Waqf case LIVE | Waqf is just charity, not essential to Islam: Centre tells SC

Hearing concludes for the day with SG's argument against an interim order on the Act

After the hearing resumed, Solicitor General Tushar Mehta countered the petitioners’ argument. The petitioners alleged that the amended act was a bid by the Centre to virtually take over Waqf properties. Mehta argued that in related acts in 1923, 1954, and 1995, registrations were made mandatory. He also said that if the section stating only registered ‘Waqf by user’ is interfered with by any interim order, it will defeat the very objective of the provision itself.

Mehta further stated that an interim order on the amended act will amount to the formation of creation of a legislative regime by judicial order, which has already been taken away by Parliament through law.

The Solicitor General further submitted that “Waqf by user” was not a fundamental right, and Waqf itself is not an essential part of Islam. Mehta defended the addition of non-Muslim members in Waqf bodies, arguing that a “microscopic” number of non-Muslim members could not be termed as an encroachment, adding that, on the contrary, it would introduce diversity in the composition of such bodies.

He opposed a stay on the amended act, stating that it does not deal with the religious head of waqf administration and covers only the administration of waqf properties.

The hearing concluded for the day after the CJI agreed to give half an hour to the respondents. The petitioners would get an hour for their response on Thursday.

Matter to resume post 2 pm

The Act requires documents to be provided so far as possible: SG Mehta

It was argued by Solicitor General Mehta that a designated authority ought to be appointed to verify whether properties declared as waqf are, in fact, being treated and maintained as waqf properties.

During the hearing, CJI Gavai inquired whether the 1923 Act had included a provision for registration, noting that Kapil Sibal had previously submitted that registration requirements were introduced only in 1954, not in 1923.

In response, SG Mehta read directly from the statutory text. He referred to a prevailing narrative that questioned how documents for 100-year-old properties could be produced, dismissing it by asserting that such documents were never mandatory. It was stated that this was a perception being intentionally created.

It was clarified that when a waqf is claimed to have been created over a century ago, documentation from the last five years can also be produced. This requirement is not a mere formality, but carried legal sanctity under the Act.

According to the 1923 Act, if documentary evidence is available, it should be submitted; otherwise, information regarding the origin of the waqf should be provided to the best of one’s knowledge.

The assertion that a waqf had been operating merely by user for 100 years was challenged by SG Mehta, who then proceeded to read relevant statutory provisions from the 1923 Act. In response, CJI Gavai observed that SG Mehta appeared to be technically correct.

It was also explained that the concept of waqf by user was not unknown prior to 1954. Reference was made to a section in the Bengal Waqf Act of 1923 that had already addressed such a concept. The first formal creation of a Waqf Board, however, was said to have occurred in 1954.

Provisions from the 1954 Act were read aloud by SG Mehta, followed by references to the amendments introduced in 1984.

It was argued that no individual could now claim that registration was the responsibility of someone else; rather, it was incumbent upon the concerned parties to ensure registration. In cases where registration had not been carried out under the 1923 Act, it was stated that the obligation to register still remained.

The narrative questioning the availability of documentation was stating that documents to be provided “so far as possible,” and does not demand a waqf deed or similar formal document.

It was also pointed out that a window for registration had been provided under the law. CJI Gavai noted that under the 1923 Act, the timeframe for registration was three months, whereas it now stands at six months.

SG Mehta confirmed this, adding that if the earlier deadline had been missed, registration could still be undertaken even now.

It was further emphasised that a provision had been made enabling a Muslim to create a trust without necessarily designating it as a waqf, and that this should be viewed as an empowering legislative measure.

Concerns over ongoing maladministration in existing trusts were acknowledged by the government, and the Bombay Public Trust Act was cited as an example. It was highlighted that the Act bars any legal action related to trusts that have not been registered under its provisions.

The Solicitor General then turned to the broader legal issue under consideration — namely, whether the current Act should be stayed, and whether it seeks to achieve a reasonable and constitutionally valid objective.

CJI Gavai, recalling the prior day’s deliberations, reiterated that a presumption of constitutionality stands in favour of the legislation.

SG Mehta outlines the framework of Waqf (Amendment) Bill 2025

SG Mehta said that the petitioner's counsel argued that entire adjudication of Waqf is taken away, which was not the case. He stated that there is no wholesale capture of the Waqf. If a person wants to file a civil suit after his Waqf property is suspended, he can seek legal remedy.

Section 3C was confined to the correction of revenue records and related entries. This correction was said to be interpreted as character-based, and it was stressed that no property could be deemed as waqf unless a proper adjudication process had been concluded.

He asked until a final determination is made regarding whether the property belongs to the government, no such actions could be permitted, how can it be transferred or encumbered.

Waqf by user was said to be protected, provided the property in question was registered. In cases involving private disputes, it was clarified that objections would not be entertained, and such disputes would be resolved by the appropriate judicial forum.

Possession of property could not and would not be taken over except in accordance with the law — certainly not under Section 3C or its provisons. Mehta said the only exception is that registered Waqf by user will be protected.

Consequences for non-registration were said to have been provided under the current legal framework. Tushar Mehta contended that this is the first enactment dealing with regulation of Waqf property.

It is a long-standing menace that had persisted for 102 years, with the objective of the legislation clearly outlined in the preamble of the Bill.Regarding the aspect of the five-year period, reference was made to Section 3 of the Sharia Act, which requires individuals to establish themselves as Muslims.

Mehta said that this does not mean strict religious practices such as offering namaz five times daily or abstaining from wine are required.

Mehta argued that numerous waqf properties were being managed by mutawallis as if they were privately owned. Many such properties, it was claimed, remained unknown to the general public.

Waqf by user has been abolished: Petitioner counsel

Counsel for the petitioner argued that waqf by user has been abolished and that the relevant provision in the Act states the property shall not be considered waqf in the interim.

In response, Solicitor General Mehta said, “Please refer to Section 85. No suit or other legal proceedings shall lie in any civil court, revenue court, etc., regarding any waqf property that is required by this Act to be determined by the Waqf Tribunal.”

The order under 3C is not final, is subject to judicial review: SG Mehta

Mutawalli may file a law suit within the timeframe specified in the Act: SG Mehta

CJI Gavai asked whether eviction would not take place unless the proceedings under Section 83 are taken to a logical end. In response, Solicitor General Mehta confirmed this, stating that a mutawalli (caretaker) or any person aggrieved by an order under Section 3C may file an application within the timeframe specified in the Act.

Ownership of the property continues unless legal recourse is pursued: SG Mehta

CJI Gavai asked whether, after the Collector conducts an inquiry, the property would cease to be Waqf property — and whether, once the inquiry is complete, the entire property would be taken over by the government.

In response, Solicitor General Mehta said that the government would have to file a lawsuit to establish ownership, and that the determination under Section 3C is not final.

Justice Masih then asked whether ownership of the property continues as it is unless legal recourse is pursued. SG Mehta confirmed this, replying, "Yes."

The role of the designated officer is limited to maintaining revenue records: SG Mehta

SG Mehta: Initially the Bill said the collector will decide the ownership of the property. But an objection was raised whether the collector will be a judge in his own case. So as suggested by JPC, a designated officer will be appointed under 3C will be limited and his role is limited only to correction of the revenue records and board records

Though this clause was mentioned in the affidavit it was not brought this to notice.

CJI Gavai: So it will just be a paper entry?

SG Mehta: It will be a paper entry. But if government wants ownership, it will have to file a suit for title. If anyone is dealing with trust property he will know as per revenue record that government is the owner and not the Waqf. The affected party “at any stage” can approach the Waqf tribunal under 83 which will make the final title or on appeal by the HC or the SC. Updating of revenue records only ensures that the records of rights is accurately maintained.

Will the government decide on its own whether the property belong to it or not: CJI Gavai

Solicitor General Tushar Mehta said that the revenue department authorities decide whether a property is government-owned or not. But it is not the final decision, it is only for the revenue records.