New Delhi: Supreme Court Wednesday voiced its concern over misuse of waqf-by-user, while also raising doubts over a new provision under The Waqf (Amendment) Act, 2025 that de-notifies an unregistered waqf-by-user property in case it is government land.
These properties would include the ones identified or declared waqf before notification of the new law. Under it a district collector can conduct a survey, following which a correction can be made in the revenue records regarding the status of the property. Until the collector finalises his/her report, the disputed property will lose its character as that of a waqf.
A three-judge bench led by Chief Justice of India (CJI) Sanjiv Khanna also expressed concern over two more contentious sections of the legislation through which Parliament amended the Waqf Act, 1995: one that allows inclusion of non-Muslim members in the Central Waqf Council and State Waqf Boards, and another that relates to de-notification of properties declared as waqf by a judicial decree.
The bench, hearing a batch of close to 100 petitions on the Waqf (Amendment) Act, 2025, indicated that it will hold a detailed hearing on the matter. However, in the meantime, it said an interim order would be in operation until the final disposal of the case.
“Usually, we do not stay operation of legislation, unless there is an exception. And, we feel this is an exception,” the bench observed, while echoing its reservations over some of the new additions to the law, particularly the one that talks about de-notification of unregistered waqf-by-user properties. “We feel if there is already a waqf-by-user property, to de-notify it will have huge consequences,” the bench said.
The court conveyed to lawyers representing the petitioners and the Centre what it intends to consider while passing the interim order, saying it will “balance the equities”.
It also said that its order will prevent de-notification of properties that were declared by a court to be waqf, including those that are waqf-by-user.
Further, it said though the collector can continue with a survey to determine the true nature of the land, the provision that allows him/her to change the property’s character in the revenue records will not be given effect to. This essentially means that the property will continue to exist as a waqf till the top court decides on the validity of the amended law.
The bench also hinted that it will restrict the Centre and states from appointing non-Muslims to the Central Waqf Council and State Waqf Boards. Barring ex-officio members, it said, all the remaining members would be Muslims.
However, on the request of Solicitor General Tushar Mehta, who represented the Centre, and senior counsels representing BJP-ruled states who have sought an intervention in the matter, the court adjourned the hearing to Thursday. On this account it refrained from passing any interim orders, while agreeing to hear the submissions of those who are opposing the petitions challenging the Waqf (Amendment) Act, 2025.
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‘Legislature can’t declare any judgment void’
During the hearing, the top court posed pointed questions to the Centre about inclusion of non-Hindus in bodies governing temples and de-notification of properties that acquired waqf-by-user status.
The bench also shared its serious concern over a new section in the law, which does not allow its application to a trust owned by a Muslim and established, before or after the commencement of the new law, for a purpose similar to a waqf.
It had objections to the section because it attempts to override judgments that have declared such trusts to be carrying out waqf activities, thereby extending the same protection to their properties that are meant for a waqf property.
“The legislature cannot declare any judgment or decree of court as void, you can remove the basis of law but you cannot declare any judgment or declare as not binding,” the bench said, adding, “Where public trust has been declared as waqf, say 100 or 200 years back, you turn about and say it is not waqf … You cannot rewrite the past of 100 years back.”
Mehta requested the bench to ignore that part of the section that talks about court judgments and sought to explain that the provision has been added to aid sections of Muslims that do not want to be governed by an all-Muslim board.
“If a Muslim wants to do charity, he can do that through a trust,” Mehta argued.
The solicitor general even sought to dispel the notion that the Central Waqf Council and State Waqf Boards will have non-Muslims as members and assured the court that all, except two members, shall be Muslims. He even offered to bring on record the government’s submission to the Joint Parliamentary Committee (JPC) which examined the amendments to the law before it was tabled in Parliament for discussion and passage.
Reading out from the bare act book, the bench highlighted that only eight out of 22 members of the Central Waqf Council would be Muslims.
“So as per the Act, eight members are Muslims. There are two judges (former), who may not be Muslims! Then the rest are non-Muslims,” the bench said.
This prompted Mehta to comment that if the petitioners’ opposition is accepted then in that case the present bench also cannot hear the case. The solicitor general’s remark drew a sharp reaction from the bench, which observed: “What! When we sit over here. We lose our religion. For us both sides are the same. How can you compare it with the judges? Why not have non-Muslims also in the advisory board of Hindu endowments then.”
When Mehta insisted Muslims would be in a majority in the Central Waqf Council as well as the State Waqf Boards, the bench told him that the same cannot be interpreted from the wording of the section. It said the JPC report or ministry’s response to JPC cannot be read into the statute to believe there would not be more than two members in these bodies.
The hearing began with petitioners unfolding their case briefly before the bench. This was in response to the bench asking them to first clarify points they intend to argue in the case.
While petitioners were arguing their point of view, the bench remarked that misuse of waqf-by-user is a serious concern. CJI Khanna pointed out how it has been claimed that the Delhi HC building and Oberoi Hotel is on waqf land. “We are not saying that all waqf-by-user properties are wrong. But there are some genuine areas of concern too,” he quipped.
Responding to this statement, senior advocate Abhishek Manu Singhvi said: “These are individual cases of abuse. But you can’t throw the baby out with the bathwater.”
Singhvi, who appeared for one of the petitioners, contended that waqf-by-user has been recognised through many decisions delivered by various courts and the new law has deleted this concept without removing the basis of these decisions.
He sought a stay on the act itself, arguing that some of its provisions are “pernicious” as they threaten to disturb the status quo continuing for many years.
(Edited by Amrtansh Arora)
Also Read: 1995 Waqf Act balanced Islamic principles and Indian law. Amendment Bill shifts the scales
In the erstwhile princely states, many large tracts of land were given to certain families over generations for service rendered to the kings. Same applies to many Waqf lands also. But, after the Indian republic came into existence, all these lands were resurveyed and allotted to those who were living there. So, many princely families came to possess only palaces and properties which were occupied by them. All other properties got distributed to the common people. Now, Muslims want to go back to the Mughal era and claim land and property rights from then on. So the moot question is, are we living in a secular republic or an Islamic empire?
Allah cannot and must not own land in India. India was divided in 1947 on religious lines and Allah got her share of the land – Pakistan and Bangladesh.
In India, Allah will not be allowed to own any property.