Treating Waqf property as non-Waqf pending inquiry arbitrary: Supreme Court

New Delhi: The Supreme Court on Monday said a provision in Waqf Amendment Act, 2025 designating a senior officer above the rank of Collector, to determine the question as to whether any property is a government property or not and submit a report to the state government, 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,'' a bench of Chief Justice of India B R Gavai and Justice Augustine George Masih 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.