THE SUPREME COURT TODAY refused to put on hold the provision in the 2025 amended Waqf Act abolishing the concept of ‘Waqf by user’ holding that it was not arbitrary and the apprehensions of the petitioners that government would grab all such ‘Waqf by user’ properties was unfounded.
Referring to the instances of encroachment of government lands particularly in Andhra Pradesh where the State Waqf Board had notified thousands of acres of land belonging to the Government as waqf property, the interim order said, “After noticing such instances of 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.”
Referring to the central government submission that the deletion of clause (i) of Section 3(r) of the Original Waqf Act would come into effect from the date on which the impugned Act has come into effect, the interim order said, “The said provision would, therefore, not apply retrospectively. Therefore, the contention of the petitioners that the lands vested in the waqfs would be grabbed by the Government prima facie holds no water.
In its interim order passed today, the Court stayed the operation of certain key provisions including that a person should be a practising Muslim for five years before making/creating a Waqf as in the absence of a mechanism it could lead to an arbitrary exercise of power by the government.
The Court in its interim order said that the provision that any person claiming that he is professing Islam for at least five years “shall stand stayed until the rules are framed by the State Government for providing a mechanism for determining the question as to whether a person has been practicing Islam for at least five years or not”.
Stating that there is always a presumption of constitutionality in favour of a statute and it could be stayed in its entirety only in rarest of rare cases, Chief Justice B.R. Gavai heading a Bench also comprising Justice Augustine George Masih also put on hold the provision providing for the designation of an officer above the rank of the Collector to determine, in a dispute, whether a property claimed to be a Wakf, is on a government property or not.
Entrusting a designated revenue officer to determine the title of a property, make necessary corrections in the revenue records after the conclusion of the inquiry, and enabling the State Government to direct the Board to make appropriate corrections, the interim order said, are prima facie arbitrary, keeping in view the principle of separation of powers and is liable to be stayed
The interim order noted that the dispute over the ownership of the property, said to be a Wakf, will be adjudicated by the tribunal under Section 83 of the amended Wakf Act and till the proceedings attain finality, including the orders of the High Court in a situation of an appeal against the decision of the tribunal, neither Waqf will be dispossessed of the property nor any third-party interest would be created.
The interim order says, “…, upon commencement of an inquiry under Section 3C of the Amended Wakf Act till the final determination by the Tribunal under Section 83 of the Amended Wakf Act, subject to further orders of the High Court in an appeal, no third-party rights would be created in respect of such properties.”
The interim order further directs that, “unless the issue with regard to title of the waqf property … is not finally decided …, neither the waqfs will be dispossessed of the property nor the entry in the revenue record and the records of the Board shall be affected”.
This stay of the provision is significant as the Section 3(C)(2) says “If any question arises as to whether any such property is a Government property, the State Government may, by notification, designate on Officer above the rank of Collector …, who shall conduct an inquiry as per law, and determine whether such property is a Government property or not and submit his report to the State Government” and “such property shall not be treated as waqf property till the designated officer submits his report”.
It further says, “In case the designated officer determines the property to be a Government property, he shall make necessary corrections in revenue records,” and the “State Government shall, on receipt of the report of the designated officer, direct the Board to make appropriate corrections in the records.”
On the presence of the non-Muslim members in the Central Wakf Council and the Waqf Boards in the States under Sections 9 and 14 respectively of the Waqf (Amendment) Act, 2025, , the court did not interfere with the existing provisions and directed that Council shall not consist of more than four non-Muslim members out of 22 and Boards in the States shall not consist of more than three non-Muslim members out of 11.
However, the interim order, while not staying the Section 23 of the amended Wakf Act, directed that “as far as possible, an effort should be made to appoint the Chief Executive Officer of the Board who is the ex officio Secretary from amongst the Muslim community.”
On the registration of the Waqf, the interim order after perusing the provisions of Mussalman Wakf Act, 1923 Act, Bengal Wakf Act, 1934, Wakf Act, 1954, Wakf Inquiry Committee and Wakf (Amendment) Act, 1984, Wakf Act, 1995, and the 2025 law, has said that the provision for the registration was there at all the times and “ if the legislature, on noticing misuse of the 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. “
Having passed the interim order staying the provisions requiring a persons should be a practising Muslim for five-years to entitle him to create a Waqf and appointment of a designated officer to determine whether a property claimed to be a Waqf is a government property or not and directing that the CEO of the Waqf Board should be a Muslim, the court issued certain clarifications.
It clarified that what has been observed in the interim order is a 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) contained therein.
The observations, the clarification says, will not prevent the parties from making submissions with regard to the validity of the provisions contained in the Amended Wakf Act or any of the provision(s) therein.
Challenging the Waqf law, the Supreme Court was moved by Mohammad Jawed (Congress MP), Asaduddin Owaisi (AIMIM MP), Maulana Arshad Madani (Jamiat Ulema-i-Hind), All India Muslim Personal Law Board (AIMPLB), Samastha Kerala Jamiatul Ulama, Social Democratic Party of India (SDPI), and Association for Protection of Civil Rights (APCR).
They argued that the amendments amount to targeted interference in Muslim religious affairs and violate constitutional protections.
Six BJP-ruled States—Haryana, Maharashtra, Madhya Pradesh, Rajasthan, Chhattisgarh, and Assam—have filed intervention applications supporting the amendment. They claim it is essential to curb fraudulent encroachments on public and private lands wrongly claimed as waqf.
Defending the amended law, the Centre had said that the 2013 Waqf Act amendments led to a many fold increase in recorded waqf area, and the 2025 amendment merely regulates waqf dedications by setting formal and transparent mechanisms.
