(1)     The Returning Officer shall appoint one Presiding Officer and such number of Polling Officers as he thinks necessary for each Polling Station.

(2)     A Polling Officer shall, if so directed by the Presiding Officer perform all or any of the functions of Presiding Officer.

(3)     If the Presiding Officer, owing to illness or other unavoidable circumstances remains absent from the polling station, his functions shall be performed by such Polling Officer as has been previously authorized by the Returning Officer to perform such functions during any such absence.

(4)     Reference in these Rules to the Presiding Officer shall unless the context otherwise requires, be deemed to include any person performing any functions under authority from the Presiding Officer.

Rule - 27. Duties of Presiding Officers/Polling Officers.

It shall be the duty of the Presiding Officer and the Polling Officer at each polling station to see that the poll is conducted fairly and in orderly manner, and in so conducting they shall be guided by the detailed instructions set out in Annexure - I to these rules.

Rule - 28. Procedure where the number of candidates is equal to or less than the number of seats.

(1)     No poll shall be held pursuant to a notification of election issued under rule 18, unless the number of contesting candidates in any Electoral College is more than the number of seats to be filled from the Electoral college;

(2)     Where the number of candidate contesting from any Electoral College is equal to or less than the number of seats to be filled in the Electoral College, the Returning Officer shall forthwith declare in Form 33 that such candidates are duly elected to fill the seats and send information to the Government.

Rule - 29. Procedure to be adopted by Returning Officer, Asst. Returning Officer, Presiding Officer and Polling Officer.

The Returning Officer, Asst. Returning Officer, Presiding Officer and Polling Officer shall follow the procedure as laid down in the Conduct of Election Rules 1961 made under the Representation of Peoples Act, 1951 (Central Act 43 of 1951) as amended from time to time wherever the provisions of these rules are found to be inadequate.

Rule - 30. Manner of casting votes and choice of Electoral College.

(1)     Voting by proxy shall not be permitted at any election held under subsection (2) of section 14.

(2)     Where any voter is a voter in more than one Electoral Colleges he shall be allowed to vote in any one of the Electoral Colleges of his choice, if he indicates at least two days earlier to the date of poll, about his choice in Form No. 34 to the Returning Officer. The Returning Officer shall thereupon retain the name of the voter only in the Electoral College of the choice of the voter and strike out the name in the Electoral Roll of the remaining Electoral Colleges.

Rule - 31. Method of Voting.

(1)     For the purpose of voting, the voter shall use only a violet sketch pen supplied by the Returning Officer, along with the ballot paper. He shall not use any other pen, pencil, ball point pen or any other marking instrument, as that will invalidate the ballot paper;

(2)     Voting shall be by making the figure '1' in the column marked "order of preference" provided against the name of the candidate whom the voter chooses as first preference;

(3)     The voter has to indicate his further preferences for the remaining candidates in the same manner as in Sub-rule (1) above, by making figure 2 in the order of his preference;

(4)     The voter has as many preferences as there are contesting candidates irrespective of the number of candidates to be elected. For example, if there are five contesting candidates, and only two are to be elected, a voter can mark preferences against the candidates of his choice in order of preference;

(5)     Preferences shall be indicated in Arabic numerals i.e., 1, 2 or in words as 'one', 'two' and not in any other manner;

(6)     The voter shall not write his name or write any words or put his signature or initials or thumb impression on the ballot paper to disclose his identity;

(7)     It is not sufficient to put a mark like ' ' or 'X' against the candidates but the voter shall indicate his order of preference;

(8)     If the ballot paper is to be held valid, it is necessary that the voter should indicate his first preference by placing figure '1' against one of the candidates. The other preferences are optional, i.e., the voter may or may not indicate the second and subsequent preference;

(9)     In the event of election taking place for all Electoral Colleges separate ballot boxes have to be provided for each of the Electoral Colleges;

(10)   The voter and polling agent shall not carry any electronic gadgets inside the polling booths; and

(11)   Any voter or polling agent found to be violating sub-rule (10), his vote shall be invalid and such erring voter or polling agent shall not be allowed to stay inside the polling station.

Rule - 32. Form of Ballot Paper.

(1)     Every ballot paper shall have a counter foil attached thereto, to indicate the Electoral Roll part number and serial number of the voter on both ballot paper and counterfoil and the particulars therein shall be in Hindi, Urdu and English languages;

(2)     The names of the candidates shall be printed on the Ballot Paper in the same order in which they appear in the list of contesting candidates;

(3)     The Ballot Paper shall have a column against the name of each candidate wherein voter shall indicate his preference;

(4)     If two or more candidates bear the same name they shall be distinguished by the addition of their occupation or residence or in any other manner as the Returning Officer may prescribe;

(5)     When the election to all the four Electoral Colleges takes place, the color of the ballot paper for each category shall be specified by the Returning Officer; and

(6)     The Returning Officer may adopt the guidelines prescribed in the Hand Book for Returning Officers of Election Commission of India for the exact design of the Ballot Paper.

Rule - 33. Counting of Votes, Results and Return of Election.

(1)     On the date fixed for counting of votes, the Returning Officer shall cause to take up counting of votes as per the procedure framed under the Representation of the People's Act 1951;

(2)     The Return of Election for each of the Electoral Colleges shall be furnished separately in Form 35;

(3)     The Returning Officer shall for each Electoral College declare in Form 36 the candidate/candidates who has polled duly the largest number of votes as elected. A copy of Form 35 should be sent to Government and to the Chief Executive Officer of Bihar State Shia/Sunni Waqf Board(s);

(4)     At the time of counting the candidate or his agent shall be entitled to be present;

(5)     A ballot paper is invalid if,-

(a)      the figure '1', '2' or the word 'one', 'two' is not marked; or

(b)      the figure '1', '2' or the word 'one', 'two' set opposite the name of more than one candidate or is so placed as to render it doubtful to which candidate is intended to apply; or

(c)      the figure '1', '2' or the word 'one', 'two' and some other figures are set opposite the name of the same candidate; or

(d)      there is any mark in writing by which the voter can be identified;

(e)      If there is such effacement, obliteration, erasure, or mutilation as to make the first preference ambiguous.

Rule - 34. Ascertainment of quota.

At any election where more than one seat is to be filled, every valid ballot paper shall be deemed to be of the value of hundred, and the quota sufficient to secure the return of a candidate at the election shall be determined as follows, namely:-

(1)     Add the values credited to all the candidates under clause (c) of Rule 74 of Conduct of Election Rules, 1961;

(2)     Divide the total by a number which exceeds by 1 the number of vacancies to be filled; and

(3)     Add one to the quotient ignoring the remainder, if any, and the resulting number is the quota.

Rule - 35. Candidates with quota elected.

If at the end of any count or at the end of the transfer of any parcel or sub-parcel of an excluded candidate the value of ballot papers credited to a candidate is equal to, or greater than the quota, that candidate shall be declared elected.

Rule - 36. Transfer of surplus.

(1)     If at the end of any count the value of the ballot papers credited to a candidate is greater than the quota, the surplus shall be transferred, in accordance with the provisions of this Rule, to the continuing candidates indicated on the ballot papers of that candidate as being next in order of the elector's preference.

(2)     If more than one candidate have a surplus, the largest surplus shall be dealt with first and the others in order of magnitude; provided that every surplus arising on the first count shall be dealt with before those arising on the second count and so on.

(3)     Where there are more surpluses than one to distribute and two or more surpluses are equal, regard shall be had to the original votes of each candidate and the candidate for whom most original votes are recorded shall have his surplus first distributed; and if the value of their original votes are equal, the Returning Officer shall decide by lot which candidate shall have his surplus first distributed.

(4)     (a) If the surplus of any candidate to be transferred arises from original votes only, the Returning Officer shall examine all the papers in the parcel belonging to that candidate, divide the unexhausted papers into sub-parcels according to the next preferences recorded there on and make a separate sub-parcel of the exhausted papers;

(b) He shall ascertain the value of the papers in each sub-parcel and of all the unexhausted papers;

(c) If the value of the unexhausted papers is equal to or less than the surplus, he shall transfer all the unexhausted papers at the value at which they were received by the candidate whose surplus is being transferred; and

(d) If the value of the unexhausted papers is greater than the surplus, he shall transfer the sub-parcels of unexhausted papers and the value at which each paper shall be transferred shall be ascertained by dividing the surplus by the total number of unexhausted papers.

(5)     If the surplus of any candidate to be transferred arises from transfer as well as original votes, the Returning Officer shall examine all the papers in the sub-parcel last transferred to the candidate, divide the unexhausted papers into sub-parcels according to the next preferences recorded thereon, and then deal with the sub-parcels in the same manner as is provided in the case of sub-parcels transferred to in sub-rule 4.

(6)     The papers transferred to each candidate shall be added in the form of a sub-parcel to the papers already belonging to such candidate.

(7)     All papers in the parcel or sub-parcel of an elected candidate not transferred under this Rule shall be set apart as finally dealt with.

Rule - 37. Exclusion of candidates lowest on the poll.

(1)     If after all the surpluses have been transferred as hereinbefore provided, the number of candidates elected is less than the required number, the Returning Officer shall exclude from the poll the candidate lowest on the poll and shall distribute his unexhausted papers among the continuing candidates according to the next preferences recorded thereon; and any exhausted papers shall be set apart as finally dealt with.

(2)     The papers containing original votes of an excluded each paper being one hundred.

(3)     The papers containing transferred votes of an excluded candidate shall then be transferred in the order of transfers in which, and at the value at which, he obtain them.

(4)     Each of such transfers shall be deemed to be a separate transfer but not a separate count.

(5)     If, as a result of transfer of papers, the value of votes obtained by the candidate is equal to or greater than the quota, the count then proceeding shall be completed but no further papers shall be transferred to him.

(6)     The process directed by this Rule shall be repeated on the successive exclusions one after another of the candidates lowest on the poll until such vacancy is filled either by the election of a candidate with the quota or as hereinafter provided,

(7)     If at any time it becomes necessary to exclude a candidate and two or more candidates have the same value of votes and are the lowest on the poll, regard shall be had to the original votes of each candidate and the candidate for whom fewest original votes are recorded shall be excluded; and if the values of their original votes are equal the candidates with the smallest value at the earliest count at which these candidates had unequal values shall be excluded.

(8)     If two or more candidates are lowest on the poll and each has the same value of votes at all counts the Returning Officer shall decide by lot which candidate shall be excluded.

Rule - 38. Grant of Certificate to Elected candidates.

As soon as may be after a candidate has been declared elected, the Returning Officer shall grant to such candidate a Certificate of election in Form 37 and obtain from the candidate an acknowledgment duly signed by him and immediately send the acknowledgment to the Government along with a copy of Result in Form 35 in the case of each Electoral College.

Rule - 39. Scholar to be nominated by State Government.

(1)     A Sunni Scholar nominated by the State Government as per Clause (d) of sub-section (1) of section 14 of the Act the State Government shall appoint a prominent recognized Sunni Scholar must possess a certificate not below the rank of a Mufti awarded by a major Islamic Seminary.; and

(2)     A Shia Scholar nominated by the State Government as per Clause (d) of sub-section (1) of section 14 of the Act the State Government shall appoint a prominent recognized Shia Scholar must possess a Masters Degree/Hujjat-ul-Islam in Islamic Theology from the Recognized Universities/major Islamic Seminary.

Rule - 40. Notification by Government.

The State Government shall within two weeks after the receipt of results of election of the members of the respective Bihar State Shia/Sunni Waqf Board(s) under the various Electoral Colleges shall issue a notification containing the names of elected members from the four Electoral Colleges under Clause (b) of sub-section (1) of section 14 and other members nominated under Clauses (c), (d) and (e) of Sub-section (1) of Section 14 as members of the Bihar State Shia/Sunni Waqf Board(s) in Form 38.

Rule - 41. Election of the Chairperson.

(1)     Whenever the Board is constituted or re-constituted, the State Government shall fix by giving to the members not less than seven clear days notice in Form 39 a date for the first meeting of the Board to elect a Chairperson. The Notice shall state the time and place of the meeting.

(2)     Whenever a vacancy of Chairperson of the Board arises due to resignation, removal, death or otherwise the procedure for election of Chairperson as prescribed in sub-rule (1) above shall be followed.

(3)     The election of Chairperson shall be conducted by the Principal Secretary to the Government of Minority Welfare Department or any other Officer in the same rank deputed by the State Government in the meeting convened under Sub Section (1) through secret ballet code. The proceedings of the meeting shall be recorded and minutes drawn.

(4)     Immediately after the election of the Chairperson, the Government shall issue a notification in Form 40 containing the name of the member elected as a Chairperson of the Bihar State Sunni/Shia Waqf Boards under sub-section (8) of section 14. 

CHAPTER IV APPOINTMENT, DUTIES AND POWERS OF CHIEF EXECUTIVE OFFICER OF THE BOARD

Rule - 42. Appointment of Chief Executive Officer of the Board.

(1)     The Chief Executive Officer of the Board shall be appointed by deputation, out of an Officer of the Indian Administrative Service or the Bihar Administrative Service or any Officer from State Government of equivalent cadre, not below the rank of Deputy Secretary to the Government, having knowledge of Urdu language.

(2)     The term of deputation for the post of Chief Executive Officer shall be for three years generally, which may be extended up to five years in consultation with the Board.

(3)     The Chief Executive Officer shall be entitled to deputation allowance at such rate as the Board may specify by regulations, in addition to his own pay and allowances.

Rule - 43. Powers of Chief Executive Officer in respect of orders or resolutions of Board under Section 26.

The objection noting of the Chief Executive Officer under Section 26 of the Act will be remitted before the Board within seven days of such resolution and the Board shall take a decision in the next meeting or within 60 days from the date of such objection.

Rule - 44. Inspection of records, registers or other documents of any public office relating to Waqf or movable or immovable properties which are Waqf properties or, are claimed to be Waqf properties under Section 29.

(1)     The Chief Executive Officer or any other Officer of the Board duly authorized by him in this behalf shall make an application in Form 41 to the concerned authority for the purpose of inspection of records, registers or other documents relating to movable or immovable property of Waqf under section 29 of the Act who will be obliged to facilitate the same, being an official duty under Section 28 of the Waqf Act.

(2)     In case the concerned authority refuses to produce the said records, registers, documents relating to movable or immovable Waqf properties to the Chief Executive Officer or any other Officer of the Board duly authorized in this behalf, the Chief Executive Officer shall report to the State Government through the General Administration Department with a prayer for initiation of departmental proceeding for dereliction of duty by the Officer concerned and to ensure for securing the said documents, records, registers etc., for inspection.

(3)     The State Government on receipt of the Report of the Chief Executive Officer shall take up such dereliction on part of the Officer departmentally and also direct the concerned authority to produce the said documents for inspection within 15 days from the receipt of the direction of the State Government.

(4)     In case the Chief Executive Officer or any other Officer of the Board requires a certified or authenticate copy of any such record, register, document of movable or immovable property from the authority concerned and such Officer shall supply the copy of the required records, registers or documents from receipt of requisite fee.

Rule - 45. Time unit to produce the documents.

The Mutawalli, Government Offices, organisations or any other person having custody of documents related to Waqf properties shall produce the same within ten days before the Chief Executive Officer.

Rule - 46. Conditions subject to which inspection of Board's proceeding and other records and supply of certified copies may be allowed under sub Section (1) of Section 30.

(1)     The Board or Chief Executive Officer may allow inspection of his proceedings and other records in its custody on an application made in Form 41(A) to the Chief Executive Officer or any other Officer duly authorized by the Board in its behalf. Every such application shall specifically mention the details of the records sought to be inspected.

(2)     On receipt of the Application, the Chief Executive Officer or the Officer authorized by the Board under Sub Rule (1) may grant permission of inspection to the bona fide persons.

(3)     Inspection of Board's proceedings or other records shall be made under the supervision of the official of the Board nominated by the Chief Executive Officer or the Officer authorized by the Board under Sub Rule (1) on payment of a fee as may be prescribed by the Board from time to time.

(4)     Any person desiring to have a certified copy of any proceeding or other documents/records may make an application in Form 41(B) to the Chief Executive Officer or any other Officer duly authorized by the Board in its behalf with specific details of the proceedings or the records/documents copies of which is required alongwith the prescribed fee for grant of certified copies.

(5)     The office of the Board shall prepare the copy of the proceeding, documents/records and shall compare it to be the Original and the CEO or any other Officer authorised by the Board shall certify it, sign the same and put a seal in the following manner:

"Under Section 76 of the Indian Evidence Act, 1872, it is certified that it is true copy of the original document or part 1 thereof."

Signature with the date and seal of the Certifying Officer.

(6)     The certified copy, so prepared shall be granted to the Applicant or his Agent within one week of the receipt of the application under sub Rule (5) and the recipient shall put signature for such receipt.

(7)     In no case, a certified copy of any proceeding or of any record of the Board shall be sent by post.

Rule - 47. Conditions and restrictions in respect of transfer of Waqf Properties by the Board under Section 32(2)(J) read with Section 51, Section 99(2) (C) & Section 104 A & B.

(1)     The Board shall not accord sanction to any transfer of immovable property of the Waqf through gift, sale, mortgage, exchange of Waqf property, any lease or any type of settlement for more than three years, including in the cases when sanction for such gift, sale, mortgage, exchange and lease and any type of settlement is to be accorded by the Special Officer under Section 99(2) of the Waqf Act, 1995.

Provided that the Board may accord sanctions in favour of State Government for the construction of Hospital, School, Madarsa, Hostel etc. on the Waqf property in the name of the Waqf Estate.

Provided further that such sanction may not be in conflict with the Waqfnama/mandate of the Waqif and the management of such established Hospital, School, Madarsa, Hostel etc. will be in direct control of the management of the Waqf Estate.

(2)     An application alongwith an affidavit for such sanction shall be submitted by a Mutawalli/Secretary of the Managing Committee to the Board and with all particulars as the Board may consider necessary.

(3)     Where the Board intends to accord sanction for construction of Hospital, School, Madarsa, Hostel etc. over the Waqf property, it shall cause a notice of its intention to do so to be served on the Mutawalli/Secretary of the Managing Committee of the Waqf either by personal service or by sending it to him by registered post with acknowledgement due.

(4)     Every notice referred to in Sub-Rule(3) shall specify a period not being less than 45 days from the date of the notice, within which any objection or suggestion may be made by any person interested in the Waqf property and shall contain the following particulars, namely:-

(a)      Nature of the transaction proposed to be made in respect of the Waqf property;

(b)      Correct description of the Waqf property giving particulars about survey number, extent, boundary and ward number, holding number and house number if the property is situated in a municipal area.

(c)      The revenue assessed on the Waqf property that is, land revenue, or property tax etc.

(d)      Encumbrances, if any, against the Waqf Property.

(e)      The conditions of grant of such permission for construction of Hospital, School, Madarsa, Hostel etc. and the proposal of handing over management of such Waqf property in favour of the management of Waqf Estate.

(5)     All objections or suggestions received in respect of proposed transaction shall be duly considered by the Board before passing order of sanction thereon, if necessary after holding an enquiry. In case of an enquiry a notice shall be given to the parties concerned to explained his case within 07 days.

(6)     The Mutawalli or Secretary of the Managing Committee whoever it may be shall get the draft of the deed prepared in duplicate for proposed sanction of any immovable property of Waqf and shall submit the same before the Chairperson/the Chief Executive Officer of the Board who shall put the same in the meeting of the Board for approval immediately thereafter to be held and the said draft and the proposal shall be approved by at least two third majority of the total number of members of the Board. After being approved by the Board, the Chief Executive Officer shall send one of the said drafts to the Mutawalli/Secretary.

(7)     Upon construction of such Hospital, School, Madarsa, Hostel etc. the management of the constructed institution will be handed over to the management of the Waqf Estate.

(8)     The Board may develop such property through such agency on the pattern of development by the Government as indicated above and the management and control of the Hospital, School, Madarsa, Hostel etc. will be handed over to the management of the Waqf Estate.

Rule - 48. Scheme of Management under Section 32 (2) (D).

Within six months from the date of commencement of these Waqf Rules, the Auqaf save and except the Auqaf having their deed of Waqf (Waqifnama) by the Waqif shall frame the Scheme of Management as required under clause (d) of sub-section (2) of section 32 of the Act in Form 42 duly approved by the Board, failing which the District Minority Welfare Officer-cum-Waqf Nodal Officer or any other Officer authorized by the Board shall take over management and supervision of the Waqf institution and the District Minority Welfare Officer-cum-Waqf Nodal Officer shall take steps to frame the Scheme of Management within a period of 3 months from such take over. While approving the Scheme of Management, the Board shall ensure that the Scheme of Management is in consonance with the nature of Waqf.

Rule - 49. Selection/appointment of Mutawalli/Managing Committee under Section 32 (2)(g).

The Board shall appoint Mutawalli and constitute Management Committee of the Waqf Estate in complete adherence to the wishes of the Waqif and on framing of the Scheme of Management of Auqaf (Form 42) as per the framed provision in the Scheme of Management without any deviation in exercise of powers conferred under clause (g) of sub-section (2) of section 32 of the Act, as provided under Chapter V of these Rules.

Rule - 50. Manner of inquiry to be held by the Chief Executive Officer under Subsection (1) of Section 39.

(1)     The Chief Executive Officer shall in every case where an inquiry is ordered under section 39, issue at the first instance a notice in Form 43 to all persons interested in relation to the Waqf, calling for their objections;

(2)     The Chief Executive Officer shall then proceed to hold a summary enquiry after considering the oral and documentary evidence produced by the parties and shall pass a speaking order.

(3)     The Chief Executive Officer, beneficiary or any person interested, thereafter, may file an application before the Tribunal directing for recovery of possession of such building or other place.

Rule - 51. The manner of inquiry under Section 40.

(1)     The Chief Executive Officer may himself collect information regarding any properties for the purpose of Sub Section (1) of Section 40 or may receive any information from any person in form 44.

(2)     The inquiry under sub - section (3) of section 40 by the Chief Executive Officer shall be as laid down in sub-rule (2) of rule 50;

(3)     The authorized Officer after obtaining approval from the Board shall;

(i)       Call upon the Trust or Society as the case may be to register any property as Waqf property in Form 45 or; issue a Show Cause notice in Form 46; and

(ii)      The Chief Executive Officer on behalf of the Board shall take action to make necessary entries in Register of Auqafs, maintained under Section 37 of the Act, being an entry as per Section 40 of the Act.

Rule - 52. Auqaf registered before commencement of this Act.

The Board in terms of Section 43 shall take action as provided in Rule-8 of this Rule to make necessary entries in the Government Revenue Records by writing to the competent Government Official in the form prescribed for the same and the Government Official will be under statutory duty to comply the same and make necessary entry in the Revenue Records specially Register-2.

CHAPTER V QUALIFICATION, APPOINTMENT, DUTIES & REMOVAL OF MUTAWALLI

Rule - 53. Qualification of Mutawalli.

Notwithstanding anything contained in the Waqfnama and the wishes of the Waqif, a Mutawalli or a Member of the Managing Committee of a Waqf institution shall generally possess the following qualifications; namely:-

(1)     He shall be a person professing Islam acknowledging that there is but one God and Muhammed (PBUH) is his prophet;

(2)     He shall be a major;

Provided that, in the case of Waqf Alal Aulad, if the Mutawalli is a minor, the guardian shall manage the Waqf on behalf of Mutawalli till the Mutawalli attains majority.

(3)     He shall be of sound mind and capable of performing the functions and discharge the duties of Mutawalli;

(4)     He should not have been convicted of any offence of criminal breach of trust or any other offence involving moral turpitude, and such conviction has not been reversed and he has not been granted full pardon with respect to such offence;

(5)     He shall have working knowledge of Urdu and Hindi/English and administrative knowledge of management of Auqaf;

(6)     He shall not have any direct or indirect interest in any subsisting lease/tenancy or in any contract made with, or any work being done for, or is in arrears of any due by him to the Waqf institution for which he is to be appointed as Mutawalli; and

(7)     He shall not have violated or breached any provision of this Act, Rules and conditions during his earlier appointment:

Provided that, the qualifications referred to in the third proviso of sub-clause (i) of section 3 of the Act shall be as per the Deed of Waqf and provided that it is not repugnant to the tenets of Islam:

Provided further that, the aforesaid qualifications shall not be applicable with respect to an Administrator or the Muttawalli as prescribed in the Waqfnama of Waqf-Alal-Aulad property.

Rule - 54. Appointment of Mutawalli or Managing Committees.

(1)     The Board shall either appoint or approve the election/selection of Mutawalli or constitute Managing Committees under clause (g) of subsection (2) of Section 32 on receipt of proposals forwarded in accordance with the respective mandate of the Waqif/Tauliat of the Waqfnama or the newly framed Scheme of Management of the Waqf Estate.

(2)     Such Committees shall subsequently initiate process of constitution of succeeding Committee as per the approved Scheme of Management three months prior to the expiry of the term of the Committee and shall complete the entire process of constitution of succeeding committee within two months prior to expiry of the term of the Committee.

(3)     The District Auqaf Committee and the District Minority Welfare Officer-cum-Waqf Nodal Officer of the respective district shall supervise the process of appointment/constitution of succeeding Committee, preferably in a democratic manner, with regard to the constitution of Committees of the Waqf Estates of the respective District.

(4)     If, in the event of the existing Committee fails to initiate and complete the process for constitution of succeeding Committee within the time prescribed under sub-rule (2) of rule 52, the District Minority Welfare Officer-cum-Waqf Nodal Officer shall initiate such process within two months prior to the expiry of the term of the existing Committee and complete the process prior to the expiry of the term of the existing Committee mandatorily.

(5)     If for any reasons succeeding Committee is not constituted or appointed, the management and supervision of such Waqf institution shall automatically vest with the concerned District Minority Welfare Officer-cum-Waqf Nodal Officer or any other Officer authorized/duly appointed by the Board shall carry out duties and functions as delegated by the Bihar State Shia/Sunni Waqf Board(s). The District Auqaf Committee with the assistance of District Minority Welfare Officer-cum-Waqf Nodal Officer shall take action to get the succeeding Committee constituted within a period of three months.

(6)     After the formation of new Committee or after expiration of the term the old Committee shall cease to have any power or authority for management of such Waqf institution including operation of Bank Accounts.

Rule - 55. Appointment of Mutawalli.

(1)     While approving the appointment/appointing the Mutawalli the Board shall have due regard to the mandate of Deeds of Waqf (Waqfnama), providing for appointment of Mutawalli, custom, usage pertaining to appointment/succession of Mutawalli.

(2)     If any person appointed as Mutawalli dies, or refuses to act in terms of the Waqfnama or is removed under this Act, or if the office of Mutawalli otherwise becomes vacant and the line of succession fails, the Mutawalli may be appointed out of those persons as per rule 53.

(3)     While approving the appointment on succession, the Board shall have regard to the following; namely:-

(a)      The Board shall not disregard the directions/mandate of the Waqif;

(b)      The Board should not appoint a stranger so long as there is any member of the waqif's family in existence qualified to hold the office; and

(c)      Where there is a contest between lineal descendants of the Waqif and one who is not a lineal descendant the Board shall appoint the lineal descendant, if he is not otherwise disqualified to be appointed as Mutawalli and in such cases where the line of succession fails, the Board may in exercise of its discretion, appoint other Claimant as Mutawalli giving due consideration to the mandate and qualification given in the Waqfnama.

Rule - 56. Appointment of Mutawalli under Section 63.

Notice regarding filling up of vacancy of Mutawalli:-

(1)     Whenever there is a vacancy in the office of the Mutawalli of a Waqf and there is no one to be appointed under the terms of the Deed of Waqf, the Chief Executive Officer or an Authorized Officer on his behalf shall, prior to final order, issue a Public Notice in Form 47 in respect of appointment of Mutawalli.

(2)     Whenever there is a vacancy in the office of the Mutawalli of Waqf and the right of any person to act as Mutawalli is disputed, such Notice shall be in Form 48.

(3)     After make an enquiry upon giving opportunity to the interested parties and record the depositions of the local witnesses and on such other facts, a Report in this regard be submitted to the Board giving detailed fact finding.

(4)     On consideration of the Report and other materials and the objection or public petition a reasoned order be passed in this regard by the Board.

Rule - 57. Duties of the Mutawalli/Managing Committee.

(1)     The Mutawalli or Managing Committee shall,-

(2)     Take all steps to protect, preserve, maintain and manage the Waqf institution and its properties;

(3)     Take steps to update records of Waqf institution and its properties as provided in these rules;

(4)     Initiate proceedings in accordance with the provisions of the Act to recover the Waqf/Waqf properties under encroachment;

(5)     Identify the Waqf property which has potential for development as an educational institution, hospital, shopping centre, market, housing or residential flats and the like including agriculture/horticulture and forward the proposal for development of the same, preferably through its own organizational apparatus, to the Board for its prior approval. The Board shall accord the approval in accordance with Act;

(6)     Open and operate Bank Account in any nationalized bank for the purpose of management of the affairs of the concerned Waqf institution. In the absence of the nationalized banks, the Mutawalli shall obtain prior approval of the Chief Executive Officer to open account in other banks;

(7)     The Bank interest accrued in these bank accounts shall be utilized for the needs of the destitute without expecting any reward and the transaction shall be accounted for;

(8)     Shall furnish quarterly progress report together with income and expenditure details in Form 49; and

(9)     Carry out all the duties as provided under the Act.

Rule - 58. Procedure regarding removal of Mutawalli U/ss. 64 and 71 of the Act.

(1)     The Board may, either on an application received U/s 70 of the Act or on its own motion hold an enquiry/Inspection or authorize any officer of the Board or any person in its behalf to hold an inquiry into any matter relating to a Waqf and shall take such action as it thinks fit.

Provided that the application under Section 70 shall be in Form 69 accompanied by an Affidavit duly sworn by the Applicant alongwith payment of fee of Rs. 500/- (Rupees Five Hundred) only to the Board.

(2)     The Officer holding the enquiry shall be called as Enquiry Officer.

(3)     The Officer or person authorized by the Board U/s. 71 of the Act shall issue notice in Form 50 or as per requirement as incurred into and shall conduct enquiry in the following manner:

(a)      He shall call upon the person/persons concerned, parties interested in the enquiry or witnesses on a fixed date and place to appear before him in person or through an advocate and submit his reply in writing and produce documents if any , in his support and contention.

(b)      The summon for appearance in form 71 shall be served to person/persons concerned parties interested.

(i)       Through messenger or by post or by affixing the notice on some conspicuous part of his last known residence, by tendering to an adult member or servant of his family, by affixing the notice on any conspicuous part of the property encroached by him or subject to be inspected.

(ii)      By registered post with acknowledgement to the person/persons to whom it is intended.

Provided that when the person on whom the notice to be served is a minor, service upon his guardian or upon any adult member of servant of his family shall be deemed to be duly served on the minor.

(iii)     A copy of the notice shall also be exhibited on the notice board in the Board's Office or on the notice board of the Office of the authorized officer.

(4)     The Officer holding the enquiry shall give opportunity to all interested persons to be heard in the enquiry and shall give an opportunity to file written statements and to adduce such oral or documentary evidence as they may think fit.

(5)     The Enquiry Officer shall record the oral evidence of witnesses in its own handwriting in the prescribed Form 51 or in absence of the form in the language of the witness.

Provided where enquiry Officer is for any reason unable to record the evidence himself, he may direct his subordinate Officer or staff to record it in his presence and under his personal supervision.

(6)     For the purposes of any enquiry under the Waqf Act, the Board, the Chief Executive Officer of the Board or any Officer or a person duly authorised in this behalf, shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 or enforcing the attendance of witness and production of documents.

(7)     The Enquiry Officer shall, as far as practicable, follow the provisions of the code of Civil Procedure, 1908 and the rules made thereunder in the matter of appearance of pleaders, return of documents and other matters while conducting the enquiry.

(8)     The Enquiry Officer may hold a Local Enquiry on the spot and inspect the Waqf Property, receive written statements of interested person/persons obtain documents and may record oral statements or the oath of interested person/persons if he thinks fit and shall obtain signature of such persons.

(9)     During the enquiry or inspection if it appears that the concerned Muttawalli or any Officer or other employee is or was working under the Muttawalli has/had misappropriate or misapplied or has fraudulently retained any money or other Waqf Property or had incurred irregular, unauthorised or improper expenditure from the funds of the Waqf or of the Muttawalli or any person has caused damages of Waqf or has transferred the Waqf property in a mala fide way, the Enquiry Officer/Inspecting Officer shall determine and certify the amount of damage caused to the Waqf property.

Provided whenever any such Enquiry/Inspection is made, the concerned Mutawalli and all Officers and other employees working under him and every person connected with the administration of the Waqf shall extend to the Officer all help and assistance in conducting such enquiry/inspection and all facilities as may be necessary and required to carry out enquiry/Inspection shall be extended to him and shall also produce for inspection any movable property or document and any informant relating to the Waqf as may be required or called for, failing which Muttawalli/Secretary, Managing committee, other employee or any officer of the Waqf Estate shall be punishable under sub Section (1) of Section 61 of the Waqf Act, 1995.

(10)   The Enquiry/Inspection Officer may requisition for police force from the Local Police Station within whose jurisdiction by the place of Enquiry/Inspection is situate by a written request to the Officer In-charge and on such requisition, the Officer In-charge of the police station shall forthwith provide the police force for the smooth conduct of the enquiry or inspection.

(11)   The Enquiry Officer shall submit his report to the Board or to the Chief Executive Officer, as the case may be, within fifteen days from the date on which the enquiry is concluded. On receipt of the report from the Enquiry/Inspecting Officer the Chief Executive Officer of the Board, as the case may be, shall consider the same and after such further enquiry, as may be deemed necessary, shall pass an order which shall be treated as final.

Rule - 59. Appointment of Administrator.

If it seems that no suitable person is available for appointment as a Mutawalli of the Waqf, a reasoned order based on the facts may be passed, as prescribed U/s. 65 assuming direct management of the Waqf Estate and the Board shall appoint the District Minority Welfare Officer-cum- Waqf Nodal Officer or any other competent person as administrator for the management of the day-to-day affairs of the Waqf Estate for a period of one year. The Administrator, so appointed, may be assisted by District Auqaf Committee on voluntarily basis.

Provided that the Bank accounts of such institutions shall be jointly operated by the Administrator and the District Minority Welfare Officer-cum-Waqf Nodal Officer of the District/any other official duly authorized by the Board.

Provided further, that the expenditure by the appointed Administrator out of the income of the property of the Waqf Estate shall be sanctioned/approved by the District Minority Welfare Officer-cum-Waqf Nodal Officer of the District/any other official duly authorized by the Board.

Rule - 60. Annual Report of Auqaf under direct management of the Board.

The report in Form 52 shall be sent by the Board to the State Government under sub-section (3) of section 65 on or before 30th June of the year which shall be examined within three months and the Government may give direction or instruction to the Board for its compliance and proper financial management of the Waqf Estate.

Rule - 60A. Manner to exercise power by the State Government U/s. 66.

A reasoned Order for applying of Section 66 will first be passed by the Government as per the provision of Waqfnama or the Scheme of Management of any Waqf or any finding of the Court with regard to manner of appointment or removal of Mutawalli, as mentioned in Section 66 in consultation with the Bihar State Shia/Sunni Waqf Board(s) and thereafter the Government may proceed to make enquiry as per Section 64 of the Waqf Act as prescribed under the Rule 58 on the application filed under Section 70 after observing the conditions of Rule 71 and pass final Order.

Provided, that the power vested in the Bihar State Waqf Board(s) enshrined in Section 32 (2)(g) will generally be exercised except in the exigency and special circumstances only.

Provided further, that the wishes of the Waqif will be sacrosanct and there may not be any deviation from the mandate as enshrined in the Waqfnama/practice in use.

Rule - 61. Term of management and supersession of Management Committee and removal of its Members.

(1)     Any Committee functioning under sub Section (1) of Section 67 shall have a maximum term of three years unless it is superseded by the Board working in contravention of Waqf Deed or of the approved Scheme of management of the Waqf.

(2)     The Board shall issue Notice in Form 53 to a Committee against whom action is contemplated under sub-section (2) of section 67.

(3)     The Board shall issue Notice in Form 54 to Member of any Managing Committee proposed to be removed under sub-section (6) of section 67 of the Act;

(4)     The supersession Order under sub Section 2 of Section 67 shall be a reasoned Order after opportunity of hearing given to the Managing Committee proposed to be removed.

(5)     The Order passed by the Board under the provisions to sub-section (2) of Section 67 shall be published on the Notice Board of the concerned Waqf, District Auqaf Committee office, and office of the Bihar State Shia/Sunni Waqf Board(s) and shall also be served on concerned Managing Committee.

Rule - 62. Manner of consultation under Sub-section (1) of Section 69.

(1)     The Board shall issue a notice in Form 55 to the Mutawalli concerned and to every person interested in the Waqf and the Board shall also affix the said notice at a conspicuous place in the premises of the Waqf institution regarding the Scheme of Management/Administration, if not already framed under Rule 48 in the format of Form 42, to be framed under sub-Section (1) of section 69.

(2)     The Board shall examine the objections or suggestions to the Scheme of Management/Administration received in response to the notice under sub-Rule (1), may give an opportunity of being heard and accord approval to the Scheme of Management/Administration in Form 42 with such modifications as it may deem fit. 

CHAPTER VI LEASING, DEVELOPMENT AND RETRIEVAL OF WAQF PROPERTIES

Rule - 63. Leasing of Waqf Properties.

(1)     For the purpose of granting lease under Section 51 and Section 56 of the Act, the Mutawalli or the Board shall follow the Waqf Properties Lease Rules, 2014, as amended from time to time, failure of which shall render such leases null and void.

(2)     The Mutawalli of a Waqf Estate shall bring the existing Lease in respect of the Waqf properties in conformity with the Waqf Properties Lease Rules, 2014 within six months from the date of commencement of these Rules.

(3)     Application for grant of lease shall be filed in Form 56.

(4)     Lease for a period of less than one year shall be executed in Form No. 57 and for a period of more than one year shall be executed in Form 58.

Rule - 64. Development of Waqf Properties under Section 51 (1-A).

(1)     The Board for the purpose of development of the Waqf properties as provided in the proviso to sub-section (1-A) of section 51 may adopt Scheme/operational arrangement with interested party; however the duration of such operational arrangement of development shall not exceed a period of 30 years.

(2)     No Right, Title, Interest in the Waqf property shall be created through the Lease Deed in such schemes of development. Any act of gift, sale, mortgage, exchange of the Waqf property through the lease deed will be void ab-initio.

(3)     While developing the property the mandate of the Waqif and purpose of Waqf shall be borne in mind by the Muttawalli as well as the Board.

(4)     The Board shall maintain absolute transparency while developing the Waqf property, which includes publishing the details of the property to be developed, details of scheme for development, and invite bids in leading national and regional newspapers inviting proposals from the interested parties and best possible offer of development on its purpose and financial benefit to the Waqf may be the factor of decision.

(5)     The property so developed shall not be used for purposes other than those already permitted by the Lease Agreement.

Rule - 65. Procedure under Section 52 for recovery of Waqf Property.

(1)     The Chief Executive Officer of the Board shall address in Form 59 to the Sub-Registrar within whose jurisdiction any immovable Waqf Property is transferred in contravention of section 51.

(2)     On the requisition of the Chief Executive Officer of the Board, the concerned Sub-Registrar shall issue certified copies of the documents, as per the rules.

(3)     The Chief Executive Officer or any other Officer of the Board authorized by him shall verify the details of the property with reference to the records obtained under sub-rule (2) and proceed further to issue and serve notices to the transferor and the transferee in Form 60 & Form 60A.

(4)     The Chief Executive Officer shall prepare a Report in Form 61 and place it before the Board to proceed under sub-section (1) of section 51.

(5)     The Board shall if necessary, forward a requisition in Form 62 to the jurisdictional District Magistrate to pass necessary orders in exercise of the power under the Waqf Act or any other law for recovery of the Property.

(6)     The Board shall if necessary forward a requisition in Form 63 to the jurisdictional District Magistrate to obtain and deliver the possession of the property so transferred in contravention of section 51 and 56. The District official to whom the requisition is sent will be under legal obligation for implementation of the Order as envisaged in Section 28 of the Act and will be part of the official duty.

(7)     The Waqf Board, beneficiary or any person interested in the Waqf may also file an application before the Waqf Tribunal, constituted under the Act, for a declaration of the Sale Deed/Transfer Deed to be void ab-initio and of no legal consequence under Section 51(1)(1-A).

Rule - 66. Procedure for purchase of immovable property by a Waqf under Section 53.

(1)     Any Waqf intending to purchase an immovable property shall make an application in Form 64 to the Board.

(2)     The Chief Executive Officer shall issue a Notification in Form No. 65 under proviso to section 53 in respect of the proposed transaction;

(3)     The Chief Executive Officer shall place the proposal before the Board along with his report.

(4)     The Board shall examine the objections/suggestions, if any, received in response to such Notification and issue necessary orders within fifteen days.

Rule - 67. Procedure for eviction of Encroacher.

(1)     Notice to be issued to the encroacher under sub-section (1) of section 54 shall be in Form 66, and shall be served through messenger and by registered post or by a recognized courier service or by affixing a copy thereof in some conspicuous part of the house premises if any, in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Authority thinks fit at his last known residence, or by tendering to an adult member or servant of his family or by affixing the notice on any conspicuous part of the property encroached by him; or in such manner as the authority deems fit.

(2)     The Chief Executive Officer after compliance of the procedure of service of notice under sub-rule (1) above, conduct a summary inquiry and after hearing the parties may pass an order assigning his findings against the encroacher and thereupon file an application before the Waqf Tribunal for grant of "Order of Eviction".

(3)     After notice/opportunity of being heard against the proposed encroacher, the Waqf Tribunal, upon finding correctness in the proposal of the Chief Executive Officer may grant an Order of Eviction in favour of the Waqf Board.

(4)     For the purpose of sub-section (5) of section 54 of the Act, the Chief Executive Officer or any authorized Officer of the Board may refer the "Eviction Order" of the Waqf Tribunal to the Executive Magistrate of the local area in Form- 62 for appropriate action and after taking police assistance, as may be necessary, evict the encroacher as per Section 55 of the Waqf Act.

(5)     The District Magistrate, Additional District Magistrate or Sub Divisional Magistrate or the Executive Magistrate will be under liability to assist the Chief Executive Officer or any authorized Officer of the Board in execution of the Eviction Order or grant of police assistance. The District official to whom the requisition is sent will be under legal obligation for implementation of the Order as envisaged in Section 28 of the Act and will be part of the official duty.

Rule - 68. Procedure for removal of encroachment of Waqf property by Executive Magistrate.

(1)     The Chief Executive Officer shall forward an application in Form 67 to the jurisdictional Executive Magistrate under section 55 for removing the encroachment in respect of which an order under sub-section (4) of section 54 has been passed.

(2)     The Executive Magistrate shall pass an order in Form 68 to remove the encroacher.

(3)     After the passing of an Order by the Executive Magistrate, a prompt action of eviction of the encroacher is to be enforced and information of eviction and handing over possession of the encroached property to the Muttawalli, Secretary of the Committee or the person interested be informed to the Chief Executive Officer of the Board.

Rule - 69. Affixture of orders made under Section 67 or Section 69.

Every order made under Sub-section (2) of Section 67 or sub-section (2) of section 69 shall be passed after affording an opportunity of hearing to the Waqf Committee showing the ground and allegations and the Order shall be affixed at the office of the Bihar State Shia/Sunni Waqf Board(s), the office of the District Auqaf Committee, any conspicuous place of Waqf institution and a copy thereof shall also be sent to the Mutawalli of the Waqf concerned.

Rule - 70. Application for Inquiry under Section 70 of the Act.

An application under section 70 shall be filed in Form 69 accompanied by an affidavit along with a fee of Rs. 500/- (Rupees Five Hundred only) remitted to the Bihar State Shia/Sunni Waqf Board by Cash/Demand Draft/Postal Order and shall furnish as many sets of application along with the annexures and duly stamped envelopes as required. Non compliance will render the application incompetent for any consideration.

Rule - 71. Procedure for Inquiry under Section 71 of the Act.

(1)     The Board or any person authorized by the Board to hold an inquiry under section 71, shall preliminary send a copy of the allegations made against the person in the management of Waqf by issuing a Notice in Form No. 70 and obtain its explanation on each of the allegations.

(2)     If the Board or the person authorized remain unsatisfied with the explanation given by the person in the management of the Waqf may take up full-fledged inquiry as per Rule- 58 upon issuing Form- 50 to the Muttawalli/person in the management of the Waqf and complete the inquiry.

(3)     The complainant shall furnish required sets of copies of the complaint and the documents relied upon together with duly stamped postal covers.

(4)     The said inquiry shall be held in the manner specified under sub-rule (2) of rule 58.

(5)     The Inquiry Officer whenever required shall issue summons in Form 71 for enforcing the attendance of witnesses and production of documents.

(6)     The report of inquiry shall be placed before the Board for taking further action. 

CHAPTER VII AUDIT, FINANCES OF THE WAQF INSTITUTIONS AND THE BOARD

Rule - 72. Budget of Waqf institution under the management of Mutawalli/Managing Committee.

Every Mutawalli/Managing Committee of a Waqf institution shall prepare the Budget of the institution every year in Form 72 and submit to the Board for approval within 3 months before the end of financial year.

Rule - 73. Budget of Waqf Institutions under Direct Management of the Board.

(1)     All the Waqf institutions under direct management shall maintain the books and registers for maintenance of its accounts as prescribed in rule 74(1).

(2)     The Budget for all the Auqaf under direct management of the Board shall be prepared for the next ensuing financial year by the December of the current financial year.

(3)     The Chief Executive Officer shall prepare the list of all the Auqaf under the direct management of the Board for which Budget for the ensuing financial year is to be prepared under sub-rule (2) in the month of October of the current financial year in Form 73.

(4)     Thereupon the Chief Executive Officer shall direct each of the Administrators of the Auqaf under direct management in Form No. 74 to furnish the Budget in respect of ensuing financial year by the end of November.

(5)     The Chief Executive Officer shall get the Budget prepared under Subsection (1) of section 45 in Form 72 and 75 with all the details of estimated receipts and expenditure for the next financial year.

(6)     The Budget so prepared shall have a statement furnishing details of the increase, if any, in the income of the Waqf during the current year and also the steps taken for its better management and results obtained in Form 75.

Rule - 74. Statement of Accounts by Auqaf.

(1)     Every Mutawalli or Managing Committee of a Waqf shall maintain the following Books and Registers for maintenance of its accounts:

(i)       Cash Book in Form 76;

(ii)      Receipt Book in Form 77;

(iii)     Register of Demand, Collection & Balance of Waqf Contribution in Form 78;

(iv)    Register of Golak collection in Form 79;

(v)      Register of Rents in Form 80;

(vi)    Register of Book of Inspection in Form 81;

(vii)   Register of Meeting in Form 82;

(viii)  Minutes Book in Form 83;

(ix)    Register of Loans in Form 84;

(x)      Register of Grants in Form 85;

(xi)    Register of Security Deposits in Form 86 & Register of accrued interest in Form 86(A);

(xii)   Register of Investments in Form 87;

(xiii)  Register of Litigation in Form 88;

(xiv)  Register of Stock and utilization in Form 89; and

(xv)   Any other Register as prescribed from time to time by the Board.

(2)     The statement of accounts shall be furnished by every Mutawalli or Managing Committee of a Waqf in Form 90.

(3)     If a Mutawalli or Managing Committee fails to submit statement of accounts before 1st of July of the year, a Notice in Form 91 shall be issued within seven days from that date.

(4)     If the Mutawalli or Managing Committee fails to submit the statement of accounts, action under section 61 shall be initiated.

Rule - 75. Report of Audit.

(1)     The Mutawalli/Managing Committee of every Waqf institution whose annual income is more than Rupees One lakh shall get the accounts scrutinized/audited by the Chartered Accountant and furnish report to the Board on or before 30th June every year.

(2)     Internal audit of the Waqf institutions by the Auditor appointed by the Board shall be taken up category wise and periodically in the following; namely:-

(a)      Waqf institutions with net annual income of above Rupees One Lakh annually;

(b)      Waqf institutions with net annual income above Rupees Fifty Thousand and below Rs. One Lakh once in three years; and

(c)      Such internal audit report shall be in Form 92;

(3)     The Chief Executive Officer shall finalize and publish the annual program of audit in Form 93.

(4)     The Board may prepare panel of Auditors and send the same to the State Government.

(5)     A notice shall be issued to every Waqf institution fifteen days in advance before the audit is taken up in Form 94.

(6)     If the Mutawalli/Managing Committee fails to produce the records to the auditor, action under section 61 shall be initiated against the Mutawalli.

Rule - 76. Notice under Section 48 (1) of the Act.

A Notice in Form 95 shall be issued for obtaining an explanation from the Mutawalli/Managing Committee/Administrator under sub- section (1) of section 48.

Rule - 77. Recovery of Sums due.

(1)     The Board shall issue a Demand Notice in Form 96 for the collection of any sum certified to be due from any person by an auditor in his report under section 47;

(2)     The Board shall issue a Notice in Form 97 to give an opportunity of being heard under sub-section (2) of Section 49 before issuing a Certificate of Recovery of the said amount as arrears of land Revenue;

(3)     The Board shall issue a Certificate of Recovery in Form 98 addressed to the District Magistrate of the district concerned in which the defaulter is residing to recover the amount due under Section 34 and 49 to be recovered under law.

(4)     The District Magistrate shall on receipt of such Certificate issue a Certificate under the Bihar & Odisa Public Demands Recovery Act, 1914 collected as arrears of land Revenue.

Rule - 78. Demand and Recovery of Waqf Contribution.

(1)     The Mutawalli/Managing Committee shall furnish to the Chief Executive Officer of the Board or authorized persons in this behalf, the statement indicating the net annual income of the Waqf and the contribution payable in Form 99 before 1st of June every year.

(2)     The District Minority Welfare Officer-cum-Waqf Nodal Officer/Waqf Inspector concerned shall verify the said assessment and fix up the actual demand for payment of Waqf contribution at the rate of seven percent by 15th June and maintain a Register of Demand, Collection and Balance, in Form 100.

(3)     The Bihar State Shia/Sunni Waqf Board(s) shall maintain a Demand Register based on the assessment made and approved by the District Minority Welfare Officer-cum-Waqf Nodal Officer and also keep a copy of demand prepared by each of the District Minority Welfare Officer-cum-Waqf Nodal Officer with reference to each Waqf institution, in Form 101.

(4)     A Register of Demand for the District shall be maintained by the District Minority Welfare Officer-cum-Waqf Nodal Officer/Waqf Inspector concerned in Form 102.

(5)     Every Mutawalli/Managing Committee who defaults to pay the Waqf contribution shall be issued with a Notice regarding the payment of Waqf contribution in Form 103.

(6)     If the Mutawalli/Managing Committee fails to pay the amount demanded under Sub-Rule (5), action shall be taken to recover the same as arrears of Land Revenue under sub-rule (3), of rule 77.

(7)     In the event of the Mutawalli/Managing Committee failing to submit the details under sub rule (1), the Chief Executive Officer or any other Officer authorized in this behalf shall assess the net annual income in the manner prescribed under sub-rule (2), and determine the Waqf contribution payable by the said Waqf.

(8)     The Chief Executive Officer or any Authorized Officer, if needed, shall revise the annual income after issuing a Notice to the Mutawalli/Managing Committee in Form 104.

(9)     The Chief Executive Officer or Authorized Officer shall issue Notice in Form 105 for the purpose of sub-section (8) of section 72 to the Mutawalli.

Rule - 79. Chief Executive Officer to lodge complaint.

The Chief Executive Officer shall lodge a complaint before the jurisdictional Police of the Bank concerned in respect of an offence under sub section (4) of section 73.

Rule - 80. Register of Waqf Fund and its Expenditure.

The Board shall maintain the following registers for realization and expenditure on monies received to the Waqf fund,-

(a)      Register of Donations shall be in Form 106;

(b)      Register of Income from Court fee shall be in Form 107;

(c)      Register of Waqf Contribution under Section 72 shall be in Form 108;

(d)      Register of Investments shall be in Form 109;

(e)      Register of Expenditure shall be in Form 110;

(f)       Cash Book for Waqf Fund shall be in Form 111; and

(g)      Register of interest accrued on all accounts maintained by the Board shall be in Form 111 A.

Provided that the interest accrued in these bank accounts shall be utilized for the needs of the destitute transparently without expecting any reward and the transaction shall be accounted for.

Rule - 81. Form of Budget of the Board.

Annual Budget of the Board for the next financial year to be prepared under sub-section (1) of section 78 shall be in Form 112 and shall be prepared by the end of January of the current financial year.

The Budget shall contain the following statements:

I.         Statement of Receipts in Form No. 112A,-

(i)       Statement of Demand of Waqf Contribution shall be in Form 112A(i);

(ii)      Statement of Maintenance Grants shall be in Form 112A(ii);

(iii)     Statement of Rents received shall be in Form 112A(iii);

(iv)    Statement of other grants shall be in Form 112A(iv);

(v)      Statement of interest on Deposits in Banks shall be in Form 112A(v);

(vi)    Statement of Honorarium to Pesh Imam and Moazzin shall be in Form 112A(vi); and

(vii)   Statement of grant received by the Board for the purpose of payment of maintenance to the Muslim women under clause (g) of sub-section (4) of section 77 of the Act shall be in Form 112A(vii)

II.       Statement of Expenditure in Form No. 112B,-

(i)       Statement of salaries and other allowances to the Officers and staff of the Board shall be in Form 112B(i);

(ii)      Statement of honorarium, sitting fee and other allowance to the Chairperson and Members of the Board and Chairmen and Members of the District Auqaf Committee shall be in Form 112B(ii);

(iii)     Statement of expenditure incurred by the District Auqaf Committees shall be in Form 112B(iii);

(iv)    Statement of expenditure on contingencies of the Board shall be in Form 112B(iv);

(v)      Statement of expenditure incurred for preservation and protection of Waqf Properties shall be in Form 112B(v);

(vi)    Statement of Honorarium to Pesh Imam and Mouzans shall be in Form 112B(vi); and

(vii)   Statement towards payment of maintenance to the Muslim women under clause (g) of sub-section (4) of section 77 of the Act shall be in Form 112B(vii).

CHAPTER VIII CONSTITUTION OF TRIBUNALS, ETC

Rule - 82.

The State Government shall provide grants and all other facilities for the smooth functioning of the Tribunals. The Chairman will have authority to utilize the funds as per the requirement of the Tribunal(s).

Rule - 83. Appointment of Members and functioning of Tribunals.

(1)     The Government of Bihar shall in consultation with the Patna High Court appoint or depute one person as Chairman to the Tribunal having qualification prescribed under clause (a) of sub-section (4) of Section 83 holding rank of District, Sessions or Additional Sessions Judge having knowledge of Urdu language.

(2)     The State Government shall appoint or depute one person as Member to the Tribunal having qualification prescribed under clause (b) sub-section (4) of section 83 not below the rank of Additional District Magistrate who is having knowledge of Urdu language for a term of maximum period of three years.

(3)     The State Government shall appoint or depute one person as Member to the Tribunal having qualification prescribed under clause (c) of subsection (4) of section 83 having Degree/Certificate from any of the recognized Islamic Centre/Universities who shall not be below the rank of Mufti/Qazi/Assistant Professor or a practicing Advocate having at least 20 years of practice having certificate of specialization in Islamic jurisprudence for a term of maximum period of three years.

(4)     For removal of any doubts, at any given time, the vacancy of the Members of the Tribunal is not filled or any Member(s) other than the Chairman remains absent, the Chairman of the Tribunal shall be competent to function and pass orders.

(5)     The members under sub Section 4(b) & (c) of Section 83, if do not agree to the judicial decision of the Chairman, they may write their separate opinion which will form part of the order/judgment.

(6)     The salary, allowances and service conditions of the Executive Member shall be as admissible in their respective departments. They are also entitled to deputation allowance as per the Bihar Civil Service Rules.

(7)     The salary, allowances and service conditions of the member having knowledge of Islamic Theology shall be as determined by the Government from time to time, which will be generally at par with the Executive Member's scale.

(8)     The State Government shall appoint such number of staff which is commensurate with the requirement of the Tribunal.

Rule - 84. Language of Tribunal.

The working language of the Tribunal shall be English, Urdu and Hindi. However, the final judgment shall be in English.

Rule - 85. Form of Applications/Suits/Appeals.

(1)     All applications to be filed before the Tribunal under the provisions of the Act including applications for determination of any dispute, question or other matter under sub-section (1) of section 83 shall be filed in Form 113.

(2)     Every plaint or memorandum of appeal to be filed before the Tribunal shall be in the Form as has been prescribed in the Code of Civil Procedure and Civil Rules of Practice.

(3)     Every such Application, Suit or Appeal shall be presented in person, or by his duly authorized agent or advocate, before the registry of the Tribunal.

Rule - 86. Form of Application/Plaint/Appeal for Interim Orders.

Prayer for interim Orders in every Application (Eviction/Miscellaneous/Interlocutory Application/Execution/Intervention), Suit, Appeal or other proceeding before the Waqf Tribunal shall be supported by an affidavit.

Rule - 87. Court fee.

(1)     Every Application (Eviction/Miscellaneous/Interlocutory/Execution/Intervention), Plaint or Memorandum of Appeal or other Application, which is connected with public property and public charity, shall be accompanied by a Court fee of Rs. 250/-.

(2)     Unless the fee as specified is deposited, no notice, summons or other process of the Waqf Tribunal shall be issued, and no such certified copies of orders, documents or other records shall be granted.

Rule - 88. Scrutiny of Application, Plaint, and Memorandum of Appeals.

(1)     In every proceeding before the Tribunal copies of Application (Eviction/Miscellaneous/Interlocutory Application/Execution/Intervention), Plaint or Memorandum of Appeal shall be filed in sufficient numbers, for service to the Waqf Board(s) and the opponents.

(2)     The Office of the Tribunal shall after scrutiny of the Eviction Application, Miscellaneous Application, Plaint or Memorandum of Appeal prepare a check list noting the infirmities for rectification.

(3)     If on scrutiny the Application, Plaint or Appeal is found to be in order, it shall be duly registered in the register of Application or Suits or Appeals, as the case may be, in the Form prescribed in Civil Court Rules and assign a case number.

(4)     If the Application, Suit or Appeal is found to be defective, the Registry shall allow the party to rectify the defects within a time to be specified by him. If the party fails to rectify the defects within such time allowed, the Registry shall place the matter before the Waqf Tribunal for appropriate orders.

(5)     The Sheristadar/Registrar/Oath Commissioner is competent to administer oath of affirmation.

Rule - 89. Documents.

(1)     All documents produced before the Tribunal at the time of filing or in the course of hearing of an Application, Suit or Appeal shall be filed duly indexed along with Annexures of documents.

(2)     Such documents should be legible and in the typed form if required.

(3)     If the document filed is in a language other than that of English, its translation in English may be furnished if so directed by the Tribunal.

Rule - 90. Service of Notices.

Every notice to Defendants/Respondents in Application/Suit/Appeal shall generally be sent and served through Registered Post Acknowledgement Due or through recognized courier. Service of Notice on the Board(s) be served through their Retainers and in their absence, through Dasti Service. Dasti service of Notice can be permitted on other defendants if there is an urgency in hearing and/or for an order under Order XXXIX of the Civil Procedure Code.

If the Tribunal is satisfied that the defendant/respondent is avoiding service of such notice or where such notice cannot be served in ordinary manner for any other reason, the Tribunal shall order service of notice through Dasti Service by an employee of the Tribunal or otherwise may order for service of Notice as per the provisions of Order V, Rule 20 of Code of Civil Procedure, 1908.

Rule - 91. Sitting of the Tribunal.

The Tribunal shall ordinarily hold its sitting on every working day from 10:30 am to 1:00 pm and from 2:00 pm to 4:45 pm.

Rule - 92. Hearing and Disposal.

Every Application (Eviction/Miscellaneous/Interlocutory Application/Execution/Intervention) filed before the Tribunal shall be heard and disposed off in a summary manner as prescribed under Civil Court Rules and every Suit or Appeal filed before the Tribunal shall be heard and disposed off in accordance with the procedure prescribed for hearing Suits and Appeals in the Code of Civil Procedure, 1908.

Rule - 93. Certified copies.

Certified copies of any Order, Judgment, Decree, Proceeding, Application, Plaint, Appeal or Document marked as Exhibits may be obtained by the parties to the proceedings on payment of such fee as specified by the Government. The provisions of Part-IV of the Civil Court Rules shall apply for issue of the certified copies.

Rule - 94. Execution of orders of the Tribunal under Section 83.

A party to the proceeding seeking enforcement of any decision of the Tribunal, except Orders passed under sub-section (4) of section 54 of the Act, shall apply to the Tribunal along with a certified copy of the Decree/Order for its execution and the same shall be executed as per subsection (5) of section 83 of the Act and in case of situation as described in Section 39 of the Code of Civil Procedure, the decision of the Tribunal may be sent to the Civil Court of competent jurisdiction for its execution as per sub Section (8) of Section 83 of the Act and the same may be executed as per provisions of Order XXI of the Code of Civil Procedure.

Rule - 95. Forms of Waqf Tribunal.

All the Forms prescribed in this Rule and the Civil Court Rules shall be used by the Tribunal.

Rule - 96. Dress Code.

A Legal Practitioner shall appear before the Tribunal in their professional dress; as prescribed by the State Bar Council from time to time.

Rule - 97. Form of Receipt for Court fee etc.

The Tribunal shall issue a Cash receipt in Form 114 in respect of money collected by it under the Act or the Rules.

Rule - 98. Limitation.

Any person aggrieved by any decision or order passed by the Board in exercise of its powers under the Act, Rules and Regulations, may prefer an Application or Appeal, as prescribed, to the Tribunal within ninety days from the date of Decision or Order in matters where no time limit for preferring an Application or Appeal before the Tribunal is prescribed under the Act.

Provided, that the Tribunal may condone the delay in filing the Application or Appeal, if sufficient reason is shown in filing the Application, Suit or Appeal. 

CHAPTER IX MISCELLANEOUS MATTERS

Rule - 99. General Annual Report of the Board.

(1)     The Government shall as soon as may be after the first day of April in every year cause the General Annual Report of the Board to be prepared in two parts in Form No. 115. Part I of the report shall be the report regarding the particulars referred to therein, and Part II shall contain the statistical data in the Forms specified therein.

(2)     The report shall be finalized before the 1st of July every year.

(3)     The main points to be dealt with shall be noted against the heads concerned in the Report and all necessary information regarding sanctions etc., should be included in the report which should be comprehensive.

(4)     Soon after the receipt of the report, the Government shall issue a consolidated review on the said report after placing it before the State Legislature.

Rule - 100. "Repeal and Savings".

(1)     The Bihar Waqf Rules, 2002 is hereby repealed.

(2)     Notwithstanding such repeal, anything done or any action taken under the said rules shall be deemed to have been done or taken under the corresponding provisions of these rules.

Provided that such repeal shall not affect the previous operation of that corresponding law and subject thereto, anything done or any action taken in the exercise of any power conferred by or under the corresponding law shall be deemed to have been done or taken in the exercise of the powers conferred by or under these rules as if these rules were in force on the day on which such things were done or action was taken.