NEW DELHI: Supreme Court, in an interim order Monday, refused to stay the Waqf (Amendment) Act, 2025, prima facie finding none of its provisions illegal but suspended implementation of 'five-year practice of Islam' for dedicating a property to waqf till the Centre framed rules on it.
The court also stayed a section of the amended law that provided for derecognition as soon as inquiry by an officer above the rank of collector begins into the status of a property as waqf, saying that it was prima facie arbitrary and not in line with separation of powers. It said that a determination by the official could not be treated as final, and as conceded by solicitor general Tushar Mehta during the hearings, could be challenged before the waqf tribunal and jurisdictional HCs.
Abolishing waqf by user clause not arbitrary: SC
Even as Supreme Court on Monday stayed some provisions of Waqf (Amendment) Act, 2025, it found no merit in the challenge to the provision for inquiry into govt land being declared waqf property by an officer above the rank of collector and said, "The govt holds the property in trust for its citizens. Any person who has wrongful possession of such property cannot be permitted to claim the same as his own property."
The bench of CJI B R Gavai and Justice A G Masih said that once the inquiry commences to determine whether a govt property has been wrongly identified or declared as waqf, the mutawalli of waqf board cannot create third-party interest in the property till the final adjudication by judiciary.
SC rejected the arguments of challengers to the provision in the Waqf Act confining waqf only to Muslims and barring non-Muslims from dedicating their properties. SC said as the petitioners argued that waqf is specific to Islam, deletion of non-Muslims from the ambit of donation is not arbitrary. "In any case, if such a person desires to donate his property, he can do so by giving or donating it to a trust or creating a trust for any of the purposes which were included in Section 104 of the Waqf Act, 1995," the bench said.
To preserve religious character of Central Waqf Council and state waqf boards, the bench directed the Centre and states not to have more than four and three non-Muslims in the council and each board, respectively, recording the assurance by the SG during the hearing. SC also told the states to, as far as possible, avoid appointment of a non-Muslim chief executive officer, who is a serving joint secretary, of the waqf boards. The court refused to stay some provisions: challenge in court, in joint parliamentary committee, and Parliament, deletion of provision which barred non-Muslims from creating waqfs, application of Limitations Act to waqf properties, bar on tribal lands from being declared waqf, bar on declaring ASI properties to be waqf.
On another intensely contested provision of abolishing 'waqf by user' provision, the bench said right from 1923 there had been a mandatory provision for registration of waqf property. "We are, therefore, of the view that if mutawallis for a period of 102 years could not get waqf registered, as required under the earlier provisions, they cannot claim that they be allowed to continue with the waqf even if they are not registered," it said. "If the legislature, on noticing misuse of the waqf properties, finds that after the enactment of the impugned Act all such applications should be accompanied by a copy of the waqf deed, the same cannot be said to be arbitrary," SC said.
It also found no illegality in the prospective abolition of the 'waqf by user' clause. "We are of the view that if the legislature, in 2025, finds that on account of the concept of 'waqf by user', huge govt properties have been encroached upon and to stop the menace, it takes steps for deletion of the said provision, the said amendment, prima facie, cannot be said to be arbitrary," bench said, and cited how in Andhra Pradesh the state waqf board notified thousands of acres of govt land as waqf and which was set aside by SC.
The court also stayed a section of the amended law that provided for derecognition as soon as inquiry by an officer above the rank of collector begins into the status of a property as waqf, saying that it was prima facie arbitrary and not in line with separation of powers. It said that a determination by the official could not be treated as final, and as conceded by solicitor general Tushar Mehta during the hearings, could be challenged before the waqf tribunal and jurisdictional HCs.
Abolishing waqf by user clause not arbitrary: SC
Even as Supreme Court on Monday stayed some provisions of Waqf (Amendment) Act, 2025, it found no merit in the challenge to the provision for inquiry into govt land being declared waqf property by an officer above the rank of collector and said, "The govt holds the property in trust for its citizens. Any person who has wrongful possession of such property cannot be permitted to claim the same as his own property."
The bench of CJI B R Gavai and Justice A G Masih said that once the inquiry commences to determine whether a govt property has been wrongly identified or declared as waqf, the mutawalli of waqf board cannot create third-party interest in the property till the final adjudication by judiciary.
SC rejected the arguments of challengers to the provision in the Waqf Act confining waqf only to Muslims and barring non-Muslims from dedicating their properties. SC said as the petitioners argued that waqf is specific to Islam, deletion of non-Muslims from the ambit of donation is not arbitrary. "In any case, if such a person desires to donate his property, he can do so by giving or donating it to a trust or creating a trust for any of the purposes which were included in Section 104 of the Waqf Act, 1995," the bench said.
To preserve religious character of Central Waqf Council and state waqf boards, the bench directed the Centre and states not to have more than four and three non-Muslims in the council and each board, respectively, recording the assurance by the SG during the hearing. SC also told the states to, as far as possible, avoid appointment of a non-Muslim chief executive officer, who is a serving joint secretary, of the waqf boards. The court refused to stay some provisions: challenge in court, in joint parliamentary committee, and Parliament, deletion of provision which barred non-Muslims from creating waqfs, application of Limitations Act to waqf properties, bar on tribal lands from being declared waqf, bar on declaring ASI properties to be waqf.
On another intensely contested provision of abolishing 'waqf by user' provision, the bench said right from 1923 there had been a mandatory provision for registration of waqf property. "We are, therefore, of the view that if mutawallis for a period of 102 years could not get waqf registered, as required under the earlier provisions, they cannot claim that they be allowed to continue with the waqf even if they are not registered," it said. "If the legislature, on noticing misuse of the waqf properties, finds that after the enactment of the impugned Act all such applications should be accompanied by a copy of the waqf deed, the same cannot be said to be arbitrary," SC said.
It also found no illegality in the prospective abolition of the 'waqf by user' clause. "We are of the view that if the legislature, in 2025, finds that on account of the concept of 'waqf by user', huge govt properties have been encroached upon and to stop the menace, it takes steps for deletion of the said provision, the said amendment, prima facie, cannot be said to be arbitrary," bench said, and cited how in Andhra Pradesh the state waqf board notified thousands of acres of govt land as waqf and which was set aside by SC.
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