Waqf by consumer refers to a observe the place a property is recognised as a spiritual or charitable endowment (waqf) based mostly on its long-term, uninterrupted use for such functions, even when there is not a proper, written declaration of waqf by the proprietor.
The supply turned out to be the bone of competition within the problem to the brand new legislation.
The highest court docket on Monday in an interim order stalled some essential provisions besides it didn't keep the legislation in its entirety and upheld a number of provisions, together with the one mandating the registration of waqfs in addition to the deletion of “waqf by consumer” .
The highest court docket mentioned the Centre deleted the “waqf-by-user” provision after noticing misuse and its omission, that too prospectively, was not “arbitrary”.
The interim order was handed by a bench of Chief Justice B R Gavai and Justice Augustine George Masih. The provisions, which have been stayed included a clause mandating solely these practising Islam for the final 5 years, to create waqf. One of many key contentions of these opposing the amended legislation was on the abolition of “waqf-by-user” with a potential impact.
The choice, penned by the CJI, mentioned, “If the legislature, in 2025, finds that on account of the idea of ‘Waqf by Consumer', big authorities properties have been encroached upon and to cease the mentioned menace, it takes steps for deletion of the mentioned provision, the mentioned modification, prima facie, can't be mentioned to be arbitrary.”
The bench mentioned the legislative intent was to stop misuse of waqf provisions and safeguard public property.
Below the 1995 legislation, “waqf by consumer” allowed a property to be recognised as a spiritual or charitable endowment if it had been used for such functions over an extended interval, even and not using a formal deed from the proprietor.
The 128-page order cited cases such because the Andhra Pradesh Waqf Board's notification of 1000's of acres of presidency land as waqf property, which was later struck down by the highest court docket.
The order noticed after noticing such “misuse”, Parliament was properly inside its powers to abolish the supply prospectively.
“After noticing such cases of misuse, if the legislature finds that the idea of ‘Waqf by Consumer' needs to be abolished and that too prospectively, in our view, the identical can not prima facie be mentioned to be arbitrary. In any case, as submitted by the realized Solicitor Common, the deletion of clause (i) of Part 3(r) of the Unique Waqf Act would come into impact from the date on which the impugned Act has come into impact,” the order mentioned.
The CJI held, “The mentioned provision would, subsequently, not apply retrospectively. Due to this fact, the competition of the petitioners that the lands vested within the waqfs can be grabbed by the Authorities prima facie holds no water.”
The amended legislation requires all waqfs to be backed by a proper deed and to be registered with the waqf board.
The order famous that registration was not a brand new requirement however part of the earlier legal guidelines too.
“If for 30 lengthy years, the Mutawallis (managers of waqfs) had chosen to not make an utility for registration, they can't be heard to say that the supply which now requires the applying to be accompanied by a replica of the waqf deed is bigoted,” the order mentioned.
It was argued that outdated mosques, dargahs, graveyards, and different non secular properties recognised over centuries by means of utilization can be prone to being taken over by the state.
The bench rejected the apprehension after noting the Centre's assurance that the legislation would apply solely prospectively.
Solicitor Common Tushar Mehta submitted the modification to the supply with regard to “waqf by consumer” was potential in nature and all such waqfs registered as on April 8 2025, ought to stand protected besides circumstances through which a waqf property, was partially or totally, in dispute or was a authorities property.
“It may thus be seen that even in case of a “Waqf by Consumer”, an utility might have been made for registration even when no waqf deed was executed by giving the main points, which have been recognized to the applicant, concerning the origin, nature and objects of the waqf,” it mentioned.
The Centre has claimed an addition of 20 lakh acre as waqf land publish the legislation's 2013 modification and flagged “misuse” of waqf provisions to encroach upon non-public and authorities properties.
In a preliminary affidavit, the Centre termed it “actually surprising” that after the modification introduced in 2013, there was a 116 per cent rise within the waqf space.
“Proper earlier than even Mughal period, pre-independence period and post-independence period, the overall of wakfs created was 18,29,163.896 acres of land in India,” it claimed.
The Centre, nevertheless, mentioned, “Shockingly after 2013, the addition of wakf land is 20,92,072.536 acres.”
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