The Supreme Court has firmly stated that the legislative decision to remove statutory recognition for ‘waqf by user’ and enforce mandatory registration for Waqfs is not ‘arbitrary.’ This judgment comes in light of the extensive encroachment on ‘huge government properties’ that has been a growing concern over the years.
Chief Justice of India B.R. Gavai, leading a Division Bench, made these observations in a ruling that declined to entirely halt the implementation of the Waqf (Amendment) Act, 2025. The court emphasized that if the legislature, in 2025, determined that the ‘waqf by user’ concept led to widespread encroachment on public lands and acted to remove this provision, such an amendment cannot, on the surface, be deemed arbitrary.
The verdict highlighted a past instance involving the Andhra Pradesh Waqf Board, which had controversially declared thousands of acres of government land as waqf property. The State government’s efforts to reclaim this land in the High Court failed, necessitating an appeal to the Supreme Court, which ultimately invalidated the notification, confirming the lands belonged to the State.
The Court reiterated, ‘After observing such instances of misuse, if the legislature decides to abolish the concept of ‘waqf by user,’ especially with prospective effect, this cannot be considered arbitrary.’
For additional context, readers might be interested in the following discussions:
- Supreme Court refuses to stay Waqf (Amendment) Act 2025 in its entirety
Previously, Clause (i) of Section 3(r) of the Waqf Act of 1995 acknowledged ‘waqf by user.’ This referred to property designated for religious or charitable purposes without requiring a formal written declaration or deed.
The 2025 Amendment Act crucially eliminated the ‘waqf by user’ concept, now insisting on a formal Waqf deed for all properties.
The court further pointed out that mandatory registration for waqfs is not a novel idea, having been a part of the 1995 waqf legislation. The Chief Justice, in his authored judgment, observed that if Mutawallis (managers of waqfs) had neglected to register their properties for three decades, they cannot now claim the new requirement for a waqf deed is arbitrary.
The apex court found no initial merit in the petitioners’ assertion that ancient lands, graveyards, dargahs, and mosques, traditionally recognized as waqfs through prolonged usage, would now be unlawfully seized by the government.
In this context, the Solicitor General Tushar Mehta, representing the Centre, assured the court that the removal of clause (i) of Section 3(r) from the original 1995 Waqf Act would only apply prospectively, taking effect when the 2025 amendments were enforced. The Amendment Act was officially notified on April 8, 2025.
The Union government, with advocate Kanu Agrawal also representing, previously informed the apex court about ‘shocking’ abuses of waqf provisions, which resulted in ‘rampant encroachments’ on private and government properties. The Centre highlighted an astounding 116% increase in waqf lands between 2013 and 2024, a growth rate far exceeding even the Mughal era.
Additional related insights:
- What are the key changes proposed in the new Waqf Bill? | Explained
- Parliamentary Panel clears report on Waqf (Amendment) Bill; Opposition slams its provisions as ‘unconstitutional’
- Waqf (Amendment) Bill | Analysis and explainers from The Hindu
- Key provision in Waqf (Amendment) Bill likely to mandate no change in ownership of existing properties unless facing dispute
The government argued that abolishing the ‘waqf-by-user’ concept in the 2025 amendments does not infringe upon a Muslim’s right to establish a waqf.
The Centre maintained in court that ‘Under the proviso to Section 3[1][r], no trust, deed or any documentary proof has been insisted upon in the amendment or even prior thereto. The only mandatory requirement for being protected under the proviso is that such ‘waqf-by-user’ must be registered as on April 8, 2025, as registration has always been mandatory as per the statute governing waqfs since last 100 years.’ It concluded that only those who avoided registration to evade accountability or conceal land transactions would face issues.