The Supreme Court docket on Wednesday indicated it’s contemplating staying the operation of sure components of the contentious Waqf Act, 2025 which embody the idea of ‘waqf-by-user’, illustration of non-Muslims on waqf boards, and the powers of the Collector to alter the standing of disputed waqf land.
“We don’t keep a laws usually at this stage of the problem except in distinctive circumstances. This seems to be an exception. Our concern is that if waqf-by-user is de-notified, there could possibly be enormous penalties,” Chief Justice of India Sanjiv Khanna mentioned in an oral remark. The bench additionally comprised Justices P V Sanjay Kumar and KV Viswanathan.
The 2025 Waqf legislation does away with the idea of waqf-by-user. Waqf-by-user is land used for Muslim spiritual or charitable objective for an extended time period – it’s deemed to be a waqf even when it was not registered as such. This might probably elevate questions on the standing of a number of such waqf properties.
“So far as waqf-by-user is anxious, it is going to be very troublesome to register. So, there’s ambiguity there. You might argue that waqf-by-user can also be being misused. You have got a degree there… You will have a degree that’s being misused additionally, however on the identical time, there’s real waqf-by-user additionally. You may’t say that there is no such thing as a real waqf-by-user both,” CJI Khanna mentioned.
Solicitor Basic Tushar Mehta mentioned he’ll have the ability to justify the federal government’s stand that if a waqf-by-user is registered, it would proceed to stay so. He mentioned he was saying so as a result of registration of waqf properties has been obligatory because the first Waqf Act in 1923.
“From 1923 when the primary Waqf Act got here into drive, registration of waqf is obligatory, statutorily, mandatorily required. You can not have an unregistered waqf. Even waqf-by-user can’t be unregistered, which was adopted by the waqf act of 1954. Below 1954 Act additionally, it’s obligatory to have your waqf-by-user or every other waqf registered. That was adopted by the Waqf Act of 1995. The current Act, the place additionally the registration of waqf is… solely obligatory.…,” Mehta mentioned.
The 2025 legislation states that if the district collector identifies any property as authorities land, it will stop to be waqf property until a court docket determines its standing. The Supreme Court docket indicated that whereas the Collector could make his inquiry, the impact of his willpower could possibly be saved in abeyance.
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The three-judge bench was about to dictate the interim order when Solicitor Basic Mehta sought to be heard for some extra time. The Court docket then mentioned that it will hear the case once more on April 17 at 3pm earlier than passing orders. The Court docket additionally indicated that it will determine whether or not it will proceed to listen to the batch of circumstances or refer to at least one Excessive Court docket for consideration.
After the listening to concluded, CJI Khanna expressed concern on the violence in West Bengal, and termed it “disturbing.” SG Mehta, added that there was a “phenomenon which you can pressurise the system”.
Senior advocate Abhishek Manu Singhvi, showing for the petitioners advised the bench that “of about 8 lakh present waqfs, roughly 4 lakh are maybe by consumer and that the newly launched provision, makes them non-existent by one stroke of the pen.”
The petitioners additionally cited the SC’s Ayodhya judgement which had recognised that the idea of waqf-by-user is an previous idea adopted for hundreds of years. Singhvi mentioned that “a few of these pernicious provisions, they’ve come into impact instantly. We’re searching for a keep.”
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Responding to Mehta’s arguments that solely registered waqfs will proceed to take pleasure in waqf by consumer standing, the CJI mentioned, there are two points that come up – the expressions “in dispute” and “is a authorities property”.
“What do you imply by the time period ‘is in dispute’? It doesn’t say it’s earlier than the court docket or is in any other case in dispute,” mentioned Justice Khanna. “Second challenge is with regard to authorities property. Now the actual fact of the matter is, earlier than the Britishers got here, we didn’t have any registration of property… Lots of the masjids might have been constructed in 14th, fifteenth, sixteenth, seventeenth centuries. To require them to supply a registered sale deed will probably be unattainable.”
Mehta, nonetheless, mentioned “nothing prevented them from going and getting it registered after 1923. It was obligatory.” Senior advocate Kapil Sibal, who led the arguments for the petitioners termed the amendments “a parliamentary usurpation of the religion of 200 million residents of this nation.”