The court also said the Central Waqf Council and State Waqf Board should not consist of more than four and three non Muslim as members out of 22 and 11 members respectively.
Credit: PTI Photo
New Delhi: In a relief to the Union government, the Supreme Court on Monday declined to stay the entire Waqf Amendment Act 2025, but put on hold some of the key provisions till the validity of the law is finally decided.
A bench of Chief Justice of India B R Gavai and Justice Augustine George Masih said clause (r) of Section 3 of the Amended Waqf Act would 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.
The court also directed unless the issue with regard to title of the waqf property in terms of Section 3C of the Amended Waqf Act is not finally decided in the proceedings initiated under Section 83 of the Amended Waqf Act by the Tribunal and subject to further orders by the High Court, 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.
However, upon commencement of an inquiry, no third-party rights would be created in respect of such properties, the court ordered.
The court also said the Central Waqf Council and State Waqf Board should not consist of more than four and three non Muslim as members out of 22 and 11 members respectively.
It also 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.
In its 128-page judgment on the plea for interim stay, the CJI for the bench, wrote, "In the totality of the circumstances, we do not find that any case is made out to stay the provisions of the entire statute. The prayer for stay of the impugned Act is, therefore, rejected. However, while doing so, in order to protect the interest of all the parties and balance the equities during pendency of this batch of matters."
The court rejected a contention that the condition which requires that a waqf can be created only by a person showing or demonstrating that he is practicing Islam for at least five years is totally discriminatory and arbitrary.
"Prima facie, we are of the view that such a provision cannot be said to be arbitrary or discriminatory,'' the bench said.
However, the court said, since no mechanism or procedure has been provided as of now for ascertaining as to whether a person has been practicing Islam for at least five years or not, such a provision cannot be given effect to immediately.
"We are, therefore, of the considered view that unless the rules are made by the central government by exercising its rule-making power under Section 109 of the Amended Waqf Act, the provision of Section 3(r) of the Amended Waqf Act requiring a person to show or demonstrate practice of Islam for at least five years in order to dedicate a movable or immovable property for the purpose of creating a waqf cannot be given effect to,'' the bench said.
The court also dealt with the validity of the provision which required that the property, to be permanently dedicated as a waqf, should only be a property, owned by the person dedicating it.
Referring to the Treatise “Principles of Mahomedan Law (20th Edition)” by Mulla, the court said, it would show that only an “owner” of a property can create a waqf. Further, from the Key Quranic Verses specifically by Surah Al Baqarah, it can be seen that the very concept of creation of waqf is based on charity i.e., to spend one’s own wealth in the way of Allah, the bench said.
"In any case, to do charity a person will have to do charity of his own property or the money owned by him. A charity cannot be done by a person of a property or money owned by a third person or a property owned by the government. In that view of the matter, we are of the prima facie view that such a requirement cannot be held to be arbitrary,'' the bench said.
The petitioners contended that “Waqf by User” is a concept which is recognised under the Muslim law and the deletion of the said provision is arbitrary.
To this, the bench said, right from 1923, in all the enactments, there was a requirement of registration of waqfs.
"We are, therefore, of the view that if Mutawallis for a period of 102 years could not get the waqf registered, as required under the earlier provisions, they cannot claim that they be allowed to continue with the waqf even if they are not registered,'' the bench said.
The petitioners also contended that in many cases there would be no waqf deeds available.
"If for 30 long years, the Mutawallis 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 bench said.
Further, if the legislature, on noticing misuse of the waqf properties, finds that after the enactment of the 2025 Act all such applications should be accompanied by a copy of the waqf deed, the same cannot be said to be arbitrary, the bench said.
"We are also 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 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 court cited the instance of the Andhra Pradesh Waqf Board, which had notified thousands of acres of land belonging to the Government as waqf property.
"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 bench said.
Having noted the government's submission that the said provision would not apply retrospectively, the court said, the contention of the petitioners that the lands vested in the waqfs would be grabbed by the government prima facie holds no water.
The court also dealt with sub-section (2) of Section 3C of the Amended Waqf Act, which provided that if any question arises as to whether any such property is a government property, the state government may, by notification, designate an 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.
Further, as per the proviso to sub-section (2) of Section 3C of the Amended Waqf Act, such property would not be treated as waqf property till the designated officer submits his report in that regard.
The bench said a provision to determine the question as to whether any property is a government property or not by designating a Senior Officer above the rank of Collector, who shall submit his report to the State Government on the same, prima facie cannot be held to be arbitrary.
"However, at the same time, we are of the considered view that the proviso to sub-section (2) thereof, is, at least, prima facie not sustainable in law,'' the bench said.
The court thus held a provision, by way of which even before an inquiry is conducted by the designated officer as to whether any property is a government property or not and even before the designated officer submits his report to the state government, providing that such a property cannot be treated as waqf property in the interregnum, is, at least, prima facie arbitrary.
"If a property is already identified as a waqf property or is declared as waqf property, then without determination of the question as to whether such a property is a government property or not and treating the said property not as a waqf property, in our prima facie view, is arbitrary,'' the bench said.
The court found that the question with regard to determination of title of a property being entrusted to a revenue officer would not be in tune with the principle of separation of powers enshrined in the Constitution.
"The question of determination of the title of a property will have to, in our considered opinion, be resolved by a judicial or quasi-judicial authority,'' the bench said.
The court thus held the provision which permits the necessary corrections to be made in the revenue records after conclusion of the inquiry and the provision enabling the State Government to direct the Board to make appropriate corrections in the revenue records on receipt of the report are prima facie arbitrary and liable to be stayed.
''However, to balance the equities and to protect the valuable Government properties, it is also imperative that pending such a determination by the Tribunal, the Mutawallis of such of the waqfs do not create any third-party rights in respect of such properties for which the proceedings in accordance with Section 3C of the Amended Waqf Act are initiated, until the final adjudication by the Tribunal is made,'' the bench said.
The court also rejected an argument that Section 5 of the impugned Act (Section 3D of the Amended Waqf Act), related to declaration of protected monument or area as waqf to be void, on the ground that the persons practicing Islamic religion would be deprived of performing their religious practices.
"We, however, are of the considered view that the said argument does not hold water,'' the bench said, referring to Section 5(6) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, which permits the citizens to continue with their customary religious practices even if such an area is a protected monument.
The court also found Section 3D of the Amended Waqf Act, which has been enacted with the avowed object of safeguarding the interest of one of the most marginalised and vulnerable sections of the country, i.e., the Scheduled Tribes cannot be said to have no nexus with the object sought to be achieved. Such a provision cannot, therefore, be said to be prima facie arbitrary so as to stay the same, it said.
The court also declined to go into the question qua inclusion of non-Muslim members amounting to interference in religious practices, at this stage.
It noted Solicitor General has made a categorical statement that the number of non-Muslim members in the Central Waqf Council as provided under Section 9 of the Amended Waqf Act would not exceed four and they will not exceed three in the State Waqf Board as provided under Section 14 of the Amended Waqf Act.
"In order to avoid any ambiguity, we propose to issue a direction that the Central Waqf Council should not have non-Muslim members exceeding four in number and three non Muslim members insofar as Board is concerned,'' the bench said.
The court also held the deletion of the provision which permitted the person not professing Islam to give or donate his property for the purpose of waqf cannot be said to be arbitrary inasmuch as even according to petitioners waqf is specific to Islamic religion.