Abolition Of 'Waqf By User' Is Not Arbitrary Prima Facie : Supreme Court

The Supreme Court on Monday (September 15) refused to stay the provision in the Waqf Amendmnt Act 2025 which abolished the concept of 'Waqf by user'.

“Waqf by user” is a concept that recognized a property as waqf not through a formal dedication deed but through long, consistent public use of the property for a religious or pious purpose.

The 2025 amendment deleted Section 3(r)(i) of the original Waqf Act of 1995, which had recognized the concept of "Waqf by user." The petitioners who challenged the amendment contended that the deletion of this provision would prejudicially affect several age-old Waqf properties, which do not have any formal deed of registration.

The Supreme Court however noted that right from the Waqf Act of 1923, there was a requirement of registration of Waqfs. So if the Waqfs were not registered for 102 years, they cannot raise any greivance now.

A bench comprising Chief Justice of India BR Gavai and Justice AG Masih observed in the judgment passed today :

"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."

As regards the contention raised by the petitioners that many old Waqfs will not have any deeds available now, the Court observed that under the original Waqf Act, copy of the waqf deed was not mandatory for filing an application for registration. If no original deed was available, application could have been made by giving full particulars as far as they are known to the applicant with regard to the origin, nature and objects of the Waqf.

"We are, therefore, of the view that 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. Further, if the legislature, on noticing misuse of the waqf properties, finds that after the enactment of the impugned Act all such applications should be accompanied by a copy of the waqf deed, the same cannot be said to be arbitrary," the Court observed.

The Court further observed, "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."

It was also noted that in the case State of Andhra Pradesh v. Andhra Pradesh Waqf Board, the State Waqf Board's notification notifying government lands as Waqfs was quashed by the Supreme Court.

"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 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 judgment authored by CJI Gavai observed.

No interference with Registration mandate

The Court also refused to stay the amendments to Section 36 of the original Act which mandate the registration of every Waqf and prescribe that after the enactment of the 2025 Amendment, no Waqf shall be created without execution of a Waqf deed.

"The requirement of registration has not come for the first time in 2025. Right from 1923, the said requirement has been consistently found in all the enactments concerning the waqf properties," the Court said.

The Court also said that ample time of six months has been granted for registration.

"sub-section (10) of Section 36 of the Amended Waqf Act itself provides a period of 6 months from the commencement of the impugned Act. As such, we are of the considered view that an ample amount of time has been given for the waqfs which are not registered to get themselves registered.

Apart from that, the proviso to sub-section (10) of Section 36 of the Amended Waqf Act provides that an application may be entertained by the court by way of such a suit etc., after the period of 6 months specified under the said sub-section if the applicant specifies sufficient cause. We are, therefore, of the prima facie view that such a provision cannot be held to be arbitrary or discriminatory."

For details about other provisions which have been stayed, read - Supreme Court Stays Certain Provisions Of Waqf Amendment Act 2025; No Interference With Registration Requirement