New Delhi: The Centre Thursday submitted before the Supreme Court that it would put on hold key Waqf (Amendment) Act, 2025 provisions related to ‘waqf-by-user’, and appointments of members to the Central Waqf Council and State Waqf boards.
During the hearing on a batch of petitions challenging the validity of the act, the government assured the top court that all waqf properties, including ‘waqf-by-user’, already registered or notified won’t lose their status or character in revenue records till the matter is decided.
The Centre’s undertaking on the contentious act, which has come under criticism for introducing sweeping changes that allegedly interfere with religious affairs of the Muslim community, was submitted before the bench led by Chief Justice of India Sanjiv Khanna.
One of the key contentions is that in its present form, the new law gives wide powers to the State to derecognise ‘waqf-by-user’ properties in case they come under scrutiny for being government land. Such properties, in use as waqf for long, will lose their status as soon as the district collector starts an enquiry to determine the actual nature of the land.
The government’s undertaking came after the court raised serious concerns Wednesday about the Centre’s alleged attempt to disturb the status quo as far as ‘waqf-by-user’ properties are concerned.
It is also observed that the new law intends to upset the existing ground situation and could strip thousands of long-used Muslims sites—such as mosques, graveyards, and dargahs—of their waqf status, potentially leading to widespread disputes and legal uncertainty.
In this backdrop, ThePrint explains the concept of ‘waqf-by-user’ and its timeline in India.
Origin and history of ‘waqf-by-user’
In the pre-Independence era, The Mussalman Wakf Act of 1923 did not have any mention of ‘waqf-by-user’.
The Waqf Act, 1954 was the first central legislation post-Independence to regulate waqf properties in India. It was this law that introduced the concept of ‘waqf-by-user’ in India.
A subsequent legislation, brought in 1995, repealed the 1954 Act. The key changes in the new law included the establishment of tribunals for waqf-related disputes, and allowed for elected members and nominated scholars in Islamic theology to be part of the waqf board.
It included ‘waqf-by-user’ in the overall definition of waqf, with clarifications regarding the temporary nature of the user’s benefit and continuation of the waqf’s status.
The law was amended in 2013, months before the Congress-led-UPA government denotified 123 properties in Delhi under the control of the Land and Development Office to enable their title to be transferred to the Delhi Wakf Board.
The amended law enhanced the role of tribunals set up to resolve disputes related to waqf properties and established the Central Waqf Council to monitor and guide the operations of state waqf boards. Its stated goal was to make waqf management more efficient and transparent.
There was no modification in ‘waqf-by-user’. The 2025 amendment, meanwhile, has erased the section on ‘waqf-by-user’.
What is ‘waqf-by-user’
The concept of ‘waqf-by-user’—introduced in the 1954 law—means that if a property (like a mosque, dargah, graveyard, or community kitchen) has been used by the Muslim community for religious purposes for a long time, it can be officially considered as waqf property even if there are no legal papers or documents to prove ownership.
It means that long-term public use and acceptance are enough to treat such places as waqf property.
In essence, if a place has been used for Islamic religious purposes for a long time, it can be legally registered as waqf—even without formal documents—because of its community usage and religious significance.
Also Read: What SC said on waqf-by-user, non-Muslims in council on Day 1 of hearing on Waqf Act amendments
How courts have interpreted ‘waqf-by-user’
In The Punjab Waqf Board, Ambala vs The Panchayat Deh and Another case, the Punjab and Haryana High Court on 7 October 1970 addressed the question of whether certain plots, for long used as Muslim graveyards, could be legally recognised as waqf properties despite lacking formal documentation.
The trial court had dismissed the waqf board’s suits for possession. However, the first appellate court reversed this decision, granting possession to the waqf board. Subsequently, the high court consolidated nine appeals related to this matter.
This case limited the scope of ‘waqf-by-user’ by saying: “Just using land for burials or prayers for years doesn’t make it waqf unless you can show legal proof it was meant to be waqf.”
Mere usage of land for religious purposes (like a graveyard or mosque) over an extended period does not automatically make the property waqf, it said.
It observed that registration with the waqf board is crucial to prove the property was intended to be dedicated as a waqf. Thus, highlighting that registration is essential to protect a waqf’s legal status and rights.
In Salem Muslim Burial Ground Protection Committee v. State of Tamil Nadu case (2023), the Supreme Court also said mere usage does not mean a property becomes waqf, unless it’s formally recognised through legal processes. It said the waqf status requires following statutory procedures such as surveys and registration.
Registered & unregistered ‘waqf-by-user’
In the 1923 law, Sections 3, 4, and 5 required the mutawalli (custodian) to inform the court about waqf properties. At that time, there was no board, so this process acted like an informal registration.
The 1954 law included Section 25 which made it mandatory to register all waqf properties, including ‘waqf-by-user’. It introduced a formal registration process.
In the 1995 law, Section 40 gave the waqf board the power to register waqfs on its own initiative (suo-motu), ensuring all waqfs came under its regulation. Section 61 imposed penalties on mutawallis if they failed to register waqfs.
In the 2025 amendments, the suo-motu power of the waqf board in Section 40 was removed citing potential misuse and alleged forcible declaration of properties as waqf. Alleged mismanagement and exploitation of the system were cited as primary reasons to do away with this provision.
A registered ‘waqf-by-user’ is a property that has been used for religious or community purposes over a long period and has been officially recorded by the waqf board, even without formal documents like a waqf deed.
Its recognition is based on community usage and verification by the board, giving it legal protection and placing it under the board’s control. These properties cannot be sold or transferred without the approval of the board, and any misuse can be legally challenged.
An unregistered ‘waqf-by-user’, on the other hand, is a property similarly used for religious purposes but has not been officially entered in the waqf board’s register. While the community may view it as waqf, it lacks legal status, making it vulnerable to disputes, encroachments, or acquisition.
Without registration, the waqf board has no authority over it, and the property doesn’t receive the same legal safeguards.
In the Ram Janmabhoomi case, for example, the Sunni Waqf Board claimed the land was a waqf property because the Babri Masjid had been built on it, and the property was, in their view, dedicated for religious purposes under Islamic law. However, the Supreme Court did not accept the argument of ‘waqf-by-user’ as there was no sufficient legal evidence to establish the property was officially and legally designated as waqf land.
Ruchi Bhattar is an intern who graduated from ThePrint School of Journalism
(Edited by Ajeet Tiwari)
Also Read: 1995 Waqf Act balanced Islamic principles and Indian law. Amendment Bill shifts the scales
The concept of Waqf-by-user is an abomination. Only the Congress, under the leadership of Pandit Nehru, could have brought in such a law.
Independent India’s attempt to make Muslims feel part of the nation and develop a sense of belonging, involved such inherently unjust and legally unfounded acts of appeasement.