Centre's deletion of ‘waqf by user’ provision prima facie not arbitrary: SC

In a shot in the arm for the Centre, the Supreme Court on Monday said its deletion of the ''waqf by user'' provision in the newly-amended waqf law was prima facie not arbitrary and the argument that waqf lands would be grabbed by governments held "no water".

Waqf by user refers to a practice where a property is recognised as a religious or charitable endowment (waqf) based on its long-term, uninterrupted use for such purposes, even if there isn't a formal, written declaration of waqf by the owner. The provision turned out to be the bone of contention in the challenge to the new law. The top court on Monday in an interim order stalled some crucial provisions except it did not stay the law in its entirety and upheld several provisions, including the one mandating the registration of waqfs besides the deletion of ''waqf by user'' . The top court said the Centre deleted the ''waqf-by-user'' provision after noticing misuse and its omission, that too prospectively, was not "arbitrary".

The interim order was passed by a bench of Chief Justice B R Gavai and Justice Augustine George Masih.

The provisions, which were stayed included a clause mandating only those practising Islam for the last five years, to create waqf. One of the key contentions of those opposing the amended law was on the abolition of ''waqf-by-user'' with a prospective effect. The decision, penned by the CJI, said, "If the legislature, in 2025, finds that on account of the concept of 'Waqf by User', huge government properties have been encroached upon and to stop the said menace, it takes steps for deletion of the said provision, the said amendment, prima facie, cannot be said to be arbitrary." The bench said the legislative intent was to prevent misuse of waqf provisions and safeguard public property.

Under the 1995 law, ''waqf by user'' allowed a property to be recognised as a religious or charitable endowment if it had been used for such purposes over a long period, even without a formal deed from the owner.

The 128-page order cited instances such as the Andhra Pradesh Waqf Board's notification of thousands of acres of government land as waqf property, which was later struck down by the top court. The order observed after noticing such ''misuse'', Parliament was well within its powers to abolish the provision prospectively. "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. In any case, as submitted by the learned Solicitor General, 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 order said.

The CJI held, ''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.'' The amended law requires all waqfs to be backed by a formal deed and to be registered with the waqf board. The order noted that registration was not a new requirement but a part of the previous laws too. "If for 30 long years, the Mutawallis (managers of waqfs) 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," the order said.

It was argued that old mosques, dargahs, graveyards, and other religious properties recognised over centuries through usage would be at risk of being taken over by the state.

The bench rejected the apprehension after noting the Centre's assurance that the law would apply only prospectively.

Solicitor General Tushar Mehta submitted the amendment to the provision with regard to "waqf by user" was prospective in nature and all such waqfs registered as on April 8 2025, should stand protected except cases in which a waqf property, was partially or fully, in dispute or was a government property. "It can thus be seen that even in case of a "Waqf by User", an application could have been made for registration even if no waqf deed was executed by giving the details, which were known to the applicant, about the origin, nature and objects of the waqf," it said. The Centre has claimed an addition of 20 lakh acre as waqf land post the law's 2013 amendment and flagged ''misuse'' of waqf provisions to encroach upon private and government properties. In a preliminary affidavit, the Centre termed it ''really shocking'' that after the amendment brought in 2013, there was a 116 per cent rise in the waqf area. ''Right before even Mughal era, pre-independence era and post-independence era, the total of wakfs created was 18,29,163.896 acres of land in India,'' it claimed. The Centre, however, said, ''Shockingly after 2013, the addition of wakf land is 20,92,072.536 acres.''

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