Waqf case: Centre says won't denotify properties, SC grants
Waqf case: Centre says won't denotify properties, SC grants it 7 days to reply to pleas
The Centre on Thursday assured the Supreme Court that it will neither denotify waqf properties, including "waqf by user", nor make any appointments to the central waqf council and boards till May 5
Petitioners from Delhi after a hearing on their plea
challenging the constitutional validity of the Waqf Act, outside the Supreme
Court of India, in New Delhi, Wednesday, April 16, 2025. (PTI Photo/Manvender
Vashist Lav)
NEW DELHI — The Centre on Thursday assured the Supreme Court that it will
neither denotify waqf properties, including "waqf by user", nor make
any appointments to the central waqf council and boards till May 5.
The assurance of solicitor general Tushar Mehta came when
he informed a bench of Chief Justice Sanjiv Khanna and Justices Sanjay Kumar
and K V Viswanathan that the waqf law was passed by Parliament with "due
deliberations" and it should not be stayed without hearing the government.
The Centre also strongly opposed the apex court's
proposal to pass an interim order against the denotification of waqf
properties, including 'waqf by user', aside from staying a provision allowing
the inclusion of non-Muslims in the central waqf councils and boards.
"During the course of hearing, the solicitor general
states that the respondent (Union of India) would like to put in a short
response within seven days. He further states and assures that till the next
date of hearing, no appointments will be made to the council and boards under
sections 9 and 14 (of the Act)," the bench said.
The bench noted Mehta, appearing for the Centre, has also
said that till the next date of hearing, waqf properties, including 'waqf by
user' already registered or declared by way of notification, shall not be
disturbed and denotified.
The bench then granted a week's time to the Centre to
file a preliminary response to the pleas challenging the validity of the
contentious Waqf (Amendment) Act, 2025 and posted the matter on May 5.
"If your lordships will say something about 'waqf by
user', what will be the fallout?" Mehta said.
He added, "We, as a government, and Parliament, are
answerable to the people."
The CJI said if the registration of any waqf property had
taken place under the erstwhile 1995 Act, then those properties can't be
denotified till further hearing.
The apex court, while hearing the matter on Wednesday,
proposed to stay certain key provisions of the Act, including the power to
denotify properties declared as waqf by courts and inclusion of non-Muslims in
central waqf council and boards.
On Thursday, Mehta asked whether the court might consider
staying, directly or indirectly, the Act based upon some prima facie or
tentative reading of some of the sections.
"If your lordships are going to stay a statutory
provision," Mehta said, "it by itself is rare. We will have to take
your lordships to the history of legislation, followed by amendment".
He said the government received several representations,
which ultimately resulted into the amended Act.
Opposing the stay, the law officer referred to certain instances
and said private properties were usurped as waqf in several places.
Terming it a "considered piece of legislation",
Mehta said the pleas were filed before the Presidential assent and taken
immediately by the bench.
"We are not deciding the matter finally," the
bench said.
Mehta argued staying the provisions of the Act may be a
"harsh step" and said the government should be allowed to place its
preliminary reply.
"Allow me to place within a week my preliminary
reply with some materials, documents and statutes to show," he said,
"and in one week, nothing will change".
Senior advocate Rakesh Dwivedi, representing a state
government, said "heavens are not going to fall if the interim order is
not passed for a week or so".
Mehta further assured of not making appointments in the
respective waqf boards even if some of the states were not before the court.
The CJI said, "We don't want the position to change.
Parliament makes laws, executive decides and judiciary interprets."
The bench has also decided to hear only five of the total
number of pleas before it and titled the case: "In Re: Waqf (Amendment)
Act, 2025".
About 72 petitions, including those by AIMIM leader
Asaduddin Owaisi, All India Muslim Personal Law Board (AIMPLB), Jamiat
Ulama-i-Hind, the Dravida Munnetra Kazhagam (DMK), Anwar Basha former chairman
Karnataka State Board of AUQAF represented by advocate Tariq Ahmed, Congress
MPs Imran Pratapgarhi and Mohammad Jawed, were filed against the law.
Senior counsel including Kapil Sibal, Abhishek Singhvi,
Huzefa Ahmadi appear for the petitioners in the case.
While appointing three lawyers as the nodal counsel on
Thursday, the bench asked the advocates to decide among themselves who was
going to argue.
The petitioners were allowed to file their rejoinders to
the Centre's reply within five days of the service of the government's
response.
"We clarify that the next hearing (May 5) will be
for the preliminary objections and for an interim order," the bench said.
The bench said a writ petition challenging the 1995 Waqf
Act and the amendment made in 2013 should be separately shown in the causelist.
On Wednesday, the bench was miffed over the inclusion of
non-Muslims in the central waqf council and boards and asked the Centre whether
it was willing to include Muslims in Hindu religious trusts.
The CJI had proposed to issue the notice and to pass an
interim order, saying it will "balance the equities".
Observing some provisions could have "grave
ramifications", particularly those that potentially undermine judicially
recognised waqf properties, the CJI proposed the order.
"The properties declared as waqfs by the courts
should not be de-notified, whether they are by waqf-by-wser or waqf by deed
while the court is hearing the challenge to the Waqf Amendment Act 2025,"
he proposed.
"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.
The Centre notified the Act which received assent of
President on April 5.
