SC verdict backs omission of ‘waqfs by user’, says Parliament was bothered by encroachment of ‘huge government properties’

The Supreme Court said legislative action to rid waqf by user of statutory recognition and make registration of Waqfs mandatory cannot be termed “arbitrary”, considering the “menace” of encroachment of “huge government properties” over the years.

“We are of the view that 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 menace, it takes steps for deletion of the provision, the amendment, prima facie, cannot be said to be arbitrary,” Chief Justice of India B.R. Gavai, heading a Division Bench, observed in a judgment refusing to stay the entirety of the Waqf (Amendment) Act, 2025.

The verdict referred to how the Andhra Pradesh Waqf Board had notified thousands of acres of land belonging to the Government as waqf property. The State government had failed to get the land back in the High Court, and had to finally appeal the Supreme Court, which set aside the notification and had held that the lands were vested with the State.

“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,” the court reiterated.

Clause (i) of Section 3(r) of the Waqf Act of 1995 had recognised waqf by user, which meant a property used for religious or charitable purposes but without any formal written declaration or deed stating its character.

The 2025 Amendment Act omitted the concept of waqf by user and insisted on a formal Waqf deed.

The court noted that mandatory registration of waqfs was not a new concept. It had been part of the 1995 waqf law.

“We are, therefore, of the view that 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 Chief Justice, who authored the judgment, observed.

The apex court did not prima facie find any substance in the petitioners’ argument that centuries’ old lands, graveyards, dargahs and mosques, which have been recognised as waqfs through long and consistent usage over the years, would be “grabbed” by the government.

In this regard, the court recorded the assurance given by Solicitor General Tushar Mehta, who appeared for the Centre, that the deletion of clause (i) of Section 3(r) of the original 1995 Waqf Act would only come into effect prospectively, when the 2025 amendments came into effect. The Amendment Act was notified on April 8, 2025.

The Union government, also represented by advocate Kanu Agrawal, had earlier informed the apex court that “shocking” misuse of waqf provisions had led to “rampant encroachments” into private and government properties. The Centre had submitted that encroachments had led to a 116% rise in waqf lands from 2013 to 2024, a phenomenal high unmatched even in the Mughal period.

“It is submitted that right before even Mughal era, pre-Independence and post-independence eras, the total of wakfs created was 18,29,163.896 acres of land in India. Shockingly after 2013, in just 11 years, the addition of wakf land is 20,92,072.536 acres… The figure of 20 lakh acres is additional and not the total figure. The total comes to 39,21,236.459 acres of land,” Minority Affairs Ministry affidavit had submitted in the apex court in April.

The government had argued that removing the concept of ‘waqf-by-user’ in the 2025 amendments did not deprive a Muslim his right to create a waqf.

“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,” the Centre had said.

Only those who evaded registration to avoid being accountable under a statutory regime or reveal transactions of land dealings would be in trouble, the government had maintained in court.