Institute of Legal and Management Studies

The Supreme Court stayed the provisions of the Waqf Amendment Act 2025 which enabled the Government to denotify Waqf properties which are disputed as having encroached upon the Government land.

While the Court did not stay the provisions in Section 3C which allow a designated officer (who is above the rank of the Collector) of the Government to inquire into whether the Waqf property was situated on a Government land, the Court stayed the proviso to Section 3C(2) as per which the disputed property will not be treated as a Waqf property till the Government's officer completed the enquiry.

A bench comprising Chief Justice of India BR Gavai and Justice AG Masih observed :

"We are of the view that a provision, by way of which even before an inquiry is conducted by the designated officer as to whether any property is a Government property or not and even before the designated officer submits his report to the State Government, providing that such a property cannot be treated as waqf property in the interregnum, is, at least, prima facie arbitrary. If a property is already identified as a waqf property or is declared as waqf property, then without determination of the question as to whether such a property is a Government property or not and treating the said property not as a waqf property, in our prima facie view, is arbitrary."

The Court also Sections 3C(3) and 3C(4) which prescribe that if the designated officer reported that the Waqf land was a government property, then the revenue records and the records of the Waqf Board should be corrected.

Even while upholding the provisions allowing the inquiry by the designated officer,the Court stated that the final determination of title should be left with a judicial authority and not with a revenue official.

The Court said that "the revenue officer cannot be entrusted with the work of determination of the title of a property keeping in view the principle of separation of powers."

"Though we have prima facie upheld the provisions of Section 3C(1) and 3C(2) of the Amended Waqf Act,we find that the question with regard to determination of title of a property being entrusted to a revenue officer would not be in tune with the principle of separation of powers enshrined in our Constitution. The question of determination of the title of a property will have to, in our considered opinion, be resolved by a judicial or quasi- judicial authority."

The Court noted that Section 83 provided for the constitution of Waqf Tribunals "for the determination of any dispute, question or other matter relating to a waqf or waqf property." The decisions of the Tribunals can be challenged before the High Courts.

So, till the question of title is finally determined by the Tribunal or the High Court, the status of the property has to be preserved as a Waqf land. At the same time, the Court ordered that the muttawallis cannot create third party rights till the final determination.

"We are, therefore, of the considered view that the provision which permits the necessary corrections to be made in the revenue records after conclusion of the inquiry and the provision enabling the State Government to direct the Board to make appropriate corrections in the revenue records on receipt of the report are prima facie arbitrary and liable to be stayed. However, to balance the equities and to protect the valuable Government properties, it is also imperative that pending such a determination by the Tribunal, the Mutawallis of such of the waqfs do not create any third-party rights in respect of such properties for which the proceedings in accordance with Section 3C of the Amended Waqf Act are initiated, until the final adjudication by the Tribunal is made," the Court observed.

In the operative portion of the judgment, the Court ordered the stay of proviso to Section 3C(2), Section 3C(3) and Section 3C(4). The Court further ordered:

"It is directed that unless the issue with regard to title of the waqf property in terms of Section 3C of the Amended Waqf Act is not finally decided in the proceedings initiated under Section 83 of the Amended Waqf Act by the Tribunal and subject to further orders by the High Court, neither the waqfs will be dispossessed of the property nor the entry in the revenue record and the records of the Board shall be affected. However, upon commencement of an inquiry under Section 3C of the Amended Waqf Act till the final determination by the Tribunal under Section 83 of the Amended Waqf Act, subject to further orders of the High Court in an appeal, no third-party rights would be created in respect of such properties;"

Also from the judgment - Supreme Court Stays Certain Provisions Of Waqf Amendment Act 2025; No Interference With Registration Requirement

Abolition Of 'Waqf By User' Is Not Arbitrary Prima Facie : Supreme Court

Case Details: IN RE THE WAQF (AMENDMENT)w ACT, 2025 (1) |W.P.(C) No. 276/2025

Citation : 2025 LiveLaw (SC) 909

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