Waqf Act amended to prevent encroachment of government prope
Waqf Act amended to prevent encroachment of government properties, Centre to Supreme Court
Centre in an affidavit filed in the Supreme Court has brought amendments to the Waqf Act, 1995, to prevent abuse of waqf legislation which resulted in the encroachment of government properties.
NEW DELHI — The
Centre, in an affidavit filed before the Supreme Court, said that it brought
amendments to the Waqf Act, 1995, to prevent abuse of waqf legislation which
resulted in the encroachment of government properties, apart from ensuring that
the Waqf Boards in the country are properly administered and function with
transparency.
"It is submitted that there have been reported misuse
of waqf provisions to encroach private properties and government properties. It
is really shocking to know that after the amendment brought in the year 2013,
there is a 116 per cent rise in auqaf area," said the preliminary
affidavit filed by the Union Ministry of Minority Affairs.
The Centre, in its reply document filed before the top
court, said that it was found that most of the Waqf Boards have been
functioning in the "most non-transparent manner" and have either not
uploaded the details in public domain or have uploaded partial details.
"In an era of transparency, it is absolutely necessary
that all details concerning waqf/waqf boards be uploaded in Waqf Asset
Management System of India (WAMPSI) portal," it contended.
The Union government said that under the old regime, due to
the absence of adequate safeguards, government properties and even private
properties were declared as waqf properties.
"The provisions of Sections 3A, 3B and 3C take care of
the said situation which has been prevailing since several decades. It is
submitted that there are startling examples whereby the government lands or
even the private lands were declared as waqf properties," it said in the
affidavit.
The Union government said that the Waqf (Amendment) Act,
2025, was passed with the objective of modernising the management of waqf
properties in India through transparent, efficient and inclusive measures. It
argued that the reforms introduced are directed solely at the secular and
administrative aspects of waqf institutions – such as property management,
record-keeping, and governance structures – without impinging upon any essential
religious practices or tenets of the Islamic faith. The affidavit highlighted
that despite there being a regime of mandatory registration of all kinds of
waqf, including ‘waqf by user’, making registration mandatory, individuals or
organisations used to claim private lands and government lands as waqf
including under 'waqf by user' which not only lead to deprivation of valuable
property rights of individual citizens but similarly unauthorised claims over
public properties.
"While registration of all kinds of waqfs (including
‘Waqf by user’) has always been mandatory, the legal regime never required the
waqf deed as a mandatory condition. In other words, it was mandatory to
register ‘Waqf by user’ even in the absence of a waqf deed by giving other details
for more than 100 years."
Referring to the recently introduced Section 36(1A), the
Centre said that the 2025 amendment provides that a waqf may now be established
only through a valid deed of waqf. It clarified that the amendment to Section
36 has not interfered with the status of existing/registered auqaf by user, and
any existing property which has been registered as waqf by user will retain its
status.
The Union government said that a proviso has been inserted
in Section 3 by the Waqf (Amendment) Act, 2025, making it clear that the
mandatory requirement of a ‘waqf deed’ applies prospectively from the date of
the 2025 amendment i.e., if any new waqf is created after April 8.
"Waqfs by user registered before the amendment would
therefore continue to be treated as waqf in terms of the proviso,” the Centre
said.
The preliminary reply document filed by the Union government
said that before introducing the Waqf (Amendment) Act, 2025, there has been a
detailed executive level and Parliamentary level exercise in order to
understand the problems plaguing the previous statutory regime, the
consequences, and the appropriate measures that were required to remedy the
same.
The Centre contended that the "primary religious right
being the right to make a dedication is not interfered with, and neither is the
administration of any specific waqf interfered with as the same continues to be
vested with the mutawalli as per the purpose behind such waqf".
The affidavit said that it is a settled position in law that
constitutional courts would not stay a statutory provision, either directly or
indirectly, and will decide the matter finally, as there is a presumption of
constitutionality that applies to laws made by Parliament.
"While the Hon'ble Court would undoubtedly have the
power to examine the constitutionality of the law, at the interim stage, the
grant of an injunction against the operation of any provision of the law,
either directly or indirectly, would be violative of this presumption of
constitutionality which is one of the facets of the delicate balance of power
between the different branches of the State,” it added.
In the hearing held on April 17, a bench headed by CJI
Sanjiv Khanna had granted a week’s time to the Centre and state governments and
the Waqf Boards to file their preliminary reply to the petitions challenging
the validity of the Waqf (Amendment) Act, 2025.
The Bench, also comprising Justices Sanjay Kumar and K.V.
Viswanathan, had taken on record the assurance given by the Union government
that it would not de-notify provisions related to 'waqf by user' or include
non-Muslim members in the Waqf Board.
Posting the matter for further hearing on May 5, the CJI
Khanna-led Bench clarified that the hearing fixed on the next date will be a
preliminary hearing and, if required, interim orders will be passed.
