Supreme Court Questions Removal of ‘Waqf by User’ Provision, Flags Impact on Centuries-Old Mosques
The Supreme Court on Thursday raised serious concerns over removing the ‘waqf by user’ provision, warning that it could undo centuries-old waqf declarations in the absence of sale deeds.
A three-judge bench led by Chief Justice of India Sanjiv Khanna was hearing multiple petitions challenging the validity of the Waqf Act. The bench categorically stated that properties long regarded as waqf — whether by user or deed — and affirmed by courts must not be arbitrarily de-notified.
“You still haven’t answered the question. ‘Waqf by user’ will be declared or not? That will be undoing something that’s been established,” CJI Khanna told Solicitor General Tushar Mehta, representing the Centre.
The bench also pointed out that many mosques built between the 14th and 16th centuries fall under the category of ‘waqf by user’ and may not have formal sale deeds. “How will you register in the case of ‘waqf by user’? You can’t say there will be no genuine,” the bench noted.
‘Waqf by user’ refers to properties used for religious or charitable purposes over an extended period, even without formal documentation such as sale deeds. The usage itself, over time, traditionally establishes its status as waqf.
The Centre has proposed to eliminate this concept, arguing for documented proof for all waqf properties. However, the Court said that this move would make it impossible to recognize several genuine religious properties that have existed for centuries.
Another provision under scrutiny is the amendment allowing non-Muslims to be part of waqf boards and the Central Waqf Council. The bench questioned whether the government would allow reciprocal representation by Muslims on Hindu endowment boards.
The court also said that the provision which halts the waqf status of a property while the collector verifies if it is government land should not be operationalized.
Solicitor General Mehta defended the amendments, citing hypothetical examples where the property use may remain intact, but legal benefits may be withheld during inquiry. “The Act doesn’t say usage will stop. It says it won’t get benefit unless we decide it,” Mehta argued.
To this, the CJI retorted, “What will happen then? Where will rent go? Why have that provision then?”
The Waqf Act has faced increasing legal scrutiny in recent years, with multiple petitions alleging bias and constitutional irregularities. Petitioners have also challenged the expansive powers of waqf boards and raised issues of religious neutrality.
The court indicated it was inclined to pass an interim order protecting properties under the ‘waqf by user’ category but eventually deferred the matter to tomorrow for further hearing.
The Supreme Court has sought a detailed clarification from the Centre on the future status of ‘waqf by user’ properties and the rationale behind non-Muslim inclusion on waqf boards.
