SC refuses to stay provision abolishing ‘waqf-by-user’, says abolition not arbitrary prima facie

If legislature finds that 'waqf by user' has led to massive encroachments & seeks to delete the provision, such an amendment cannot be considered arbitrary, SC says.

The Supreme Court of India | Manisha Mondal | ThePrint

New Delhi: The Supreme Court Monday refused to stay the operation of crucial provisions of the Waqf Amendment Act, 2025 that have come under challenge for being “arbitrary” and “unconstitutional”.

Significantly, it refused to stay the Waqf provision that abolishes the concept of ‘waqf-by-user’.

The interim order, passed by a bench of Chief Justice of India (CJI) B.R. Gavai and Justice Augustine Masih, four months after it was reserved, however, agreed to put on hold the implementation of three provisions, albeit on procedural grounds.

These sections would not be acted upon until the Supreme Court adjudicates the set of petitions challenging the 2025 Act.

The first is Section 3(r) that only allows a practitioner of Islam for at least 5 years to donate property for waqf. If rules are framed that provide a mechanism to determine this question, the section then can come into application, the court said.

The second provision put on hold is a proviso to sub-section 2 of Section 3(c) that allow the government to derecognise a Waqf land during the pendency of decision of the District Collector on a dispute related to the property’s character or a complaint alleging encroachment of a government property. To change the nature of the property pending an inquiry is, prima facie, arbitrary, the SC held.

Related provisions—sub-sections 3 and 4—too, were stayed. While the first empowers a collector to amend the revenue records in the case an inquiry reveals that the disputed property belongs to the government and not Waqf, the second sub-section permits the government to direct the Waqf Board head to make similar changes in its record.

Only a judicial or quasi-judicial authority can determine a property’s title, the bench said, giving its reasons to pause the operation of the two sub-sections. However, at the same time, the bench issued a legal injunction against creation of third-party rights on such lands, restricting the Mutawalis from taking any decision till the dispute is decided by the tribunal after following the adjudicatory process underscored in the Act.

The bench affirmed the Centre’s stand that non-Muslim members cannot exceed more than four in the Central Waqf Council and three in the State Waqf Boards.

While it did not stay the provision to appoint a government officer, who could also be a non-Muslim as the State Waqf Board CEO, the court remarked that “as far as possible”, a Muslim person should be appointed.

With regard to registration of the waqf properties, omission of the ‘waqf-by-user’ concept, to make the Act amenable to the Limitation Act, non-application of the Waqf Act to protected monument, deletion of the section that allowed a non-Muslim to donate their properties to Waqf and a bar on the creation of Waqf in tribal areas, the court felt these sections were on the face of it “not arbitrary” for the purpose of an interim order only.

“We clarify that what has been observed is upon our prima facie consideration for the purpose of examining as to whether an interim stay should be granted or not to the impugned Act or the provision(s),” it said, adding that the observations will not prevent the parties from making submissions with regard to the validity of the Act before the bench that will finally determine the questions raised on the legality.

With CJI Gavai set to retire in November, the matter will most likely be listed before another bench for a detailed hearing.

To be sure, some of the important sections of the law were not given effect following a statement made by Solicitor General Tushar Mehta to the bench.

On 17 April, to preempt the court from staying the law’s operation, Mehta assured that the government would not make any appointments to the Central Waqf Council and the State Waqf Boards. He also promised that the government shall not de-notify or alter the status of waqf properties, including a ‘waqf-by-user’ and registered or a notified waqf property.

“By now, it is a settled principle of law that the courts should be very slow in granting interim relief by way of staying the provisions of an enactment,” the bench said, declining to stay all the provisions, as demanded by the petitioners.

Reference was made to Supreme Court judgements, with the court making it clear that interim relief can be granted in rare and exceptional cases, where the provisions are ex-facie (at first glance) in violation of the petitioner’s fundamental rights.

“It has consistently been held that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles,” the bench added.

Going into the history of Waqf enactments, the SC highlighted the “menace of mismanagement of the wakf properties” acknowledged by the legislature, and the fact that registration was made compulsory way back in 1923 when the first waqf law was enacted.

Endowments were being “wasted or systematically misappropriated by those whose hands the trust may have come in the course of time,” it said.

It was also noticed, the court observed, that the “wakf endowment” came to be regarded by the public as a “clever device” to tie up property in order to defeat creditors and generally to evade the law “under the cloak of a plausible dedication to the Almighty.”

Sections not stayed

The bench did not entertain the petitioners’ plea to stay the operation of clause i of Section 3(r) that has done away with the concept of ‘waqf-by-user.’

Till the Act was amended, a property could be treated as Waqf for its long-term use for a religious or charitable purposes, even without a formal documentation.

Reverting to the original Waqf Act, the bench noted that every waqf created before or after the commencement of the 1923 Act had to be registered. Though a waqf deed was not mandatory, it was incumbent to give full particulars with regard to the origin, nature and objects of the waqf.

“We are, therefore, of the view that if for 30 long years, Mutawallis had chosen not to make an application for registration, they cannot be heard to say that the provision which now requires the application to be accompanied by a copy of the waqf deed is arbitrary,” it said.

“Further, if the legislature, on noticing misuse of 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.”

After noticing such misuse, if the legislature finds that the concept of ‘waqf-by-user’ has to be abolished and that too prospectively, “in our view, the same cannot prima facie be said to be arbitrary,” it added.

With regard to registration of waqf properties under sub-section 10 of Section 36, the court held that the original law made it mandatory.

“Right from 1923, the requirement has been consistently found in all the 116 enactments concerning the waqf properties,” it noted, reflecting on the purpose behind mandating registration, which was to prevent misuse of the law to deny claim of creditors and avoid legal proceedings.

The bench rejected the argument that compulsory registration of waqf properties is “discriminatory” and, rather, went to uphold it for bringing parity with other statutes that govern functioning of trusts.

Registration, the bench said, was in existence till 2013 when the law was amended to undo it. Noting that the new law stipulated a six-month deadline to register waqf properties, it  said ample time was given for their registration.

The court did not find any infirmity with the omission of a provision that allowed a non-Muslim to donate property for the support of a Waqf. The petitioners’ argument that this modification was arbitrary, was self-contradictory, the court said.

The bench felt so because on one hand the petitioners argued that Waqf is specific to Islam, while on the other it wanted permission for non-Muslims to donate for Waqf.

Someone not professing Islam can donate property by giving to a trust or by creating one, the court said.

The decision to omit the section, it explained, was to make the law consistent with the definition of waqf under the amended Act, which provides that waqf can be created only by a person showing or demonstrating that he is practicing Islam for at least five years.

The court declined to grant a stay on the application of Section 44 that extends the Limitation Act’s jurisdiction to disputes arising from waqf properties. This means proceedings under the 2025 Act can be time-barred if they do not comply with the timelines set out in the Limitation Act to file cases. This new addition to the Act brings it on par with other similar laws, the bench noted.

Given that the court refused to stay the complete implementation of the 2025 Act, the law will now not have an overriding effect on other laws, in force, despite inconsistencies.

The court noted that though this clause did not exist in the original law governing waqf properties, it was introduced in the statute in November 2013. The legislative was competent to add or delete a provision from the statute, it added.

It declined to defer the operation of another crucial section, Section 3D. This provision says a protected monument or area cannot be declared as Waqf.

In doing so, it took into account the Archaeological Survey of India’s submissions before the Joint Parliamentary Committee (JPC), which carried out a detailed study of the Act, about the difficulties they faced in protecting monuments declared as waqfs.

Similarly, the SC, for now, refused to intervene with the operation of the provision that bars declaration of any land in Scheduled or Tribal area as waqf. The section, it opined, was enacted with the “avowed object of safeguarding the interest of one of the most marginalised and vulnerable sections of our country.”

(Edited by Tony Rai)