Properties declared waqf including 'waqf by user' won't be denotified, SC proposes

 Would Muslims be part of Hindu trusts, apex court asks Centre  

PTI, NEW DELHI, APRIL 16, 2025  The Supreme Court on Wednesday proposed to order that the properties declared as waqf, including "waqf by user", won't be de-notified. However, the Centre opposed the suggestion and sought a hearing before such a directive.

The apex court also asked the Centre if Muslims would be allowed to be part of Hindu religious trusts.

"The properties declared by courts as waqfs should not be de-notified as waqfs, whether they are waqf-by-user or waqf by deed, while the court is hearing the challenge to the Waqf Amendment Act 2025," the bench said.

The Supreme Court went on:

"All members of the waqf boards and Central Waqf Council must be Muslims, except the ex-officio members."

A bench of Chief Justice Sanjiv Khanna and Justices Sanjay Kumar and K. V. Viswanathan, in the hearing earlier, considered referring the pleas to one High Court but later heard at length a battery of senior advocates, including Kapil Sibal, Abhishek Singhvi, Rajeev Dhavan, and Solicitor General Tushar Mehta, who represented the Centre.

The bench, which did not issue a formal notice as of now, said it would resume hearing on the petitions at around 2 PM on April 17.

The apex court also expressed concern over the violence that followed the law's enactment and said it was disturbing when it was seized of the matters.

The CJI further proposed to pass an order to say that ex-officio members could be appointed regardless of their faith, but others had to be Muslims.

The apex court questioned Mehta on how "waqf by user" can be disallowed, as many would not have requisite documents to get such waqfs registered.

"Waqf by user" refers to a practice where a property is recognised as a religious or charitable endowment (waqf) based on its long-term, uninterrupted use for such purposes, even if there isn't a formal, written declaration of waqf by the owner.

"How will you register such waqfs by user? What documents will they have? It will lead to undoing something. Yes, there is some misuse. But there are genuine ones also. I have gone through Privy Council judgments also. Waqf by user is recognised. If you undo it, then it will be a problem. Legislature cannot declare a judgment, order or decree as void. You can only take the basis," the bench said.

Mehta, however, submitted there was a large section of Muslims who did not want to be governed by the Waqf Act.

The bench then asked Mehta:

"Are you saying that from now on you will allow Muslims to be part of the Hindu endowment boards? Say it openly."

The apex court said when a public trust was declared to be a waqf 100 or 200 years ago, it couldn't suddenly be taken over by the waqf board and declared otherwise.

"You cannot rewrite the past," the bench said.

Mehta submitted that a joint parliamentary committee had 38 sittings and examined 98.2 lakh memorandums before both Houses of Parliament passed the law.

The CJI, at the start of the hearing, said:

"There are two aspects we want to ask both sides to address. Firstly, whether we should entertain or relegate it to the High Court? Secondly, point out in brief what you are really urging and wanting to argue? We are not saying there is any bar on SC in hearing, deciding pleas against the law."

Sibal, appearing for the petitioners, referred to the Waqf Amendment Act and said he was challenging the provision that says only Muslims could create waqf.

"How can the State decide whether, and how, I am a Muslim or not and hence, eligible to create waqf?" Sibal asked.

Senior advocate Abhishek Singhvi, who represented some of the petitioners, submitted that the Waqf Act would have all-India ramifications and that the pleas should not be referred to the High Court.

Senior advocate Huzefa Ahmadi, opposing the Waqf Act, said waqf by user was an established practice of Islam and couldn't be taken away.

The Centre recently notified the Waqf (Amendment) Act, 2025, which got the assent of President Droupadi Murmu on April 5 after its passage from Parliament following heated debates in both Houses.: