New Delhi [India], September 15 (ANI): The Supreme Court on Monday refused to stay the provision in the Waqf Amendment Act 2025 that abolished the concept of ‘Waqf-by-user’, stating that prima facie the deletion “cannot be said to be arbitrary.”
“If the legislature, in 2025, finds that on account of the concept of Waqf-by-user, huge government properties have been encroached upon and, to stop the said menace, takes steps for deletion of the said provision, the said amendment, prima facie, cannot be said to be arbitrary,” the court observed.
Waqf-by-user is a concept that recognizes a property as Waqf not through a formal dedication deed but through long, consistent public use of the property for religious or pious purposes. The 2025 amendment deleted Section 3(r)(i) of the original Waqf Act of 1995, which had recognized this concept.
Petitioners challenging the amendment argued that the deletion would adversely affect several age-old Waqf properties without formal registration deeds. A bench comprising Chief Justice of India BR Gavai and Justice AG Masih, however, noted that the Waqf Act of 1923 required registration of Waqfs, and if properties remained unregistered for decades, grievances cannot now be raised.
“We are, therefore, of the view that if Mutawallis for a period of 102 years could not get the Waqf registered, as required under earlier provisions, they cannot claim that they be allowed to continue with the Waqf even if they are not registered,” the 128-page order stated.
The court added, “If for 30 long years, the Mutawallis had chosen not to make an application for registration, they cannot contend that the provision now requiring the application to be accompanied by a copy of the Waqf deed is arbitrary. Further, if the legislature, on noticing misuse of the Waqf properties, finds that all such applications should now be accompanied by a copy of the Waqf deed, the same cannot be said to be arbitrary.”
The bench refused to stay the provision requiring all Waqfs to be registered under Section 36 of the Amendment Act, noting that registration requirements existed in earlier laws. The court cited instances such as the Andhra Pradesh government approaching the court after the State Waqf Board notified government lands as Waqfs, which the apex court later quashed.
“After noticing such instances of misuse, if the legislature finds that the concept of ‘Waqf by User’ has to be abolished prospectively, in our view, the same cannot prima facie be said to be arbitrary,” the court said.
The apex court further stated that the deletion of clause (i) of Section 3(r) of the original Waqf Act would come into effect from the date the amendment Act took effect, and thus would not apply retrospectively. “Therefore, the contention that lands vested in Waqfs would be grabbed by the government prima facie holds no water,” the bench noted.
The top court also refused to stay Section 3d of the Waqf Amendment Act, which voids Waqfs on properties notified as ancient monuments under the Ancient Monuments Preservation Act, 1904, or the Ancient Monuments and Archaeological Sites and Remains Act, 1958. Similarly, Section 3E, which bars declaring tribal lands as Waqf to safeguard Scheduled Tribes, was also not stayed.
The apex court passed an interim order on pleas to stay the Waqf (Amendment) Act, 2025, putting certain provisions on hold while allowing others to remain in effect. (ANI)
About The Author
